Report (4th Day) (Continued)
172: After Clause 164, insert the following new Clause—
“Dispute resolution in children’s palliative care
(1) This section applies where there is a difference of opinion between a parent of a child with a life-limiting illness and a doctor responsible for the child’s treatment about— (a) the nature (or extent) of specialist palliative care that should be made available for the child, or(b) the extent to which palliative care provided to the child should be accompanied by one or more disease-modifying treatments.(2) Where the authorities responsible for a health service hospital become aware of the difference of opinion they must take all reasonable steps—(a) to ensure that the views of the parent, and of anyone else concerned with the welfare of the child, are listened to and taken into account;(b) to make available to the parent any medical data relating to the child reasonably required to obtain evidence to inform the parent’s proposals for the child’s treatment (including obtaining an additional medical opinion);(c) to allow the provider of an alternative treatment that is being advocated by the parent to provide evidence, in person or remotely, to the mediation process and subsequently to the court;(d) to demonstrate the reasons that significant harm would be likely to be caused by the proposed treatment; and(e) where the two parties are unable to resolve their difference of opinion, to allow for a mediation process, acceptable to both parties, between the parent and the senior doctor with overall clinical responsibility.(3) Nothing in subsection (2) requires, or may be relied upon so as to require, the provision of any specific treatment by a doctor or institution, and in particular nothing in subsection (2)—(a) requires the provision of resources for any particular course of treatment; or(b) requires a doctor to provide treatment that the doctor considers likely to be futile or harmful, or otherwise not in the best interests of the child.(4) In this section—“child” means an individual under the age of 18;“health service hospital” has the meaning given by section 275 of the National Health Service Act 2006 (interpretation);“parent” means a person with parental responsibility for a child within the meaning of the Children Act 1989.(5) Nothing in this section affects—(a) the principle of the best interests of the child,(b) the law about the appropriate clinical practice to be followed as to—(i) having regard to the child’s own views, where they can be expressed; and(ii) having regard to the views of anyone interested in the welfare of the child, whether or not a person concerned with the welfare of the child within the meaning of this section.”Member’s explanatory statement
This amendment aims to ensure that disputes between parents and doctors will be able to engage effective mediation.
My Lords, we now come to the very real problem that relates to the power differential between a doctor and the parents of a sick child. I am most grateful to all who have met me and discussed the amendment, particularly some senior paediatricians and the charity Together for Short Lives, and for support from the Charlie Gard Foundation in redrafting this amendment.
The amendment has been carefully redrafted in the light of comments made on the earlier version. Everyone I have spoken to has recognised that problems sometimes arise. In its 2018-19 review, the Nuffield Council on Bioethics observed common themes behind disagreements —communication issues, differing perspectives on what kind of risks could justifiably be taken, feelings of powerlessness for both parents and staff, and delays in seeking resolution interventions. Among the recommendations is mandatory communications training, as in proposed new subsection (2)(a) in the amendment, and the timely use of effective resolution interventions such as mediation, as in proposed new subsection (2)(e). When parents, as most do, have looked up their child’s condition on the internet, they often come across suggested treatments on different websites or by talking to medical contacts that they have. Clinicians can feel threatened by that.
When parents are worried, they can come across as angry or difficult in their attempt to get information or get something done. All too often, they are labelled as overanxious. Yet, is it normal to be out of your mind with worry if your child, whom you adore, looks as if they might die.
This amendment tries to provide a route for everyone to communicate better, and for the temperature to be lowered. It applies where there is a difference of opinion between the parents and the responsible doctor when a child is thought to be nearing the end of life. When staff become aware of a difference of opinion, the clinicians need to listen to the parents, and others concerned with the child’s welfare, who may have important information to inform thinking. Parents who want to seek a second opinion want to know the results of tests, such as radiology, for example, and, at the moment, they must go through a complex and sometimes slow process to access the information. Sadly, some parents only find out what was in the clinical record after their child has died. Of course, if there is any suspicion of child abuse, subsection (2)(b) would not apply, as it would be outwith the “reasonable steps” criterion.
Where another clinician from a reputable centre is suggesting a treatment, they should be asked to explain it, and the evidence base behind the suggestion, to avoid distortion of messaging—hence, subsection (2)(d) of the amendment. Clinicians, in explaining why they oppose a proposal, need to be able to explain to the parents what the “significant harm” in the proposal is. When taking any clinical decision, harms and burdens are weighed up against potential benefit. If a child is going to be taken into care, the test is whether it is of “significant harm” to leave the child where they are, rather than be taken into care. In some ways, this is similar, because the clinicians are being asked to show that it is significantly harmful for the child to pursue the parents’ proposal, rather than continuing with the current management plan—when it often involves withdrawing treatment and is likely to lead to death.
Some hospitals have excellent ethics committees to involve early. The Nuffield Council report recognises that there are very real difficulties in the concept of best interest when deciding not to treat, as it is often not clear to the parents why abandoning the hope of improvement is in the interests of the child. In an overcrowded NHS, unconscious bias can skew towards wanting a service to clear beds, when prognosis looks poor. However, parents know that the child has no interests once they are dead. Nuffield recommends that the views of parents should be accorded considerable weight in decisions about their child.
When the two parties are unable to resolve their difference of opinion, such a case would now go to the court immediately. This amendment suggests that a
“mediation process, acceptable to both parties”
should be allowed when, and only when, earlier attempts at resolution have failed, as in subsection (2)(e). A mediation process would be between the parents and the senior doctor with overall clinical responsibility. It cannot be delegated to a junior in training or to one of the nurses on the ward. If mediation fails, then, as now, the case would proceed to court. The amendment is clear that no doctor or institution would be required to provide a treatment which they do not feel comfortable giving. This is the current law. The amendment is also clear that the overriding principle is the principle, as laid out in current law, of the
“best interests of the child”
being paramount. If the child is Gillick-competent, such an amendment would not apply.
Similarly, the views of others, such as a social worker or health visitor who knows the family may provide important information. As is the case now, that information must be listened to, as it may relate to some safeguarding issues or other information unknown to either the clinical team or the court. The early steps outlined in this amendment should improve the quality of communication between parents and the medical team, thereby decreasing the need to go to mediation. The mediation process is to try to decrease the number of cases going to court. I beg to move.
My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.
My Lords, I have put my name to Amendment 172. I thank the noble Baroness, Lady Finlay of Llandaff, for tabling this improved amendment, with important changes since Committee, as she has very helpfully explained to your Lordships’ House. I believe that this helps to find a way to balance the views of the child’s parents and the child’s doctors, and it is reassuring that many of the stakeholders from different perspectives have come to agreement on this.
The amendment also makes it clear that nothing affects the principle of the best interests of the child. This means that no medical professional could ever be forced to provide a medical treatment that they do not believe is in the best interests of the child, and that any other provider of such medical treatment would have to provide evidence during the mediation that this would benefit the child.
Another key reason for the need for this amendment is that at the moment mediation provision across England is inconsistent. While there is certainly excellence, there are also some problem areas. Having in legislation an independent mediation process made available at the earliest stage possible can help facilitate less confrontational conversations while supporting both sides in the argument.
The issue of parent-doctor conflicts will continue to persist frequently unless the Government can consider this amendment, and I strongly urge them to do so. If the noble Baroness, Lady Finlay, were to call a Division, we would support her on this, but I hope that the Minister will be able to provide some positive news.
My Lords, the noble Baroness, Lady Masham, is also taking part remotely. I invite the noble Baroness to speak.
My Lords, I have my name to Amendment 172, and I congratulate my noble friend Lady Finlay of Llandaff on her persistence on this important matter of mediation. It is a proven way of dismantling conflicts before they reach the courts.
Over the years, there have been some tragic cases when relationships have broken down between doctors and family members. When this happens in a hospital environment, parents can feel backed into a corner, with no alternatives. Mediation gives the opportunity for the parents to give their views and to hear the doctors’ views too at the earliest stage.
Ending up in the courts costs parents, hospitals and the Government hundreds of thousands in legal fees and causes avoidable distress and concern to all those involved. The only people who win are the lawyers. Parents have to live with grief and the decisions which have been made for their child for the rest of their lives if the results are not good. They want to know that they tried everything possible to give their child the best chance.
I feel that there should be adequate training for doctors, nurses and social workers in the values of mediation so that there is a team approach to treating a child in a life-and-death situation. I hope the Minister understands the need for this amendment and will accept it.
My Lords, it is always a great privilege to follow the noble Baroness, Lady Masham of Ilton. I too have added my name to Amendment 172 and commend the noble Baroness, Lady Finlay, for the way in which she introduced it. This debate could risk sounding technical and legalistic, but it is really about redressing an imbalance of power between doctors and parents when their child is desperately sick and at risk of dying and decisions are being made about how best to care for them.
I will not repeat all that I said in Committee, but my attention was drawn to this issue just over a year ago by listening to Connie Yates describe the ordeal that she and her partner Chris endured through the courts when the Great Ormond Street Hospital doctors disagreed with their decision as parents to seek alternative treatment for their baby. Theirs may be an extreme example of what it means not to be listened to or taken seriously by highly qualified professionals who, because they know more, believe they know best, but it is all the more profound because, as parents, what they experienced was not right, and it certainly was not what they deserved.
While this kind of ordeal might be rare, the wider principle—ensuring that we are all taken seriously when we deserve to be—needs promoting with vigour by those of us who enjoy great power and privilege. We need to go out of our way to redress imbalances where we see them, because the inequalities and unfairnesses that people feel, which have driven the political realignment we have seen in recent years, will not be fixed by infrastructure projects or economic decisions alone.
This Government are clearly committed to levelling up, but one of the most important ways of us achieving that goal is cost-free because it is about mutual respect. People want and deserve mutual respect from the professionals and experts they rely on for all sorts of things, but especially in their hour of greatest need.
I am very grateful to my noble friend the Minister for the care and consideration he has given to this issue since Committee, and I will of course listen carefully to what he has to say when he responds to this debate. I should add that my noble friend Lord Howe is a great example of humility from anyone who enjoys status and privilege.
I also understand that the Government will be reluctant to legislate. I understand that principle—it is not normally the solution I would reach for—but the proposal in the amendment that the noble Baroness, Lady Finlay, has brought forward is really modest. The doctors are not losing any power. We are just ensuring that parents of desperately sick children are shown respect and taken seriously when it comes to discussing with doctors how to do what is best for their child. All it does is make sure that, if relations break down, the doctors cannot go straight to court and rely on yet more highly qualified professionals, to the exclusion of the families in such a desperate situation.
As she said she would, the noble Baroness, Lady Finlay, has listened to all those who raised legitimate questions in Committee and has changed the amendment to address their concerns. I sincerely hope that my noble friend the Minister feels able to accept it.
My Lords, my only previous intervention on the Bill came about when I read the proposed clause, and in my capacity as a trained mediator I thought that the original proposed clause was not very sound. The proposed new clause is a huge improvement on that, and I hope it will be looked on with favour. As the noble Baroness said, it is about evening up the power relations.
If you are in a hospital and dealing with anyone who is ill, but particularly small babies, it can be a very difficult experience. My daughter-in-law had two very small twin babies. Gathered around the incubator were one PhD and three decent BScs, and we did not know what to do. We felt quite powerless, but we also felt that it was very difficult to get the doctors to tell us what the prognosis was. In fact, the prognosis was quite good—they recovered and are now both in the school football team—but at the time there was on our part a great sense of powerlessness and a feeling that the doctors did not feel they really needed to communicate with us. That level of powerlessness is what this aims to address.
It is about early access to independent mediation. The first qualification of a mediator is that independence. They will not get a result, and nor should they, unless they have the trust of both sides and unless both sides enter into it in a good spirit, looking for a solution. Finally, if they get a solution, it has to be one that sticks. That is why the amendment refers to
“the senior doctor with overall clinical responsibility.”
This cannot be a mediation where a junior member of the medical staff is sent along, where it has no binding effect and where the senior doctor looks at it and says, “I don’t like that; we’re not going to do that.” There has to be some sort of legislative backing.
However, as noble Lords will have seen, the amendment states:
“Where the authorities … become aware of the difference of opinion they must take … reasonable steps.”
It is all about getting consensus; it is about releasing medical data to both sides, and it is about ensuring that the doctors responsible for treatment are at least obliged to listen to any alternatives that the parents might wish to put forward.
When we last debated this issue, I advised—and indeed this has been done—that we knock out the financial provisions, because we thought that the Government would object and say, “We can’t sign a blank cheque.” However, clearly not all the people listened, because this very morning the Ministry of Justice released its Legal Aid Means Test Review, which states:
“We are proposing to increase significantly both the income and capital thresholds for legal aid eligibility, and remove the means test entirely for some civil cases. These include legal representation for children, and legal representation for parents whose children are facing proceedings in relation to the withholding or withdrawal of life-sustaining treatment.”
It rather shoots the government fox that was running around, does it not? It was said that mediation would encourage litigation, whereas now mediation will discourage litigation, because it will be in the interests of both the health service and the medical profession to make mediation work. In making it work, they will not have days and days in court, but they will have a chance of putting the case to a mediator—having been one, I can tell you that it is a lot cheaper than a barrister—and coming to an agreement without needing the great generosity of our Deputy Prime Minister, Dominic Raab, in offering to pay all these costs. I must say that I was surprised by that statement, but if anyone wants to read it, there are multiple copies in the Printed Paper Office, which is where I got mine.
I hope that the Minister will be able complement his colleagues in the Ministry of Justice by taking a positive attitude to curing this particular result. Otherwise, we will be in a position where the Department of Health and Social Care is saying no to mediation, but where we are now going to get free access to the law courts to run up huge bills. What the Ministry of Justice does not say is which departmental budget will pay for this concession. I would not mind placing a little bet as to which one it has in mind.
So I am asking the Department of Health and Social Care to save itself some money, thanks to the beneficent amendment proposed by the four noble Baronesses and supported by me. We are out to save the Government some money, to make it much easier and to build into the system a right for parents to have a more evenly balanced say in what happens to their child at what is a very difficult and distressing time for many of them.
My Lords, I did not contribute to the debate on this amendment in Committee, but I did sit and listen to the contributions from around the House. What struck me was that in his characteristically sympathetic response, the Minister had not quite understood the purpose of the amendment and the problems it would solve. He stated that the amendment would place the views of parents and guardians above those of clinicians. I do not see that this is the case, especially with the revised amendment that we have before us. Unfortunately, it is a reality that parent-doctor conflict happens. I declare an interest as chief executive of Cerebral Palsy Scotland, and I have seen far too often the views of parents dismissed by clinicians. No matter how qualified parents may be, or what their role in life outside the hospital may be, they are consistently referred to only as “mum” or “dad”. Too often there is an imbalance of power with doctors, and too often parents are labelled as “difficult” or “sharp-elbowed”, as if wanting to do the best for your child is an irritant, and such parents should be grateful for what they get.
By the time a family is faced with palliative care, they will undoubtedly have been through the care of many clinicians: specialist, community, hospital and, potentially, hospice teams. The parents are therefore often the one consistent factor, and they are especially important when the child is too young or too ill, or unable to voice their own views. It is when parents feel they have not been listened to by clinicians that they resort to formal complaints or litigation. It is a last resort, but too often it is the only resort that is open to them. This amendment seeks to address this by giving them space for a formal coming together of all interested parties at an earlier stage, and so preventing costly and lengthy legal disputes. It does not place one party’s views above others; it does not, as outlined in proposed subsection (3), require the provision of resources for any treatment or require a doctor to provide treatment not in the best interests of the child. It simply ensures that there is a clear framework in these tragic, difficult cases to guide what happens next.
This amendment is designed to solve a problem currently faced by families and clinicians at moments of crisis. I urge the Government to consider it, and I will listen carefully to the response of the Minister tonight.
My Lords, the House will want to move on quickly, so I will not make the speech that I intended to make on this issue, but I would very much like to endorse what the noble Baronesses, Lady Fraser and Lady Stowell, the noble Lord, Lord Balfe, and my noble friend said in their earlier speeches. I know Connie Yates and Chris Gard, who are the parents of Charlie Gard, who died in 2017 of mitochondrial DNA depletion syndrome. Indeed, I have entertained them here in the House, arranged meetings for them and travelled with them. I entirely agree with what my noble friend is trying to do. This will make mediation work; it will create a proper balance and equality of arms. No parents should have to face litigation in these often tragic and troubling circumstances, so this is a good amendment and I hope the Minister will feel he can accept it.
My Lords, I was patron of Martin House in York, which is one of the amazing hospices that care for children and their parents. I was invited by the parents of a nine year-old, who was having a very difficult and trying time, to talk to clinicians, because they did not think that they were being heard. As we talked, it became clear that that was not true: the clinicians were on the side of the parents, but their language was not helpful. We had this amazing conversation, and as a result the needs of the child and the aspirations of both the parents and the clinicians matched, and we were able to get very careful care. What the noble Baroness, Lady Finlay, is trying to do is recognise that in most cases parents have good desires, and clinicians probably know more than they are willing to say but hold back because of the sheer pain and difficulty that they see on the faces of everybody, and another voice can help in these situations.
Should I call it mediation? No, it is a coming alongside. In my time as patron of Martin House in York, I had probably 20 such conversations. The new chief executive has been training other listeners. Without this, in the midst of sheer pain, people polarise when they should not. So I support this because, in my experience, it has opened doors and then the conversations become better.
What was amazing for this young boy called Paul is that the parents are now great supporters of that hospice. They are able to talk to other parents and say that mediation is the best way; please do not polarise when facing such deep problems.
My Lords, this eminently sensible amendment sets out various considerations aimed at ensuring that there can be effective mediation when there is a dispute over children’s palliative care. There has been considerable discussion to bring this amendment to its current iteration and I pay tribute to the noble Baroness, Lady Finlay, for her efforts around this, having already secured a meaningful amendment to ensure that ICBs must commission the palliative care services they consider appropriate.
Your Lordships’ House is aware that this amendment and debate come out of the heartbreaking situation of Charlie Gard and multiple other cases like his. I therefore know that this issue has to be handled and considered incredibly delicately, taking into account the best interests of the patient receiving care above all others.
Balancing the views of clinicians and parents is intrinsically and incredibly difficult, and particularly challenging to codify in legislation. This amendment is a rational measure to move towards achieving a better balance and keeping matters out of the court, as the noble Baroness, Lady Finlay, referred to in her opening. We certainly support its intent and I therefore hope that the Minister’s response gives it due justice.
My Lords, I first thank the noble Baroness, Lady Finlay, for having brought forward this important issue for debate and for introducing it in her characteristically informed and professional way. I assure her that I understand the issues she has highlighted and why she has done so. There is no doubt in my mind that the kinds of case that she has cited are extremely distressing and stressful for all involved, and can, on occasions, be contentious.
The Government agree that mediation is often a good route to take when there is such contention. Parents and clinicians should have access to high-quality, independent mediation schemes where they wish to do so. There are many mediation schemes available and we are very supportive of them.
The NHS already ensures access to mediation in many cases, and we strongly encourage it to continue doing so. But, at the same time, we need to ensure that those schemes are effective in the different contexts in which they are needed. Currently, organisations have the flexibility to offer mediation services earlier in a dispute or to prevent such disputes arising. They have the flexibility to tailor services specifically to the unique circumstances in which they are needed.
I hope the noble Baroness would agree that each case is unique. It is essential that everyone is able to have their voice heard, that there is a good understanding of different perspectives and that there is appropriate involvement of parents in decisions about the care and treatment of their child. Naturally, in that process, differences of opinion can and do arise.
The key to progress in this area is something deeply nuanced—human relationships. That is why I believe that, rather than legislation, our efforts are better directed at working together to develop systemwide solutions about how disagreements can be avoided or recognised early and, most importantly, sensitively managed. We need to ensure that in these difficult situations NHS trusts and staff are well equipped, well prepared and well supported to make that sure parents’ feelings and concerns are fully considered and supported, and that the relationship remains positive and constructive. We know that there are already examples of best practice and guidance but we need to do more.
To improve the outcomes of these difficult cases, we need to look at the whole process. We need to look at how best practice can be shared across the system to ensure that parents’ voices are heard throughout the process, not just in mediation, and how we can prevent disputes arising in the first place. In the rare cases when a dispute does arise, we need to focus on the quality of mediation schemes and not just prescribe that mediation is offered by default.
To look at how best we can embed best practice, training and advice on shared decision-making and dispute resolution across the system, the Minister for Patient Safety and Primary Care has agreed to chair a round-table event facilitated by the Nuffield Council on Bioethics. This will build on the work already being done by bringing together key stakeholders to agree actions that support the creation of healthcare environments that foster good, collaborative relationships between parents and healthcare staff. I have also offered to meet Connie Yates and Chris Gard to hear their experiences and discuss how we can support better collaborative relationships between parents and healthcare staff. I hope this demonstrates that the Government understand the importance of this issue and that we are committed to addressing it.
It is the Government’s view—I say this with some regret—that putting this amendment or another in the Bill will not help improve the outcomes of the very difficult, rare situations in which an unresolvable dispute arises. This is because efforts need to be focused on a holistic approach to dispute resolution to improve the process as a whole. Merely allowing for mediation to be available at the end of a dispute will not do this; either party could refuse it and allowing mediation will not, we think, drive the careful, sympathetic and considered work with parents and carers that this topic so urgently demands.
I recognise that these are difficult matters, but I think progress will best be made through practical, down-to-earth work across the system and by bringing in a wide range of perspectives. This is what I am now offering and I therefore hope that, in reflecting on that offer, the noble Baroness, Lady Finlay, will feel able to withdraw this amendment.
I am most grateful to everyone who has spoken. I realise that the time is late so I will try to be very brief in responding. I appreciate the offer of Nuffield to host another round-table event. I believe it held one recently and it had its previous inquiry. The sad reality, however, is that over recent decades of trying to teach communication skills, things have not improved as much as they should. One of the reasons is high staff turnover, which means you educate one group and it moves on. Yes, things have to be sensitively managed, but the role models come from the seniors. We are not talking about the vast majority, who are doing really well. The problem is that the people who are not doing well are the very ones who do not take up the education and do not want to change. I believe we have now got to the point where we need to send a very clear message and put this in the Bill. I beg leave to test the opinion of the House.
Amendment 173 not moved.
174: After Clause 164, insert the following new Clause—
“Global health emergency international cooperation
In the event of the World Health Organisation declaring a public health emergency of international concern (“PHEIC”), the Secretary of State must within three months—(a) initiate or otherwise support and implement proposals temporarily to waive elements of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) at the World Trade Organisation to assist wider global manufacturing of and access to health technologies;(b) waive such UK-registered patents, industrial designs, other intellectual property rights, and protections concerning undisclosed information relating to—(i) vaccines,(ii) medicines,(iii) diagnostics and their associated technologies, and(iv) materials,as necessary for combatting the emergency internationally; and(c) issue relevant emergency compulsory directions to enable the domestic manufacturing of generic and biosimilar products.”Member’s explanatory statement
In the event of a public health emergency of international concern, this new Clause requires the Secretary of State to support domestic and international knowledge-sharing, to combat the emergency.
My Lords, the aim of Amendment 174 is to learn from mistakes made during this pandemic and ensure that, in the event of a public health emergency of international concern, our Government share and support others to share critical knowledge, data, research and intellectual property relating to vaccines, tests, treatments and their associated materials. By sharing this information and intellectual property we can scale up and, crucially, diversify the manufacturing of pandemic tools to ensure equitable access around the world, expediting our ability to end the emergency for all by winning the race against new variants.
Less than 10% of people in low-income countries have been double vaccinated. Lower-income countries are not prioritised. The status quo pharmaceutical model of supplying to the highest bidder means that low-income countries have to rely on the good will of high-income countries and companies to provide donations. Evidently, this has not proven effective in achieving global equitable access. Many low and middle-income countries therefore want to manufacture their own vaccines, tests and treatments so that they can have greater oversight of supply volumes, timelines for dispensing products and prices now and for the future. However, pharmaceutical companies have widely refused to share their technology openly. In addition, the United Kingdom, the EU and Switzerland have continuously blocked South Africa and India in their proposal to temporarily waive certain provisions of the Trade-Related Aspects of Intellectual Property Rights Agreement—the TRIPS agreement—on all Covid-19 tools, vaccines, tests and treatments.
Amendment 174 seeks to remedy this. It calls for the Secretary of State to support or initiate a temporary global waiver of the TRIPS agreement within three months of a pandemic being declared at the WHO. This three- month period is there to give pharmaceutical companies the opportunity and the push to make plans for how they will voluntarily openly license their products and engage in transferring their know-how to companies with established manufacturing capacity. This time period is in step with the recommendations of the Independent Panel for Pandemic Preparedness and Response.
The pharmaceutical industry is an immensely powerful machine, and we need to work with it. But as history has taught us, through the HIV crisis, pricing for cancer treatments, and now with Covid-19, it does not always do the right thing. As we speak the WHO’s mRNA hub in South Africa based at a biotech company called Afrigen has managed to reverse engineer Moderna’s vaccine. As Moderna made a pledge not to enforce patents during the pandemic, Afrigen are doing well in its development. The project has been significantly slowed down by Moderna and BioNTech’s refusal to share their knowledge with the hub. This is just one example. There are over 100 potential mRNA producers across Africa, Asia and Latin America who could be producing vaccines now, if only they had access to the know-how and data, and were not restricted by the fear of patent infringement.
Amendment 174 is about encouraging the industry to do the right thing and the Government to take action to protect global health and live up to the slogan “global Britain”. It is not just political rhetoric but epidemiological fact that none of us are safe until we are all safe. If viruses are left unchecked, they will mutate and this pandemic is far from over; cases have risen hugely in South Korea, China and here in the UK of late. Talk of Covid-19 becoming endemic does not that mean it has disappeared. Malaria is endemic in many parts of the world, but it continues to kill hundreds of thousands of people every year.
This amendment will also initiate a great deal of cost saving for the NHS during pandemics. We are paying the highest recorded price for the Pfizer vaccine at £22 per shot. This amendment reaffirms our commitment to using in these emergency situations compulsory licences, one of the public safeguards in the TRIPS agreement to enable the domestic manufacturing of generic and biosimilar products, which would mean that any company within the UK with manufacturing potential could be making these vital medical tools.
Just today we heard that a draft copy of the waiver has been leaked, although it has been significantly watered down and reduced in scope. None the less it shows there is a global consensus that intellectual property monopolies are a barrier to accessing Covid-19 vaccines, tests and treatments. We need the Government to use this moment finally to do the right thing and support a waiver on all intellectual property covering vaccines, tests and treatments that can be utilised by all countries in the negotiations to come.
I also urge Her Majesty’s Government to use their influence as a faithful customer of Pfizer and Moderna to push them to share their technology with the WHO’s mRNA hubs and revoke the patents they filed on Covid-19 technologies. This amendment is about improving access to affordable life-saving health technologies for our NHS and worldwide during public emergencies. We can bolster pandemic preparedness and expedite our response to Covid-19 and future pandemics. I beg to move.
I invite the noble Baroness, Lady Brinton, who is taking part remotely, to speak now.
My Lords, I have signed Amendment 174 in the name of the noble Baroness, Lady Chakrabarti. I thank her for introducing it and for making it clear that this aims for global pandemic preparedness. The World Health Organization set a target to vaccinate 40% of the world by the end of 2021. However, 92 countries missed this target due to a lack of access. Despite the funding from high-income countries to the WHO-run COVAX and Gavi schemes, low-income countries have remained at the back of the queue as high-income countries have been able to jump in ahead, using their money to get second and third doses for their own population.
Frankly, we need a better system for future pandemics. We need to understand that openly licensing newly developed Covid-19 technologies, waiving intellectual property rights and sharing the manufacturing know-how would allow more companies to begin producing life-saving vaccines, drugs and tests across the world. However, pharma companies have widely refused to share their technology openly. We also need to source other key critical control products, such as testing equipment, PPE and masks. Relying on too few suppliers in too few countries caused immense problems for the first six months of the pandemic, and again as subsequent waves hit those countries. In addition, the UK, the EU and Switzerland continue to block South Africa’s and India’s proposal to temporarily waive certain provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights—TRIPS—on Covid-19 tools.
Despite regular pandemic exercises in this country, and despite previous experience with vaccines for other diseases not being shared with low-income countries, we have not learned the lessons. This amendment sets out what a Secretary of State should do within three months of the WHO declaring a public health emergency. I really hope that Ministers are prepared to help make progress on this issue. If not, and if the noble Baroness, Lady Chakrabarti, calls for a Division, we will support her from these Benches.
I now invite the noble Lord, Lord Campbell-Savours, who is taking part remotely, to speak.
My Lords, this is an important amendment. To me, it is the most important in the Bill. It concerns preservation of life in conditions of general pandemics. If you leave worldwide vaccine manufacturing programmes to the free market, you will never fully deliver. Profit will always trump the public good, unless the state intervenes in some regulatory form or another. This is basically why I am a Labour person.
With that in mind, it is clear that the more we are told that the current arrangements for licensing and manufacturing are necessary for reasons of quality control, the more I am convinced that this is not the only consideration in mind. There are other considerations —primarily the need to maximise profit. There is nothing wrong with profit if the justification is reasonable. It drives initiative and entrepreneurship. However, when there are wider issues involved, as in the case of a global pandemic which threatens the well-being of nations and the international economy, there must be a consideration of the wider public good and benefit. I am not convinced that, apart from the case of the AstraZeneca project, public benefit has been the driver.
In Committee, I set out in some detail a case wider than this amendment for worldwide licensing arrangements based on the original amendment of my noble friend Lady Chakrabarti. I remain confused by the Government’s position, which seems ever reliant on research and limited production at home, with volume production overseas. I would have thought that there are lessons to be learned about supply volatility from the case of oil from Russia. Equally, with both China and India leading the world in vaccine supply—at the same time as both countries remain reluctant to support us over certain areas of dispute and crisis in foreign policy—alarm bells should be ringing. I remain of the view that we in the United Kingdom should lead the world in this area of research, development, manufacturing, licensing and supply.
We are moving into an era of further pandemics as research-spawned accidental releases inevitably will reoccur, or perhaps they will not even be accidental in origin. There are huge foreign policy benefits to be gained arising out of being the world’s primary producer and licensee of these vaccines. When you help people, they remain indebted. That is the approach China is taking in many areas of its foreign policy.
I will give an example. The French Government funded my higher education in France 60 years ago. To this day, I remain indebted to France, with a lifetime feeling of obligation. This is often the case for foreign students. I believe that if we had been suppliers and licensees to the world over the recent period, in particular Africa and the third world, the payback would have been immeasurable, with huge implications for foreign policy.
I will exaggerate to make my case: suppose we had been supplier and licensee to China. Can noble Lords imagine what influence such beneficence would have had on Chinese public opinion and, perhaps ultimately, on Chinese foreign policy? A friend in need is a friend indeed—we should never forget that.
I appeal to the Government, even at this late stage in the current pandemic, to think long term, and create the vaccine supply, manufacturing and licensing programme that my noble friend Lady Chakrabarti is advocating. Her amendment seeks at least a temporary, time-agreed waiver. It is a start. I am using her amendment to argue a wider case, a new vision. Her excellent amendment puts in place a building block on which a longer-term strategy should be constructed. We should lead by helping others to help themselves. The rewards are inestimable.
My Lords, I was happy to add my name to this amendment to give it a bit of cross-House balance. Like the noble Baroness, Lady Brinton, I am an officer of the all-party parliamentary group on coronavirus. In the last two years, we have had a bellyful of coronavirus; we have heard ad nauseum about the problems and the tragedies that it has created and encompassed, and that is partly what leads to this amendment.
It is self-evident that the United Kingdom, and most of the rest of the world, was unprepared. Countries that had experienced SARS, particularly in south-east Asia, had a better idea of what they were getting into. Frankly, however, for most of us in the West, it was the blind leading the blind. Looking in the mirror today—and accepting our failings, and the unease that we in the developed world should surely feel for largely having prioritised looking after our own—is for me, certainly, distinctly uncomfortable.
The aim of Amendment 174 is very simple: equitable access to affordable health technologies for all. One of the biggest challenges is how to deal with the exclusive intellectual property rights that exist in the healthcare sector. Only 7% of people in low-income countries have been double vaccinated. Only an additional 14% have had one dose.
Noble Lords should remember where the variants have come from. The exception, of course, is alpha, for which global Britain is responsible, so that is something that we can be proud of. Beta came from South Africa, gamma from Brazil, delta from India, and omicron is truly global because it started in about 10 countries simultaneously. The two countries that went it alone, rather proudly, in developing their own vaccines—China and Russia—have produced manifestly inferior vaccines, which have not been subject to proper, clinical peer scrutiny.
I give two examples of the problem we face. First, Pfizer’s new antiviral treatment excludes most Latin American countries, and generic versions—unless Pfizer does something about relaxing its intellectual property—may not be available in those countries until after 2041. Secondly, Tocilizumab, an antiviral manufactured by Roche, which is based on UK government-funded research, is unable to be manufactured in countries with established production capacity because Roche is enforcing its patents in these countries. There is a global shortage of this particular treatment.
Tackling the complex world of healthcare intellectual property is not easy. In my past career as a headhunter, I worked with clients that were large, complex, well-funded, international pharmaceutical companies, so I know full well the level of intellect and resource that they put into their intellectual property defences. We must apply ourselves in a disciplined and determined way at an international level; this is a chance for Great Britain to prove that it is indeed global. As an aside, during Oral Questions this morning, some of us on the Cross Benches were playing a game where, every time somebody from the Government Front Bench mentioned global Britain, another notional £10 clinked into the pockets of the Cross-Bench Christmas drinks fund; this afternoon, we had a particularly fruitful Oral Questions. As a mantra, it is meaningless unless it has real content behind it.
We need to develop a rapid response plan for the next pandemic. We will demonstrate that we have intellectual and moral myopia if we fail to do it. In a nod to Amendment 170, which we debated earlier, we should not show that we are content to let the less-developed world suffer from what I would describe as unassisted dying. That is unacceptable.
My Lords, I rise briefly to offer Green support for this amendment, which I would have signed had there been space.
The noble Baroness, Lady Chakrabarti, referred to today’s report that a watered-down version of the India-South Africa proposal for a TRIPS waiver looks likely to go through the WTO. I quote Max Lawson, co-chair of the People’s Vaccine Alliance:
“After almost 18 months of stalling and millions of deaths, the EU has climbed down and finally admitted that intellectual property rules and pharmaceutical monopolies are a barrier to vaccinating the world.”
Bouncing off the comments of the noble Lord, Lord Russell, I think that the Cross Benches might find an even larger drinks fund if they go for “world-leading” as the key phrase to identify. The comment from Mr Lawson shows that, collectively, the world has done very badly throughout the Covid pandemic and done very poorly by the global south. If the Government want to be world-leading, they could leap in right now and accept the noble Baroness’s amendment.
My Lords, I congratulate my noble friend Lady Chakrabarti, the noble Baronesses, Lady Lawrence and Lady Brinton, and the noble Lord, Lord Russell, on supporting and promoting this amendment. Its explanatory statement says:
“In the event of a public health emergency of international concern, this new Clause requires the Secretary of State to support domestic and international knowledge-sharing, to combat the emergency.”
I cannot see why anybody would object to that.
I would like to say one more thing. The former Prime Minister, Gordon Brown, has led this country on how one should respond to a global pandemic with his work at the World Health Organization on the importance of sharing knowledge, vaccines and technology across the world. This amendment is about the pandemic that is coming down the track as well as the one we are dealing with at the moment, so we on these Benches certainly support it.
My Lords, I support this amendment. I do not intend to repeat the excellent points that have been made by others because the case in equity—and the case in our own interests—is absolutely compelling in my noble friend’s excellent amendment. However, for a short period of time, I do intend to test just how good the Government’s resistance to this is; I will do so by referring to the Minister’s own speech in Committee on this very amendment. I will ask two questions of the Minister; I hope that he will be able to answer them because, if he cannot, there is no resistance to this amendment.
On 9 February, on the ninth day in Committee, the noble Lord the Minister repeated the Government’s oft-repeated view on this issue when it has been debated in your Lordships’ House that
“the Government remain open to all initiatives that would have a demonstrably positive impact on vaccine production and distribution. However, we believe that waiving intellectual property rights would have the opposite effect. Doing so would dismantle the very framework that helped to develop and produce Covid-19 vaccines at the pace and scale now seen. It would risk undermining the continued innovation in vaccines and technological health products that is required to tackle a virus, especially as it mutates and evolves, so we believe that doing so would be a mistake.”
Our domestic experience of this is the AstraZeneca vaccine, which was produced with 97% of the funds coming from government or philanthropy and only 3% from investment. Can the Minister therefore say what is the data, other than assertion from pharmaceutical companies, that supports this conclusion that the Government have come to? There must be data to indicate that vaccine waivers have had this detrimental effect; otherwise, the Government are not entitled to come to this conclusion. Try as I might, I have never heard a Minister, when resisting this equitable approach to vaccines, ever explain the data to your Lordships’ House.
I turn to my second question. Later in that same speech, in his fourth paragraph, the Minister said that
“Research contracts afford greater flexibility and more powerful levers than the amendment”,
and went on to say that they can produce
“requirements around access to medicines in the developing world.”—[Official Report, 9/2/22; col. 1704.]
Can the Minister tell the House of any contract that the Government have agreed that has had that result? Has this alternative, which the Government pray in aid, been deployed by them to such an effect that it has significantly bitten into the unbelievably unjustifiable inequity in the share of vaccines around the world?
My Lords, I was not going to speak, but I am driven to respond to what I have just heard. I first declare an interest as chair of Christian Aid, which works in some 29 countries, most of which have experienced what I call vaccine inequality. We constantly get letters urging us to try to help.
As far as the British Government are concerned, in relation to some of those countries, the money and the way that they have tried to help—which must be acknowledged—certainly with AstraZeneca, there has been a far greater equity coming out. When we had the Kent variant, the Government were very quick to share that information with everybody else. What I think the amendment is asking is that, when the World Health Organization declares a health emergency, if we have information we should make it available immediately.
Secondly, on the question of equity, we have just had a big Commonwealth service in Westminster Abbey and there are particular people—noble Lords may not believe it—who come from those 54 countries of the Commonwealth who still look to the United Kingdom as giving them not only language but the ability to understand the sheer pressure of inequality. I would have thought that this particular amendment would help us to answer some of our supporters out there in the global south by saying that we are very serious, given some of the help that has been provided—though it has not gone far enough; the antivirals and all those drugs have not been given equitably. I therefore ask the Minister to realise that the issue is not whether we have or have not done enough; it is that, if there is a global health emergency—locally and internationally—the Secretary of State is in a better position sometimes to speak and to help those who are struggling and finding it difficult.
Nkrumah said that Ghana would not be free until the rest of Africa was independent, and I believe the same is true now. I have had my double vaccine and my booster, but I am not fully vaccinated until the rest of the world is vaccinated.
I thank all noble Lords who have taken part in this debate for the passion they have shown. I think we are all concerned by vaccine inequity—as noble Lords have rightly said, we are getting our third or fourth vaccines while some people have not had their first yet—but we also have to be clear how we get to this stage. It is easy to say, “We spent this much money on public research and that led to the vaccines”, but it is not as simple as that. It may have led to the research but that does not lead to the production of millions of vaccines that can be distributed worldwide. There is a clear difference between pure research and turning that into actual vaccines and, once they are produced, getting them into people’s arms. You can certainly deliver them to countries but they do not always reach the arms. We have heard stories of vaccines being thrown away because of a lack of distribution in particular countries.
The sharing of knowledge has played and will continue to play an important role in the rapid scale-up of Covid vaccine production. The UK Government are very committed to addressing vaccine equity on every front. As the son of people who came from outside the EU—not white, privileged Europe—I believe very strongly in global Britain.
The experience of the pandemic has shown that it is voluntary collaboration that has made real, positive impacts on vaccine delivery. The scale-up of vaccine production at record pace has been driven by more than 300 voluntary partnerships. This unprecedented collaboration around the world has meant that global Covid vaccine production now stands at nearly 1.5 billion doses per month. Voluntary partnerships such as AstraZeneca and the Serum Institute of India, and Pfizer-BioNTech and Biovac in South Africa, show what is possible if you work together.
The intellectual property framework has been crucial in facilitating this knowledge sharing. Indeed, the legal certainty it produces cannot be overstated. It gives innovators the confidence to form partnerships and continue investing in the innovative health products and technologies that have contributed so positively to our global pandemic response. The intellectual property framework similarly supports the production and dissemination of vaccines and other products across the world.
Yes, 97% of the investment in research is public funding, but research is not vaccines. There needs to be a whole chain from that pure research to scaling up and distribution, and universities cannot do that. Waiving intellectual property rights would dismantle the very framework that has facilitated this collaboration. It would undermine not only the knowledge sharing that has helped to develop and produce Covid-19 vaccines at the pace and scale now seen but the framework needed to support the development of new vaccines and treatments, should these be needed in future.
It should also be noted that the least-developed countries are exempt from implementing the Trade-Related Aspects of Intellectual Property Rights—or TRIPS—Agreement, meaning that they already have a de facto TRIPS waiver. In addition, the TRIPS Agreement already provides flexibilities to enable countries to achieve their public health objectives, and we fully support the right of these countries to use these where needed—but you have to build the capacity. Low and middle-income countries can access medicines in times of emergency through flexibilities that allow them to manufacture or import without the consent of the patent holder.
For these reasons, the UK does not consider intellectual property rights a barrier to supplying and improving access to Covid-19 goods. The noble Lord, Lord Russell, can put another £10 in the Christmas bag. Instead, we shall continue to be a visible champion of those elements of the intellectual property framework that support effective knowledge sharing.
The noble Baroness will be aware that we have contributed vaccines through the COVAX scheme—a partnership of the Coalition for Epidemic Preparedness Innovations, Gavi, the Vaccine Alliance, UNICEF and the World Health Organization—but we know that is not enough. As noble Lords have rightly said, we have to learn from what we have done during this pandemic. One part of my ministerial portfolio that I am very proud of is international relations and health diplomacy. A constant theme in my G20 and G7 Health Ministers’ meetings is how we tackle these vaccine inequities and learn the lessons that many noble Lords have rightly raised.
Last week, the British Government hosted the Global Pandemic Preparedness Summit to learn those lessons: to make sure that we brought together all our experiences as countries, learned from those and asked what we could do next time. I was very privileged to host a working lunch with several overseas Health Ministers, as well as Dr Richard Hatchett, CEO of CEPI; Dr Seth Berkley, the Gavi CEO; and Dr Tedros, the director-general of the World Health Organization, sitting next to me. One of the issues that came up in our discussions was, rather than developing and less-developed countries relying on donations via COVAX, how we ensure that, first, there is more local and regional manufacturing of vaccines through public-private partnerships and, secondly, that vaccines get into people’s arms as quickly as possible once they are manufactured or are imported into a country. We need to avoid those situations where vaccines were wasted because they were not stored or transported properly, or where there was difficulty distributing them once inside a country.
With international partners, we are looking at a whole range of issues and new technologies, such as new distribution methods. Some noble Lords may well have read about drones being used to deliver vaccines to certain remote areas. Before using these drones, it is all very well having all these vaccines in the capital, but how do you get them into people’s arms? We have to look at that area. Intellectual property rights are irrelevant here. The fact is that the vaccines are there but you have to get them into people’s arms. We have to train more vaccinators and we need better transport.
We agree that the vaccine supply must be matched by the capacity of health systems to deliver them, and we have been working to strengthen health systems around the world. Our recently launched health systems strengthening position paper sets out this Government’s determination to do more to build overall capacity, from policy through to delivery.
But there are other issues. Just as there are the vaccine-hesitant in this country, there are many vaccine-hesitant people in other countries. Our African vaccine confidence campaign is working with experts in countries such as Botswana, Ghana and Uganda to reinforce communities’ trust and build demand from the ground up. Once again, you can get the vaccines there but you have to get them into people’s arms. We have also been working to minimise constraints on supply chains, such as tariffs. This has been demonstrated by our sponsorship and promotion of the trade and health initiative as well as the unilateral measures we have taken, including tariff suspensions.
We have also provided support for the development of regional manufacturing capabilities. This includes technical support to develop business cases for the manufacture of vaccines in South Africa, Senegal and Morocco. We are working with the COVAX supply chain and manufacturing task force to champion other practical efforts to scale up capacity. We believe that we are doing lots of things with our global partners—with Gavi, CEPI and the World Health Organization.
To be honest, I am incredibly inspired by some of the work that I see going on. This is about building real capacity. It is about transferring knowledge and technology and making sure that we have that capacity. It is about making sure that we live up to global Britain, in which I firmly believe given my own family history—not from white Europe, but from a global perspective. I believe very strongly in that. I believe that waiving intellectual property rights will not help overcome these challenges. I may be passionate about this but I feel very strongly about it. I feel strongly about global Britain. I feel very strongly about my distant relatives who come from developed countries and about my own history, my own heritage. I feel much more strongly about this than noble Lords may well feel.
This is the right approach. I am hugely encouraged by this international co-operation and the potential of new technologies to help. I would be very happy to continue to engage with the noble Baroness. I think we probably share the same passion for making sure that this happens. Given that, I hope she will consider withdrawing her amendment.
I am grateful to all noble Lords who spoke at this late hour, including the Minister. With respect, however, the numbers just do not stack up. I am so glad that the Government have now donated over 30 million shots, but these have almost all been AstraZeneca, which has lower efficacy against the now-dominant omicron variant. Moderna belatedly allocated a mere 110 million shots for a continent—Africa—with an estimated population of 1.3 billion people. Pfizer has allocated only 2% of its global supply to COVAX. We are just not getting enough shots to enough people, and so the variants develop.
I am grateful to everyone and I would happily keep speaking to the Minister, who is always courteous in his responses, but I really do think that it is time to test the opinion of the House.
Amendment 175 withdrawn.
176: After Clause 164, insert the following new Clause—
“Mandatory training on learning disability and autism
(1) In regulation 18(2) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (S.I. 2014/2936), for sub-paragraph (a) substitute—“(a) receive—(i) such appropriate support, training, professional development, supervision and appraisal as is necessary to enable them to carry out the duties they are employed to perform, and(ii) in particular, training on learning disability and autism, appropriate to their role, as set out in the code of practice issued by the Secretary of State under section (Mandatory training on learning disability and autism) of the Health and Care Act 2022,”.(2) With regard to training on learning disability and autism, the Secretary of State must prepare and publish a code of practice (“the code”) containing guidance addressing—(a) the content of mandatory training and its co-production,(b) the appropriate levels of training required across staff roles,(c) the co-delivery of training,(d) the in-person delivery of training,(e) the accreditation of training,(f) the procurement of training,(g) the monitoring and evaluation of the impact of training, and(h) the implementation of mandating of training across regulated health and social care providers.(3) The Secretary of State must seek the participation of and consult such persons and bodies as they consider appropriate—(a) in preparing the code, and(b) in revising it.(4) The Secretary of State may not issue the code or any revision unless a draft has been laid before and approved by a resolution of each House of Parliament.(5) The Secretary of State must review the code every three years and lay the findings before Parliament.(6) In this section—“appropriate to their role” has the meaning given by the code;“autism” means a spectrum of disorders which start in childhood, the clinical manifestations of which include atypical social communication and social interaction and restricted, repetitive patterns of behaviour;“in person” means training delivered live, by people, in the presence of the trainee;“learning disability” means a disability which includes a significantly reduced ability to understand new or complex information or to learn new skills, with a reduced ability to cope independently, which started before adulthood, with a lasting effect on development.”
My Lords, Amendment 176 proposes that guidance should be published on how training in learning disability and autism will become mandatory for all health and social care staff. The amendment has been altered from earlier stages to address concerns raised by the Minister and officials, both in Committee and in discussions following Committee. I am grateful to the Bill team, Department of Health and Social Care officials, Mencap and noble Lords who are supporting this amendment.
The unacceptable health inequalities that many people with learning disabilities and autism face, which have been worse during the pandemic, have been reported numerous times and I am not going to repeat them here. Nor will I repeat the circumstances of Oliver McGowan’s tragic death. His parents have been powerful advocates of mandatory training and persuaded Her Majesty’s Government to commit to introducing it. Her Majesty’s Government conducted a consultation and launched an ambitious pilot of the Oliver McGowan mandatory training scheme and the evaluation is due any day.
This amendment goes a step further because it would put in statute a policy that the Government have committed to undertake. It would create a code of practice that would consult on and set out how training will be scaled up across the country. The code provides a number of advantages compared to simply amending the Health and Social Care Act 2008. It intends that co-production and co-delivery are embedded from the start and this is achieved through a requirement for the Secretary of State to consult relevant persons in preparing the code and regularly revising it in the light of outcomes. These relevant persons must include those with lived experience.
Co-production and co-delivery should be uncontroversial, but campaigners are still having to fight for this. One of the concerns put to me is whether in fact there are enough experts by experience to contribute to training that would be provided to all health and care professionals. This morning, I told my son, who has a learning disability, about tonight’s debate. He said that he wanted other people to have the same opportunity that he has had to be able to train the staff in his GP practice, but training for trainers would, of course, be needed. So many people with learning disabilities and so many autistic people are keen to have work and yet the work opportunities are not there. Here is a brilliant work opportunity.
The amendment would require the Secretary of State to lay before this House and the other place the findings of a regular review of the code, which will be needed to ensure accountability and scrutiny and help to shape any revisions or changes required in the light of improvements or otherwise of the health and care outcomes for this group of people. Accepting the amendment would be a wonderful signal to campaigners, including Oliver’s parents, Paula and Tom McGowan, that the Government’s promises will be honoured sooner rather than later. I urge the Minister to accept the amendment.
My Lords, it may be convenient for the House if I clarify the Government’s position on the amendment at this stage. I am grateful to the noble Baroness for bringing her amendment before the House today on the important matter of mandatory training on learning disability and autism for the health and social care workforce and I pay tribute to the work that she has done in this area.
The Government recognise that mandatory training on learning disability and autism will support the health and social care workforce to improve the quality of care and support provided to people with a learning disability and autistic people, thereby improving health and well-being outcomes. We remain committed to improving the lives of people with a learning disability and autistic people. That is why we invested £1.4 million to develop, test and trial the Oliver McGowan mandatory training with over 8,000 people in 2021. This will help to ensure that the training rolled out is meaningful and impactful. It is with great thanks to noble Baroness, Lady Hollins, for her determination and her collaborative work with the Government that I am very pleased to say that the Government would like to support the amendment put forward to introduce mandatory training on learning disability and autism.
While we are keen to support the amendment, we will be proposing to make some changes to ensure that it is fully workable and fits into the legal framework. It is likely that such changes will be introduced at the Commons consideration of Lords amendments stage. We have discussed this with the noble Baroness and we will ensure that we keep her fully updated with our proposals in this space. We hope that this commitment today sends a strong signal to people with a learning disability and autistic people, as well as their families and carers, that the Government are committed to addressing the significant and persistent health disparities that they face.
I could not make this announcement today without a special mention and thanks to Paula and Tom McGowan, who campaigned tirelessly for this cause. The resilience and commitment that both they and the noble Baroness, Lady Hollins, have shown have been inspiring. They should be proud of all that they have achieved for Oliver and for others whose lives have sadly been cut short.
To further emphasise the Government’s commitment to instilling real change for people with a learning disability and autism, I confirm our intention that all integrated care boards should have a named learning disability and autism lead and that NHS England proposes to issue statutory guidance on this matter to assist integrated care boards. The Government are supportive of this approach and believe that learning disability and autism leads on every ICB would act as a voice for those with a learning disability and autism in commissioning decisions. I commend this amendment to the House.
My Lords, I welcome the Minister’s statement—it really is very welcome—and declare an interest as a vice-president of the National Autistic Society. I also thank the noble Baroness, Lady Hollins, for her dedication, commitment and sheer endurance in pressing this matter of ensuring that those who support people with learning disabilities and autism are well trained. Training is essential if we are to help young people in particular to experience the kind of life that all of us in this Chamber take for granted. With the right support, young people with learning disabilities and autism can enjoy that quality of life. I do not intend to detain the House, but I will just share with colleagues some of my experiences of young people who have succeeded because they have had the right support.
I met an 11 year-old boy with learning difficulties at a special school. He said, “You’ve heard I’ve got learning difficulties?” I said yes. “My brother has too,” he said. “He is five; he’s got autism. I’m helping my mother help him.” I said, “Oh, that’s good.” “I’m off to comprehensive school,” he said. I said, “That’s good. Are you looking forward to it?” “Yes,” he said, “and I’ve decided on my career.” I said, “What are you going to be?” “I’m going to be a High Court judge, and I can tell you now, if you come up before me, you’ll get a lenient sentence.” The point is that the school had really worked hard, but the head said to me, “He worked hard too at overcoming these problems.”
I met Max at a joint meeting of the All-Party Group on Autism and the All-Party Group on Apprenticeships chaired by the late Dame Cheryl Gillan, who pioneered the Autism Act. Max worked for a housing association. When I went there, I could see how hugely supported he was, as he had been as a youngster, in his job by his colleagues. At that time, he was an amateur actor and had appeared on “Victoria Derbyshire”. That was then—now he is an actor, a producer, a public speaker, an ambassador for the National Autistic Society and a recipient of the Princess Diana award, awarded to changemakers for their generation. He has had that success because he had the right support.
Finally, I mention Louise—I have not met her; I have just talked to her. Louise had some difficult times early in her life. “You don’t look autistic,” somebody once said to her. She said that she was often humiliated by her teachers and those in authority, and when she tried to work, she had meltdowns and could not cope. She got her first job in her mid-40s. She is now working for a charity supporting people with autism, and she said to me, “Now I’m given the space, and they let me lead and I can flourish. I’m helping other autistic people improve their lives.” With the right support, quality of life has been given to that woman, now in her 40s.
My point is simple: given the right support and encouragement, people with learning disabilities and autism can have the same quality of life as we all in this Chamber would expect for ourselves and our families. I welcome the Government’s decision to support this amendment. There is still much work to do, but it is going the right way. I thank the Government, and especially the noble Baroness, Lady Hollins, for pioneering the work that we are talking about this evening.
My Lords, I congratulate the noble Baroness, Lady Hollins, on bringing forward such a wise and sensible amendment, which follows a series of failings in the healthcare system, failings which might have been prevented if health and social care staff had had the proper training to meet the particular needs of those with autism and learning disabilities.
I consider this amendment to be about fairness—those with autism and learning disabilities may be treated as anybody may expect to be treated. I thank the Minister for her very positive response, and her and her team for working so closely with the noble Baroness, Lady Hollins, and others to achieve the training of the relevant staff and to ensure a voice on integrated care boards. This is a fitting and lasting tribute to the memory of Oliver McGowan, and I am sure that it will always be regarded as such.
My Lords, I am very grateful, and I know that Paula and Tom McGowan will also be very grateful—as will many people with learning disabilities and autistic people—to the Minister and to all those working behind the scenes for reaching this point and accepting my amendment, as well as for committing to include a learning disability and autism lead on integrated care boards.
I understand that some small changes may be proposed to ensure workability. I look forward to working with the Bill team and Department of Health and Social Care officials to ensure that these changes further strengthen the intention behind Amendment 176. I thank noble Lords for their support.
Amendment 176 agreed.
Amendments 177 and 178 not moved.
179: After Clause 164, insert the following new Clause—
“Office for Health Promotion
(1) The Office for Health Improvement and Disparities is to be re-established on a statutory footing, as the Office for Health Promotion (“the Office”).(2) The Office is an independent advisory board to the Department for Health and Social Care.(3) As part of its duties, the Office must publish a National Plan for Sport, Health and Wellbeing.(4) The aim of the National Plan for Sport, Health and Wellbeing is to—(a) tackle preventable factors causing death and ill health in the UK;(b) demonstrate ways in which sports can help to strengthen social ties;(c) direct funding for sport;(d) include measures to promote physical access to the countryside;(e) identify ways in which schools and colleges are to be encouraged to develop closer links with local sports clubs;(f) include a fully costed National Facilities Plan and specific efforts to tackle discrimination and ensure there is a safe environment for all participants;(g) instil a life-long habit of sport and physical activity throughout the education system;(h) include a comprehensive approach to welfare, care and safeguarding including reports on enforcement of welfare, care and safeguarding standards in sports governing bodies;(i) lead national efforts to improve people’s health by tackling obesity, improving mental health and promoting physical activity;(j) establish a Physical Activity Observatory to act as a centre for independent research and analysis of physical activity data to input into the design of the National Plan for Sport, Health and Wellbeing; (k) promote, encourage and raise awareness of the benefits of participation in sport for health, longevity, fitness, social interaction and wellbeing, and the other health benefits of exercise for all individuals, with the aim of preventing the onset of avoidable physical and mental illness and protecting people's health; and(l) promote clean athletes and the integrity of sport.”Member’s explanatory statement
This amendment implements recommendations 1, 2 and 3 of the House of Lords ‘National Plan for Sport and Recreation Committee’ report (session 2021-2022 HL Paper 113) which makes ‘The case for a national plan for sport, health and wellbeing’.
My Lords, I thank the Minister for meeting yesterday with the noble Baronesses, Lady Morris of Yardley and Lady Grey-Thompson, the noble Lord, Lord Addington, and me to discuss this important amendment. We were all grateful for the sympathetic hearing we had. We are also grateful to the Bill team and particularly to Jamie Blackshaw, the lead of the physical activity team at OHID.
The Government immediately raised a number of concerns about our amendment. We readily accept the wishes of Ministers in the department that, instead of the office for health promotion, it should be called the Office for Health Improvement and Disparities. We completely understand the motivation behind that and totally accept it.
I will also respond to the second concern that the amendment could be read as if we were taking away the mandate of OHID, when we were talking about focusing on a national plan for sport and recreation and calling it the office for health promotion. That was never our intention, and it was good to have the opportunity to clarify that yesterday. The intention is that OHID should continue to undertake all its admirable functions in full. I hope it succeeds in that objective. Importantly, it should add to that accountability to Parliament for a national plan for sport, health and well-being.
The noble Lord, Lord Willis, chaired the National Plan for Sport and Recreation Committee, which recently reported on a national plan for sport, health and well-being. There was a good response to that from the Government and we were pleased when, yesterday, the Minister underlined his commitment to many of the recommendations we made. We certainly will not raise them again this evening.
We simply focus on the importance of hearing from the Minister about the health promotion task force. It may not be inaccurate to say that we have had, or appear to have had, a first win, as a result of the work of the Select Committee, in recognising that there needs to be a co-ordinating activity within government for sport, health and well-being to come together to tackle obesity, low levels of activity and the problems that so many children face coming out of Covid. We believe the health promotion task force may be able to achieve many of the objectives that we set out in the committee and that, ideally, should have ministerial responsibility. There should be somebody driving that.
Sport tends to be on the touchline of Whitehall when it comes to policy co-ordination. We must ensure that we have somebody of the calibre of, say, Tracey Crouch, who has done so much good work in bringing together sport, health and well-being, as New Zealand does with its Deputy Prime Minister. It would be an admirable benefit to Government if they considered somebody of her ability, experience and respect to draw the work of the health promotion taskforce together.
It is important tonight not to rehearse any of the arguments we made in earlier deliberations on this Bill. High levels of inactivity, especially among women, ethnic minorities and disabled people, is of epidemic proportions in the UK. Nobody believes we can avoid the importance of cross-departmental policy co-ordination. Virtually every department of state now has an interest in sport, health and well-being. Unlike when I was a Minister when it was on the fringes of government, 30 years ago, today it is central to government policy. It needs the full weight of government behind it and that push must include education—we need to enhance the value of PE and teacher training time devoted to PE—as well as health, in addressing the obesity epidemic. It has to back up the outstanding work of the noble Baroness, Lady Grey-Thompson, in delivering a serious and robust approach to duty of care and safeguarding in sport.
I end by asking the Minister a number of questions. It looks as if the health promotion task force that is due to be established can achieve many of the objectives that the Select Committee and the four of us set out in earlier deliberations on the Bill. Is that the case? Does the Minister believe that the health promotion task force has the strength and remit to achieve those objectives?
Is it the Minister’s understanding that the Prime Minister will chair the Health Promotion Taskforce? If so—and this is the most important point for all of us on the committee, many of whom have been in sports policy for some 40 years—unless you have accountability to Parliament, you do not have the catalyst for change. With accountability comes the catalyst for change, and I simply ask the Minister to confirm that the Health Promotion Taskforce, covering the areas that the Select Committee has set out, will have teeth, not because it will be chaired by the Prime Minister but because it will be accountable to Parliament, so that Parliament can consider in detail the process, programmes, policy and direction in which we need to make significant advances to achieve improvements in wellbeing, health and sport, and the way that all three can work effectively together. I would like clarity on the commitment from the Minister, and I hope we will receive it this evening. I look forward to hearing from him, and I beg to move.
My Lords, I support the comments of the noble Lord, Lord Moynihan. I do not want to repeat points that have been made at this late hour, but I wish to emphasise that the arguments about the importance of sport and well-being do not need to be made again. Everybody from all parties, right across the House, understand their importance and the consequences of not getting them right. The good will has been there for years, but the ability to transform it into effective action has not, and lots of well-intentioned efforts in the past have come to naught. That is what is driving the committee that met under the chairmanship of the noble Lord, Lord Willis, and I agree with the questions that have been asked.
For me, it is a case of not relying on a cross-departmental committee to run this project. It has not worked in the past, and there is no reason to think that it would work in the future. Is there seniority? Is there someone with clout who can bang heads together? Is there someone for whom it is a very important part of their job, and who knows they will be held accountable? I agree with the noble Lord, Lord Moynihan, that the Health Promotion Taskforce does seem to offer hope. Clarity on that—letting us know about its leadership, and the presenting to Parliament of an annual report for discussion—would allay many of our concerns. I look forward to hearing the Minister’s response.
My Lords, I draw your attention to my interests: I am chair of ukactive, and I have a number of interests in this area. I also sat on the Lords Select Committee.
I too am not going to rehearse the arguments we gave in Committee, but all the names added to this amendment have been involved in this space for many years. We have all been through various iterations of this, and we should be talking about physical literacy and physical activity, and slightly less about sport. That might be surprising considering my background, but as the noble Lord, Lord Moynihan, said, we have an obesity crisis and a generation of young people who are more likely to die before their parents, and there are a number of conditions that can be treated. Frankly, we have been tinkering at the edges of this for way too long. There have been programmes and lots of initiatives that have had some success, but if we are serious about the NHS and the health of the nation, we have to do things in a different way. I feel like I have been talking about this for about the last 30 years—the noble Lord has had a slightly longer time in sport than I have—but I will be interested to hear the Minister’s response in order to understand how we can genuinely make a change and stop going round in circles on this important issue.
My Lords, the last shall probably be quickest on this. We have all, as is agreed, said that we need to do something that is coherent. This has not been coherent. We have had committees that met once every full moon, provided everybody had had tea of the right quality that day; thus was their infrequency. Nobody was prepared to ensure that something that was inconvenient for one department was done to ensure that another department fulfilled it. There just was not anything. The Olympics did not manage to make them work together. We need coherent leadership and a price to be paid—accountability—for not doing it. If the Minister can give us that, we will have taken a major step forward. I would of course prefer the amendment that has been tabled, but I will take half a loaf any day over no bread. Can the Minister assure us that there will be leadership and that a price will be paid, publicly paid, for not doing it? Without that, as we know, this will merely become a report with somebody else saying, “They should have had a meeting about it some time”. Let us bin this. I am fed up with making that speech, even though it does usually get me out of a lot of trouble.
My Lords, this is a key opportunity to do something really significant for the health of the nation, from the youngest to the oldest, and for all the groups we refer to as “excluded.” This is a key moment. If the Minister can respond positively to the questions put to him by the noble Lord, Lord Moynihan, he will be doing a very good job for the nation.
My Lords, I entirely support my noble friend Lord Moynihan when he asks for proper accountability. That is what drives the few examples of successful cross-departmental co-operation. One of the recent missed opportunities is Defra not picking up on aspects of the Glover report that deal with people getting out into the landscape. To make a difference to that, Defra has to care and it has to be brought to account, but there also has to be a good enough mechanism to ensure that if Defra does propose to do something, someone is going to fund it. That would certainly apply too to schools’ collaboration with local sports clubs. Parents up and down the land want that to happen. But how is that going to be afforded? How is that going to be made to happen? Who is holding the systems accountable? There has to be some system whereby accountability and interest flow through—as my noble friend said, ideally, to Parliament—to make that happen.
I have written to the Minister on perioperative care, which is another example. How does the NHS collaborate with all the other people who might provide the support required for effective perioperative care? They are not in the NHS; it does not work that way. You can have a system that just involves spending the money and ticking the box because that money has been spent; or you can have one with real accountability, in which people care whether you get the results and are measuring that, and who feed that through to someone with a central interest in things. So I am really going to listen to the Minister with great interest on this.
My Lords, I want to thank the noble Lord, Lord Moynihan—along with the noble Baronesses, Lady Morris and Lady Grey-Thompson, and the noble Lord, Lord Addington—for bringing forward this important amendment. It does strike me as strange that the UK does not already have a national plan in place to promote sport, health and well-being. If we are to tackle the acute obesity crisis in this country, a joined-up, forward-looking strategy at a national level is necessary. From these Benches, we support this amendment wholeheartedly. It offers huge potential to tackle obesity, poor mental health and a sedentary lifestyle in a joined-up way that sees people as whole people with different pressures and needs, but with the intention of focusing on prevention. So, I hope the Minister will be able to respond positively tonight.
I begin by thanking the noble Lords who initiated this debate tonight and my noble friend Lord Moynihan, the noble Baronesses, Lady Grey-Thompson and Lady Morris of Yardley, and the noble Lord, Lord Addington, for meeting with me yesterday, and with the Bill team and representatives from the Department for Education and DDCMS. What was really interesting was the experience that all four brought. The noble Baroness, Lady Morris, talked about her experience in government and how it was sometimes difficult to get departments to talk to each other, even though they all seemed to agree. We had two former Olympians, who spoke about their experience of elite sport. But how does that translate into grass-roots sport? How do we make sure we get people active?
What was also really interesting was when we spoke about the 2012 Olympics. Yes, we had them and there was some legacy of redevelopment in east London, but they did not really lead to a legacy when it came to physical activity. How do we make sure we avoid the so-called Wimbledon effect? We all know that effect: around the time of Wimbledon, you cannot get a place on a tennis court, but a few months later it is simple to do so. How do we make sure this is long term?
If you are going to tackle obesity, yes, we can reformulate food and look at other issues such as taxes and negative externalities to discourage the intake of calories. However, you also have to burn off calories at the same time through activity. It does not have to be elite sport. We are not all going to be Olympians—like the two noble Lords here who were—but that should not stop you. All too often, what happens at school level is that if you do not get into a top team, you give up because you are considered not good enough. It does not matter how good you are; it is the activity that counts.
The Government’s recent response to the National Plan for Sport and Recreation Committee report addresses clearly, we believe, the recommendations made in this amendment. I hope that noble Lords will take some reassurance from what I am about to say and the fact that we take this seriously. The Government agree with the committee’s overarching recommendation on the need for an ambitious national plan for sport and physical activity. We are firmly committed to increasing sport participation and physical activity levels, and to ensuring that everyone has access to opportunities to get active. It should not just be about elite sport.
I can confirm that the Government will set out their forward-looking strategy for sport and physical activity later this year. It will look at tackling levels of inactivity as part of our plan for recovery from the pandemic. We hope that this strategy will provide a unified, cross-government approach to driving participation, integrating with Everybody Active, Every Day, the School Sport and Activity Action Plan, and Sport England’s new strategy Uniting the Movement. Of course, while setting out a cross-government strategy will be welcome, it is equally important to set out information on the implementation. I can confirm that the strategy will set out further detail on implementation, including how to harness such action across government and between departments.
The Government understand the concerns that noble Lords have raised and recognise that previous Governments of all parties have not always got it right. They tried—it was not for lack of trying—but it is about the implementation and strategies in this area. However, we believe that lessons have been learned and I hope that our approach will have the intended positive impact.
After the conversation yesterday with noble Lords, during the post-meeting debrief I spoke to the officials from other departments and asked, “How can we make sure that this is truly cross-government?” Let me assure noble Lords that other departments have also been looking at this issue. The Department for Levelling Up, Housing and Communities and the Department for Transport also have important roles in helping to create health-promoting and more active local environments. I reaffirm the Government’s commitment to working cohesively on such actions.
I also assure your Lordships that departments involved in the sport and physical activity strategy take their responsibility to co-ordinate extremely seriously. This is being led by DCMS while, more broadly, the Government understand the utmost importance of getting this right —and we must not lose that. That is why I am delighted by the leadership of the Prime Minister on the Health Promotion Taskforce, supported by the Cabinet Office. That will enable the Government to consider all options open to them. I will come to this in due course.
The Government recognise that it is important to provide updates to both Houses on the progress of the strategy and will publish arrangements for that reporting in the strategy. I also assure noble Lords that the Government invite and welcome the continued scrutiny of plans to address inactivity, to promote sport participation and to improve people’s health through physical activity. Undoubtedly, the relevant committees in the House of Lords and the House of Commons will have an interest in any future strategy and its progress. I am sure noble Lords will also want to continue to ask Questions of Ministers.
We recognise the deep experience of noble Lords in this area and I know that that interest extends to the other place. Only last night, my honourable friend Gillian Keegan, the Minister of State for Care and Mental Health, responded to an adjournment debate on physical activity and health. On that point, I reiterate and acknowledge the benefits and importance of promoting that. We know the gains made in activity levels in some key populations, including women and older adults, before the pandemic have now been reversed, and the Government share the concerns of noble Lords on this matter.
The Office for Health Improvement and Disparities has a key role in working across government to shift the dial on health disparities. When it comes to physical activity—if noble Lords will excuse the pun at this time—we know that it is not a level playing field. The people who we most need to support include older adults, those in most deprived areas, those with a disability, those with one or more long-term health conditions, those who were asked to shield and those from various ethnic minority groups. That is where it is important to have a trusted source of independent scientific advice on health improvement issues and policies, including physical activity. This will ensure that decision-making is evidence led and that there is a clear focus on addressing disparities.
In setting up the new Office for Health Improvement and Disparities, the Government are bringing together scientific and public health expertise with policy development to ensure that prevention is at the heart of our agenda. The Government believe that that is the essential objective of a department of state rather than one that would be better carried out than an arm’s-length body. The new office takes a holistic approach, which includes the promotion of physical activity as well as a much wider agenda to enable a more active nation and improve health. We must address those health disparities, which have to be at the forefront of the agenda. I thank noble Lords who took part in the meeting for recognising the importance of keeping the words “disparities” and “improvement” in there.
My noble friend Lord Moynihan asked about the Health Promotion Taskforce. This is driving cross-government efforts to improve the nation’s health and reduce disparities. The Prime Minister launched the task force. Under his leadership it will work to drive improvements. The next meeting will be chaired by the Secretary of State for Health and Social Care and focus on air quality, physical activity and active travel. We recognise the importance of ensuring parliamentary engagement and accountability as work progresses and I can assure noble Lords that we will feed their views and those of the Select Committee into the deliberations of the task force. We also recognise parliamentary scrutiny and accountability and the enduring and valuable interest of noble Lords across the House in seeing progress in this area.
If they will forgive me, I will write to noble Lords with the details of how the task force will be held accountable. More broadly, I am sure that the House will want to hold Ministers accountable for progress, as noble Lords so ably do. The task force is focused on physical activity and active travel, and I will make sure that I continue to update noble Lords as we make progress. I hope that this provides some reassurance to my noble friend and to other noble Lords who joined the call yesterday, as well as noble Lords across the House.
We are committed. All Governments have made mistakes. We have got to do this in a joined-up way. We believe that, with the Prime Minister at the top pushing this from No.10 across government, making sure that we can all work together, we have learnt the lessons. I also hope that noble Lords whom I spoke to yesterday and in this Chamber tonight who have shown an interest in staying for this debate will also hold us to account. For that reason, I ask my noble friend to consider withdrawing the amendment.
My Lords, I have to say that that is the best statement that I have heard in support of sport, health and well-being from the Front Bench for many a decade from all parties. It is exceptionally welcome to hear from the Minister early in his response the importance of the agreement to an ambitious national plan. That is something that the Select Committee was very much looking to and, in fact, it was a central plank. To hear from my noble friend that the Prime Minister will be chairing the Health Promotion Taskforce and that its first meeting will be considering physical activity as a key aspect of the work of that task force is also exceptionally welcome. To hear from the Minister that the deliberations of the Select Committee and the comments made this evening in the debate from everyone, including members of the Select Committee and other who have contributed, will be passed to the task force for its consideration is also welcome.
We heard from the Minister that it was vital that, for this whole initiative to be successful as a catalyst for change in the sector, accountability is key. We push for accountability to Parliament because, if that can be done every year and Parliament can consider the outcomes of the work of the Health Promotion Taskforce and the other bodies that he mentioned, that accountability itself will be the much-needed catalyst for change. So I thank my noble friends in sport from across the House and the Minister for his response.
It was echoed, I might add, by many hundreds of responses from across the worlds of sport and recreation during the work of the Select Committee. The overwhelming majority were in favour of a national plan. I am very grateful to noble Lords who have stayed to this late hour to hear this debate. Given the assurances that the Minister has given, I beg leave to withdraw.
Amendment 179 withdrawn.
Amendments 180 to 182 not moved.
183: After Clause 164, insert the following new Clause—
“Permitted locations for abortion treatment
(1) The Abortion Act 1967 is amended as follows.(2) In subsection 1(3) after the first “section” insert “, or section 1A of this Act”.(3) After section 1 insert—“1A Approved places(1) The home of a registered medical practitioner is approved as a class of place for treatment for the termination of pregnancy for the purposes only of prescribing the medicines known as Mifepristone and Misoprostol to be used in treatment carried out in the manner specified in subsection (3).(2) The home of a pregnant woman who is undergoing treatment for the purposes of termination of her pregnancy is approved as a class of place where the treatment for termination of pregnancy may be carried out where that treatment is carried out in the manner specified in subsection (3).(3) The treatment must be carried out in the following manner—(a) the pregnant woman has—(i) attended an approved place,(ii) had a consultation with an approved place via video link, telephone conference or other electronic means, or(iii) had a consultation with a registered medical practitioner, nurse or midwife via video link, telephone conference or other electronic means; and(b) the pregnant woman is prescribed Mifepristone and Misoprostol to be taken for the purposes of the termination of her pregnancy and the gestation of the pregnancy has not exceeded nine weeks and six days at the time the Mifepristone is taken.(4) Nothing in this section should be taken to affect any approval otherwise made by the Secretary of State under subsections 1(3) or 1(3A) of this Act. (5) For the purposes of this section—“approved place” means a hospital in England or Wales, as authorised under section 1(3) of this Act, or a place in England or Wales approved under that section;“home” means, in the case of a pregnant woman, the place in England or Wales where a pregnant woman has her permanent address or usually resides or, in the case of a registered medical practitioner, where a registered medical practitioner has their permanent address or usually resides.””
My Lords, Amendment 183 in my name, if accepted, would maintain the existing provision of at-home early medical abortion following a telephone or video consultation with a clinician. It is very late in the evening, but this is an important issue which will impact hundreds of thousands of women. The existing provisions, which the amendment simply transcribes into the Bill, were adopted in March 2020. It is a straightforward and narrow amendment with the sole purpose of retaining a service that has been in place for the last two years.
Early medical abortion, which can take place up to 10 weeks into a pregnancy, involves two medications. Previous government policy in England was that only the second pill could be taken at home, with women having to attend an abortion provider in person to take the first pill. The approval that was put in place simply enables women to take both pills at home. This was a pandemic-led shift to telemedicine, but the clinical benefits of telemedical service were known even before Covid-19, with NICE recommending it in September 2019. Sadly, following a government announcement a few weeks ago, this approval is currently set to be removed in August this year.
At this point, we should briefly be clear on what removing the existing provision would affect. It would have no impact on the requirement for face-to-face consultation, for face-to-face safeguarding, for ultrasound scans or to be seen in person by both doctors. Any of those changes would require amending existing regulations and that is not what we are debating tonight. The only thing impacted by this amendment is the requirement for women to visit a clinic and then leave again. I hope noble Lords agree that we can focus on just that.
There is no medical reason why telemedicine, alongside interpersonal appointments, should not remain a permanent option. There is overwhelming evidence that allowing women the option to access early medical abortion at home, where clinically appropriate, has created a safer and more effective service. During the pandemic, the largest ever study of UK abortion care, published by the British Journal of Obstetrics and Gynaecology, found that this service shortened waiting times and enabled women to receive care much earlier in their pregnancy. Some 150,000 women have received telemedical abortions since March 2020 and the data on the number of women presenting to NHS services with complications has shown a decrease. Renowned medical bodies support its use, including the Royal College of Obstetricians and Gynaecologists, the Royal College of General Practitioners, the Royal College of Midwives, the British Medical Association, the Academy of Medical Royal Colleges and many more. Just last week, the World Health Organization made it a key part of its global guidance on abortion care.
It is not just the medical experts who want to see this service made permanent—women do too. A recent study in the British Medical Journal found that 89% of women who have used a remote abortion consultation would choose to have treatment at home. It helps women who may struggle to find the time and travel the distance to an abortion provider. This includes those who have childcare or caring responsibilities, who struggle to take time off work, who live in remote or rural areas with little transport and many other logistical, social and economic reasons. Importantly, it can also be a lifeline for women in vulnerable situations. Maintaining the service is fully supported by women’s groups, including Women’s Aid, the End Violence Against Women Coalition and Rape Crisis, which say that it enables women in controlling and abusive relationships to access essential medical care. Removal of telemedical abortion provisions would almost certainly lead to a resurgence in women seeking to access unregulated pills bought online. Without telemedicine, waiting times will rise and current staffing levels would be insufficient.
There is a serious risk that some women would, as a result, be unable to access legal abortion care, either because the providers do not have the capacity or because increased waiting times push some women over the legal limit. Of course, face-to-face services must still be provided for all women who require or request it. However, to take away from women a service that has proven safe, accessible and compassionate, and which enables women to deal with a difficult situation in the comfort and privacy of their own homes, is not the right way forward.
This amendment follows the guidance of medical professionals and would deliver on the Government’s aim to listen to women and put them at the heart of the women’s health strategy. I believe the case is clear and hope that the Government will accept this amendment. I beg to move.
My Lords, in speaking to this amendment, I apologise for not having spoken in Committee. I want to do so because I have received hundreds of emails urging me to vote against this amendment. I want to explain why I will vote for it—if there is a vote—and why the people who emailed me are worrying about the wrong thing. I emphasise that this is not about changing the law.
I will not make a long speech because the noble Baroness, Lady Sugg, explained the amendment brilliantly and thoroughly. I will make just a couple of points. Over the past two years, the Department of Health, the Government and SAGE—everyone—have told us to follow the evidence. The truth is that this telemedicine, pills-by-post approach to termination pre 10 weeks’ gestation is simply a medical practice innovation that is safe, effective and follows the best clinical practice. So I want to follow the evidence.
About the only positive outcome of the pandemic I can see is that an enforced pilot scheme has given us evidence of the efficacy of this. We also know, as has been mentioned, that many women appreciate this option because there is no clinical need for them to attend a clinic for this procedure. I really cannot see why the Government cannot see that women who do not need hospital care or in-clinic services to access a procedure should not be forced to take up valuable appointment slots and staff time and unnecessarily squander resources that would be better used to intervene in genuine medical emergencies.
Despite all this, I understand that, for many people, the issue of abortion cannot be reduced to evidence or medical practice because they have moral concerns. I assure them that nothing in this amendment, which is literally about the location where a woman swallows a pill, touches on moral values. This is not a law change. Who can and cannot have an abortion remains exactly the same. The grounds on which abortion is legal remain exactly the same. It is common sense and pragmatic as a matter for women but, if you are morally opposed to abortion, you will still be morally opposed to abortion because nothing in this amendment will change your moral objection. Be reassured: you must have a different fight but not on this amendment, which is total common sense. The Government should accept it.
My Lords, I begin by paying tribute to the noble Baroness, Lady Sugg, for her tireless work on gender equality and areas of international development. We have often been collaborators on such matters. I also apologise to the noble Baroness if she has personally received any hurtful comments on this; some of the things I have seen were shameful. She should not have been abused in this way. Nevertheless, I will oppose her amendment; I hope she understands that this in no way lessens the way in which I honour her for her work.
I declare at the outset that the Church of England’s position on abortion is principled opposition, with a recognition that there are strictly limited conditions under which it may be preferable to any available alternative. My opposition to the amendment is based on that in part but also because I believe that the amendment is functionally inadequate in providing the necessary protections. This was a temporary measure introduced during the pandemic to allow continued access to abortion services, simply to meet a need in extraordinary circumstances. I support the Government’s decision to return to the pre-pandemic system for early medical abortions from August, which was supported by many in the public consultation response.
I also share the concerns of respondents to that consultation around the potential for coercion, the greater possibility of inaccurate assessment, further complications and lack of support. It is of utmost importance that women are safeguarded from coercion and abuse, that they receive accurate and effective medical care through proper assessment, that complications are minimised, and that support is provided to those who need it.
The concerns that I and others have about this kind of at-home early medical abortion are not sufficiently mitigated by the amendment, and in-person visits to a clinic or medical centre continue to be vital. Supporting the vulnerable and creating thorough and effective legislation to do so must be our priority, hence my opposition to the amendment. I conclude by repeating my honouring of the noble Baroness, Lady Sugg.
My Lords, I support this amendment, to which I have added my name. Evidence-based practice that utilises modern technology for the assessment and delivery of treatment for people who choose to take the first pill at home is cost-effective. I think we forget that the majority of healthcare workers, be they medics, midwives or nurses, try to provide person-centred care. Person-centred care means that some women will still be asked to come into the clinic to take that tablet because it is the best solution for that woman.
However, some women live in rural environments where there are very poor bus services. When I went to the women’s meeting at the UN three years ago with other Members of this House, young women representing the four country youth parliaments told harrowing tales of women who had been given the tablet in a clinic but had not got home before the spontaneous abortion commenced. We heard very good examples, particularly from some other countries in Europe, where taking the tablets at home was already normal practice.
The largest study on telemedical abortion in the world was conducted in the UK, covering 52,000 women both before and after the change—in other words, using the natural experiment that occurred as a result of lockdown. There was no change in adverse incidents, no change in successful completion rates, a reduction in waiting times, a reduction in gestation at treatment and it was preferred by women. This evidence was used by the US Food and Drug Administration to make the first tablet at home a permanent option at the end of last year. As the noble Baroness, Lady Sugg, has just said, the World Health Organization issued its international Abortion Care Guideline last week. Telemedicine and self-management of abortion outside a healthcare facility are both in there.
This amendment would enable better person-centred care for the majority of women, as well as for their families and often their partner who will be with them at the time—particularly for people who are perhaps having a third or fourth child which for clinical reasons is not advised. I therefore hope that the fact the majority of people here have a free vote means that they really consider what I have just said.
My Lords, health and safety have arguably never been more front and centre in our nation’s thinking and approach to healthcare. The Government prioritising healthcare in one of their flagship Bills is therefore expected. I am proud of our Government.
As proud as I am, I feel equally perplexed as to why the amendment tabled by the noble Baroness, Lady Sugg, seeking to override the Government’s decision to end the temporary policy on at-home abortion would garner any serious consideration, given that it would contradict the aims of the Health and Care Bill by placing the health and safety of women and girls at risk. It also distracts from important matters in the Bill, for which the Bill was intended.
The provision allowing at-home abortion made alongside a host of other Covid regulations during an unprecedented global crisis was only ever meant to be temporary alongside almost all other temporary provisions of the Coronavirus Act that the Government are expiring or have already expired. The Prime Minister said that the Covid restrictions
“take a heavy toll on our economy, our society, our mental wellbeing and the life chances of our children”.—[Official Report, Commons, 21/2/22; col. 45.]
The health toll could not, in the specific case of the temporary provision allowing at-home abortion, be more apparent; it is a toll being taken on vulnerable women and girls. As highlighted by a submission to the government consultation on this matter, the lack of in-person consultation increases risks of potentially life-threatening conditions being missed, pills being prescribed beyond the 10-week limit, more women being coerced into a home abortion against their wishes and pills being obtained fraudulently.
These are not unwarranted concerns. Soon after the temporary policy was implemented, story after story emerged of the tragically painful experiences women underwent as a result of this policy. For example, a Telegraph article reported on a nurse whose at-home abortion led to extreme complications needing surgery. Indeed, there have been several cases of women taking these abortion pills outside the legal and safe time limit. For example, in May 2020 police investigated the death of an unborn baby after a woman took pills received by post at 28 weeks pregnant. Such cases are unsurprising given that abortion providers cannot ensure that at-home abortion pills are taken by the intended person in the intended circumstances and time. According to the American College of Obstetricians and Gynecologists, only half of women accurately recall their last menstrual period, again reaffirming that medical confirmation of gestational period is critical.
Given the vast evidence base highlighting how this policy has placed women’s health and safety at risk, an evidence base thoroughly reviewed by the Government in an extensive three-month consultation, I urge the noble Baroness, Lady Sugg, to withdraw her amendment but if she does not, I urge noble Lords to vote against it.
My Lords, it is a pleasure to follow the noble Baroness, Lady Eaton, and I rather agree with the points that she has just made. But the noble Baroness, Lady Sugg, also knows that I have considerable admiration for her, especially over issues around the stand she took about cuts to our overseas aid programmes; we had the privilege of serving together on the Select Committee of your Lordships’ House that deals with international relations and defence. She will not be surprised to know that I find myself in disagreement with her and I urge your Lordships to think seriously about Amendment 183.
I will give the House two reasons for this, if I may. One is procedural and the other is more substantive. I suppose on the substantive point, I will cite, as the noble Baroness, Lady Eaton, has done, some of the contradictory evidence that we have before us. Your Lordships may not be able to work out whether you believe one side of the argument or the other, and that brings me straight to the point about procedure.
Here we are at almost midnight. This issue has never been debated at any stage in another place in the elected House. Rather like Amendment 170 that we discussed earlier, we have to consider how we resolve sensitive and controversial ethical issues of this kind. There was no consideration of this question in the elected House, and it has come to us without being considered in Committee but at the fag end of Report stage. Surely all of us can agree, wherever we come from on the more substantive point, that this is not the way to go about parliamentary business.
We should bear in mind that since 1967, when the original legislation was passed in another place and then approved here, there have been 10 million abortions, which is around 200,000 every single year. Put another way, there is one abortion every three minutes. You do not have to come from the position that I think noble Lords will be aware that I come from, of believing in the sanctity of every human life, to think that this cannot be right. Indeed, my good friend Lord Steel, who was the mover of the original legislation, has often said that he never intended abortion to be as widespread or repeated as often as it has become.
This all points to the question of procedure. Should there not be a joint committee of both Houses to consider this extraordinarily complex ethical question? Should we not at least have a Select Committee that considers these matters? Should there not be pre-legislative scrutiny before a Bill or an amendment of this kind comes before Parliament? It is passing strange that since 1967, no Select Committee of either House has looked at this legislation, the original Abortion Act 1967. I say to the noble Baroness, Lady Fox, who always makes valuable contributions to your Lordships’ House, that we are changing the law. That is why this amendment is before your Lordships’ House this evening. We would not need the amendment if we were not changing the law.
I also ask those who have rightly emphasised the importance of conscience, and particularly some of my friends and noble friends on the Lib Dem Benches, why this is not a conscience vote. Why is there a Whip on an issue of this kind?
I am glad to hear that, because I was sent a document earlier on saying that there would be a Whip and that people should vote “Content” for this amendment.
If that is so, I am glad to hear it. Noble Lords will know that, for me, this issue led to my leaving the Liberal Democrats when it became a party policy, so I would love to hear clarity on that question as the evening goes by. I passionately believe that this should be a conscience question for every Member but also at every vote. This should never be a party policy; people should be free to make up their own minds on a serious ethical issue—one of such magnitude and order that it should not be dealt with in such a perfunctory manner.
It was the noble Lord, Lord Kamall, who said that this
“was always intended to be a temporary measure.”—[Official Report, 10/2/22; col. 1820.]
In February, in announcing its end, the Government gave the results of a public consultation. Some 70% of those who responded said that it should end immediately. The consultation highlighted increasing safeguarding risks and “concerns about coercion”. Reinforcing that point, last weekend, BBC “Newsbeat” reported that 15% of women in a Savanta ComRes survey said that they had experienced pressure to terminate a pregnancy. Some women reported being given substances to cause an abortion without their consent.
I would be very happy to share with the noble Baroness, Lady Sugg, some of the contradictory evidence from GPs and doctors. She cited the RCOG and others, but I point out that, again in that ComRes poll, 86% of GPs surveyed across the UK were concerned about women having a medical abortion past the legal limit of 10 weeks gestation. Concern was highest among female doctors, at 91%. Six in seven GPs were concerned that the policy could see more women being coerced into abortion. Some 86% were concerned that women were at risk of being coerced into an abortion by a family member or partner, and 87% were concerned that women were at risk of unwanted abortion arising from domestic abuse by partners controlling or monitoring their actions. Some 94% agreed that staff at abortion providers need to ensure that they are collecting correct medical and personal information to certify a woman for a home abortion, and that it is important that checks are put in place to ensure that women being certified for abortion meet legal criteria. So, there is contradictory evidence, and surely that should be properly evaluated before we proceed in further liberalising our abortion laws.
A study released in November 2021 suggested that more than 10,000 women had to receive hospital treatment following the use of medical abortion pills in England between April 2020 and September 2021. Previous polling showed that 92% of women in Britain agreed that a woman receiving an abortion should always be seen by a qualified doctor. There are many statements from women that, again, I could provide to the noble Baroness, should she wish to see them.
The hour is late, so I will conclude. An email from a regional chief midwife described how women had to attend emergency departments for a range of incidents, including
“significant pain and bleeding related to the process through to ruptured ectopics”,
“major resuscitation for major haemorrhage”,
and incidents involving the delivery of infants who, as the noble Baroness, Lady Eaton, told us, were up to 30 weeks’ gestation.
The evidence suggests that official statistics appear to significantly underestimate the complications and risks. The Minister will have seen that 600 medical practitioners have signed a letter highlighting concerns and calling for the cessation of the temporary measure. This is worthy of proper scrutiny and consideration. It involves the safety of women, but it also involves the taking of a new life. Science teaches us that life begins at conception. Surely, we should give this proper and due consideration before passing this into law.
My Lords, I am grateful to the noble Lord, Lord Alton. I join him and the right reverend Prelate the Bishop of Durham in paying tribute to my noble friend Lady Sugg for her work on women’s issues—work that I support in every way I possibly can. I think that this amendment is a useful amendment to this Bill. My noble friend Lady Sugg is right that the world is changing: science raced ahead during the pandemic, and many things that had not been tried before were tried. Clinical tools have become more sophisticated, practices are undoubtedly evolving and there are definitely lessons from the pandemic that are worth our consideration.
That is why I very much welcome an opportunity to stand back and reflect on what has changed since 1967, which the noble Lord, Lord Alton, referred to, when the current settlement on abortion was agreed. That was an incredibly important moment, when those with different views engaged with public opinion, clinical judgment, ethical analysis and spiritual leaders. I accept that that settlement made in 1967 will not last for ever. In fact, I agree with my noble friend Lady Sugg that the arrangements that have been in place for many years definitely need a second look. If we agree that the moment is right, I emphasise that any reconsideration of these issues should be done in a thoughtful, considered fashion and that we should engage the large number of people who have strong feelings, as well as expert opinion.
We need to do this because these issues are extremely complex and the evidence is conflicted, and they engage so many different strands of our emotional, spiritual and intellectual life. If this this debate this evening is a starting gun for that process, I would recognise its significance and ask the Minister to reflect on the moment in his comments.
However, if this amendment is a realistic attempt to bring about a significant long-term change to the clinical pathways of our health system, I would be extremely alarmed. Regarding the point made by the noble Lord, Lord Alton, on procedure, I have serious concerns. There is no value in blowing up the long-term arrangements that were agreed in 1967 in a late-night Report debate on an amendment introduced at the last minute to a Bill that is about the integration of our healthcare system. It would be a travesty if the easements that were brought in to cope with a global pandemic were used as a pretext for a long-term rewriting of our abortion laws. We were promised that that would not be the case, and it would be regrettable if this Government went back on those reassurances.
I draw to the attention of noble Lords the report by Gynuity Health Projects, published in March 2021, on its study of the efficacy of telemedicine abortion. It found that 5% of participants using the medical abortion treatment at home needed surgical intervention to complete the procedure. These are worrying numbers and are worthy of further investigation before the current situation passes into legislation.
My hope is that this amendment is regarded for what it should be: a testing amendment to stimulate debate and not a serious effort to overturn arrangements that need to be reformed, not overturned. That is why I call on the Minister to explain why this amendment should not stand, and on my noble friend Lady Sugg to confirm that she will not be moving her amendment.
My Lords, I find myself conflicted over this amendment. I am probably the only person in this Chamber who has consulted women over abortions, signed forms for abortions and performed abortions and I have been with women during late abortions for foetal abnormality. It is a complex area. I have also had women say to me, in the privacy of the consulting room, just before they go, “I have never told anybody else this before”—they have then told me about the serious abuse that they have suffered.
My worry with the first part of the amendment, on remote consultation, is that you do not know who is on the other side of camera or who is standing in the room with the woman. You do not know whether the man is using fertility and sex as a form of abuse and is standing there threatening the woman to proceed in one way or another. We know that men refusing to use condoms is a common form of coercive control of women.
The abortifacient tablets, to which my noble friend Baroness Watkins referred, are a separate step. It is inhumane to expect women to take those and then travel on a bus or even go in a taxi. Knowing what has happened before, I cannot help feeling that there is another step. Yes, let the women have their tablets and take them in the privacy of their own home. It is not pleasant to undergo an abortion—nobody should think that it is—but those women also need support and contraceptive advice as part of the package. I am concerned that I do not see that in this amendment and I have been concerned that during the pandemic the ability of women to access contraception may have become more difficult.
This is a complex issue. It is about a pathway with many steps in it. I wonder whether we should return to it at Third Reading, rather than trying to take a yes or no decision tonight on something that has some merits but also some problems. We are not adequately going into them by having a short debate now.
My Lords, it gives me great pleasure to follow the noble Baroness, Lady Finlay, whose contribution reflects her extensive wisdom and knowledge in this area. I just want to say that I commend my noble friend Lady Sugg for her leadership in bringing forward the amendment. I, too, will listen to what the Minister says in reply this evening, but instinctively I support what my noble friend is seeking to achieve.
My Lords, I rise briefly to support Amendment 183. My background in this goes back to March 2020, in those difficult, scary, early days of the pandemic, when your Lordships’ House was operating on a skeleton crew. That led to me, as very new Peer, moving the amendment to the coronavirus regulations that would have allowed for telemedicine. I thank the noble Baroness, Lady Barker, who I note has signed this amendment, for supporting me through that process, because I had little idea about what I was doing in terms of your Lordships’ House. It is worth noting that we were doing that in part in acknowledgement that women would not otherwise have access to the necessary medical service of an abortion, but also because we knew that NHS resources were going to be enormously stretched. We are still in a situation where NHS resources are enormously stretched. Earlier we were talking about the Ukrainian refugees whom we will be welcoming here and the medical services that they will need.
Of course, we want to say that, in this area of medicine, we should be putting resources into all the NHS services that women need, but the evidence is overwhelming that telemedicine abortion is giving women a better service. I pick up the point made by the right reverend Prelate that there may be safeguarding concerns. There is evidence, particularly from MSI Reproductive Choices, reporting a major uplift in safeguarding disclosures, including from survivors of domestic and sexual abuse, with telemedicine.
On the medical side of this is a simple clear fact: since telemedicine has been introduced, complication rates from abortion have fallen by 20%. You do not have to listen to just me on this; permanent provision of abortion telemedicine is supported by eight royal colleges and medical societies, including the Royal College of General Practitioners, the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives and the British Medical Association. I also point out that abortion telemedicine is going to continue in Wales and Scotland, based on the evidence. The arguments are simply overwhelming: this is the best option.
My Lords, I was not going to speak on this, but I listened to the noble Baroness, Lady Finlay, and that encouraged me to stand up and speak, together with other noble Lords who are a bit cautious about all of this. I was a vicar of an inner-city parish in which there were a lot of teenage pregnancies, and those who made them pregnant tried to force them to have abortions. The only person they felt they could tell was the vicar, not their parents, because their parents would hit the roof. Some of them would get corporal punishment as a result. I found myself in difficult, tricky situations, but I was fortunate, because in the congregation we had midwives and doctors. I simply said, “I listened to what you are saying to me, but I am not medically qualified to give any advice. We have experienced people who can give you that advice.” I was grateful that those midwives and doctors were able to accompany these teenage girls and help them come to a more sensible position.
I speak as somebody who is not against abortion, because the welfare of the mother and her rights need to be protected, but I am concerned about a measure that was brought in because of extreme circumstances. The Government were right, during the pandemic, to allow the kind of arrangement that was set up. But I am with the noble Lord, Lord Bethell, that we should not change overnight a tradition and circumstances that were accepted by the majority who see the right of abortion. We should not say that we will now go down this almost administrative route as the norm. Most people would be very concerned if we were going down a particular route.
I strongly believe, because of my experience of those teenage pregnancies in Tulse Hill, that the role of doctors, specialists in counselling and others is absolutely vital. You cannot do away with that because it is easier at the end of a telephone. You may not believe it, but young boys who had made girls pregnant would put pressure on them to have these abortions, for no reason other than that they wanted to move on to the next young girl. I still find that unacceptable.
I am reminded of the Mau Mau rebellion in Kenya, when most of the clergy of the Church of England were white. Congregations wanted to have communion, but they knew that if a white person turned up at a church during Mau Mau, they would be killed. So they took the decision that the lay people within the congregation should celebrate communion. That happened. Then Mau Mau ended, and the Church in Kenya said, “Oh good, we can now have lay celebration of communion, because these white people won’t be killed any more because Mau Mau has ended.” Archbishop Randall Davidson, who was Archbishop of Canterbury at the time, said, “During Mau Mau, it was a good thing that communion was celebrated by lay people, but it must not continue, because the old order was to establish who should be celebrating.”
We have been through this very difficult period. I am not so sure that measures that were appropriate during that time are appropriate now and should simply be rolled over. We need a fuller debate and it cannot come at the end of this stage. It was not there at the beginning, when there would have been a lot of debate. I would find it difficult if the Minister accepted the amendment, because the Government announced that this measure would come to an end, like all the other measures brought in because of extreme circumstances.
My Lords, I have listened to many remarks this evening. There are three things we must remember. First, this approach was brought in during a time of necessity and it has worked. Not only has it worked but it has worked well. It has worked well for vulnerable groups; it has worked well for the wider community, and we should not lose sight of that fact.
Secondly, as we consider what we must do next, we must recognise that it has worked and, on that basis, we should move towards the next step, which is recognising how we can move this forward. It is not an easy issue; it is late at night, but at the same time, we are building on what has already been done. In so doing, we must recognise what can be done further.
Finally and importantly, there is a much wider issue. Many noble Lords have touched on it this evening. That needs to be addressed in the appropriate place, but it is not tonight. Tonight, we have a very simple amendment. It is a very careful amendment and a very simple extension of what we expect to deliver. On that basis, I hope the House will support the amendment. It is simple, it is straightforward, it is right and it is timely.
My Lords, I appreciate the lateness of the hour and, therefore, I want to make just a very few comments.
Without apology, I believe in the sanctity of human life. I believe that it is important to preserve the life of a mother. It is also right to preserve the life of the unborn child. When this measure was originally presented, it was clearly stated that it was an emergency policy introduced because of the unprecedented circumstances of the coronavirus pandemic. The policy was said to be time-limited but many, like me, feared that this was another way of extending abortion on demand. However, many noble Lords accepted that the at-home abortion powers would be exercised only temporarily and be used only for the purpose for which they were granted and in a manner proportionate to the situation. I commend the Government for the actions they took to turn the coronavirus crisis around to the situation we have today. Therefore, continuing the policy is not proportionate, although I did not think it ever was.
At-home abortion endangers the health of the woman and the girl. Consultation revealed that among a number of concerns raised about safety the most common was the risk of women being coerced. I do not think that is an unimportant issue for this House to consider. Therefore, I shall oppose Amendment 183.
My Lords, I want to intervene briefly, partly because I believe I set a hare running which I perhaps need to explain. I want also to ask the Minister replying to the debate a few questions.
I am told that I am not whipped to vote for this amendment, even though the Liberal Democrat Whip is to support the amendment—those of us who have a conscience reason not to support the amendment do not have to do so. I take that as being not a free vote, which is why I was of the view that, nevertheless, we were being whipped. Make of that what you will. I shall be voting against the amendment, unless the Minister can clarify certain points.
We heard from the noble Baroness, Lady Sugg, in introducing her amendment, and the noble Baroness, Lady Fox, that essentially this amendment changes nothing about the law on abortion. But we have also heard that if that were the case, we would not need this amendment at all. If it changes nothing, why is this amendment here? So it must be changing something. What I am not at all clear about is what protections are actually in place. The 1967 legislation was very tightly drawn. The nature of abortion in 2022 is much more widespread. The provisions are not perhaps quite as Lord Steel would have anticipated.
This is a very detailed amendment. We have heard that it is very simple but it is also very detailed. It explains who women need to see. They are supposed to be seeing people either via video or via telephone. I do not know whether any of your Lordships experienced telemedicine during lockdown, but it is not always very effective. If virtual medicine means a telephone call not on a smartphone, your doctor cannot see you. They have no idea how you are presenting or whether you are vulnerable. There is a real question about what certainty there is. Can the Minister say what security there is about telemedicine?
We also heard that women would still have to go through normal medical tests and so on. Where is this happening? In the amendment, all we hear about is things being virtual. At what point do we know that a woman is nine weeks and six days pregnant when she takes the first tablet? How do we know that she is not actually 22 weeks pregnant and not seen by anybody? How do we know what certainty there is? If this is, for many people, a conscience vote, do noble Lords, in good conscience, believe that telemedicine actually means that women are understood and their needs really recognised? Do they get the care that they would get if they were having consultations in a surgery?
My Lords, at this very late hour, I just rise to say that I hope your Lordships will not confuse individual anecdotes, however moving, with the very extensive scientific evidence base quoted by the noble Baronesses, Lady Sugg and Lady Watkins.
My Lords, what is proposed in this amendment is a fundamental change in the law. What we must look at is, I think, fundamentally for each woman, what actually happens in each situation, and what care is provided for the woman in that situation.
I believe that the Government were right to say that this provision would come to an end and that it is not necessarily safe. There are major uncertainties for many women when they conceive. They do not always know when their last period was, as noble Lords have said. But it is not just that. They do not always know the nature of their own medical health and the consequences of taking the telemedical abortion pills.
In that period after 2020 alone, 10,000 women needed hospital treatment for the complications arising from telemedical abortions. It is not an anecdote but a scientific fact that losing a baby, whether by miscarriage or by abortion, is a very bloody and, on occasion, very painful business, which gives rise to all sorts of problems and complications.
All we need to do is to ensure that we do not pass law which does not provide proper care for women. We need to ensure that they do not feel that they are taking up their GP’s time if they seek to consult them about taking these tablets. In a moment, at a time of panic or distress, when they may be subject to coercive control of many kinds, they should not be in a position in which they can be forced to seek this medication when what they need may be care, space and time. BBC polling has shown that 5% of women aged 18 to 24 reported that such substances were given to them without their consent. We cannot protect these women if we allow this amendment to pass. I therefore ask your Lordships to vote against it.
My Lords, I wish that many Members of your Lordships’ House who have spoken this evening could have come to the meetings that I have attended in the last two years with people from organisations such as the Royal College of GPs and the Royal College of Obstetricians and Gynaecologists. They would have heard many of the fears that have been raised this evening addressed.
It is important that noble Lords are aware that we are talking a proposal which stems from clinically led, peer-reviewed scientific research in international journals, versus anecdotes. They are not equivalent. Those professional bodies, from the start of the change in the law, were addressing all the issues which noble Lords have raised this evening. In particular, it is important to state that we are not talking about people having to ring up some kind of remote service which is very minimal. They are talking to people who are skilled interviewers, trained to look for the signs of coercion and to detect them. Indeed, the evidence has shown that having this service has enabled service providers to find women who are being trafficked and coerced. That is one additional benefit that has come out of this service.
A further benefit to have come out of it is that women—desperate women—are no longer seeking unregulated medicine, which they will do if this service stops. The evidence behind this is overwhelming and I ask the noble Lord, Lord Bethell: why should this service not go ahead? I know, and I think that he will know, of other medical services which have changed because of lockdown and are being rolled out—cancer therapies, for one. So why this one? Why is it always the women who are at the back of the queue when it comes to equity and fairness?
I do not think that there is any doubt about the safety of the procedure. I have heard people such as the noble Lord, Lord Alton, make speeches like that before and I understand that they are absolutely and totally opposed to anything that enables a woman to access an abortion service in any way. I accept his moral point, but to all other noble Lords I say: please go and look at the evidence, and look at who is telling you that this is the right thing to do for women.
My Lords, Amendment 183 was tabled in the name of my noble friend Lady Sugg and, like many others, I want to honour her for her commitment to vulnerable women and international development. There are a number of reasons why I cannot support this amendment, but, first, it is important to be clear what it is and is not actually about. In many of the emails that have been flying around from supporters on both sides of the argument, and the various stories in the media, it would appear that Amendment 183 is about abortion and easier access to it. However, although the subject matter is one of abortion, in practice this amendment is significantly more about the health and protection of women.
First, let us take a look at why this is not an abortion amendment. Perhaps, in this instance, I may be able to address some of the recent comments from the noble Baroness, Lady Barker. In the UK, in practice if not in law, we have abortion on demand up to 24 weeks. In 2020, there were 209,000 abortions for women resident in England and Wales—the highest number since the Abortion Act was introduced. This stands in a context where, in the same year, there were 613,000 live births. So, there was roughly one abortion per three live births. We also have access to the morning-after pill without question, and in 2018-19, there were 91,000 procured from sexual and reproductive health services—and that does not include pharmacies. Also, in today’s world, pregnancy tests are as sensitive as Covid tests, so women know from a much earlier stage in their pregnancy whether they are pregnant—not like in my day. It is quite clear that over time, women have been able to take control of their body and their reproductive choices.
If this is not an amendment about abortion, what is it about? With all due respect to the noble Baroness, Lady Sugg, public policy is littered with the results of the unintended consequences of policy decisions. In the name of wanting to serve women, this amendment removes protections for women and leaves them vulnerable and isolated at a time when support, both medical and emotional, is needed. For those of us who participated in the Domestic Abuse Bill or have taken a stand against violence against women and girls, this should cause concern. So, let us take a look at why and how it removes protection for women.
This amendment, as is obvious, provides for a telemedicine service, and the consultation takes place by phone. Hence, an ultrasound is not available. These pills, though, are deemed safe only if they are taken up to nine weeks and six days into a pregnancy. But, without accurate date keeping, and without an ultrasound to confirm the development of the baby, it is impossible to check this on the phone. Taking pills in a more developed pregnancy can be high risk, and this amendment completely abolishes the necessary checks, balances and safeguards that were previously in place to protect the health of the women involved. My noble friend Lord Duncan said it has worked and worked well, but there were over 50 cases officially reported to the Department of Health and Social Care of women who were provided pills by post beyond the 10-week gestation period, including one where, as we have heard, the unborn child was at 28 weeks’ gestation, well beyond the legal limit. There is simply no way of knowing across a phone call the actual gestation period of the baby.
It is difficult to quantify the number of complications that have arisen from these pills, such as incomplete abortion and continued bleeding, because of insufficient data collection on patients receiving the pills. This is where my noble friend Lord Bethell’s comments are appropriate and need to be heard tonight—that significantly more work needs to be done around this issue. FoI requests have revealed the aftermath from the pills by post process to include sepsis, haemorrhaging, embolisms, renal failure and trauma to pelvic organs, among other medical complications.
Secondly, the amendment leaves women to bleed on their own and opens them up to increased health risks. It is extraordinary to me that many of the arguments used against back-street abortion that drove the introduction of the Abortion Act 1967 seem to be being ignored by this amendment. It puts women back to bleeding on their own, in their rooms at home, passing the early stages of the baby into the loo, and all without medical care—the very thing the Abortion Act 1967 was passed to stop.
Finally, this amendment leaves women open to coercion, as we have heard this evening, by actors within the home who do not want a child. We need to be acutely aware that self-administration of abortifacient medication in this way removes the opportunity to check whether abuse or coercion are involved in the decision. This poses a threat to vulnerable women and girls who are at risk from an abusive partner, or from child sex abuse.
Noble Lords this evening have quoted from the Savanta ComRes poll that 77% of women believe that doctors should be legally required to verify in person—
My Lords, I hesitate to intervene at this late hour, but the noble Baroness is making what can only be described as a Committee or Second Reading contribution. Perhaps she should think about that before she continues much longer.
I understand the noble Baroness’s sentiment. Had there been a Second Reading or Committee opportunity—that is, had this amendment not been introduced on Report—there would have been no need to make these arguments at this stage.
Tragically, we know that such coercion has been happening. A further Savanta ComRes poll commissioned by the BBC and reported on Monday showed that 5% of women aged between 18 and 24 had been given something to cause an abortion without their consent. Noble Lords have already quoted some of the data from these polls.
This amendment sounds so nice—pills by post in the comfort of your own home—but, in reality, it leaves women medically exposed and vulnerable to both health complications and coercion. I totally understand the motivation of the noble Baroness, Lady Sugg, in bringing it forward, but I urge noble Lords not to vote for an amendment that would remove protections, expose women to health complications and increase the risk of coercion.
My Lords, before I make any comments about the amendment, I want to make it very clear that this Front Bench believes that it does not change the law on abortion. It is just about access to a safe and legal medicine, which is why we have encouraged our colleagues to vote for it. However, it has been made clear, both in the written Whip and verbally by me at our group meeting this afternoon, that any Liberal Democrat who feels that they have a conscience or ethical reason why they want to vote against this amendment is quite free to do so. That happens all the time on these Benches, actually; it is not unusual.
I have been keeping a little tally. Adding in the noble Baroness, Lady Thornton, who has her name on this amendment, I calculate that 10 women and one man—I thank the noble Lord, Lord Duncan—have spoken in favour of it. On the other side, there are four men and four women. I think it is pretty clear that, of those in this House who felt strongly enough about the amendment to speak at this late hour—most of them briefly, thankfully—there is a majority of women who think that the availability of this medicine, which all the royal colleges have made clear they believe is safe and effective, should continue.
Some women across the Benches may not have spoken because they are conscious that the House needs to proceed with this Bill, even though they might put themselves in the camp with the other four women.
I absolutely accept that point.
My Lords, on Report, only short questions of elucidation are allowed.
I accept that a lot of people have shown some self-discipline and resisted speaking, but the tally is 10 women in favour and four men and four women against—and the noble Lord, Lord Duncan, on the side I am on.
Despite what has been said, I still do not believe that this amendment changes the law on abortion. It is about access to medicine and, often, access for the most vulnerable women. I accept that it is difficult to speak at this time of night about an issue such as this but, quite honestly, if the Government had thought that this medicine was as dangerous as some noble Lords have suggested, it would have been very remiss of them to allow it to go on for the past two years. Indeed, as I have said, all the royal colleges believe that it is safe; it is also legal, of course, and very acceptable to women. I, for one, think that women should continue to have access to it; I hope that noble Lords will vote for that to happen.
The only reason why this amendment had to be brought in now is that something has changed, which is that the Government have said that they will take it away from women. That is why we have not had a previous opportunity to discuss it.
My Lords, following on from the comments of the noble Baroness, Lady Walmsley, the reason that we are discussing this now is because the Government made their announcement on 24 February about what they intended to do. That means that this is our first opportunity to try to suggest two things.
First, this is not an extension of abortion rights. The people who have spoken against it have been, in general, the people who always speak against women’s rights to control their fertility. I have been in this House for 23 years and involved in many such debates. That is the first important thing to say. Whatever the reasons—including the noble Baroness, Lady Stroud, talking about bleeding at home—actually, most of the women in this Chamber will have had miscarriages at home on their own and coped with that happening to them.
It is a bit rich when the noble Lord, Lord Alton, questions the suitability of this issue being discussed when he is a past master, with our support, of bringing forward the issues that he cares most about in Bill after Bill until he succeeds. We have supported him in doing that. I am not suggesting that he should support us at this point, but I should just make the point regarding the suitability of Bills lending themselves to those who are campaigning on issues.
The second reason is that the noble Lord the Minister in front of us and his predecessor talked about the importance of innovation and of using the good things that were developed in the health service as a result of the pandemic. This is one of them. The noble Baroness, Lady Barker, is quite right. Why should this one issue, that has worked, that women want, given that all the statistics that the noble Baroness, Lady Brown, quite rightly mentioned in her succinct contribution were peer-reviewed and scientific, not continue? Women want this and it is safe.
My Lords, I am grateful to my noble friend Lady Sugg for bringing forward the amendment. I know that many noble Lords on all sides of the House have strong feelings on this issue. Indeed, it is because any change to the law on abortion is traditionally a matter of conscience that the amendment will be subject to a free vote on the Government Benches if a vote is called.
Noble Lords will be aware that, as a temporary measure, in response to the Covid pandemic, an approval was issued in accordance with the Abortion Act 1967 that allowed women to take both pills for early medical abortion at home at gestations up to nine weeks and six days. We announced on 24 February that there will be a six-month extension to the approval and that the approval will end at midnight on 29 August 2022. From that point, the arrangements set out in the pre-Covid 2018 approval, which allows women to take the second pill for early medical abortion at home only, will be reinstated and face to face services will return.
The temporary measure was put in place at the start of a public health emergency to address a specific and acute medical need, reducing the risk of Covid-19 transmission and ensuring continued access to abortion services. At the time, a decision was made to time limit the approval for two years or until the pandemic was over, whichever was earliest.
The Secretary of State has decided that the provision of early medical abortion should return to pre-Covid arrangements from midnight on 29 August 2022. He has done so for three principal reasons: first, in the light of the success and impact of the national vaccination and booster programme; secondly, having carefully considered all the responses submitted to the Government’s public consultation on whether to make permanent the temporary measure; and thirdly, on the basis of wider evidence regarding the provision of the service since March 2020. Of course, we will continue to work closely with abortion providers and the Royal College of Obstetricians and Gynaecologists—alongside NHS England, NHS Improvement and the Care Quality Commission—to support a safe and reliable return in six months’ time.
The noble Baroness, Lady Smith, asked about the protection afforded to the woman by the temporary approval. The change, as introduced by the temporary approval, was to enable a woman seeking an abortion to consult a clinician via a teleconsultation. If the clinician was satisfied that the conditions laid down in law for approving the request were met, she would be prescribed both stages of the requisite medication for use at home. The responsibility rests with the clinician to ensure that all the necessary conditions are satisfied. That is, essentially, the protection.
The intention of this amendment is to halt this process and overturn the Secretary of State’s decision. In our view, this is not the appropriate way to achieve the intended policy objectives. The legal approval framework already exists in statute, and primary legislation should not be used to circumvent that. Parliament decided to give the Secretary of State a power to issue approvals under the Abortion Act 1967. It did so for good reasons. It would be inappropriate to specify such details about how, and where, healthcare services are carried out on the face of primary legislation. It would hinder the ability to account for external circumstances such as pandemics, or to account for changes in medicines used for such procedures. This is why the existing approvals power allows the Secretary of State flexibility to make decisions about how healthcare in this area is provided. This can be adapted quickly and easily to respond to changes in service provision or other external circumstances—just as was the case in 2020, when the temporary approval was made in response to concern about the risk to services caused by Covid; and, in 2018, to permit home use of the second medication. This framework works and a change to primary legislation does not need to be made.
Finally, although I do not want to labour this point, it is far from clear what my noble friend intends by wording the amendment as she has. The amendment as drafted would create legal uncertainty for both women and medical professionals, in a highly sensitive area of law, by including wording on the statute book that does not in fact change the law in the way in which it would appear. That is a real difficulty for noble Lords who might be inclined to support the amendment—but it is not the reason why I ask the House to withhold support for it. Ministers have made a decision on this issue and have done so responsibly on the basis of the powers given to them under law. I respectfully suggest to my noble friend that it is right for that decision to stand.
I am very grateful to those noble Lords who have stayed up until this hour to discuss this important amendment, and I grateful to the Minister for his answer. However, I am disappointed by it.
On the argument around these regulations being temporary, we now have the evidence of their success, as we have heard. Since they have been introduced, the World Health Organization and medical professionals have been clear that their advice is that this service should stay. The removal of this service represents a step back, when in all other areas of telemedicine we are moving forward.
On evidence, we really should be looking at the largest ever UK study into abortion, which took place just before telemedicine was introduced and just after. That showed that the rate of complications fell significantly. On complications themselves, the same procedure happens and it is going to continue to happen. Voting against this amendment is not going to remove early medical abortion; it will just allow women to maintain the choice of taking a pill at home.
I want to briefly address the issues around vulnerable women and safeguarding because that is incredibly important. Of course, safeguarding is a really essential part of all healthcare. But there is evidence, as noble Lords have cited, that telemedicine is helping to improve safeguarding, with providers reporting a major uplift in safeguarding disclosures, including from survivors of domestic and sexual violence—particularly from women in abusive relationships. It is more common to be forced to keep a pregnancy than to end one.
Those who work closely on gender-based violence, coercion and abuse will tell you that the solution to reproductive coercion is to get stronger reproductive rights. Women’s Aid confirmed to me just this evening that it is fully supportive of keeping the service, as making abortion access more difficult does not prevent coercion. In fact, it does the opposite. The very fact that vulnerable women are being used as an argument against maintaining the service which is going to benefit them, I find very difficult to take.
This is not a debate about early medical abortion. As I said, it will remain legal. It is not about broader abortion. It is about whether women can continue to choose, receive and take medicine in the comfort and safety of their own home. It does not bring in a new service; it would simply avoid removing an existing service that women are using safely.
I really do not want to keep anyone any longer, and I appreciate there is diversity of opinion in your Lordships’ House. I respect that people have deep-seated views on abortion. But I believe we should listen to the medical experts who are clear on this matter. We should listen to the women who want, need and will use this service. We should stand strongly against what would be a rollback of women’s rights. Telemedical abortion care has been repeatedly proven by peer-reviewed, clinician-led large-scale studies to be safe, effective, accessible and preferred by women. It is what the medical professionals advise, and it is what women want. I believe that is what should guide us in this vote. I would like to test the opinion of the House.
Amendments 184 and 184ZB not moved.
184ZBA: After Clause 164, insert the following new Clause—
(1) NHS England must, as soon as reasonably practicable and within one month of this Act being passed, revoke Annex B to its NHS guidance on “Delivering Same-Sex Accommodation” published in September 2019 (relating to same-sex accommodation for trans people and gender variant children).(2) Where NHS England issues revised guidance on the same subject, it must ensure that it takes account of the exceptions provided under paragraphs 26 to 28 of Schedule 3 to the Equality Act 2010 (which allow for separate services for the sexes and single-sex services).”
I thank noble Lords for waiting for this very late debate and assure them that the intensity of feeling about this is not reflected by the numbers in the Chamber tonight. Indeed, we had a debate on this a couple of weeks ago. The debate on this amendment tonight still demands the withdrawal of annexe B, which gives priority to trans people over women. But despite the words “trans people”, we believe that this is a debate about the rights of women to have their dignity, privacy and safety reaffirmed and brought back into the centre because those three things have disappeared. There is a rising tide of misogyny in society today because of social media. The NHS should be behind us in supporting women because of our priority needs in health.
I suggest that trans rights, instead of having priority over women’s rights, which has happened because of annexe B, should be reconciled with but cannot trump the dignity and safety of all patients. No one patient, save for medical reasons, should be prioritised over anyone else. I think that that is one of the most fundamental failings of the 2019 annexe B, which talks quite differently from that. Some 51% of the population is being deprived and the protections that we had took at least 50 years to come through. Indeed, I suggest that the rights of women are a priori a touchstone for any civilised society. We have got it wrong. We have somehow changed course.
I suggest that Parliament sets the law and creates the common position for society on any aspect of life. Indeed, we are omnipotent and omnicompetent—not necessarily this Chamber, but the other Chamber. Yet self-ID, which is at the heart of annexe B, has deliberately been pushed through, almost surreptitiously, without debate in either Chamber. I think that that is scandalous and I am a parliamentarian of many years’ standing in different Parliaments. For me, the heart of this debate is that Parliament has been ignored and bypassed and surreptitiously something far-reaching has been brought in that affects all families, all faiths, all identities and all levels of society. In place of sex-based rights, we are giving priority rights to one special section of society.
I have every respect for that section of society. Indeed, I must have been one of earliest Members of Parliament to tackle transgenderism in my constituency. One of the most delightful people came to see me. I knew the parents well—ancient parents—and I knew the families, I knew the village and I knew the farms. This person came in because she was in a dreadful state. She had become fully altered, both physically and through drugs. Because she had been away doing that for some time—it had taken at least a year and she had gone abroad—when she came back her job had disappeared. When she reapplied, she was placed at a much lower level, which meant less status, less salary, fewer holidays and more misery, as it were, because she felt thoroughly demeaned. She was, in fact, a member of the police and it was not easy at that moment to persuade the police that this was a fully acceptable thing to have done. I think that, in that sense, I have won my colours on transgenderism. It was not easy, but I managed it. It was not easy socially for her and I helped on that as well.
None the less, we are in a different situation today, whereby my gender—my sex—has been made less dignified in hospital by a backdoor attempt. Our amendment seeks to reverse this and to include the very limited opt-outs in paragraphs 26 to 28 of Schedule 3 to the Equality Act 2010 to protect single-sex spaces in hospitals. On the filleting of the relevant schedule, which has been placed in annexe B to justify this elite position of one small branch of society, I suggest to the Minister that I have not seen that filleting of legislation anywhere before in Britain. I have seen it in new democracies. It is a terrible thing to do, because you are cheating the public. You are saying that this is in fact the law, when it is not. You have filleted it. That is what has happened with annexe B. I am really shocked by that as a parliamentarian, irrespective of the subject. That is fact; it is a very wrong thing to have done.
I am not at all happy that the current review fulfils best practice either. Having raised this for two or three years with Ministers and having received very little response, I have been informed twice now that there is a review. Indeed, I think that there are two reviews going on, if not three. However, I suggest that the one I believe the Minister is in charge of, to which he referred, is again in breach of the Government’s own regulations on how a review is conducted. Those regulations, which are quite old, are rather good. They are very clear, and they are very simple. They say that you must not have people who have skin in the game running a review, yet that is exactly what has happened.
In the Daily Telegraph today, a whole batch of rather wonderful women who do not sit in this House, alas, but run various women’s organisations and are medical have declared correctly that they have not been invited to give evidence. In other words, this review has been done without input from the very people who know more about it. I offered to give evidence myself, but I was not wanted. That is a different matter; I am not medical, so that may be perfectly fair. But these women are very special indeed and they have not been consulted. This means that women, generally speaking, have been left out of the review.
Worse than that, even, is that the people running the review, who I know—they are fantastic people such as the chief of nurses, the LGBTQ adviser, and so on—are wonderful, very interesting and hugely knowledgeable people, have more than skin in the game: they are the game. I believe it is not right, therefore, that a review that matters so much to 51% of the population and to their families should be conducted in this way. So I am rather unhappy about the review, too. It is being rushed through in parallel with this Bill. I suggest that it does not meet the Government’s own guidelines on consultations on reviews. There is no impartiality and the review team has tremendous interests—that is all too easy, but it does not give the right result.
I remember, again as a Member of Parliament, a massive review being conducted by the European Union into farming. My constituency had many farmers, and they came to see me because they were worried about what might come out of it. I found out from our own files here in London who was on the consultation—and, of course, there was not a single farmer. This is rather the same thing, I would suggest.
Of course, a number of colleagues in this House take their briefings from a lobby group called Stonewall. Stonewall has declared in its briefing for responses to this debate that any comments from me and others—the noble Lord, Lord Blencathra, for example—should be responded to by saying, “Blah, blah, blah”. I suggest that this is infinitely too serious for such a response.
Finally, I draw to the House’s attention the fact that I have been requested on a number of occasions by the Minister and others to give examples of what I am talking about. This is not at all easy, because all the examples given to me have been given in confidence. Whereas I know who they are—some are medical professionals and some have already had their jobs threatened—I can see why they do not want to be known.
However, a rather wonderful lady—I cannot say who she is—was raped in hospital by a man about a year ago. There is only one definition of rape in Britain and that is male on female; you cannot rape if you do not have the structure of a male. She was raped and she naturally reported it to the police. The police spoke to the hospital, which informed them that there was no male in the hospital, therefore the rape could not have happened. They forgot that there was CCTV, nurses and observers. None the less, it has taken nearly a year for the hospital to agree that there was a male on the ward and, yes, this rape happened. It is on record—I know where the case happened, who the police are and where the hospital is. I know everything about it because she gave me the full case to make sure I knew that what she was saying was true.
During that year she has almost come to the edge of a nervous breakdown, because being disbelieved about being raped in hospital has been such an appalling shock. The hospital, with all its CCTV, has had to admit that the rape happened and that it was committed by a man. The police have therefore changed their tune and become enormously supportive and helpful, and the case is going ahead. However, this has arisen directly from annexe B. The result of annexe B is that hospital trusts inform ward sisters and nurses that if there is a male, as a trans person, in a female ward, and a female patient or anyone complains, they must be told that it is not true—there is no male there. I refer there to the duty of candour in the National Health Service. I think it is completely wrong that the National Health Service should be instructing or allowing staff to mislead patients—to tell a straightforward lie. It is not acceptable. The National Health Service is admired globally and the duty of candour makes it imperative that it should be frank, open and honest with the patients, yet trust after trust has informed its staff that they must say the opposite of the truth when this situation arises. The impact on my new friend is appalling. I beg to move.
My Lords, I rise to oppose this amendment despite the eloquence of the noble Baroness, Lady Nicholson of Winterbourne. It is an important starting point, and it is clear from what the noble Baroness said and the terms of the amendment that it is not intended to change the Equality Act. It appears to be a comment on how that Act is applied in relation to this guidance, so the question is whether annexe B to the September 2019 guidance is consistent with the existing law. I say that it is entirely appropriate and consistent with the anti-discrimination law in the Equality Act.
Gender reassignment is a protected characteristic. The Act defines that protected characteristic in very wide terms. It includes where a person is proposing to undergo, or is undergoing, a process, or part of a process, for the purpose of reassignment by changing physiological or other attributes of sex. This means that a person may have the protected characteristic without having undergone full surgical reassignment, let alone having a gender recognition certificate. It will be sufficient, for example, if they had adopted attributes of a different sex, such as name, dress or hair, in their intended process of transition.
The Equality Act prohibits discrimination or harassment on account of a gender reassignment. Harassment is defined in very wide terms as engaging in
“conduct related to a relevant protected characteristic”
and that conduct has the effect of “violating”, in the case of gender reassignment, the trans person’s dignity or
“creating an intimidating, hostile, degrading, humiliating or offensive environment for”
Under the Equality Act, a person who provides a service to the public, which would include the National Health Service, must not discriminate against a trans person in the terms on which the service is provided; nor can they subject the trans person to any other detriment or harass them. The service provider must make reasonable adjustments where appropriate.
If matters stopped there, the NHS would be acting unlawfully in failing to allocate accommodation and other facilities to match the gender identity of transsexuals. There are limited exceptions to those requirements and they are contained in Schedule 3 to the Act. Amendment 184ZBA refers itself to paragraphs 26 to 28 of that schedule; in fact, paragraphs 26 and 27 are irrelevant, as they deal with sex discrimination.
Paragraph 28 is relevant. It says, in relation to gender reassignment discrimination, that a public service provider does not contravene the Equality Act only because of anything done in the provision of separate or different services for persons of each sex or
“the provision of a service only to persons of one sex”,
provided each of those cases is
“a proportionate means of achieving a legitimate aim.”
This means that any permitted derogation from the anti-discrimination and anti-harassment provisions governing the NHS in relation to trans people requires a case-by-case appraisal. Any derogation must be for a legitimate aim. It is not a legitimate aim that some people feel uncomfortable sharing accommodation and facilities with trans people of the opposite birth sex. That would make a nonsense of having the statutory protected characteristic in the first place. Crucially, any derogation must also be proportionate, which means the least discriminatory in all the circumstances.
In light of this legal framework, I can see nothing at all wrong with the 2019 NHS guidance. It correctly identifies trans people who have the protected characteristic under the Equality Act. The guidance says that trans people should be accommodated according to their gender presentation. It recognises that reasonable adjustments can often be made to ensure the dignity of trans people, such as by giving privacy by the use of curtains or accommodation in a single side room adjacent to the gender-appropriate ward, and that a trans person may be placed in an otherwise opposite-gender ward if—but only if—that is proportionate to achieving a legitimate aim. In that context, the guidance refers to a safe nursing environment, but it would also extend to safeguarding requirements, where relevant. The guidance contains similar provisions for children and young people.
All in all, this is entirely consistent with the statutory framework. In my view, this amendment is fundamentally misconceived.
My Lords, with apologies to the House and particularly to the noble Baroness, Lady Brinton, whom I should have called earlier—but it is early in the morning—I invite the noble Baroness to speak.
My Lords, it is a pleasure to follow the noble and learned Lord, Lord Etherton, who very carefully laid out the law on the Equality Act and how it fits in with the guidance.
The amendment from the noble Baroness, Lady Nicholson, on same-sex accommodation in hospitals, returns to her concerns about the balance between the Equality Act and NHS guidance Delivering Same-Sex Accommodation. I note that the Minister said in Committee that
“NHS England is currently reviewing the Delivering Same-Sex Accommodation guidance to ensure that it remains focused on privacy, safety and dignity for all patients. The NHS is committed to meeting its duties under the Equality Act”.—[Official Report, 9/2/22; cols. 1724-25.]
The current NHS guidance is already rooted in the Equality Act 2010 and includes guidance on accommodating trans people. That does not mean that women are excluded. The guidance was created in 2010 and updated as recently as 2019. As the noble and learned Lord, Lord Etherton, said, it is very clear about the reasonable adjustments for trans people, but that does not remove the core principle that all patients should be safe and dignified.
Amendment 184ZBA seeks to create a false understanding of the ways in which this works. It would also revoke annexe B in its current form, but, frankly, that is unnecessary, because the Equality Act 2010 and the guidance already provide an effective mechanism for inclusion in the context of single-sex spaces. The whole point about annexe B is that it guides NHS staff in how to deliver same-sex accommodation for trans people, which is a very small number of patients, and probably most NHS staff have not had trans patients. It does not supersede the Equality Act. It is accompanied by the NHS safeguarding policies, underpinned by the Care Act, which set out how children and vulnerable adults will be protected from harm and abuse.
The problem is that the amendment would create a blanket policy against trans inclusion in NHS accommodation, resulting in trans women having to be accommodated in men’s NHS accommodation and trans men in women’s NHS accommodation. This would create an environment that was contrary to the dignity and well-being of patients. The amendment is therefore unnecessary and, frankly, harmful. It also goes against the careful NHS guidance and breaches the key element in the Equality Act, which the Minister reminded us of in Committee. He said:
“This means that the rights and needs of women and trans women are equal in law”.—[Official Report, 9/2/22; col. 1725.]
Above all, there is no evidence to suggest that the status quo is not working. I hope that the noble Baroness, Lady Nicholson, will withdraw her amendment.
I rise to speak in support of my noble friend Lady Nicholson and her Amendment 184ZBA, as I maintain that it would bring NHS trusts back into line with the Equality Act 2010. Part 7 of Schedule 3 to the Act permits discrimination on the grounds of sex and enables provision that is separate, different and/or provided to only one sex if it is
“a proportionate means of achieving a legitimate aim”.
Paragraph 27 of Schedule 3 specifically provides for separate male and female single-sex hospital wards. A hospital ward where patients are, by definition, vulnerable and dependent on their surroundings for safety, privacy and dignity—for example, they are unwell, sleeping, in various states of undress, receiving intimate personal care, confused et cetera—comfortably meets the “legitimate aim” test.
Further, annexe B mis-states who is included under the protected characteristic of gender reassignment by widening it to include transgender and non-binary people. This has no basis in law. Section 7 of the Equality Act 2010 states that the protected characteristic of gender reassignment refers to transsexual people and:
“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”
It is important to establish what percentage of transgender people fit this description. In 2016, a meta-analysis of 27 studies estimated that approximately 0.01% of the population have a transgender diagnosis and/or surgical or hormonal treatment. In contrast, 0.35% of the population self-identify as transgender. This means that only 2.9% of those who consider themselves part of the transgender community are undergoing any gender-affirming treatment. The vast majority, 97.1%, simply self-identify and make no modifications to their natal sex body, so there is a very high probability that someone born male who is supported under annexe B to be in a female ward is genitally intact. The risks this presents cannot be batted away. At the very least, women from religious minorities who require single-sex wards may be prevented from accessing healthcare. Some policies allow known male sex offenders who identify as women on women’s wards.
Further, Explanatory Notes to Part 16, Schedule 3, Part 7, paragraph 28, on separate and single-sex services, show that the Equality Act permits single-sex wards also to exclude patients under the protected characteristic of gender reassignment if that treatment by a provider can be objectively justified—in other words, if there is a legitimate aim as outlined above. Yet multiple NHS trusts have ignored this justification and generated policies based on annexe B which undermine the safety, dignity and privacy of women patients and cause much distress. The NHS has failed to evaluate the effects of the current policy in this area, so there is a lack of objective evidence and data on this issue. But there is much anecdotal evidence from women who have shared their stories with politicians and the media that current practice is harming women in NHS care. This includes women who have been traumatised through violence from men and then retraumatised. Annexe B, in my opinion, is unlawful and should be rescinded.
The NHS should find alternative ways of accommodating transgender patients, rather than removing the safety, dignity and privacy of all the other patients in a ward by making that ward mixed sex.
My Lords, given the hour, I shall be extremely brief. As a long-standing supporter of single-sex wards and single-sex provision, I raised the issue of the wording of annexe B and the status of its review in Committee. Tonight, I am continuing to attempt to get answers to questions raised in Committee and in correspondence with the Minister, the noble Lord, Lord Kamall.
It seems clear that the current review of annexe B is not the review promised by the Secretary of State, Sajid Javid, last August. We tried to get to the bottom of this in correspondence. I hope that the Minister, when she responds today, will be able to say exactly what the status of that review is. We have been informed that it is a scheduled, standard internal review—whatever that is—but there seem to be no terms of reference, there does not appear to be any analysis of how well the current provision of same-sex accommodation is working, the review has not been publicised internally, the review team is not independent, and the review seems largely to have been conducted behind closed doors. At the very last moment, certain organisations from which evidence was recommended to be taken did indeed give evidence, in a one-hour Zoom session—and that was about it. So it is a totally unsatisfactory form of review and evidence-taking, and it seems to be moving in a particular direction without any transparency at all.
I very much hope that the Minister will be able to give us much more information about the review, its purpose and whether it is indeed the one the Secretary of State promised; and, if it is not, whether terms of reference will be published publicly so that we can actually have a discussion about how they should be formulated.
I would say, in passing, that it is vital as part of this review that the Government publish what their view about the legality of single-sex wards is. We have already had two interpretations of Schedule 3 to the Equality Act 2010. I tend to agree more with that of the noble Lord, Lord Farmer: paragraphs 26, 27 and 28 seem to me to be utterly clear in permitting single-sex wards in the NHS, and I cannot see how the noble and learned Lord, Lord Etherton, has come to the conclusions that he has. But let us see what the Department of Health’s interpretation is and whether annexe B really does conform to the Equality Act. Let us get down to the basics. It is really important.
Finally, I would simply say that it seems to me that there is no way that annexe B can conform to the Equality Act currently. It says:
“Non-binary individuals, who do not identify as being male or female, should also be asked discreetly about their preferences, and allocated to the male or female ward according to their choice.”
Being non-binary is not a protected characteristic, so what on earth is it doing in annexe B?
My Lords, I am so pleased I waited to hear the noble Lord, Lord Clement-Jones, make an excellent speech. I think what he said is apposite, and I hope the Minister will deal with the point about the quality of this review and how public it will be.
When we moved an amendment in Committee to protect female patients and ensure their rights under the Equality Act 2010 to have NHS hospital accommodation exclusively for women of the biological sex of a woman, a number of Peers, including the noble Lord, Lord Clement-Jones, who did not agree with our amendments nevertheless pointed out that there was a complete disconnect between the general guidance issued in 2019, which stated that women must have their choice of single-sex wards protected as a top priority, and annexe B, which completely undermined that guidance and said that men identifying as women could also be placed in female-only wards.
The general guidance and that annexe B guidance fail to set out the rights that biological women have under the Equality Act; and our amendments seek to rectify that by calling for annexe B to be rewritten as soon as possible and for the new guidance to clearly spell out to NHS trusts the exceptions and rights of women under the Equality Act as far as healthcare is concerned. Who could object to that? Well, of course, the main briefing against this perfectly reasonable suggestion comes from those in Stonewall, a now thoroughly discredited organisation that has abandoned gay women. They have been thrown out of this place, and many other organisations, and yet they push their ideology in contravention of the facts. Stonewall did an absolutely excellent job when it was created, fighting for gay and lesbian equality, but it has abandoned gay people, especially lesbian women, in a feverish pursuit of trans ideology.
When we debated this, and prison units for women, many Peers seemed to think that most trans women had made strenuous efforts to become women. That is simply not the case, as my noble friend Lord Farmer has pointed out. Only a very small minority—well under 5%—with genuine gender dysphoria has taken hormone treatment, had operations and adopted the lifestyle, behaviour and character of women. I salute their courage in all the steps they have taken to change their gender and live in that lifestyle. They should be treated equally, both legally and morally, and there is ample scope in all NHS hospitals to have special provision for them.
But I am afraid that the vast majority of men claiming to be women or self-identifying as women have done absolutely nothing to try to become like a woman, and they simply do not intend to. They want to keep all their male attributes but demand the rights of real women. What sort of men want to invade women’s toilets, changing rooms, safe places and hospital beds, when they have not made the slightest effort to become like women or behave like women? I suggest that they are acting out a perverse fetish whereby they can go into women’s spaces and flash their body parts and get away with it when they would be arrested if they did that outside. Therefore, while we should have the utmost respect for women, men, and men who have genuinely made the change to become women, we should have nothing but contempt for these fake trans women. We may not force a vote on this tonight, but a time is coming soon when we will, and Ministers had better choose the right side.
Last week, the right honourable Harriet Harman said that Labour had a problem with women. I commend her honesty. Also last week, the shadow Home Secretary, Yvette Cooper, was asked to define a woman. Three times, she said that she did not want to go down a rabbit hole on this. Now most dictionaries define the Alice in Wonderland phrase “down the rabbit hole” as meaning entering a strange and absurd alternative universe. The shadow Minister for Women, Anneliese Dodds, was asked the same question on “Woman’s Hour” and said that the definition of a woman depended on the context. So, noble Baronesses, there you have it. Depending on the context, you may or may not be a woman, and trying to define your biological sex more may result in entering a strange alternative universe.
However, of course, there is always a man who can cut through all that nonsense and define a woman. Keir Starmer was able to pronounce that trans women are women; that is the answer of a lawyer, not a doctor. No, Sir Keir: men can legally change their gender and call themselves trans women, but they are still men, not women. No wonder JK Rowling said at the weekend:
“I don’t think our politicians have the slightest idea how much anger is building among women from all walks of life at the attempts to threaten and intimidate them out of speaking publicly about their own rights, their own bodies and their own lives. Among the thousands of letters and emails I’ve received are disillusioned members of Labour, the Greens, the Lib Dems and the SNP. Women are scared, outraged and angry at the deaf ear turned to their well-founded concerns … Now Keir Starmer publicly misrepresents equalities law, in yet another indication that the Labour Party can no longer be counted on to defend women’s rights. But I repeat: women are organising across party lines, and their resolve and their anger are growing.”
I know that most Ministers in this place have a sensible view on this, but they are tied to the policies of Cabinet Ministers in another place. So I say this to my right honourable friends in another place: get off the fence and publicly support women, or suffer the same fate of the opposition parties that are now regarded as hostile to women. Accepting this amendment would be a start to showing that the Government will defend the rights of women to have their own safe spaces, to have their dignity respected and to have the Equality Act properly applied in all NHS facilities.
I am pleased to support my noble friend Lady Nicholson.
My Lords, it is late, so I will abandon the speech that I prepared. I absolutely agree with the analysis by the noble and learned Lord, Lord Etherton, of the Equality Act and annexe B in relation to it, as well as of the inclusion of the NHS’s 2019 guidance.
When we address issues of balancing rights, we must always address them on an evidence-based approach and never on anecdotal evidence. Freedom of information requests around the country have shown that there is no evidence to suggest that annexe B in its current form needs to be revised. I could talk about my concerns about what this amendment would cause for trans women and trans men seeking treatment and care in the NHS. I will leave that to your Lordships’ imagination. However, I have to say, hearing the way in which trans women, trans men, trans families and trans teenagers have been represented by some in this House tonight has left me deeply ashamed. It is part of a continuing narrative to grab something of a minority of a minority and use it to represent the entire minority. It was done to people like me when we were arguing with the noble Lord, Lord Blencathra, when he was in Home Office, for an equal age of consent.
This was the language being used privately and publicly to describe people like me—men like me—to suggest that I was not worthy of being treated as an individual, contributing member of society who should be afforded the same protection of the law and the same obligations to the law. History shows me that the language being used to represent trans women, trans men and trans teenagers—and their mothers and fathers—is exactly the same as has been used against minorities across the centuries to diminish those individuals, to dehumanise and demonise them, and then to remove their rights, including their right to belong.
As the co-founder and founding chair of Stonewall, I am immensely proud of the inclusion of rights which Stonewall has adopted, continues to adopt and will not flinch away from. As an equality organisation, it cannot believe in partial equality; it believes in the equality afforded to individuals regardless of difference. I urge the Minister to respond by calling for the withdrawal of this amendment, which causes me deep, deep concern. Can she please reassure us that any review of the extremely important Equality Act and the guidance of 2019 will be only evidence-based, and that she will then publish the evidence?
My Lords, I apologise that I did not speak on this issue in Committee. As I had stayed late to speak on the prior amendments in defence of women’s reproductive rights, I decided to stay because this is a natural follow-on. Despite what has just been said, this is actually about women’s rights and women’s concerns that NHS guidance on trans issues effectively undermines the right to have same-sex wards in hospitals. I am not going to rehearse the whole issue around gender identity tonight—we are all far too tired. I want to keep this quite straightforward for me.
The noble and learned Lord, Lord Etherton, rather dismissed these concerns when he more or less said that we cannot pander to people who feel uncomfortable. I want to express something about women feeling uncomfortable. Having been a woman in hospital—when you are at your most vulnerable and needing to feel safe—the idea that you cannot guarantee single-sex wards in that instance is not just uncomfortable but also about rights that have been won. It is a perfectly legitimate right. Women should not be made to feel embarrassed or be patted on the head as if to say, “Don’t you worry your pretty little heads, this is all to do with equality”.
We have just heard a contribution which effectively said “Watch your language”. In response, I say, “Watch what you’re suggesting women should do”—namely, to back off from this issue. I do not think that women should and they will not. It is also the case that not all trans people are represented by trans activists. I know trans women—yes, this is anecdotal—who do not support trying to have what will effectively be mixed wards, or confusing or undermining single-sex wards in NHS settings.
The noble Lord, Lord Clement-Jones, made a very important point on which I wanted to finish. There are a lot of concerns on all sides, so many noble Lords have said, “Let’s have a review”. It seems that the Secretary of State wants a review, but we now do not know whether or not the review which is happening at the moment is the review he wants. The review happening at the moment is not satisfactory. It is that peculiar internal NHS review which has been referred to.
The review is carried out with no public terms of reference. It all seems to be carried out in secret and is being co-led by Dr Michael Brady, who is the adviser for LGBT at NHS England. I am sure that he is incredibly well intentioned but I suggest that being its LGBT adviser might make him rather the opposite of impartial.
We are now told that the review has looked to Stonewall and Mermaids for support on the review. It has been reported that in December, the lead reviewer wrote to campaign groups supportive of the gender identity position on this issue, assuring them that there were
“no plans to reduce the existing rights of transgender people”.
What I have just said is not evidence at all; it is all hearsay. I am just repeating what somebody said and somebody may have said. I can tell your Lordships that I am not satisfied either because I do not want to find out about this review by reading today’s newspapers, which is basically where I got that information, and leaked emails. This is not satisfactory.
I want the Government to take this seriously and recognise that when somebody says that there are no plans to reduce the existing rights of transgender people, what women hear—if I can translate it—is that women-only wards are not guaranteed at all. I want the Government to be honest with us about what they believe they are arguing for. I also want them to take us away from having to discover these things in newspapers and, instead, assure us that a new review will be set up that is independent and fully resourced—one that has a clear set of terms of reference, which people on different sides of this argument can look at and discuss openly. They should try to detoxify it by bringing it out in the open and having a credible review with all sides of this argument consulted, represented and talked to, and women should absolutely be asked and not given an hour’s Zoom as an afterthought.
My Lords, I will be very brief because it is extraordinarily late. I have just a few short observations. First, as a lesbian woman in this House I have spent many years reading Hansard and watching the House’s proceedings, and hearing lesbians being referred to in far less positive terms than they are today. It is quite a contrast to hear from others in this Chamber such concern about lesbian women. I want to put it on record that many lesbians are entirely supportive of the current status quo in relation to the provision for trans people in single-sex and other accommodation. This suggestion that lesbians are opposed to it is unhelpful. In the spirit of detoxifying the debate, it is important that we stick to the information and facts that are available.
Secondly, there is a review being undertaken. There are many reviews in the NHS but I have heard about this review more times on more platforms, via more mediums, than any other thing that seems to be going on in the NHS at the moment, despite the fact that we are in the middle of a global pandemic. I have contributed to that review. I have written and I am sure that the noble Baroness, Lady Nicholson, has done the same. We are more than capable of lobbying and influencing different institutions to put our view forward. I am curious about the consequences of that review and it will be interesting to see what comes next.
My other observation is that the noble and learned Lord, Lord Etherton, is a very good authority on the Equality Act and I trust him completely. I do not think his analysis is subjective or a hot take. He does know his stuff.
Finally, as the daughter of a mother who trained to be a nurse and then a midwife, and who retired after 40 years as a professor of nursing and midwifery and trained hundreds and hundreds of nurses and midwives, I have absolute confidence in the professionalism of NHS staff to manage tricky issues when they occur. They do not just occur in relation to the 0.002% of the population who may or may not be trans. Those come up in all sorts of areas and I trust the NHS to handle those situations when they do.
I am 42 and expect that the entirety of my life peerage, which I imagine and hope is another 40 years, will contain a lot of these discussions. These discussions will continue, and I hope we can have them in a manner that is respectful towards each other and our different perspectives.
My Lords, I am absolutely delighted to be speaking in a debate after the noble Lord, Lord Cashman, and the noble Baroness, Lady Hunt. My biggest beef with Stonewall has been its refusal to debate. By that policy, it has built up a bank of fire and argument which has done a great deal of harm to trans people and to others. If we are seeing an end to that, leading to circumstances under which we can talk these things through—they are not easy issues—and reach a comfortable conclusion, I shall be absolutely delighted. I have asked Stonewall many times if I can discuss things but it has never acceded. Perhaps this is a new beginning.
In the first 20 years of my life in this House I listened to a lot of debates in which women were arguing for single-sex wards. I cannot, on the basis of listening to them, think anything but that it is a legitimate demand; that it is something that really matters—not perhaps to every woman, but to women at large—and that it absolutely constitutes the sort of grounds contemplated in the Equality Act for making something single sex.
It is absolutely clear in the definitions in the Equality Act that trans women are men. So if you have a trans woman in a female ward, that is a man in a female ward and that is against what female wards were intended for. That is the starting position; it is not the most humane ending position. Like the noble Baroness, Lady Hunt, I have a great deal of faith in the nursing profession to resolve difficult issues and reach the best possible solution. But the starting point should not be annexe B. It should be the Equality Act and the recognition that separate spaces for women—particularly when they are vulnerable—are something that we as a society wish to have.
When we last had a review of the Gender Recognition Act, Stonewall submitted evidence to say that it wished the exceptions under the Equality Act to be removed. I do not start from that position. I start from the position that those exceptions are very important. Nor do I follow the noble and learned Lord, Lord Etherton, in suggesting that the review has to be case by case, as in person by person. It is clear to me from the judgments made under that Act that this refers to the circumstances of an institution. An institution is quite entitled to say that it will not allow any male-bodied people to share a hospital ward purely for female-bodied people.
As I said, I do not regard that as a satisfactory end position. The right way to get to a proper conclusion is debate and a review that is not as obviously biased and unsatisfactory. A review carried out by people so committed to a highly politicised organisation—one embracing the extremes of postmodernism in its attitudes to people—is entirely unsatisfactory. This has to be what the noble Baroness, Lady Hunt, has just called for: a broad conversation and a broad review—one that respects the position people find themselves in. It should be interested in arriving at an evidenced position at the end of it. That is not what we have at the moment. I hope it is what we arrive at and that this House can play its part in that. I am absolutely delighted that at last we have a conversation.
My Lords, I too have spent many hours in your Lordships’ House discussing the subject of single-sex wards in hospitals. There is a continuing discussion to be had about single-sex provision in healthcare, but I do not think this debate is about that at all. I think this is a proxy debate for a campaign that is largely the one that was set out by the noble Baroness, Lady Nicholson. It is a campaign which seeks to drive differences between trans people and other women.
The noble and learned Lord, Lord Etherton, was absolutely right in his exposition of the law. The equality law is the piece of legislation that carefully addresses the differences between groups of people and the different treatments that they deserve or are entitled to in order to achieve equality under the law. We have had a variety of views, from the noble Lord, Lord Blencathra, who frequently describes trans women as men, through to some of the rest of us who believe that they are women with a different experience.
The job of the NHS is, and always must be, to provide safe care for everyone. That is why we have had guidance in force for many years that is compliant with equality law. I say again, as I did earlier in our debate, that unless and until the noble Lord, Lord Blencathra, and the noble Baroness, Lady Nicholson, come forward with evidence that that is not being provided by the NHS, we should simply not pay attention. We should dismiss the amendment.
My Lords, I sense that the House would like to move to the Front-Bench speeches. I should like to say first that I have not been briefed by Stonewall. My views are my own and not influenced by any lobbying group. I am a woman and I am not going to support the amendment for the reasons that the noble and learned Lord, Lord Etherton, and my noble friend Lady Brinton have made clear: it offers a solution to a problem that does not exist. However, when the Minister comes to reply, I hope that she will give my noble friend Lord Clement-Jones some answers to his questions about the review, because they are legitimate.
My Lords, I need say only a couple of things. First, I should declare an interest as a non-executive director of an NHS hospital that has single-sex wards. My money is definitely on the interpretation of the law given by the noble and learned Lord, Lord Etherton. The noble Baroness, Lady Hunt, is quite right—the former Master of the Rolls probably has a good grasp of this issue. The second thing that she is right about is that I also trust the NHS to be able to deal with the issues that may arise on its wards. In Committee, the Minister correctly said that this amendment was not necessary and I hope that for consistency she will continue to say that it is not necessary because all the aspects are covered by the law and the procedures of the NHS. If there is to be a review, I hope that that is transparent and we will discuss the matter in due course.
My Lords, I thank my noble friend Lady Nicholson for bringing this debate before the House today. I understand the sentiment behind her amendment and I am appreciative of all her work advocating for women’s rights. It is an absolute departmental priority that all patients feel safe when receiving NHS services. This is particularly important where patients are interacting with the healthcare system because they may be particularly vulnerable.
My noble friend and all noble Lords are clearly well aware that NHS England and NHS Improvement are currently reviewing the operational guidance on delivering same-sex accommodation to ensure that it remains focused on privacy, safety and dignity for all patients. An internal review of the guidance is the right way in which to ensure that it is fit for purpose and complaint with all statutory obligations. The content of any updated guidance is being informed by engagement with a wide range of stakeholders and in accordance with NHS England’s statutory duties outlined in the Equality Act 2010, including the public sector equality duty. Any revised guidance is due to be published later this year.
I understand that some noble Lords have concerns about the current guidance, and the department remains open to considering this issue further. I reassure all noble Lords that, before publication, Ministers will seek assurances from NHS England and Improvement that it has fully considered whether the guidance is compliant with existing legislation and with NHS England’s relevant duties. However, as it currently stands, accepting this amendment would pre-empt the outcome of the review of the guidance and NHS England, as part of its review, will be considering the Equality Act 2010 and how it applies to the guidance.
I hope my noble friend can appreciate the need to allow NHS England and Improvement to conduct its review of the guidance in full. NHS England and Improvement is fully aware of importance of the review of the guidance to so many and is working to publish the updated guidance at the earliest opportunity.
It is late and we have had a number of debates on a number of important and emotive issues. I thought I might try to conclude my contribution by finding the common ground I thought I heard in the different contributions that we had to this last debate, and I am sorry if I misrepresent anyone in doing so. I think that everyone agreed that wards should be places of safety and dignity that allow patients to get the care they need; that we need to respect the rights of everyone in looking at how we deliver on that and that, in doing so, any guidance and practice is in line with the Equality Act and the law more generally; that the guidance that is produced is practical and effective for clinicians who are trying to deliver the best possible outcomes for patients; and that we approach this and other issues where there is disagreement or conflict about how we adhere to those aims from a position of evidence, compassion, empathy and respect. With that, I hope that my noble friend feels able to withdraw her amendment.
Before the Minister sits down, she has not answered the question about the status of the review promised by the Secretary of State, Sajid Javid, last August.
My Lords, it is NHS England’s responsibility to ensure that its own guidance is compliant with the relevant provisions in the Equality Act and works operationally and effectively. That is why NHS England is doing the review of its guidance. As I understand it, the Secretary of State has previously said that he had asked the Department of Health and Social Care for fresh advice on this issue, and he is indeed taking advice from the department on this matter.
Before the Minister sits down, in view of the recent media revelations, might there need to be a review of the review of the guidance? The review of the guidance is coming into disrepute, and we do not understand how we can hold it to account. I do not want it to be left to newspapers.
My Lords, I think it is worth making two points. The NHS review is of operational guidance and is called privacy, dignity and safety and is reviewing the entirety of delivering the same-sex accommodation guidance. This guidance includes annexe B. I thought I had in part answered the noble Baroness’s point in my remarks where I said that I understand that some noble Lords have concerns with the current guidance and that the department remains open to considering this issue further. I also reassure noble Lords that, before publication, Ministers will seek reassurances from NHS England and Improvement that it has fully considered whether the guidance is compliant with existing legislation and NHS England’s relevant duties.
My Lords, I am very grateful to my noble friend Lady Penn and my noble friend Lord Kamall, if I could say on behalf of everyone, for all the magnificent work they have put in throughout the whole of this great debate, not just this evening but day on day, week on week, it almost seemed. We are amazed by their dedication and huge competence.
This evening’s has been a very helpful debate. I know that I speak for many noble Lords, including, I hope, my noble friend Lord Blencathra—I hesitate to speak for him because he was once my Chief Whip, so I remain almost silent in front of him. It has been a most interesting and helpful debate and I am confident we can take it further, and with that I withdraw the amendment.
Amendment 184ZBA withdrawn.
Amendment 184ZBB not moved.
Clause 166: Regulations
184ZC: Clause 166, page 135, line 41, at end insert—
“(da) regulations under section 151;”
Amendment 184ZC agreed.
184A: Clause 166, page 135, line 41, at end insert—
“(da) regulations under section (Licensing of cosmetic procedures);”Member’s explanatory statement
This amendment ensures that regulations under the new Clause about licensing of non-surgical cosmetic procedures are subject to the affirmative procedure.
Amendment 184A agreed.
Clause 169: Commencement
Amendments 185 to 187
185: Clause 169, page 137, line 3, at end insert—
“(4A) Section (Child safeguarding etc in health and care: policy about information sharing) comes into force at the end of the period of three months beginning with the day on which this Act is passed.”Member’s explanatory statement
This amendment provides for commencement, three months after Royal Assent, of a new clause concerning government policy in relation to information-sharing by or with authorities with health and social care functions, for purposes relating to children’s health or social care or the safeguarding or promotion of the welfare of children.
186: Clause 169, page 137, line 4, leave out “(4)” and insert “(4A)”
Member’s explanatory statement
This amendment is consequential on an amendment providing for commencement of a new Clause.
187: Clause 169, page 137, line 7, at end insert—
“(6A) In relation to section 155 (cap on care costs for charging purposes), different days may be appointed under subsection (5) for different areas.”Member’s explanatory statement
This amendment allows the care cap amendments to be brought into force at different times in different areas (which is consistent with the provision made by the Care Act 2014 for the commencement of the sections to which the amendments relate).
Amendments 185 to 187 agreed.