The House of Lords is flexing its ermine-clad muscles and Ministers need to adapt their approach.

The Medicines and Medical Devices Bill for which Lord James Bethell is the responsible Minister in the Lords, recently sailed full steam into some very choppy waters, taking a completely avoidable pounding (2nd September) from peers on all sides of the House

The Lords, of course, almost never actually block a Bill at their first substantive opportunity (Second Reading). Some interpret this as courtesy to afford a Bill’s mover the benefit of the doubt that it must, surely, be at least worth considering carefully at Committee Stage. Personally, I suspect that the real reason these days, certainly for some Peers, is that they can have a significant impact moving amendments at Committee and Report Stage that go way beyond tinkering with the measure before the House, and rather use the Bill to see laws passed on wider issues than would otherwise have been possible.

The age of the “tacking amendment” has well and truly dawned. We saw this clearly with the recent demand from their Lordships that Baroness Diana Barran amend her own Telecommunications Infrastructure Bill to keep Huawei out of sensitive telecommunications networks. That was the parliamentary equivalent of a hijacking – a genteel hijacking, but a hijacking nevertheless, since their Lordships could never have got their way other than through the vehicle of a government Bill.

Goodness knows why James Bethell didn’t heed the warning signs that this was coming, or tack his course in the light of the above experience, but he didn’t. As a consequence, he received an excoriating blue-on-blue broadside from Lord Blencathra (David MacLean), Chair of the Delegated Powers and Regulatory Reform Committee whose earlier report on the Bill had been scathing. Bethell should have seen it coming and reached out before, not after, the Lords debate.

Blencathra wasn’t alone in his attempt to sink the Bill. He was backed by peers from all sides of the House registering their horror at the sheer range of the powers that it gives to ministers to introduce new regulations through largely unchallengeable statutory instruments.

Another Conservative, Baroness Julia Cumberlege, albeit with great poise and courtesy, piled in with challenges about her own recent report on Patient Safety – First Do No Harm; and was supported in her calls for a new Patient Safety Commissioner by almost every speaker in the debate, who also almost unanimously backed the creation of a task force to ensure the implementation of the report’s full range of recommendations.

Why go through the rigmarole of commissioning an inquiry, led by one of the stature of Julia Cumberlege, only to so thwart her reasonable aspirations for policy change that she warns the House that:

“The only cloud on the horizon is the Department of Health and Social Care, which simply does not get it. Asking everyone, as it does now, to work together better in the future simply will not work, any more than it has in the past. We need someone and something new: a patient safety commissioner.”

Then, came the announcement that the government faces an amendment, with momentum behind it, on the scandal of the inadequacy of regulations to prevent the import of human tissue from the forced organ harvesting programme in China, which is now a multi-million dollar global industry, and in which the British Government, by its failure to act effectively, is inevitably vulnerable to the charge of complicity.

The amendment, to give the government power, should it so choose, to introduce regulations on these matters may have been first mentioned by Lord Philip Hunt, a Labour Health Spokesperson, but he was soon backed by eminent surgeon, Lord Ian McColl, former Parliamentary Private Secretary to John Major during the latter’s premiership. In piled world revered former Conservative Lord Chancellor, Lord MacKay of Clashfern; Conservative former President of the Royal College of Surgeons, Lord Ribeiro; senior judge Baroness Butler Schloss; and global leader in palliative medicine and former President of the British Medical Association, Baroness Ilora Finlay, among a dozen peers who backed the proposed amendment – before it had even been tabled.

Ministers must stop listening to officials on these issues and speak instead to their colleagues in the House, colleagues on all sides since these matters really should not be seen as party political issues at all; and as this column has pointed out, the government does not have a majority in the Lords, so coalitions of the willing are necessary if it is to have its legislation.

Instead, at 8.30pm the night before the debate, officials had the minister write to the backers of the organ harvesting amendment telling them, officiously as they inevitably do, that “the Bill is not an appropriate vehicle to address this”. Really? Red rag to the Lords bull, or what? If the amendment is procedurally in order, and the Public Bills Office had already advised that it is, then it is for the House, not the minister as mouthpiece for his officials, to determine whether it is appropriate to pass it.

This is an important opportunity to put right a serious wrong. A study by the medical journal BMJ Open raises ethical issues of over 400 studies conducted in China using an estimated 85,477 organ transplants. 99% of the studies failed to report whether organ donors had given consent for transplantation. The paper concluded that:

“The transplant community has failed to implement ethical standards of banning publication of research using material from executed prisoners… As a result, a large body of unethical published research now exists, raising questions of complicity to the extent that the transplant community uses and benefits from the results of this research.”

Equally, the implementation of the recommendations of the Cumberlege Report would afford an opportunity for government to do, and to be seen to do, the right thing by patients, particularly women, who have suffered avoidably due to medical mistreatment over a period of decades – mistreatment that all too often appears to have arisen because of inherent misogyny on the part of male medics and a consequent trivialising of the pain, discomfort and longer term harm so many women have endured.

The House of Lords is far from ideal as a revising chamber, but whilst it exists in its current form, debates like those recently held on these Bills show it at its best. Ministers need to be aware of the shifting alliances and priorities that lie behind the calm and courteous surface of Lords’ debate. Those piloting Bills through its waters need to review their strategy and tactics, and replot their course, if they are to avoid creating real problems for themselves, and running aground on rocks that are clearly marked in advance on their charts.

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