My Lords, this should be Brexit legislation. If it were, in accordance with the withdrawal agreement, subject to minor changes, the established arrangements for healthcare between the United Kingdom and the European Union would continue during the transitional period until December 2020, 21 months after exit day, which is where the suggestion for a two-year sunset provision obtained.
Without the withdrawal agreement, those arrangements would collapse next month, so appropriate provision is undoubtedly needed. I have no difficulty with legislation that makes provision against the potential consequences of such a collapse, which would be awful. The objective—to cure that problem—is laudable. Nevertheless, I have put my name to something that, as my noble friend Lord Patel said a few moments ago, if carried through would be wrecking. In fairness to the Committee, I must explain this apparent inconsistency.
I sometimes overhear my grandchildren when they do not think I can hear them, saying that Grandpa is banging on about things. Noble Lords have listened to me with great patience banging on about these issues: constitutionally flawed legislation, skeleton Bills, rule by regulation and Henry VIII clauses. I have grumbled and griped, and will go on grumbling and griping about legislation of this kind, because it simply reinforces the steady erosion—indeed, the systematic corrosion—of the arrangements for parliamentary control and scrutiny of the exercise of executive power. Every time Parliament enacts legislation in this way, including today, we are complicit in the accretion of power to the Executive.
Without parliamentary consent, it could not happen, so we have become habituated to these processes and should no longer continue to be.
My concern is not with Brexit or no Brexit, or with deal or no deal. I recognise that at the moment it is hard to conceive of the possibility that there is anything more important to the future of the country than Brexit, but there is. Hard as it is for us to face the fact now, with time all the turbulence surrounding Brexit will inevitably settle down and abate. When it does, the need for proper constitutional arrangements which provide reasonable constraints on executive power will be an abiding issue and, unless we protest now, as I am protesting, it will come to be assumed that legislation framed in the way this Bill is framed will be entirely acceptable constitutionally, when constitutionally it is dangerously flawed.
The way in which this legislation extends way beyond our departure from the EU has been discussed and analysed by the noble Baroness, Lady Thornton, and I agree with her. But may I be forgiven for underlining the longer-term issues? As has already been recorded—it bears repetition—the Delegated Powers and Regulatory Reform Committee observed that the provisions in Clause 2 had “a breath-taking scope”. Can we just contemplate those words? That is a startling description but, having read the Bill, I do not see how that description is anything other than honest, balanced and realistic.
As my noble friend Lord Patel has pointed out, the amount of payments which may be made to achieve the statutory objectives in the regulations is unlimited. The power to describe those in respect of whom payments may be made is wholly unconstrained. As the committee observes, it could provide funding for healthcare for anyone, anywhere in the world; for holidaymakers in the Galapagos or Guadeloupe, countries far away from the EU, and not places to which men and women on universal credit can afford to go.
The power is unconstrained in relation to the type of healthcare which may be funded. On one reading of it—certainly I read it this way—it would allow the Minister to make payments abroad for treatment which would not be available under the National Health Service here in England. As my noble friend Lord Patel recently underlined—the amendment to which he referred dealt with this—the functions to achieve wide objectives can be delegated and exercised by anyone, anywhere in the world, and the powers and the discretions can be conferred by the Minister on whomsoever the Minister chooses. Clause 2 alone has nine regulation-making powers of, to adopt the committee’s observation again, “the widest possible scope”. But even that, apparently, is not enough. This list is incomplete. The Bill expressly provides that even those nine regulation-making powers are merely, to use the word in the text of the Bill, “examples”. Sadly, and almost unbelievably, without further primary legislation, ample scope exists in the regulations for regulations to create yet further regulations, presumably to cover something that might arise in the imagination of the then Secretary of State some years—however many it may be—down the line.
This is all before we get anywhere near Clause 5, which is a power, among other things, to dispense with primary legislation, overlooking the fact that King James II was chucked out of the country because he sought a dispensing and suspending power. That was the whole basis of the Bill of Rights. The clause resurrects that ogre, Henry VIII, in subsection (4), without recognising the distinction expressly made in the European Union (Withdrawal) Act 2018 between principal and minor retained direct EU legislation. It overlooks or ignores the careful scrutiny procedures for which provision was made in the withdrawal Act itself.
A late Victorian, or maybe Edwardian, professor of history described Henry VIII as “the mighty lord who broke the bonds of Rome”, but even Henry VIII was compelled to do it through express, primary legislation enacted in the Reformation Parliament. On one view, it may be a misdescription to call this a Henry VIII clause. Bearing in mind that it applies to both UK and EU primary legislation, perhaps in this context it is a Henry XVI clause.
This is serious. I will provide the context to the use by the Delegated Legislation Committee of the word “breath-taking”; it did not conjure this out of the blue. I could go right through that context, but it would take me too long and noble Lords would not be interested. Just before this Bill, the committee had examined the Agriculture Bill. That Bill was mainly about regulation-making powers, vesting powers in the Executive. The committee expressed its “dismay” at those proposals. It underlined how parliamentary scrutiny was “minimised” and deplored Bills relating to our exit from the EU which were being put together in this fashion. Well, our Bill, suffering from all the flaws to which the committee had just referred, was introduced into the House of Commons nine days later. Unsurprisingly, the earlier “dismay” of the committee became its breath being taken away. What description comes next? Disgraceful? Shocking? What words are appropriate for a committee of this House to use about a government proposal which completely fails to attend to its own earlier reports?
In passing, I immediately recognise—and the dates will show—that none of these things happened on the Minister’s watch. At the Principality next week, in a somewhat different context, someone is going to be given a hospital pass. She has received a hospital pass here and I hope she realises that I am sorry that she personally has had to endure these criticisms of the Bill.
I am a member of the Constitution Committee, but I am speaking for myself. I merely underline that it is not just the Delegated Powers Committee that is critical of this way of legislating. The Constitution Committee is equally disturbed, as the noble Baroness, Lady Thornton, summarised a few minutes ago; I shall not go through it all. Noble Lords have to ask themselves what on earth the Executive think these committees actually do. What do they think that their point is? I assure the House that we do not sit around talking about cricket or rugby or anything else: we address these issues. I can speak only for mine, but I am absolutely sure that this is also true of the Delegated Powers Committee.
Both committees speak on a cross-party basis. I am about to break a most important confidence; I am going to say something about our discussions. In my four years on the Constitution Committee, I have not detected a single moment where any of the discussions saw a division arise even wide enough for a piece of paper to go through on party-political lines. These committees work to achieve the best that they can for the legislative process. The message from these committees about the dangers of statutory provisions that divert power by the misuse of regulation-making powers is a constant concern for both committees, as it is for the secondary legislation committee.
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Time after time the message to the Government is clear and unequivocal. Time after time, sometimes all together, one or other of the committees deplores the present approach to the legislative process. Yet the starting point, too often—and for this Bill in particular—is that the balanced views expressed by these committees, each of them working across party lines, are utterly ignored. Well, they are not quite ignored. From time to time the Government will say, as if they are offering us a most wonderful reward, “You can have an upgrade. It can be moved from a negative into the affirmative procedure”. We are supposed to be thrilled and beguiled by the idea that affirmative procedure represents the same or much the same as parliamentary scrutiny—but it does not. Even if you have the affirmative procedure, it is one look, one examination and no power to amend a single one of any of the regulations that are included.
The harsh reality is summarised in the fact that it is exactly 40 years since the other place rejected a statutory instrument—40 years. Commemorative stamps are printed for all sorts of occasions. Maybe we should have a commemorative stamp to remind us that the power of rejection exists, or perhaps, unless we wake up to the reality of what is going on, it would be a memorial to more glorious, happy days when scrutiny was properly undertaken.
Noble Lords have been very patient with me; I will try not to bang on any longer. If we had time and exit day was further away, I should propose that this Bill should be sent packing back to the Government to redraft it and produce a Bill that is constitutionally acceptable. That option is not open. The healthcare of our citizens in Europe, and EU citizens here, must continue and survive. I shall support the amendments proposed by the noble Baroness, Lady Thornton. This breath-takingly flawed Bill undoubtedly requires the further safeguard of a sunset clause. This would enable the Government the opportunity to rethink their legislation—instead of having it cast straight back on to the Minister’s desk—and come back to the House with fresh proposals before the end of March 2021, when there really should have been enough time to produce an acceptable Bill. Once the Brexit legislative crisis has diminished, Bills like this one should indeed be wrecked.