Medicines and Medical Devices Bill

Lord Blencathra Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 2nd September 2020 Lords Chamber

[Lord Blencathra (Con) [V]]

My Lords, I wholeheartedly agree with the noble Baroness, Lady Finlay of Llandaff, that Britain can and must become a world leader in medical innovation. I strongly supported the Saatchi Bill on medical innovation. I am currently trying out a couple of MS drugs and will volunteer for everything. Personally, I am not too worried about safety, but that is a unique viewpoint.

I begin by paying a warm tribute to my noble friend the Minister. He is one of the finest Ministers I have encountered in this House: intelligent, knowledgeable, on top of his brief, courteous and very hard-working. I am delighted that he is going to listen to the criticisms on delegated powers today. Thus it grieves me to say that the structure of the Bill is absolutely atrocious and an affront to parliamentary democracy. Of course, it is not unique; it is just one more Bill stuffed full of Henry VIII clauses but devoid of substantive content. It is the barest skeleton, all to be filled in with negative secondary legislation.

I am speaking in my capacity as chair of the Delegated Powers Committee. We considered the key clauses—Clauses 1, 8 and 12—and concluded that they contain inappropriate delegations of power. We say that

“the Government have failed to provide sufficient justification for … the Bill adopting a ‘skeleton bill’ approach, with Ministers given very wide powers to almost completely re-write the existing regulatory regimes”.

But of even greater concern are the powers in these clauses allowing Ministers to create completely new criminal offences by statutory instrument: see paragraphs 29, 30 and 31 of our report.

Then we come to the negative/affirmative procedure ploy. We say:

“We are wholly dissatisfied by departments repeatedly arguing for powers … to be subject to the negative procedure where there is a need to act quickly, and seeking to justify this without acknowledging the existence of the made affirmative procedure. Departments are very well aware of that procedure and we can only conclude that their failure to mention it is a device to try to minimise Parliamentary scrutiny. In future … we will expect them to explain why the made affirmative procedure should not apply.”


That is pretty hard-hitting, and I am sorry that my noble friend the Minister is bearing the brunt of this criticism when it applies equally to dozens of Bills across all government departments. It is simply that my committee is fed up with Bill after Bill drafted with the negative procedure, on the excuse that the only alternative is the affirmative procedure. This is simply not true. The Office of the Parliamentary Counsel and the Cabinet Office are perpetuating a falsehood in their official guidance on drafting legislation, which completely, and I say deliberately, ignores the “made affirmative” procedure.

Then we come to the wonderful new term “protocols”, another ploy invented by draftsmen to avoid parliamentary scrutiny. We say:

“Allowing regulations to make … legislation subject to conditions set out in a ‘protocol’ is yet another example of ‘camouflaging legislation’ … those powers … should be set out in the regulations themselves and not in a ‘protocol’ which is not subject to Parliamentary scrutiny”.


The memorandum states on Clause 2 that the negative regulations will be made

“following extensive consideration and scrutiny by the relevant professional bodies”.

Jolly good for them—everyone is to be consulted except this Parliament.

Finally, we say in our conclusion:

“We are deeply concerned not only by the Government’s failure to provide sufficient justification for the adoption of a ‘skeleton bill’ approach—which would give Ministers sweeping powers to almost completely re-write the existing regulatory regimes … but also by their failure to acknowledge the breadth of the powers that the Bill would confer. In future, we will expect a more transparent approach in which a department acknowledges the breadth of the powers and seeks to fully justify it.”


Of course, Ministers must take responsibility for their legislation, but the root cause of this abuse of Parliament can be found in the Cabinet Office guidelines to departments on preparing legislation. The Office of the Parliamentary Counsel boasts on its website:

“We are committed to promoting good law—law that is: necessary, clear, coherent, effective, accessible.”


If the lawyers drafting our laws think this Bill is good law, God help us. Do they think good law includes skeleton bills, Henry VIII clauses, negative procedure everywhere, regulations masquerading as guidance and protocols, and criminal offences created with no parliamentary scrutiny at all? Parliament is effectively bypassed; that is a sick joke of good law.

I will return to this theme at a later date. I apologise again to my noble friend the Minister that he is on the receiving end of criticism that applies across the board.