Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Consideration of Commons amendments
Tuesday 5th April 2022 Lords Chamber

My hope is that every MP, particularly in areas where this expert research is showing the changes will have the most serious impact, knows what is happening and who will be affected. That is what levelling up means, and it also means addressing these issues. As the Nuffield Trust has summed up, the Government have an opportunity to make real changes to the broken social care system. The cap is not the solution to all the problems but as one component it is important that it is designed to be as fair as possible and protect those with the least. I will move Amendment G1 and test the opinion of the House at the appropriate time.

[Lord Hunt of Kings Heath (Lab)]

My Lords, in very much welcoming my noble friend’s introduction to her amendment, I refer to Motion A, to which the Minister referred in his opening remarks and to which he has brought Amendment 11A in lieu. This relates to potential conflicts of interests within membership of committees or sub-committees appointed to exercise commissioning functions on behalf of integrated care boards. This is important because those committees will form the basis for what is widely described in the NHS as place-based decision-making.

The Minister in Committee—which must seem a long time ago to him—referred to his hope

“that the ICB will exercise functions through place-based committees, where a wider group of members can take decisions”.—[Official Report, 20/1/22; col. 1852.]

This was in relation to the series of amendments from the noble Lord, Lord Crisp, about primary care and the need for it to be round the table. I see the potential of that, but as they are given increased responsibilities, there are questions about how placed-based committees are to be held to account. It is important that they are transparent, have robust governance arrangements in place and are properly held to account. Equally important is to ensure that potential conflicts of interest are avoided —particularly that members with private sector interests who could undermine the independence of decision-making should not be appointed to such bodies.

I welcome the Minister’s amendment in lieu but there are a couple of points I want to raise with him. First, in Lords Amendment 11, to which the Commons disagreed, there is in proposed new subsection (c) a reference to members of a committee or sub-committee of the integrated care board obtaining

“information that might be perceived to favour the interest or potential interest”

of that member. However, in the noble Lord’s amendment in lieu there is no reference to access to information which could undermine the independence of the health service. Is this point regarding information implicit within his own amendment? Can he assure us that the issue must be covered when each ICB sets up its governance arrangements?

I also want to ask him about the chair of an integrated care board committee or sub-committee. His Amendment 11A follows the approach of the Bill and prohibits the chair of an ICB appointing someone who would undermine the independence of the health service. Can the Minister confirm that no chair would be appointed if they were also someone who would undermine the independence of the health service because of their involvement with the private healthcare sector?

I conclude by reiterating to the Minister that there are clearly more general conflicts of interest within integrated care boards that are going to prove challenging in the future. With NHS healthcare providers playing an increasing role in the commissioning and funding of local services through ICBs, there is a blurring of the line between those procuring a public service and those being paid to deliver it. It is very likely that conflicts of interest issues will emerge, with decisions potentially taken to benefit providers, with limited due process and transparency.

It is vital that, alongside the Bill, there are very strong governance arrangements to ensure that ICBs and their committees and sub-committees make decisions in the best interests of local populations. I hope the Minister agrees.

[Baroness Pitkeathley (Lab)]

My Lords, I rise to express support for the Motion in the name of my noble friend on the Front Bench but principally to comment on Motion E. I know that the Minister and his officials listened carefully and took note of the strength of feeling about unpaid carers expressed on all sides of your Lordships’ House in Committee and on Report. I am most grateful for that strength of feeling and the wise advice given by this House, which has resulted in what I would describe as a satisfactory outcome in the form of a new amendment.

The other place has replaced the amendment passed by a large majority in your Lordships’ House and put forward its own, which was accepted there and brought to us today. I am most grateful to the Minister and all his officials for the work that they have put into drafting this amendment, and for the understanding shown for the position of unpaid carers and the importance of involving patients and carers in discharge planning, as soon as is feasible in that process.

I seek the Minister’s further assurance on a couple of other points. The first is that parent carers are not excluded when a disabled child is discharged from hospital. This is referred to in the guidance when their own discharge is happening but not when the child they care for is being discharged. We need to ensure that services across different disciplines are married up. I know that other Lords and colleagues will be seeking assurances about this and about young carers.

My second point is that the guidance contains references to checking that a carer is willing and able to care. I hope that the Minister may be able to enlarge on this a bit. There will be occasions when the carer’s own situation makes caring impossible: they may simply be too ill to take on the responsibility, for example, however willing they may be. We need to ensure that no pressure is brought to bear in such a situation and that no assumptions are made in the discharge process about the carer’s ability. We have all seen too many examples of where this was not acknowledged, inevitably leading to the readmission of the patient.

We all seek to make hospital discharges as safe and efficient as possible, while not exerting undue pressure on the most important components: the patient and their carers. Of course, we shall need to monitor carefully how the guidance is applied, and we have to be sure too that carers are informed about their rights. I hope that the Minister’s department will promote suitable publicity as the reforms are implemented. I assure him that I, Carers UK and, I am sure, other Peers will be constantly on the case to ensure that carers and patients can trust the discharge system to support them.

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[Lord Blencathra (Con)]

My Lords, I rise to speak to my Motion D1. It is straightforward and I need not detain the House long. We all know the situation in Xinjiang province; it has been set out in graphic detail in this House by the noble Lord, Lord Alton, and others.

In recent years, the Government have procured billions of pounds’ worth of medical equipment sourced in whole or in part from Xinjiang. Despite widespread reports of forced labour in that region, our supply chain laws have failed to prevent such procurement. The Government have repeatedly condemned China over its treatment of Uighur Muslims in Xinjiang province and has imposed sanctions in response to its human rights abuses. Indeed, my right honourable friend the then Foreign Secretary said that torture “on an industrial scale” was happening there. Then the new Foreign Secretary, my right honourable friend Liz Truss, told our ambassador to China that China was committing genocide—at last someone in the FCDO was admitting the truth. Everyone knows that it is genocide. The independent Uyghur Tribunal, the US Government, our own Parliament and five other Parliaments determined it.

However, every time we try amendments, however modest, on trade with companies using slave labour in Xinjiang, the Government throw a wobbly if we use the word “genocide” and give the usual, simply unbelievable answer that only a court can pronounce on that, despite there being no court capable of holding China to account. There have been an awful lot of government pronouncements in the past two days about Putin and Russia committing war crimes and atrocities, and rightly so, but there has been no suggestion of a court needing to pronounce on that. However, let us park all that.

The Government will not accept any amendment which remotely hints at genocide. So my amendment does not seek to go there. Instead, it uses the Modern Slavery Act 2015, which is already on the statute book. We sent a simple, three-section amendment to the Commons: first, to make regulations ensuring that the DHSC did not buy goods and services from a country which may be in contravention of the genocide convention; secondly, a Minister should assess whether there was a serious risk of genocide; and, thirdly, a Minister had to make that assessment if a chair of a Select Committee requested it. That was rejected in the Commons and the Government gave us back the complicated and rather complex Amendment 48A in lieu. As we see from the government amendment, the Secretary of State would have to carry out a review in case there was slavery and human trafficking. He would determine the scope of the review and what parts of the NHS it might apply to. Then he must lay it before Parliament within 18 months and give his own views on how he would mitigate it.

My amendment combines that government review amendment with a simple one-line clause. This one-line amendment was moved in another place by my right honourable friend Iain Duncan Smith MP and was supported by all Opposition Front Benches and Conservatives who included the former Secretary of State, Jeremy Hunt MP, and the latterly Lord Chancellor, Robert Buckland MP. In the other place this simple amendment was rejected by my honourable friend Ed Argar MP. Now Ed Argar is a good Minister but someone drafting his speech obviously found an old “Yes Minister” script and wrote a classic Sir Humphrey response:

“In developing the modern slavery strategy review, it will continue to be important to engage across Government and civil society, nationally and internationally, to collect the necessary evidence to agree an ambitious set of objectives … We remain of the view that this is not the right legislation for the proposed changes.”


Can your Lordships not just hear Sir Humphrey adding, “A very courageous decision, Minister”?

Well, the right time is right now and the right legislation is this Bill. Of course, the Government always have a better Bill coming along in the future. The government amendment in lieu relies on the Modern Slavery Act, and so does mine, and while I criticise the obfuscating waffle of the government amendment in lieu, I am not attempting to replace it or reject but will support it. I am merely adding a one-line sentence to it. It is simple and does what the Minister in the other place said the Government wanted; that is, to

“further strengthen the ability of public sector bodies to exclude suppliers from bidding for contracts where they have a history of misconduct—or extreme misconduct in the case of slavery, forced labour or similar.”—[Official Report, Commons, 30/3/22; cols. 926-27.]

Ignoring the fact that genocide and slavery are a wee bit worse than misconduct, my amendment gives the Department of Health and Social Care the opportunity to desist from buying goods and services from anywhere practising modern slavery.

I do not blame those involved in procurement for the sorry fact that slave-trade goods have entered our supply chains. Those working in the Cabinet Office, NHS procurement and the Department of Health have worked jolly hard in very difficult circumstances over the past few years. The fault is not theirs. We clearly need better tools to keep slavery out of our supply chains and this neat little amendment would allow the Government to do exactly that.

We do not need to engage the whole of government, nor civil society here and abroad. After all, Dominic Raab has just cancelled a contract for solar panels on prisons because parts were made in Xinjiang province, and I am certain that he did not consult civil society here or overseas before doing so. If the Secretary of State for Justice can make that unilateral decision, so can the Department of Health and Social Care. Nor need we worry that we will be deprived of essential PPE from Xinjiang. On 31 March, I found the following announcement by the Department of Health and Social Care:

“Personal protective equipment for sale by the Department of Health and Social Care (DHSC) including visors, gowns, aprons and goggles”,


alongside a link to a site listing:

“Various Locations - Online Auction of Pallets of New PPE Equipment to include Gowns, Visors, Goggles, Sanitizer & Aprons - NO RESERVE!”


Let us be honest: the DHSC is the Government’s biggest procurer and happens to be the department with the biggest problem. More than any other department, it needs extra help to keep slavery away. I am grateful for what my noble friend the Minister has said, but in view of the fact that the Government will not support my amendment, I regret that I shall have no option but to test the opinion of the House in due course.

[Lord Hunt of Kings Heath (Lab)]

My Lords, first, I thoroughly endorse what the noble Lord, Lord Blencathra, has said. I find it extraordinary that the Government are taking such a slow pace in relation to the important issue he raises. Of course, I relate it to my own amendments on forced organ harvesting, which is yet another example of the deplorable behaviour of the Chinese authorities. I refer the House to the China Tribunal, led by Sir Geoffrey Nice in 2019, which stated:

“The Tribunal’s members are certain—unanimously, and sure beyond reasonable doubt—that in China forced organ harvesting from prisoners of conscience has been practiced for a substantial period of time involving a very substantial number of victims.”


Current human tissue legislation covers organ transplantation within the UK, but it does not cover British citizens travelling abroad for transplants. My amendment, which the House accepted, went to the other place. It was not accepted there but, as the Minister has kindly said, the Government put in their own amendment in lieu which we see here this afternoon. I am very grateful to the Minister for this. The impact of the Government’s amendment is to ensure that offences under Section 32 of the Human Tissue Act 2004, which currently prohibits people in this country from commercial dealings in human material for transplantation, will now be extended to acts outside the United Kingdom. The amendment covers people who give or receive a reward for the supply or for an offer to supply an organ or any controlled material. That is very welcome indeed. It is welcome because it deals with a gap in UK legislation, but it is especially welcome because it sends a powerful message internationally that the UK will not be complicit in this appalling crime. I am very grateful to the Minister and very much support the amendment he brings.

I now turn to my Amendment 57B, set out in Motion F1, which relates, as the Minister said, to issues to do with patient data and the proper protection of it. Laid out in the Health and Social Care Act 2012 is the concept of a safe haven for patient data across health and social care. Because of the sensitive nature of that data, I sought, and the House agreed, to keep those statutory protections in place and not allow NHS England to take on that responsibility because of a potential conflict of interest in that role.

The issue arises because, last November, the Secretary of State announced that NHS Digital and NHSX would merge with NHS England to accelerate the digital transformation of the NHS. The Bill gives the Secretary of State powers to do this by the transfer of a function from one relevant body to another. NHS Digital is currently the statutory safe haven for patient data and my concern is whether it is appropriate to place that responsibility in NHS England, in view of the inherent conflict of interest that might occur in its wider role. As a matter of principle, I and a number of other noble Lords consider that the collection, analysis and publication of public data should be independent of any operational body. In effect, NHS England will be able to decide that its legitimate interests override those of the citizen and the patient, with little or no external constraint or scrutiny.

The noble Lord and I are at one in wanting to speed up digital transformation. I will set out what I am trying to do here, with the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Brinton. We are trying to be helpful. We want to make sure that the integrity of the safe havens is retained within this digital transformation. As the noble Lord said, we have had an extremely useful discussion with officials who are leading this programme in the department. I hope the Minister will be able to offer assurances that the integrity of the safe haven concept will be retained; that no transfer will take place until those safeguards are fully set out in the regulations necessary to bring the transfer into force; and, in particular, that strict governance arrangements will be put in place, subject to external independent scrutiny and oversight established on a statutory basis.

Can the Minister also confirm that the merged entity will at the least maintain the status quo of transparency and, indeed, go further for the patients whose data it is and whose trust and confidence are so necessary? Can he further confirm that a data usage register will be published which covers all projects accessing patient-level data and shows which data was accessed? Will the National Data Guardian be consulted on all this before the Government progress the regulations? Finally, will the Minister ensure that the regulations will avoid the need for NHS England—this was raised by the noble Lord, Lord Clement-Jones—to be in the difficult position of sending legal directions to itself, and can he say how in practice this would work?

--- Later in debate ---

[Lord Young of Cookham (Con)]

My Lords, I rise briefly to support Amendment J1, so ably moved by the noble Lord, Lord Crisp. I also join him in thanking my noble friends Lord Howe and Lord Kamall, the two Ministers involved, for their engagement with movers of the amendment on Report and for the genuine attempt they made to seek agreement to narrow the small gap between the Government’s position and ours—an attempt which, I fear, was blocked by HM Treasury.

On this subject, on Report, my noble friend Lord Howe said:

“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.”


I wish I shared his optimism, given the current pressure on the public purse and the recent experience with the levelling-up White Paper, published in February. The Institute for Fiscal Studies said that

“the White Paper contains no new funding; instead, departments will be expected to deliver on these missions from within the cash budgets set out in last autumn’s Spending Review. Departments and public service leaders might reasonably ask whether those plans match up to the scale of the government’s newfound ambition—particularly in the face of higher inflation.”

The same is true for tobacco control. Even before the rise in inflation, budgets for tobacco control and smoking cessation had been cut by a third since 2015. Already by 2019, it was clear that the Treasury’s claim that the tax system would provide funding for tobacco control was misplaced. That is why, when the Government announced the smoke-free 2030 ambition in 2019, they also promised to consider a polluter pays approach to funding tobacco control and smoking cessation, which is the substance of the amendment before your Lordships this evening.

On Report, my noble friend Lord Howe said:

“The proposal may look simple on the surface but it is complex to implement. It may also take several years to materialise.”


Our proposals build on the pharmaceutical pricing scheme operated by the Department of Health, which is a far more complex industry with far more complex products. If the Department of Health can successfully run a scheme for pharmaceutical products—an industry and set of products that are complex and evolving—I fail to see why it cannot operate such a scheme for cigarettes. These are simple, commodity products produced by an oligopolistic industry, with four main manufacturers responsible for more than 95% of sales.

The noble Lord, Lord Stevens of Birmingham, who I am pleased to see in his place, said on Report that

“if it is deemed appropriate to have a form of price and profit regulation for the medicines industry, which delivers products that are essential and life-saving, it does not seem too far a stretch to think that an equivalent mechanism might be used for an industry whose products are discretionary and life-destroying.”—[Official Report, 16/3/22; cols. 294-98.]

I agree. However, I also accept that further investigation of our proposals would be needed, which is precisely why a consultation without commitment is the appropriate way forward, as the all-party parliamentary group’s amendment proposes.

I hope that, even at this late stage, my noble friend might demonstrate some flexibility in order to try to bridge the narrow gap between the Government’s position and that in the amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I, too, support the noble Lord, Lord Crisp, in his amendment. My noble friend Lord Faulkner would of course have been in his place to speak in favour, but he is unable to be here, so perhaps I may make a few remarks which I think he might have made.

Going back to Report, the Minister suggested that the tobacco industry is already required to make a significant contribution to public finances through tobacco duty, VAT and corporation tax. But I do not think that states the case as accurately as possible, because we know that tobacco manufacturers are skilled at minimising the amount they pay. For example, between 2009 and 2016, Imperial Brands, the British company that is market leader in the UK, received £35 million more in corporation tax refund credits than it paid in tax. The largest amount of tax collected by the Government comes from excise tax and VAT. This, of course, is not paid by the manufacturer; it is passed on to the consumer. That was a point HM Treasury made in 2015, when the Government consulted but, alas, decided not to put an additional tax on tobacco products to pay for tobacco control.

My understanding is that, in total, smokers spend nearly £11 billion on tax-paid tobacco products, more than three-quarters of which goes to the Government in taxes. We know that the majority of smokers are not well off; they often suffer multiple disadvantages. We must compare that huge tax take with the pitiful amount that is actually spent by the Government encouraging people to stop smoking. It is certainly not enough to make England smoke-free by 2030.

I listened carefully to the Minister’s introductory remarks. The noble Lord, Lord Kamall, objected to the terms of the amendment of the noble Lord, Lord Crisp, because, he said, the independent review had not yet reported and therefore we were seeking to pre-empt what the review will say. I thought the noble Lord, Lord Crisp, responded to that incredibly well. I do not think he is seeking to pre-empt the review; his amendment asks the Government to consult on recommendations in the review if the Secretary of State thinks that it is required. It is left entirely in the Secretary of State’s hands to act according to whether he or she considers that the recommendations should be consulted on.

This is a sensible amendment, it points us in the right direction, and I hope that, even at this late stage, Ministers may be sympathetic.

[Lord Rennard (LD)]

My Lords, if I understood the Minister correctly in his introductory remarks, he was saying that the Government’s case against the amendment is that they do not want to consult on something to which they are not already committed. So what is the point of consultations if they are only on things to which the Government are already committed? Should the Government not consult on what they might do, and take into account the opinions of experts and others?

Amendment 85B, in the name of the noble Lord, Lord Crisp, has the support of these Benches. It is in accordance with my party’s policy but, more importantly, it is essential to the Government’s stated objective of reducing the prevalence of smoking to below 5% by 2030. The amendment does not require the Government to do anything that they do not want to do; it just asks them to consult on something which they have said that they would consider—namely, to make tobacco companies pay more towards helping save and prolong the lives of their customers.

Last year, I found myself outside the HQ of British American Tobacco. It is an enormous headquarters: it looked like a palace of which any Russian oligarch would be proud. This company makes huge profits that could be diverted towards ameliorating the damage done by its products. The amendment would mean taking action to help people live longer and more healthily, with fewer families living in poverty because of smoking.

I expect we will have more warm words from the Minister and from the Department of Health and Social Care, but I believe that Parliament wants to adopt the polluter pays principle in relation to tobacco. So I end with a quote from a great parliamentarian, John Pym, who, in 1628—I am sorry that I do not have the Hansard reference—said: “Actions are more precious than words”.