Procurement Bill [HL]

Debate between Lord Hunt of Kings Heath and Baroness Thornton

Committee stage
Monday 11th July 2022 Grand Committee

[Baroness Thornton (Lab)]

My Lords, I shall speak to Amendment 47A in my name and Amendment 52. Basically, we believe that Clause 11 should include specific references to maximising social value as something that a contracting authority must have regard to in line with the social value Act and the national procurement policy strategy. The question to which I would appreciate an answer from the Minister is: why is that not included? In my previous contribution, I went through all the different policy streams—including levelling up—that lead us to the conclusion that social value and support for social enterprises and social businesses are a good, and they are good in procurement. It is therefore a mystery why this has been left out of the Bill. I hope the Minister will agree with that and, if not, explain to me why it is not the case. I hope he will support these amendments and add them in. They are modest amendments, really.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have Amendment 48, but I very much endorse my noble friend Lady Thornton’s remarks on this subject. In the group before last, it was interesting to hear the Minister talk about what I thought was a hierarchy in terms of the balance to be drawn in making judgments about procurement. He put value for money at the highest level. My major problem with that is that my experience in the public sector, mainly in the health service but in other worlds too, is that that is translated into the lowest price.

Health and Care Bill

Debate between Lord Hunt of Kings Heath and Baroness Thornton

Lords Hansard - Part 2 & Report stage
Thursday 3rd March 2022 Lords Chamber

[Baroness Thornton (Lab)]

With the leave of the House, I thought it might be useful if I used my slot to speak right now on leaving out Clause 40. First, I thank the noble Lords, Lord Patel and Lord Lansley, and the noble Baroness, Lady Walmsley, for putting their names to this amendment. The noble Lord, Lord Patel—with whom I spoke this morning, and who is definitely on the mend, so I hope we will see him next week—said how strongly he supports the amendment. I will speak very briefly because we have already said much of what needs to be said about saving the Secretary of State from himself—as the noble Lord, Lord Lansley, said, I think. This is what this amendment is about.

Clearly, this is not what the NHS asked for in the Bill. It did not ask for this power. It has been added to the Bill—by a previous Secretary of State, I suspect—and I hear rumours that even the current Secretary of State is not a great fan. Why would any Secretary of State want to have this power—to be lobbied and drawn into any minor local dispute, particularly as we head towards a general election?

I have a small anecdote. A small coastal town had a small hospital with an accident and emergency department. It could not be properly staffed, it regularly closed for random periods, and far too often patients arrived there only to be moved to the larger A&E 20 miles down the road. Proposals were made to close it—and of course, outrage ensued. “Save our A&E”, people said, even though it was unsafe. Local politics were poisonous, and the blame for the closure was thrown on opponents, whichever side they were on.

However, over time, good communications, clinical leadership and, eventually, bringing local people into the team, got the proposal moving. People understood what was needed and why, and the reconfiguration process went through its stages, with external reviews and analysis by the national clinical advisory team, which all gave reassurance. The clincher came when a distinguished clinician leading the review told a meeting that he would personally go and paint over the road signs for the A&E, because it was so unsuitable. It shut, which probably means that lives were saved.

The process of rational argument and proper analysis works, and on this occasion we should not just leave it to local politics to decide what reconfiguration means. The Secretary of State has enough powers to direct the whole NHS in its fullness, but should not be involved in what may be very small reconfigurations indeed. We agree, and many people in the NHS and its organisations agree, that this clause should be removed from the Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have no doubt that when the Minister responds he will say that the Secretary of State is likely to use this power very rarely. The point is that the moment the health service knows the Secretary of State has such a power, that will immediately influence its behaviour in relation to any improvements or major changes of services likely to lead to opposition from the local Member of Parliament. I think that the Minister is responsible for innovation in the health service, and this will put the kibosh on innovation and service changes.

Written on my heart is Kidderminster General Hospital. The Minister may not recall this, because it is a long time ago now, but Worcestershire Health Authority made proposals to reconfigure A&E services and close Kidderminster General Hospital. The then Member of Parliament, David Lock, who was a loyal member of the Government, bravely defended that decision. He lost his seat in 2001, and it has been written on the hearts of many MPs since then that they do not defend that type of change, because they might lose their seats.

I cannot believe that the Government wish to give the Secretary of State the nightmare of that kind of lobbying—I am trying to tempt the noble and learned Lord, Lord Clarke, to intervene here, because he knows what MPs do. What we have at the moment is a very good system, at arm’s length, and it beats me why on earth the Government want to do this. We need to do the business and get rid of the clause. I suspect that we shall not see it back again.

Health and Care Bill

Debate between Lord Hunt of Kings Heath and Baroness Thornton

Lords Hansard - Part 1 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My noble friend raises a very important point, because councillors can presumably go on integrated care partnerships and health and well-being boards but cannot go on the integrated care boards—but one of their officers can. What is the logic? Can my noble friend help me? So far the Government have given no answer whatever as to why. I know I am going on about this, but it is a fundamental issue: why are local authority councillors not seen as core partners on integrated care? It makes a mockery of the integration. There is no integration: they are setting up two separate boards. I do not know why they are not setting up one integrated board to cover the NHS and the partnership. It defies understanding. Why have they come up with this complicated arrangement and are continuing with health and well-being boards? Can my noble friend help me?

[Baroness Thornton (Lab)]

I certainly cannot help my noble friend, but I live in hope that the Minister can. It smacks of a fix. The Minister might not be prepared to say on the Floor of the House what exactly the fix was between the various bits of NHS England and various bits and other parts of the machinery. I suspect that the noble Lord, Lord Lansley, might know better than the rest of us what that fix was.

I will comment on my noble friend Lord Davies’s amendment. The problem with it is that, as the ICPs are proposed in the Bill at the moment, they will not be spending any money or commissioning services. It is also important that they include the various important parts of our local health delivery systems, including pharmacists, dentists, GPs, social enterprises and the voluntary sector. As I read it, this amendment would exclude hospices, for example—which would be a ridiculous thing to do. So my noble friend might want to rethink that amendment, because it does not necessarily serve the intended interests of the ICPs.

Medical Devices (Coronavirus Test Device Approvals) (Amendment) Regulations 2021

Debate between Lord Hunt of Kings Heath and Baroness Thornton

Tuesday 20th July 2021 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, noble Lords who have read the record of the debate on this SI in Grand Committee will not be surprised that this regret amendment has been brought to the House today, given the Minister’s inability to answer the questions posed by noble Lords or indeed to reassure us over our concerns. Since then, we have had a weekend of further chaos on testing, tracing and isolating, which we will discuss tomorrow when the House takes the latest Statement on the matter. I understand that it is the 49th such Statement; it is certainly the 49th in the Commons.

For complete clarity, as the amendment states, I say that we on these Benches are in favour of guaranteeing and improving the quality of Covid tests. We also recognise that the private sector has a role to play in providing tests for those who wish to travel abroad on holiday and for business purposes. My amendment highlights the issues that were of concern to the Grand Committee and which prompted many questions, based not least on the excellent report from the SLSC, that I am afraid went unanswered.

I thank the Minister for his letter yesterday, which provided much-needed clarity on some of the issues raised and contained the kind of details that would have been helpful in last week’s debate. These regulations are not being introduced with the urgency characteristic of previous points in the pandemic, and they must be introduced and debated in a considered fashion.

This is a public health pandemic and surely no barrier, particularly a financial one, must be put in place that hinders testing and tracing, yet there has been deep unease that lateral flow tests were guaranteed to be free only until the end of July and that people could subsequently be charged under plans being considered by the Government. The Minister’s letter includes welcome confirmation that free NHS tests and universal testing will continue until the end of September. That raises the question of why the Minister could not give us that answer last week in Grand Committee. He should have been well prepared for it given the public interest, media reports and indeed the SLSC report on this instrument, which specifically raised concerns about changing policy and recommended that free testing continue. Can he confirm when that decision was made and when it will next be reviewed?

The noble Lord, Lord Scriven, asked some thoughtful questions about the supply of tests and their reliability. He asked the Minister to explain the Government’s intention on charging for tests, particularly for employers who want to institute testing regimes to bring their staff back into their premises and to protect the public and their customers while doing so. He eloquently made the point that businesses have lost significant revenue over the last week and have asked whether it is right to expect them to meet further costs at this stage. Since April, companies have been able to order rapid lateral flow tests for their workers. While we now know that individuals can still claim free tests through the NHS, at least until the end of September, there seems to be confusion as to whether the scheme for companies has closed. The Government’s website says the cut off for new orders was 19 July—the UK Government’s freedom day in England—as the requirement for masks and social distancing ended. Can the Minister confirm whether the scheme for businesses will also run until September? Does he agree that responsible employers who are ensuring their workers are regularly undertaking lateral flow tests should be congratulated on their approach rather than suddenly being asked to source tests from a private provider, which would dramatically increase costs?

My noble friend Lord Rooker, the noble Lord, Lord Moynihan, and the noble Lord, Lord Lansley, all raised the issue of the missing impact assessment, which the Explanatory Memorandum said would be published in time for the parliamentary debate, which was on Monday 12 July. Again, the Minister failed to answer this question during Committee, but his letter of 19 July reveals that the impact assessment has been red-rated by the independent Regulatory Policy Committee and withheld. Noble Lords will be aware that red-rated impact assessments are deemed not fit for purpose. This is deeply concerning. In his letter, the Minister further committed to publishing the impact assessment as it currently stands and a supporting statement “shortly”, and therefore before the parliamentary vote, following the opinion of the RPC, outlining the areas where further improvements can be made. Here we are, over a week later, about to vote—possibly—yet this important documentation has still not been published. Can the Minister explain why this has not happened, despite his assurance? Where does the buck stop for this latest failing?

Finally, the noble Lord, Lord Scriven, and I are very concerned about the seeming lack of link between test and trace and the proposed new private testing regime. While the noble Lord’s letter to me notes that it is

“vital that we introduce a regulatory regime to ensure COVID-19 tests available on the market are of sufficient quality and produce accurate results”,

it does not offer assurance in detail about how this regime and the NHS Test and Trace will work together to provide a comprehensive safe regime that the UK can depend upon. I sincerely hope that the Minister can provide some much-needed clarity.

There are many matters to regret here: the impact, or lack of it, the policy changes, the process and the timeliness. This was not an urgent matter, the Minister said. It could have been done over a month or so, and it would have definitely benefited from that. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very glad to support my noble friend in her Motion. I want to put two points to the Minister. The context of this SI is the poor quality of many tests. Paragraph 7.2 of the Explanatory Memorandum makes the point that, during public procurement of lateral flow tests for the NHS,

“only 25% passed through all stages of validation including assessments of performance and quality standards.”

That is a pretty shocking statistic. Can I take it that most of these tests came from China? We had an Oral Question on this from the noble Lord, Lord Alton, only a few minutes ago. That being so, can the Minister assure me that Uighur slave labour in Xinjiang was not used in the manufacture of those tests?

Medicines and Medical Devices Bill

Debate between Lord Hunt of Kings Heath and Baroness Thornton

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Wednesday 11th November 2020 Grand Committee

[Baroness Thornton (Lab)]

My Lords, I said at Second Reading that we on these Benches are supportive of the extension of prescribing rights to additional health- care professionals, including radiographers, dietitians, orthoptists and speech and language therapists. It is time that this issue was resolved and that is our intention in tabling this amendment. The new clause would require the Secretary of State to publish proposals and a timetable for additional healthcare professionals to be given appropriately restricted prescribing rights. I thank my noble friends Lord Bradley and Lord Hunt, and the noble Lord, Lord Ramsbotham, for their support and I look forward to hearing their remarks.

The background to this issue is that, in February 2020, in response to a Parliamentary Question tabled by my honourable friend Geraint Davies MP, the Government said:

“Subject to Parliamentary approval, the Medicines and Medical Devices Bill currently before Parliament will give the Government powers to extend prescribing responsibilities to new professional groups where it is safe and appropriate to do so.”


We support that extension and our proposed amendment to the Bill will expedite that, resulting in better outcomes for patients and the system as we face a surge in demand on health services both now and in the future due to the Covid-19 pandemic.

The extension will build on the groundwork already undertaken by the NHS England scoping exercise over the past few years on extending prescribing rights to members and professionals. Extending prescribing rights would help to deliver better support and more timely care for patients. It would improve patient safety, as allied health professionals with appropriate expertise would be able to make decisions rather than relying on junior clinicians signing off clinical management plans. It would decrease the number of patient group directions needed, thus reducing the time spent on development, use and training, and it would bring prescribing expertise closer to the patient. It would reduce the pressure on other stretched professionals, including GPs, and it would improve system efficiency by reducing the duplication of work among health professionals, with a potential result of significant time and resource savings. The extension of prescribing rights to these professionals and others would make a significant and positive difference to those professionals and to the ability of the wider health system to respond as swiftly and efficiently as possible to the post-Covid-19 surge in demand on health services, including the rehabilitation and recovery of post-Covid-19 patients.

It is important to recognise the impact of Covid-19 and how it has emphasised the urgency of taking action. When we discussed these issues before the Bill came before the House, representatives expressed their frustration at how long it seemed to be taking to get approvals to work their way through the system. Given that we have managed to shortcut various systems because it has been necessary to do so with Covid-19, it seems that this is one that presents itself and needs a positive response. It will benefit the NHS, patients and expert health groups. I beg to move.

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, I support my noble friend’s amendment and the potential for increasing prescribing responsibilities. The noble Baroness, Lady Cumberlege, was a huge champion of prescribing rights for nurses. I was able to extend that to community pharmacists and I want to see us now build on that by extending it to other professions in healthcare. Dietitians, occupational health therapists, orthoptists, radiographers and speech and language therapists all have a hugely important role to play and giving them prescribing responsibilities would help to deliver safer, better and timelier patient care.

We have seen already how dietitians have hugely expanded their role in the treatment of diabetes, gastroenterology, bariatrics, metabolic conditions and oncology. Orthoptics has seen its roles expand in stroke management and neuro-rehabilitation and neuro-ophthalmology, in particular among children with SEN and for paediatric ophthalmology. Diagnostic radiographers are increasingly performing routine interventional procedures under imaging control, while speech and language therapist roles have developed in respiratory care, ear, nose and throat services, critical care and end-of-life care. Occupational therapists have increased their advanced practitioner roles and are demonstrating a hugely beneficial impact across all areas of the NHS.

There is a problem. It has been reported that the current ability of these professions to administer medicines to support patients through patient group directions and/or patient-specific directions is apparently becoming increasingly difficult. They are either taking longer to secure or they are being more restrictive, to the detriment of patient care and safety. I ask the Minister why this is. I refer to his interesting comment on Second Reading, when he said:

“NHS England and NHS Improvement are considering across all non-medical groups, influenced by learning from the Covid-19 pandemic, where there is a need to consider undertaking formal consultation on potential amendments to prescribing responsibilities for several professional groups.”—[Official Report, 2/9/20; col. 432.]


This is very welcome—and, of course, implied in that statement is a recognition that during the past six months we have had to rely on professional and other staff adding to their responsibilities and going beyond the extra mile. By extending prescribing rights, we would be recognising that fact and recognising that many of our professionals can do more, if they are given the ability to do it.

Provided that this happens within safe bounds—and so far, prescribing for non-medics seems to have worked very successfully—we have a total win-win situation, in which patients will benefit and the professional development and satisfaction of many of our staff groups will increase. I believe that my noble friend’s intention is to give the Minister all support for charging on with the extension of prescribing rights, and I hope that she will embrace that support and get a move on.

Medicines and Medical Devices Bill

Debate between Lord Hunt of Kings Heath and Baroness Thornton

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 4th November 2020 Grand Committee

[Baroness Thornton (Lab)]

This clause deals with falsified medicines and is a very important clause, and it is important therefore that we get this right. Amendment 30 would tighten the provisions to avoid unintended consequences of data being used for purposes other than to ensure that medicines are safe, and Amendment 33 would place a duty on the Secretary of State to act with a view to, rather than having regard to, the importance of ensuring that information is retained securely when exercising powers. The amendments in the name of the noble Lord, Lord Clement-Jones, whom I thank for supporting mine, are similarly concerned with the safety of information and accountability.

The MHRA said that the Falsified Medicines Directive will cease to apply in the case of a no-deal Brexit, because UK pharmacies will no longer have access to the database that holds false medicines data under the FMD. The noble Lord, Lord Clement-Jones, during Second Reading described the measures as “legislative creep” with regard to how any data could be used. He said that the clause

“considerably broadens the original data-collection provisions of the Falsified Medicines Directive”.—[Official Report, 2/9/20; col. 391.]

That is the whole point of these amendments. Indeed, the noble Baroness, Lady Masham, also said at Second Reading that the Company Chemists’ Association had raised concerns around the clause. Malcolm Harrison, the chief executive of the CCA, said he had grave concerns about the wording of Clause 3(1)(b), which relates to the development of a UK system to prevent the supply of falsified medicines. Jerome Bertin, general manager of SecurMed UK, said

“it is hard to determine if this would broaden the rights of access to such data, but the use of ‘for any purpose’ might suggest wider access rights, though for which stakeholders or regulators is unclear”.

Clearly, there needs not to be any ambiguity in this Bill. The wording of the clause therefore needs to be adjusted to ensure that there is no confusion and that there is a clear direction that data should not be used for any other purpose than ensuring that medicines are safe. Jerome Bertin also said that the Bill

“does not go anywhere near the detail of the EU directives (2001/83/EC superseded by 2011/62/EU) so it is hard to assess whether the FMD style protections would be diluted in a UK-only falsified medicines regulation”.

That is a legitimate question that needs to be answered.

There is no mention of this clause or this issue in the Explanatory Notes or the impact assessment for the Bill. With such a big issue regarding extremely sensitive data, there should be a more clearly outlined direction and a better thought-out way of introducing this clause for falsified medicines that also protects the extremely sensitive data that comes with it.

These amendments aim to ensure that data is protected and will not be used for any other purpose other than to ensure that medicines are safe. It is crucial that we get this right to avoid any unintended consequences, which could have grave repercussions. I beg to move.

[Lord Hunt of Kings Heath (Lab) [V]]

I very much support my noble friend in these amendments. As they have with her, a number of organisations have raised with me their concerns. The clause refers to the

“use, retention and disclosure, for any purpose to do with human medicines”,

which is very open-ended. In relation to information collected by such a system, it considerably broadens the original data-collection provisions of the Falsified Medicines Directive. Yet the Explanatory Notes make no mention of this. The noble Lord, Lord Clement-Jones, is not with us today but, when we debated it earlier, he referred to it as “legislative creep”—and, I must say, I agree with him.

In the Commons, the Health Minister Jo Churchill said in Committee:

“The Bill, in the main, does not deliver any immediate change to the regulation of medicines and medical devices.”—[Official Report, Commons, Medicines and Medical Devices Bill Committee, 8/6/20; col. 7.]


So it is very surprising to see this clause as currently drafted.

We have had briefings from the Company Chemists’ Association and ABPI, in addition to the ones that my noble friend mentioned. Because of the issue of commercially sensitive data, Article 54a, regarding the protection of personal information or information of a commercially confidential nature generated by the use of the safety features, was inserted into the preamble of the Falsified Medicines Directive. The principle of “whoever generates the data owns the data” was enshrined in Article 38 of the associated delegated regulation of 2016, which followed the Falsified Medicines Directive.

The Minister’s department already has access to a wide range of data on medicines’ sales and use in the UK under the Health Services Products (Provision and Disclosure of Information) Regulations, which we debated at some length a little while ago in your Lordships’ House. Of course, Ministers can request more detailed information if required. Given this access and the known sensitivities around falsified medicines data in general, it is unclear why the department wants to extend the purposes for which data is collected under a future UK system and why this has not been discussed with stakeholders in the existing Falsified Medicines Directive scheme. Why was such little reference made to it in the Explanatory Notes?

It is not unreasonable to ensure that the Bill is amended to enshrine at least a duty of full consultation with stakeholders before it goes through your Lordships’ House.

Mental Capacity (Amendment) Bill [HL]

Debate between Lord Hunt of Kings Heath and Baroness Thornton

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I want to follow up the remarks of the noble Baroness, Lady Finlay, by referring to the recent CQC annual report, which had a section on the implementation and practice in relation to DoLS. The report laid out a number of key concerns about care home and hospital providers that are actually using DoLS at the moment in relation to the Act itself. There is a huge variation in practice and this variation is commonly linked with a basic lack of understanding of the law, which is complex and difficult to understand. The report says that the result is that there are unnecessarily restrictive practices that can result in the loss of freedom and, in some cases, the loss of people’s human rights. The problems are reinforced by limited staffing levels, a lack of time to complete applications and inadequate staff training.

I am aware, of course, that the intention of this Bill is to streamline some of those procedures, although I think that, because the safeguards have been drastically reduced, we might be landing ourselves in future problems once the courts begin to hear some of the cases that will arise. The point is that it is quite clear that, at the moment, effective training is not taking place among many of the organisations involved in the operation of DoLS. The risk is that the same will happen in relation to the new legislation. We need some guarantees that there are going to be resources and a concerted training programme to ensure that we mitigate that impact.

[Baroness Thornton]

I will add to the questions that have already been asked of the Minister: who is going to pay for this? Training is very expensive and I was waiting for the noble Baroness, Lady Jolly, to ask that question but she did not, so I am asking it. As I recall from the impact assessment, I am not sure that there is a large sum of money in there for the amount of training that might be necessary to ensure that this Bill is properly enacted.

Mental Capacity (Amendment) Bill [HL]

Debate between Lord Hunt of Kings Heath and Baroness Thornton

Monday 15th October 2018 Lords Chamber

[Baroness Thornton]

My Lords, I will speak to two amendments in my name in this group, although I may also come back on what has been said.

Amendment 23 concerns supported decision-making and is based on Clause 12 of the Law Commission’s draft Bill. The amendment would require a clear determination,

“made on an assessment that steps to establish supported decision making are not practicable”.

It states:

“Steps to establish supported decision making are practical if, in relation to decisions about their personal welfare or property and affairs (or both), a cared-for person— … is aged 16 or over, and … has capacity to appoint a person to assist them in making those decisions”.


Amendment 24 concerns the restriction of defence and is based on Clause 9 of the Law Commission’s draft Bill. It states:

“The assessment must include … a description of the steps which have been taken to establish whether the cared-for person lacks capacity”.


NICE recently released guidelines on what it thinks the Bill should say regarding supporting a cared-for person:

“Support people to communicate so that they can take part in decision-making. Use strategies to support the person's understanding and ability to express themselves in accordance with paragraphs 3.10 and 3.11 of the Mental Capacity Act”.


NICE also recommended:

“Practitioners should make a written record of the decision-making process, which is proportionate to the decision being made. Share the record with the person and, with their consent, other appropriate people. Include: … what the person is being asked to decide; … how the person wishes to be supported to make the decision … steps taken to help the person make the decision … other people involved in supporting the decision … information given to the person … whether on the balance of probabilities a person lacks capacity to make a decision … key considerations for the person in making the decision … the person’s expressed preference and the decision reached … needs identified as a result of the decision … any further actions arising from the decision … any actions not applied and the reasons why not”.


These basic and important matters were included in the Law Commission’s draft Bill but not adequately included in this Bill. I am pleased to be part of this group and able to raise these issues. I will let my noble friend Lord Hunt talk about Amendment 50ZA.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to my noble friend for that invitation. Amendment 50ZA refers to circumstances in which the pre-authorisation review is not undertaken by an approved mental capacity professional. Paragraph 18(2) of Schedule 1 sets out the circumstances where that applies, stating that the AMCP will be brought into play where,

“the arrangements provide for the cared-for person to reside in a particular place, and it is reasonable to believe that the cared-for person does not wish to reside in that place, or … the arrangements provide for the cared-for person to receive care or treatment at a particular place, and it is reasonable to believe that the cared-for person does not wish to receive care or treatment at that place”.

Paragraph 20 of Schedule 1 sets out what the person carrying out the review needs to do,

“if the review is not by an Approved Mental Capacity Professional”,

but it does not say who should do it. I want to raise this issue with the Minister. Clearly, there is concern that it may not come to the attention of the responsible body that the cared-for person does not wish to be treated in a particular place or receive a particular form of care or treatment. We could go back to the architecture of the Bill. We think that it puts too much authority in the hands of the care home manager who, in many cases, has to unlock the door to allow these concerns to be raised. Given that some people should be assessed with their review undertaken by an AMCP, but this will not happen, it is important to know the circumstances under which the review would then take place.

Essentially, my amendment is a probing one. The pre-authorisation review referred to in paragraph 20 of Schedule 1 does not have to be done by an AMCP, but Amendment 50ZA says that the person who undertakes it should at the very least,

“be qualified as a medical practitioner, nurse, social worker, speech therapist, occupational therapist or other profession as may be specified in regulations”.

That covers the point made earlier by the noble Baroness, Lady Finlay, that those professions are regulated. It is important for us to be clear. Some people may fall through the net and not be seen to qualify under paragraph 18(2) of Schedule 1. Therefore, the people doing the reviews who are not AMCPs must have enough professional standing to identify problems that might arise. I hope that the Minister, who is in a concessionary mood today, will agree to look at that.

Mental Capacity (Amendment) Bill [HL]

Debate between Lord Hunt of Kings Heath and Baroness Thornton

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to the amendment tabled by the noble Baroness, Lady Hollins. As she eloquently said, the puzzle relates to paragraph 17 of new Schedule AA1 on consultation, which references those who must be consulted. The aim of the consultation is,

“to try to ascertain the cared-for person’s wishes or feelings in relation to the arrangements”,

but the paragraph does not specify that the cared-for person must be consulted. The Minister might just refer me to Section 4 of the Mental Capacity Act and say that it is covered there, but so are the provisions in sub-paragraphs (a) to (e) in paragraph 17(2)—they are all listed in the best interests test. Therefore, the puzzle is why the Government have decided that there should be no attempt, at least in statute, to seek the cared-for person’s wishes and feelings. We are already concerned that these measures are not focused on the interests of the cared-for person; they are about streamlining bureaucracy and saving money, and this rather lends to that suspicion. I hope that the Minister will be able to agree to the noble Baroness’s amendment, because it is a very important symbol of what this is really all about.

[Baroness Thornton (Lab)]

My Lords, this group of amendments tests the proportionate nature of the decisions being taken. Amendment 29 would put the views of the cared-for person at the centre of the assessment and ensure that adequate weight was given to their wishes and feelings. I have not been able to find in the Bill where that is expressed, and that is shocking and surprising. We have to see a clear statutory duty to consult the cared-for person, and the scope of that consultation must include their past wishes, feelings, values and beliefs. I invite the Minister to tell me whether he believes that the Bill as it stands achieves that, because I cannot see that it does. If this amendment is not agreed to, the Minister and the Bill team must think about how they can best make sure that the Bill reflects the need for consultation with the cared-for person.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)]

I thank noble Lords for tabling their amendments and for contributing to a debate that has continued the discussion that we had before dinner. It again gets to the heart of why we are here, which is to make sure that when people need to be deprived of their liberty, it is in their best interests to do so and that the restrictions are proportionate and necessary and so on.

I agree with the spirit of the amendments. It is important that we intend to, and do, safeguard the well-being, wishes and feelings of the cared-for person. Dealing with the first set of amendments, I take this opportunity to reassure noble Lords that the changes being sought are already required by law in several ways.

First, the European Court of Human Rights has made it clear that a decision on whether arrangements are necessary and proportionate must include consideration of the cared-for person’s wishes and feelings about the arrangements. It should also be noted that, as the noble Lord, Lord Hunt, pointed out, wishes and feelings are already a part of the first-stage best interests decision-making under Section 4 of the Mental Capacity Act and I can confirm, as I have done already, that the Bill does not change this. Furthermore, wishes and feelings will also be considered as part of the “necessary and proportionate” test, and the code of practice will provide further detail about how that will work in practice.

Going even further, as has been referenced by several noble Lords, we have created in this Bill a specific requirement to ascertain a person’s wishes and feelings in relation to the proposed arrangements through the duty to consult with anyone with an interest in the cared-for person’s welfare—first and foremost the person themselves, as well as their family, carers, friends, advocates, interlocutors or anybody with a substantive interest in their care. I believe that there is substantial legal protection, force and direction to make sure that the person’s wishes and feelings are considered first and foremost in any of these kinds of arrangements. As this debate has demonstrated, there are clearly lingering concerns that that is not the case, because of the existing framework, notwithstanding the enhancements through the duty to consult that we are introducing. However, I am eager to make sure that it is well understood, and to work with noble Lords so we can make clear that those responsibilities already exist, both in statute and—

Public Bodies Bill [HL]

Debate between Lord Hunt of Kings Heath and Baroness Thornton

Tuesday 11th January 2011 Lords Chamber

[Baroness Thornton]

I realise that putting down an amendment to add something to this hotchpotch Bill may seem perverse in the extreme but assure the Committee that there is method in my madness. This is a probing amendment, designed to achieve what we seem to have signally failed to achieve so far with this Bill: that is, to gain some understanding of the rationale, the explanation or the philosophy that lies behind (the arm’s-length institutions that are included in the Bill and those that are not). I use the Food Standards Agency as an example of a body that is not in the Bill but about which reform is being proposed.

The Food Standards Agency, is, as it says on its website,

“an independent Government department set up by an Act of Parliament in 2000 to protect the public's health and consumer interests in relation to food”.

What has already been announced is that some of its functions will be taken away and given to Defra, and nutrition and dietary health will be moved back to the Department of Health. That is a very retrograde step in the view of many people concerned with diet and health. I think we can safely say that the Food Standards Agency was specifically formed after the BSE food scandals to try to re-establish public confidence in food advice by creating an arm’s-length body and an independent organisation. If the Government wish to change that fundamentally, they have to have some justification for addressing those issues specifically. Even if they wish to make the FSA a leaner and more cost-effective body, as they have done and to which the FSA has responded very well, cost-cutting is not the point here. It would seem that the FSA can be changed and its powers taken away without recourse to Parliament, without consultation and without this Bill.

Why is the FSA not included in this Bill? I was tempted to table an amendment for all the non-departmental government bodies that are not included in this Bill just to try to make sense of the Bill, and I have not ruled out that idea. For example, we will address later the other health bodies that are included in this Bill: the HFEA and the HTA. They were created with a similar motivation to that behind the Food Standards Agency—the need to have an arm’s-length body independent of government that could be trusted by the public to give good advice.

So far, the passage of this Bill has resembled a familiar song that we may all know, “The Hokey Cokey”. You put Channel 4 or Ofcom in the Bill, then you take them out of the Bill—or you think about it—and maybe shake them all about a bit. In the case of the recent government amendments on the Criminal Procedure Rule Committee, and a host of the other judicial-sounding bodies, they are out, but why? Perhaps we should rename this Bill the Hokey Cokey Bill.

Since tabling this amendment, the Public Administration Select Committee in another place has very obligingly published, Smaller Government: Shrinking the Quango State. I had intended to use the Treasury’s admirable publication, Reforming Arm's Length Bodies, and the Institute for Government’s document, Read Before Burning, as a theme for this discussion, because both contain a sensible description of the different kinds of arm’s-length bodies, what they do and how they might be reviewed and reformed. However, I think that they have been overtaken by the admirable report from the committee under Mr Bernard Jenkin MP about the dog’s breakfast that is not just this Bill but the whole process of reforming arm’s-length bodies.

To go back to basics, the coalition agreement merely said:

“We will reduce the number and cost of quangos”.

I have to say that my own Government’s policy was along the same lines. The Reforming Arm's Length Bodies document outlined how to do this in an orderly fashion over a period of time and save money in the course of doing that. So the Government started a cost-reduction exercise. Shortly after the election, they undertook to review public bodies sponsored by departments, including executive agencies. The stated aim of the review was primarily to increase the accountability of government. To achieve this, the review attempted to indentify functions that could be transferred from public bodies to central departments. The Government argued that Ministers could then be directly responsible for those activities and could be held to account by Parliament for the discharge of those activities. Indeed, Francis Maude, the Minister in the Cabinet Office—I particularly like this bit—said:

“I have led an intensive review into public bodies, subjecting each to four tests. The first test was existential and asked, does the body need to exist and do its functions need to be carried out at all?”.—[Official Report, Commons, 14/10/10; col. 505.]

I think that existential is a really good word to use in the process of these discussions. Those tests were whether,

“a precise technical operation needs to be performed to fulfil a ministerial mandate”.

The second area was,

“where it may be right to delegate power to an independent body … when there is a need for politically impartial decisions”.

The third area was,

“where there is likely to be a need for independent action … when facts need to be transparently determined”.

The fourth area, of course, was the existential test.

Added to that, we have another test, which appeared slightly late in the day: transparency. According to the report:

“The Ministry of Justice has retained bodies on the grounds of ‘transparency’”,

so we know now that we have at least four or five tests that the Government have said need to be applied to arm’s-length bodies.

The report goes on to say:

“It is also unclear whether all three of the tests the Government set were necessary in determining whether a function should remain at arm's length from Government”.

The report adds that the Institute for Government,

“during its research for its report, Read Before Burning, conducted its own evaluation of public bodies and the level of independence they need to discharge their functions properly. Their evidence states that: The key issue for deciding to put a function at arm's length is the degree of independence from day-to-day ministerial intervention needed to enable the body to command public confidence that it can perform its function in the public interest”.

That test applies completely to the FSA, and indeed to several bodies that are included in this Bill. We therefore have the importance of the independence test.

The additional test that is brought to bear is that of value for money. As well as the four or five tests that I have already outlined, the Select Committee says that the Government,

“are silent on a range of other issues, such as the implication of changes on the wider public policy framework, value for money, or current performance of organisations”.

The report concludes:

“The Government did not consult properly on these proposals. When undertaking such a fundamental review of the machinery of government it is desirable and sensible to do so”.

Our own Merits Committee did, as I recall, agree with that.

The report goes on to say that the Government do not apply the tests consistently and have declined, in some cases,

“to provide an explanation for why it intends to retain a body”.

It seems to me that asking for an explanation of why the Food Standards Agency is not included in this Bill is exactly the point of this Select Committee report. The Government have been inconsistent about what is in the Bill, what is out of the Bill, and what tests should be applied to the bodies that they intend to keep and to reform. The conclusion of this very critical report says:

“We are not convinced that the Government has applied its tests consistently. Neither can we find any evidence to suggest that it took any steps to ensure a uniform approach was taken. We recommend that the Cabinet Office publish details on how the tests have been applied to all public bodies that are still under review, so we can ensure that in future these tests are applied consistently.

The lack of consultation and inconsistent application of the tests, which are themselves confusing”—

I would agree with that—

“have led us to conclude that there was no coherent and consistent process for reviewing public bodies”.

I return to the Food Standards Agency, which I would not wish to include in this Bill. Whether or not I proceed to add a whole host of other bodies into the Bill in a desperate attempt to understand the rationale is dependent on the Minister’s explanation. I would really appreciate him addressing the very important issues that are raised in this report—and this is the first opportunity we have had to say this. I would like an explanation of the broader implications that this report has for the Bill. Obviously, it involves not just the Food Standards Agency but many, many bodies.

Finally, we on these Benches are not opposed to modernising arm’s-length bodies. Indeed, in March last year we published a document about the reform of arm’s-length bodies that said that we intended to reduce their number by 123 and to save money by doing so. However, we intended to do it in an orderly fashion with consistent and consistently applied criteria. This Government have not done that, and we need an explanation of what they intend to do next. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to my noble friend Lady Thornton for raising three very substantive matters with this amendment: first, what is to happen to the FSA; secondly, the process by which the Government have undertaken this review; and, thirdly—coming back to the debate on the first group of amendments—the architecture of the Bill.

I was the Department of Health Minister who, with the noble Baroness, Lady Hayman, as the Defra Minister, took through the legislation that created the Food Standards Agency. The noble Lord, Lord Newton, and I are singing off the same hymn sheet here. I remind the noble Lord that the reason for this was that there was a great deal of public distrust, it would be fair to say, arising out of the BSE issue along with some concern about the advice that the relevant government departments had been giving to the public. Therefore, the decision was taken to create an independent agency sponsored not by Defra but by the Department of Health.

Overall, that agency has worked very well indeed. I pay particular tribute to the noble Lord, Lord Krebs, and to Mr Geoffrey Podger, the first chair and chief executive of the FSA—and, indeed, to their successors—for doing what I think has been an outstanding job. It has certainly advanced the credibility of the advice that that body gives to the public and, importantly, has also enhanced the credibility of the British food industry. I therefore have some reservations about the changes that are now being proposed to the FSA. I understand that there will be a transfer of some of its responsibilities to the Department of Health. I must declare my interests in relation to the health service and to public health as they are recorded in the Register. The FSA has a tremendous reputation and, in the Government’s place, I would hesitate before making substantive changes.

However, the second point raised by my noble friend relates to the rationale for the Government’s approach both to those bodies that are contained in the Bill and those that are not. It is still not clear to many noble Lords what the rationale is. This is a good opportunity for the Minister, who, as noble Lords have already remarked, has been very helpful to the House, to explain some more about the rationale for the bodies contained in the Bill and those that are not, even where those that are not are actually to have substantive changes made to them.

The noble Lord, Lord Taylor, will be a little tired of having Select Committee reports quoted back to him because it would be fair to say that all of the Select Committees that have so far looked at the Bill and at the review undertaken by the Government have been not exactly complimentary. The noble Lord, Lord Taylor, has to answer the central charge of the Public Administration Select Committee, chaired by Mr Bernard Jenkin, which said:

“This review was poorly managed … no meaningful consultation, the tests the review used were not clearly defined and the Cabinet Office failed to establish a proper procedure for departments to follow”.

Apart from rejecting the Select Committee’s report out of hand, the Government have been rather silent in responding so far. We are entitled to some comment on the review process itself.

My noble friend Lady Thornton referred to the Bill as being the “Hokey Cokey Bill”. I think it is more Gilbertian myself. The noble Lord, Lord Taylor has a little list. In fact it is a very big list that is gradually becoming smaller. I note that the Jonathan Miller production of “The Mikado” is back at the Coliseum yet again. The noble Lord might take care and reflect by going to see it.

It brings us back to the architecture of the Bill. In an earlier debate the noble Lord, Lord Lester, raised the question of Amendment 175, which is consequential on the paving Amendment 1 that the House passed. That is a very important amendment because it sets very clearly the restrictions on ministerial powers to be used in the Act. If, as a result of the discussions that I know that his officials are having with noble Lord, Lord Lester, tomorrow and other discussions, the Government were able to accept the principle of Amendment 175, while making it clear that they do not intend to reverse this in the other place, then we would make more progress.

There are other substantive issues in relation to the architecture. I have already mentioned the use of the supra-affirmative procedure and the deletion of Schedule 7. Some reassurance that public consultation will take place when it is proposed to deal with any of the bodies in this order would go some considerable way to reassuring noble Lords. In the absence of the House understanding what changes the Government are prepared to make to the architecture, we go inevitably through these bodies one by one and, in a sense, in a vacuum—a point made earlier by the noble and learned Lord, Lord Mackay of Clashfern. We are due a Committee day next week when, no doubt, we will hear when further Committee days are to take place. I hope that in a fairly short time the Government will be able to make a little clearer their sense of where they are on the Bill and whether they are prepared to make the kind of changes to its construct that would reassure noble Lords considerably.