Healthcare (International Arrangements) Bill

Debate between Lord Judge and Lord Tyler

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

[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.

European Union (Withdrawal) Bill

Debate between Lord Judge and Lord Tyler

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Tyler (LD)]

My Lords, as a co-signatory to the amendment, I want to make a short contribution in support of the reference by the noble Lord, Lord Lisvane, to the work of the Delegated Powers and Regulatory Reform Committee and to pay tribute to our legal advisers, who are not only expert and experienced but amazingly diligent. The noble Lord referred to the committee’s work on the Bill, but he did not make direct reference to paragraph 93 of our third report to the House, the last sentence of which reads:

“The Statute of Proclamations 1539, which gave proclamations the force of statute law and later gave rise to the term ‘Henry VIII power’, was repealed in 1547 (after the King’s death earlier that year)”.


I have not been able to do the necessary follow-up research but, as I understand it, our 16th-century predecessors put around the statute of limitations some additional restrictions that are not in this Bill. As a former Member of the other House, I think that it would be extraordinary if the two Houses of Parliament allowed this to go through. It may seem a minor matter, but in terms of precedent it is extremely important. If we let it through, it seems that we will not have done our job as well as our 16th-century predecessors.

The work that is done by the Delegated Powers Committee is well respected in your Lordships’ House and I am delighted that that is the case. In saying that, I want to make sure that Members of the House know that we have the advice of some extremely assiduous lawyers. I think that the advice that we give the House usually benefits from that. I am not always a huge fan of lawyers, but in this respect I think that we are very well served.

[Lord Judge (CB)]

My Lords, we come to the next stage of the slow journey of this Bill through the House. I shall look at Clause 9 again and address the issue of what the Act of proclamations provided, but just as a footnote I remind the House that the statute provided in categoric terms that a proclamation could not overrule a statute. One tends to overlook that. Everyone is absolutely riveted, are they not? Schedule 5—what an exciting topic to come to first thing in the morning. The problem, though, is that tucked away in this schedule, as frequently happens, is an issue of principle. That issue is, simply, and I support what the noble Lord, Lord Lisvane, says, that we are giving an unnecessary, or inappropriate—I do not mind which word we use for these purposes—surrender of power to the Executive. We really must break that habit.

European Union (Withdrawal) Bill

Debate between Lord Judge and Lord Tyler

Committee: 10th sitting (Hansard - continued): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, I was not able, for unavoidable reasons, to be here when the issue of tertiary legislation was addressed in the course of the debate on this Bill, so I want to add something. I do not think that even those who do not see eye to eye with me would accuse me of being an ardent advocate of secondary legislation: I am not. I spoke about this at Second Reading and have been extremely reticent on the issue in Committee, but I shall return to it in much greater detail on Report.

I support my noble friend Lord Lisvane. The provision we are considering—I will take it quite slowly, because this is how I see it—would vest powers in a Minister to use secondary legislation, with negligible proper scrutiny, if any, to bestow lawmaking powers on a public authority, with even less scrutiny. It amounts, in effect, to scrutiny being diminished to extinction. In that process, we as lawmakers are not doing right. We are simply handing power over to people who should not have it. This tertiary form of legislation is, therefore, even more questionable than secondary legislation, for the same reasons and—I add, at this time of night—with knobs on.

[Lord Tyler (LD)]

My Lords, I endorse the contributions of the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge, and draw attention to the work of the Delegated Powers and Regulatory Reform Committee, on which the noble Lord, Lord Lisvane, and I sit. One of the things the committee found most uncomfortable was the extent to which Ministers have played games with words in their explanatory memoranda. We were particularly critical of the reference in Schedule 4 to tax-like charges. The committee stated:

“A ‘tax-like charge’ means a tax. Taxes and tax-like charges should not be allowed in subordinate legislation. They are matters for Parliament, a principle central to the Bill of Rights 1688”.


It is not so late and therefore I shall indulge in some further remarks. My only really respectable connection with your Lordships’ House is that of my ancestor, the great Bishop Jonathan Trelawny, the Cornish folk hero who was one of the seven bishops to defy James II’s attempts to impose rules upon this country without Parliament’s acceptance. His portrait is in the Peers’ Guest Room—he is the one at the end with the Beatles haircut.

I make that point because I am amazed and ashamed that Members of the House of Commons have not seen the dangers in this part of the Bill. I speak as a former Member of the House of Commons. This issue goes back to not just the Bill of Rights and the Glorious Revolution of 1688, but far earlier. Reference was made to the Bill of Rights in previous exchanges in Committee. The short-circuiting of the most basic responsibility and role of the House of Commons of approving taxes seems to me an extremely important issue. We should not allow this precedent to be pursued in this Bill. It is the historic role of the House of Commons. I recall that when we had exchanges about tax credits, the former Chancellor of the Exchequer, Mr George Osborne, sought to short-circuit and get round the normal process by which the House of Commons decides financial matters. I remember at the time that the noble Lord, Lord Forsyth, referred, I think, to ship money and Charles I, saying that the last time a member of the Executive sought to short-circuit Parliament, he lost his head.