Monday 31st January 2022
(2 years, 2 months ago)
Lords ChamberHealth and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 71-VII Seventh marshalled list for Committee - (27 Jan 2022)
The Deputy Chairman of Committees (Baroness Henig) (Lab)
My Lords, we come to Amendment 213A. I inform the House that the noble Baronesses, Lady Brinton and Lady Harris of Richmond, will be taking part remotely.
Amendment 213A
Lord Blencathra
“Health service procurement and supply chains: genocide convention obligations
(1) Regulations whether made under section 70 or otherwise may, in particular, make provision for the purposes of ensuring that procurement of all goods and services for the purposes of the health service in England is consistent with the United Kingdom's obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.(2) For the purposes of subsection (1), procurement is not consistent if a Minister of the Crown has assessed that there is a serious risk of genocide in the sourcing region.(3) A Minister of the Crown must make an assessment as to whether there is serious risk if the chair of a relevant select committee of either House of Parliament requests one, and must complete such assessment within two months.”
Lord Blencathra (Con)
My Lords, I apologise for my enthusiasm to get stuck into this vital amendment. I will speak to Amendment 213A in my name and that of my noble friend Lady Hodgson of Abinger, the noble Baroness, Lady Kennedy of The Shaws and the noble Lord, Lord Alton of Liverpool, whom I also consider to be a noble friend.
Allow me to begin by stating the obvious: UK taxpayers do not want to be complicit in genocide. It feels strange that this still needs to be said in 2022, 73 years after the genocide convention was agreed and nearly 80 years after the world became aware of the abominations of Auschwitz. Yet here we are in the age of ESG and corporate social responsibility, when the UK boasts of leading the world in the fight against modern slavery, and what do we find? We find hundreds of millions in public money poured into the pockets of companies profiting from Uighur forced labour; hundreds of millions of pounds poured into a region that our closest ally, the United States, has identified as the site of an ongoing genocide—an area so tainted with forced labour that President Biden has just signed into law the Uyghur Forced Labor Prevention Act, banning all imports from Xinjiang province unless it can be proven that they are slavery-free.
Those wondering why this Bill and why now have the answer. Credible reports have demonstrated that our existing procurement policy has been insufficient to prevent the Government spending hundreds of millions on slave-made PPE. With noble Lords’ permission, I will address a concern with the amendment head on. I would normally favour this sort of regulatory reform to apply across all government departments and would therefore look askance at focusing on just one department solely, as I am today. However, health is a special case, especially during the current pandemic. According to its modern slavery statement from 2021, the first year that the department has produced any such statement, the DHSC procured 280 regular non-Covid-19 contracts, but how many contracts did it produce for Covid? The answer is 708—708 contracts to address the pandemic, with a heavy preponderance of contracts being awarded to China.
I hope that noble Lords will permit me a brief digression to note that the Government revealed in reply to a recent Parliamentary Question that a billion lateral flow tests were procured from China despite some local production capacity. Why we would eschew British business in favour of companies in China, with all the attendant human rights risks, is beyond me.
Back to the point of his amendment: how many of those 708 Covid contracts went to Xinjiang-based companies? We simply do not know. What did the DHSC have to say about PPE widely reported to have been made by Uighur slaves? It said:
“This statement does not cover the Vaccines Taskforce (co-owned by BEIS), personal protective equipment (PPE) or UKHSA (formerly Public Health England (PHE) and Test and Trace) contracts.”
Those 708 contracts excluded a huge variety of other contracts by different organisations of our Department of Health and associated bodies.
Frankly, that is not good enough. If our laws do not prevent investment in modern slave-traders then, simply, our laws need to be changed. Noble Lords will recall debates surrounding genocide during the passage of the Trade Bill. Your Lordships voted by huge majorities in favour of allowing the High Court to make determinations of genocide, agreeing with the noble Lord, Lord Alton, and others that it was insufficient to outsource our genocide convention obligations to international courts, especially where those courts lack the power to hold back certain states, such as China. These efforts were resisted by the Government and the amendment before your Lordships today does not attempt to resurrect that campaign.
This brings me to the function of the amendment. Its first and core purpose is to apply a human rights threshold to government health procurement. If this new clause stood part of the Bill, it would be illegal for the Government to procure health service equipment from any regions in the world where they believe there to be
“a serious risk of genocide”.
That is a very high bar. It will be present only where the most serious human rights abuses are widespread. We would expect to see crimes against humanity, torture and mass enslavement in such areas.
The spirit of the Modern Slavery Act goes much further than this, discouraging business with companies which facilitate modern slavery offences. Modern slavery is much more widespread and common than genocide, affecting an estimated 40 million people worldwide. But the spirit of the law and the letter of the law are very different things. It is widely acknowledged that Section 54 of the Modern Slavery Act, which seeks to regulate supply chains, lacks teeth.
This amendment seeks to give it some more teeth in a limited and proportionate way. It applies only to government health procurement, allowing us to get our house in order first before pointing the finger at business. It applies only to the most serious human rights abuses of all, those which indicate a serious risk of genocide. Best of all, it leaves the assessment of “serious risk of genocide” to the Government and allows broad scope for the Government to define a process surrounding these risk assessments through regulations. In short, it is a very reasonable amendment. Candidly, while Uighurs in Xinjiang province are being forcibly sterilised, forced to work and detained in their millions, we ought to be doing a lot more. But this is a modest little amendment.
That brings me to the second purpose of the amendment, which is to move forward UK policy on genocide. We have heard ad nauseum from the Government that they have no view on genocide and will only use the word when “a competent court” has ruled on it. This policy has many problems, chief among them being that it makes genocide prevention impossible. The Committee may or may not be aware that our responsibilities under the genocide convention arise “at the instant” we become aware of a “serious risk” of genocide. Those quotes are direct from the International Court of Justice’s Bosnia v Serbia judgment in 2007. Let me repeat; it should happen at the very instant we become aware of a serious risk of genocide. That is when our convention obligations should apply. They do not arise when a court formally determines genocide, which usually happens many years after the genocide in question has ended. They arise at the instant we learn of a serious risk of genocide.
That simply means that the United Kingdom should be making regular assessments of serious risks of genocide and acting where appropriate. But we do not do this. This amendment before your Lordships’ Committee today puts that right and gives Parliament a limited role in ensuring that such assessments are performed in a timely manner, commensurate with the severity of the issue. It does not require the UK to make a formal determination of genocide, nor for the Government to behave like a court. It merely requires the Government to do a risk assessment—something we ought to be doing already.
I shall address the criticism that this is an “anti-China amendment”. This is false. The amendment makes no mention of China and would apply to every country. But I make no apology whatever for my motivation in bringing this amendment forward, which is to address President Xi Jinping’s heinous persecution of the Uighurs.
Finally, I was contacted the other day by the British Medical Association, which says:
“The BMA is deeply concerned about labour rights abuses in supply chains. Evidence shows that medical equipment, including PPE, has been procured from regions in which labour abuses are common, as this BMA report shows. The BMA notes the Uyghur Tribunal judgment, which found the PRC guilty of genocide, and the extensive procurement of NHS supplies from this region of China. This is deeply troubling; acquiring PPE from this region continues the systematic oppression of the Uyghurs and other minorities. The BMA believes all NHS supplies must be ethically sourced and this amendment would significantly reduce the risk of health service goods used in the UK being produced by individuals who are having their human rights abused.”
I hope I have demonstrated the need for this amendment. Having led the world in confronting modern slavery, the UK is falling behind—and we do not need to fall behind. The Covid pandemic has been a sorry period for many reasons, and making the UK taxpayer complicit in the persecution of Uighurs through PPE procurement is one of the sorriest. Let us take the opportunity to put that right: life-saving must not be dependent on life-taking. I beg to move.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.
Baroness Brinton (LD) [V]
My Lords, the noble Lord, Lord Blencathra, has outlined why there is an urgent need to address the NHS procurement rules in the light of possible genocide and other clear human rights abuses. We have a duty as a nation and as a society to ensure that goods used in our publicly owned NHS are not tainted with modern slavery or linked with behaviours that may lead to genocide.
This is not hypothetical. In November 2020, the noble Lord, Lord Alton—who I look forward to hearing speak shortly—asked the noble Lord, Lord Bethell, the then Health Minister, about Medwell Medical Products, which has a factory in Fenglin town, in Jiangxi province, noting that Uighur Muslims made up 25% of the workforce, despite being forced to live in separate accommodation from other workers. This was reported at the time by the excellent investigative paper, Byline Times. At the time, the noble Lord, Lord Bethel, said that the Government had not entered into an agreement directly with Medwell but that the central distribution warehouse in Daventry did have a record of receiving PPE masks produced by Medwell Medical Products. A spokesman for the Department of Health and Social Care said to Byline Times:
“We expect all suppliers to the NHS to follow the highest legal and ethical standards and proper due diligence is carried out for all Government contracts.”
This is an extraordinary response. Any contractor to the Government, even in an emergency such as a pandemic, must follow the commitments that the Government have given internationally to ensure that goods used by the publicly owned NHS are not tainted with human rights abuses. If companies such as Marks & Spencer can do it for their clothes supply chain, we can too.
In July 2020, the New York Times reported that Uighur Muslims—a minority subject to widespread persecution in China, including being put into detention camps where they are forced to undergo communist indoctrination—were being employed in the factories of medical suppliers under a specific Chinese Government labour programme. The Speaker of the US House of Representatives said at the time:
“We must shine a light on the inhumane practice of forced labor, hold the perpetrators accountable and stop this exploitation. And we must send a clear message to Beijing: these abuses must end now.”
As the noble Lord, Lord Blencathra, said, just over a year afterwards, in December 2021, the Americans passed the Uyghur Forced Labor Prevention Act into federal law.
UK Health Ministers’ responses in 2020 were, perhaps typically of this Government, aimed at prevarication and deflecting responsibility. This amendment does exactly what the noble Lord, Lord Blencathra, said, and what any self-respecting Government should do. It makes it absolutely plain that procurement must be
“consistent with the United Kingdom's obligations under the Convention on the Prevention and Punishment of the Crime of Genocide”,
and that
“procurement is not consistent if a Minister of the Crown has assessed that there is a serious risk of genocide in the sourcing region.”
The amendment also sets out conditions under which the risk should be investigated if the chair of a relevant Select Committee of either House of Parliament requests an assessment.
The amendment is very straightforward and clear. Perhaps the Minister can explain which parts of it he has problems with. It actually helps the Government, especially after the discoveries of the PPE provided by Medwell Medical Products and the supply chain—we suspect there are many other such companies as well. If the Minister is not minded to accept the amendment, can he explain to the House how NHS procurement can be protected from these human rights breaches, including possible genocide, in the future, and what guarantees there are that the department sees the supply chain details? I hope he will also agree to a meeting with the speakers in the debate on this amendment.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
My Lords, the noble Baroness, Lady Harris of Richmond, is taking part remotely. I invite the noble Baroness to speak.
Baroness Harris of Richmond (LD) [V]
My Lords, the noble Lord, Lord Blencathra, has explained that Amendment 213A is an important statement of intent, if put in the Bill, by Parliament and the Government that, on behalf of the people of this country, we will take all the steps that we can to prevent procurement of goods made in places where there is evidence of likely genocide and where human rights abuses and modern slavery are thereby inevitable.
My noble friend Lady Brinton has just explained the problem of the sourcing of PPE from China and from companies that may be using Uighurs’ enforced labour. This is extremely worrying. Given that the Government have previously ignored an amendment passed in your Lordships’ House in the Trade Act 2021, despite rising international concerns about genocide against the Uighurs, it is vital that we remember the duty placed on nation states to use a deterrent effect.
In its judgment of 26 February 2007, in Bosnia and Herzegovina v Serbia and Montenegro, concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide, the International Court of Justice found at paragraph 431 that the duty to prevent arises
“at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed”,
as the noble Lord, Lord Blencathra, stated. The judgment continues:
“From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent … it is under a duty to make such use of these means as the circumstances permit.”
This amendment echoes that judgment by saying that all endeavours must be made to prevent and deter the procurement of goods from an area where genocide is suspected.
I am also concerned about legislation on slavery, also a scourge of our times, and hope that the Government will not rely on it as a possible alternative. As we have heard, the Modern Slavery Act 2015 merely requires companies with a turnover of £36 million or more to produce a modern slavery statement. The legislation does not prevent companies, or the Government themselves, procuring slave-made goods. The Foreign Prison-Made Goods Act 1897 makes some procurement illegal in certain narrow circumstances, but it is very old legislation and now considered largely defunct. I am grateful to a number of NGOs for their excellent briefings on this subject.
The former Foreign Secretary, Dominic Raab, said that torture “on an industrial scale” was being carried out in Xinjiang, even though his Government decided not to take action by creating import controls for Xinjiang. This Health and Care Bill offers the opportunity to return to the issue and to improve DHSC procurement policy.
Baroness Kennedy of The Shaws (Lab)
I, too, have my name to this amendment and support it, as I have previous amendments to other Bills relating to genocide. Health procurement is a very problematic area that warrants the special attention of Parliament. Not to put too fine a point on it, we will probably all have been wearing slave-made masks, even here. But it is a particular concern if great institutions such as our National Health Service are purchasing them in contravention of the standards we would like to set.
According to the Institute for Government, the UK has spent at least £15 billion on PPE since the onset of the pandemic. To put this into context, the normal annual spend on PPE is around £150 million. Perhaps we should have been putting aside more money for it. Anyway, many PPE contracts use products sourced from China. We do not know how much came from the Uyghur region but one news report alone alleged that we had purchased millions of pounds-worth of PPE from a company strongly suspected of using forced Uighur labour. That is just one report and I suspect we will see more investigations and more coming to light.
Even where the PPE is not manufactured in the Uyghur region, it may contain cotton, plastics and some other constituent parts that were. It has always surprised me that we do not have the import control regime that the United States has had for some time. The USA requires importers to document the source of products, not just the town and city but the particular factory, and to make tracking possible. Indeed, DNA tests can locate the source of the cotton, for example—the very region where it has come from.
What do we mean when we talk about serious risk of genocide? These are not just words. They represent the trigger for state responsibility under the genocide convention, as other speakers have mentioned. The International Court of Justice in 2007, in a judgment of a case involving Bosnia and Serbia, was crystal clear that state responsibility to prevent genocide arises
“at the instant that the State learns of, or should … have learned of … a serious risk”
of genocide. We have taken the words from that judgment. By incorporating those words into regulations, we are providing the Government and Parliament with a mechanism to take action to prevent genocide. This is something they lack in their current policy, which makes all actions dependent on a judgment from an international court—which, as we know, bears the Catch-22 that the very countries getting close to genocide or in the process of committing it do not usually want to play by the international rules of law.
Why should a serious risk of genocide be our procurement threshold? There will always be widespread human rights abuses with attendant supply chain risks for businesses where already there is talk of a possible genocide being in play. This should not represent an obstacle to the United Kingdom because since the Modern Slavey Act—which we passed here proudly as leading the world back in 2015—our aspirations have been to ensure that no business can sell slave-made goods into our market. A serious risk of genocide represents a higher threshold than any modern slavery offence, so the bar is set high here. The ban on procurement that a positive finding of serious risk would attract is proportionate. We need take these steps urgently. It is not, as others have said, just about China, but the amendment would, we hope, have an immediate effect in the Uyghur region.
As many noble Lords will know, last autumn the Uyghur Tribunal sat not very far from here, in Church House, led by a sort of jury of persons and the distinguished international lawyer Sir Geoffrey Nice QC. The tribunal concluded that China was, in fact, committing genocide in the Uyghur region and there was a violation of pre-emptory norms in international law that ought to require government action, by us. We are under a duty to act. If a genocide is in train or in progress, we have a duty to try to prevent it. That is what the convention says.
Although the amendment, rightly, does not identify any single country, I would expect it to have some immediate effect in China. The situation is urgent, and we are having this debate because 800,000 Uighurs are working to produce goods against their will. By some estimates, as many as 300,000 children are separated from their parents, which is really part of a process to take them away from the culture, religion and traditions of their people and to deracinate them. At any one time, up to 1 million are in re-education camps. There has also been shocking evidence of forcible sterilisation of Uighur women and many other heinous crimes. There really is an international legal obligation upon us. This House has expressed its views in previous votes and I hope we will eventually be joined by many noble Lords when this comes at some point to a vote.
We are looking at our supply chains and they are being seriously tainted by human rights abuses. We have taken proud steps, leading the world, in seeking to do something about these supply chains, and here is an opportunity to take it even further.
Lord Alton of Liverpool (CB)
My Lords, it is a great pleasure to support the noble Lord, Lord Blencathra, who so ably moved this amendment; to concur with the speeches just made by the noble Baronesses, Lady Kennedy of The Shaws, Lady Harris and Lady Brinton; and to associate myself with friends from across the House in respect of the work they have put in over many months to push to the top of the agenda the issue of honouring our duties under the 1948 convention on the crime of genocide. I have two things I would like to add. The first concerns our international treaty obligations, referred to a moment ago, what we are required to do from the moment we know that a genocide is under way, and how we must never utilise to our benefit slave labour in a state credibly accused of genocide. The second concerns the way in which the lack of transparency in our procurement policies has led to the improper use of public money.
The amendment is a logical extension of the debates on the genocide amendment, which, as the noble Lord, Lord Blencathra, said earlier, was passed by three-figure majorities in this House in an attempt to provide a mechanism in the Trade Act 2021 to evaluate when a genocide is or is not taking place. Many promises were made by the Government during that amendment’s many iterations, including the provision of an effective mechanism to determine what constitutes a genocide and to honour our obligations under the 1948 convention. Demonstrably, those promises have not been kept. Worse still, we have established the illusion of a procedure to examine and deal with this most odious and reprehensible of crimes. The fact that we cannot, under that procedure, even look at what is happening in Xinjiang with the Uighurs shows how inadequate it really is.
Can anyone doubt the seriousness of this issue, not least in the light of the pronouncement by the Foreign Secretary, Liz Truss, that a genocide is under way in Xinjiang; or the resolution passed by the House of Commons; or the December judgment just referred to of the Uyghur Tribunal; or the declaration of genocide by United States President Biden; and much more besides? Do we have any excuse, therefore, for not taking action?
The noble Lord, Lord Blencathra, referred to a report by the British Medical Association, which seems particularly pertinent in the context of this Health and Care Bill. It sent a letter on 26 January, which noted
“the shocking reports of human rights abuses, including torture, forced labour, political indoctrination, and reported forced sterilisation. Since then, the situation has developed in the most abhorrent manner and we”—
the BMA—
“issued a joint statement with the Academy of Medical Royal Colleges and other Royal Colleges in December”—
I repeat, December—
“urging the UK Government and international actors to exert pressure on the Chinese Government without delay.”
It goes on to refer to the independent tribunal, saying:
“It found beyond reasonable doubt that the People’s Republic of China … is guilty of genocide. The Tribunal determined that biological genocide is occurring through restriction of births by forced sterilisation and abortion, segregation of sexes within the detention centres, and forced matrimony and procreation between Uyghur women and Han men. Furthermore, mutilation and biological experiments take place in the detention centres.”
If anybody is in any doubt about the enormity of what is taking place, they should read some of the personal testimonies which were given to the Uighur tribunal. I sat through many of its hearings and found the whole process incredibly harrowing. Let us be clear that there will be amendment after amendment to every possible piece of legislation until the promise to hold to account those responsible for these most heinous crimes against humanity are actually honoured. So my first point is that continuing to source goods for the NHS from Xingang is clearly not consistent with the duties laid upon us in the convention on the crime of genocide.
Baroness Hodgson of Abinger (Con)
My Lords, I support this amendment, so ably moved by my noble friend Lord Blencathra and supported by the noble Baroness, Lady Kennedy, and the noble Lord, Lord Alton. Noble Lords have already heard the well-versed and evidenced arguments put forward and, while the amendment does not specifically refer to China, there can be no doubt that the well-documented example of the horrific treatment of the Uighur people in Xinjiang province would fall under its scope.
We have all heard today about the hundreds of millions of pounds-worth of healthcare goods that have flooded into this country since the start of the pandemic, much of it sourced from China. We would expect our Government to make every effort to disentangle our supply chains from implication in these atrocities, so was any due diligence carried out throughout our procurement process? This amendment would correct that oversight if it was not.
I do not want to repeat everything that has already been said by others, but I want to highlight the importance of the risk-assessment aspect in proposed new subsection (3). I anticipate that the Minister will highlight the work already being done by government departments to weed out companies with slave labour in their supply chains. Perhaps sometimes they are being asked to perform an impossible task, because I understand that supply chains in the Uighur region of China are almost entirely opaque. It is suggested that the area is rife with systematic forced labour, that audits there are worthless and that workers live in fear and terror of telling the truth. Indeed, as we have already heard, the US Government have just passed legislation presuming that all imports from the region are tainted unless proven otherwise.
Surely, it is our responsibility, as a signatory to the genocide convention, to do all that we can to prevent genocide when there is a serious risk of it taking place. This amendment builds on the work that we have already done in this regard. We cannot continue business as usual with China or any other state that condones or supports genocide. I ask the Government to act urgently to ensure that our supply chains are not tainted by goods made with Uyghur forced labour. I ask Members on all sides of your Lordships’ House to join us and reassert our commitment to global human rights and to provide the protection against genocide, wherever it is needed, by supporting this amendment.
Lord Hunt of Kings Heath (Lab)
My Lords, I too support the amendment of the noble Lord, Lord Blencathra. As we are really talking about procurement in the NHS, I should declare my interest as president of the Health Care Supply Association.
It is entirely reasonable to use NHS procurement rules in this way. The noble Earl knows that Clause 70 is intended to give wide discretion to Ministers to bring in a new procurement regime. I see no reason why this cannot be part of that regime.
I sometimes think the NHS operates in isolation from what is happening in the world, but it cannot operate in isolation from the terrible things that the noble Lord, Lord Blencathra, and other noble Lords have spoken about. I hope the noble Earl will be sympathetic.
Baroness Sugg (Con)
My Lords, I rise to speak briefly in support of this amendment and, in doing so, I apologise that I was not here at the Second Reading, although I have followed the progress of the Bill carefully.
Last Thursday at Oral Questions, in response I think to the noble Lord, Lord Rooker, the Minister spoke of the importance of examining the provenance of health equipment that comes to the UK. He said his department was working
“to ensure that it is not from regions where there is slave labour, or where the Muslim Uighurs are being persecuted by the Chinese Government.”—[Official Report, 27/1/22; col. 439.]
We must of course ensure that the products and equipment in our supply chain are ethically sourced. Last week, my noble friend acknowledged that we need to do more here, and this amendment gives us the opportunity to do just that. Noble Lords speaking before me clearly and comprehensively laid out why we should avoid procurement from such areas.
All UK government departments need to do more to look carefully at their supply chains, but we must start somewhere. The DHSC, with its scale of procurement, and the reports we have seen of the prevalence of Uighur forced labour in PPE and healthcare supply chains during the Covid-19 pandemic, seems to be the right place to start.
The issue of genocide has been subject to lengthy debate in your Lordships’ House, not least during the Trade Bill last year. While a form of compromise was reached, it is limited to countries with which we will be entering free trade agreements. That is not a solution for procurement for many of the countries with which the DHSC does business. Importantly, this amendment would create a process, a mechanism, through which the UK Government could be required to assess regions for “serious risk of genocide”, and indeed publish their assessment. That process is, so far, sadly lacking in this country.
The UK has a responsibility to do all it can to protect against human rights violations and genocide. We also have a responsibility to our NHS workers and those who use the health service to make sure that we give them ethically sourced products. As my noble friend Lord Blencathra said, UK taxpayers do not want to be part of genocide.
We need to see deeds, not words. This amendment will significantly reduce the likelihood that the Government will procure goods or services from regions where there is a serious risk of genocide. It will bring the UK a step closer to developing a comprehensive framework in responding to allegations of genocide, and will meaningfully engage its obligations to prohibit, prevent and punish perpetrators of genocide. It does so in a limited, proportionate, reasonable and modest way.
I hope the Government will properly consider this amendment, I look forward to hearing the Minister’s response, and I know that he will have heard support for it from all sides of your Lordships’ House.
Lord Rooker (Lab)
My Lords, the Government should embrace this amendment. I want to concentrate on the traceability argument of goods, and in particular cotton imports. Without good traceability, the genocide convention obligations cannot be met.
To date, I have had two very poor replies on cotton traceability from the noble Lord, Lord Grimstone of Boscobel, at Question Time on 21 October, and a Written Answer on 24 January. Of course, as has already been said, we are miles away from the policies of the United States Government, who have taken a proactive approach to imports from regions of China where we know human rights abuses take place. As has been said, on 23 December, President Biden signed the legislation into law.
It simply cannot be left to commercial companies to satisfy themselves. It is crucial to understand the geographic origins of products and conditions of production. The two things are intertwined and they both need to be dealt with. There has to be a robust methodology that is reliable even when working with partners that may be untrustworthy or unco-operative. The use of middlemen such as commodity traders and the practice of blending fibre from multiple sources create additional difficulty.
Traceability—both what is termed as upstream, starting at the farm, or downstream, to map products back to their origins—is currently used. However, full visibility of the supply chain using these methods is impossible, and especially so in restricted areas such as Xinjiang Uyghur Autonomous Region. It is just impossible to do in the normal way you would look at traceability. If the Minister is in doubt about this, his department should read the report from the Center for Strategic and International Studies of November last year entitled:
“New Approaches to Supply Chain Traceability (implications for Xinjiang and Beyond)”.
My conclusion from that is that paper-based traceability and supplier information is a non-starter for effective due diligence.
In addition, there is abundant evidence that the Chinese Communist Party, which owns China, actually launders Xinjiang cotton, either semi-finished or blended, into international supply chains. This is set out in considerable detail in the November 2021 paper by Laura T. Murphy of Sheffield Hallam University entitled:
“Laundering Cotton: How Xinjiang Cotton is Obscured in International Supply Chains”.
In 2019, it was established that 85% of Chinese cotton was from Xinjiang. That means that cotton from the Uyghur region of China accounts for 22%—a fifth—of cotton worldwide. What was once grown or reared retains details of its origins—in a way, this is the test. However, it takes more than a paper trail to identify as such. It requires forensic work; chemical, isotope and genetic tracing and other methods that I will not list here are all crucial.
I will give a good example. From 1,000 garment samples collected across the world in high-street fashion shops involving nearly 50 brands, Oritain Global Ltd detected that in Vietnam, Cambodia and Bangladesh, the cotton in the garments had a mixture from Xinjiang of between 6.5% and 25%. Chinese cotton was 41% consistent with Xinjiang. Some 10% of samples of products tested in the UK were consistent with Xinjiang cotton. The UK has a high rate of imports from Bangladesh, where 25% of the cotton was from Xinjiang. It is worth pointing out that India has zero consistency with Xinjiang; India has cleared out Chinese cotton fabrication.
As to the practicalities for the health service, in 2019, the UK imported furniture, bedding and mattresses from China to the tune of £2.3 billion and imported apparel and clothing accessories to the tune of £3.7 billion. Has the NHS used beds and mattresses containing cotton from China or from suppliers using connections with China or other countries known to have a mixture of Xinjiang cotton? Where did all the Nightingale equipment appear from so quickly? As I asked last week, without any warning, how much China cotton is involved in NHS uniforms and accessories? Others have mentioned face masks, but as I pointed out last Thursday, more nurses means more uniforms.
Has the NHS supply chain used Oritain’s element analysis to check, or is it just relying on suppliers’ paperwork to check what would be only part of the supply chain? Companies and Governments need a degree of independence in assessing traceability and to not rely on companies doing it themselves. Some of the supply chains are five or six levels removed, so they cannot possibly have faith in each level and know the details from manufacturers, middlemen, traders, and agents. With the best will in the world and good corporate responsibility, checking the paper trail of five, six or seven levels will not work.
As I said earlier, the way to do it is to work on the basis that a product that was once grown or reared holds signs of its origins, and today’s advanced technology can do it. The technology of element analysis used by Oritain claims that it can tell the difference between two tea estates with a dirt road between them—it is so good and effective. For those who want more, I suggest the long read in the Guardian of 16 September 2021, which is where I came across the use of the technology. I have since met with senior reps of Oritain Global Ltd to better brief myself. Modern forensic technologies must be used, as is now required in the USA. The United States is using these technologies. Why are they not being used in the UK? The NHS, as the largest employer in Europe, should have a leading role.
It is not normal for the origin of cotton to be stated on labels. Of those 1,000 products which I mentioned were checked by Oritain last year, only 3% had the information on the label and, as a warning, the higher quality a product which attracts higher prices is more likely to be consistent with Xinjiang than cheaper items, so you must be really careful what you are looking at. Non-disclosure is almost the norm and of those who do disclose there is a high percentage of non-compliance, so labels and paperwork are not the answer.
Technology is the answer, and the ball is in the Government’s court. The old-fashioned gentlemen’s agreements and systems we are used to will not work. Modern technology is thought to be 95% accurate in identifying where an item was grown or reared. Only with that degree of information can the NHS satisfy the convention obligations. Otherwise, it will not work. The Government ought to embrace the amendment and then the new technology.
Lord Polak (Con)
My Lords, I pay tribute to my noble friends Lord Blencathra and Lady Hodgson, the noble Lord, Lord Alton, and the noble Baroness, Lady Kennedy of The Shaws, for tabling this important amendment. My noble friend Lady Sugg referred to last Thursday. That was 27 January, when the world came together for Holocaust Memorial Day in memory of the millions murdered under Nazi persecution. Members in the other place stood up and pledged “Never forget, never again”, while we in your Lordships’ Chamber sadly did not find a way to mark the day. Today, I repeat that promise.
Since the start of the pandemic, it seems that millions of pounds-worth of healthcare equipment have been procured from Xinjiang, despite the reports of the appalling treatment of the Uighurs. Will the Minister tell us whether our pandemic response benefited from procured equipment exported from Xinjiang?
Baroness Chakrabarti (Lab)
My Lords, I congratulate the noble Lord, Lord Blencathra, the supporters of his amendment and everyone who has spoken in this debate. I am sure that the Minister will reflect before he replies on the significance of an amendment to a major piece of government legislation that has garnered such disparate support from across the House.
I am conscious that the NHS is something that everyone in the United Kingdom is very proud of. It is a source of genuine patriotism—and a patriotism that is neither militaristic nor xenophobic. We have sometimes fierce arguments about how it should be organised but fewer arguments about it being a wonderful thing. It is perhaps the greatest experiment in solidarity and collaboration in human history. It even has “national” in its title, which is good for patriotism yet it is more than national because, in truth, its proud history is one of a service built on the contributions of people who came to this country from all over the world. It is a model of healthcare admired by people from all over the world.
As I heard noble Lords from across the Chamber speaking in recent minutes, I was reminded of the contrast between the London Olympics and the Beijing Olympics. The latter was a great display of military strength, while the other was something a little more novel. I was proud to take part in the opening ceremony, and remember the nurses bouncing on NHS beds. It drew huge amusement from parts of the press but was a reminder of the example that Britain can offer the world.
The poor old noble Lord, Lord Ahmad of Wimbledon, often has to address this human rights-interested Chamber on difficult issues of international relations when they rub up against the instinct to protect human rights. It is a difficult equation for successive Governments of either stripe. However, here there is an opportunity, because the NHS is such a big customer. This Bill is about being an ethical provider of health services to our people. In parts, it is about being an ethical employer. Now we might aspire to be an ethical customer on the world stage as well.
Noble Lords have done better than I can to explain the morality behind this concern about the Uighurs, but my noble friend Lord Rooker offered the practical element to go alongside the moral arguments.
In closing, I say to the Minister before he answers that, if there are some technical concerns from those who advise him about the precise drafting of the amendment, these can no doubt be resolved. I feel sure that the noble Lord, Lord Blencathra, and his supporters—and those who support them—would no doubt work with the Minister to ensure that something that does the trick comes forward on Report. What a golden opportunity this is to set an example on how one can walk this tightrope between realism and human rights protection, and what a great thing it would be for this Committee to be able to achieve.
Baroness Walmsley (LD)
My Lords, a very compelling and, indeed, conclusive case has been made by the noble Lord, Lord Blencathra, and other speakers in favour of this amendment, and I hope the Government will accept it. I particularly commend the suggestion made by the noble Lord, Lord Rooker, that the answer is there for us in science. I have only one question, because I have no intention of repeating all the excellent comments that have been made. This morning, I went into the Bishops’ Bar and picked up a box of lateral flow tests. On the box was written, “Made in China”. Can the Minister explain what efforts have been made to ensure that noble Lords, in their attempt to protect others and themselves, are not unwittingly supporting forced labour and slavery?
Baroness Redfern (Con)
My Lords, I rise briefly to support this amendment, and I apologise for not attending Second Reading.
This amendment requires the Government to perform a risk assessment on whether there is a “serious risk of genocide” in a region from which it is sourcing—not to make a genocide determination. It is the UK’s obligation under international law, as a signatory to the genocide convention, to perform such a risk assessment. We have heard many harrowing stories, which we find so difficult even to believe. Uighur identity is being erased: future generations are lost through forced birth-prevention measures, and millions have been detained, tortured and violated in concentration camps.
The incorporation of this amendment would send a clear signal to both the Chinese authorities and the international community that the UK is committed to ridding its supply chains of forced labour, fulfilling its obligations under international law and protecting Uighur people from genocide. The amendment is an opportunity to offer the Uighur community accountability for genocide and crimes against humanity, and I support it.
Lord Collins of Highbury (Lab)
My Lords, like the noble Baroness, Lady Sugg, I apologise to the House for not participating on Second Reading. This is one of those rare opportunities for me to be at one with the noble Lord, Lord Blencathra. These opportunities do not arise very often, but today is one of them. Of course we were at one in the debate on the then Trade Bill, and I very much welcome the continued focus on this issue, particularly by the noble Lord, Lord Alton. On the Trade Bill, we—I with my amendment—attempted to ensure that we were not simply trapped by this very strict legal definition of genocide and that we focused on broader human rights issues, particularly when it comes to trade. We find the reason for that when we ask—I pick up the point made by the noble Lord, Lord Polak—“When does genocide start?” How does it start? It often starts by the use and harassment of words; it starts with words.
In quite a few debates I have given books a plug. I am currently reading “Chips” Channon’s diaries, which I would recommend. Reading his discussions during the 1938 crisis, I was struck by how anti-Semitism was just common talk, and how people were portraying Hitler as not that bad, as well as some of the incidents: Kristallnacht was “unfortunate”. It is those sorts of things that we really do need to focus on, and I hope that the Minister will be able to do that.
This debate is about probing government action; it is not simply saying, “This is our amendment: take it.” This is Committee stage, and I hope we can use it properly to probe the Government because, sadly, I often think—today of all days—that we do not have joined-up government and there is too often a gap between what the Government say and what they do. As the noble Lord, Lord Alton, said, only 12 months ago the Foreign Secretary, now Deputy Prime Minister—who knows what he will be tomorrow—announced business measures regarding human rights abuses in Xinjiang.
I have read the BMA’s briefing, which focused on ethically sourced procurement. That is what this debate is about. It is not just about the definition of genocide. The National Health Service, is, I think, the biggest single procurer of medical products in the world. It has huge opportunities to influence trade and price. We have debates about price and my noble friend Lord Hunt focuses on that a lot. With that leverage, the NHS has the opportunity to influence change. This debate is not about punishing China or the Chinese people but about influencing change and hoping that the Chinese Communist Party and the Chinese Government will think twice about some of the actions they are taking. I hope today we will have an opportunity to probe what the Government are doing, look at what they have said and see what they have done.
Following his announcement in January 2021, Domonic Raab went to the Human Rights Council. There he said:
“The UK will live up to our responsibilities.”
He referred to
“measures aimed at ensuring that no company profiting from forced labour in Xinjiang can do business in the UK, and that no UK businesses are involved in their supply chains.”
That is absolutely right. The promised measures he outlined included
“a Minister led campaign of business engagement to reinforce the need for UK businesses to take action to address the risk.”
Have we seen that? Where is the evidence? I am not sure that I have seen it, even though I have asked numerous questions on the Modern Slavery Act about that.
Dominic Raab then referred to
“a review of export controls as they apply to Xinjiang to ensure the Government is doing all it can to prevent the exports of goods that may contribute to human rights abuses in the region.”
Here, I pick up the point mentioned by my noble friend Lord Hunt: this equipment could be used to do the very things he highlighted regarding organ transplants. I want to hear from the Minister: what are we doing on that commitment made 12 months ago? What are we doing at the WHO on investigating this abhorrent practice?
Dominic Raab also referred to
“the introduction of financial penalties for organisations who fail to meet their statutory obligations to publish annual modern slavery statements, under the Modern Slavery Act.”
I have repeatedly asked Ministers when and how that is happening, but, 12 months later, I have seen no evidence. As we heard in this debate, it is not as if that obligation is particularly hard to meet. It is not as if it says, “You won’t do this” and “You will do that”. It simply records what they are doing.
Earl Howe (Con)
My Lords, I am grateful to my noble friend for enabling us to debate the serious and important issue of ensuring that health service procurement and supply chains are consistent with the United Kingdom’s international obligations. I have listened very carefully to the contributions from all noble Lords who have spoken.
I begin by making clear what the regulation-making power under Clause 70 is designed to do, and not do. The Clause 70 power is limited in scope to healthcare services and, with the exception of some mixed procurements, will not extend to the procurement of goods. The vast majority of healthcare services procured by the NHS are provided by domestic suppliers or, indeed, by the NHS itself.
However, there is a wider point to address in response to the contributions of noble Lords. As a party to the Convention on the Prevention and Punishment of the Crime of Genocide, the UK is fully committed to the prevention and punishment of genocide as appropriate under the convention. Indeed, the UK is active in fulfilling its duties under the genocide convention. Given that the majority of mass atrocities occur in and around conflict, the Government believe that a focus on conflict prevention is the best means to prevent most mass atrocities. To that end, this Government adopt a consolidated, whole-of-government effort using our diplomatic, development, defence and law-enforcement capabilities to help find pathways to global peace and stability.
As my noble friend is well aware, it is the long-standing policy of the Government that any judgment as to whether genocide has occurred is a matter for a competent national or international court, rather than for Governments or non-judicial bodies. It should be decided after consideration of all the evidence available in the context of a credible judicial process.
Having said that, our policy on genocide determination does not prevent us taking robust action to address serious violations of human rights. The Government are clear that they expect all UK businesses to respect human rights throughout their operations, in line with the UN’s Guiding Principles on Business and Human Rights. In response to the guidelines, the UK is proud to be the first state to produce a national action plan, and we continue to develop our approach in line with the Modern Slavery Act 2015. Section 54 places a requirement on businesses with a turnover of £36 million or more to publish an annual modern slavery statement setting out the steps they have taken to prevent modern slavery in their operations and supply chains.
Following a public consultation, the Government committed to a package of measures to strengthen our transparency in supply chain requirements. This includes extending the reporting requirements to public bodies with a budget of £36 million or more to create public and private sector parity. The Government have led the way in this endeavour and, in 2020, the UK became the first country in the world to publish a government modern slavery statement, setting out the steps we have taken to identify and prevent modern slavery in our own supply chains. The noble Lord, Lord Collins, indicated that he had not seen evidence of action in this area. In November 2021, we published a progress report on how we have met the ambitious goals set out in that statement and, at the same time, each UK ministerial government department voluntarily published their first annual modern slavery statement. As the noble Lord mentioned, the FCDO and the Cabinet Office are also working together to introduce new guidance to UK government bodies to exclude suppliers where there is sufficient evidence of human rights violations in any of their supply chains. Further detailed guidance is being developed that will be mandatory for government contracting authorities.
The UK’s G7 presidency demonstrated how we are revitalising G7 co-operation to tackle the most pressing global challenges. At the meeting in Carbis Bay, in June 2021, G7 leaders reaffirmed their commitment to uphold human rights and committed to prevent, identify and eliminate forced labour in global supply chains. This was followed up by the G7 Trade Ministers’ meeting in October, building on those commitments to eradicate forced labour, protect victims and improve global supply chain transparency, including by upholding international labour standards in their own business operations and procurement policies. This is one of a number of recent, clear demonstrations of our continued leadership and commitment to ending human rights abuses in global supply chains.
The noble Baroness, Lady Brinton, indicated that she did not think that the Department of Health and Social Care in particular was doing enough in this area, but if we look at the health service specifically, we see that the Department for Health and Social Care published a statement in October 2021 explaining the steps it has taken to identify, prevent and mitigate modern slavery within its own operations and supply chains for all goods and services that it procures. This aligns with the Cabinet Office guidance advising public sector contracting authorities on how to assess suppliers in terms of mitigating the risk of modern slavery. Contracts are normally placed in line with the department’s terms and conditions, which include clauses requiring good industry practice to ensure that there is no slavery or human trafficking in supply chains.
My noble friend also asked why the 2021 modern slavery statement did not cover the Vaccine Taskforce, PPE, UKHSA—formerly Public Health England—or test and trace contracts. Some indication of preventive steps taken in relation to these areas were included in the statement, and, as was outlined later in that statement, all areas will be covered in 2022 statements.
My noble friend, and the noble Baronesses, Lady Brinton, Lady Harris and Lady Kennedy, the noble Lords, Lord Alton, Lord Collins and Lord hunt, my noble friends Lady Hodgson and Lady Sugg, and others, raised issues about Xinjiang, in particular. The Government have taken robust measures in respect of UK supply chains. We have introduced new guidance for UK businesses on the risks of doing business in Xinjiang, supported by a programme of ministerial engagement, and we have announced enhanced export controls, as well as the introduction of financial penalties under the Modern Slavery Act. Taken together, these measures will help to ensure that no British organisations —government or private sector, deliberately or inadvertently—are profiting from or contributing to human rights violations against the Uighurs or other minorities.
I am conscious that the noble Lord, Lord Alton, asked me a series of questions. If he will allow me, I will write to him on those that I am unable to answer today. The same applies to the points raised by the noble Lord, Lord Rooker, to whom I listened with great care.
For the multiple reasons that I have set out, I cannot accept my noble friend’s amendment. I hope, nevertheless, that I have been informative, and that he will have derived at least some reassurance from what I have said about the seriousness with which the Government view the issues around human rights violations, and the actions that we are taking.
Lord Blencathra (Con)
My Lords, I am grateful to every noble Lord and noble Baroness who has taken part in the debate, every single one of whom spoke in favour of the amendment, apart from my noble friend Lord Howe—I perfectly understand that he had to adhere to the DHSC brief. I am certain that, if every other noble Lord were to speak in the debate, each one would support the amendment as well.
I am grateful for the particularly powerful speech of the noble Lord, Lord Rooker, on determining the provenance of goods. Just as an aside, I can tell the House that, before Christmas, I thought I would impress my wife by trying to buy a couple of Oxford pillowslips myself, without troubling her. I wanted something with a thread count of over 400—for my delicate little skin, of course—and it took me hours and hours on the web to try to find a supplier among the major retailers that could guarantee that it would not be from Xinjiang province. I ended up contacting one supplier and asking, and three weeks later it replied by email guaranteeing me that the cotton was not from Xinjiang. I bought the pillowslips, and I still do not know whether or not I have been sold a pup—but they are quite nice against the skin. The noble Lord is right: we can tackle this problem only if we can trace provenance, and using DNA or other scientific evidence may be the best way to do that.
I do not want to go down the route of criticising some of the initial contracts that the Government entered into, as some noble Lords have done. There is no doubt about it: we were ripped off by some of them, we bought some duff equipment, and there will have been some dodgy contracts. But I remember that, at the time, every medic was calling out, “Get us PPE from wherever you can!” The whole world was scrabbling to get PPE. If your house is on fire, you do not spend ages on the web trying to find the cheapest fire bucket; you buy whatever you can. So I do not want to spend time on whether those contracts were value for money; that is for another day.
Someone asked: when did genocide start? I recall that the noble Lord, Lord Adonis, who was in the Chamber briefly, made a powerful speech a few months ago, saying that when genocide was happening, the whole world noticed that it was happening but did nothing about it, and then afterwards said that it must not happen again. We knew that Jews were being exterminated, and after 6 million were killed we said, “It must never happen again”. We knew what Pol Pot was doing, and afterwards we said, “It must never happen again”. We knew what Stalin was doing, and afterwards we said, “We must never let it happen again”. Then there was Srebrenica, and afterwards we said, “We must never let it happen again”. We know that genocide is taking place in Xinjiang province, yet we are just putting in place systems that may, one day, eventually, stop us trading with some of the people there who are committing genocide. That is not good enough. We must act faster than that.
Lord Davies of Brixton (Lab)
I was going to oppose the question that Clause 80 stand part of the Bill, but I thought the order of speakers was going to be somewhat different. I am sorry—I am looking to my Front Bench for guidance.
Baroness Wheeler (Lab)
My noble friend wrote to the Table Office and said that he did not want Clause 80 to stand part and that he wanted Amendment 217, which I shall be moving, to start this group, as it did originally.
Lord Davies of Brixton (Lab)
It would help the House not to proceed with the debate on whether Clause 80 stand part of the Bill. Then we can move on to the amendments.
Baroness Wheeler
“Social care needs assessments
(1) A social care needs assessment must be carried out by the relevant local authority before a patient is discharged from hospital or within 2 weeks of the date of discharge.(2) Each integrated care board must agree with all relevant local authorities the process to apply for social care needs assessment in hospital or after discharge, including reporting on any failures to complete required assessments within the required time and any remedies or penalties that would apply in such cases.(3) Each integrated care board must ensure that—(a) arrangements made for the discharge of any patient without a relevant social care needs assessment are made with due regard to the care needs and welfare of the patient, and(b) the additional costs borne by a local authority in caring for a patient whilst carrying out social care needs assessments after a patient has been discharged are met in full.(4) The Secretary of State must publish an annual report on the effectiveness of assessment of social care needs after hospital discharge, including the number of patients readmitted within 28 days.”Member’s explanatory statement
This amendment would create protections for the provision of social care needs assessments. It includes requiring an assessment to be carried out either before a patient is discharged from hospital or within two weeks of discharge; and requiring ICBs to agree a process for the provision of assessments.
Baroness Wheeler (Lab)
I am sorry about the confusion and I thank my noble friend Lord Davies for helping to clear it up.
Amendment 217 seeks to tighten up important safeguards for patients and their carers by adding a new clause after Clause 80. Clause 80 repeals current provisions under the Community Care (Delayed Discharges etc.) Act 2003 and regulations for hospital discharge, and paves the way for the discharge to access approach used particularly during the pandemic. I thank my noble friend Lord Davies for allowing me to move this amendment and not opposing the question that this clause stand part. I know he will want to speak at some point during the debate.
We know that during the pandemic the discharge to access approach led to some very welcome and innovative practices in getting patients out of acute settings in hospital into safer environments. The approach also led to tragedy, when untested patients or patients with Covid were transferred into care homes, causing the rapid spread of infection and, sadly, hundreds of deaths that could and should have been avoided. Evidence from key stakeholders to the Commons committee dealing with the Bill reflected a very mixed experience of this new process. In some areas the perennial and disruptive issues around delayed transfer had eased and the process was working relatively well, while others sought much tougher safeguards or the end to the discharge to access process altogether.
Amendment 217 seeks to ensure the vital safeguards needed, which are particularly important since Clause 80 repeals key provisions but is not exactly clear on what replaces them. We are therefore seeking to add a new clause after Clause 80, ensuring that social care needs assessments take place by the local authority either before a patient’s discharge from hospital or within two weeks of discharge. It also requires the ICB to agree a process for the assessments with the local authority.
The amendment covers the need to have due regard to the care needs and welfare of the patient and ensures that the NHS meets in full local authority costs of caring for a patient while a social care needs assessment is taking place if the patient is discharged without one. It provides for the ICB to agree the social care needs assessment process with the local authority, including timescales and reporting on any failures, and the remedies and penalties that would apply if assessments were not carried out in the required time. We also call for monitoring and reporting to Parliament annually by the Secretary of State on the effectiveness of social care needs assessments after discharge, including information on patients who have had to be readmitted after 28 days.
Our amendment fully complements the remaining important amendments in this group, which seek to ensure effective safeguards before and during the hospital discharge process for carers as well as their loved ones under Clause 80, and for young carers under Clause 148. We fully support Amendment 219 providing an “NHS duty to carers” and ensuring that
“their health and wellbeing is taken into account”.
We support Amendment 221 on protecting carers’ rights and ensuring full consultation with them before discharge as well as consideration of their needs in terms of safety, information, services and support. We support Amendment 225 on the definition of carers, which restates the current and hard-fought-for legal rights of carers and young carers under the Care Act 2014 and the Children and Families Act 2014, including those relating to the parents and carers of disabled children. We also support Amendment 269 on the important right of young carers to needs assessments under the Children Act 1989 and the essential need for local authorities to consider the appropriateness of discharging a patient from hospital into the care of a young person.
Like other noble Lords, I am very grateful to the excellent briefings from Carers UK and from young carers. I look forward to the contributions of noble Lords. On hospital discharge, we know the original discharge to access guidance was twice published without any reference to carers. I suppose we must be grateful that the two paragraphs that have subsequently been added reinstate the Care Act Part 1 references and provisions for carers.
But this is not enough to maintain and protect the hard-fought-for rights of carers. Hospital discharge can be one of the most difficult points in the care system for both existing and new unpaid carers, who are often taking on caring responsibilities without the right information and support or consideration of the impact on the carer as well as the loved one. Indeed, this can be the most traumatic time for new carers other than, of course, the shock of, and coming to terms with, their loved one’s sudden illness or disability. I can certainly endorse that from my own experience and my discussions with many other carers I meet. I know that carers still have many serious concerns about the current guidance and I will leave it to my noble friend Lady Pitkeathley to vent the anger and frustration that is felt over some aspects of the guidance.
Amendments 221 and 225 seek to retain carers and young carers’ current and legal rights under the Community Care (Delayed Discharges) Act 2003—which contains a direct requirement to identify and consult the carer before issuing a discharge notice—and other key legislation, including the Children Act and the Children and Families Act, relating to young carers and parent carers of disabled children. I have added my name to Amendment 225. I feel particularly strongly about the need to include a definition of “carers” in the Bill and to stop the Government in particular but also the media and others using “carers” when, in fact, they are referring to care workers and not unpaid carers. As Carers UK says, absolute clarity and getting the terms right means a great deal to carers, especially when they have so few concrete rights. The two roles are not the same; they are different. There is huge frustration on this issue among carers as it feels as if we are going backwards rather than forwards. I want to know from the Minister what the Government are going to do to address this situation.
On young carers, with recent research showing that there could be as many as 800,000 children providing regular care, Amendment 269 from the noble Lord, Lord Young, to which my noble friend Lady Merron has added her name, takes on even greater importance to ensure that arrangements for discharging patients without a care needs assessment do not unduly impact young carers. It would also ensure that assessments by councils include consideration of whether it is appropriate for a younger carer to provide care. As well as that, support services must be in place for the safe discharge of the parent. We know that caring for parents, siblings and other relatives will have a significant impact a young carer—on school attendance, exam results and on their well-being and future careers. Every classroom in the country is likely to have at least one carer, and we must ensure that they are fully supported.
This is an important group of amendments and I look forward to the debate in the hope that the Minister will recognise the need for the important issues outlined in the amendments to be included in the Bill. To remind noble Lords, at the height of the pandemic, there were an estimated 13.6 million unpaid carers in the UK, 1.4 million of whom provide more than 50 hours of unpaid care a week. They are more than twice as likely to be in poor health than those without a caring responsibility, and 72% of carers did not have a break from caring during the pandemic and are exhausted and worn out. Carers deserve better than this—there is much to do. These amendments would at least ensure that their existing legal rights are protected and built on. I beg to move.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
I apologise for not forewarning noble Lords that the noble Baroness, Lady Brinton, and the noble Lord, Lord Howarth of Newport, wish to speak remotely on this group of amendments.
Baroness Brinton (LD) [V]
My Lords, Amendment 219 in this group is in my name and I thank the noble Baronesses, Lady Pitkeathley, Lady Watkins of Tavistock and Lady Meacher, for also signing it. Just before I speak to that amendment, can I say that I also support the other amendments in this group so helpfully introduced just now by the noble Baroness, Lady Wheeler? I find her clarification of the difference between care workers and unpaid carers particularly helpful and vital in this debate because unpaid carers are invisible.
My amendment deals with unpaid carers. I am very grateful for the briefing from Carers UK which estimates —as we heard from the noble Baroness, Lady Wheeler—that there are as many as 13.6 million unpaid carers in the UK and, shockingly, over 1.4 million people providing over 50 hours of unpaid care a week. My brother looked after my mother for eight years, probably for 40 to 50 hours a week for most of that time. It meant that he just could not work at all. He is not alone.
I am sure we all know someone who is an unpaid carer. Even if they want to fulfil this role for their loved ones, society and the Government need to recognise the difficulties this gives the carers. The census in 2011 showed that carers are more than twice as likely to be in poor health than those who do not have a caring role—and they need support too, especially if they are isolated at home with the person they are caring for, whether that is day services or short in-patient respite care. Some 72% of carers have not had any breaks from caring during the pandemic and, as a result, are exhausted and worn out.
Lord Howarth of Newport (Lab) [V]
My Lords, I too would have preferred to speak later in the debate. I am sure that there are other noble Lords who have tabled amendments from whom the Committee would have preferred to hear nearer the outset, but I understand that the Deputy Chairman of Committees does not the flexibility to allow this, and I am of course grateful for the opportunity to speak.
As we know, the Covid-19 pandemic has led to a substantial rise in mental ill-health across the general population. Not surprisingly, this effect has been particularly hard-felt among unpaid carers. Many carers, already leading confined lives, have struggled with lockdown. Young carers have suffered with the loss of schooling and, when schools returned, trying to ensure that the people they care for have been shielded from the virus. Many were unable to go back to school for fear of bringing the virus home. Many from disadvantaged backgrounds did not have the digital resources to enable home schooling to be effective.
As we consider these amendments, I would like briefly to bring to the attention of noble Lords some remarkable work with carers being developed in Kingston upon Thames by Kingston Carers’ Network. KCN provides a range of crucial services to some 4,000 adult carers and 700 young carers from five to 18 years old. An important element of this support is nurturing the creativity of carers. Recognising, from the SHAPER research programme, which I mentioned in a previous debate, the positive effects of the arts on mental health and well-being, KCN is working with Rosetta Life to introduce three arts programmes for carers. Poetry and conversation provides co-created poetry workshops for adult carers, demystifying poetry and making it easier to approach. Participants have written and shared online poems about the challenges of caring. They have all said they would like more sessions.
KCN is trying to secure funding to participate with Rosetta Life in an international project called HeArt of Care. The idea is to offer master classes in dance, art making, photography, poetry and song writing for both adult and young carers. The project will create a website showing positive representations of the grace, dignity, compassion and joy of care and caregiving. The groups that would participate with KCN are a network of carers from Tyneside, Bristol Black Carers, Caregivers India and the End of Life Care Centre, Rwanda.
Another project is Room2Dream. Rosetta Life has a partnership with Dream a Dream in India, which works with 18 to 21 year-old carers who live in extreme poverty. This is one of 16 partnerships between young people in the UK and young people in refugee camps, conflict zones, hospices and adolescent psychiatric care. Young carers are offered poetry and song-writing workshops; they are given classes in film-making to enable them to create films about their poems and songs, and share them with other young carers not only in India but in, for example, Rwanda, Syria, Zimbabwe and Nepal. KCN is currently trying to secure funding for this initiative too.
These fledgling projects highlight the potential of the arts to improve the lives of unpaid carers and to enable them to have a voice that will be heard nationally and internationally. We should ensure that the system created through this legislation will underpin such ways to strengthen the resilience of carers and, beyond that, to enable them to flourish. These amendments will help. I look forward to a time when public policy, far more reliably and generously, supports unpaid carers to have better lives while they do their crucial work.
Baroness Pitkeathley (Lab)
My Lords, for 25 years, I have been trying to bring the voice of carers into your Lordships’ House. I know, from the great amount of support I have received over those years, that the whole of your Lordships’ House agrees that we should recognise and value the enormous contribution of millions of people caring for families and friends, who do so much to support others, often at great personal cost. I make no apology for repeating the statistics: up to 13 million carers provide unpaid care worth £530 million a day, or £193 billion a year. They are indeed the backbone of our health and care system.
Ensuring that the health system identifies and supports carers in return is the least we can do, and that is the objective of the four amendments to which my name is added in this group. I am also very supportive of Amendment 217 moved by the noble Baroness, Lady Wheeler. I thank her for her excellent introduction. I am strongly supportive of Amendment 219 and am grateful to the noble Baroness, Lady Brinton, for tabling it.
As Members will know, I have long called for the NHS to have stronger duties towards unpaid carers. The NHS depends heavily on the role and input of people who care unpaid, usually family and friends but quite often neighbours, in supporting people with long-term conditions and disabilities in the community. Research by Carers UK shows that more than half of carers say they feel invisible to the NHS; more than half of carers providing significant amounts of care were not involved in decisions about hospital discharge; and the majority of carers, over 60%, were not given enough information and advice to care safely, at the point of hospital discharge, for the person they care for.
Placing a duty on the NHS with regard to carers is needed, as there is currently neither a systemic nor systematic approach towards carers in the NHS. As the noble Baroness, Lady Brinton, pointed out, a duty to carers would help greater integration between services. Currently, local authority social care sees carers as equal partners in care and very much part of the system, whereas carers can be invisible to the health system. This duty would also lead to direct benefits to the health system, including improved health and well-being, improved satisfaction with services, and reduced admissions and those all-too-frequent readmissions. More practically, it would avoid the significant omissions of carers in recent guidance on hospital discharge, to which I now turn.
Amendment 221 proposes to insert a new clause to protect carers’ rights. As it stands, Clause 80 is of great concern. Almost incredibly—I can hardly believe I am saying this—it removes from carers rights that have been hard fought for over many years and which were enshrined in the Care Act 2014 and the Community Care (Delayed Discharges etc.) Act 2003. Many of your Lordships will remember those Acts and the many hours we spent on them.
This Bill repeals the legislation giving carers the fundamental right to have an assessment and ensuring that the services provided make sure that discharge from hospital is safe. There are endless horror stories about unsafe discharges and this issue has been debated extensively in another place. Hospital discharge is one of the most difficult points in the care system for unpaid carers, who often take on caring responsibilities without the right support.
Through Clause 80 in the Health and Care Bill, the Government are seeking to pass legislation that would enact the discharge to assess approach mentioned by my noble friend Lady Wheeler, which has recently been deployed by NHS England, by repealing, as I said, the Community Care (Delayed Discharges etc.) Act 2003. Amendment 221, in my name and supported by the noble Lords, Lord Young of Cookham and Lord Warner, and the noble Baroness, Lady Tyler of Enfield—to all of whom I am very grateful—would ensure that, in advance of any patient being discharged from hospital, the relevant NHS body must identify and consult any carer who is about to provide or will be providing care. This would ensure that the local authority is not the only statutory body with responsibilities towards carers and that the NHS plays its equal part. It would also ensure that the carer in question has services that protect their well-being and that assumptions are not being made that they will automatically provide care—assumptions that are made far too often.
Carers’ organisations are extremely concerned that the inclusion of carers in this guidance for discharge to assess is insufficient to protect carers’ rights. I ask the Minister, on what evidence basis is the move to discharge to assess better for unpaid carers? The evidence seems to be that discharge to assess is worse. The Government’s own impact assessment of the Bill recognises that it will lead to many carers having to take on even more care. It states:
“There is an expectation that unpaid carers might need to allocate more time to care for patients who are discharged from hospital earlier. For some, this may result in a … reduction in work hours and associated financial costs.”
Are the Government really suggesting that carers go on to benefits—the carer’s allowance, for example, which is only £67 a week and recognised as a pathway to poverty?
I am sure the Minister is also aware that if a carer gives up work to care, they do not immediately get any benefits. That leaves them without any income at all. Or are the Government suggesting in their impact assessment that discharge to assess is better for carers by suggesting they take unpaid leave from work, in the process passing on the costs of hospital discharge to employers? Giving up work to care hurts the economy and costs businesses money in terms of recruitment and retention. So I would really like the Government to explain the thinking on this one, because I have lost count of the number of Ministers who have stood at the Dispatch Box and agreed with me that the best thing you can do for carers is enable them to stay in paid work as long as possible. So will the Minister please explain that to me—or better yet, be prepared to explain it to a group of carers that I am happy to arrange to meet him?
I turn now to Amendment 225, on the definition of a carer, which will be spoken to by the noble Baroness, Lady Hollins. It may seem unbelievable, but when I started in the carers’ movement in the mid-1980s, the word “carer” was unknown. Yes, it was not even in the dictionary, and every time you typed “carer”, your spellcheck corrected it to “career”. Now the word is everywhere and, in a way, the unpaid carers movement is a victim of its own success, because everyone wants to be called a carer and it is increasingly used to describe paid care workers. Carers themselves actually have difficulty in identifying themselves as a carer—“I’m not a carer, I’m a mother, a husband, a daughter”, is what they say. This lack of identification is an obstacle to them accessing support, so a proper definition is vital and it must be all-encompassing, as set out in the amendment. We fought very hard to get these definitions acknowledged in statute, for example the Care Act 2014, and it is important that the word “carer” encompasses parent carers and young carers.
I point out that the purpose of this amendment is not to create anything new. It uses only existing legislative references. Its purpose is to ensure that the definition of carers in the Bill is entirely clear, so I see no possible reason for the Government to reject it.
Baroness Hollins (CB)
My Lords, it is a pleasure to follow the noble Baroness, Lady Pitkeathley, and her powerful speech. I support the amendments in this group and will speak to my Amendment 225. First, I declare an interest as an unpaid carer myself, who has had to take on considerable additional caring responsibilities as a result of the pandemic. I enjoyed the description of the noble Lord, Lord Howarth, of the use of poetry, because it is certainly a new hobby of mine, which I found very helpful during those long months of caring.
Mencap’s survey from the first wave of the pandemic in 2020 found that four in five carers of people with learning disabilities were taking on much more care of such people in their families because of the loss of paid support and daily activities for their family members. For many, it will take many months, even years, to return to pre-Covid levels of paid support to support those carers.
During the pandemic, care and carers were often spoken about as synonymous with care homes. I found it very discouraging as an unpaid carer myself to think that it was so little understood in government communications about the pandemic. I tabled this amendment to ensure clarity regarding to whom the Bill refers when it uses the term “carers”. As the noble Baroness, Lady Pitkeathley, explained, it does this by providing existing definitions of carers that are present in related legislation. I too thank Carers UK for its helpful briefing and support.
The amendment is necessary because there is so much confusion about the term “carers”. It is used to describe paid care workers, who I prefer to describe as support workers, or perhaps carer support workers, but that is not the same as caring for a family member and caring about a family member, which is a central part of the role.
The amendment is necessary for another reason: the inclusion of parent carers and young carers more systematically, where appropriate, in the Bill’s consultation and involvement provisions. This should drive better practice and outcomes for all concerned as well as providing clarity.
The provisions in the Bill relating to carers to which this amendment refers do not mean that all groups of carers defined here must be consulted or involved for all services, but only where appropriate. It does, however, provide clarity. The Health and Social Care Act 2012, on which the legislation builds, did not define carers either, which in hindsight it probably should have. This is therefore an opportunity to refine the legislation based on this experience.
Carers UK’s view is that this amendment would improve the clarity and delivery of policy and practice. Family and friends who provide care often put their needs at the back of the queue, and yet the NHS would collapse without them. As already set out, young carers face particular health inequalities and challenges in caring. Evidence from the Children’s Society shows that one in three young carers has a mental health issue and 80% of young carers felt more isolated during the pandemic.
The amendment has the broad support of a variety of different organisations that deliver services and support to carers, and which would welcome this clarity. As well as Carers UK, this includes the Patients Association, MS Society and many local carers’ organisations. As they are the organisations which will be implementing the legislation, supporting and informing carers and providing clarity is essential.
When this issue was raised in Committee in the House of Commons, the Minister said that “carer” should be defined in its everyday sense as unpaid carer. However, we already have sound legislation, which can be referred to, that defines carers. We need to ensure that the muddle of terms created during the pandemic is undone. I ask the Minister to define carers clearly in the Bill by accepting this amendment and to recognise the hugely invaluable role that carers play in our society.
Lord Young of Cookham (Con)
My Lords, it is a pleasure to follow my new room-mate, the noble Baroness, Lady Hollins, and I agree with every word that she has just said. I also agree with the other speeches that we have heard in favour of the various amendments. I pay particular tribute to the noble Baroness, Lady Pitkeathley, for her tireless campaign over 40 years on behalf of carers.
I have added my name to Amendment 219 but I will focus on my Amendment 269, which focuses on young carers. I am grateful to the three noble Baronesses who have added their names. Might I be allowed a word on one line in Clause 80, whose future I thought we were debating in this group but which has now been incorporated into the Bill? The line is:
“The Community Care (Delayed Discharges etc) Act 2003 is repealed”.
Noble Lords with long memories may remember that Bill. At the time, I said it was the worst I had seen in 30 years. Instead of doing what this Bill seeks to do —to bring together health and social care to facilitate closer co-operation—it established an antagonistic relationship between the NHS on the one hand and social services on the other by enabling one part of the public sector unilaterally to fine another part. It was a friendless piece of legislation, heavily criticised in your Lordships’ House, as the noble Lord, Lord Hunt of Kings Heath, who had the misfortune to pilot it through, will doubtless confirm.
At the end, my noble friend Lord Howe said, nearly 20 years ago:
“On a more philosophical level, we need to ask ourselves whether this system of financially driven imperatives is what we want to see pervading the fabric of our public services wherever the NHS and social services interact. I am clear that it should not”.—[Official Report, 17/2/03; col. 929.]
How appropriate that, 20 years later, my noble friend helps to put the final nail in the coffin of that Bill. However, it had one redeeming feature: the obligation to assess prior to discharging a patient from hospital. However, as drafted, as other noble Lords have said, the proposals could have the unintended consequence of weakening protections for children who look after adult relatives.
My amendment is about young carers and is shaped by my experience when in another place of working with Andover Young Carers. Children barely in their teens were combining education with caring for disabled parents. The organisation was based in a small bungalow on a local authority estate, and it did heroic work, forging closer links with schools and children’s services. Some of the children spent more than 30 hours each week looking after parents and elderly relatives—almost the equivalent of a full-time job—as well as often having caring responsibilities for younger siblings. They cooked, did the housework, shopped, collected prescriptions, leaving little or no time to enjoy their childhood. The noble Lord, Lord Howarth of Newport, spoke movingly about the work of young carers in Kingston.
According to research from 2018, as the noble Baroness, Lady Wheeler, told us, there are more than 800,000 young carers in the UK. Recent figures show that 180,000 children in England who care for an ill or disabled relative are missing out on support, simply because they are not known to their local authority. Hence the need for this amendment which ensures that young carers are identified before adults are sent home from hospital to be looked after by them. If contact with adult carers is necessary, as we have heard, it is doubly necessary for young carers.
This is because we have clear evidence from Barnardo’s—I am grateful for its briefing—which shows that adults are being discharged from hospital into the care of children, without first making sure that these children are aware of their new responsibilities and that they have the support necessary to enable them to discharge them. I fear this is set to only get worse, placing more caring responsibilities on small shoulders, unless the Bill as currently drafted is amended.
The Care Act 2014 gave a young carer under the age of 18 the right to a needs assessment and placed a duty on local authorities to take reasonable steps to identify young carers in their area who may need support. Yet, in its report Still Hidden, Still Ignored, Barnardo’s found that young carers were still slipping through the net. Its finding is reinforced by the latest CQC survey, which found that 21% of people did not have their family or home situation taken into account when staff prepared them for discharge, a point referred to in the excellent paper which many noble Lords received today from Dr Moore at the University of Manchester.
This amendment places an obligation on the NHS to ascertain whether a patient will be cared for primarily by a young carer and, if so, to contact the local authority concerned for an assessment and the necessary support. This will not delay discharge but would ensure that hospital staff ask if a child under 18 will be the primary carer. If the answer is yes, the hospital should contact the relevant local authority which will ensure that a needs assessment is carried out.
I know the Government have made positive steps to ensure that the needs of young carers are recognised in the guidance which will accompany this Bill, and for that I am grateful. However, without a clear duty on hospitals to establish whether a patient is being discharged into the care of a child, the current situation is likely to continue. Guidance is worthy, but sadly not definitive. Therefore, the pathway for young carers to get the local authority assessment they are entitled to needs to be strengthened and here the health service is the key missing link. I speak to this amendment today because young people who care carry huge responsibilities and we must, as a society, do more to ensure they can live the flourishing lives they deserve.
Lord Warner (CB)
My Lords, I strongly support all the amendments in this group. The noble Lord, Lord Young, has been so persuasive and I endorse what he said about young carers. As someone who has been involved with carers for almost as long as the noble Baroness, Lady Pitkeathley—I now regard her as my general in these matters—I want to focus on Amendment 221, to which I have added my name.
It is worth remembering that this Bill is being considered in the context of adult social care funding having been starved, in my view, by three successive Governments. Even when huge sums of money are being raised for health and care through a national insurance levy, social care has to wait its turn. A bit like Oliver Twist, it is at the end of the queue—hopefully there will be some money left in the coffers after the NHS has removed a substantial part of it. That context is very important.
In that context, I find it surprising that somebody somewhere in the Department of Health and Social Care thinks it is a good idea, as the noble Baroness, Lady Pitkeathley, said, to weaken the protections for carers. It is worth bearing in mind that one in five carers now waits over six months for an assessment. In a survey from last November, only 24% of carers had received a carers’ assessment or reassessment in the past year. This is the context in which officialdom and Ministers have thought it a good idea to weaken the protections provided in the 2003 Act. There may have been some weaknesses in that Act, but this was not one of them, as it provided for the NHS to undertake these assessments before people were withdrawn. The noble Lord, Lord Hunt of Kings Heath, is not in his place, but he was the person who took that Bill through and achieved support for that protection for carers.
Lord Davies of Brixton (Lab)
My Lords, I apologise for the confusion at the beginning of this debate. My understanding of the ways of this House is still a work in progress. I gave notice of my intention to oppose the question that Clause 80 stand part to provide the Government with an opportunity to explain more clearly than they have their intentions for the management of hospital discharge. I hope in so doing they can allay the concerns that surround the proposal to revoke Section 74 of the Care Act 2014. For example, there are the concerns of the National Care Forum, which points to the danger that
“the removal of an assessment prior to discharge will result in less priority to undertake the assessment once someone has left hospital—for someone needing support to remain in their own home, this is concerning.”
The process of hospital discharge is a crucial element within the integrated care system established by this proposed legislation. From the perspective of the service user, this is where it all comes together. It must be done right. The Explanatory Notes tell us that this clause introduces flexibility for local areas to adopt the discharge model that best meets local needs, including an approach known in England as discharge to assess, the argument being that people will be assessed at a point of optimum recovery, allowing a more accurate evaluation of their needs. Who could possibly object?
The first problem is that there is a widespread lack of trust in the Government’s motives and intentions on this, like on other changes in the Bill. It is possible to argue that the change means that people will be assessed where most appropriate. But it is also possible to argue that the change will facilitate premature discharge that is in the interests of the service provider, not the people receiving the service. As well as explaining and stressing the advantages of the proposed change, the Minister needs to tell us what the Government are doing to ensure that it will not lead to the disadvantages that many of those involved in the process fear.
The second issue that the Government need to address is that hospital discharge is still seen predominantly as a medical matter, with concern that insufficient attention is given to the social care aspects. A survey from December 2020 of social workers who were involved in hospital discharges made it clear that the vital contribution of social work in the multidisciplinary team was being marginalised by the medicalisation of people’s journeys out of hospital. Most importantly, social workers were found to feel that the voice of the individual, the person receiving the service, was being lost, indicating that arrangements were being made without consent or against people’s views and wishes.
It is also important to understand the context within which this change is proposed. On the one hand, there is the current crisis in social care. Even without the impact of the Covid pandemic, demand is outstripping supply, there are waiting lists for assessments of need and support, and local authorities are operating with significantly reduced budgets following a decade of austerity. On the other hand, there is the widely understood pressure on the hospital sector, with increased demand and mounting waiting lists. Both these factors are the result of the long-term underfunding of our system of health and social care. This will have to be addressed—just let it not be at the cost of the service user.
We must ensure that community health teams and social care teams have the resources they need to provide a needs assessment as soon as an individual is discharged. Too often, the issue of hospital discharge is discussed in terms of the needs of the service and not of the individual person.
Baroness Watkins of Tavistock (CB)
My Lords, it is a pleasure to speak on this group of amendments, but I want to focus particularly on Amendment 219. There are around 6.5 million unpaid carers in the UK, a number which increased to 13.6 million, or about one-fifth of the population, during the height of the pandemic. Some 1.4 million people provide more than 50 hours of unpaid care per week. Unpaid carers are often relied on to provide this care, yet receive minimal or no formal support themselves. Instead, many report feeling isolated, undervalued and pressured by the challenges of stress and responsibility. Being a carer is emotional and physical labour.
A lot has been said about the Carers UK survey, which identified that 56% of unpaid carers were not involved in decisions about patients’ discharge, with seven out of 10 respondents not being asked whether they were able to cope with having the patient back home and six out of 10 receiving insufficient support to protect their own or the patient’s health and well-being. This lack of support reflects the absence of a unified and systematic approach to identifying and supporting unpaid carers. It demands urgent remediation, especially as we know that unpaid carers are twice as likely as non-carers to have ill health, and the majority have reported worsening mental and physical health during the pandemic.
I endorse Amendment 219 because it talks about carers who work with people who come into contact not just with hospital services but with NHS services. In my work as a community mental health nurse, in many instances I saw that people were not admitted to hospital for years—which was actually a very good outcome—but their carers’ needs were just as great in supporting them with long-term problems in their own homes. This amendment would create a duty in respect of any person receiving NHS care, whether that is in the community or in hospital. The NHS must identify unpaid carers, particularly young carers, and ensure that their health and well-being are properly considered. This is a vital public health duty.
Baroness Tyler of Enfield (LD)
My Lords, I strongly support this group of amendments. I particularly endorse Amendment 269 regarding young carers, which was spoken to so compellingly by the noble Lord, Lord Young.
I wish to speak primarily about Amendment 221, to which my name is attached. It is about protecting existing rights of carers. I know that the point has already been made, but it is worth repeating. Amendment 221 would retain existing rights being taken away by this Bill as it repeals the Community Care (Delayed Discharges etc.) Act 2003. I find that a pretty extraordinary position to be in.
I want briefly to focus on the impact of caring particularly on women and employment, without in any way wishing to diminish the very important role played by male carers within the family. It is just a fact that women are more likely than men to be carers. According to some research conducted by Carers UK with the Universities of Sheffield and Birmingham, women have a good chance of becoming carers 11 years before men. Women are also more likely to reduce their working hours in order to care, and they are more likely as a result to have lower incomes and end up under-pensioned in retirement.
As we have heard, hospital discharge can be a pivotal moment for people providing care, particularly women. This amendment would ensure that assumptions are not made about carers’ ability to care, even when they may be working at the same time, that a solution is discussed and, ideally, agreed between families and services, and that carers are provided with the support they need to enable them to care safely and well. For those carers who are juggling work and care, which I can relate to personally, it is essential that their health and well-being are supported. This also has a positive benefit for employers. During the pandemic, the Carers UK research already referred to found an increase of around 2.8 million in the number of people who were juggling work and care, the majority of whom were women. Prior to the pandemic, some 600 carers a day were giving up work to care. During the pandemic, as the noble Baroness, Lady Pitkeathley, reminded us, carers have become the backbone of the care system, protecting the NHS and social care in many cases from collapse.
The Carers UK research also found that 72% of carers providing substantial care and working were worried about continuing to juggle care and work, and 77% of carers said that they felt tired all the time at work because of their caring responsibilities. During the pandemic, 23% of working-age carers providing substantial care had given up work, lost their jobs, lowered working hours or lost income if they were self-employed.
As the NHS works to reduce the backlog of care, hospital discharges will become ever more critical, as will support for carers. The two go hand in hand, and we must not fail those who have so selflessly shouldered such a heavy load.
Baroness Altmann (Con)
My Lords, I shall speak to all the amendments in this group, but I have added my name to Amendment 217 in the name of the noble Baroness, Lady Wheeler. There are two separate but related issues in this group of amendments, and it might be helpful for a moment to focus on them. The first is the needs of patients who are facing discharge from hospital. The second is the needs of unpaid carers in situations where patients are sent home from hospital. That second issue is covered particularly by Amendments 219, 221, 225 and 269. I support all of them, and commend the work and the words of the noble Baroness, Lady Pitkeathley, and the passionate speech from my noble friend Lord Young.
I wholeheartedly share the concerns about the repeal of the provisions in the Care Act 2014. The issue of patients needing to be discharged from hospital sometimes seems to be spoken of as if we are discussing objects rather than people.
Baroness Meacher (CB)
My Lords, I added my name to Amendment 219, and I support all the amendment in this group. In view of the number of excellent speeches that have been made, I have given up on my speech and just want to ask the Minister a question. I am sure he finds it completely unacceptable that half of carers who provide significant care for a loved one say they have not even been consulted about a discharge from hospital and two-thirds of them say that they have not been listened to about whether they are able to care for their loved one when that person might be coming out of hospital. I ask the Minister to assure the Committee that he will be able to bring back an amendment on Report on this critical issue.
Lord Scriven (LD)
I support in particular Amendment 217. In so doing, I draw the attention of the Committee to my interests as set out in the register, particularly as a vice-president of the Local Government Association.
I want to make three very clear points about this. First, this amendment refers to assessment; it does not refer to the package of care. The assessment is the first stage, before the social workers and before adaptation or anything else can happen, so the person leaving hospital gets a sense of independence and support to lead as independent a life as possible and to help them in their recovery. Evidence shows that the best way to start the assessment is on the day that the person is admitted. It is not about waiting for an optimal time. The assessment may change as the person progresses, but all the evidence shows that assessment should start on admission. The concept that there is an optimum point does not stand up to the evidence.
Secondly, having this framework within the Bill, with timescales and so on, does not stop local innovation, it just gives a framework for local innovation and integration to take place.
My third point is a question. I know of no condition—unless the Minister can inform the Committee of one—where starting the assessment two weeks after a person leaves hospital is in the best interests of that person; they may have to wait six, seven or eight weeks for the package of care to be put in place. Can the Minister tell us for which conditions the suitable and optimum point at which to start the assessment is after a person has left hospital?
Baroness Bennett of Manor Castle (GP)
My Lords, after this rich and informative debate, I will briefly make two points and offer the Green group’s support for all these amendments.
I share the shock expressed by the noble Baroness, Lady Tyler, and others that we are in a situation where in the House of Lords we are trying to put the situation back to what it was before because the Bill is making it so much worse.
I particularly want to address Amendment 269 about young carers. I should perhaps declare that I have never been carer—I have not been in that situation. But I want to share a little bit of what I learned from Sophie Dishman, who I met in 2015, when she was a student at the University of Sunderland. She told me that she became a carer at about the age of 12, but that it was only when she was 18 that she realised that she was a carer—a point that many others have addressed. As well as continuing to care, she created a campaign at the University of Sunderland to inform others about the situation and perhaps help others identify themselves as a carer. She produced a very clever, witty, attractive tote bag, with the line, “Being a carer at uni can be a lot to carry around”, a check list of all the things that you might have to do being both a student and a carer, and a useful leaflet, designed for staff in particular, showing signs that a carer might need help.
I want to make the point, which I do not think anyone else has made, that young carers are by nature people who have developed an enormous amount of capability, knowledge and skills. They are amazing individuals. It is not only the right thing to do but in society’s interest to make sure they are able, as the noble Lord, Lord Howarth, said earlier, to flourish and develop those capabilities. It is in our interest to do that.
I want to point to an article that has been out for only a couple of weeks, in volume 27, issue 1 of Child & Family Social Work. The headline is
“It’s making his bad days into my bad days”,
and the article is about young carers in the Covid emergency. This is where we are now. It is about just how much more difficult the withdrawal of services has made it for carers, particularly young carers. We have a huge, as yet uncertain, but certainly large, burden from long Covid, and many people will be taking on huge caring responsibilities because of it.
Baroness Walmsley (LD)
My Lords, if the noble Baroness, Lady Pitkeathley, is the general, we are all her foot soldiers. There have been some excellent speeches. In particular, the noble Baroness outlined for us what are, I hope, the unintended consequences of what the Government are doing in their proposals about discharge to assess. It does not seem right that it is up to this House to put back the rights and abilities of carers to do their caring without too much impact on themselves. I hope the Minister heard what the noble Baroness, Lady Pitkeathley, and others, such as the noble Lord, Lord Warner, said about that. We heard from the noble Baroness, Lady Hollins, how much worse the situation has been for so many carers—in particular those who care for people with learning disabilities or mental health problems—during the pandemic, when, unfortunately, it was necessary to withdraw certain services that they normally rely upon. I hope that, when we have heard the Minister’s response, we can come back to Clause 80 on Report if we are not satisfied with the Government’s response, because the situation is not good, even now.
I am grateful to Carers UK and Barnardo’s, which have given us some dreadful horror stories about the situation of carers when the person they care for is being discharged from hospital. One of the worst that I read about was when the carer was only told when the person being discharged was actually in the ambulance on the way home. They had to run around trying to get a commode, which that person would certainly need when they got home. The situation is so much worse for a young carer who does not necessarily know their way around the system in the same way that an adult carer might. Although I support all the amendments in this group, that is why I added my name to Amendment 269 in the name of the noble Lord, Lord Young of Cookham. It is all about the need to identify and ensure appropriate support for young carers before a patient leaves hospital. I really take on board my noble friend Lord Scriven’s view that you should not do it at the end of the stay in hospital: you should start thinking about it when the person goes into hospital.
Caring for a sick or disabled person, no matter how strong the bonds of love, is a difficult and exhausting challenge. It is hard enough for adults, the majority of whom, as we have heard from my noble friend Lady Tyler, are women; we have heard about the effects on their finances and pensions. Many adults do not feel equipped to do it adequately, and it is even harder for children. How can a child be expected to have the knowledge and skills needed to care adequately for an adult and, at the same time, benefit from education and prepare for their own future life?
We know that circumstances sometimes put children in this position, but it is essential that public services provide as much support as possible. However, we know that, although it is estimated that there might be around 800,000 young carers in the whole of the UK, sometimes even their school does not know who they are. In some cases, the young carers themselves prefer it that way, because they see it as a stigma or something that their friends might not quite understand; but it does mean, of course, that they do not get the help that they need, and neither does the person being cared for.
I agree with the noble Baroness, Lady Wheeler, that a proper assessment must be done either before the patient leaves hospital or very promptly post discharge. I hear all the problems about that; yet, carers, according to an ONS report in 2017, save the state more than £60 billion every year, which is more than is spent on formal caring—although it is not clear how much of that is saved by young carers. On the other hand, it has been assessed that a family with a young carer has an income, on average, £5,000 a year lower than other families—so these families are often poor too.
Local authorities already have considerable duties relating to identifying, assessing and supporting young carers, and we have heard of at least two very good schemes. Many of them do it very well, despite the fact that some of these young people are hard to find. However, it is essential that some duties also apply to the NHS, and they must not be lost in the move to integrated care systems. Adequate focus must be placed on these duties by the ICB having a rigorous system or framework to ensure a process for assessment. As my noble friend Lord Scriven pointed out, this is step one in ensuring that needs are subsequently met.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
My Lords, I thank all noble Lords for their contributions to this debate. We are looking to move towards a more integrated care system for precisely some of the reasons that noble Lords have laid out: that a patient is discharged by a hospital but it is not done in an integrated way. As the noble Baroness, Lady Wheeler, said, during the pandemic local authorities and the NHS developed innovative ways to support better discharge from hospital to community care, and what we want to see is discharge to assess as one model. In some cases, it might be the best model: for example, where people are over the age of 80, the longer they stay in hospital, the more you see muscular deterioration. That is one of the reasons given for why, in some cases, discharge to assess might be the most appropriate.
Lord Warner (CB)
I am sorry to interrupt the Minister’s flow. I have been listening very carefully to this. What I do not understand is what happens if there is not enough resource in the local authority. Local authorities have had pretty poor treatment over the last decade compared with the NHS. If there is not enough resource to either do an assessment or meet the needs of that assessment, does it then fall to the NHS to plug the gap if it wants to get the person out of hospital? We would like a little more clarity on that particular aspect.
Lord Kamall (Con)
I thank the noble Lord for his question. The goal is to make sure that the NHS and local authorities work better together. The noble Lord talks about resources. One of the reasons for the levy—whatever one thinks of it—is to help plug that gap and to make sure that there is more money going into social care as well.
Turning to the points made about the term “carer”, we believe that the term is used to capture the whole spectrum of carers, including children and adults who care, unpaid, for a friend or family member. By not imposing a statutory definition, we avoid inadvertently excluding groups, and ensure that ICBs and NHS England promote the involvement of all types of carers and representatives.
Turning to the last amendment in this group, existing legislation already requires local authorities to carry out an assessment of need for all young carers upon request or on the appearance of need. This assessment must consider whether it is appropriate or excessive for the young carer to provide care, in the light of the young carer’s needs and wishes. Indeed, as some noble Lords have said, sometimes what happens is that the hospital may decide it is appropriate but those who are supposed to be doing the caring at home do not feel they have the ability.
We hope that under this, as part of the discharge planning, the current discharge guidance can set out any considerations that should be given to young people in the household who have caring responsibilities. We want to strengthen current processes in respect of young carers too. We are also working with the Department for Education to ensure that protections for young carers are reflected in the new guidance, including setting out where young carers should have a needs assessment arranged before a patient for whom they provide care is discharged, or as soon as possible afterwards.
Given the comments from noble Lords, especially the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Warner—sorry, I should say, General Pitkeathley and Major Warner—clearly there are still some concerns over how this will work. It would be worthwhile having some more conversations on this issue to better understand how we see integrated care working, where there may well be gaps in our understanding and whether we can help to close the gaps between the two sides.
Baroness Wheeler (Lab)
My Lords, it has been an excellent debate and I thank all noble Lords for their contributions, all strongly supporting this important group of amendments, which would ensure that the needs of both patients and carers were fully taken into account in the discharge process and that Clause 80 does not just wipe away carers’ rights—legal rights that have been hard-fought for. Although I am pleased that the Minister talked about further guidance being developed and co-produced, I cannot see how that will address the problem of replacing carers’ rights, which are being taken out of this Bill and need to be included in it.
I am also a bit disappointed that the Minister did not respond to my noble friend Lady Pitkeathley or give her the reassurances that she was seeking over the deep concerns about the expectation in the current guidance that unpaid carers will need to take on even more unpaid work. She made her views quite clear on this: it is paid work that unpaid carers need, not to be forced on to or to stay on benefits. They can take up jobs only if they get the care and support that is needed in the home or from the services that they need.
Noble Lords have made it clear that the discharge to assess model has to be matched with proper funding and community and healthcare services. The noble Baroness, Lady Hollins, reminded us of the importance of this in respect of the carers of people with learning difficulties, who face particular problems in caring. It is also overwhelmingly clear that noble Lords strongly support the establishment and the carrying forward into the Bill of existing carers’ rights.
I hope the Minister will meet urgently with my noble friend Lady Pitkeathley, Carers UK and others involved in these amendments, both to address the fundamentally wrong assumptions in the guidance about the role of unpaid carers and to ensure that their existing hard-won legal rights that have been taken away will be included. He also needs to provide the evidence called for by my noble friend on the overall assumption the Government are making that the discharge to assess process is better for carers than the existing rights that they have; it is not. This is a key issue that we will return to on Report, so I hope some action will be forthcoming from the government discussions between now and then.
On my own amendment, I would like to have heard a lot more reassurances about the timescales and timelines involved in the discharge process. I thank the noble Baroness, Lady Altmann, and in particular the noble Lord, Lord Scriven, for his support, and for explaining why this issue is important and how, practically, it would work with local authorities. On young carers, I particularly thank the noble Lord, Lord Young, and everybody who has participated in that.
I remind the Minister of the point from the noble Baroness, Lady Meacher: in the discharge process and in the assessments of carers it is really important that the question be asked whether they are able to care and whether they want to care. I would like the Minister to take up that issue. I know that carers feel strongly about this, but quite often, even if they are asked, no notice is taken and they just have to get on with it and nothing else happens. I would particularly like to see a response to that.
On those few points, I beg leave to withdraw my amendment. I hope the Minister acts quickly to meet carers and their representatives.
Baroness Thornton
“Cap on private charges
(1) Section 43 of the National Health Service Act 2006 is amended as follows.(2) After subsection (2A) insert—“(2B) An NHS foundation trust does not fulfil its principal purpose if in any financial year the proportion of the total income of the trust derived from private charges is greater than in the previous financial year unless—(a) the appropriate integrated care boards and integrated care partnerships have been notified of the intention that this increase will occur;(b) that intention has been published with a statement of the reasons why it is considered to benefit the NHS;(c) the appropriate integrated care boards and integrated care partnerships have used reasonable endeavours to consider any responses to the publication mentioned in paragraph (b); and(d) any integrated care board which has commissioned services from the trust, and the integrated care partnership for the board, have informed the NHS foundation trust that the proposed increase is justified.(2C) For the purposes of subsection (2B) “private charges” means charges imposed in respect of goods and services provided to patients other than patients being provided with goods and services for the purposes of the health service.””Member’s explanatory statement
The amendment prevents any Foundation Trust from increasing its income from private patients unless this is agreed by the relevant commissioning bodies and the appropriate integrated care partnerships.
Baroness Thornton (Lab)
My Lords, Amendments 222 and 223, in my name, seek clarification about the private charges cap. Amendment 222 would prevent any foundation trust increasing its income from private patients unless this was agreed with the relevant commissioning bodies and the appropriate ICB. Amendment 223 would remove the power for NHS trusts and foundations to form subsidiary companies.
When foundation trusts were introduced in 2003, they were restricted in the amount of private patient work they could carry out. That was, in part, to alleviate concerns that they might unduly focus on generating income from private patients rather than tackling the then considerable waiting lists. The compromise stood for many years and proved to be little hindrance, although there is one trust on record that declined to move to foundation trust status because it did have a large private patient income—I will leave it to the Minister to work out which one it was. Overall, the regulations have been sufficient to ensure that such activity did not grow and waiting lists came down. The restriction only ever applied to foundation trusts—not to plain old NHS trusts, although we all know that they are, of course, subject to the will of the Secretary of State in all things anyway.
The notion of independence was reinforced under the new settlement of the 2012 Act. That removed the restrictions and allowed, at least notionally, for a foundation trust to move to have up to 50% of its income from private patients. Although there were some claims that this would lead to a huge acceleration of private patient work, once again that did not prove to be the case.
Now we arrive at today. The new Bill is based on the assumption that the logic of competition between acute trusts is indeed minimised and that they should be more focused on general good, and less on autonomy and their own bottom line than on co-operation between different parts of the NHS in their locality. Logic suggests that in this new world we should once again look at ensuring that private patient work has no adverse impact on the core work of the NHS. These amendments are similar to those that were used to ensure that private interests cannot be allowed to influence the work of ICBs, and that that should be recognised in the Bill.
I have another three, very detailed pages, but I will spare the Committee those. I beg to move.
The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)
I thank the noble Baroness very much indeed. That makes it 15 all, I think.
The noble Baroness, Lady Brinton, is participating remotely, and I invite her to speak now.
Baroness Brinton (LD) [V]
My Lords, I too will be extremely brief on this, given the hour and the number of groups we have to go through.
I am very interested to hear the response of the Minister on this; it feels as though there has been a sort of gentle relaxation, and it would be good to understand the boundaries for foundation trusts around how much they can increase their income from private patients at exactly the time when we have a phenomenal NHS waiting list and people are becoming more seriously ill as a result of the pandemic and there are delays in getting their treatment.
I say this particularly in the light of two recent comments—as I will call them—by the Secretary of State for Health. One was about increasing the amount of contracting from the NHS to private hospitals to perform large numbers of investigations as part of the backlog, but this is becoming habit now in this exceptional time—we have bad flu winters as well, but this is an exceptional time. Perhaps slightly more worryingly, the other concerns proposals that were outlined, informally, by the Secretary of State a couple of days ago to change entirely the nature of contracts with GPs. I am concerned that some of the structures, particularly for foundation trusts, are being loosened without Parliament being aware. I look forward to the Minister’s response.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure to follow the noble Baronesses, Lady Thornton and Lady Brinton. I too will be brief. I have attached my name to the first of these amendments because it addresses such an important issue. We are seeing more and more signs of real competition between the resources being used for private work and for public purposes, for which the NHS is there. A report in the Guardian this month said that in January 2021, when there were enormous Covid pressures on hospitals in London, doctors wrote to their medical consultants begging them to reduce their private work so that their availability to those hospitals was greater. That is a measure of how Covid has accelerated and put extra pressures on the NHS.
I will quote from the websites of two hospitals, which I will not name; to do so would be unfair, as I suspect that they are very typical. One says:
“All profits from the provision of our private patient services are used to support the delivery of NHS clinical care for the benefit of all patients.”
Therefore, it is very easy to see how well-meaning people might say, “Well, if we do more private work, then we’ve got this money to put into our horribly underfunded public work”, but that is taking away terribly limited resources, particularly staff and staff resources, as we have discussed in considering so many other amendments. The other hospital’s website says of its private provision that it offers
“rapid access and flexibility for a wide range of conditions and care needs … the unit can also care for those patients admitted through”
the hospital’s
“emergency department who may wish to make use of their private insurance or indeed pay for their private care themselves.”
As noble Lords know or will recognise from my accent, I come from Australia, which has a two-tier system. Many people with resources have medical insurance, and the poorer people do not. There are clearly two utterly different levels of service, which means there is much less advocacy for, support for and fighting for public provision. If we look at the trend of travel, the amendment tabled by the noble Baroness, Lady Thornton, is important and must be thought about in the context of foundation trusts and much more broadly.
Baroness Chisholm of Owlpen (Con)
Well done. You need Baronesses to do this: they get to the point and get it done.
I thank noble Lords for explaining these amendments. As they may recall, in 2012 we abolished the private patient cap while clarifying that the foundation trusts’ principal purpose is
“the provision of goods and services for the purposes of the health service in England”.
This means that foundation trusts must make the majority of their income from NHS activity and must always have as their primary purpose the delivery of NHS services. We also retained the requirement that additional income should be used to benefit NHS patient care, and it has been used across the system to offset such things as maintenance costs, to finance alternative transport such as park and-ride and to fund patient care.
This amendment would introduce a new cap by requiring foundation trusts to agree with their ICB and ICP their income from non-NHS sources. However, this would be a significant bureaucratic burden on foundation trusts and would require them to forgo raising additional income or seek agreement via a multi-stage process before doing so. It would also mark a significant new restriction on foundation trusts’ freedoms and autonomy.
Similarly, Amendment 233 would restrict the freedom of NHS organisations to decide locally the most appropriate structures they need to support their operations. There are multiple reasons for trusts setting up subsidiary companies, including providing services for other trusts and being able to attract staff from the local employment market. Creating a subsidiary can also be an alternative to outsourcing services to the private sector, thereby maintaining its staff within the NHS family. Importantly, in November 2018 NHS Improvement issued guidance to trusts about forming or changing a subsidiary. Under that guidance, all subsidiary proposals must be referred to NHS Improvement for review. NHS England and NHS Improvement paused their update of the guidance to trusts on subsidiary companies to allow the sector to focus on supporting the response to Covid-19 and the recovery of services. However, we remain committed to the review and the publication of this updated guidance is now set for early summer 2022.
I hope I have given the noble Baroness sufficient reassurance for her to withdraw the amendment.
Baroness Thornton (Lab)
I thank the Minister and am very pleased indeed to hear about the review. However, we on this side of the House believe that the NHS should be the default provider of clinical services and, if it is not the only provider, it should be the predominant one in geographical and service terms. That means that there must be investment in the NHS, not in the private sector. It is that balance, which we must ensure is in this Bill, that has protected NHS clinical services in the past.
I will read what the noble Baroness has said very carefully, and I might need further reassurance in due course. I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
“Access to NHS dentistry
The Secretary of State must, within one year of the passing of this Act, publish a statement setting out what measures the Government is taking to ensure universal access to NHS dentistry.” Member’s explanatory statement
This new Clause would require the Secretary of State to publish a statement of what measures the Government is taking to ensure universal access to NHS dentistry.
Lord Hunt of Kings Heath (Lab)
My Lords, I hope that I do not slow us down again after the provocative words of the noble Baroness, Lady Chisholm, but I am going to talk about access to dental treatment and fluoridation. Although the House is somewhat empty, I expect that as the debate goes on it might fill up a little.
We had an Oral Question this afternoon about dentistry, and I do not want to repeat everything that was said then. I have enjoyed debating dental issues with the Minister, the noble Earl, Lord Howe, for many years. He will know that there is widespread concern about the lack of access to dentistry. At Oral Questions the Minister, the noble Lord, Lord Kamall, referred to the £50 million that had been provided, but I am afraid that the 350,000 treatments that it will pay for are a drop in the ocean compared with the 38 million patient treatments that have been lost as a result of the pandemic.
Many people are finding accessing dentistry almost impossible at the moment. The Minister referred earlier today to people being able to use the access centres, and to the 111 service, but I am afraid that it has broken down in many parts of the country. One is led to the conclusion that dentistry issues are not a priority. Many adults and children are suffering in pain because of their lack of access. The Government must focus on this and develop a proper strategy. I pay tribute to Healthwatch for its work in this area—it has had a lot of interest from members of the public—and to the BDA for its briefings.
Treatment is one thing, prevention is another. Here, I must remind the Committee of my presidency of the British Fluoridation Society. This brings me to effective preventive measures. I welcome Clauses 147 and 148. Unfortunately, the noble Lord, Lord Scriven, is not here to hear me say this, but essentially, giving this responsibility to local authorities has proved to be a failure. Not one local fluoridation scheme has gone through under the auspices of local authority leadership, and we must conclude that leaving it to local authorities is likely to mean that we will not see fluoridation developed in any part of the country.
So this is a national issue and it is right that the Secretary State should take over responsibility; it is also right to acknowledge that, in September last year, the four Chief Medical Officers stated:
“As with all things in medicine and public health there is a balance of risk and benefit.”
We have certainly learned that in the last two years. As they said:
“There is unquestionably an issue with tooth decay in the UK and an entrenched inequality which needs to be addressed. Fluoridation of water can reduce this common problem … On balance, there is strong scientific evidence that water fluoridation is an effective public health intervention for reducing the prevalence of tooth decay and improving dental health equality across the UK. It should be seen as a complementary strategy, not a substitute for other effective methods of increasing fluoride use.”
I think that is a very wise assessment of the situation. The effectiveness of fluoridation of water supplies to improve oral health has been evident for many decades. Some communities such as my own—Birmingham—have taken advantage and, as a result, we generally enjoy good overall oral health, but progress in spreading these benefits has been very slow. The transfer to local government, I am afraid, did not work.
So I strongly support the thrust of these clauses; in fact, they are the two most welcome clauses in the whole Bill. The question, however, is whether they will bite, and this is what lies behind my amendments. Amendment 260 concerns the consultation process. I do not think I have got the wording in quite the right place—frankly, trying to find my way through the Water Act and changes to it over the last 20 years or so proved beyond me—but the intent is to ask: if there is to be consultation about schemes, please can we move away from the local consultations that have to be gone through at the moment? They are an absolute nightmare. They bring out opposition from national bodies that causes mayhem in the locality.
The issue is not the practicalities of the scheme but about going back over the principle. The very fact that the Government have brought these clauses has decided the principle of the benefit of fluoridation. If there is to be a consultation, for goodness’ sake, let us have just one instead of the myriad local consultations that have obviously got in the way of progress in the past.
My Amendment 261 is part probing. Currently, the Bill gives the Secretary State power to make regulations to require a public body to meet the costs to the Secretary of State in relation to fluoridation schemes. I would be interested to hear from the Minister the reasons and circumstances under which they would be used. My concern would be that asking too hard a subvention of local bodies might inhibit the progress of fluoridation schemes. Amendment 262 requires the Secretary of State to ensure that a programme for implementing water fluoridation schemes is established within 12 months of the Bill being passed. I would like to see a report every three years, laid before Parliament by the Secretary of State, on the progress made in implementing new water fluoridation schemes. The basic purpose would be to ensure that the Government get on with this, establishing more schemes and spreading the benefits across the entire community as soon as possible. I beg to move, and hope that I have met the noble Baroness’s test.
Baroness Northover (LD)
My Lords, I will speak in support of Amendments 260, 261 and 262 in the name of the noble Lord, Lord Hunt, on water fluoridation.
The NHS rightly prides itself on being evidence-based. Nevertheless, when Ara Darzi became health Minister, he was concerned that, in a number of areas such as the treatment of diabetes, there was not a full assessment of regular outcomes, as opposed to the fantastic clinical trials on new treatments for specific diseases. Hence, he introduced his atlas of outcomes. It showed, for example, absolutely unacceptable different outcomes for diabetes if you lived in Cornwall—where you were more likely to lose a leg—compared with Essex. There were serious lessons to be drawn from that, which needed to be applied in other areas, too.
Lord Reay (Con)
My Lords, I have added my name in opposition to Clauses 147 and 148 standing part of the Bill—tabled by my noble friend Lady McIntosh of Pickering and supported by the noble Baroness, Lady Jones of Moulsecoomb. These clauses enshrine the Government’s intentions to expand the rollout of water fluoridation throughout the UK. In case the House should decide that they remain, I will also speak to Amendments 259B and 259D in my name, which would make the implementation of the policy conditional on an environmental impact assessment and the analysis of recent US Government-funded, peer-reviewed studies.
My noble friend Lady McIntosh apologises for not being present in the Chamber today, as she has been pinged. However, she wanted me to convey her support of Amendments 259B and 259D.
It is most unfortunate that the important topic of water fluoridation has not been granted a full debate of its own in this House. That it has been slipped in by these back-door clauses does a huge disservice to the issue and detracts from the important debate over the Health and Care Bill itself. These clauses in effect ride roughshod over the current status quo on water fluoridation in terms of legal precedent; they also ignore the existence of effective alternative strategies for fighting tooth decay, as practised not only in Scotland but in most other countries in the world.
While roughly 10% of the population lives in artificially fluoridated communities, it is true that no areas have been added since the late 1980s. Successive Governments have tried to increase the coverage but have failed, including in Southampton a few years ago, because the measure meets stubborn resistance from local communities, who do not wish to be mandated to drink fluoridated water. In Scotland, Lord Jauncey in the case of McColl v Strathclyde Council 1983 concluded that fluoridation amounted to illegitimate medical treatment via the public water supply. Since then, the health service in Scotland has focused on other measures to improve children’s oral health, with a considerable degree of success.
The government policy paper used to support the insertion of these two unfortunate clauses appears to report only what the fluoridation proponents want Ministers to hear: namely, that the practice benefits teeth and poses no threat to the rest of the body. However, four high-quality US Government-funded studies published since 2017, all peer reviewed, looked at the effects on the brain. Each one reached concerning conclusions. The first of these studies, by Bashash et al, appeared in the high-impact journal Environmental Health Perspectives in 2017. This mother-child cohort study showed a four-to-five-point loss of IQ in offspring associated with maternal fluoride intake, typically experienced in a fluoridated community. Some 300 mother-baby pairs were followed for 12 years, with a mother’s fluoride exposure measured directly via urinary fluoride level, and the paired offspring’s IQ was measured at four, and at six to 12, years of age.
Since this study a further three, similarly robust US- Government funded studies—Bashash 2018, Green 2019 and Till 2020—all point in the same direction: damage to the infant brain, IQ loss, and/or increased ADHD symptoms associated with fluoride exposure at the doses experienced in artificially fluoridated communities—which, I might add, were at lower fluoridation levels than those considered for the UK, with 0.7 ppm versus 1 ppm. According to Dr Philippe Grandjean from Harvard University,
“Fluoride is causing a greater overall loss of IQ points today than lead, arsenic or mercury.”
Another recent study in 2015 by Professor Stephen Peckham, an adviser to the Select Committee on Health and Social Care, chaired by Jeremy Hunt, showed that incidences of hyperthyroidism are nearly twice as likely to report high prevalence in the West Midlands, which is a fluoridated area, in comparison to non-fluoridated Greater Manchester. Professor Peckham’s study has been omitted from the policy paper’s references. So, too, has the conclusion of the important 2015 Cochrane review, which found as follows: no strong evidence that fluoridation reduced tooth decay in adults; no strong evidence that tooth decay increased when fluoridation was halted in a community; and, contrary to claims from promoters that fluoridation helps low-income children, it found:
“There is insufficient evidence to determine whether water fluoridation results in a change in disparities in caries levels across”
socioeconomic status. All these scientific findings are extremely important, but I find it very worrying that they appear either to have been ignored or dismissed by the authors of this policy paper. Amendment 259D commits the Government to have these four US studies reviewed by expert toxicologists.
I turn to the matter of why fluoride in the UK is not considered a medicine when the WHO has recently classified it as such. Why do the Government refuse to do the same? They contend that water fluoridation has a medical benefit in terms of reduced tooth decay. Could it be that by defining fluoridation water as medicine, the Government then submit themselves to regulation and scrutiny? The MHRA is responsible for the licensing requirements for medicinal products. If fluoridated water were treated as a medicine, individuals would then have the absolute right to refuse the administration of water fluoridation by choice, and industrial-grade fluoridating chemicals would not be allowed. Of course, if it were defined as a medicine, it could not be administered without consent. When fluoride is delivered via toothpaste, the individual has a choice in the matter. When it is carried through the public water supply, there is no individual choice and the ingested fluoride goes to every tissue in the body, including those of the unborn child. This is particularly unfortunate for lower-income families, who cannot take avoidance measures such as bottled water or filters. Moreover, there is no assessment of individual health, size, dose, physical and mental state. Contrary to the direction of modern medicine, whereby treatments are increasingly tailored to the individual, water fluoridation is a crude, one-size-fits-all strategy.
The legality of the Government’s determination to avoid defining water fluoridation as medicine is questionable. The Supreme Court of Canada in the Municipality of Metropolitan Toronto case in 1957 held that fluoridation was using the water supply for a medicinal purpose, which was separately reaffirmed by Lord Jauncey years later. The Lord Jauncey decision explains why Scotland has no communities with artificial fluoridation. The Scottish health department, to its credit, instead has developed an exciting programme called Childsmile. This is a programme of early education on both dental hygiene and diet. It involves both schools and parents and has proved successful and cost effective. Not only has dental decay been reduced but the overall health of children in terms of fighting sugar consumption and obesity has been improved. This programme is relevant to the cut and thrust of the Bill but it has been ignored in the policy paper. Given the success of Childsmile in Scotland, can the Minister say whether the Government will consider a rollout of this programme throughout the UK?
It is conservatively estimated that only 2% of the water supplied by water companies is consumed by domestic users. This would mean that 98% of the water containing fluoride would re-enter waterways, with the potential for damaging plant and aquatic life and entering the food chain. Under the EU dangerous substances directive, fluorides are classified as deleterious to the aquatic environment. Last month, the Environmental Audit Committee in the other place published a report concluding that a chemical cocktail is polluting English rivers and putting public health and nature at risk. We must refrain from adding fluoride to the toxic mix. I add that, in addition to the toxicity of fluoride itself, contaminants such as lead and arsenic are often present in the industrial-grade fluoridation chemicals used. These frequently derive from the hazardous waste of the phosphate fertiliser industry. Given the repercussions for the environment, our waterways, animals, fish and other wildlife from this policy, it seems surprising that Defra does not appear to have been involved in the decision-making process for water fluoridation. Perhaps the Minister can explain why.
Last year, we heard the Secretary of State for Health and Social Care announce that £10 million will be charged to water bill-payers for the rollout of water fluoridation. However, I suggest that it will cost taxpayers considerably more. Greater Manchester has around 22 treatment plants, which would need to be refitted for £1 million to £2 million each. Using a back-of-the-envelope calculation, to cover parts of the UK not already fluoridated will conservatively cost in excess of £300 million, excluding chemicals or running expenses. The policy paper fails to reveal how much the proposals will actually cost.
Perhaps the Minister can share with us the forecasted costings of rolling out water fluoridation throughout the UK in terms of plants, chemicals and other extraneous expenses. In addition, have Her Majesty’s Treasury, the Public Accounts Committee or any respected independent bodies such as the Office for Budget Responsibility or the IFS scrutinised the real costs and their effect on the public finances and health budget? Will these unknown extra costs be met by cuts to NHS dental departments or other parts of the health budget? This money would be far better spent on early intervention on dental hygiene and diet, as in the Scottish Childsmile programme.