Healthcare (International Arrangements) Bill

Lord Hope of Craighead Excerpts

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

[Lord Mackay of Clashfern]

If a defect was pointed out in a statutory instrument, I would consider that a matter for stopping it going forward. Most of the arguments I have heard in recent times do not point to any mistake in an instrument. They are more theoretical. I do not wish to examine them in detail—I have done that once—but it is important. That is what was proposed when these instruments were originally laid. It is much easier to amend an instrument by taking it back and starting again than with an Act of Parliament. That is the appropriate procedure for correcting a defective instrument, and it happens, not necessarily formally, but quite often instruments are withdrawn when a mistake is pointed out; they get round to writing it again and hopefully the second time it is improved.

[Lord Hope of Craighead (CB)]

My Lords, it is perhaps worth mentioning Amendment 28 in the name of the noble Lord, Lord Patel, which was covered by the noble Lord, Lord Marks of Henley-on-Thames, because he directs our attention to a quite extraordinary provision. On page 3 of the Bill at line 40, we are asked to approve Clause 5(3), which allows regulations to be made amending, repealing or revoking,

“primary legislation … for the purpose of conferring functions on the Secretary of State or on any other person”.

That is extraordinarily wide. I can understand conferring powers on the Secretary of State but why “on any other person”, given that the subsection then adds “(including conferring a discretion)”? That really is the most extraordinarily broad provision, which should be looked at very carefully.

[Lord Patel (CB)]

I thank my Convenor, the noble and learned Lord, Lord Hope, for bringing attention to my amendment. I will be briefer than brief because the noble Lord, Lord Marks of Henley-on-Thames, not only introduced my amendment but spoke to it. My purpose in tabling Amendment 28 was to bring attention to exactly what the noble Lord and the noble and learned Lord have just said: it is an extraordinary power to take. I fear that it is this kind of power that led the Constitution Committee to suggest that the only way for Parliament to scrutinise the Bill subsequently might be to introduce such a draconian provision as a sunset clause; I say draconian because I am worried that it may have other implications. As I said on Monday, I worry that that will affect what the agreements in the future might do, particularly with the EU. But we will no doubt have another opportunity to discuss that.

--- Later in debate ---

[Lord Lansley]

But subsection (3) is clear: this is a power to amend primary legislation,

“for the purpose of conferring functions on the Secretary of State … to give effect to a healthcare agreement”.

The noble and learned Lord will know that that at least limits the scope.

[Lord Hope of Craighead]

The noble Lord, Lord Lansley, raises an interesting point. It is something that should be clarified by better drafting. Splitting things into subheads, as is done frequently throughout the Bill, tends in some ways to open up the arguments to which the noble Lord, Lord Patel, has drawn attention. As I think I have mentioned to the Minister outside the Chamber, the way these provisions are drafted in this cumulative form is rather unfortunate because if they are read together in a single sentence they can be narrowed down, whereas if they are separated out it suggests that paragraph (a) has a life of its own, so one may wonder what “any other person” can possibly refer to. I hope that the Minister will take these points away and ask the draftsmen to look more carefully at how the Bill is drafted, particularly when using that style of drafting.

[Baroness Thornton (Lab)]

My Lords, this has been a very powerful and useful debate to have as a precursor to the one we are about to have, where we will again address the nature of the powers in the Bill. I enjoy it very much when noble Lords such as the noble and learned Lord, Lord Hope, use the words “rather unfortunate”. Of course, in House of Lords-speak, which the Minister will become accustomed to, it is a very serious thing to say of a piece of legislation that its drafting is rather unfortunate. I want to say how much I appreciated the interventions from the noble Lord, Lord Butler, and the noble and learned Lord, Lord Mackay of Clashfern, to whom I always listen most carefully.

My noble friend Lord Foulkes referred to discussions that may take place outside this Chamber on whether statutory instruments should be referred back, but actually we know from the past that, when your Lordships become exercised about a statutory instrument, we see threats in the press about our existence and, “How dare they!”. That is a serious problem, so I think there is an issue that we need to address that is broader than just this Bill.