Healthcare (International Arrangements) Bill

Lord O'Shaughnessy Excerpts

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

[Lord Marks of Henley-on-Thames]

My Lords, I will speak briefly to Amendments 35 and 36 in this group, which are in my name. What I say is entirely without prejudice to what I said on the last group: changing the procedure does not make it acceptable for statutes to include fundamentally inappropriate delegations such as are included in the Bill. Nevertheless, we are now considering the Bill and the breadth of the powers as currently drafted, particularly those in Clause 2.

In that context, I draw attention to the use of the ghastly phrase “for example”, to which the noble and learned Lord, Lord Judge, drew attention on Tuesday. To allow for the widest possible powers, and then to introduce them in a clause that starts:

“Regulations under subsection (1) may, for example”,


showing therefore that the powers are entirely unlimited, is completely unacceptable. However, that is the background against which we are considering the question of the appropriate procedure.

I do not believe that any regulations should be made under the Bill unless they are made by affirmative resolution. Should the Government come back on Report with a Bill in which the powers of the Minister are appropriately circumscribed, there may be a case for some regulations of a minor nature to be amenable to the negative resolution procedure.

In particular, I listened with care to what the noble Lord, Lord Lansley, said when he drew a distinction between rolling over agreements that already exist in the regulations in relation to the EU-EEA-Switzerland agreements and others that we already have, and making new agreements and regulations in relation to them. That may be a point on which a distinction can be drawn, and no doubt the Minister and her colleagues will consider it as a possible distinction. Generally speaking, however, regulations of this type ought to be by affirmative resolution.

If, later on, we are looking at a very different Bill, I ask the Minister and her colleagues to consider the Delegated Powers Committee’s Guidance for Departments when determining how the procedures should be adopted, which procedure should be adopted, and the criteria that should be applied in choosing them.

[Lord O'Shaughnessy (Con)]

My Lords, I will speak briefly on my noble friend Lord Lansley’s Amendments 27 and 41. Noble Lords will know that because of my role as a Minister up until the end of last year, I find some of the provisions in the Bill rather more defensible than do other noble Lords, and I know that that is a minority opinion. Nevertheless, the Minister has said that she will reflect on the House’s strength of feeling, and of course she has much greater wisdom than me on these matters.

I was struck by some comments made by my noble and learned friend Lord Mackay of Clashfern on the last group, when he talked about the scope of the Bill; that is relevant to the context of the amendments laid by my noble friend Lord Lansley. That is the point I was trying to make on Tuesday: there is no reason a priori why the Bill should not have a broader scope. As my noble friend pointed out, in other contexts, the House is arguing that similar Bills ought to, but it follows from that that the functions carried out as a consequence of the Bill are of two distinct types. One concerns what my noble friend called rollover Bills, to provide continuity with the EEA and Switzerland; the other concerns new arrangements—not necessarily with new countries but of a new and deeper kind. Clearly, that will be taking on a relationship that does not have precedent when it comes to dealing with individual countries, even if it has precedent as modelled on those available with the EEA and Switzerland.

My noble friend’s logic in thinking about how the regulation-making power ought to reflect that distinction is therefore sound. Clearly, there needs to be sensitivity. That is reflected in the timeliness and urgency of what we need to do for one set of circumstances and what we might want to do with the longer-term global role.

I am sure that the Minister will reflect carefully on the amendments. If the goal of the Bill should be to give us the broad scope, as I still believe, not only to deal with the consequences of leaving the European Union but to build a different, broader, more global set of relationships, which I think is the kind of network the House supports, there is a compelling case for my noble friend’s argument for a differentiated approach. Whether the specifics are right, I do not know; others will be in a position to judge. I look forward to hearing the Minister’s comments on the amendments.

[Baroness Thornton]

Listening to the noble Lord, Lord O’Shaughnessy, I reflected on our debates on Tuesday. I think he is again making the argument for two Bills, but there we go. He is quite right about differentiation. I thank the noble Lord, Lord Lansley, for introducing this group of amendments, all of which seek to curb the powers of the Secretary of State under Clause 5. I shall speak to Amendment 33 in this group. It would ensure that amendments are made under the affirmative procedure. We have sought to use the affirmative procedure in the event of no deal, which would enable the Government to bring in replacement bilateral arrangements immediately. That is because we are concerned that delays under the draft procedure would leave British and EU citizens not covered by a health agreement, with serious implications.

This group of amendments points in the same direction and comes from every part of the House. They broadly agree with both the Delegated Powers Committee and the Constitution Committee reports. As noble Lords have said, the Henry VIII powers in Clause 5(3) and (4) provide for regulations to amend, repeal, revoke or retain EU law. I very much welcome the fact that the Minister said in our previous debate that she intends to consider what has been said. I will resist the temptation to quote what the Constitution Committee said about this, because I know that noble Lords have read its influential reports at length.

These powers have been mentioned by noble Lords all the way through Committee. Clauses 2 and 5 are particularly worrying, to put it mildly. What concerns me is the Government’s reaction to the legitimate concerns expressed so clearly by both those highly regarded Lords committees, on whose advice we depend for our scrutiny of legislation. They overuse the words “flexibility and capability” and argue that the Bill must be forward-looking and needs those powers to provide that flexibility and capability. I was reminded of the previous general election, when the Conservative Party coined the phrase “strong and stable”. It did not convince anybody, and I am not sure that “flexibility and capability” is convincing noble Lords as a reason for the powers. It is a good reason for what the Government want to achieve, but as a justification for the powers in the Bill, it is not compelling.

The noble Baroness now seems to have realised that in every part of the House, including on her Benches, we take these matters particularly seriously. That is not because there is a desire to stop the Government acting—absolutely not at the moment. It is because our system of checks, balances and accountability requires legislation to be subject to proper scrutiny, in order to safeguard citizens from the tendency of Governments—all Governments—to charge on and ride roughshod, implementing their wishes without let or hindrance.

I know that some officials see this as a kind of game or tussle to see what they can get away with, particularly at the moment, but as the noble Lord, Lord Wilson, wisely said on Tuesday, you cannot put these powers in because they might just be useful. Although I will resist joining the noble Lord in repeating the words of Margaret Thatcher, I agree with his sentiment that the Bill as drafted breaks all the rules of our constitutional understanding. I hope that the Minister takes that seriously because the challenge before her and the House is to amend the Bill so that it fulfils its primary function: to provide healthcare cover for millions of UK citizens and to ensure healthcare for UK citizens living and working in the European Union and European citizens living and working in the UK. In other words, it is about individuals’ lives and their health. We believe that the right amendments, like those defined in this group, will refine the Bill’s scope and give the Secretary of State appropriate powers—an achievable task.

--- Later in debate ---

[Lord Hain]

I resigned. However, she is very welcome and I wish her all the best.

What worries me about this—and I hope that the Minister can give us concrete assurances—is that, on the Brexit agenda, it seems to be in the DNA of Whitehall not to have regard for the devolved Governments. The only reference I can find in the Bill to the Welsh, Scottish and Northern Ireland devolved legislative bodies comes right at the end, when it says that it applies to them. At the very least it is essential that a requirement to seek legislative consent and to consult is written into the Bill, because of course health policy is devolved to Scotland, Wales and Northern Ireland.

The Government have form on this issue in the way that they approached the Brexit legislation earlier in the process. As your Lordships will recall, there was a crisis and a real confrontation with the Scottish Parliament and the Welsh Government—and there might well have been with the Northern Ireland Assembly if it had been up and running. It must be in the DNA of Whitehall, because it has simply done it again. That really worries me. I hope the Minister can give reassurances which mean that we do not have to vote at Report on something very similar to these amendments. If a major concession is not made, we will need to do that and seek to defeat the Government.

I endorse what the noble and learned Lord, Lord Wallace, and the noble Baroness, Lady Humphreys, said. I ask the Minister to give very specific assurances, spelling out that, if she does amend the Bill—and I hope she will assure us that she will—she will do so only having agreed those amendments in precise terms with the Welsh Government and the Scottish Parliament, and having consulted officials in the Northern Ireland departments.

[Lord O'Shaughnessy]

My Lords, it may be useful if I reassure the Committee in response to the comments of the noble Lord, Lord Hain. There was extensive engagement with the devolved Administrations in advance of the Bill, not just by officials but by me as a Minister. I spoke to my counterparts in Scotland and Wales, although of course it was not appropriate to do it in quite that way in Northern Ireland, for obvious reasons—there not being an Executive. That happened before, and subsequent to, the publication of the Bill, so this has been going on for several months. It is one reason why we were very pleased to get the legislative consent Motion in advance from the Scottish Government. Clearly, everyone had recognised the benefits that flow from this for the inhabitants of all parts of the United Kingdom.

It is useful for the Committee to know that this is not an activity that has simply been undertaken as a bolt-on in response to concerns raised during the passage of the Bill; it was baked in from the beginning and it has been our intention to move in the appropriate way with no procedural or constitutional novelty of the kind that the noble Lord fears.

[Lord Hain]

I am grateful to the noble Lord for giving way. Why, then, are the Welsh Health Minister and the Welsh Government still so concerned about this Bill? I am encouraged that these consultations took place, but why is there this evident concern?

[Lord O'Shaughnessy]

The different Governments have clearly taken different approaches. The noble Lord will know that it does not automatically follow, even if you know where you all want to get to, that you can agree it overnight. I am sure that my noble friend the Minister will be able to update us.

[Lord Foulkes of Cumnock]

My Lords, I want to endorse everything that my noble and learned friend Lord Wallace of Tankerness has said. He has the great distinction of having been for some time Deputy First Minister of Scotland and, for a short period, acting First Minister. Very few people can claim that distinction. Again, I agree with every word he said. I describe him as my noble and learned friend in every sense of the term—I hope that is not misunderstood. I also agree with everything said by the noble Baroness, Lady Humphreys.

What I find difficult to understand is why this Bill has received the legislative consent of the Scottish Parliament—which is usually more reluctant to give consent—and not that of the Welsh Parliament. I can only assume that it is because the noble Lord, Lord O’Shaughnessy, kissed the Blarney Stone before he went to Edinburgh again, and was able to persuade them. I am interested to know why and will try to find out from my contacts in Scotland before Report.

I suspect that a lot of the points made about the omissions in this Bill have arisen because this legislation, like much of the legislation we are considering at present, is being rushed because of Brexit, without proper consideration being given. I do not blame the officials, who have so much work to do. I went to a briefing they held right at the start of this process and I know that they work very hard. However, I would rather see them doing more constructive work than some of what they are being required to do on Brexit.

I agree with the noble Lord, Lord Hain—and I find this not only in health but in a lot of other areas—that some officials, particularly at the higher level in Whitehall, still have not come to terms with devolution; they do not quite understand what it means, or that the health service in Scotland is run completely by the Scottish Parliament. It is difficult for those officials who have been involved since before devolution to understand that fully. I hope that we will do more to get the message across as we move forward. I hope that the next Government, of whatever shade—a non-Conservative Government; I will put it that way—take more care of the devolved settlements.

The noble Lord, Lord O’Shaughnessy, said that he has had discussions with the Cabinet Secretary for Health and Sport in Scotland, Jeane Freeman. The Minister has taken over very recently and will not yet have had time to do this, but can she assure us that she will have an opportunity to meet with Jeane Freeman to discuss this issue between now and Report? I hope she will be able to report back to us in more detail on the attitudes of the Scottish Parliament and let us know whether it is satisfied on some of the points that have been raised by the noble Baroness, Lady Humphreys, and my noble and learned friend Lord Wallace of Tankerness.