European Union (Withdrawal) Bill

Debate between Lord Duncan of Springbank and Lord Warner

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Warner (CB)]

My Lords, I will move Amendment 17A in my name and those of the noble Lord, Lord Hunt, and the noble Baronesses, Lady Jolly and Lady Finlay. The purpose of the amendment is to improve the legal protections of public health post Brexit. It does that by ensuring that those parts of Article 168 of the Lisbon treaty that are concerned with public health are part of retained EU law after exit day. I will try to explain briefly why this is an important matter of such concern to so many people involved with public health who have briefed your Lordships throughout proceedings on the Bill.

Clause 4 of the Bill includes within retained EU law directly enforceable provisions of the EU treaties. The legal advice that I have been given by three professors of European law at the Universities of Sheffield, Essex and Cambridge is that it is not clear whether it includes other provisions of the EU treaties, such as Article 168 of the Lisbon treaty. As far as I can see, the Government have been unwilling to say that it does cover those other provisions. So far on the Bill, Ministers have simply asserted that the amendment is unnecessary because our public health policies are excellent and often better than many in the EU. That, of course, fails to answer the exam question: is Article 168 part of retained EU law under the Bill? The latest letter to Peers from the noble Lord, Lord O’Shaughnessy—whom I am glad to see in his place—which incorporated Jeremy Hunt’s article, still fails to tackle the exam question.

Why am I making so much fuss over Article 168? I will not repeat all I said in Committee. However, I will remind the House of Mr Justice Green’s High Court judgment on 16 May 2016, on plain packaging of tobacco products, in which, at paragraph 441, he emphasised that Article 168 places public health,

“at the epicentre of policy making … and how ‘all’ EU policies must ensure a ‘high level of human health protection’”.

This was a significant element in his finding in favour of the Government, and Mr Justice Green’s findings were further endorsed by the Court of Appeal, rejecting the tobacco industry’s appeal in its judgment dated 30 November 2016. At paragraph 201 of the Court of Appeal’s judgment it says:

“The judge was entitled to place the weight he did on the public health objectives of the Regulations: his approach was in line with the high level of human health protection provided for in EU law”.


It is one of life’s little ironies that this Government have benefited from these EU protections. Two clear and reasonable inferences can be drawn from the Court of Appeal judgment. First, the public health protections in Article 168 should be regarded as part of retained EU law after Brexit, and secondly, the EU legal public health protections may well be more robust than those in UK law.

I turn briefly to the level of public health support for this amendment. The uncertainty caused by the Government’s approach has united the Medical Royal Colleges and wider health community, all of whom have given consistent support to this amendment. To date, 52 organisations, including the Royal College of Physicians, the Faculty of Public Health and many major charities such as Cancer UK, Diabetes UK and the Alzheimer’s Society are backing the amendment. They do so, in my judgment, because they fear that after Brexit, hard-won legal protections for public health will be sacrificed in a rush to do trade deals. Given the speeches of some Ministers, who can blame them?

The simplest way to satisfy all these concerns is to put matters beyond legal doubt. We are well past the time for further warm words from the Minister. Matters need to be made clear in the Bill by an amendment along the lines of Amendment 17A. I provided the Minister with a little more time to think about this at our meeting last week by deferring consideration of the amendment until today. I hope that he has used the time wisely and that he can now agree to accept it. I beg to move.

[Lord Duncan of Springbank]

I have some points which may be helpful to make at this moment, before the full discussion gets under way, and I may seek to clarify our position. However, I will of course respond to the wider debate in due course—I am not trying to cut off any of the points which might be made. The noble Lord, Lord Warner, was indeed kind to me last week; we sat down and he agreed to allow me a greater amount of time. I will therefore say words which may bring him some comfort with this point in mind.

Public health is a vital issue—there is no doubt about that. I accept that we have not thus far provided sufficient assurance to the noble Lord or to his noble backers on the issue of public health. I am therefore grateful that we have had this extra time to look at the issues that underpin the matters before us today. I have used that time wisely in meeting with both the noble Lord, Lord Warner, and my noble and learned friend Lord Mackay of Clashfern. I thank them both sincerely for their time.

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[Lord Duncan of Springbank]

For the good of my own health, we will reflect on this matter and we will be able to come back to it in due course. In the meantime, we will ensure that the intervention is circulated widely so that noble Lords can see exactly where we stand on this matter. I hope that that is helpful.

[Lord Warner]

Well, my Lords, if you just sit here, things work themselves out. I am grateful to the Minister for his intervention and I am extremely grateful to the noble and learned Lord, Lord Mackay of Clashfern, for all the help that he has given behind the scenes and to me personally on this matter.

What I have to say to the Minister is aimed not so much at him as at a few of his colleagues. They have been a bit slow in coming to the party. These legal judgments have been around for quite a long time and one would have expected DExEU to have mastered these things at an earlier stage. However, in the circumstances, and with my thanks to the Minister for showing flexibility while he was on the Bench, as well as in his interventions, we will come back to this at Third Reading. I will make sure that all the backers of the amendment have time to read everything, and I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Debate between Lord Duncan of Springbank and Lord Warner

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Duncan of Springbank]

I thank the noble Lord for his comments. I will start where he finished: no, we are not going to do that. I am afraid that is not the Government’s purpose. There will be no rollback of these standards because they are at the heart of what we believe to be right and proper. A number of noble Lords have implied that what has been proposed will be the case. I assure them that is not the case.

My noble friend Lady Chalker is right to stress the leadership role that the United Kingdom has long had in the area of public health. Indeed, that leadership role has been a beacon to not only the EU but its member states. As someone who currently lives in Edinburgh, I recognise the role that Scotland has had in pushing forward boundaries which are only now being adopted in certain parts of the world. It is important to stress that we are not in any way diminishing our regard for public health. Indeed, in bringing across the corpus of European law, those matters will rest in our statute book and will therefore be removable only by the other place and by this place.

Before I address some of the more substantive points, it is important once again to look at the EU itself, mostly in the area of public health. The noble Lord should be aware that public health has not been a core competence of the EU. Indeed, many of the aspects of public health have rested elsewhere within the statute books. Noble Lords will be aware that we have known about the pernicious and deadly impact of tobacco for many years, yet it is only in the last five years that the EU has phased out subsidies for tobacco growers.

I was a member of the European Parliament and sat on the environment committee. I also sat on the committee that investigated a scandal that came to be known as “dieselgate”. Noble Lords will be aware of exactly what that represented. At the heart of the EU, a major organisation installed cheap devices in vehicles that were specifically intended to undermine the core air quality standards. We should again remember that that was uncovered by an American public body, not by the EU’s body, which is in itself a borderline scandal. Further, we must also recognise that Volkswagen has compensated car owners in the US but has not in any way compensated car owners in the EU.

I am reminded also of the traceability of food and the horsemeat scandal, which riddled the EU. High standards are important only if they are met, and they must be met in each and every instance. Far too often we have found across the EU some of the most rigorous standards on paper that there could ever be, yet their enforcement is dreadful and woeful. Indeed, I am nearly certain that when we leave the EU the mean standard of public health will fall in the remaining states, so important is the contribution that we make to the wider question of public health.

When we look at the role of global standards and something like the recent Ebola outbreak, it was not the EU that pushed at that standard but France and the UK. They recognised an obligation to deliver against that pernicious pandemic. I believe we also need to recognise that the UK has been at the cutting edge of driving forward public health.

The noble Lord, Lord Warner, said that I might suggest that his amendment was vague. It is not vague; it simply duplicates exactly what the Government—indeed, not just this Government but every Government—have long said and long held to be dear. At the heart of good government must be the preservation of public health. It must be a cornerstone not just in the UK Government but in the Governments of the devolved Administrations, which in some respects have been brought into the ambit of the report. We need to recognise that.

Perhaps I may touch upon some of the other issues that have been brought into this wide-ranging debate. I reiterate that many of the aspects that we are touching on here will necessarily be part of ongoing negotiations, but I assure noble Lords that it is this Government’s intention to secure the highest possible engagement on matters of wider public health. I thank the noble Lord, Lord Patel, for bringing up a number of the areas that I believe the Government need to look at carefully—how we continue our collaboration, how we ensure that we can co-operate and how we can maintain that high standard. We can do so by sharing practice on both sides, because we both have a great deal to contribute and each will be the poorer for the absence of that collaboration.

It important for me to stress that the Secretary of State for Health and Social Care has a statutory duty under the National Health Service Act 2012 to protect the health of the public. A number of noble Lords have raised that, as indeed has the briefing from a number of sources, not least the Royal College of Physicians of the United Kingdom. Of course we are going to argue that the Secretary of State for Health and Social Care already has these powers, and it is his intention to hold them to the highest possible standard. I stress that, although there is an equivalent duty under the NHS—

[Lord Warner]

Can I make it clear that the Minister is saying that the powers and duties of the Secretary of State are as wide as the powers and duties in this amendment?

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[Lord Duncan of Springbank]

I am stressing once again that the powers and duties that rest upon a Secretary of State for Health and the health department are high enough and wide enough to capture the intent of this amendment, and that is why the Government will not support the amendment on this occasion.

[Lord Warner]

That was not my question. Can the Minister say whether the current powers extend to the devolved Administrations, the other public bodies and the whole of government, as covered by the amendment?

[Lord Duncan of Springbank]

No, for one very simple reason. As the noble Lord knows, we cannot impose on the devolved Administrations by this mechanism. I am afraid that that is a simple statement of where the law and the devolution settlement rest.

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[Lord Duncan of Springbank]

Because it is superseded by the power that rests in the hands of all good Governments to deliver at that particular level. That is the purpose, and that is the point that I raised just now. If I may, I will make some progress.

It is important that I stress that we are committed to continuing co-operation not just within the EU but more broadly. That is why we are an active participant in the World Health Organization and in various other elements of global public health. My noble friend Lord O’Shaughnessy, the Parliamentary Under-Secretary of State for Health and Social Care, who is sitting beside me this evening, has committed to continuing the UK’s leading role in promoting and ensuring public health, in Europe and beyond. This commitment builds upon the principles set out by my right honourable friend the Secretary of State for Health and Social Care last July on a post-Brexit regulatory system where patients are not disadvantaged and patient safety remains at the heart of our endeavours. It is the Government’s intention, as stated in the future partnership papers, to continue collaboration with the EU to safeguard resilience. This of course will be determined as we move through the engagement on this matter.

I stress that the values and principles which have underpinned our National Health Service for the past 70 years—and which are not to be traded away with the US or any other trade partner we might have—will continue to guide us, just as they have contributed to the development of health and social care services across the EU. That is why, in this instance, I ask the noble Lord to withdraw his amendment.

[Lord Warner]

My Lords, I am grateful to everybody for their contributions in this debate. My score-card shows 14 in favour of the amendment and two against, including the Minister, and that was across the Benches. I am glad that he has moved on from saying that the amendment is vague—that is a bit of progress from what Ministers said before to the Faculty of Public Health.

The Minister seems to be setting up the EU as a straw-man villain to criticise. I never claimed in the past that everything that the EU did in this area was perfect and for all time. What I was trying to do in this amendment was take a principle in the Lisbon treaty, which this country has signed, and apply it to the jurisprudence of the future. If I may, I remind him of the quotation from the High Court judgment, which he needs to read carefully. It makes it very clear that the courts found it useful to apply this principle and put it at the “epicentre”—the word of the judgment, not mine—of public health. It was used in coming to a judgment that actually helped the Government’s position on tobacco policy.

I have heard nothing from the Minister which suggests that the Government have got the same breadth and width of coverage as this amendment provides in this legislation. As the noble Lord, Lord Deben, said, I cannot see why on this issue the Government cannot put in the Bill what they claim to be their policy. It would reassure a very large number of people and help with the exit from the EU. I can guarantee the Minister that I shall return to this issue on Report.

I would be very happy to have a meeting with him, if he feels some flexibility coming upon him, as would many of my colleagues. However, if he does not, I think he can expect a rerun of this on Report. In the meantime, I beg leave to withdraw my amendment.