Healthcare (International Arrangements) Bill

Committee (2nd Day)

Clause 5: Regulations and directions

Amendment 26

26: Clause 5, page 3, line 36, leave out paragraph (e)

My Lords, the amendments in this group concern the Henry VIII powers in the Bill. Without going into the details of the drafting of my amendments, because they hang together, I make one central point. It is my contention that, given the breadth of the powers as they currently appear in the Bill, the only Henry VIII powers enabling the Secretary of State to make regulations amending, repealing or revoking primary legislation or EU retained law should be those that are limited to consequential, supplementary, incidental, transitional, transitory or saving provisions. That is quite a wide category for these powers in any case. If when the Bill comes back on Report the Government have changed their position, and the Henry VIII powers in the Bill are limited to those which they can justify in accordance with what I might call a conventional approach to permitting secondary legislation to amend, revoke or modify limited categories of primary legislation, we may change our position.

For the moment, however, we stand by the position taken by the Delegated Powers Committee, which described the Henry VIII powers in the Bill in trenchant terms:

“The Bill contains a Henry VIII power to amend or repeal any Act of Parliament ever passed”.

The power may be used for the purposes in Clause 5(3), but those powers are no narrower than the purposes of the Bill as a whole:

“Regulations under section 2 may amend, repeal or revoke primary legislation (a) for the purpose of conferring functions on the Secretary of State or on any other person (including conferring a discretion); (b) to give effect to a healthcare agreement”.

These purposes are scarcely narrower, and to describe them as limiting is to misuse the English language. The committee pointed out that the Minister does not give any indication of what primary legislation might in future need to be amended. She said that there may be a need to confer functions on healthcare bodies at some stage in future, to which the committee’s robust and, I suggest, accurate response was that the time to confer functions on such bodies is when those bodies are created.

I agree with the point made by the Delegated Powers Committee and often made in this House that, if a power is too wide and its delegation is inappropriate, those fundamental defects cannot be cured by making them subject to the affirmative rather than the negative procedure. If they should not be there, they should not be there, and packing them up in an affirmative procedure box does not make them more acceptable.

In other contexts, the noble Baroness has shown herself to be sensitive to the distinction between primary and secondary legislation. Only yesterday, in answer to the suggestion from the noble Baroness, Lady Deech, that regulatory change might be appropriate to alter the 10-year limit for the storage of frozen eggs under the Human Fertilisation and Embryology Act 1990, she said that she did not agree,

“that the regulatory route … would be appropriate, as it was not envisaged at the time of the legislation”.

She went on to say that,

“given that this is such sensitive legislation”,

the Government and she,

“believe that continuing with primary legislation is appropriate”.—[Official Report, 20/2/19; col. 2265.]

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.

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.

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.

Hear, hear!