Health and Care Bill

Debate between Lord Blencathra and Lord Hunt of Kings Heath

Consideration of Commons amendments
Tuesday 5th April 2022 Lords Chamber

[Lord Blencathra (Con)]

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

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

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

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

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

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


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

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

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

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

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

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

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


alongside a link to a site listing:

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


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

[Lord Hunt of Kings Heath (Lab)]

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

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


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

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

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

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

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

Health and Care Bill

Debate between Lord Blencathra and Lord Hunt of Kings Heath

Committee stage
Wednesday 9th February 2022 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I support the amendments in the names of my noble friend Lady Nicholson of Winterbourne and myself. I pay tribute to her for raising this issue of vital importance to women, and for being their champion over many years in the face of some bitter attacks from a minority of trans zealots.

I must say to the noble Baroness, Lady Brinton, that I resent the implication that somehow we are attacking trans people in these amendments. There is no conspiracy against them; we want equal treatment for everyone in the NHS. If there is any conspiracy it seems to be to demean the status of women. I also say to her that, yes, if these amendments were accepted, NHS policy would have to change to comply with the law of the land—the Equality Act 2010—because it is in breach of the exemptions in that Act at the moment.

As we all know, there is no real privacy in hospitals, however hard they may try. If one ties that funny gown the wrong way, like a dressing gown, one’s front is exposed; if one ties it properly, the rear is exposed. Even when one is recovered and wearing pyjamas or female bed attire, it is impossible in a hospital to carry out the routine of getting into and out of bed, and using the washing and other facilities, without some part of one’s anatomy being exposed. Many patients neglect to close or lock washroom doors. Some with mental health problems may express sexual disinhibition. When doctors come round and pull the screens around the bed, of course, there is still the discussion of one’s condition and the medical profession’s obsession with bowel movements, as we all know about.

I am old enough and ugly enough not to care what parts of my body medical professionals see. They have all poked, prodded and cut out various bits of it over the years so I am reasonably immune to embarrassment with them. However, I would find it highly embarrassing if I found a woman, or a man declaring as a woman, in the next bed and encountered her in the ablutions. Of course, it is highly unlikely that I would meet a woman since an infinitesimally small number of women identify as men, but many more men identify as women.

All my life, there has been an NHS policy of single-sex wards and Governments of all colours have been slammed on those occasions when men and women were sharing hospital accommodation. The policy is that patients should not have to share sleeping accommodation, nor toilet or bathroom facilities, with members of the opposite sex. The operative word is “sex”—biological sex, not gender.

Since we are speaking about women, sex and hospitals, I will put some astonishing medical information on the public record which has resulted in some women being sacked or abused for saying it. I stand to be corrected by medical experts present. I believe that only women can give birth to children, since only women have wombs. No matter what one declares one’s gender to be, only men get prostate and testicular cancer. Only women can breastfeed their children and men who have chests cannot. The sex of babies is not assigned at birth. Babies are born as boys or girls, and that includes those born with those rare congenital disorders of sexual development. No one decides to assign male or female to a baby; they are born that way, so that is why the term “sex assigned at birth” is so offensive.

In the course of daily life, working in most jobs or going to the pub et cetera, sex and gender do not matter and one can call oneself what one likes. But when it comes to medical treatment, two vital factors can determine the diagnosis and that treatment. These factors are age and sex. Sex is the only thing which matters medically, not gender, and that was always the case until the mistaken guidance issued in September 2019. The NHS always recognised that single-sex accommodation was essential not only for a patient’s privacy and dignity but for their treatment and recovery. Doctors recognised that patients in distress for whatever reason cannot recover as easily as those who are comfortable in their surroundings, and who are not fearful of people of the opposite sex seeing their body at a time when they are at their most vulnerable. That is why the NHS guidance stated in absolutely unambiguous terms:

“There are no exemptions from the need to provide high standards of privacy and dignity at all times”.


As my noble friends have pointed out, it all went haywire in annexe B of the guidance, which failed to implement the Equality Act 2010 and said that trans people should be accommodated according to their self-identification, which the guidance says

“may not always accord with the physical sex appearance of the chest or genitalia”.

It goes on to say that

“pre-operative transgender people should not share open shower facilities.”

I am sure that Jewish or Muslim women find it immensely reassuring that they can be in a shower with a man, so long as he has had some operation on his genitalia.

This is the advice I received from a Jewish expert in medical ethics. The religious requirements of Orthodox Judaism mandate single-sex facilities for both men and women where people are likely to be in a state of even partial undress. This includes the requirement for single-sex hospital wards, bathrooms and changing rooms. The distress, both psychological and spiritual, that is likely to be caused to Orthodox Jews if they are forced to share facilities with members of the opposite sex is considerable, as is the impact on the patient’s family. Orthodox Jews are protected under the Equality Act on the basis of their religious belief. It would be wholly unacceptable if an Orthodox Jewish woman were to be counselled by NHS staff into accepting the presence in the bed next to hers of a male patient who identifies as transgender. That is the advice I have received on Orthodox Judaism. I do not know, but I assume that the requirements of Islam are similar.

The needs of these women should apply to all women, whether religious, atheist or pagan, and not just those with particular religious beliefs. What is wrong with NHS guidance Annex B is that the Equality Act 2010 specifically exempts hospitals and the provision of joint services where a joint service for persons of both sexes would be less effective and in circumstances where a person of one sex might reasonably object to a person of the opposite sex.

I say to the Minister that the law is clear: women have the right to be kept in hospital accommodation with only other women. One of course exempts intensive care units, where patients are unconscious or nearly unconscious; their medical treatment is best served by all being in the same specialist unit together. I call on my noble friend the Minister to withdraw this flawed guidance on transgender patients and instruct the NHS to comply with the law of the land.

I will say a brief word on Amendment 297F. I have read the reports that some NHS trusts have logged women as transphobic, when all they have done is request single-sex accommodation and not to be in a bed next to a man who identifies as a woman. There are a few reports of this. It is nothing to do with anyone on Twitter posting a rant about some hateful person next to them; it is ordinary women saying, “Please can I be in a room where I do not have a man next to me?” It is as simple as that. I am told they are recorded as being transphobic, merely for making that request.

I asked my noble friend, in a Written Question, what evidence he has of this. He said that unfortunately —or fortunately—the NHS does not collect this information centrally; it is left to the trusts. I accept that, but I would like my noble friend to issue an instruction to all NHS trusts that it is perfectly legal for a woman to make this simple request and that she must not be stigmatised as transphobic for asking. That is completely separate and quite different from anyone who makes racist, offensive, threatening or genuinely hateful transphobic remarks.

There must be no discrimination against trans people in hospital or discrimination against anybody. Our amendment makes it clear that trans people must receive equal medical treatment, but that does not mean that their gender identity wish must be accommodated over and above the wishes of people of the opposite sex. If there were a finely balanced conflict of rights here, I would take the view that those demanding it is their right that their gender identify should take precedence over women’s sex are wrong and the rights of women should prevail. But there is no fine balance here. In my opinion, the NHS is breaking the Equality Act 2010, and I request that it obeys it as soon as possible.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I want to ask the Minister a brief question. The contention is that there is a tension between the NHS England guidance on single-sex wards, which is eminently sensible, and Annex B. I would be grateful if the Minister could respond on that specifically. In particular, he knows that under Schedule 3 to the Equality Act, on single-sex services, to which the noble Lord referred, it is permissible for the NHS to provide separate accommodation for women who are biological females. But my reading of Annex B is that it excludes that option. Again, I ask the Minister for the Government’s view on this.

My main reason for intervening is to say this. Surely there is a case now for a government review of the guidance. The Minister will know that the Equality and Human Rights Commission will shortly be updating its guidance on single-sex services. Clearly, it would be very sensible to review the NHS guidance in the light of that. An assurance that this will happen would be very appropriate.