European Union (Withdrawal) Bill

Lord Warner Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

That is why I talked about patriotism. Sometimes people talk as if we are not the patriotic ones; we are. We are the ones who say, “Britain is better off without all this nonsense”. The Government will say that this is all a matter of negotiation. We know that it is not; it is actually a matter of existence. If we do not negotiate it properly then another industry will not be here. We have also already given up the thing that ought to matter most, which is Britain’s opportunity to make the world a better place to live in.

[Lord Warner (CB)]

My Lords, I support this amendment and echo very much the points made by the noble Lord, Lord Deben. I say that as a former Minister who was responsible for regulating pharmaceuticals and medical devices. In those days, we were a rule-maker; now, we become a rule-taker—and in an area where we have already lost the European Medicines Agency, which is disappearing out of the country. So our position on the regulation of medicines has been worsened, as has the investment in this country as a result.

We are now going down the same path with medical devices, which are one of the unglamorous bits of our healthcare system but they are very important. We are rather good at inventing medical devices in this country. We produce quite a lot of inventions and have been the rule-maker through the BSI. Most of Europe has been happy to take that rule-making from the BSI, which has moved abroad, because it has a reputation as an effective regulator in this area. We are ending up with medicines and medical devices coming ever closer together but we have lost the regulatory system for them both. That is no mean achievement for the Government.

If we do not secure some kind of reciprocal agreement, as this amendment suggests, we will be in an even worse state than the noble Lord, Lord Deben, thinks we might. I am with him all the way. This is another industry which we are neglecting. In many cases, the companies making these devices are quite small and we are putting them into a very difficult position. They cannot hang around when they make their business decisions in the hope that David Davis will come up with a deal that resolves some of the uncertainties in their business. They will have to take decisions quite quickly if they want to survive.

The Government’s approach to negotiation is to be untransparent and incoherent, while trying to reassure everybody that it will all be all right on the night. But that is not a position that businessmen and businesswomen can accept in running their businesses and keeping them solvent. This is another example of a sector where we are going to diminish our capacity to innovate and to open up new markets within Europe for our inventions. Much more to the point, we will lose the kind of control over regulation that we had in the past.

[Baroness Ludford (LD)]

Can I just remind the noble Lord of the debate we had last week on the clinical trials regulation and the uncertainty there? We have had contradictory statements from two Ministers about whether the clinical trials regulation will be retained EU law, in domestic law, on exit day. As I think the noble Lord is aware, I have written to the noble and learned Lord, Lord Keen of Elie, to try and clarify exactly what the Government’s position is.

[Lord Warner]

I did not want to remind the Government Front Bench of the slaughter of the innocents over clinical trials last week, but I have no doubt the Minister will read that debate in Hansard and form his own judgment. I am pleased the noble Baroness has written to the noble and learned Lord, Lord Keen, about this. It opens up the possibility of securing more protection in the Bill for some British industries, and we should not be afraid to take that opportunity in this House.

[Lord Wallace of Saltaire]

My Lords, I would say to the noble Lord, Lord Deben, that we are really shooting ourselves in the knee. It is a matter of active interest to a significant minority of Members in the House, because replacement knees and hips are among the medical devices which are most common among us.

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Moved by

[Lord Warner]

227BD: After Clause 9, insert the following new Clause—
“Public health
In carrying out their duties and functions arising by virtue of this Act, a Minister of the Crown or a public authority must have regard to the principle that a high level of human health protection must be ensured in the definition and implementation of all policies and activities.”

[Lord Warner]

My Lords, I shall bring the Committee back to terra firma with this amendment, which is tabled in my name and that of the noble Baroness, Lady Jolly, and the noble Lords, Lord Hunt of Kings Heath and Lord Patel. This amendment inserts a new clause on public health and requires that:

“In carrying out their duties and functions arising by virtue of this Act, a Minister of the Crown or a public authority must have regard to the principle that a high level of human health protection must be ensured in the definition and implementation of all policies and activities”.


The language of the amendment draws on Article 168 of the Lisbon treaty and has the advantage of existing legal precedent and interpretive guidance on which to draw when determining its meaning. It does not preserve our law in EU aspic because it would be for UK courts to decide the specifics in future individual cases. In doing so, they would be able to draw on pre-Brexit legal precedents. Putting the amendment in the Bill would give a clear signal to EU members that the UK remains committed to maintaining our public health agenda to the high standards we have established together.

Disease is no respecter of international borders, and public health is best protected when the international community operates to established and well-understood high standards. The amendment goes much further than the power placed on the Secretary of State for Health under the 2006 National Health Service Act, as amended by the 2012 Health and Social Care Act. It places the duty to “do no harm” on the whole of government, including devolved Governments and a wide range of public authorities. In other words, it reminds a wide range of interests that they must continue to protect and do no harm to public health. This seems particularly apposite in the year that our hard-pressed NHS reaches its 70th birthday and its hard-pressed staff face a future of continuing rising demand without the funding to meet it.

The Secretary of State and the noble Lord, Lord O’Shaughnessy, have given various assurances about the Government’s commitment to the UK playing a leading role in promoting and ensuring public health in the EU and around the world. Jeremy Hunt has outlined his commitment to,

“maintain participation in European cooperation on … disease prevention”,

and,

“public health”.

I do not doubt the good faith of those assurances—or of any more that the Minister gives us today—but they rather miss the point. The citizen does not need ministerial assurances but an effective legislative provision to challenge in court the Government, devolved Administrations and public bodies when they fall down on the job of protecting public health.

Although I am not a lawyer, let me try to explain why a legal protection formulated in this way is important when UK courts come to adjudicate on specific cases before them. Here I draw on helpful advice provided by Professor Tamara Hervey, a professor of EU law at Sheffield University. There have been a number of cases in which the high level of protection under EU law for human health in all EU policies and activities has been an important part of the outcome. These include the failed challenges by the tobacco industry to the Standardised Packaging of Tobacco Products Regulations 2015. Here, the high-level protection provisions were used to interpret EU tobacco products law as well as the powers to implement it. It was also used to determine the proportionality standard according to which freedom to trade versus public health is balanced. In particular, much restriction on free trade is legitimate for the purposes of protecting public health, so it helps strike a balance in these contested areas. Perhaps I might quote a passage in the High Court judgment:

“Articles 168 TFEU (on public health) and 169 TFEU (on consumer protection) are especially important. They emphasise how the protection of public health is to be placed at the epicentre of policy making and also how the setting of EU policy is to take account of the work of international organisations (which obviously includes the WHO) and how ‘all’ EU policies must ensure a ‘high level of human health protection’”.


The amendment is not the vague wording that government Ministers have tried to claim in meetings with public health interests. It specifies a very clear consideration that the courts can take into account when considering specific cases. By placing the wording in the Bill, the UK courts would be under no misapprehension about what Parliament expects them to continue doing after Brexit. I hope the Minister will have the good sense not to read out anything in his brief about the wording being vague. It establishes an important legal principle that is not currently provided for in UK legislation but is provided for in EU legal principles.

I am spoilt for choice in terms of future cases where concerned citizens might well ask the courts to intervene because of the action—or, more likely, inaction—of the Government, a devolved Administration or a public authority. As a Londoner, I cite air pollution. In the first five days of 2017, London exceeded the total annual limit for air pollution. Outdoor air pollution is estimated to cause 40,000 deaths in the UK each year. The High Court has slammed the Government for failing to produce an adequate plan to tackle air pollution. To do so, the Government will need the co-operation of the EU after Brexit. The amendment will help keep the Government focused on tackling this killer more effectively. There are other areas, such as unhealthy foods and minimum pricing of alcohol, where this amendment helps, but I do not want to steal the thunder of other colleagues who will probably speak on them regarding the amendment.

In conclusion, I will say a few rather unkind words about why ministerial assurances about good intentions simply will not do. The Government’s track record on public health has been inadequate, as was brought out in this House’s Select Committee report on NHS sustainability. A credible draft obesity plan was put by the Department of Health to No. 10 and emerged with two-thirds removed. It is a totally inadequate response to a crisis. Public health budgets nationally and locally have been cut, despite government protestations to the contrary. On top of all this, the Government’s incoherent and untransparent approach to Brexit, which we have discussed endlessly under the Bill, makes it impossible to give much credence to the assurances of individual Ministers, however well meant they may personally be.

The recent letter to the Times by many public health experts makes it clear that the profession, in the public interest, strongly supports the amendment. That is borne out by the excellent briefing provided by the Faculty of Public Health to me and to many other Members of this House. Here, I say a big thank you to the faculty and to its staff. The extent of support for the amendment is brought out well in the piece in today’s Times. I hope the Minister will have the good sense to accept the spirit of the amendment, but the DExEU approach so far to the Bill does not encourage me to think that he will. I beg to move.

[Baroness Jolly (LD)]

I will speak briefly in support of Amendment 227BD, which is in the name of the noble Lord, Lord Warner, and others, including myself. I add my thanks to the Faculty of Public Health for its support with this amendment. We are all approaching a major crossroads in our political life. Much may well change. Since we joined the EU there has been a huge improvement in our public health. I think that the general public would expect that this rate of change should not be jeopardised.

Some members of the Committee might think that this amendment should be part of a health and social care Bill, but many in this Committee will remember the 2011 Health and Social Care Bill and certainly not wish to revisit it. The EU Withdrawal Bill is where our constitutional stability and certainty will be secured within the UK legal system, so this is where the amendment should sit. Thus, in the current circumstances, this is the appropriate Bill. The British constitution does not exist, as do others, with a single set of principles. If it did, this amendment would be part of it. But it should be enshrined in this Bill, which will be part of the patchwork which forms our constitution.

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[Lord Duncan of Springbank]

I thank the noble Lord for his comments. I will start where he finished: no, we are not going to do that. I am afraid that is not the Government’s purpose. There will be no rollback of these standards because they are at the heart of what we believe to be right and proper. A number of noble Lords have implied that what has been proposed will be the case. I assure them that is not the case.

My noble friend Lady Chalker is right to stress the leadership role that the United Kingdom has long had in the area of public health. Indeed, that leadership role has been a beacon to not only the EU but its member states. As someone who currently lives in Edinburgh, I recognise the role that Scotland has had in pushing forward boundaries which are only now being adopted in certain parts of the world. It is important to stress that we are not in any way diminishing our regard for public health. Indeed, in bringing across the corpus of European law, those matters will rest in our statute book and will therefore be removable only by the other place and by this place.

Before I address some of the more substantive points, it is important once again to look at the EU itself, mostly in the area of public health. The noble Lord should be aware that public health has not been a core competence of the EU. Indeed, many of the aspects of public health have rested elsewhere within the statute books. Noble Lords will be aware that we have known about the pernicious and deadly impact of tobacco for many years, yet it is only in the last five years that the EU has phased out subsidies for tobacco growers.

I was a member of the European Parliament and sat on the environment committee. I also sat on the committee that investigated a scandal that came to be known as “dieselgate”. Noble Lords will be aware of exactly what that represented. At the heart of the EU, a major organisation installed cheap devices in vehicles that were specifically intended to undermine the core air quality standards. We should again remember that that was uncovered by an American public body, not by the EU’s body, which is in itself a borderline scandal. Further, we must also recognise that Volkswagen has compensated car owners in the US but has not in any way compensated car owners in the EU.

I am reminded also of the traceability of food and the horsemeat scandal, which riddled the EU. High standards are important only if they are met, and they must be met in each and every instance. Far too often we have found across the EU some of the most rigorous standards on paper that there could ever be, yet their enforcement is dreadful and woeful. Indeed, I am nearly certain that when we leave the EU the mean standard of public health will fall in the remaining states, so important is the contribution that we make to the wider question of public health.

When we look at the role of global standards and something like the recent Ebola outbreak, it was not the EU that pushed at that standard but France and the UK. They recognised an obligation to deliver against that pernicious pandemic. I believe we also need to recognise that the UK has been at the cutting edge of driving forward public health.

The noble Lord, Lord Warner, said that I might suggest that his amendment was vague. It is not vague; it simply duplicates exactly what the Government—indeed, not just this Government but every Government—have long said and long held to be dear. At the heart of good government must be the preservation of public health. It must be a cornerstone not just in the UK Government but in the Governments of the devolved Administrations, which in some respects have been brought into the ambit of the report. We need to recognise that.

Perhaps I may touch upon some of the other issues that have been brought into this wide-ranging debate. I reiterate that many of the aspects that we are touching on here will necessarily be part of ongoing negotiations, but I assure noble Lords that it is this Government’s intention to secure the highest possible engagement on matters of wider public health. I thank the noble Lord, Lord Patel, for bringing up a number of the areas that I believe the Government need to look at carefully—how we continue our collaboration, how we ensure that we can co-operate and how we can maintain that high standard. We can do so by sharing practice on both sides, because we both have a great deal to contribute and each will be the poorer for the absence of that collaboration.

It important for me to stress that the Secretary of State for Health and Social Care has a statutory duty under the National Health Service Act 2012 to protect the health of the public. A number of noble Lords have raised that, as indeed has the briefing from a number of sources, not least the Royal College of Physicians of the United Kingdom. Of course we are going to argue that the Secretary of State for Health and Social Care already has these powers, and it is his intention to hold them to the highest possible standard. I stress that, although there is an equivalent duty under the NHS—

[Lord Warner]

Can I make it clear that the Minister is saying that the powers and duties of the Secretary of State are as wide as the powers and duties in this amendment?

[Lord Duncan of Springbank]

I am stressing once again that the powers and duties that rest upon a Secretary of State for Health and the health department are high enough and wide enough to capture the intent of this amendment, and that is why the Government will not support the amendment on this occasion.

[Lord Warner]

That was not my question. Can the Minister say whether the current powers extend to the devolved Administrations, the other public bodies and the whole of government, as covered by the amendment?

[Lord Duncan of Springbank]

No, for one very simple reason. As the noble Lord knows, we cannot impose on the devolved Administrations by this mechanism. I am afraid that that is a simple statement of where the law and the devolution settlement rest.

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[Lord Duncan of Springbank]

Because it is superseded by the power that rests in the hands of all good Governments to deliver at that particular level. That is the purpose, and that is the point that I raised just now. If I may, I will make some progress.

It is important that I stress that we are committed to continuing co-operation not just within the EU but more broadly. That is why we are an active participant in the World Health Organization and in various other elements of global public health. My noble friend Lord O’Shaughnessy, the Parliamentary Under-Secretary of State for Health and Social Care, who is sitting beside me this evening, has committed to continuing the UK’s leading role in promoting and ensuring public health, in Europe and beyond. This commitment builds upon the principles set out by my right honourable friend the Secretary of State for Health and Social Care last July on a post-Brexit regulatory system where patients are not disadvantaged and patient safety remains at the heart of our endeavours. It is the Government’s intention, as stated in the future partnership papers, to continue collaboration with the EU to safeguard resilience. This of course will be determined as we move through the engagement on this matter.

I stress that the values and principles which have underpinned our National Health Service for the past 70 years—and which are not to be traded away with the US or any other trade partner we might have—will continue to guide us, just as they have contributed to the development of health and social care services across the EU. That is why, in this instance, I ask the noble Lord to withdraw his amendment.

[Lord Warner]

My Lords, I am grateful to everybody for their contributions in this debate. My score-card shows 14 in favour of the amendment and two against, including the Minister, and that was across the Benches. I am glad that he has moved on from saying that the amendment is vague—that is a bit of progress from what Ministers said before to the Faculty of Public Health.

The Minister seems to be setting up the EU as a straw-man villain to criticise. I never claimed in the past that everything that the EU did in this area was perfect and for all time. What I was trying to do in this amendment was take a principle in the Lisbon treaty, which this country has signed, and apply it to the jurisprudence of the future. If I may, I remind him of the quotation from the High Court judgment, which he needs to read carefully. It makes it very clear that the courts found it useful to apply this principle and put it at the “epicentre”—the word of the judgment, not mine—of public health. It was used in coming to a judgment that actually helped the Government’s position on tobacco policy.

I have heard nothing from the Minister which suggests that the Government have got the same breadth and width of coverage as this amendment provides in this legislation. As the noble Lord, Lord Deben, said, I cannot see why on this issue the Government cannot put in the Bill what they claim to be their policy. It would reassure a very large number of people and help with the exit from the EU. I can guarantee the Minister that I shall return to this issue on Report.

I would be very happy to have a meeting with him, if he feels some flexibility coming upon him, as would many of my colleagues. However, if he does not, I think he can expect a rerun of this on Report. In the meantime, I beg leave to withdraw my amendment.

Amendment 227BD withdrawn.