Healthcare (International Arrangements) Bill

Lord Wallace of Tankerness Excerpts

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

[Baroness Humphreys (LD)]

My Lords, I apologise for not being able to take part on Second Reading.

This group contains two amendments in my name and that of my noble friend Lady Jolly and a further amendment in the names of the noble Baroness, Lady Thornton, and my noble and learned friend Lord Wallace of Tankerness, which I also support.

Amendment 30A seeks to ensure that the Government may not by regulation repeal or revoke primary legislation made by the devolved legislatures without their consent. Amendment 30B seeks to ensure that the Acts passed in this Parliament giving powers to the devolved legislatures may not be modified without their consent. It could be argued that this is what the Bill tries to do.

I am grateful to the Minister for her response to a question posed by the noble Baroness, Lady Finlay, in Committee on Thursday. However, I would like to use my two amendments to open further discussion around the issue of legislative consent by the devolved Administrations and how this is impacted by the Bill. In the light of the Minister’s response on Tuesday, which was made after my amendments were tabled, I shall keep my contribution relatively short at this stage.

Many noble Lords have already spoken about the wide-ranging powers conferred on the Secretary of State by Clause 2(1)—powers which the Delegated Powers Committee described as “inappropriately wide” and as having “breath-taking scope”. As that committee pointed out in its report of 14 February, its conclusions were supported by the Constitutional and Legislative Affairs Committee of the National Assembly of Wales on the Welsh Government’s legislative consent memorandum on this Bill, where these inappropriately wide powers can be seen to have an impact on the devolved legislatures.

This House’s Constitution Committee records the decision of the Scottish Parliament to agree to an LCM in these “exceptional circumstances”. However, it also records that the Welsh Government have so far declined to give their legislative consent. It describes the Welsh Minister for Health and Social Services, Vaughan Gething AM, as expressing particular concern about Clause 2 because it,

“doesn’t require consultation or consent from Ministers in devolved administrations”.

The Welsh Government would expect to be consulted and their consent sought on this issue because powers over the health service have been devolved to Wales by this Parliament. However, Clause 2 is silent on this and, as such, it is an important omission from the Bill.

The Welsh Government acknowledge, of course, that an LCM will be required by the UK Government because provisions in the Bill modify or fall within the Assembly’s legislative competence. However, they also note that,

“any healthcare agreement entered into on behalf of the UK will affect the NHS in Wales and this legislation will therefore have a significant impact on a devolved policy area”—

and, one might add, potentially a significant impact on their finances too if they are expected to implement a UK policy that they have not budgeted for.

Rightly, the Welsh Government seek assurances from the UK Government to ensure that the Welsh Government are involved in matters that affect devolved areas in Wales and that this is recognised in the Bill.

The Minister said on the first day in Committee that she is in advanced discussions with the Welsh Government and that she hoped to be able to report back on this in more detail on Report, so I will not detain the Committee any further today on this issue. I merely wished to outline my concerns and draw your Lordships’ attention to them at this stage. I look forward to that further debate that she promised. I beg to move.

[Lord Wallace of Tankerness (LD)]

My Lords, I apologise that I was not able to speak at Second Reading. I shall speak in support of Amendment 42, which was tabled by the noble Baroness, Lady Thornton, and to which I have added my name. It is about a duty to consult the devolved Administrations before making regulations under this Act.

My noble friend Lady Humphreys has already given a flavour of the important constitutional and devolution issues which arise as a result of these provisions. As she indicated, unlike the Welsh Assembly, the Scottish Parliament has passed a legislative consent Motion in respect of the Bill—quite exceptionally, because the position of the Scottish Government is generally to withhold consent to legislation in respect of EU withdrawal, but they took the view that they would give consent if there were exceptional circumstances. In this case they believe there are exceptional circumstances. That view was supported by the relevant parliamentary committee in the Scottish Parliament, and last month by the Scottish Parliament as a whole.

This is a relatively modest amendment requiring consultation. The Explanatory Memorandum that accompanies this Bill makes clear in annexe A that there are areas, specifically in Clauses 1, 2 and 4, where a legislative consent Motion is required. It is very obvious, because here we have a situation where international agreements are made by a member state, in this case the United Kingdom, with other countries in respect of a subject matter that is devolved.

I am sure the Minister will be very familiar with Section 2CB of the National Health Service (Scotland) Act 1978, which refers to the functions of health boards outside Scotland. It states:

“Where it is the function of a Health Board to provide or to secure the provision of a service, the Health Board may secure the provision of that service outside Scotland … For the purposes of securing the provision of any service referred to in subsection (1), a Health Board may make such arrangements for the provision of the service as they think fit (and may in particular make contractual arrangements with any person) … Anything done by a Health Board in pursuance of subsection (1) or (2) is to be regarded as done in exercise of functions of the Scottish Ministers conferred on the Health Board by an order under section 2(1)(a)”.


The annotations on the very helpful legislative website indicate that these sections originate in EEA treatment costs regulations. Clearly this impinges on responsibilities devolved to Scottish Ministers. As I said, the legislative consent Motion was passed by the Scottish Parliament.

My noble friend Lady Humphreys mentioned the Constitution Committee. Paragraph 13 of its report on the Bill states:

“We recommend that the Government sets out how it intends to manage overlapping competences in relation to this Bill and other policy areas”.


When the Minister replies, it would be very useful if she could give us some indication of how the UK Government intend to do that. Obviously there are areas—for example, a regulation specifying or describing evidential or administrative requirements or processes—that could have an impact on administrative processes within the responsibility of the Scottish Government or health boards in Scotland.

It is instructive that, when the Health and Sports Committee of the Scottish Parliament took evidence in relation to the legislative consent Motion from Mr Paul Gray, who was the director-general for health and social care and chief executive of NHS Scotland until he stood down this month, he said:

“The Scottish ministers and the UK Government agree that the bill impacts on the devolved function of health. As a result, it requires the consent of the Scottish Parliament. UK Government officials have indicated that the bill will be amended to recognise the responsibility of the devolved Administrations. The proposal is to introduce a requirement to consult the devolved Administrations and to agree a memorandum of understanding with them before regulations can be introduced that impact on devolved matters”.


Subsequently, in answer to questions, Mr Gray went on to say:

“As I said in my opening statement, UK Government officials have indicated that the bill will be amended to recognise the responsibility of the devolved Administrations. The particular point to which I would draw the committee’s attention is the requirement to consult devolved Administrations and agree a memorandum of understanding before regulations can be introduced that impact on devolved matters. The distance that I can go, based on what we have—and bearing in mind that these are proposals—is to say that the current proposal is that there is a requirement to consult the devolved Administrations before regulations can be introduced”.


That was evidence given by the then chief executive of the health service in Scotland to a Scottish parliamentary committee, undoubtedly based on good faith from discussions he had had with officials at UK government level. This amendment seeks to give some substance to what would appear to have been agreed at official level, and I hope that the Minister feels able to accept it.

--- Later in debate ---

[Baroness Blackwood of North Oxford]

Part of the reason that this amendment has come at this stage is because it has been part of a negotiation, and we wanted to have agreement with the devolved Administrations to ensure that it was in a manner which suited them. That is why it has been part of the process: because it was in agreement and in consultation, rather than us putting it in at the beginning and then consulting afterwards. I hope that as the result of that discussion and agreement, I have reassured—

[Lord Wallace of Tankerness]

I acknowledge that the Minister said that an amendment will be brought forward. That is very welcome. Is there anything technically defective with Amendment 42 and is she going to accept it?

[Baroness Blackwood of North Oxford]

We need to bring forward the clause which we have agreed with the devolved Administrations. It is appropriate to do that but I thank the noble and learned Lord for his intervention and, on that basis, I hope that the noble Baroness will feel free to withdraw her amendment.