Health and Care Bill

Earl Howe Excerpts

Lords Hansard _ Part 1 & Report stage
Wednesday 16th March 2022 Lords Chamber

[Earl Howe (Con)]

My Lords, I am grateful to all noble Lords who have spoken in this debate and in the informative debate we had in Committee, on which I have reflected carefully. Let me first remind the House of what we are doing in this area.

We are committed to making England smoke free by 2030 and will set out our approach in a new tobacco control plan to be published later this year. As part of that work, we are exploring a number of regulatory proposals and have launched an independent review into smoking. The review, led by Javed Khan OBE, will make a set of focused policy and regulatory recommendations to government on the most impactful interventions to reduce the uptake of smoking and support people to stop smoking for good. It is in that context that I turn to the detail of these amendments.

As mentioned in previous debates, while I speak for the Government as a whole, tobacco taxation matters are ones for Her Majesty’s Treasury. As noble Lords will know, the tobacco industry is already required to make a significant contribution to public finances through tobacco duty, VAT and corporation tax. Through these finances we are able to fund local authority stop-smoking services through the public health grant and provide extra resources as part of the NHS long-term plan commitment to help smokers quit. As part of the annual Budget process, Her Majesty’s Treasury will continue the policy of using tax to raise revenues and encourage cessation through continuing with above-RPI duty increases on tobacco products. It is a proven and effective revenue-raising system.

I am as keen as anyone to find new ways in which to bear down on the prevalence of smoking and I am proud to have been instrumental in bringing some about. However, I am afraid that I cannot accept the amendment as it stands. The proposal may look simple on the surface but it is complex to implement. It may also take several years to materialise. Our strong preference is to continue with high tobacco taxation and excise as the best means and the most efficient process through which to generate revenue that can be put back into public services. However, I can tell the noble Lord, Lord Crisp—I hope that this will at least be of some reassurance to him—that the department’s officials will continue to work with Her Majesty’s Treasury to explore whether there are other innovative financing models that can be applied to the tobacco industry to support Smokefree 2030 and be as effective and efficient as the current taxation system. It may be—I do not know—that Javed Khan will come forward with recommendations in this area. We should allow him the necessary time to conduct his independent review.

I realise my reply will be disappointing to the noble Lords, Lord Crisp and Lord Faulkner, and my noble friend Lord Young, who are understandably passionate about this issue. I hope they will realise that we are very much on the same page regarding the overriding objective to reduce and eliminate the practice of smoking in this country. I hope I have provided some reassurance that the Government have listened and thought carefully about this proposal, even if we have not felt it right to proceed with it, in the end. As the noble Lord, Lord Crisp, would expect, we will set out our financial plans to support smoke-free 2030 in our new tobacco control plan. For those reasons, I ask him to withdraw his amendment.

[Lord Crisp (CB)]

My Lords, first, I thank those noble Lords who added their names to this amendment and spoke so eloquently in this debate, which covered a range of important issues that between them present a compelling argument for what is only a consultation. Secondly, I thank the other noble Lords who spoke during the debate, including those who spoke against the amendment, because having a proper debate allows us to pull out some important issues. I will return to that in a moment. Thirdly, I thank the Minister for the time that he and his colleagues gave to meet with us, and for our helpful discussions. I very much accept the noble Earl’s statement about us being on the same side and pushing in the same direction, but we need to get there.

That takes me to picking up some of the points that were made. I thought the contribution from the noble Lord, Lord Naseby, was very helpful. The point he made about how the numbers are coming down was terrific. It is great news—so let us accelerate it. We can get behind that and really shift it. There is a problem here, as with so much in public health, in that people talk about aggregates and averages. There is a real trap in aggregates and averages. The aggregate could come down to 5%, but 20% of people in the lowest socioeconomic group could still be smoking. That is the problem when you deal in gross numbers. I said in the debate that, according to Cancer Research UK, which is a reasonably reputable body, it would be 2047 before we saw that level of achievement among the lowest socioeconomic group in the country. Aggregates and averages are real traps in public health.

I understand the good faith of the Ministers in this House. However, and I think I speak for my colleagues on this amendment, we note that the Green Paper in 2019 promised to consider the idea of polluter or perpetrator pays—whatever is the right language for that. Almost three years on, we have not yet seen that happen. Not surprisingly, we are rightly suspicious of how these things can be kicked into the long grass and continue for a long time. If we are to achieve the 2030 outcomes for all the people for whom we want to achieve them, we need to accelerate. I believe the proposals put forward here are practical and implementable, as the noble Lord, Lord Young, spelled out.

In our discussions with Ministers, we offered a number of concessions, including the idea that it did not have to be precisely this scheme that was implemented, as they could consult on others. I am sorry the Government have been unable to accept that. On the basis of everything that has been said today, I would like to test the opinion of the House.

--- Later in debate ---

[Lord Hunt of Kings Heath (Lab)]

My Lords, this was debated two weeks ago, but I know that the noble Earl, Lord Howe, wishes to say a few brief words to your Lordships’ House. With the permission of the House, I will say very briefly, without seeking to open the debate, what the amendment does. It is to amend the Human Tissue Act to prohibit UK citizens from travelling to countries such as China, although the wording in the amendment is not country-specific, for the purpose of organ transplantation. The restrictions are based on ensuring that there is appropriate consent, no coercion and no financial gain.

Forced organ harvesting in China is the crime of forcibly extracting organs from prisoners of conscience, killing the victim in the process. The harvested organs are sold to Chinese officials, Chinese nationals or foreigners for transplantation. This is a very modest amendment, doing our bit to try to prevent this obnoxious habit. I beg to move.

[Earl Howe (Con)]

My Lords, I am very grateful to the noble Lord, Lord Hunt, for allowing me to say in a few sentences why the Government advise noble Lords not to support the amendment.

Reason number one is the effect on patients. In my submission, very sick patients who may be taken overseas for a transplant but are not fully made aware of how their organ was sourced should not have to face prosecution when they return to the UK. The existing legislation rightly targets those who buy and sell organs, not recipients who may have been quite unaware of any commercial dealing taking place. If we target the organ recipient, we will find that those who legitimately receive organs overseas—incidentally, individuals who are more likely to come from ethnic-minority backgrounds—will be deterred from seeking follow-up treatment for fear of being treated like a criminal suspect.

Reason number two is that the mischief the amendment seeks to address is dwarfed by the considerable burdens it would impose on the NHS. All the information indicates that we are dealing, at worst, with tiny numbers of illegal transplants performed overseas. The amendment would require officials, whose focus should be on promoting legitimate donation, to research and write a report every year on the status of every other deemed consent system in the world and on the public understanding of each scheme. That is not a drafting criticism but a necessary consequence of what the noble Lord seeks to achieve. In my view, it is an unreasonable ask and a hugely disproportionate use of resources.

To address the issue at first base, we will take forward the excellent suggestion from the noble Baroness, Lady Finlay, to work with NHS Blood and Transplant. My noble friend Lord Kamall has already instructed officials to engage with it on how we can help clinicians make their patients aware of the health risks, the risk that they may be exploiting others and the risk of breaking the law if they travel abroad in search of an illegitimate transplant. I truly think that is a better way forward, and I invite the noble Lord to change his mind about pressing his amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I will not detain the House. It is time for the House to make a decision. I am very grateful to the Minister for picking up the point made by the noble Baroness, Lady Finlay, in relation to NHS Blood and Transplant. In the end, it may be a small gesture but it is an important gesture—a mark against this obnoxious habit. I would like to test the opinion of the House.

--- Later in debate ---

[Lord Winston (Lab)]

My Lords, as a doctor and a wine drinker, I have serious concerns about this amendment, particularly, for example, when it comes to the use of fine wine—I think there is broad understanding in the House of what that is—where, in every case, those bottles are labelled with the amount of alcohol. One has to accept that labelling bottles in this way does not change behaviour. We have had committees looking at behaviour change, and the only time we managed to induce behaviour change was with smoking—certainly never with labelling. That is the only time it happened and there were all sorts of reasons for that.

Much of the evidence for alcohol being harmful in minor doses is still dubious and, more importantly, there is real concern that a lot of the so-called evidence is not being put to the real test of whether it makes a difference to behaviour. I must say to the House that I think the noble Lord—I am afraid I do not know his name; my eyes are bad enough not to have been able to see his name on the screen—is right that this is unworkable. It would probably do all sorts of untold damage to what is, for me and no doubt many others, a very fine drink. We need to look seriously at whether we can simply label all bottles.

I just remind the House that there is one amendment that I could have put down. In in vitro fertilisation, embryos are cultured in culture media, which are in fact commercially made and a commercial secret—nobody knows exactly what the composition of those media is. My laboratory is looking at this at the moment. It is really interesting, because some of the products in those culture media may indeed be quite dangerous in terms of epigenetic effects. To me, that seems far more important to regulate than what we are trying to do here with bottles of wine, which is probably not really workable.

[Earl Howe (Con)]

My Lords, this is an important topic, so let me start with an immediate reassurance to the House, which I hope will enable to the noble Baroness to consider withdrawing the amendment. The amendment calls on the Government to publish a report on alcohol labelling. The Government already plan to report on alcohol labelling, as it is a key part of our overall work on reducing alcohol harm. In no sense do we propose to ignore it and I undertake today that we will report on it. Part of what is taking the time is formulating what the proposals should look like, but I will come on to that.

As part of the Government’s tackling obesity strategy, published in July 2020, we are committed to consulting on whether mandatory calorie labelling should be introduced on all pre-packed alcohol as well as alcoholic drinks sold in the out-of-home sector. In addition, as part of our public consultation, respondents to the consultation will be able to provide suggestions and evidence for additional labelling requirements that they would like the Government to consider, including warning labels and nutritional information. In that sense, the consultation will be even more of a two-way process than perhaps noble Lords might have been expecting. Naturally enough, we make no assumptions in advance about any such proposals; they will have to be looked at on their merits. The consultation will be launched in due course and I can assure noble Lords that the Government will feed back the results to this House. Although, for reasons beyond my control, I have not been able to provide definitive news on the timing of the consultation—much as I would like to—I hope nevertheless that the firm commitment that I have given on the Government’s intention to carry out the consultation and on its scope will have provided the noble Baroness with sufficient reassurance to enable her to question whether she wishes to press her amendment.

--- Later in debate ---

[Baroness Wheeler (Lab)]

My Lords, my noble friend has returned with his amendment on the need for an expert-led review on the 40 year-old Vaccine Damage Payments Act, and I am pleased that the meeting he sought with the Ministers has taken place. The amendment is a timely reminder for all of us that while the vaccination programme against Covid has been hugely successful, for a small group of people suffering very serious adverse effects and deteriorating health as a result of having the vaccination, the experience has been devastating, as the noble Baroness, Lady Brinton, underlined. The current legislation dealing with compensation arrangements is not fit for purpose: in the words of my noble friend, it offers too little, too late and to too few people. I hope the Minister acknowledges the need to meet and engage with the families of those affected, and that he looks urgently at the ways in which claims under the current system can be speeded up, and he also accepts the need for the review of the scheme and the next steps that have to be taken on this.

My noble friend has also added his name to Amendment 180 from the noble Baroness, Lady Cumberlege, on her unrelenting campaign for separate compensation schemes to meet the cost of care and support for the victims highlighted in her First Do No Harm report. Once again, we have heard convincing and forceful contributions from the noble Baronesses, Lady Cumberlege and Lady Brinton, which we on these Benches strongly support, calling for an independent redress agency for the three patient groups covered by the First Do No Harm report. The Government’s positive response to another key aspect of the First Do No Harm report, to improve patient safety for the future, including establishing the patient safety commissioner, is a welcome and necessary development. But the redress agency needs to be there to provide care and support for the thousands of women who suffered, and whose needs will not be met by the healthcare system, social care support or social security benefits support.

I hope the Minister has considered the matter carefully since Committee, and will report positively to the House on the ongoing discussions and progress which will ensure the strongest recompense possible for the people we are concerned about.

[Earl Howe (Con)]

My Lords, I will turn first, if I may, to the amendment in the name of the noble Lord, Lord Hunt of Kings Heath, on the Vaccine Damage Payment Scheme, and start by thanking him for his campaigning on this issue, and for the informative debates we have had today and in Committee.

As we discussed in Committee, since the NHS Business Services Authority took over responsibility for the Vaccine Damage Payment Scheme from the Department for Work and Pensions in November 2021, we have started to find ways to improve the operation of the scheme. The most important thing the NHS Business Services Authority is looking do to is to improve the claimant journey on the scheme, and that means making engagements with claimants more personalised, as well as giving claimants access to more general support. The crucial part of this drive is to reduce response times, which the authority knows has been a cause of dissatisfaction, particularly during Covid; in other words, the whole process is being modernised.

The NHS Business Services Authority has done its best to hit the ground running. Since taking over in November, it has already contacted all applicants to update them on their cases and it has also allocated additional resource to the operation of the scheme. I can assure the noble Lord that the department will further engage with the NHS Business Services Authority to ensure that these service improvements, greater digitisation in particular, really do make headway. There is already regular dialogue on this.

With all this enhanced activity happening, I do not think this is right time to establish an independent review into the VDPS. As the noble Lord will know, reviews take significant time and they carry substantial costs to the organisation, not just financial but in terms of leadership focus and energy. Instead, we think it is a better use of resources to focus on making the changes that we know need to happen; that is, to improve the claimant’s journey, and to modernise the process for claimants, as well as scaling up the capacity of the VDPS. We will keep the progress on these under regular scrutiny, and I am sure we will report regularly to this House as we do so.

I will address the noble Lord’s three key questions. First, I should be happy to facilitate a meeting with representatives of the families, and my honourable friend Maria Caulfield, who is the Minister with direct responsibility for the scheme, will be pleased to see them. Secondly, as I have already indicated, reducing response times is one of the NHS Business Services Authority’s key objectives. Thirdly, the noble Lord asked whether the Government would undertake a review of the scheme. I simply remind the noble Lord that the scheme has been revised many times since its inception, which shows that it is reviewed regularly as a matter of course, but perhaps it is worth my making the point that the VDPS is not a compensation scheme; nor is it designed to cover all expenses associated with severe disablement, which are catered for from the public purse in other ways. I hope that is helpful to the noble Lord, and that on the basis of those assurances he will feel able to withdraw his amendment.

Before I address the detail of Amendment 180, I would like to again put on record my thanks to my noble friend Lady Cumberlege for her continued commitment to the issues she has so powerfully spoken about, and the diligence and dedication of the IMMDS team, and the brave testimonies of those who contributed to the IMMDS review. As my noble friend knows, the Government have accepted the majority of the report’s nine strategic recommendations and 50 actions for improvement, and are taking forward work to improve patient safety. This includes establishing specialist mesh removal centres, the ninth of which opens in Bristol this month, and work to improve the care pathways for children and families affected by medicines during pregnancy.

We remain committed to delivering improvements in patient safety across the board. We are focusing government funds on initiatives that directly improve future safety. For this reason, the Government have already published their decision that redress schemes will not be established for people affected by hormone pregnancy tests, sodium valproate or pelvic mesh. I realise that was a disappointing decision for my noble friend, and I am always very sorry to disappoint her, but, for the reasons I have given, I ask her not to move Amendment 180 when it is reached.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the noble Earl, Lord Howe, the noble Baroness, Lady Brinton, and my noble friend Lady Wheeler for their support. I empathise with the comments of the noble Baroness, Lady Cumberlege, and her report, which was far-reaching. Having met some of the women who were affected, I know how keenly the noble Baroness, Lady Cumberlege, feels about these issues. It is disappointing that the Government have rejected this particular request, although they have accepted many of her recommendations. It leaves the groups of women whom we have met to continue with their long, hard campaign, but they will continue, and one day a Government will agree to give them some of the support that they deserve.

On my own amendment, I pay tribute to the work of the NHS Business Services Authority. I am very glad that it took over responsibility for the scheme, and I wish it well in speeding up the process of claims. I am grateful to the noble Earl for facilitating a meeting between representatives of the families and the Minister—that is very welcome indeed. All I would say is that as the Business Services Authority continues its work, it is bound to come across issues in relation to the operation of the scheme, and I hope the Government will reflect on that and look at further improvements to the scheme. Having said that, I beg leave to withdraw my amendment.

--- Later in debate ---

[Baroness Merron (Lab)]

My Lords, I have listened very closely to the many passionate, informed and often personal contributions from noble Lords this evening. This debate has inevitably been about not only parliamentary process and legislative approach but consideration of assisted dying. I thank the noble Lord, Lord Forsyth, for opening the debate on Amendment 170, which proposes, as your Lordships’ House is more than aware, a new clause to bring forward a draft Bill on what the noble Baroness, Lady Campbell of Surbiton, described as a complex and difficult issue.

However, for me, the challenge of this debate is encapsulated in the contributions in the middle of it. The first, from the noble Baroness, Lady Davidson, was that not allowing time for discussion is not a neutral act. This was followed swiftly by my noble friend Lord Hunt taking a different tack, saying that allowing for this amendment is also not a neutral act, and it is that which your Lordships’ House has wrestled with this evening.

It is indeed a matter of profound moral, personal and legislative importance that we find ourselves dealing with in Amendment 170. The noble Lord, Lord Forsyth, will be seeking a Division and these Benches will approach this on free votes. It is a shame that this is not the case on the Government Benches. Your Lordships’ House heard from the noble Lord, Lord Baker, about the importance of principle, whereby matters such as this should be subject to nothing other than a free vote. I certainly share that view. I know that noble Lords will exercise their vote this evening with the greatest of care.

[Earl Howe (Con)]

My Lords, I must tell my noble friend Lord Forsyth that I am not with him on this amendment and nor are the Government. That has nothing to do with the issue of assisted dying, about which we each have our own views, but is about the proper process for bringing forward legislation and the roles and responsibilities of government on the one hand and parliamentarians on the other.

Governments are elected. The electorate then expect the Government to bring forward their programme of legislation, which Parliament then decides on. If alongside that process there is an issue that the Government do not choose to legislate on, but which happens to be close to the heart of an individual parliamentarian, that parliamentarian has the privilege of being able to bring forward a Private Member’s Bill for Parliament to consider. In each of those two legislative processes the roles, rights, responsibilities and privileges of the Government and of individual parliamentarians are separate. It is no more appropriate for a Government to force an MP or Peer to bring forward a particular Private Member’s Bill than it is for an MP or a Peer to force a Government to bring forward a government Bill. That includes a draft Bill. As my noble and learned friend Lord Mackay of Clashfern observed in Committee, draft Bills are brought forward by Governments only when there is an intention to legislate.

The Government have no intention of legislating on assisted dying; it is not part of our programme, nor was it part of our election manifesto. Equally, it is no part of our agenda to prevent an MP or a Peer bringing forward a Private Member’s Bill on assisted dying. The noble Baroness, Lady Meacher, has done just that because it is something that she feels strongly about. It is for her to persuade Parliament and the Government that her Bill is a good thing.

That is the proper process, and surely that is how it has to be. If it ever became possible for an MP or Peer to use a government Bill as a vehicle for obliging the Government to publish a completely separate Bill, even one on a subject which was in tune with the Government’s thinking, the due process of legislating would thereby be subverted. I ask noble Lords opposite how they would react if under a Labour Administration, an MP or Peer proposed to use a health Bill as a vehicle to oblige the Government to publish draft legislation, the purpose of which was to place all NHS hospitals into private ownership—or one might find an MP trying to use a criminal justice Bill as a vehicle to oblige the Government to publish legislation to bring back capital punishment.

My noble friend might say, “Well, in that circumstance, it would be for Parliament to decide whether or not to accept such an amendment”—but that is not the point. The point is that if one House of Parliament were to approve such an amendment and the other House were to follow suit, Parliament would thereby usurp the role of the democratically elected Government. The noble Lord, Lord Howarth of Newport, and my noble friend Lord Cormack were 100% right: it is for the Government to say what their legislative programme should be, not Parliament.

As the late Lord Simon of Glaisdale might once have said, this amendment is constitutionally offensive and it should be rejected on those grounds.

[Baroness Meacher (CB)]

Before the Minister sits down, does he believe that limiting debate on a crucial human rights issue to Fridays—when, as he knows, certainly in the House of Commons, very few MPs are around, and in the House of Lords too, many Peers are not available—is an appropriate way to consider a matter of very great importance?

[Earl Howe (Con)]

My Lords, we gave a full day’s debate to the noble Baroness’s Bill. That is surely not ungenerous.

[Lord Forsyth of Drumlean (Con)]

My Lords, it is late; we have had a very good debate. I have to say, I shall long remember being accused of leading a coup in Parliament.

My purpose was very simple. My noble friend has explained the Government’s position very clearly. I say to my noble friend Lord Baker, who was very kind in his remarks about me, that the Chief Whip made it perfectly clear to me from the beginning what the Government’s position would be. It has been set out by my noble friend Lord Howe. However, there is a problem here. It is all very well for my noble friend to stand at the Dispatch Box and say, “Well, we have the private procedure, and we have the government procedure”, but on a matter of huge importance, Parliament is completely unable to reach a view. My amendment was really an attempt to do that.

There has been some nonsense talked, I have to say, about how we are getting above ourselves and that we are instructing the House of Commons. If this amendment is passed tonight, it will go to the House of Commons and, under our procedures, it will be for the House of Commons to decide.

I have made it absolutely clear to my noble friend the Chief Whip and the Front Bench that if the Government say, “We don’t like this procedure; we think it’s a bit too novel, but we’ll give a commitment that we’ll make time available at some point in this Parliament for the purpose of discussing this really important issue”—I agree with the points made by a number of people that it is a complex and difficult issue; that is why it needs time for everyone to put their point of view and for a result to emerge, which might very well be a conclusion that we do not want to change the law—then I would withdraw my amendment. But, for some reason, the Government are refusing to do so. They seem to think that it is more important to discuss ending the lives of lobsters than addressing this hugely important issue of the end of life for people. There is time for the former, but not for this.

The Government are entitled to their programme, but having listened to the response, I would like to test the opinion of the House.