Human Fertilisation and Embryology (Amendment) (EU Exit) Regulations 2019

Lord Tyler Excerpts

Wednesday 9th January 2019 Grand Committee

[Baroness Manzoor]

I am sorry but I really want to finish. I will then be happy to take any questions.

During this period, imports and exports will continue to take place as long as the regulatory authorities are satisfied that equivalent standards are met—that is on both sides. We estimate that all these establishments will also import tissues and cells from third countries and so will be able to use their existing written agreements as a template. Licensed establishments that export tissues and cells will also need to put new agreements in place. The timings for this will be determined by the requirements in the relevant EU country. Again, we estimate that all these establishments will also export tissues and cells to third countries and so should be able to use their existing written agreements as a template. The UK regulators will continue to advise and support all tissue establishments in preparing for exit day. In addition to ensuring that the regulations are operable, we continue to proportionately prepare for the continued safe supply of organs, tissues and cells across the UK in all potential EU exit outcomes. I beg to move.

[Lord Tyler (LD)]

My Lords—

[Baroness Thornton]

My Lords—

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[Lord Tyler]

My Lords, may I seek clarification? As I understand it, the Grand Committee is currently discussing only the first regulation. The Minister drifted into the other two regulations, which are the responsibility of her department, but have I got it right that we are currently looking only at the first instrument?

[The Deputy Chairman of Committees (Viscount Ullswater) (Con)]

The noble Lord is correct.

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[Lord Tyler (LD)]

Since we are faced with no less than 10 significant Brexit-related statutory instruments this afternoon, the first such substantial group—with implications for scrutiny of hundreds to come—and since there are important general issues here, this is my only opportunity to make some general comments and suggestions based on my service on the Delegated Powers and Regulatory Reform Committee. As the Minister has been at pains to emphasise to the Grand Committee, this is contingency planning for no deal, and I note the comments made by both the noble Baroness and other members of the Committee. But that does not relieve the responsibility on the House and on this Committee to ensure the scrutiny is as careful as it can be, and to ensure that if we find ourselves in a different circumstance, we are also prepared for scrutiny of the different issues that may arise. We have no idea what sort of Brexit there is going to be, or whether there is going to be any Brexit at all. I do not expect to contribute to the individual debates on each one of these 10 SIs, because I do not have the expertise of my colleagues here who will be addressing the individual issues. But I am advised that this is the only appropriate opportunity to make some general comments.

I am sure that all three Ministers bringing these Motions before the Grand Committee today will have read carefully—or have been carefully briefed on—the recent report of the Constitution Committee, a well-regarded committee of your Lordships’ House that we all pay huge regard to because of its expertise and experience. The Grand Committee will also be aware of the report entitled The Legislative Process: The Delegation of Powers. It made explicit reference to the critical importance of “effective and timely scrutiny” of Brexit-related secondary legislation, and is so relevant to the 10 instruments in front of us this afternoon—and to this special scrutiny of Brexit SIs—that it would be unthinkable if Ministers were not fully briefed on its recommendations. I do not need to read extracts to the Grand Committee, but will confine myself to key recommendations. That being said, I do not need to read long extracts from the committee’s analysis to this afternoon’s meeting of the Grand Committee; instead, I shall confine myself to key recommendations. In passing, though, I should note that the committee took extensive evidence from a host of authoritative parliamentarians, including senior Ministers, as well as from the Secondary Legislation Select Committee of your Lordships’ House and the Delegated Powers and Regulatory Reform Committee, on which I serve.

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[Lord Adonis]

My Lords, the noble Lord is making a very effective speech. Does he not think that having 10 of these very important statutory instruments scheduled for one meeting of the Grand Committee is, frankly, insulting to the House in the expectation that the Government are holding as to the amount of scrutiny that we will give to each of these extremely important orders?

[Lord Tyler]

Looking around the Room, I can see some very experienced Members of your Lordships’ House. I am sure that we will deal with these instruments in a very effective way, as it is our responsibility collectively to give them the attention that they deserve. Despite the fact that, as the Minister has made clear, this may well be a wasted exercise, we still have to do it properly.

I turn to another recommendation from the Constitution Committee in paragraph 110:

“If the Government uses delegated powers to propose secondary legislation which makes technical provision within the boundaries of the policy and has previously been agreed in primary legislation, Parliament is unlikely to wish to block statutory instruments. However, we are concerned, and this report has shown, that these boundaries are not always respected and that ministers may seek to use statutory instruments to give effect to significant policy decisions. Without a genuine risk of defeat, and no amendment possible, Parliament is doing little more than rubber-stamping the Government’s secondary legislation. This is constitutionally unacceptable”.


We in your Lordships’ House all have a responsibility to ensure that the work that we do here is done with meticulous care. Here is an example: this instrument is the beginning of a whole sequence, a flood, of SIs coming before your Lordships’ House—we are told there are going to be hundreds—and each time we have one before us we have to make a careful assessment of whether it is necessary, quite apart from whether it is effective. As the Minister has already said, the instrument before us is simply in case there is a no-deal outcome. The Government have made it so clear over recent weeks that that is not their favoured outcome—they keep telling us what dire consequences there would be for the country if it happened—that it may well be asked whether we are spending our time profitably in this circumstance, so that is particularly appropriate to this section of our discussion today.

[Lord Adonis]

I hope the noble Lord will forgive me; he is much more experienced than I am about the consideration of statutory instruments. The House of Commons Procedure Committee produced its sixth report of the Session on 4 July last year on the scrutiny of delegated legislation under the European Union (Withdrawal) Act, which is of course precisely what we are engaged in here. It said in paragraph 56:

“We estimate that the latest day on which an instrument subject to negative resolution can be laid so that praying time expires on 29 March 2019 is Monday 18 February 2019. The latest day on which a proposed negative can be laid before Parliament so that the period for consideration expires before 18 February 2019”—


which was what the Government had then said was their aspiration—

“is Friday 25 January 2019”.

That is respectively three weeks and six weeks from the present date. Does the noble Lord, with his great experience of these matters, think it credible that these hundreds of instruments which apparently are going to be needed to implement the no deal could conceivably be laid in time for these procedures to be conducted by either Friday 25 January or Monday 18 February?

[Lord Tyler]

Friday 25 January is even sooner than the noble Lord said, I think. Not for the first time, the noble Lord has jumped ahead of my speech for me. I shall come back to this point later because I share his concern. I served in the other place on the Procedure Committee and I have the greatest respect for the very professional way it looks at matters of procedure. I have to say, though—and this comes out very fully in the report of our Constitution Committee—that I do not have the same respect for the extent to which it scrutinises secondary legislation, which lays an additional responsibility on your Lordships’ House to do this with extreme care. So I shall come back to the point about the timetabling that the noble Lord has referred to.

Yesterday in the Chamber, in Committee on the Financial Services (Implementation of Legislation) Bill, there was a succession of exchanges between my noble friend Lady Bowles of Berkhamsted and the noble Lord, Lord Bates—who is here; he is always here at exactly the right moment, as we all know from previous experience—on this very relevant issue. Indeed, the advice of the Delegated Powers and Regulatory Reform Committee was referred to on a number of occasions so I pay tribute to the noble Lord, Lord Bates, because he undertook, at col. 2144, to come back to the concerns of the Committee on Report. I hope he might be prepared to extend the discussions he is undertaking to set in motion beyond the Members who took part in the debate yesterday to include those of us who serve on the Delegated Powers Committee, and to consider more generally the issues that were raised by it.

The Constitution Committee recommends in paragraph 111:

“The Government already has a mechanism to remedy faults in statutory instruments which are identified by parliamentary scrutiny. SIs subject to the affirmative procedure are made only when signed by a minister after parliamentary debates have taken place; until they are signed, they can be withdrawn, revised and re-laid. SIs subject to the negative procedure come into force on the date specified on the instrument, but the Government already has the power to lay a second SI to revoke and replace the first”.


That is particularly relevant to the SI before us because it is highly likely that in its present form, it will not be as effective or possibly even as necessary as the Minister is now saying, because, as she admits, this is all contingency planning for an outcome that the House of Commons has already said it does not wish to see and the Government keep telling us is such a dire consequence that we should be blackmailed into accepting some other outcome. On all sides, the circumstances are likely to change and in those circumstances this SI may be totally obsolete and an anachronism, or it may need to be revised. But in such circumstances it is the responsibility of the Government to come back to your Lordships’ House with a new proposition.

[Lord Adonis]

My Lords, I am grateful to the noble Lord for giving way again. Of course, a big issue is what happens if the Grand Committee is not persuaded that we should agree these regulations this afternoon. It is certainly my opinion, and I think it may be the opinion of some of my noble friends, that we should not do so at the end of this debate. I am unfamiliar with the procedures of the House—this will be important; I think it will also impact on many other statutory instruments—as to what will happen in that event. My understanding is that the Grand Committee has to agree proposals by unanimity because it cannot vote, so if we do not agree on approving this statutory instrument, does it automatically go to the House itself? I assume that that would be the acceptable procedure. Is there a guarantee that we would then get to debate it properly and fully and get the fuller explanation and the revisions which may be necessary, as the noble Lord has just set out, in a full debate in the Chamber itself?

[Lord Tyler]

My Lords, I am getting worried the noble Lord seems to be able to read my mind. I am no expert on that particular issue, because it is unusual, but I think he is technically correct. We cannot vote within the Grand Committee, so it has to go back to the Floor of the House. Time has to be found for that, but we have very little time before the projected, but totally unrealistic, date of 29 March.

I revert back to the Constitution Committee’s recommendation, which is a timely reminder for all of us—especially Ministers and their departments—that it is totally unacceptable for Parliament to be forced to approve a defective SI. The mechanisms are there to make sure that does not happen, with no excuses of time pressure, complexity or expediency. How often we hear that argument in present circumstances: “Oh, but it is expedient”. Is it really expedient? Is this particular instrument before the Grand Committee expedient? We are told it is only to be used in extreme circumstances which everybody says they want to avoid.

We have a responsibility, and have to ensure that the eventual legislative product avoids defects. Incidentally, there are several potential incidents of Henry VIII powers in the 10 orders with us this afternoon. It is always difficult to see precisely whether Henry VIII is raising his head, if I may use that expression. There are some such powers there, and that should give us cause for concern.

At the end of this SI, and of some of the others we are coming to later, there is a statement to the effect that:

“A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen”.


I have read speedily the Explanatory Memorandum for this particular order. I cannot see any persuasive argument for why it is not possible that there could be a significant impact. Who makes that decision? What are the criteria for deciding whether something does or does not have a potential significant impact? We are right to question the extent to which this particular SI is in order.

I turn to recommendation 112 from the Constitution Committee’s recent report. It states:

“However, for these processes to work, the Government must take account of the scrutiny of statutory instruments and respond promptly to remedy any deficiencies. Where it does not do so, in exceptional circumstances Parliament may use its existing powers to block such instruments. The Government should recognise that parliamentary defeat on a statutory instrument need not be considered momentous nor fatal. It does not prevent the Government subsequently tabling a revised SI having listened to and acted on parliamentarians’ concerns”.


This is an important recommendation. It is, of course, the constitutional position, so they could not avoid it. I served on the Joint Committee on Conventions, which reported in 2006. Its recommendations were approved unanimously by both Houses. In particular, at paragraph 228, it states:

“The Government appear to consider that any defeat of an SI by the Lords is a breach of convention. We disagree. It is not incompatible with the role of a revising chamber to reject an SI, since (a) the Lords (rightly or wrongly) cannot exercise its revising role by amending the SI or in any other way (b) the Government can bring the SI forward again immediately, with or without substantive amendment, as described by the Clerk of the Parliaments, and (c) the power to reject SIs gives purpose and leverage to scrutiny by the Joint Committee on SIs, and by the new Lords Committee on the Merits of SIs. The Government’s argument that ‘it is for the Commons, as the source of Ministers’ authority, to withhold or grant their endorsement of Ministers’ actions’ is an argument against having a second chamber at all, and we reject it”.


That was a Labour Government, and I hope the present Ministers would not have made such an absurd proposition.

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[Baroness Manzoor]

My Lords, perhaps I may help the Grand Committee. Noble Lords are not being asked to approve the instruments on behalf of the House. As noble Lords, in particular the noble Lord, Lord Tyler, will know, Motions have to be brought back to the House and if the House then wishes to go to a vote, it can do so. My point today is to set out the arguments for the SIs and the importance of why we need to take this action. However, the SIs will be brought back to the House for approval.

[Lord Tyler]

I understand that and I am grateful to the Minister for making the point. However, I think that the point the noble Lord has made is perfectly reasonable.

[Lord Foulkes of Cumnock]

The noble Lord has been in this House for a long time. I hope that he is not being taken in by what the Minister has said. If we accept what she has said and we let the regulations go through on the nod, they go on to a list and will go through the House on the nod. However, if in the end we object, as I did, to a previous instrument, there has to be a proper debate in the House at an agreed time. That is the important issue.

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[Baroness Manzoor]

I thank the Deputy Chairman for that clarification and I am pleased that his words bear out the point I have just made to the noble Lord.

[Lord Tyler]

I want simply to respond to the point made by the noble Lord, Lord Adonis. Technically, of course, the House did not reject that particular statutory instrument. The noble Lord may recall that the Motion was very carefully phrased in order to delay its implementation until certain circumstances had been approved. That same evening, a straight rejection was voted down in the House, so I do not think that that situation is strictly comparable to the one that we now face, with this stream of contingency planning SIs—I emphasise the point that the Minister has made this afternoon. These are speculative SIs, if you like, dealing with situations that all of us now must surely think are unlikely. From what the Minister has said, it appears that the House will be subjected to a whole stream of SIs that may never be required. That is an extraordinary way to treat your Lordships’ House.

Finally, I turn to paragraph 113. As I am sure your Lordships will be glad to hear, this is shorter—

[Baroness Manzoor]

Perhaps I may again interrupt, because I do not feel that we are considering the regulations. Of course, I bow to the much greater experience of the noble Lord on constitutional issues. As I said, I am very much a newbie, relatively speaking. However, neither the Joint Committee on Statutory Instruments nor the Secondary Legislation Scrutiny Committee drew to the House’s attention anything special in the three SIs that we are considering. I bring that to the attention of the Grand Committee. We can spend a lot of time looking at processes and procedures relating to SIs, but perhaps I may put in a small plea. This is about considering the three SIs before us, which are important for contingency planning, and I would like us to move forward, if we can.

[Lord Tyler]

I hear what the noble Baroness says, but she is technically not correct. At the moment, we are considering only one. Setting that on the table for a moment, I wanted to—

[Lord Adonis]

I hope that the noble Lord, who is making a powerful case, will in no way be dissuaded from applying his full powers of scrutiny to these regulations. It would be totally unacceptable if the Grand Committee were in any way influenced by a Minister into thinking that it should not fulfil its constitutional responsibility to give full consideration to each of these instruments individually, not least because, if this issue is to go to the House for a proper debate, as it appears it will, Members of the House will need to be informed by the debate in the Grand Committee and we should not suppress full consideration of the issues at stake.

[Baroness Manzoor]

My Lords, for the record let me say that I am not for a minute suggesting that we should not have full and proper scrutiny of any legislation, whether in Grand Committee or in the Chamber. I value that. At the moment, however, we are talking about processes regarding SIs and not the regulations before us.

[Lord Tyler]

My Lords, it is unfortunate that we have not had an opportunity to have a general discussion in the Chamber about this process; otherwise, I could have made this speech then. The report was published by the Constitution Committee of your Lordships’ House on 20 November last year. It is on process and is extremely important. Had the Government made time for that discussion, we could have approached these issues in a different way.

Finally, let me come to the recommendation in paragraph 113, which says:

“If the Government’s current approach to delegated legislation persists, or the situation deteriorates further, the established constitutional restraint shown by the House of Lords towards secondary legislation may not be sustained”.


That is the Constitution Committee of your Lordships’ House putting down an extremely important warning marker. It is intensely important that the whole process on the stream of SIs coming down the track to us is approached with that in mind. It will be up to your Lordships’ House to decide whether the Government are responding appropriately to these recommendations as they bring forward this avalanche of Brexit-related secondary legislation.

The complacency shown by the Minister on Monday in the Chamber, when challenged by my noble friend Lord Newby and others, does not encourage us to be optimistic. He claimed that 50% of the necessary Brexit SIs had been tabled. He also reported that the number had been reduced to some 600. I understand that this has been achieved by a great deal of amalgamation and compositing. The result is that some very long and indigestible SIs are on the way to us, perhaps with as many as 600 pages, in one case. I am told that the Home Office calls these “portmanteau SIs” because they are so general, and they will be extremely difficult for your Lordships’ House to deal with in an adequate manner.

When my noble friend asked the Minister how many SIs had been passed in both Houses, he was unable to give an answer. He did not know it—I hope he does by now. It is clear from the excellent briefing we had this afternoon from HM Treasury on the financial services legislation—indeed, it is also true of the Explanatory Note for these regulations—that we are doing complex and important work. It is not something that can go through on the nod, as the noble Lord, Lord Adonis, said. Therefore, it is right that we take stock of what exactly is happening.

It may be, as the Minister has been at pains to say, that because this is simply contingency planning for an outcome that the Government do not want or expect to happen, and do not want to have to deal with, all this will turn out to be a largely wasted exercise—in which case, we also have a concern. It is a common perception across the House that the Government have not a hope of delivering properly scrutinised Brexit primary legislation before 29 March. However, as the noble Lord, Lord Adonis, said earlier, they have even less chance of providing proper time for rigorous scrutiny of secondary legislation, where the devil is so often in the detail. The overall timetable is beyond the scope of this debate, but if anyone is under the illusion that it would be responsible for the Prime Minister to charge on towards any form of Brexit by the end of March, they should sit down quietly and just look at the proper scrutiny role that we as Members of your Lordships’ House have to exercise on behalf of the nation.

[The Deputy Chairman of Committees]

For the convenience of the Committee, perhaps I should read out something from the Standing Orders:

“Debate must be relevant to the Question before the House”—


I believe that that is what the Minister suggested; it must be relevant to the question that I have put from the Chair—and:

“No Lord is to speak more than once to any Motion”.

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[Baroness Manzoor]

No, I am sorry. I have been more than generous today.

This is about contingency planning, making sure that if there is no deal, these will be activated. I have already addressed the cost to businesses. The noble Lord, Lord Adonis, also asked about import licences of UK establishments, and the noble Baroness, Lady Barker, asked about the six-month transition period. The six-month transition period will allow time for UK licensed establishments to put in place the agreements with EU establishments. We will try to mirror as much as we can but it will give further time. Many of those agreements are in place but that is a further six months. I remind your Lordships that we are talking about a no-deal planning scenario.

The noble Baroness, Lady Thornton, asked whether we will be a third country when we exit. Of course, we will be a third country when we exit the EU. She also asked what I thought was a very important and relevant question about who will inspect the establishments in EU countries. Of course, we want to ensure safety for patient care and that the quality is there. I reassure the Committee that EU regulators already inspect establishments in their own countries before they license them, and this will continue after exit day, so we will be able to rely on the standards in the establishments as we currently do. Regulators in their own countries go and inspect the premises and that will continue to happen, so there will be joint understandings of standards, which will not be diluted. This is a continuation. We are not making new plans.

The noble Baroness, Lady Thornton, also asked about the transport of sperm and embryos. Of course, these travel in special containers and, as I said, they are often flown by air. The containers have the appropriate paperwork, which explains what is inside, and they are not expected to be subject to extra inspections at the border when they come into the UK. That will continue.

In response to questions asked by a number of noble Lords—and this applies to all three SIs—licensed establishments are obliged to report all incidents involving adverse effects, whether these happened in the UK or any other country.

I tried to cover the question of the noble Lord, Lord Tyler. The noble Lord spent a considerable time talking about processes and statutory instruments. All I can say to him is that, whatever the outcome, any reasonable, good Government—or any company or business—must have a contingency plan. This is contingency planning. It would be poor of the Government if we did not take such action. So I do not see it as a waste of money. I see it as prudent and effective planning.

What happens if the instruments are not made? That is a matter for the Grand Committee and, of course, the House. It is such a sensitive area and I am a newbie so I am learning all the time. I say to the noble Lord, Lord Tyler—and I said it at the start—that of course the Government will reflect on what has been said, and we take the issues that the noble Lord and others have raised regarding SIs, processes and procedures very seriously.

[Lord Tyler]

Is the Minister prepared to make representations to the Government Chief Whip that time should be permitted as soon as possible for the Constitution Committee report to which I referred, which is so relevant to everything that has been discussed this afternoon, to be discussed on the Floor of the House? If we do not have that opportunity before this stream of Brexit-related SIs comes before us, we will not be able to do our duty as the revising House of this Parliament.

[Baroness Manzoor]

I am very happy to give that undertaking. I will ensure the Chief Whip is aware of it, as was my intention, and I am sure he will be. These statutory instruments are important because if they are not made, we may not be able to share organs, tissues and cells with EU countries, and that could jeopardise patient treatment. Regarding a question raised by the noble Lord, Lord Foulkes, I stress again that all three SIs are about maintaining the same high safety standards that we have in the NHS. We are not changing anything. We are just putting in place contingency plans. I know he has come back to me again and again on this particular issue in different ways, but we are not making new legislation, nor are we changing primary legislation. We are just ensuring we have agreements in place should a no-deal exit happen.