My Lords, first, I welcome the Minister. I will not add to her burdens by trying to find another metaphor for the difficult position she is in. We have had poisoned chalices and hand grenades, but I am sure she would be more than capable of dealing with all that. I am sure she will already have picked up some of the deep frustrations in the Committee about the position we find ourselves in—having to deal with legislation that is, frankly, rather surreal. We are trying to deal with the worst possible scenarios just in time, just in case we should need to be as draconian as necessary in the most extreme emergency situations. We are focusing on the exercise of powers that may never need to be used but which we may have to reach for in the most ghastly circumstances—so we are over a barrel. This is an essential Bill. We have to protect UK citizens from the worst that could happen to them, having sadly neglected to do what we could have done at the very beginning of this two-year process and given them assurances and the sort of security—as we would have been expected to be able to offer EU citizens in this country—that many in this House tried to achieve.
My speech in support of the amendment moved by my noble friend will be much shorter, because I can do hardly anything other than compliment the noble and learned Lord, Lord Judge, on his most forensic and splendid interpretation of what the Delegated Powers and Regulatory Reform Committee said, and my colleague on that committee, the noble Lord, Lord Lisvane. The one thing on which I might take issue with him is that in that committee we have not, in fact, become habituated
to the ways in which government departments always try to take more power. We are not naive but we deeply resent the ways in which government departments have tried to accumulate powers over the past few years and to sneak it under our noses.
Coming down the track we have Bills—the noble Lord, Lord Lisvane, has already referred to them—with swathes of inappropriate delegation cultivated by civil servants and Ministers, for whom, frankly, this is Christmas. They have wanted to acquire these sorts of powers for years and have tried on many different occasions. They have been stopped in Bill after Bill and sent back. But now they have the power of post-Brexit uncertainty to aid them. It is extremely difficult to know where our vocabulary might lead us next. It is a fabulous opportunity, because for years they have chafed against the boring predictability of our scrutiny committees telling them to go away and think again. They come back with excuses about urgency, technicalities and flexibilities, yet when we expose these for what they are, they tend to try to do it again in another form.
One of the most disappointing things is that this was our second report; our first was blunt enough. We thought that between November and now the department and Ministers would respond more sensitively—perhaps more in the spirit of the European Union (Withdrawal) Bill, with our agonised discussions over the fine-tuning of appropriateness and necessity—but we received not a word; not a blink. I am sad to say that what the department came back with—I know the Minister was not responsible—was another 43 paragraphs about all manner of explanations, most of which were not relevant. They did not address the fundamental question that the Committee is raising this afternoon: why are these powers necessary? What is it that only these powers will be able to achieve? The Minister was very flattering to the scrutiny committees at Second Reading; she called our powers “forensic”. There is nothing that needs forensic scrutiny here. You could take a spade to this Bill; it is that blunt.
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We drew attention to the absence of limits on who could be funded worldwide; to the types of healthcare; and to the amount of healthcare funded. As has been said, just as unconditional are the powers to confer functions on, and delegate functions to, anyone, anywhere, anytime, and the regulations to amend or repeal any Act of Parliament ever passed for the purpose of conferring these functions—all done by the negative procedure. This is eye-watering stuff.
We looked for a response which would be commensurate with our deep anxiety about what this Bill represented, coming as it did after other equally vague Bills, although not quite in this class—even the Agriculture Bill had something to recommend it. Instead, we got 43 further paragraphs with arguments for more flexibility, greater clarity and forward-facing powers. This is empty rhetoric with no justifications for the powers themselves. The arguments bear all the hallmarks of a government department that is trying to get itself off the hook.
What, for example, will be the nature of the reciprocal arrangements that might demand no conditions be attached to funding, purpose or client? What primary legislation might need to be amended in future? How wide is that scope? If this is so vital, and if such flexibility is required, surely the first place the Minister should come to is Parliament to explain what it might involve. Of course there is uncertainty on a scale we have never had to deal with before, but why not wait for greater clarity and certainty, when the powers that are necessary can be legitimised and used effectively and transparently? That is the case that the DPRRC’s report makes.
We were told by the noble Lord, Lord O’Shaughnessy, at Second Reading that,
“as we become an independent trading nation once again, we want to be able to enter into similar arrangements with our trading partners … and … make the most of the opportunities … to strike new, more sophisticated deals with our trading partners”.
That is about the clearest statement we have had. My noble friend has raised the issue of American healthcare insurance arrangements and the hole that would be blown through the protections that we absolutely must have for our NHS. If this is indeed the case, why the panic now? Why put it into a Bill of this kind in this way? Why the risk? The Government must be afraid of something that they are not telling us about. As the noble Lord, Lord O’Shaughnessy, went on to say,
“with our new-found freedoms it is likely that we will want to consider additional, yet to be anticipated approaches”.—[Official Report, 5/2/19; cols. 1450-51.]
I am sure he will have shared those ambitions with the Minister, and perhaps she can tell us what these unanticipated approaches might be, what they will be for, to whom and at what cost. How is it that only the extraordinary powers taken in this Bill will secure them?
Both Ministers acknowledge that the reach and scope of these powers give rise to concern, but they blithely say that there is nothing for us to worry about because it will all be contained in treaty arrangements. That is not good enough: it is not persuasive enough for this Parliament or for the Welsh Assembly. It does not deal with the gift of these powers, in this clause, in this way, for these purposes, on this scale.
This may be something of a side issue in the great Brexit scandal, but for all the reasons that the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lisvane, have set out, these are—one does not want or need to use inflated language—massive and significant constitutional issues. This is a Bill under which a red line should be drawn. I believe that, as the noble and learned Lord has said, under normal circumstances we would not be entertaining such a Bill. I do not think we should entertain either Clause 1 or Clause 2, and I shall certainly support amendments to remove them from the Bill.