Coronavirus Act 2020: Temporary Provisions

Lord Foulkes of Cumnock Excerpts

Monday 28th September 2020 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, it is a real privilege and a pleasure to follow—I was about to say the Member of Parliament—my noble friend Lady Clark of Kilwinning and to congratulate her on an excellent maiden speech.

As she has already revealed, I have known my noble friend for over 40 years—I hope that I am not giving too much away there—and I know her family, a great socialist family in Ayrshire, very well. We have heard an excellent maiden speech from her, and I would like to pay tribute to the work that she did as the Member of Parliament for North Ayrshire, which is almost as beautiful as South Ayrshire. I look forward to many more speeches from my noble friend over the many years that I know she will spend in this House. I am sure that, in future speeches, she will be a bit more controversial, as she was advised not to be in her maiden speech—she stuck to that injunction tremendously.

I, however, am allowed to be controversial, so I return to the issue before the House. If there is one word that summarises the Government’s record on the coronavirus pandemic, it is “failure”. First, there was the failure to anticipate the seriousness of this virus, following clear experience in China, Italy and elsewhere, not to mention the scrapping, during the austerity years, of the previous plans to deal with epidemics. Further, there was failure to recognise that transferring all the people with the virus from hospitals to care homes would result in deaths that could, and should, have been avoided. I fear that we are about to repeat this. There have also been multiple failures with the test and trace system, which the Prime Minister bombastically claimed would be “world-beating”—it is certainly not that. The decision to outsource to private firms such as Serco, instead of using the tried and tested local health network, and the cronyism of appointing the unqualified noble Baroness, Lady Harding, to oversee it means that the system is mired in controversy and ineptitude.

There is also the double failure of the much-heralded app, first with the trial on the Isle of Wight and now with the national scheme, which only works on a minority of smartphones. In recent weeks, there has been a total failure to recognise and prepare for the dangers associated with thousands of young people criss-crossing the country as they start, or return to, university. Many are now imprisoned in their lodgings, having to pay thousands for fees and rent while receiving mostly online learning, which most of them could have had from home. It is okay for the vice-chancellors and for the student hostel owners, but it is a raw deal for the students. There is also a failure to provide consistent messaging: “Work from home”; “No, go back to work”; “No, stay at home”. It has been simply one U-turn after another.

Finally, there has been a massive failure to co-ordinate with the devolved Administrations and to provide some consistency of approach. There should have been daily meetings, convened by the UK Government, recognising devolved responsibilities but seeking to get an agreed approach throughout the United Kingdom. We are now told that we face at least six more months of coping with the pandemic. I hope that, in his reply to this debate, the Minister finally gives an assurance that the Government will at last recognise the mistakes that have been made and will learn from them, so that future action is better than their past record.

Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020

Lord Foulkes of Cumnock Excerpts

Friday 24th July 2020 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, sadly, we have all experienced the Government’s inconsistent and confusing guidance throughout the whole pandemic. The continuous flip-flopping on whether, where and when we should wear masks has led to confusion and has hampered public confidence in returning to using public transport and going back to shops, restaurants and pubs. With a second wave possible, we urgently need the infrastructure and tools in place to ensure that our health service and our neglected care system are not in danger of becoming overwhelmed during the winter period.

Finally, we must also see an end to this confusing and ambiguous messaging coming out of central government, with Ministers regularly contradicting each other in one day. We must also see an end to the petty politicking between the Prime Minister and the First Minister of Scotland.

Covid-19 Update

Lord Foulkes of Cumnock Excerpts

Wednesday 1st July 2020 Lords Chamber

[Lord Bethell]

My noble friend is right to raise this important subject. I know the volunteer testing network; I value it enormously and am extremely grateful for its support. I am currently looking into its funding, and I would be glad to write to my noble friend to provide a clearer answer on that.

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

The Minister graphically described Leicester as a rock pool while the tide of the pandemic goes out, but tides have a strange habit of coming back in again. The Government have decreed that all the pubs in England will open on a Saturday—4 July. As my noble friend Lady Thornton said, that has been described as another New Year’s Eve, and of course it is followed by a Sunday. What plans do the Government, and particularly the Department of Health, have to respond to any problems that may arise after this rather early New Year’s Eve?

[Lord Bethell]

The noble Lord is right to be concerned. I think we are all concerned about the unlockdown because we want to return to opening the economy and society, but we are naturally anxious about the consequences. I have met the leaders of pubs, clubs and others in the hospitality industry, and I am working extremely closely with them to put in systems with which we can record those who attend those venues to support our tracing efforts—and to provide a subliminal message to all those who attend that they are at a place of risk and have to behave with some common sense. I am extremely hopeful that the experiment will be a success, but we should not be under any illusion: if the tide returns and the experiment does not work out, we will have no hesitation in suspending the experiment and going back to closing the pubs if necessary.

Covid-19: Obese and Overweight People

Lord Foulkes of Cumnock Excerpts

Thursday 4th June 2020 Lords Chamber

[Lord Bethell]

The noble Baroness is entirely right to suggest that Covid might be the infection point—the intervention necessary to wake up the nation to the dangers of obesity. We are keen to use that moment to make progress on this important issue.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I declare a very personal interest in this issue: a recent Lancet article raised concerns that obesity is now shifting severe Covid disease to younger ages. Will the Government put in place public messaging not of shame but of sympathy and encouragement to younger adults?

[Lord Bethell]

The noble Lord is entirely right to raise the issue not only of younger adults but of children. These habits are formed extremely early and are hard to kick; if interventions are to be effective nationwide, they need to be aimed at all parts of society, particularly younger ages, when people pick up the behaviours of a lifetime.

Covid-19: Removal of Restrictions

Lord Foulkes of Cumnock Excerpts

Tuesday 21st April 2020 Lords Chamber

Asked by

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government when they expect to announce (1) the arrangements, and (2) a timetable, for the removal of restrictions in place to address the COVID-19 pandemic.

The Question was considered in a Virtual Proceeding via video call.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)]

My Lords, our priorities are to save lives and protect the NHS. When the evidence demonstrates that it is safe to do so, we will adjust the lockdown arrangements. We have set out five clear conditions that need to be met. Adjusting the lockdown arrangements could involve relaxing measures in some areas, while strengthening measures in others. In formulating the right balance, we will be guided at all times by scientific advice and by the evidence.

[Lord Foulkes of Cumnock (Lab Co-op)]

I am grateful to the Minister, but why do he and other Ministers think that the British public are unable to deal with two messages simultaneously? Will the Government now set out a plan for lifting the lockdown in stages when it is safe to do so in each area, just as is being done in other countries and, indeed, is being looked at by the Scottish Government?

[Lord Bethell]

The noble Lord is right that the British public have been incredibly diligent, and I commend all those who have followed the guidelines to stay at home for the impact they have had on the infection rate and the mortality rate. However, we cannot fool ourselves into thinking that the epidemic is over. We have to be clear with, and level with, the public that any changes in the guidelines are some way off, and that they will be presented to the public when our understanding of the medium-term strategy is clear.

Coronavirus

Lord Foulkes of Cumnock Excerpts

Thursday 12th March 2020 Lords Chamber

[Lord Bethell]

The recruitment of recently retired staff requires some changes to legislation, which are being studied at the moment. We look forward to bringing them to the House in the near future. I am happy to update the House on those provisions, once we have made further progress.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I welcome the decision of the Government, and the meetings of the joint commissions, that Parliament should continue to operate properly in our democratic society—not least, as the noble and learned Lord, Lord Judge, said, so that we can deal with the draft legislation for this emergency. But has any assessment been made of potential dangers from the large groups of visitors, from many countries, who wander around—and are taken around—this building? That might create dangers that put the question of our sitting in doubt.

[Lord Bethell]

The noble Lord’s point has been raised with me by staff of the Palace, who are concerned about this. It is not for me, I am afraid, to answer this question; it is for the officers of the House. I know they are looking at this matter and are being advised by the Chief Medical Officer.

Tobacco Harm Reduction

Lord Foulkes of Cumnock Excerpts

Tuesday 2nd April 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

I emphasise that smoking is now at the lowest levels recorded, and we should be proud of the fact that the UK is seen as a world leader in tobacco control. However, we are by no measure complacent, because there are variations between different groups and across the country. That is why the NHS Long Term Plan contains a commitment to do more to target smokers in NHS care, why NHS health checks offer an opportunity to smokers to quit, why PHE backs the very successful Stoptober campaign, why we are introducing smoke-free prisons, why we are introducing interventions for those within the mental healthcare system, and why we are introducing a new smoke-free pregnancy pathway. All those things will ensure that we continue to reduce the incidence of smoking in the UK.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, will the Minister look at the experience of Scotland 20 years ago? A factory was opened that produced these small tobacco pouches, but it was closed down within a year—I was one of the people responsible—because of the incidence of mouth cancer. We saw that, in the United States and elsewhere, mouth cancer was caused by sucking those pouches. It really is a crazy suggestion from the noble Viscount.

[Baroness Blackwood of North Oxford]

I thank the noble Lord for his point. I shall certainly look at the experience of Scotland. There will be an evidence-based review, which will look at the risks as well as at the proposals.

Healthcare (International Arrangements) Bill

Lord Foulkes of Cumnock Excerpts

Report stage (Hansard): House of Lords
Tuesday 12th March 2019 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I have in my name Amendment 4, which has a great deal in common with the other amendments in the group. It is intended to achieve two objects, the second of which is to restrict the operation of the Bill to the EU, the EEA and Switzerland—as do other amendments of the group—by ensuring that the object of any regulations under the Bill would be limited to replicating existing arrangements. The first sentence of my amendment would delete subsections (2) to (4) and thereby drastically narrow the regulation-making power to replicating the reciprocal healthcare arrangements we have now. That part of my amendment fits more sensibly with the amendments in the second group, and I shall address it then. I will be brief in speaking about this group because I agree with every word that the noble Baroness, Lady Thornton, and the noble and learned Lord, Lord Judge, said.

This House has shown conclusively that it supports ensuring that we can continue to provide EHIC cards to the 27 million British citizens who enjoy them and guarantee continuing healthcare to British pensioners living elsewhere in the EU along with the other arrangements for reciprocal healthcare that we enjoy as members of the European Union. Those arrangements are in place. They work extremely well in providing guaranteed healthcare across the countries that they cover. They enjoy very wide public support and are clear. Millions of our countrymen and countrywomen would be very unhappy to lose them as a result of Brexit, but there is absolutely no urgency for introducing legislation now for healthcare deals around the world.

Throughout the debates on this Bill, the Government have not come up with a single reason why we should not now pass this legislation limited to agreeing the continuation of our existing reciprocal healthcare arrangements while deferring legislation for new healthcare agreements with third countries to another time, and then considering the Secretary of State’s powers in the context of those arrangements in another Bill. Before we legislate for new international healthcare agreements, we should be able to consider in detail the criteria for making them, what should be their objects and limitations, what they should contain, who should be in charge of monitoring them and how we might seek to improve them. We should also have clear arrangements in place for their parliamentary scrutiny better than exists under the existing CRaG rules for consideration of treaties by the House of Commons.

It may be, as the noble Baroness, Lady Thornton, said, that international healthcare agreements could be beneficial to Britain and British citizens, but they could also be detrimental, with unacceptable increases in pressure on the NHS and with the potential for healthcare agreements being offered without proper scrutiny in exchange for trade deals on terms that many would find offensive. All we are asking on this side of the House and, as we have heard, from some of the Cross-Benchers, is to give this Bill a fair wind and pass it quickly only to enable the reciprocal arrangements that we have to be continued but giving Parliament a chance to consider carefully the far wider and more difficult issues involved in agreeing new healthcare agreements across the world. This Bill does not do that.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I support my noble friend Lady Thornton who has done a splendid job in dealing with this Bill, in analysing it and bringing forward amendments for consideration by the House. According to the Delegated Powers Committee, this Bill has “a breath-taking scope”. I have not heard that said about any other Bill coming before the House. All the other Bills and statutory instruments that we have considered deal with providing exactly the same arrangements that we have at present in the event of no deal. They have been precautionary for that. This is the only one, as I understand it, and this is the only department that is trying to include something completely new, very wide and extensive, as the noble Lord, Lord Marks, and my noble friend Lady Thornton said.

If the Government want to do that, as my noble friend said, they can wait until the Queen’s Speech. We know that the Government Chief Whip does not know when that will be, but there has to be one eventually and that is the right time for us to consider it. We can then look at the proposals in detail and, as the noble Lord, Lord Marks, said, examine them then. These additional powers are opposed by the trade unions, the BMA and a whole range of people. Indeed, I have not found anyone except Conservative Members and Ministers in favour of this wide extension, this “breath-taking scope”, of the Bill. I hope that the House today will support my noble friend’s amendment and reject the proposal put forward by Her Majesty’s Government.

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[Baroness Chisholm of Owlpen (Con)]

My Lords, I cannot agree with these amendments. As we pointed out during the progression of the Bill, we live in a global world, with more people travelling internationally for all kinds of reasons. There is obviously a huge demand for healthcare systems between countries, giving the traveller peace of mind that the foreign country they are in can respond to healthcare needs.

As was also mentioned, we already have simple reciprocal agreements with non-EU countries. The domestic implications are limited, and our current powers to charge domestic overseas visitors, and the regulations under such powers, provide for domestic implementation. Importantly—

[Lord Foulkes of Cumnock]

May I interrupt the noble Baroness?

GP Partnership Review

Lord Foulkes of Cumnock Excerpts

Thursday 21st February 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

I absolutely have had a large number of conversations with general practitioners who have struggled. In my previous role as a Member of Parliament, I visited a large number of general practices in my constituency. I am also the daughter of a doctor and I have a rare disease, so I spend a lot of time in the NHS as a patient and, perhaps, as a mystery shopper—so I assure the noble Lord that I have extensive experience of the NHS. I would not claim, however, to understand what it is like to be a general practitioner, so I would always hope to learn by continued experience of listening to their experiences and challenges.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, why does the Minister think that the reality that we see every day in the outside world differs completely from what she says at the Dispatch Box?

[Baroness Blackwood of North Oxford]

I do not think that that is the case. I think we are making good progress. It is a challenging picture for general practitioners; that is exactly why, since the New Year, we have introduced the long-term plan to increase funding for the NHS, and in particular for general practice. We have introduced this review with support from the department, new GP practice with support from the BMA and the new GP IT Futures plan so that we can bring in the most innovative technology for GPs so that they can bring the best and most innovative care to patients.

Healthcare (International Arrangements) Bill

Lord Foulkes of Cumnock Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Thursday 21st February 2019 Lords Chamber

[Lord Lansley (Con)]

My Lords, I shall speak to Amendments 37 and 39 in this group, which are in my name. The noble Lord, Lord Marks, has helpfully introduced them in the point he made towards the latter part of his remarks about the distinction made in the EU withdrawal Act between retained direct principal EU law and retained direct minor EU law.

As the noble Lord said, that principal EU legislation should be subject to the affirmative procedure was recommended for the Trade Bill. That was accepted by the Government but has not been incorporated into this legislation. My Amendments 37 and 39 would do precisely what the Constitution Committee recommended on Monday. Happily, I tabled my amendments last week, rather than waiting until after Monday, as that would have been rather late. The amendments would allow the Government to indicate their support for this process. I hope that they are drafted correctly and that they would do the job, but, even if they do not, we will have the opportunity for that to be remedied on Report. I hope that my noble friend on the Front Bench will say that it is the Government’s intention to make this change.

Participating in the Committee stages of both the Trade Bill and this Healthcare (International Arrangements) Bill gives one an opportunity on occasion to make a positive comparison between the two. However, it is getting confusing. The Trade Bill is intended to roll over existing agreements and specifically does nothing else. Members—not least on the other side—are spending much of their time trying to persuade the Government that it should include reference to how things should be agreed in the future. The Bill before us creates a power not only to roll over existing agreements but to make new ones. On Tuesday, much time was spent on Members of the House arguing that this was inappropriate and should be left to future legislation. As they say: you cannot have it both ways. But it seems that in this instance, at least on this specific point, we can ask Ministers to change the Bill for this purpose.

I commend to the Front Bench Amendments 37 and 39, which would incorporate an affirmative requirement for amendments to retain direct principal EU law.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I strongly support the amendment of the noble Lord, Lord Marks, and everything he said. I fear that, given the welter of things happening in politics at the moment, this kind of Bill is getting through without proper scrutiny and that many people, in both Houses, do not realise the importance and far-reaching implications of what we are considering. We are therefore very grateful to people like the noble Lord, Lord Marks, for drawing attention to this issue. I am astonished that this has apparently got through unchallenged in the other place. Many of my colleagues—with the notable exceptions of my noble friend Lady Thornton and her colleagues on the Front Bench—have not realised what an urgent matter this is.

I arrived late on Tuesday and was unable to participate in the debate on the first amendment. I missed the wonderful speech by the noble and learned Lord, Lord Judge. He raised the issue again at Question Time today and was answered by the noble Lord, Lord Young of Cookham, who is with us. Astonishingly, as the noble and learned Lord, Lord Judge, said on Tuesday and said again today:

“The harsh reality is summarised in the fact that it is exactly 40 years since the other place rejected a statutory instrument—40 years”.—[Official Report, 19/2/19; col. 2172.]


For the last 40 years, we have been dealing with legislation without the ability to amend it. Whether the procedure is affirmative or negative—I will come to that later—does not matter: we have not had the opportunity to amend it. What happens? The statutory instrument is drawn up by civil servants and put forward to Parliament by the Government. What is Parliament asked to do? You have to agree it or not—and if you do not agree it, you get threats. You get people saying, “This is a killer amendment” or, “This is a killer resolution”. That happened yesterday, I think, on a couple of statutory instruments, and the amendments were not moved in the end.

So we have a take it or leave it situation with statutory instruments, unlike with primary legislation. When the subject was raised, the noble Lord, Lord Young of Cookham, said that it was a much wider issue—it had been raised in the wider context. A trickle of SIs has become a flood. More and more issues that ought to be dealt with by primary legislation are being dealt with by secondary legislation. The more that happens, the bigger the transfer of power from the legislature to the Executive. That is exactly what the Government are doing. I ask them to think carefully. This Conservative Government will not be in power for ever. I hope some people agree with me on that—somebody say, “Hear, hear”.

[A noble Lord]

Hear, hear!

[Lord Foulkes of Cumnock]

Thank you. I wonder what the noble Baronesses, Lady Blackwood and Lady Manzoor, and the noble Lord, Lord Young, think of the possibility of my good friend Jeremy Corbyn bringing in legislation through statutory instrument after statutory instrument without any ability for scrutiny by a Conservative Opposition. That has to be thought about. This is a parliamentary democracy and people have to think about that and about what they are storing up for themselves. That is exactly what is happening.

I go back to the excellent speech by the noble and learned Lord, Lord Judge. He said:

“A late Victorian, or maybe Edwardian, professor of history described Henry VIII as ‘the mighty lord who broke the bonds of Rome’, but even Henry VIII was compelled to do it through express, primary legislation enacted in the Reformation Parliament. On one view, it may be a misdescription to call this a Henry VIII clause. Bearing in mind that it applies to both UK and EU primary legislation, perhaps in this context it is a Henry XVI clause”.—[Official Report, 19/2/19; col. 2171.]


That was a wonderful description.

Earlier, at Question Time, the noble and learned Lord said that we might issue a stamp commemorating 40 years since the last statutory instrument was overturned by the other place. We all thought that was very amusing and it was a lovely description, but it is a very serious matter. I understand the take it or leave it approach to appropriate secondary legislation, but when the issues considered ought to be dealt with through primary legislation, we get into very dangerous territory indeed. I hope the Minister, in the context of this Bill, and the Government, in the wider context of other Bills, will realise the constitutional implications of what they are proposing and that their short-term political expediency will have some long-term consequences that they might live to regret.

[Lord Butler of Brockwell (CB)]

My Lords, I agree with the noble Lord that our parliamentary processes for dealing with statutory instruments are unsatisfactory—in particular, that we cannot amend them. But is not the remedy in Parliament’s hands? If we were a little bolder and rejected some statutory instruments, it would not be difficult for the Government to reintroduce them in an amended form. The amendment could be very slight. It seems that statutory instruments are necessary, particularly when we are dealing with all those that result from our leaving the European Union. Therefore, we need to look very carefully at the parliamentary process for dealing with them. It seems, as the noble Lord, Lord Young of Cookham, said at Question Time, that this is in Parliament’s hands. We could be bolder and achieve the objective of amending statutory instruments by rejecting some of them.

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My experience of the amending of statutory instruments, which is rather long, is that if the thing has to be amended, it is much better to send it back and let it be reconsidered. That is the real purpose of the way the system was developed: that you do not allow an instrument to pass which is defective; rather, you should throw it out and let the Government amend it.

[Lord Foulkes of Cumnock]

I was going to intervene in the speech of the noble Lord, Lord Butler, but this applies equally here. I have to be careful not to give away too many secrets and internal arrangements, so this is a purely theoretical example. Certainly that can be done, but if a Chief Whip tells you that voting against this is a fatal Motion and urges you not to do it, when that kind of situation builds up it is very difficult. It may well happen. It may already have happened, without giving too much away.

[Lord Mackay of Clashfern]

If a defect was pointed out in a statutory instrument, I would consider that a matter for stopping it going forward. Most of the arguments I have heard in recent times do not point to any mistake in an instrument. They are more theoretical. I do not wish to examine them in detail—I have done that once—but it is important. That is what was proposed when these instruments were originally laid. It is much easier to amend an instrument by taking it back and starting again than with an Act of Parliament. That is the appropriate procedure for correcting a defective instrument, and it happens, not necessarily formally, but quite often instruments are withdrawn when a mistake is pointed out; they get round to writing it again and hopefully the second time it is improved.

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I shall certainly—as the noble and learned Lord, Lord Hope, has said—be considering all the issues that have been raised in this debate, and taking them away. I hope that the context that I have given of the strictly limited intended use of the Henry VIII powers and the reasoning that we have used for EU retained law has been helpful; and that our commitment to engage with noble Lords further on this critical matter will mean that the noble Lord is able to withdraw his amendment.

[Lord Foulkes of Cumnock]

The Minister has been very helpful and said that she will consider the points raised. Am I raising my hopes too high by expecting that the Government may come forward with some amendments on Report?

[Baroness Blackwood of North Oxford]

The noble Lord is right to expect that I will take these questions away and consider them.

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[Lord Lansley]

I am grateful for the opportunity to move Amendment 27, which is linked with Amendment 41. Noble Lords will recall that at Second Reading and again on Tuesday there was considerable debate about the distinction between agreements which are effectively rolled over—existing agreements the purpose of which is to replicate the EU reciprocal healthcare agreement presently in place—and other agreements made under this legislation. In the previous group of amendments, we discussed the Henry VIII power and in what circumstances it should be applied. This is different. From my point of view, this group is about which agreements should be subject to what procedure by way of parliamentary scrutiny where implementing legislation is required in relation to them.

After our debate at Second Reading, it struck me that a clear distinction should be made with what I call “continuity healthcare agreements”, which, as one will see if one looks at Amendment 41, are defined as agreements the purpose of which is to replicate the terms of agreements made presently under the EU social security regulations as there specified. Those are continuity healthcare agreements; they are being rolled over. They are not novel and do not bring new issues to bear. I think that their purpose is entirely agreed: we want to make it swift and certain that existing rights under EU reciprocal healthcare are reproduced in future and implemented rapidly. So it seemed perfectly reasonable for those agreements to be subject to the negative procedure. Therefore, if we could define continuity healthcare agreements in Amendment 41, it would enable those that are not continuity healthcare agreements to be subject to the affirmative procedure. That is what Amendment 27 would do; it would require the additional time and scrutiny to be devoted to where there was a new healthcare agreement—or, as it happened, a substantial amendment to an existing healthcare agreement.

I am not sure that the drafting will necessarily meet with my noble friend’s approval, but my purpose at this stage is to establish the principle that there are two kinds of healthcare agreement. We spent a lot of time on Tuesday arguing whether any extension of the powers beyond existing agreements was desirable and I do not want to re-enter that debate today. However, if we proceed down this path with this Bill, substantially amending existing reciprocal healthcare agreements or adding new ones, we should make a distinction between rollover agreements—that is, continuity healthcare agreements—and those which have substantial changes in them. So I commend Amendment 27 to my noble friend and beg to move.

[Lord Foulkes of Cumnock]

My Lords, I will make a couple of apologies. The first is to my noble friend Lady Thornton. She is absolutely right about our colleagues in the House of Commons anticipating this problem and the wide powers in this Bill. I accept her correction. Indeed, it was my noble friend who alerted me to the powers in the Bill and got me involved—she may be regretting it now, but I am grateful to her. I apologise also to the Minister for not being able to get to the meeting that she arranged with the noble Earl, Lord Dundee, and the noble Lord, Lord Marks. I was invited, but we had a very long Labour group meeting yesterday. I will not go into any of it in any detail whatever, because I am bound to total secrecy—but you can imagine what fun it was.

I want to deal with the distinction between negative and affirmative instruments. In my previous speech I expressed concern that statutory instruments are being used more and more, and inappropriately. Here, at least affirmative resolutions are better than negative instruments. As things stand, the Secretary of State has very extensive powers through this Bill. As the Delegated Powers and Regulatory Reform Committee said, they are of “breath-taking scope”. If all future legislation relating to the Bill were to be laid through a negative procedure, parliamentary accountability and scrutiny would be further—and substantially—undermined. Introducing the made affirmative, as per the amendment, would be in line with the majority of other legislation. Crucially, the Government could not legislate in the knowledge that they would not face parliamentary scrutiny. The Government argue that the absence of scrutiny will relate mostly to administrative actions. However, given the breadth of the Secretary of State’s powers, the negative procedure could easily be misused.

In her concluding remarks at Second Reading, the Minister, the noble Baroness, Lady Blackwood, said that she had heard,

“noble Lords’ preference for wider use of the ‘made affirmative’ procedure, which I will reflect on more as we head towards Committee”.—[Official Report, 5/2/19; col. 1487.]

We are in Committee now, so will she tell us the result of that reflection—or will we have to wait further to find out about it? The BMA echoed this stance and insisted that,

“any new powers granted to the Secretary of State are proportionate, subject to thorough scrutiny, and that all regulations are subject to the affirmative procedure in Parliament”.

I hope that we will get that assurance.

I return finally to that wonderful speech by the noble and learned Lord, Lord Judge, on Tuesday— I have quoted from it twice or three times already. He said:

“I will try not to bang on any longer”.


I will try not to bang on too long as well.

“If we had time and exit day was further away, I should propose that this Bill should be sent packing back to the Government to redraft it and produce a Bill that is constitutionally acceptable”.


“Hear, hear”, I say to that.

“That option is not open. The healthcare of our citizens in Europe, and EU citizens here, must continue and survive”.—[Official Report, 19/2/19; col. 2172.]


That is what we face. It is a gun pointed at our head: “If you do not agree to this, we are going to go out of the European Union with a bang and our people will suffer”. That gun is being put to our head. It is a pity that it is, otherwise I would support the noble and learned Lord, Lord Judge, in getting rid of Clause 5 altogether. In the meantime, all we can do is try to improve it a bit, and I hope that the Minister will give us an assurance that the statutory instruments will be of the affirmative nature rather than the negative one.

[The Earl of Dundee (Con)]

My Lords, I shall speak to Amendment 34. Reflecting concerns about the wide scope of regulations, it seeks for them to be subject to affirmative rather than negative procedures. That, in turn, would enable Parliament to exercise more scrutiny.

However, this aim should perhaps be viewed in three different contexts. The first context is reciprocal healthcare arrangements between the United Kingdom and the European Union. The second is arrangements between the United Kingdom and countries outside the European Union. The third is other possible ways and means, apart from affirmative or negative procedures, for redressing what so far may appear to be an imbalance, with too many powers given to the Secretary of State and too little influence assigned to Parliament.

On reciprocal healthcare plans between the United Kingdom and the European Union, the Minister will be right to caution that we should retain negative procedures. After a healthcare agreement is in place, those would be better able to avoid uncertainty and time delays in order to protect the interests of all direct participants within the new scheme.

Yet reciprocal healthcare arrangements between the United Kingdom and the European Union are a different matter. Does the Minister concur that in that regard there is a strong case for replacing the use of parliamentary negative procedures with affirmative ones, and that to do so would provide a more acceptable balance between the influence of Parliament, which becomes greater, and not putting people at risk within the new scheme?

--- Later in debate ---

[Lord O'Shaughnessy]

The different Governments have clearly taken different approaches. The noble Lord will know that it does not automatically follow, even if you know where you all want to get to, that you can agree it overnight. I am sure that my noble friend the Minister will be able to update us.

[Lord Foulkes of Cumnock]

My Lords, I want to endorse everything that my noble and learned friend Lord Wallace of Tankerness has said. He has the great distinction of having been for some time Deputy First Minister of Scotland and, for a short period, acting First Minister. Very few people can claim that distinction. Again, I agree with every word he said. I describe him as my noble and learned friend in every sense of the term—I hope that is not misunderstood. I also agree with everything said by the noble Baroness, Lady Humphreys.

What I find difficult to understand is why this Bill has received the legislative consent of the Scottish Parliament—which is usually more reluctant to give consent—and not that of the Welsh Parliament. I can only assume that it is because the noble Lord, Lord O’Shaughnessy, kissed the Blarney Stone before he went to Edinburgh again, and was able to persuade them. I am interested to know why and will try to find out from my contacts in Scotland before Report.

I suspect that a lot of the points made about the omissions in this Bill have arisen because this legislation, like much of the legislation we are considering at present, is being rushed because of Brexit, without proper consideration being given. I do not blame the officials, who have so much work to do. I went to a briefing they held right at the start of this process and I know that they work very hard. However, I would rather see them doing more constructive work than some of what they are being required to do on Brexit.

I agree with the noble Lord, Lord Hain—and I find this not only in health but in a lot of other areas—that some officials, particularly at the higher level in Whitehall, still have not come to terms with devolution; they do not quite understand what it means, or that the health service in Scotland is run completely by the Scottish Parliament. It is difficult for those officials who have been involved since before devolution to understand that fully. I hope that we will do more to get the message across as we move forward. I hope that the next Government, of whatever shade—a non-Conservative Government; I will put it that way—take more care of the devolved settlements.

The noble Lord, Lord O’Shaughnessy, said that he has had discussions with the Cabinet Secretary for Health and Sport in Scotland, Jeane Freeman. The Minister has taken over very recently and will not yet have had time to do this, but can she assure us that she will have an opportunity to meet with Jeane Freeman to discuss this issue between now and Report? I hope she will be able to report back to us in more detail on the attitudes of the Scottish Parliament and let us know whether it is satisfied on some of the points that have been raised by the noble Baroness, Lady Humphreys, and my noble and learned friend Lord Wallace of Tankerness.

[Baroness Wheeler (Lab)]

My Lords, I am moving Amendment 42 in the name of my noble friend Lady Thornton and the noble and learned Lord, Lord Wallace. The noble and learned Lord has already spoken to the amendment and covered many of the points that we need to raise. The amendment focuses on ensuring that the commitment to involve, consult and have regard to the views of the devolved Administrations, before regulations on new health agreements are drawn up, is in the Bill and set out as a clear duty on the Secretary of State. The amendment ensures that:

“Before making any regulations under this Act, the Secretary of State must consult the Scottish Government, the Welsh Government and … if there is no Executive on the day on which this Act is passed the relevant Northern Ireland Department”.


The Minister told the House at Second Reading that the Government have been working with the devolved Administrations and fully understand the need for legislation on reciprocal healthcare agreements to fully respect the devolution settlements. The amendment would reassure the Committee on this matter—that reassurance has to be given, as speakers have illustrated. We also support the principle of the safeguard set out in Amendment 30A, moved by the noble Baroness, Lady Humphreys, and Amendment 30B.

As we have heard, given the significant impact on devolved authorities, it is crucial that their interests are appropriately considered in the development of reciprocal health arrangements and that mechanisms are in place to ensure that each Administration contributes to the making of decisions that affect Scotland, Wales and Northern Ireland. I look forward to the Minister’s update in respect of the Scottish Government. The noble and learned Lord, Lord Wallace, provided us with some of the detail of the ongoing discussions, despite the Scottish Government having carried the legislative consent memorandum. I look forward to the Minister’s updated response to the issues the noble and learned Lord raised.

As we heard from the noble Baroness, Lady Humphreys, and my noble friend Lord Hain, the Welsh Government have so far declined to recommend that the Welsh Assembly give its legislative consent to the Bill. The Welsh Minister for Health and Social Services expressed particular concern about Clause 2 because it does not require consultation with or consent from Ministers in devolved Administrations. However, the Minister of State’s offer to amend the Bill to place a statutory duty on the UK Government to consult the devolved Administrations where regulations under Clause 2 would be within their legislative competence is welcome. This would be underpinned by an accompanying memorandum of understanding, stating that all parties will seek to proceed on the basis of consensus. Draft agreements would be discussed with the devolved Administrations before they are shared with third countries and Ministers would be consulted on the content and drafting of regulations made under Clause 2 where they relate to devolved matters. Could the Minister confirm this?

This approach would be a welcome step that would help to create a positive framework in which the future of reciprocal healthcare arrangements can be discussed on a collaborative and constructive basis. Consulting before making regulations would also smooth the process for making regulations, given that any statutory instrument which amends Welsh, Scottish or Northern Irish primary legislation would of course be subject to a statutory instrument consent memorandum in each legislature, which would decide whether to recommend that consent be given in the circumstances.

As noble Lords underlined, the importance of reciprocal health arrangements to the people of Northern Ireland—and of Ireland—has been raised by noble Lords at Second Reading and in our separate amendment dealt with earlier. A statutory commitment to consult and seek the views of either the Northern Ireland Executive or the relevant NI department on regulations enacting new healthcare agreements would provide reassurances about the continued funding arrangements.

Finally, I hope the Minister will be able to respond to the recommendation from the Constitution Committee’s report, which underlined the need for the Government to set out how they intend to manage those overlapping competences relating to the Bill. As the committee points out, while the making of international agreements is a reserved matter for the UK Government, healthcare is a devolved matter and the potential for overlapping competences increases as all powers are repatriated from the EU, as does the scope for disagreement about such issues. This will need to be managed.

Our amendment places the Minister’s commitments to consultation and involvement with the devolved Administrations in the Bill—no more, no less.