Healthcare (International Arrangements) Bill

Earl of Dundee Excerpts

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

[Lord Foulkes of Cumnock]

My Lords, I will make a couple of apologies. The first is to my noble friend Lady Thornton. She is absolutely right about our colleagues in the House of Commons anticipating this problem and the wide powers in this Bill. I accept her correction. Indeed, it was my noble friend who alerted me to the powers in the Bill and got me involved—she may be regretting it now, but I am grateful to her. I apologise also to the Minister for not being able to get to the meeting that she arranged with the noble Earl, Lord Dundee, and the noble Lord, Lord Marks. I was invited, but we had a very long Labour group meeting yesterday. I will not go into any of it in any detail whatever, because I am bound to total secrecy—but you can imagine what fun it was.

I want to deal with the distinction between negative and affirmative instruments. In my previous speech I expressed concern that statutory instruments are being used more and more, and inappropriately. Here, at least affirmative resolutions are better than negative instruments. As things stand, the Secretary of State has very extensive powers through this Bill. As the Delegated Powers and Regulatory Reform Committee said, they are of “breath-taking scope”. If all future legislation relating to the Bill were to be laid through a negative procedure, parliamentary accountability and scrutiny would be further—and substantially—undermined. Introducing the made affirmative, as per the amendment, would be in line with the majority of other legislation. Crucially, the Government could not legislate in the knowledge that they would not face parliamentary scrutiny. The Government argue that the absence of scrutiny will relate mostly to administrative actions. However, given the breadth of the Secretary of State’s powers, the negative procedure could easily be misused.

In her concluding remarks at Second Reading, the Minister, the noble Baroness, Lady Blackwood, said that she had heard,

“noble Lords’ preference for wider use of the ‘made affirmative’ procedure, which I will reflect on more as we head towards Committee”.—[Official Report, 5/2/19; col. 1487.]

We are in Committee now, so will she tell us the result of that reflection—or will we have to wait further to find out about it? The BMA echoed this stance and insisted that,

“any new powers granted to the Secretary of State are proportionate, subject to thorough scrutiny, and that all regulations are subject to the affirmative procedure in Parliament”.

I hope that we will get that assurance.

I return finally to that wonderful speech by the noble and learned Lord, Lord Judge, on Tuesday— I have quoted from it twice or three times already. He said:

“I will try not to bang on any longer”.


I will try not to bang on too long as well.

“If we had time and exit day was further away, I should propose that this Bill should be sent packing back to the Government to redraft it and produce a Bill that is constitutionally acceptable”.


“Hear, hear”, I say to that.

“That option is not open. The healthcare of our citizens in Europe, and EU citizens here, must continue and survive”.—[Official Report, 19/2/19; col. 2172.]


That is what we face. It is a gun pointed at our head: “If you do not agree to this, we are going to go out of the European Union with a bang and our people will suffer”. That gun is being put to our head. It is a pity that it is, otherwise I would support the noble and learned Lord, Lord Judge, in getting rid of Clause 5 altogether. In the meantime, all we can do is try to improve it a bit, and I hope that the Minister will give us an assurance that the statutory instruments will be of the affirmative nature rather than the negative one.

[The Earl of Dundee (Con)]

My Lords, I shall speak to Amendment 34. Reflecting concerns about the wide scope of regulations, it seeks for them to be subject to affirmative rather than negative procedures. That, in turn, would enable Parliament to exercise more scrutiny.

However, this aim should perhaps be viewed in three different contexts. The first context is reciprocal healthcare arrangements between the United Kingdom and the European Union. The second is arrangements between the United Kingdom and countries outside the European Union. The third is other possible ways and means, apart from affirmative or negative procedures, for redressing what so far may appear to be an imbalance, with too many powers given to the Secretary of State and too little influence assigned to Parliament.

On reciprocal healthcare plans between the United Kingdom and the European Union, the Minister will be right to caution that we should retain negative procedures. After a healthcare agreement is in place, those would be better able to avoid uncertainty and time delays in order to protect the interests of all direct participants within the new scheme.

Yet reciprocal healthcare arrangements between the United Kingdom and the European Union are a different matter. Does the Minister concur that in that regard there is a strong case for replacing the use of parliamentary negative procedures with affirmative ones, and that to do so would provide a more acceptable balance between the influence of Parliament, which becomes greater, and not putting people at risk within the new scheme?