Health and Care Bill

Debate between Lord Sharkey and Baroness Brinton

Lords Hansard - Part 2 & Committee stage
Monday 31st January 2022 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, along with the noble Baroness, Lady Thornton, and other noble Lords, I was involved in the passage of the Bill that started off life as the Healthcare (International Arrangements) Bill, and which, by the time it was passed, had been renamed the Healthcare (European Economic Area and Switzerland Arrangements) Bill—a name almost as long as the Bill itself, and after some of the worst Henry VIII powers had been removed, including the power of Ministers to sign international trade agreements that could include preferential access to NHS contracts without the formal scrutiny and decision-making powers in Parliament.

The frustration with the remote arrangements is that I am speaking before my noble friend Lord Sharkey. I know that he will speak about the delegated powers in Clause 136. I wish I could hear his contribution before I speak, but I want to say that it seems the Government have forgotten, in nearly three years, the roasting that they got from your Lordships’ House during the passage of the Healthcare (International Arrangements) Bill. The noble Lord, Lord Wilson of Dinton, said:

“The sweeping nature of the powers proposed in the Bill are in many ways offensive to the proper conduct of legislation. I accept that they are needed in the current situation in relation to the EU and Switzerland, but to go wider than that is wrong, I think. We have to insist on legislation being properly prepared, properly debated, properly scrutinised and properly consulted on.”—[Official Report, 12/3/19; col. 926.]


The then Health Minister, the noble Baroness, Lady Blackwood, when conceding on those Henry VIII powers later that day on Report, said:

“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 … 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).”—[Official Report, 12/3/19; col. 963.]


One of the reasons that your Lordships’ House is so concerned is that it looks as if the provisions in that Bill are being resurrected in Clause 136 of this Bill. I will give two brief examples: “2 Healthcare agreements and payments” on page 110 of the Bill, among other clauses, gives the Secretary of State the powers to make a healthcare agreement with another country and for Parliament to only comment on it by the negative resolution. For those of us who worked on a previous Bill, that sounds horribly familiar. It also gives the Secretary of State the power to give directions to a person about the exercise of any function, which is familiar not only from that Bill but from other parts of this one.

In “2B, regulations under Section 2A: consent requirements” on page 112, it says at (5) that the consent of the Secretary of State is required for a

“healthcare agreement”

which means

“an agreement or other commitment between the UK and either a country or territory outside the UK or an international organisation, concerning health provided anywhere in the world”.

Any type of “agreement” or “commitment” brings us full circle back to the Healthcare (International Arrangements) Bill as first drafted. This would include international treaties, as was planned back in 2019, to include that access to providing major parts of healthcare in the NHS, but without the consent or knowledge of Parliament, because the detail of the agreement would not need be seen before it was signed, including by the NHS, its stakeholders and the staff who work in the sector.

Lest we think that this is just words, the Chancellor of the Exchequer and the Secretary of State for Health and Social Care have both talked extensively in America to healthcare providers in recent months. What is different about this clause is the breadth of definition of a healthcare agreement, the powers that are held only by the Secretary of State, and the total lack or paucity of consultation or scrutiny by Parliament and other stakeholders before the Bill came to your Lordships’ House.

Why has Clause 136 reinstated some of the key elements of the Healthcare (International Arrangements) Bill that were removed because Ministers recognised that the scope was too wide, the Henry VIII powers were egregious, and Parliament, the NHS and other stakeholders were being totally disregarded?

Should my noble friend Lord Sharkey wish to propose on Report that the clause do not stand part, I will support him.

[Lord Sharkey (LD)]

My Lords, as the noble Baroness, Lady Brinton, said, I have given notice of my intention to oppose the Motion that Clause 136 stand part. This clause is yet another example of the Government’s abuse of delegated legislation and the avoidance of any meaningful parliamentary scrutiny. It is also a clear and obvious breach of an important constitutional convention.

Clause 136 amends the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which started off life as the Healthcare (International Arrangements) Bill, as we just heard. It would enable the Government to implement healthcare agreements with countries outside the European Economic Area and Switzerland. The exercise of the powers in this clause is through regulations subject only to the negative procedure. The department points to the 2019 Act as for seeking these powers, despite what we just heard from the noble Baroness, Lady Brinton.

During the passage of the then Bill in 2018-19, the Government justified or tried to justify taking the relevant powers as the need for speed and flexibility in the extraordinary circumstances of the EU withdrawal process. Parliament did not accept the provisions in the original Bill that the powers should be geographically and temporarily unlimited. After interventions by Parliament, the powers ended up being confined to the EEA and Switzerland and being sunsetted.

The department may be correct to state that the Secretary of State currently lacks the necessary powers to implement reciprocal healthcare agreements with countries outside the European Economic Area and Switzerland. However, this does not mean that there is currently no way to implement such agreements. They could and should be implemented by primary legislation. This would be in keeping with a long-standing constitutional convention that, outside the exceptional case of making provision for EU law, international legal agreements that make changes to UK law are given domestic force by an Act of Parliament. This ensures proper parliamentary scrutiny.

Our committees have pointed out breaches of this convention to the Government on several recent occasions. The last occasion was the proceedings of what was originally the Healthcare (International Arrangements) Bill, as I have just mentioned. Before that, the DPRRC commented on the breaches of this convention in the Professional Qualifications Bill in May 2021 and the Private International Law (Implementation of Agreements) Bill in March 2020. The Constitution Committee commented on the same Bill in its May 2020 report and concluded that:

“It is inappropriate for a whole category of international agreements to be made purely by delegated legislation.”


This is exactly what the Government are proposing in Clause 136.

The department does not address why such international healthcare agreements could not be implemented by primary legislation. We could try to remedy this abuse of delegated powers and breach of convention, as we did with the 2019 Act, by limiting their application and by sunsetting provisions. But, without a clearer understanding—or indeed any understanding—of exactly what agreements the department intends to use these powers for, it is not really possible to limit the power as we did then. The powers could also be sunsetted, as per that Act, but it is clear this would be inappropriate, given there is no longer a pressing time constraint on their use, unlike the then imminent departure from the EU. A better solution would be for the Government to abide by the constitutional convention and bring forward the appropriate primary legislation. That is the only way in which to enable any meaningful parliamentary scrutiny of these important reciprocal arrangements.

I look forward to the Minister’s explanation of why it is necessary to bypass Parliament and breach the constitutional convention in the manner proposed. I understand why it may be convenient, but cannot see why it is necessary or proper. We will certainly return to this issue as the Bill progresses.