Healthcare (International Arrangements) Bill

Baroness Wheeler Excerpts

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

[Lord Foulkes of Cumnock]

My Lords, I want to endorse everything that my noble and learned friend Lord Wallace of Tankerness has said. He has the great distinction of having been for some time Deputy First Minister of Scotland and, for a short period, acting First Minister. Very few people can claim that distinction. Again, I agree with every word he said. I describe him as my noble and learned friend in every sense of the term—I hope that is not misunderstood. I also agree with everything said by the noble Baroness, Lady Humphreys.

What I find difficult to understand is why this Bill has received the legislative consent of the Scottish Parliament—which is usually more reluctant to give consent—and not that of the Welsh Parliament. I can only assume that it is because the noble Lord, Lord O’Shaughnessy, kissed the Blarney Stone before he went to Edinburgh again, and was able to persuade them. I am interested to know why and will try to find out from my contacts in Scotland before Report.

I suspect that a lot of the points made about the omissions in this Bill have arisen because this legislation, like much of the legislation we are considering at present, is being rushed because of Brexit, without proper consideration being given. I do not blame the officials, who have so much work to do. I went to a briefing they held right at the start of this process and I know that they work very hard. However, I would rather see them doing more constructive work than some of what they are being required to do on Brexit.

I agree with the noble Lord, Lord Hain—and I find this not only in health but in a lot of other areas—that some officials, particularly at the higher level in Whitehall, still have not come to terms with devolution; they do not quite understand what it means, or that the health service in Scotland is run completely by the Scottish Parliament. It is difficult for those officials who have been involved since before devolution to understand that fully. I hope that we will do more to get the message across as we move forward. I hope that the next Government, of whatever shade—a non-Conservative Government; I will put it that way—take more care of the devolved settlements.

The noble Lord, Lord O’Shaughnessy, said that he has had discussions with the Cabinet Secretary for Health and Sport in Scotland, Jeane Freeman. The Minister has taken over very recently and will not yet have had time to do this, but can she assure us that she will have an opportunity to meet with Jeane Freeman to discuss this issue between now and Report? I hope she will be able to report back to us in more detail on the attitudes of the Scottish Parliament and let us know whether it is satisfied on some of the points that have been raised by the noble Baroness, Lady Humphreys, and my noble and learned friend Lord Wallace of Tankerness.

[Baroness Wheeler (Lab)]

My Lords, I am moving Amendment 42 in the name of my noble friend Lady Thornton and the noble and learned Lord, Lord Wallace. The noble and learned Lord has already spoken to the amendment and covered many of the points that we need to raise. The amendment focuses on ensuring that the commitment to involve, consult and have regard to the views of the devolved Administrations, before regulations on new health agreements are drawn up, is in the Bill and set out as a clear duty on the Secretary of State. The amendment ensures that:

“Before making any regulations under this Act, the Secretary of State must consult the Scottish Government, the Welsh Government and … if there is no Executive on the day on which this Act is passed the relevant Northern Ireland Department”.


The Minister told the House at Second Reading that the Government have been working with the devolved Administrations and fully understand the need for legislation on reciprocal healthcare agreements to fully respect the devolution settlements. The amendment would reassure the Committee on this matter—that reassurance has to be given, as speakers have illustrated. We also support the principle of the safeguard set out in Amendment 30A, moved by the noble Baroness, Lady Humphreys, and Amendment 30B.

As we have heard, given the significant impact on devolved authorities, it is crucial that their interests are appropriately considered in the development of reciprocal health arrangements and that mechanisms are in place to ensure that each Administration contributes to the making of decisions that affect Scotland, Wales and Northern Ireland. I look forward to the Minister’s update in respect of the Scottish Government. The noble and learned Lord, Lord Wallace, provided us with some of the detail of the ongoing discussions, despite the Scottish Government having carried the legislative consent memorandum. I look forward to the Minister’s updated response to the issues the noble and learned Lord raised.

As we heard from the noble Baroness, Lady Humphreys, and my noble friend Lord Hain, the Welsh Government have so far declined to recommend that the Welsh Assembly give its legislative consent to the Bill. The Welsh Minister for Health and Social Services expressed particular concern about Clause 2 because it does not require consultation with or consent from Ministers in devolved Administrations. However, the Minister of State’s offer to amend the Bill to place a statutory duty on the UK Government to consult the devolved Administrations where regulations under Clause 2 would be within their legislative competence is welcome. This would be underpinned by an accompanying memorandum of understanding, stating that all parties will seek to proceed on the basis of consensus. Draft agreements would be discussed with the devolved Administrations before they are shared with third countries and Ministers would be consulted on the content and drafting of regulations made under Clause 2 where they relate to devolved matters. Could the Minister confirm this?

This approach would be a welcome step that would help to create a positive framework in which the future of reciprocal healthcare arrangements can be discussed on a collaborative and constructive basis. Consulting before making regulations would also smooth the process for making regulations, given that any statutory instrument which amends Welsh, Scottish or Northern Irish primary legislation would of course be subject to a statutory instrument consent memorandum in each legislature, which would decide whether to recommend that consent be given in the circumstances.

As noble Lords underlined, the importance of reciprocal health arrangements to the people of Northern Ireland—and of Ireland—has been raised by noble Lords at Second Reading and in our separate amendment dealt with earlier. A statutory commitment to consult and seek the views of either the Northern Ireland Executive or the relevant NI department on regulations enacting new healthcare agreements would provide reassurances about the continued funding arrangements.

Finally, I hope the Minister will be able to respond to the recommendation from the Constitution Committee’s report, which underlined the need for the Government to set out how they intend to manage those overlapping competences relating to the Bill. As the committee points out, while the making of international agreements is a reserved matter for the UK Government, healthcare is a devolved matter and the potential for overlapping competences increases as all powers are repatriated from the EU, as does the scope for disagreement about such issues. This will need to be managed.

Our amendment places the Minister’s commitments to consultation and involvement with the devolved Administrations in the Bill—no more, no less.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, for years many of us have believed that the procedures for considering statutory instruments have been unsatisfactory. Whether any statutory instrument is to be passed by the affirmative resolution procedure or the negative resolution procedure—a question we have discussed today—is not the fundamental point. That distinction merely determines the way in which the instrument comes before Parliament to be debated—if it does so.

The more fundamental problem, which we all recognise, is that SIs are unamendable. They are “take it or leave it”—every paragraph or none. We were reminded on Tuesday by the noble and learned Lord, Lord Judge, that it is exactly 40 years since the House of Commons rejected a statutory instrument. In this House, we too have the power to reject statutory instruments by fatal Motions. The last time we did so—at least, it was said by some that we did—was over tax credits in 2015. Indeed, it was on the Motion of the noble Baroness, Lady Manzoor, when she was on this side of the House.

On that occasion, the right-wing press railed against us for exceeding what it thought our powers ought to be and advocated our abolition. Anyway, the Government set the noble Lord, Lord Strathclyde, on us, after which the fuss rather died down. However that may be, fatal Motions are very rarely passed by this House. I think that is partly because they are seen as disrespectful of the primacy of the House of Commons and partly, perhaps, as was pointed out by the noble Lord, Lord Foulkes, because the Whips discourage fatal Motions in case they, too, will face such Motions when it comes to their party’s turn in government.

I suggest that the power to reject delegated legislation is an important power and ought to continue. However, it is a residual power to be used very sparingly and when the objection to an SI is very substantial indeed. The noble Lord, Lord Butler of Brockwell, said in debate on the first group that we should use the power to reject SIs more often to achieve amendment by sending them back for review and reintroduction. That is a way of doing it, but it runs into the difficulty that it may be too cumbersome and, for the reasons I have mentioned, I doubt that it would be a politically workable approach. Regret Motions, which we often use, are useful, but they come too late in the process and the Government do not have to take any notice of them.

However, under my amendment, the Government would have to publish a draft 28 days before laying the regulations and give both Houses a chance to debate the draft, and to do so before it is actually laid. That would give us an opportunity in a relatively informal way to identify defects in instruments or particular provisions that ought to be removed. Amendment 32 would avoid the need to go through the super-affirmative procedure, which many would advocate for some of the provisions in this Bill, but it would improve scrutiny.

Under our existing arrangements, the power to scrutinise secondary legislation is weakened by the lack of any provision for Parliament to point to particular provisions in an SI and ask the Government to think again. Mine is of course a probing amendment. I suggest that it is particularly relevant to the provisions of the Bill because the regulation power, as we have all considered—many have made this point—is so general, so unrestricted and so unpredictable in its likely or possible exercise.

This amendment may be of more general relevance—I do not suggest otherwise. It is intended to offer a way for Parliament to have an early opportunity of considering proposed delegated legislation in draft before it is laid; to give MPs and Peers an opportunity to consider and express concerns about a proposed statutory instrument, or particular provisions within it; and to give the Government an opportunity to respond to issues raised in such exploratory debates. The amendment is expressed in the terms of a requirement on the Government to make those debates possible, because it is intended to emphasise that statutory instruments, though made by Ministers, are made under powers vested in Ministers by Parliament and are subject to parliamentary scrutiny.

I do not suggest that this amendment, or this type of procedure, ought to apply to every piece of delegated legislation, but I do suggest that it is worth considering. Many of us believe that scrutiny has become too weak and the power of Ministers too strong. This amendment is intended to explore a way of tilting the balance back in favour of parliamentary scrutiny and would, I suggest, offer us one path to better and more carefully considered secondary legislation. I beg to move.

[Baroness Wheeler]

My Lords, I listened carefully to the strong arguments put forward by the noble Lord, Lord Marks, on this issue, and I await the Minister’s response. We have every sympathy with the intention behind the amendment, and the noble Lord’s frustration that the House can either accept or reject a statutory instrument but cannot amend it, while parliamentarians can and often do take note of or reject Motions. However, Parliament is ultimately at the mercy of the Government to withdraw regulations and bring forward a revised draft, which may or may not adequately address the concerns that have been expressed. Fatal Motions are quite rightly used rarely, in exceptional circumstances.

The noble Lord, Lord Marks, says this is a probing amendment. However, I fear that, in this circumstance, it would be counterintuitive to the Bill’s primary objective of implementing reciprocal health agreements after Brexit. As my noble friend Lady Thornton said on Amendment 33 in an earlier group, time is not on our side, and I fear that the approach contained in this amendment would lead to delays in implementing reciprocal health agreements. In the event of no deal, when millions of British citizens will lose their current access to healthcare treatment overnight, any delay while Parliament debates and considers draft regulations would be catastrophic. Obviously the delay that would occur from the proposals that the noble Lord, Lord Marks, suggests would have to be taken into consideration in any future changes, and would certainly need to be discussed.

[Baroness Blackwood of North Oxford]

My Lords, I thank the noble Lord, Lord Marks, for suggesting in Amendment 32 an approach to the important issue of appropriate levels of parliamentary scrutiny, and for clarifying that this is a probing amendment. The Government clearly recognise the importance of appropriate levels of scrutiny in this Bill and the secondary legislation made under it. Obviously, the hallmark of an effective and responsible parliamentary system is the process by which we draft, consider and test legislation.

During this debate, I have listened very carefully to your Lordships and the views expressed on the affirmative resolution procedure. This is an interesting proposal by which we could consider draft legislation. While the Government support the spirit of the amendment and agree that appropriate scrutiny is important, we have questions about this approach.

It is vital that we can make regulations that allow us to respond appropriately to a variety of possible scenarios arising from not just the UK’s exit from the EU but any situation where we would need to implement regulations, where this Bill might be needed quickly and where it is required for a comprehensive international agreement. Such an approach for scrutiny would, we believe, increase the time taken to develop and lay regulations, and this may have quite a significant negative impact on our ability to bring forth timely regulations to provide healthcare arrangements to support hundreds of thousands of individuals who rely on these provisions—perhaps in a case which may be considered an emergency.