Healthcare (European Economic Area and Switzerland Arrangements) Bill

Debate between Lord Hope of Craighead and Baroness Thornton

3rd reading (Hansard): House of Lords
Tuesday 19th March 2019 Lords Chamber

[Lord Hope of Craighead (CB)]

I thank the Minister for Amendment 3. That was an important matter to clear up, and the way in which it has been done is entirely in accordance with the wishes of those who were concerned about the previous wording. We are most grateful.

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for introducing these amendments and explaining their intent. With the exception of Amendment 3, they seek to make the Bill consistent and coherent, its intended scope now being the EEA and Switzerland. I checked on the meaning of Amendment 3; it looks to me like it does the trick, so I thank the Minister for that.

At this stage, given the uncertainties we face over Brexit and what might happen in the next 10 days, surely the Government take the view that right now we have to focus on the challenge before us: the healthcare needs of UK citizens. We need to think about their healthcare arrangements and leave other parts of the world to be considered in due course. That requires a decision by the Secretary of State, and everybody would understand if he felt that the Government had enough on their plates right now.

Indeed, the Secretary of State might have been reading my mind, because at 12:54 today—lo and behold—we received an update in the form of a Written Statement about the continuity of reciprocal healthcare arrangements in the event that we exit the European Union without a deal. I commend this Statement to all noble Lords and hope that they will read. I have one or two questions for the Minister arising out of it. The Statement says,

“We have proposed to EU member states and EFTA states that we should maintain the existing healthcare arrangements in a no-deal scenario until 31 December 2020 with the aim of minimising disruption to UK nationals and EU and EFTA states citizens’ healthcare provision”.


This relates to the passage of the Bill, because the discussions all took place in Committee and on Report.

The Statement went on to say that current arrangements could only continue if there was a deal and an implementation period. Previously, it was said that 27 bilateral agreements would have to be negotiated, so we welcome what the Secretary of State is saying, but I would like the Minister to clarify whether my understanding is correct.

Furthermore, in Committee, Members—including some on these Benches—suggested that UK nationals and others for whom the UK is responsible and who have applied for or are undergoing treatment in the EU prior to and on exit day should be recompensed for up to one year. The then Minister said that this would not be possible because it would place a huge financial and administrative burden on the NHS. She said:

“It would make it less likely that individuals would take the steps they need to, even if they were able to. It would undermine our approach to member states in negotiating reciprocal agreements”.—[Official Report, 19/2/19; col. 2255.]


However, it has to be said—and I welcome it greatly—that this Statement goes some way to meeting that, and suggests that the Government will be prepared to recompense and pay for the treatment of UK residents. I welcome that but seek some clarification from the Minister. The point is that the Secretary of State’s Statement really only reinforces the need for the amendments that this House has put forward and voted on at every stage of this Bill, and that the Government themselves brought forward and voted on at Report. The lengthy Statement addresses the healthcare issues that we face and merely underlines the importance and urgency of sorting this matter out whichever way things go.

Healthcare (International Arrangements) Bill

Debate between Lord Hope of Craighead and Baroness Thornton

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

[Lord Hope of Craighead]

Perhaps I may add a few words to those of the noble and learned Lord, Lord Judge. I was particularly concerned by Clause 5(3), as the noble Baroness may remember, and am delighted to see it removed because, as worded, it gave rise to a lot of problems. Together with the other amendments proposed, there is considerable improvement and I am most grateful.

[Baroness Thornton]

I tabled an amendment in this group. First, I join the noble and learned Lords and all noble Lords in saying thank you very much to the Government and the noble Baroness for removing these Henry VIII powers, which cause so much heartache in this House—we really do not like them at all. I tabled Amendment 21 because I should like an explanation. Given that our Constitution Committee and the Delegated Powers Committee have several times said that they find the negative procedure rampant in the Bill, and that the British Medical Association has also voiced its concern about legislation being subject to the negative resolution procedure, in the interests of accountability, I need to ask the Minister to explain to the House the justification for negative procedure throughout the Bill. Should it not be subject to the same level of scrutiny as in the European Union (Withdrawal) Act, for example?

Mental Capacity (Amendment) Bill [HL]

Debate between Lord Hope of Craighead and Baroness Thornton

Tuesday 26th February 2019 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, this is a very difficult area. I agree with all the noble Baronesses who have spoken, in so far as they stress the problems of trying to identify what one means by “liberty” in this area, particularly regarding mental health. A number of cases have come before the courts, both in this House when it was sitting in its appellate capacity, and in the UK Supreme Court, where I sat and grappled with this problem myself. I support the government amendment which seems much more consistent with the way the Strasbourg court has interpreted Article 5.

There is a great deal of case law that has been developed over the years as to the meaning of “liberty” in its various contexts. The point that comes out very clearly from a case called HL v the United Kingdom—it went to Strasbourg following a decision in this House in a case called R v Bournewood Community and Mental Health NHS Trust—is that account has to be taken of a whole range of factors when you look at the word “liberty” for the purposes of the article. The court says that in the end it will always come down to a question of degree and intensity, regarding whether what has been going on really is a deprivation of liberty or merely a restriction. It is trying to devise a dividing line between these factors that one is searching for in looking for a definition.

The court said it decided not to try to define the world “liberty”, because it was so difficult to find a workable definition that would apply to all circumstances. What you tend to find is the approach that the government amendment takes, of saying what does not fall within the article in a given case, and what does. It is a safer way of proceeding, rather than trying to, as the amendment in the name of the noble Baroness does, lay down in clear terms what the “deprivation of liberty” amounts to. The problem is that if one looks at the way in which that amendment is framed, in future cases the courts are going to find it very difficult to see whether Article 5 is consistent with what is in the amendment. Then there is the problem of the court having to declare an incompatibility, which then has to be sorted out by some further amendment.

The safer and most useful route is to anchor the amendment to Article 5, as subsection (1) of the government amendment does; and then, for the guidance of those who have to deal with these difficult issues, set out some clearly defined areas where they are not at risk of it being said that they are in conflict with the article. I do not find the provisions set out in the subsections that follow difficult to understand.

[Baroness Thornton (Lab)]

I thank the noble and learned Lord for allowing me to ask a question about the comments of the Joint Committee on Human Rights and its grave reservations about the formulation which the Government are putting forward.

[Lord Hope of Craighead]

I am not surprised; we are all grappling with a difficult area. Based on my own experience, and my reading of the Strasbourg decisions, the Government’s approach is the safer one to adopt. Before the noble Baroness stopped me, I was trying to say that there are situations where the use of a double negative is a perfectly intelligible way of proceeding, so that criticism does not seem particularly strong. I suggest that we follow the Government’s approach for the reasons I have given, especially because of the way it anchors the proposed section to Article 5 itself. We are always going to come back to the Strasbourg court and the way it interprets the article. We do not have the final word on this, I am afraid, because of the way the convention is framed, the way we have subscribed to it and the way we apply the decisions of the Strasbourg court.

Healthcare (International Arrangements) Bill

Debate between Lord Hope of Craighead and Baroness Thornton

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

[Lord Hope of Craighead]

The noble Lord, Lord Lansley, raises an interesting point. It is something that should be clarified by better drafting. Splitting things into subheads, as is done frequently throughout the Bill, tends in some ways to open up the arguments to which the noble Lord, Lord Patel, has drawn attention. As I think I have mentioned to the Minister outside the Chamber, the way these provisions are drafted in this cumulative form is rather unfortunate because if they are read together in a single sentence they can be narrowed down, whereas if they are separated out it suggests that paragraph (a) has a life of its own, so one may wonder what “any other person” can possibly refer to. I hope that the Minister will take these points away and ask the draftsmen to look more carefully at how the Bill is drafted, particularly when using that style of drafting.

[Baroness Thornton (Lab)]

My Lords, this has been a very powerful and useful debate to have as a precursor to the one we are about to have, where we will again address the nature of the powers in the Bill. I enjoy it very much when noble Lords such as the noble and learned Lord, Lord Hope, use the words “rather unfortunate”. Of course, in House of Lords-speak, which the Minister will become accustomed to, it is a very serious thing to say of a piece of legislation that its drafting is rather unfortunate. I want to say how much I appreciated the interventions from the noble Lord, Lord Butler, and the noble and learned Lord, Lord Mackay of Clashfern, to whom I always listen most carefully.

My noble friend Lord Foulkes referred to discussions that may take place outside this Chamber on whether statutory instruments should be referred back, but actually we know from the past that, when your Lordships become exercised about a statutory instrument, we see threats in the press about our existence and, “How dare they!”. That is a serious problem, so I think there is an issue that we need to address that is broader than just this Bill.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Hope of Craighead and Baroness Thornton

Tuesday 12th November 2013 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I had not intended to say anything about this amendment, but two points occurred to me in listening to the noble Baroness, Lady Berridge, which I mention in case they might be of any assistance to the Minister in looking into the matter. First, I should have thought that it would be plain that if the individual is not capable of entering into a marriage at all, because he or she was underage or simply did not have the mental capacity to agree, one could not treat that as a valid marriage for the time being until it was annulled. There may be something to be said for some categories which are not in that very stark situation; where there was initially the capacity to marry, but there has been enforcement or something like that which has persuaded the individual to enter into it. It is rather as in the law of contract: there are some contracts which are void ab initio and some which are voidable. There may be room for that distinction: no doubt the Minister will wish to research that further.

Secondly, when I was at the Bar in my junior days I used to do cases in Scotland which were described as “nullity of marriage cases”. The ground of nullity in those cases was lack of capacity to consummate the marriage. An individual who found that the husband or wife could not consummate the marriage was entitled to come to court and if that fact could be proved—it was very often not disputed, which was just as well—the marriage would be set aside. I do not know how the law is in England, but there must be a similar process where the marriage cannot be consummated. It may be that those cases are precisely in the category that Amendment 11 is talking about, where somebody has a choice. An individual who finds that the marriage cannot be consummated may feel that the marriage should go ahead for other reasons—simply because they enjoy living with each other. Nobody forces them to apply to the court to have the marriage set aside. It may be that there is an analogy there which can be drawn upon, to follow up the point that the noble Baroness is making.

[Baroness Thornton]

The noble Baronesses, Lady Berridge and Lady Cox, have raised very valid but different points. The issues to do with property and assets and differential treatment are very valid indeed, particularly with regard to Amendment 11. I look forward to hearing what the Minister has to say because these issues need to be addressed.