Human Tissue (Quality and Safety for Human Application) (Amendment) (EU Exit) Regulations 2019

Lord Adonis Excerpts

Wednesday 9th January 2019 Grand Committee

Thirdly, the fantasy that we may or may not be having is costing at least £4 billion, so anybody who talks to me about a Brexit dividend or anything else really must start to be more sensible. Again, my noble friend will say that this matter is not within her competence but it is reasonable for me to tell her that it is not good enough just to say that the costs are minimal. We must know what the costs are. I have never known such a circumstance. Every time we ask the Government about the cost of anything to do with Brexit, the answer is, “We don’t know”—or, worse still, “It is minimal”. I do not know what “minimal” means. For some people, thousands of pounds is minimal; for many a National Health Service operation, thousands of pounds are what they do not have, so it is not minimal but serious. My noble friend must give us confidence that she will go away and insist, as a Minister, that she is given the costs because we need to know how much this will cost. In my view, “minimal” is not a satisfactory answer.

[Lord Adonis (Lab)]

My Lords, the noble Lord makes an extremely powerful argument about the basis on which this no-deal planning is taking place. As a distinguished former Member of the House of Commons, can he give us his reflections on how that basis has been affected by yesterday’s debate and votes in the House of Commons, including a specific vote against no deal—the whole basis on which we are considering these statutory instruments this afternoon? I ask that particularly in the light of remarks made by Yvette Cooper, who moved the amendment approved by the Commons yesterday. She said that,

“I have heard some say that they want the imminent threat of no deal to persuade people to back the Prime Minister’s deal, if not now, then later. But brinkmanship in Parliament is not the way to resolve this and get the best deal for the country. This is too serious for us to play a massive Brexit game of chicken”.—[Official Report, Commons, 8/1/19; col. 263.]

That was said by the mover of the Motion which the House of Commons approved yesterday. Does he agree that this is a massive Brexit game of chicken and that there is something fundamentally immoral about the Grand Committee playing a Brexit game of chicken in pursuit of a policy which the House of Commons has now specifically disapproved of in terms?

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, perhaps I might remind the Committee of Standing Order 28 and urge noble Lords to relate their comments closely to the Motion under discussion.

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[Lord Adonis]

This is very closely related to the matter under discussion because the issue under discussion at the moment is no-deal planning, along with the whole basis on which that no-deal planning is being conducted. I am sure that the noble Lord will agree.

[Lord Deben]

I say to the noble Lord, Lord Adonis, that we have a real issue here because it is very hard for the Minister to have to respond to this situation. Again, I apologise to her for the fact that I feel that I have to speak—because we cannot go on, in the politenesses of this House, ignoring the fundamental problem. The fundamental problem is that we are being led up the garden path in two different ways.

The Deputy Chairman of Committees is perfectly right to refer us to the Standing Orders, but this is central to the discussion that we having on this particular SI. The centrality of it is that, first, we are assuming that this could happen, and the second part of it is that we are assuming that the Government have made proper arrangements that if it were to happen, what is in this instrument is relevant and effective. There is actually a third thing, which goes back to the point made by the noble Lord, Lord Adonis, about whether this is legally possible to happen. That, I think, is a question which is beyond the remit of this Committee but is certainly of very great importance.

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[Lord Warner]

I think it is, but I am trying to be kind to the Minister after what I suspect has been a rather exhausting and tiresome afternoon for her. This requires the Government to be absolutely sure that the safeguards in place now will not be diluted in any way as far as patients are concerned as a result of these regulations. She and the Government have to be sure, as the noble Baroness, Lady Barker, said, that if there is an incident it will not undo all the good will that has been built up in the last 15 years or so.

[Lord Adonis]

The noble Lord has been a Minister and has had to deal with these issues. Could he give his own reflections to the Grand Committee on the issues to do with disruption at ports and airports that might impact on the extensive research and patient treatment that takes place under these provisions? If there was serious disruption, what impact does he think it would have on the communities affected?

[Lord Warner]

If the Government cannot guarantee the easy transfer of pieces of material of one kind or another that are vital for medical research, you end up with a loss of public confidence in medical research and the ethical considerations surrounding that. It starts to jeopardise the ability of world-class scientists to do the research that at the end of the day benefits patients across the country and indeed across Europe.

[Lord Adonis]

My Lords, I did not care greatly for the Deputy Chairman’s intervention in reading the Standing Orders out to us. I think your Lordships are well aware of the requirements for us to be relevant in our remarks, and I do not believe that anything has been said in the Grand Committee today that is not relevant to the direct issue of no-deal planning, which is the precise issue involved in each of these regulations. It is not just relevant but it is our duty to point out—in the way that the noble Lord, Lord Deben, did in his remarks—the big issues to do with the practicality of these arrangements as well as the legal and moral basis on which they are being taken forward, given that the House of Commons, the primary elected body that establishes law and policy, has directly voted against no-deal preparations as recently as yesterday, in a huge Division after a very controversial debate. When I read to him the remarks of Yvette Cooper, the former Labour Cabinet Minister who moved the amendment endorsed by the House of Commons, I think that it was extremely relevant.

We all have great respect and increasing sympathy for the Minister. She is having to assume responsibility for a Government of which she is a distinguished part but only one part. She is in an invidious position in having to reply, but she has not been able to do so because there is no reply to the fundamental issue of why are we considering these regulations at all when it is unclear whether they can be implemented and when the legal basis for them is so shaky and, in my view, unsustainable because, crucially, it depends on the will of the House of Commons, which only yesterday expressed its will emphatically in a huge Division: that it did not want to see no-deal preparations continue—[Interruption.] I am sorry. My noble friend is making an entrance. I thought it might be another intervention from the Chair.

As each of these orders come up for consideration by the House, we need to point out that the Grand Committee believe that the arrangements being put in place are not practical in the time period envisaged for them—now barely two months—and that we will not be satisfied unless the Government can give us some account. The Minister has not been able to say whether there is a satisfactory legal basis for these arrangements to be brought forward, given the view the House of Commons has now expressed. I would welcome that as the Minister did not respond to those remarks in respect of the previous statutory instrument; I hope that she will in her remarks on this one.

The remarks of my noble friends Lord Winston and Lord Warner are acutely concerning. They have huge expertise in this area and have raised very serious concerns about the impact on patients and research in the event that the Government attempt to go down the course envisaged by these regulations. The Grand Committee would welcome the Minister’s views on these issues. I note that we are not talking about a peripheral issue in respect of the NHS and patients. There are about 5,000 imports of tissues and cells from the EU alone in a typical year. This is not my area of expertise, but that is clearly a huge area of our national life which acutely affects a very large number of individuals. That includes 600 imports of stem cells and 3,000 imports of bone products. The UK imports donated sperm primarily from commercial sperm banks in two places—the United States and Denmark—so one of the two principle areas from which we import is in the European Union and will be directly affected. The Minister may be able to confirm figures I have seen saying that Denmark is the principle location from which we import donated sperm and will be hugely affected.

I come back to the fundamental issue I raised in the last debate, to which the noble Baroness was not able to give a satisfactory answer: what happens in the case of serious disruption. I invite the Minister to say more about the word she used in our last debate: “prioritised”. The Government clearly think that there may be serious disruption or there would not have been the attempted simulation of a lorry jam; Chris Grayling could not even organise a lorry jam that worked but a simulation of a lorry jam was attempted on Monday none the less. The Government would not be attempting simulations of lorry jams if they did not think that a lorry jam would be one of the consequences of no deal. I have worked closely with civil servants for many years. They are very conscientious and they feel, correctly, under a duty to see that proper preparations are made for serious contingencies that might arise in respect of policies put forward.

The Grand Committee and the House should take careful note of the fact that this is not any Project Fear done by me or any fantasies from the noble Lord, Lord Deben. The Government are conducting contingency exercises of lorry jams, which means that the port of Dover is effectively impassable for long periods, and we were told yesterday by the junior Transport Minister, the noble Baroness, Lady Sugg, that the port of Ramsgate is being dredged—we are still trying to find out how this dredging is taking place and what the contracts are—so that further no-deal preparations can be made for after the end of March. We now know what the likely disruption can be at the airports, because many of us were trying to get out of Gatwick before Christmas and the drone completely disrupted all the traffic out of the airport.

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[Lord Deben]

I hope that my noble friend will be able to answer this question, but I point out that it is rather difficult to answer. Yesterday or the day before, we were informed that we have had to withdraw two cutters from the work being done because of people coming across the Mediterranean. That was the only way that we could stop people coming across from Calais. In other words, we appear to have a very exiguous ability to do these things. I am told that we are only borrowing these cutters for a bit and then they will go back again. I also want to know whether our forces have the ability to provide the prioritisation of which the Minister speaks.

[Lord Adonis]

The noble Lord makes an important point, and we look forward to the Minister’s response in more detail on what these contingency arrangements will be. If she is not in a position to tell us, the advice that was given to the Committee by my noble friend Lord Winston is apposite. If the Government cannot give adequate assurances that these arrangements can in fact be put in place or meet the objectives set by the Government to see that there is no disruption in the vital flow of embryos, tissue and so on, the right thing for them to do is to withdraw this regulation and come back to the House after they have done two things. They need to engage in further consultation—as the noble Baroness, Lady Barker, said, the consultation on these regulations has been exiguous—and the noble Lord, Lord Tyler, said that no impact assessment had taken place at all, because the Government judged that the impact was not serious. It does not appear to be the opinion of the Grand Committee this afternoon that the impact is slight; we think that it could be significant in the sectors we are discussing.

So, our advice to the Minister would be that the best thing for her and the Government to do would be to withdraw these instruments and to do two things. First, to engage in further consultation, and secondly, to engage in more intensive contingency planning, particularly on the issue of how disruption will be coped with. That will give the Grand Committee and the House more confidence that we could agree regulations of this kind because they would be capable of meeting their objectives, which is not the case at the moment.

I will raise one final issue for the Minister to address in her reply. Martyn Day, Member of Parliament for Linlithgow and East Falkirk, in the debate in the House of Commons on these regulations, said:

“We do not know what the exact process will be for licensed establishments to apply for a new import-export relationship”,—[Official Report, Commons, Third Delegated Legislation Committee, 19/12/18; col. 5.]


in the case of a no-deal Brexit. That seems to be a significant issue. Since Jackie Doyle-Price was unable to respond to the point in the House of Commons, could the Minister tell us what the process for licensed establishments to apply for a new import-export relationship will be. On the point the noble Baroness, Lady Barker, raised, in the event that new arrangements are not put in place within six months—the period the Minister set out in her opening remarks—what will happen? This is a vital contingency issue, and these are difficult, complex issues. Will the six months be extended? What arrangements will the Government put in place for that? What will happen to the additional costs? I hope the Minister can respond to all these issues in her reply, which will be important for the further consideration by the House of these matters. The House will look to the debate we have had in Grand Committee to inform its own debate in due course.

[Lord Tyler (LD)]

My Lords, I am provoked by the noble Lord, Lord Adonis, to pose a question to the Minister, which I hope will be helpful to him. I endorse what the noble Lord, Lord Deben, said about the invidious position in which she has been placed. I have been mulling over what the noble Lord said about the whole scene in which we are now placed. He described it as Enid Blyton; it is more like the unicorn option that some of the Brexiteers thought they were going to have—some wonderful new era of freedom. It is speculative. So often in both Houses, I have been attacked by Ministers for asking them a hypothetical question. The Grand Committee is being asked a hypothetical question this afternoon, which the Government themselves do not believe in. It is speculative: if this thing, which we do not want to happen, happens, we need this particular order.

I put a specific question to the Minister: if, by some curious chance, we are faced with the deal the Prime Minister is seeking to obtain the support of Parliament for, presumably this is a complete waste of time? We have been told so often this afternoon that this is a contingency plan for a situation the Government do not want to happen, and therefore, by definition, if it does not happen, this is a waste of time. Do we then have to have quite separate adjustments to the relationship we have under the Prime Minister’s deal? If so, that is a complete new set of secondary legislation which is going to come before your Lordships’ House. I do not know if that is a more likely prospect than the unicorn prospect—the ridiculous situation that the noble Lord, Lord Deben, described in his powerful speech. However, it has huge implications for the role of this House in looking at the detail of legislation. If we are going to be told that 600 of these SIs are now irrelevant, because the no-deal option, the unicorn option, has fallen off the table, but we now have something else in front of us, that has implications for the role and responsibility of this House. If, as the Minister says, the contingency plan is not required, what is the contingency plan for the Prime Minister’s deal? Is there going to be a completely different set of secondary legislation? It is a simple question, and I hope there will be a simple answer.

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[Baroness Manzoor]

To be very clear, the six-month period relates to imports. It is important to point that out. After the six months, there will be advice from the regulators as to what the new import agreements will be and what more needs to be put in place during the six-month transition period. There has to be consultation and there have to be agreements, and that is the whole point: we want to put these SIs in place so that we have contingency planning regarding the agreements.

A number of noble Lords raised the issue of ports and airports. I have already given the answer and there is not very much that I can add to it. The Government are making plans to mitigate any delays at borders. As I have said, where there is a priority need, we will endeavour to do our very best to ensure that there are no delays. On the other interesting ideas that were put forward, any of those various forms of transportation are at the disposal of the Government in any scenario should they wish to use them.

[Lord Adonis]

Do I take it that the Minister is saying that the RAF and the Royal Navy may be put at the disposal of the NHS to deal with this no-deal contingency planning? I took that to be the meaning of the words that she has just said.

[Baroness Manzoor]

No, just to be clear, I could not possibly agree to that or let the noble Lord draw that conclusion from my comments. What I am saying is that the Government will use whatever means they have at their disposal to ensure that priority needs are met where they can be and where it is necessary to do so.

[Lord Adonis]

My Lords, the Government have the RAF and the Royal Navy at their disposal, and the Minister just said that they would use whatever means were at their disposal. They clearly have those services at their disposal, so why would they not use them in these extreme circumstances?

[Baroness Manzoor]

My Lords, I know the noble Lord is pushing me to answer that question but there is nothing that I can add to the answer that I have already given.

On the impact assessments, I want to make clear once again—this relates to all three SIs, as does everything that I have said—that these instruments are limited in what they do by the powers under which they are made under the European Union (Withdrawal) Act. Those powers were debated and approved by Parliament, and an impact assessment was carried out in relation to that. There is nothing that I can add to that.

I have probably not added to the satisfaction of the noble Lord, Lord Adonis—

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[Baroness Manzoor]

Research is also outside the scope of these SIs. The noble Lord has tremendous experience in this area, which we appreciate and value. We have a fantastic NHS based on world-leading research, working with our partners across the EU. That is right, but these SIs are not about that. These are matters for greater minds than mine to think about if we exit the EU. However, as far as these SIs are concerned, we want to maintain what we have at the moment. They cover a contingency plan to ensure that we have agreements in place. However, I understand the ethical issues and the points being made by the noble Lord, Lord Winston, regarding scientific research and close working collaborations, but I am not in a position to talk about them because they are not pertinent to the SIs we are discussing today.

[Lord Adonis]

The Minister has not answered my question about the processes that will be put in place for licensed establishments to apply for new import-export relationships. Can she tell the Grand Committee more about those because these establishments are keen to know what will happen? When will the processes be published in the no-deal scenario? When will the Government know what arrangements will apply, given the huge importance of import-export relationships both for the treatment of patients and, as my noble friend Lord Winston rightly said, for the conduct of research?

[Baroness Manzoor]

My Lords, I responded to that question on two occasions. I will repeat for the noble Lord that all the processes currently in place will remain; there will not be anything new. These regulations do not bring in anything new and they do not change anything. They seek simply to put continuation plans in place should there be a no-deal Brexit. All the regulators support them.

[Lord Adonis]

My Lords, I do not find that answer satisfactory. Is the Minister saying that they will not need any new import-export arrangements? My understanding is that they will. That does not affect the point that the Minister hopes that there will be no change. We are talking about a legal issue to do with the licensing arrangements. My understanding is that the existing licensing arrangements will not continue in the case of no deal, so when will establishments be informed about how they can apply and what the process will be for new and updated licences? I understand that the Minister is not in a position to tell the Grand Committee now, but I hope that she may be able to respond when we come to the third statutory instrument in this group because the same issues arise there. Perhaps she will be better briefed between the second and the third instrument so that she can reply next time.

[Baroness Manzoor]

I am happy to respond. I hope that I am not repeating the same points, but they are important. Clearly, the noble Lord is finally beginning to understand that there will not be any new licences. Importers already have the licences they need; we will need to look only at new agreements. There is lots of information on the regulator’s website to enable organisations that deal with these different categories of issues to contact the regulator. However, at the moment we do not see that as an issue, because many of those already have templates of the agreements they use for non-EU countries. I beg to move.