Healthcare (International Arrangements) Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Butler of Brockwell (CB)]

My Lords, I agree with the noble Lord that our parliamentary processes for dealing with statutory instruments are unsatisfactory—in particular, that we cannot amend them. But is not the remedy in Parliament’s hands? If we were a little bolder and rejected some statutory instruments, it would not be difficult for the Government to reintroduce them in an amended form. The amendment could be very slight. It seems that statutory instruments are necessary, particularly when we are dealing with all those that result from our leaving the European Union. Therefore, we need to look very carefully at the parliamentary process for dealing with them. It seems, as the noble Lord, Lord Young of Cookham, said at Question Time, that this is in Parliament’s hands. We could be bolder and achieve the objective of amending statutory instruments by rejecting some of them.

[Lord Mackay of Clashfern (Con)]

My Lords, it is important to realise that statutory instruments are a very useful way of dealing with particular situations, but of course it is extremely important that the powers to make these instruments are properly scrutinised and narrow. As the noble Lord, Lord Wilson of Dinton, said on the previous day this Bill was being considered, in his day parliamentary counsel would say, “What do you want to use this for?” If the reply was, “I’m not sure”, they would say, “Well, in that case I’m not drafting it until you know what it is for”.

--- Later in debate ---

[Lord Foulkes of Cumnock]

I was going to intervene in the speech of the noble Lord, Lord Butler, but this applies equally here. I have to be careful not to give away too many secrets and internal arrangements, so this is a purely theoretical example. Certainly that can be done, but if a Chief Whip tells you that voting against this is a fatal Motion and urges you not to do it, when that kind of situation builds up it is very difficult. It may well happen. It may already have happened, without giving too much away.

[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.