Healthcare (International Arrangements) Bill

Lord Lansley Excerpts

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

I urge her to bring pressure to bear on other members of the Government to extend that kind of sensitivity to this Bill, and to accept that the principle is applicable here and that allowing for future regulatory change to primary legislation on an unrestricted basis, as this Bill does, is unacceptable and unconstitutional. I beg to move.

[Lord Lansley (Con)]

My Lords, I shall speak to Amendments 37 and 39 in this group, which are in my name. The noble Lord, Lord Marks, has helpfully introduced them in the point he made towards the latter part of his remarks about the distinction made in the EU withdrawal Act between retained direct principal EU law and retained direct minor EU law.

As the noble Lord said, that principal EU legislation should be subject to the affirmative procedure was recommended for the Trade Bill. That was accepted by the Government but has not been incorporated into this legislation. My Amendments 37 and 39 would do precisely what the Constitution Committee recommended on Monday. Happily, I tabled my amendments last week, rather than waiting until after Monday, as that would have been rather late. The amendments would allow the Government to indicate their support for this process. I hope that they are drafted correctly and that they would do the job, but, even if they do not, we will have the opportunity for that to be remedied on Report. I hope that my noble friend on the Front Bench will say that it is the Government’s intention to make this change.

Participating in the Committee stages of both the Trade Bill and this Healthcare (International Arrangements) Bill gives one an opportunity on occasion to make a positive comparison between the two. However, it is getting confusing. The Trade Bill is intended to roll over existing agreements and specifically does nothing else. Members—not least on the other side—are spending much of their time trying to persuade the Government that it should include reference to how things should be agreed in the future. The Bill before us creates a power not only to roll over existing agreements but to make new ones. On Tuesday, much time was spent on Members of the House arguing that this was inappropriate and should be left to future legislation. As they say: you cannot have it both ways. But it seems that in this instance, at least on this specific point, we can ask Ministers to change the Bill for this purpose.

I commend to the Front Bench Amendments 37 and 39, which would incorporate an affirmative requirement for amendments to retain direct principal EU law.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I strongly support the amendment of the noble Lord, Lord Marks, and everything he said. I fear that, given the welter of things happening in politics at the moment, this kind of Bill is getting through without proper scrutiny and that many people, in both Houses, do not realise the importance and far-reaching implications of what we are considering. We are therefore very grateful to people like the noble Lord, Lord Marks, for drawing attention to this issue. I am astonished that this has apparently got through unchallenged in the other place. Many of my colleagues—with the notable exceptions of my noble friend Lady Thornton and her colleagues on the Front Bench—have not realised what an urgent matter this is.

I arrived late on Tuesday and was unable to participate in the debate on the first amendment. I missed the wonderful speech by the noble and learned Lord, Lord Judge. He raised the issue again at Question Time today and was answered by the noble Lord, Lord Young of Cookham, who is with us. Astonishingly, as the noble and learned Lord, Lord Judge, said on Tuesday and said again today:

“The harsh reality is summarised in the fact that it is exactly 40 years since the other place rejected a statutory instrument—40 years”.—[Official Report, 19/2/19; col. 2172.]


For the last 40 years, we have been dealing with legislation without the ability to amend it. Whether the procedure is affirmative or negative—I will come to that later—does not matter: we have not had the opportunity to amend it. What happens? The statutory instrument is drawn up by civil servants and put forward to Parliament by the Government. What is Parliament asked to do? You have to agree it or not—and if you do not agree it, you get threats. You get people saying, “This is a killer amendment” or, “This is a killer resolution”. That happened yesterday, I think, on a couple of statutory instruments, and the amendments were not moved in the end.

So we have a take it or leave it situation with statutory instruments, unlike with primary legislation. When the subject was raised, the noble Lord, Lord Young of Cookham, said that it was a much wider issue—it had been raised in the wider context. A trickle of SIs has become a flood. More and more issues that ought to be dealt with by primary legislation are being dealt with by secondary legislation. The more that happens, the bigger the transfer of power from the legislature to the Executive. That is exactly what the Government are doing. I ask them to think carefully. This Conservative Government will not be in power for ever. I hope some people agree with me on that—somebody say, “Hear, hear”.

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[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.

[Lord Lansley]

For completeness, in relation to Amendment 28, which would remove subsection (3), it should be recognised that the power to which the noble and learned Lord, Lord Hope, referred is for the purpose of giving effect to a healthcare agreement. It is not for any other purpose, so if it was not in pursuance of a healthcare agreement the power would not be available. Albeit that healthcare agreements may in themselves be relatively wide-ranging, the power can be used only for that purpose.

[Lord Patel]

My Lords, I am not too sure about that because the Delegated Powers and Regulatory Reform Committee said in its report:

“The Minister does not give any indication of what primary legislation might in future need to be amended”.

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[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.

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Moved by

[Lord Lansley]

27: Clause 5, page 3, line 37, at end insert—
“( ) A statutory instrument containing regulations made under section 1 which are not made in respect of continuity healthcare agreements may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, both Houses of Parliament.”

[Lord Lansley]

I am grateful for the opportunity to move Amendment 27, which is linked with Amendment 41. Noble Lords will recall that at Second Reading and again on Tuesday there was considerable debate about the distinction between agreements which are effectively rolled over—existing agreements the purpose of which is to replicate the EU reciprocal healthcare agreement presently in place—and other agreements made under this legislation. In the previous group of amendments, we discussed the Henry VIII power and in what circumstances it should be applied. This is different. From my point of view, this group is about which agreements should be subject to what procedure by way of parliamentary scrutiny where implementing legislation is required in relation to them.

After our debate at Second Reading, it struck me that a clear distinction should be made with what I call “continuity healthcare agreements”, which, as one will see if one looks at Amendment 41, are defined as agreements the purpose of which is to replicate the terms of agreements made presently under the EU social security regulations as there specified. Those are continuity healthcare agreements; they are being rolled over. They are not novel and do not bring new issues to bear. I think that their purpose is entirely agreed: we want to make it swift and certain that existing rights under EU reciprocal healthcare are reproduced in future and implemented rapidly. So it seemed perfectly reasonable for those agreements to be subject to the negative procedure. Therefore, if we could define continuity healthcare agreements in Amendment 41, it would enable those that are not continuity healthcare agreements to be subject to the affirmative procedure. That is what Amendment 27 would do; it would require the additional time and scrutiny to be devoted to where there was a new healthcare agreement—or, as it happened, a substantial amendment to an existing healthcare agreement.

I am not sure that the drafting will necessarily meet with my noble friend’s approval, but my purpose at this stage is to establish the principle that there are two kinds of healthcare agreement. We spent a lot of time on Tuesday arguing whether any extension of the powers beyond existing agreements was desirable and I do not want to re-enter that debate today. However, if we proceed down this path with this Bill, substantially amending existing reciprocal healthcare agreements or adding new ones, we should make a distinction between rollover agreements—that is, continuity healthcare agreements—and those which have substantial changes in them. So I commend Amendment 27 to my noble friend and beg to move.

[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.

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[Baroness Blackwood of North Oxford]

For the implementation of international healthcare arrangements, these powers exist within EU legislation. At the moment we do not have the powers to implement international healthcare arrangements within domestic legislation. That is why they are being introduced.

The department believes that the negative procedure is appropriate for the use of the delegated powers to arrange the specific implementation purposes which I have laid out. That balances the appropriate level of scrutiny with the use of parliamentary time. However, I have listened closely to the discussions in the debate and I take seriously the concerns which have been raised by noble Lords, by the DPRRC and by the Constitution Committee. However, I hope that noble Lords will understand that we need to ensure that the Government have the legislative tools needed to implement the agreements we reach, especially the ones with reciprocal healthcare at EU exit. I would like to work constructively with your Lordships to further consider these issues in detail as we progress the Bill to Report, and I will make myself and officials free to discuss the breadth of the regulation-making powers further at an open session next week. I hope that with this explanation and these reassurances, my noble friend will feel able to withdraw his amendment.

[Lord Lansley]

I am grateful to my noble friend and to all noble Lords who have taken part in this short debate. I thought it was very constructive and I am especially grateful to my noble friend Lord O’Shaughnessy for his support for my two amendments. I thank the Minister for her willingness to think about these issues positively and constructively. We will return to them on Report and I look forward to that. On the basis of her helpful assurance, I beg leave to withdraw the amendment.

Amendment 27 withdrawn.