Draft Mental Health Bill

Lord Judge Excerpts

Tuesday 28th June 2022 Lords Chamber

[Lord Kamall (Con)]

I thank my noble friend for the question and for raising this issue. I am aware that my right honourable friend the Secretary of State intends to meet Jeremy Hunt to discuss this in more detail. In my first week, or first fortnight, as Minister, one of the debates I took part in was led by the noble Baroness, Lady Hollins, about detention. That brought home to me at a very early stage in my ministerial career how shocking some of these events are and the way that young people, particularly those who are autistic or have other conditions, are being treated. My right honourable friend the Secretary of State will meet Jeremy Hunt to discuss this, and I hope that it will also be approached in the pre-legislative stage. If not, I am sure that it will be debated in this Chamber.

[Lord Judge (CB)]

My Lords, I admire the enthusiasm for speed that the Minister expressed earlier from the Dispatch Box. Can he say whether that rules out having detailed pre-legislative scrutiny? This Bill should have no political elements to it at all, except possibly the cost, but all the other issues should be capable of sensible evaluation between intelligent people trying to achieve the same objective, which is improvement in our mental health services. Can the Minister’s enthusiasm for speed please not lead us to the problem identified in this House on the Procurement Bill this afternoon, where, after Report, there are 322 government amendments? That is not the way to legislate.

[Lord Kamall (Con)]

The noble and learned Lord makes an important point. I am very much aware of today’s earlier discussion, when I was smiling, perhaps over-smugly, thinking, “At least we’ve got pre-legislative scrutiny.” However, I accept the noble and learned Lord’s point that it has to be proper pre-legislative scrutiny. I hope he will forgive my lack of experience on this. I am not yet aware of the difference between good and thorough pre-legislative scrutiny and brief pre-legislative scrutiny, so I will have to take this back to the department and will write to him and others.

Medicines and Medical Devices Bill

Lord Judge Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Tuesday 12th January 2021 Lords Chamber

[Lord Sharkey (LD) [V]]

My Lords, the amendments in this group are in my name and the names of the noble Baroness, Lady Andrews, the noble Lord, Lord Forsyth of Drumlean, and the noble and learned Lord, Lord Judge. I am grateful for their support and regret that the noble Lord, Lord Forsyth, cannot be here today. He is currently chairing a meeting of the Economic Affairs Committee.

The purpose of the amendments is to replace the use of the affirmative SI procedure in Parts 1, 2 and 3 of the Bill with the super-affirmative procedure. This is to restore an element of meaningful parliamentary scrutiny to a Bill that so conspicuously lacks it. This is a skeleton Bill. Parts 1, 2 and 3 contain no policy detail and effectively give Ministers carte blanche to decide policy. They give the Minister almost unfettered power to remake our human medicines, our veterinary medicines and our medical devices regimes.

Our DPRR Committee and the Constitution Committee were extremely critical of this approach. On Second Reading, as the noble Baroness, Lady Thornton, has reminded us, the noble Lord, Lord Blencathra, chair of the DPRRC, and speaking for it, said that

“the structure of the Bill is absolutely atrocious and an affront to parliamentary democracy.”

He went on to say:

“Parliament is effectively bypassed; that is a sick joke of good law.”—[Official Report, 2/9/20; cols. 415-16.]


Parliament is bypassed largely because the affirmative SI procedure does not allow for real scrutiny. We cannot amend SIs, and the House has voted down affirmative SIs on just four occasions in the last 70 years.

The Constitution Committee was clear in its 2018 report, The Legislative Process: The Delegation of Powers, when it said:

“Without a genuine risk of defeat, and no amendment possible, Parliament is doing little more than rubber-stamping the Government’s secondary legislation. This is constitutionally unacceptable.”


The affirmative SI procedure does not constitute meaningful parliamentary scrutiny.

By contrast, the super-affirmative SI procedure is designed and used to deliver a measure of real scrutiny. Erskine May, in part 4, paragraph 31.14, characterises the procedure as follows:

“The super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form. (It should be noted that the power to amend the proposed instrument remains with the Minister: the two Houses and their committees can only recommend changes, not make them.)”


In Committee, I set out at some length the details of how our super-affirmative procedure could work. In her response, the Minister helpfully summarised that the

“procedure would require an initial draft of the regulations to be laid before Parliament alongside an explanatory statement and that a committee must be convened to report on those draft regulations within 30 days of publication. Only after a minimum of 30 days following the publication of the initial draft regulations may the Secretary of State lay regulations, accompanied by a further published statement on any changes to the regulations. They must then be debated as normal in both Houses and approved by resolution.”—[Official Report, 19/10/20; col. GC 376.]

According to the Library, the last recorded insertion in a Bill from a super-affirmative procedure was by the Government themselves, in October 2017, in what became the Financial Guidance and Claims Act. In Committee, I noted that when they are not doing it themselves, the Government traditionally object to the use of the super-affirmative on all or any of three grounds. The first is that it is unnecessary, because the affirmative procedure provides sufficient parliamentary scrutiny; the second is that it takes too long; and the third is that it is cumbersome. The Government did not depart from tradition. In Committee, they used all three objections.

The first objection, that the affirmative procedure provides sufficient scrutiny, is plainly and simply wrong, unless of course the Government regard no effective scrutiny as sufficient. The second objection, that it takes too long, is to misread its purpose. It is the case that the super-affirmative procedure takes longer, but that is because it contains provisions for real scrutiny, which necessarily takes time. This is not a negative; it is the merit of a procedure and the point of it. I should point out here that any emergency or urgent need will not trigger the super-affirmative procedure. The Bill now allows for the “made affirmative” procedure to be used in such cases.

The third objection raised by the Minister was that the super-affirmative procedure could be cumbersome and involve a disproportionate use of parliamentary time. She gave the example of the minor change to the Human Medicines Regulations 2012 to illustrate the point. This was a very helpful observation, and we are grateful for it. It would obviously be wrong to take up parliamentary time on minor changes, but, accordingly, we have revised our amendments since Committee to take account of this. The amendments now before us apply the super-affirmative procedure only to regulations that introduce what the Secretary of State considers to be either significant new policies or significant changes to existing policies. All other SIs can be dealt with as currently specified in the Bill.

This is a skeleton Bill. The noble Lord, Lord Hodgson of Astley Abbotts, chair of our Secondary Legislation Scrutiny Committee, had something to say about this type of Bill in a 4 January article in Prospect magazine:

“First and foremost, parliament should continue to be vigilant about the balance of power that is at the heart of our constitution. The right of the legislature (parliament) to resist any encroachment on its powers by the executive (government) is central to our democratic system. … parliament should continue to object to the use of ‘skeleton bills.’”


He proposes that the Government:

“Put the appropriate level of detail into primary legislation and avoid skeleton bills.”


It is obviously too late to do that with this Bill, which allows Ministers to take powers and make policy before they have decided what that policy is. Secondary legislation was never intended as a means of making policy. Using secondary legislation to do that, as the noble Lord, Lord Blencathra, so clearly put it, bypasses Parliament.

Our proposal restores a measure of parliamentary scrutiny where there are proposed significant new policies or significant changes to existing policies. It is activated only by significant policy changes. It amounts to meaningful scrutiny without removing the final decision from Ministers. It does not get in the way of emergencies or urgent need, but it does prevent Parliament being bypassed. This is an important test of the balance between the Executive and the legislature and an opportunity for Parliament to assert its right, and its duty, to scrutinise. Subject to the Minister’s response, I intend to test the opinion of the House. I beg to move.

[Lord Judge (CB) [V]]

My Lords, I apologise to the House; this is the first time I have spoken on this Bill and I have not been able to speak earlier in the proceedings, so I will try to be brief. I also assume that, notwithstanding the recent vote on sunset clauses, the Minister’s response during the debate indicates that the Government will not be very interested in leaving it in the legislation.

This Bill’s importance is obvious. It is hardly regulation light; to the contrary, in the modern way, it has a banquet of regulation-making powers which would, as the debate has shown, enable the Minister to extend policy and create policy by statutory instrument. For that purpose, I need simply refer to the observations of the noble Lord, Lord Patel, in the previous debate.

In the 30 December debate on the Bill on the trade agreement with the EU, I suggested that, now that all that was done finally, we in this House at any rate needed to focus on the sovereignty not of the Prime Minister or the Executive but of Parliament over the Executive, and proper parliamentary control over the legislative process. We are, as has been discussed, no longer bound to implement EU directives—hence, in part, this Bill. We should decide now—and if not now, when?—to brake, or at any rate better to control, the damaging, wide-ranging, regulation-making powers which now regularly come our way.

Time and again, the cross-party committees of the House have complained about, for example, skeleton Bills, Henry VIII powers and inappropriate delegated powers. Time and again, in Bill after Bill, the pleas—convincing, constitutional and persuasive—have been totally ignored. A cascade of regulation-making powers continues its unabated flood in every Bill that comes before the House, and this Bill is such an example.

That is not the end of it. The consequences are vividly described in the report of the Secondary Legislation Scrutiny Committee, dated 17 December 2020, just a few days before Christmas. It contains devastating criticisms of risks to proper scrutiny currently observed by that committee. I commend its reading to the whole House. In the first year of this Session, we had 901 statutory instruments. Of those relevant to this Bill, the number from the Department of Health alone was 126. No one in the report has suggested that the department’s work is exempt from its wide-ranging, broad criticism.

The wider use of the super-affirmative process would ensure better parliamentary scrutiny and control of the Executive, which for too long have simply ignored the constant urgings of the parliamentary committees in this House, in particular, as this Bill shows, the recently expressed concerns of the Constitution Committee and the Delegated Powers Committee. One day they will ask why they bother. They do so only in the hope that, one day, the Executive of the day will take notice.

As these pleas have been ignored and have failed, and, as is perfectly plain, as I indicated at the outset, the Minister’s reservations and distaste for consolidation and sunset clauses were absolutely manifest, this amendment will secure that, for this Bill and for this department, with these wide-ranging and important powers, the super-affirmative level of control should be exercised. The time to exercise it is now. It is time that the power is exercised more frequently.

Coronavirus Act 2020: Temporary Provisions

Lord Judge Excerpts

Monday 28th September 2020 Lords Chamber

[Lord Judge (CB)]

My Lords—[Inaudible]. Going back to last March, I do not think that any of us, unless we have remarkable gifts of foresight, ever really envisaged the crisis which is beginning to unfold and bury us. We are not being honest with ourselves. There is a tension between national health and national wealth; there is a tension between isolationism—to preserve health—and productivity. By “wealth”, I mean jobs, I mean the economy and I mean the funds which will one day be needed to deal with the great needs of the National Health Service as well as all the other services which are provided from public funds. By “health”, I mean not just coronavirus; I mean the unfortunate individuals suffering from life-threatening and painful illnesses who are not receiving the treatment or the attention that they in their condition require. Until we are honest about this difficulty and this conflict—a conflict of interest—we will not address this problem at all.

My concern with the Coronavirus Act is simple. Now that we have had six months of it and are having our first debate, it would be diabolical if our next debate on this issue was postponed until March next year. It simply cannot be right.



I do not take much comfort, although I do mean no discourtesy to the Minister, and share in all the compliments that he has received, in two-monthly reports. What I find most depressing of all is that all these provisions that we have been discussing—the good, bad, indifferent and ugly—are all dealt with through secondary legislation without proper parliamentary scrutiny. That is at the heart of my complaint. I wish the Coronavirus Act to be amended so that more debates are provided in this House and, more importantly, in the Commons. It is the Commons to which we should turn, not the media platforms or the endless conferences being held, where the Minister is asked a question by one television reporter, then another and another. They should be here and they should be there, down at the other end.

I cannot see a clock that tells me how much longer I have to go. Oh, there it is—I have a little longer. May I suggest to noble Lords the sort of things that should be discussed in the Commons? The noble Lord, Lord Robathan, referred to one: the Home Secretary says, “Let’s have snitching.” That may be a good idea, a bad idea or a rotten idea—I am not commenting. But surely that is the place for discussion about whether this is a social advantage. The Prime Minister says in the House that we will have military help for the police. Fine—we all want the military to help in an emergency. But to act as back-up police officers—is this what we want to see on our streets? I make no comment, but there really should be a debate about it.

I have one more example. Can we remember the saying that an Englishman and Englishwoman’s home is their castle? There are two aspects to that: no one should come in unless you want them to come in, but you can invite in whom you like. We forget that part of it. Parents are going to be telling their children that the law prohibits their coming home at the end of this university term. Is not that something that should be debated, and frequently debated? My plea to the Minister is that he should please take away, if the House agrees, the need for amendment so that we have proper debates and, in particular, that these issues of great societal importance are talked about—at any rate, so that government can be influenced by what the Government hear.

Coronavirus

Lord Judge Excerpts

Thursday 12th March 2020 Lords Chamber

[Lord Bethell]

I thank my noble friend for those questions. In terms of funding, the Treasury has provided immediately a £5 billion contingency fund to ensure that not only the NHS but local authorities have the resources necessary for both clinical and social care. The kinds of items that the money can immediately be spent on include boosting staffing, particularly in the NHS, which might include re-employing retired doctors and nurses and recruiting and offering compensation to volunteers who agree to help provide health and social care services full-time for the period of surge.

The precise arrangements for how that volunteering army can be put together will have to wait until we have the legal provisions for that army because there are important questions of indemnity, legal registration and DBS checks, all of which have been raised in this Chamber previously and which we take very seriously. But it would be premature to describe plans that are being worked on at the moment until we have tabled the sorts of legal requirements that we will need.

Funding will also ensure that we have the right drugs, supplies and equipment. Lastly, there will inevitably be a backlog of care after the virus has passed. We are conscious that this backlog will put a long-lasting strain on our medical and social care arrangements, and we are putting in the resources today to ensure that the backlog can be addressed in the future.

[Lord Judge (CB)]

My Lords, for those of us who are trying to plan next week, when will the Minister be in a position to let us know when the proposed emergency legislation, and in particular the Bill, will be able to be examined; in other words, when will we see a draft that we can look at and reflect on?

[Lord Bethell]

The noble and learned Lord asks a very reasonable question. I reassure him that the Leader of the House will make a Statement to that effect and she will outline the schedule for the publication. That will be for the Leader’s Office to decide.

Health Service Safety Investigations Bill [HL]

Lord Judge Excerpts

2nd reading (Hansard): House of Lords
Tuesday 29th October 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, I support the Bill for reasons that have already been given. Nevertheless, I will raise two concerns which I invite the Minister to consider during the long period that we will all have to consider everything.

My concerns arise from a very simple point, which is whether the legislation as drafted offers patients the level of protection to which they are entitled. After all, the new body is being invested with very wide powers indeed, as and when it decides to conduct an investigation. Investigators can enter premises—not people’s homes but hospitals, surgeries and so on—and from those premises conduct an inspection and take away documents. They can take away any document, relating to any patient, as the Bill stands. Having looked at such documents and obtained information from them, an investigator may require any person, including anyone who was a patient at the hospital or medical surgery that is the subject of the investigation, to answer questions or provide information or documents, with liability for non-compliance being a criminal offence.

Various exceptions are allowed to the obligation to answer. They include risk to the safety of any other patient, the privilege against self-incrimination—obviously —legal professional privilege and a rather complex contravention of data protected by legislation. But let us be realistic about this. HSSIB will be examining systems. It will have to examine them carefully: there is no point trying to examine a system in a superficial way. It will no doubt check for evidence in the documents which will certainly be—and, no less importantly, will certainly have been believed by the patients to have been—confidential. The documents may reveal, for example, that 27 patients in a surgery or hospital may have been failed by the system. So HSSIB may decide to question all 27 patients about what are essentially private matters.

As drafted, the Bill allows HSSIB to investigate and exercise all its powers over any such patient, whether the patient wishes to answer questions or not. I do not believe that any patient identified by the study of confidential documents relating to him or her should be obliged or forced to discuss his or her case or be at risk of criminal prosecution for choosing not to do so. Indeed, I do not think that any such patient identified through these processes should be obliged to take part in any investigation without his or her personal consent.

Without such consent, the Bill hands a remarkable set of powers to the investigating team. We must remember that there will be patients who do not wish to co-operate, who do not wish to discuss their condition or the circumstances in which they find themselves, having acquired a particular illness or disease, and who believed when they told their doctor or nurse about their condition that it was and would be private and confidential. Many of them will be deeply shocked by the idea that some stranger knew about it and, more importantly, was in a position to demand answers from him or her. I regard this as a totally unacceptable intrusion into what are essentially private matters, and I urge that consideration should be given to some patient consent provision. I regard such a provision as an imperative.

My second concern touches on the same issue. The Bill provides for the protection of the privacy of those whose medical history is, or has become, known in this way during the course of an investigation. Of course, that protection would extend to every individual, including the ones I am concerned about, who had given their consent. So an offence of disclosure is created. Quite right—but the problem is that this should be not merely a criminal offence, punishable with a fine; a more serious punishment should be available.

There may be a case where the criminal offence involves one disclosure about one patient that falls within the ambit of the offence. Obviously, for such a case, a fine might well be an appropriate penalty. However, there may also be cases where the disclose that is the subject of the now criminal investigation covered a number of patients—say, 15 of the 27 patients to whom I referred in my earlier example—and was perhaps offered in exchange for the payment of money. There could be rather more than a single moment of disclosure. In such a case, where somebody received, offered or accepted money and the disclosure affected more than one person, for the person paying the money or accepting it, I respectfully suggest that, in serious circumstances, this should be an offence triable on indictment with a penalty of, shall we say, two years’ imprisonment on conviction and six months’ imprisonment on summary conviction.

Beyond all this—looking at how this would look to the ordinary citizen whose medical history has been disclosed in the circumstances that we are considering—the availability of such a sentence would seem much more effective as a deterrent if there were the possibility of a prison sentence. I suggest that it would enhance the chances of wider patient co-operation by the very people whose consent is being sought—assuming that my submission to the House about the necessity for consent is accepted. It would thus enable the HSSIB better to fulfil its responsibilities, it would increase confidence in the way it was required to exercise those responsibilities, and what we have called the safe space would be that much safer.

So, in brief, nothing will be done in the next few days, but I respectfully suggest that the Bill is deficient in two respects, both of which should be remedied in the interests of patients.

Healthcare (International Arrangements) Bill

Lord Judge Excerpts

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

We suggest that this aspiration for global healthcare arrangements needs to be left until post Brexit. Nothing in the statements by the Minister justifies the sweeping powers and the blank cheque from the taxpayer which this Bill as drafted contains. I beg to move.

[Lord Judge (CB)]

My Lords, I thank the Minister for her efforts to improve the Bill and her courtesy in accommodating my concerns, meeting me and discussing various amendments. I am particularly grateful to her—I emphasise this—for her amendment, which we will consider later, that delivers us from the tyrannous shackles of King Henry VIII. Perhaps this might be the start of a new understanding that the ghost of that monstrous ogre should no longer walk about the corridors of power in this country. Chance would be a fine thing but I commend a little touch of Blackwood to the House.

However, although the Bill has been significantly improved, it is still not good enough. We are faced with nine major regulatory powers, which are put before us as examples of regulations that the Bill might have in mind, or extend to. It works on the basis that we must—as we must—recognise the need of our citizens living in the EU to have their healthcare properly attended to. That puts great pressure on all of us. If it were not for that pressure, I would not accept that the scope of the Bill should be allowed to extend as far as the EU and Switzerland but I understand why it must be so. We are brought, in effect, to face up to the creation of unacceptable powers, and we have no choice, so far as the EU and Switzerland are concerned.

However, we have a choice in relation to international places other than those in the EU. There are many countries to which these powers could be extended, payments made and so on. Last time I said I was being modest. My real worry is about the creation of legislation for such places as Guadeloupe and the Galapagos; and these powers would extend to Venezuela, where the present Government may not be in power indefinitely. We therefore need to think carefully. Introducing out of the blue nine regulations, which are only examples of the powers that would be given to Ministers, goes too far. It is not the way in which we should legislate.

My objection to the Bill, and the reason why I support the amendment, is simple. We must not legislate in this way. We need time to think, reflect and ponder on what limitations and constraints should be put on the power of Ministers. We are therefore being asked to go too far under the pressure of events surrounding Brexit.

[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.

--- Later in debate ---

[Baroness Thornton]

I thank the noble Lord, Lord Marks, for his exposition, which saves me from exploring yet again the powers in the Bill. I shall speak to Amendment 5, which is a simple amendment but one that we think might be quite clever in its intent. It states that regulations under the Bill can be made only for specific purposes.

When the clause was debated in Committee, noble Lords discussed the nine regulation-making powers mentioned by the noble and learned Lord, Lord Judge, which brought comment from the DPPRC, about the widest possible scope. However, as drafted, Clause 2(2) appears to bestow infinite powers on the Secretary of State to make regulations by virtue of the seemingly innocuous phrase “for example”, which effectively grants the Secretary of State carte blanche to bring regulation forward outside the listed examples in relation to pretty much anything and everything. Just deleting those words will assist with the accountability that needs to be built into the Bill.

Amendment 5, which has the support of the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Jolly, would ensure that regulations can be brought forward under the Act only for the purposes specified. We will, of course, support the Minister in the amendments she has tabled in this group—Amendments 6, 7 and 8 —and I think the combination of our amendment and hers significantly improves the Bill, so I hope she will accept it. I probably need to say that, unless there is a very good reason why she does not want it and why it should not be there, we will seek support from the House for this amendment.

[Lord Judge]

My Lords, we have here a new example of constitution-making. We have now got rid of Henry VIII in this Bill and we have something rather more subtle—not something that that great, mighty ogre could have conceived of for himself.

The new example is:

“Regulations under subsection (1) may, for example”.


Those of your Lordships who were in the House when we discussed the Trade Bill last week will remember another regulation-making power—another blockbuster like this one—only the words used were not “for example” but “among other things”, in relation to regulations under whichever subsection it was. What kind of primary legislation is this? It is really rather alarming. The primary legislation provides:

“The Secretary of State may by regulations”,


do this, that and the other: (a), (b) and (c). Well, fine. The regulations “may” do nine things—there is an amendment to one of them to come later, but this is not relevant to present purposes—specifying just about anything you can think of.

Why do we not say, even in relation to the EU, that the regulation-making power should be defined as widely as it is in Clause 2(2) but not extend further? The reality is that, with these words, in truth there is no limit to the regulation-making power. I find that astonishing, and I suspect that many Members of your Lordships’ House will find that astonishing. So we now have within the terms of the Bill—subject to the Henry VIII point, which is going—in effect an undefined, unconstrained power given to the Secretary of State to make regulations. It will not do.

[Lord Tyler (LD)]

My Lords, I am delighted to follow the noble and learned Lord, Lord Judge; he has been totally consistent in this field, and I very much sympathise with the point he has just made.

I serve on the Delegated Powers and Regulatory Reform Committee and, although I cannot speak on its behalf, I think it would share with me the view that the way in which the Minister has responded to our concerns and corresponded with us has been exemplary. We thank her, I am sure, for that; it is very valuable. However—she probably anticipated a “however”—in our report of 14 February there were two critical paragraphs to which she has not responded in the various exchanges we have had with her. I hope your Lordships’ House will not mind if I read them, because they are extremely important, not just for this Bill but for a whole series of Bills that have been coming before us in recent weeks. The paragraphs refer to some of the correspondence we had with the Minister, and go as follows:

“The Minister repeatedly refers to the need for ‘flexibility’, given that reciprocal healthcare arrangements remain subject to negotiation. She says that there must be flexibility as to the meaning of healthcare, as to the persons who can be funded and as to the persons to whom functions can be delegated. The Minister says, at paragraph 19: ‘This is a forward-looking Bill and so flexibility is key’”.


We then put in our report, in heavy type:

“Powers that are too wide are not the more attractive for being part of a ‘forward-facing’ and ‘forward-looking’ Bill”.


We continued:

“At paragraph 29, the Minister says again that the Bill is a ‘forward-facing Bill’, this time to justify taking powers to go beyond replacing current EU arrangements”.


Again, in heavy type the report continued:

“Given that post-Brexit reciprocal healthcare arrangements are the Bill’s principal target, the powers in clause 2 to make law governing the provision of healthcare by anyone anywhere in the world could have been more effectively circumscribed”.


Those two paragraphs are not just appropriate to this Bill but demonstrate how, on many occasions in recent weeks, we have been effectively offered a skeletal Bill, with very considerable primary legislation made subject to largely unspecified future executive powers. Very often, it would seem, there is good reason, because of urgency or expediency. We are, however, establishing precedents for the post-Brexit situation. At the moment this can be used as an excuse—perhaps only for a few more days before the other place decides that the timescale is ludicrous—but it is not acceptable that we are constantly given legislation for a particular purpose and told that Ministers must have very wide-ranging, unspecified future powers simply for reasons of urgency. As the noble and learned Lord, Lord Judge, and the noble Lord, Lord Marks, have said, if we are not very careful we will establish precedents in this way.

I hope that when the Minister responds—having not previously done so in her exchanges with the Delegated Powers and Regulatory Reform Committee—she will comment on the particular points that were made in the report’s recommendations.

--- Later in debate ---

Tabled by

[Lord Judge]

10: Clause 2, page 2, line 8, at end insert—
“( ) No regulations may be made under subsection 1(a) or (b) in relation to countries outside the European Economic Area or Switzerland after the end of a period of two years beginning with exit day.”

[Lord Judge]

Given the result of the Division earlier this afternoon, I do not intend to move this amendment. If we have to reconsider the issue, however, I may have to come back to it.

Amendment 10 not moved.

--- Later in debate ---

[Baroness Blackwood of North Oxford]

My Lords, I now turn directly to the Henry VIII powers of the Bill. As noble Lords know well, the inclusion of the consequential Henry VIII power in the Bill has been the subject of animated debate both inside and outside this Chamber. The Government have been listening closely to these concerns in the Chamber but also in the reports from the DPRRC and the Constitution Committee. In response, we have tabled Amendments 18, 19, 20, 24 and 25, which is a significant step and addresses these concerns directly.

This group of amendments removes Clause 5(3) and amends Clause 5(4). As a result, it will now not be possible to make consequential amendments to primary legislation using regulations made under the Bill.

I want to be clear that the consequential Henry VIII powers were initially included as a future-proofing mechanism. They were never free-standing and we had envisaged using them in only a limited set of circumstances. As negotiations have not yet concluded and the terms of any agreements are not yet settled, there may be situations where it would be appropriate to amend primary legislation. This is why the power was included. We cannot rule out that we may want to amend primary legislation to give effect to a reciprocal healthcare agreement in future, and the lack of such a future-proofing mechanism limits our ability to ensure that the statute book in future is as coherent as it can be.

However, we want to alleviate any fears that we are taking powers which are not absolutely necessary in this Bill. As such we are prepared to take the significant step of removing the entire Henry VIII consequential powers in Clauses 5(3) and (4).

In addition, the Government have listened carefully to the concerns about the list of persons who can lawfully process data as a part of implementing new reciprocal healthcare arrangements under the Bill. To facilitate greater parliamentary scrutiny on this issue, the Government have tabled Amendment 20, which subjects any regulations that add to the list of persons authorised to process data for the purposes of the Bill to the draft affirmative procedure, which we have already debated. This would allow Parliament the opportunity to scrutinise authorised persons handling sensitive patient data, while equally ensuring that the Government can guarantee that future agreements are administered in the most efficient and effective way possible.

I hope that your Lordships will view these amendments, together with the other government amendments, as a genuine and significant effort to reduce the scope of powers in this Bill and respond to the concerns raised by this House concerning the use of Henry VIII powers. On that basis, I commend the amendments to the House.

[Lord Judge]

My Lords, I have already spoken warmly about the efforts by the noble Baroness, Lady Blackwood, and referred to us having a little touch of Blackwood in this House. Let it continue. I should like what has happened today to be habit-forming.

[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.

Healthcare (International Arrangements) Bill

Lord Judge Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 19th February 2019 Lords Chamber

At this stage, suffice it to say that while opposing the question that Clause 1 stands part of the Bill might be regarded as a wrecking amendment, it is not. It would be wrecking only if a vote was called and I won it. I do not intend to call a vote, but I put it on the Marshalled List so we could have a wider debate.

[Lord Judge (CB)]

My Lords, this should be Brexit legislation. If it were, in accordance with the withdrawal agreement, subject to minor changes, the established arrangements for healthcare between the United Kingdom and the European Union would continue during the transitional period until December 2020, 21 months after exit day, which is where the suggestion for a two-year sunset provision obtained.

Without the withdrawal agreement, those arrangements would collapse next month, so appropriate provision is undoubtedly needed. I have no difficulty with legislation that makes provision against the potential consequences of such a collapse, which would be awful. The objective—to cure that problem—is laudable. Nevertheless, I have put my name to something that, as my noble friend Lord Patel said a few moments ago, if carried through would be wrecking. In fairness to the Committee, I must explain this apparent inconsistency.

I sometimes overhear my grandchildren when they do not think I can hear them, saying that Grandpa is banging on about things. Noble Lords have listened to me with great patience banging on about these issues: constitutionally flawed legislation, skeleton Bills, rule by regulation and Henry VIII clauses. I have grumbled and griped, and will go on grumbling and griping about legislation of this kind, because it simply reinforces the steady erosion—indeed, the systematic corrosion—of the arrangements for parliamentary control and scrutiny of the exercise of executive power. Every time Parliament enacts legislation in this way, including today, we are complicit in the accretion of power to the Executive. Without parliamentary consent, it could not happen, so we have become habituated to these processes and should no longer continue to be.

My concern is not with Brexit or no Brexit, or with deal or no deal. I recognise that at the moment it is hard to conceive of the possibility that there is anything more important to the future of the country than Brexit, but there is. Hard as it is for us to face the fact now, with time all the turbulence surrounding Brexit will inevitably settle down and abate. When it does, the need for proper constitutional arrangements which provide reasonable constraints on executive power will be an abiding issue and, unless we protest now, as I am protesting, it will come to be assumed that legislation framed in the way this Bill is framed will be entirely acceptable constitutionally, when constitutionally it is dangerously flawed.

The way in which this legislation extends way beyond our departure from the EU has been discussed and analysed by the noble Baroness, Lady Thornton, and I agree with her. But may I be forgiven for underlining the longer-term issues? As has already been recorded—it bears repetition—the Delegated Powers and Regulatory Reform Committee observed that the provisions in Clause 2 had “a breath-taking scope”. Can we just contemplate those words? That is a startling description but, having read the Bill, I do not see how that description is anything other than honest, balanced and realistic.

As my noble friend Lord Patel has pointed out, the amount of payments which may be made to achieve the statutory objectives in the regulations is unlimited. The power to describe those in respect of whom payments may be made is wholly unconstrained. As the committee observes, it could provide funding for healthcare for anyone, anywhere in the world; for holidaymakers in the Galapagos or Guadeloupe, countries far away from the EU, and not places to which men and women on universal credit can afford to go.

The power is unconstrained in relation to the type of healthcare which may be funded. On one reading of it—certainly I read it this way—it would allow the Minister to make payments abroad for treatment which would not be available under the National Health Service here in England. As my noble friend Lord Patel recently underlined—the amendment to which he referred dealt with this—the functions to achieve wide objectives can be delegated and exercised by anyone, anywhere in the world, and the powers and the discretions can be conferred by the Minister on whomsoever the Minister chooses. Clause 2 alone has nine regulation-making powers of, to adopt the committee’s observation again, “the widest possible scope”. But even that, apparently, is not enough. This list is incomplete. The Bill expressly provides that even those nine regulation-making powers are merely, to use the word in the text of the Bill, “examples”. Sadly, and almost unbelievably, without further primary legislation, ample scope exists in the regulations for regulations to create yet further regulations, presumably to cover something that might arise in the imagination of the then Secretary of State some years—however many it may be—down the line.

This is all before we get anywhere near Clause 5, which is a power, among other things, to dispense with primary legislation, overlooking the fact that King James II was chucked out of the country because he sought a dispensing and suspending power. That was the whole basis of the Bill of Rights. The clause resurrects that ogre, Henry VIII, in subsection (4), without recognising the distinction expressly made in the European Union (Withdrawal) Act 2018 between principal and minor retained direct EU legislation. It overlooks or ignores the careful scrutiny procedures for which provision was made in the withdrawal Act itself.

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.

This is serious. I will provide the context to the use by the Delegated Legislation Committee of the word “breath-taking”; it did not conjure this out of the blue. I could go right through that context, but it would take me too long and noble Lords would not be interested. Just before this Bill, the committee had examined the Agriculture Bill. That Bill was mainly about regulation-making powers, vesting powers in the Executive. The committee expressed its “dismay” at those proposals. It underlined how parliamentary scrutiny was “minimised” and deplored Bills relating to our exit from the EU which were being put together in this fashion. Well, our Bill, suffering from all the flaws to which the committee had just referred, was introduced into the House of Commons nine days later. Unsurprisingly, the earlier “dismay” of the committee became its breath being taken away. What description comes next? Disgraceful? Shocking? What words are appropriate for a committee of this House to use about a government proposal which completely fails to attend to its own earlier reports?

In passing, I immediately recognise—and the dates will show—that none of these things happened on the Minister’s watch. At the Principality next week, in a somewhat different context, someone is going to be given a hospital pass. She has received a hospital pass here and I hope she realises that I am sorry that she personally has had to endure these criticisms of the Bill.

I am a member of the Constitution Committee, but I am speaking for myself. I merely underline that it is not just the Delegated Powers Committee that is critical of this way of legislating. The Constitution Committee is equally disturbed, as the noble Baroness, Lady Thornton, summarised a few minutes ago; I shall not go through it all. Noble Lords have to ask themselves what on earth the Executive think these committees actually do. What do they think that their point is? I assure the House that we do not sit around talking about cricket or rugby or anything else: we address these issues. I can speak only for mine, but I am absolutely sure that this is also true of the Delegated Powers Committee. Both committees speak on a cross-party basis. I am about to break a most important confidence; I am going to say something about our discussions. In my four years on the Constitution Committee, I have not detected a single moment where any of the discussions saw a division arise even wide enough for a piece of paper to go through on party-political lines. These committees work to achieve the best that they can for the legislative process. The message from these committees about the dangers of statutory provisions that divert power by the misuse of regulation-making powers is a constant concern for both committees, as it is for the secondary legislation committee.