The House of Lords Constitution Committee recently issued a report on the Healthcare (International Arrangements) Bill. The Bill amounts to an excellent, if alarming, case study on constitutional implications of legislating for a blind Brexit — blind in the sense that it remains unclear whether the UK will leave the EU on 29 March 2019 or at some later date or at all; unclear whether, if the UK does leave, it will leave on agreed terms or with no deal; and unclear, if it does leave on agreed terms, what those terms will actually be.
The background to the Bill lies in the fact that at present, Member States of the European Union participate in its reciprocal healthcare framework (along with Norway, Iceland and Liechtenstein, as members of the European Economic Area, and Switzerland, as a member of the European Free Trade Area). As a result, UK citizens, for as long as the UK remains an EU Member State, can access healthcare in other participating countries, while citizens of other participating countries can access healthcare in the UK. Under the terms of the Draft Withdrawal Agreement, the UK would continue to participate in the reciprocal healthcare framework during the transitional period, i.e. until the end of December 2020. However, whether the UK will leave the EU on those terms remains to be seen.
Legislating behind such a veil of ignorance makes inevitable the conferral of extensive delegated powers, to be exercised expeditiously when (if) the fog begins to clear. This point is clearly illustrated by the Healthcare Bill, which in turn is emblematic of the general approach — also exemplified by the Agriculture Bill — that is being taken as legislation is enacted in anticipation of Brexit. The Healthcare Bill runs only to handful of clauses, the first two being key. Clause 1 empowers the Secretary of State to ‘make payments, and arrange for payments to be made, in respect of the cost of healthcare provided outside the United Kingdom’. Meanwhile, clause 2 authorises the Secretary of State to make regulations in relation to the exercise of the power granted by clause 1, for and in connection with the provision of healthcare outside the United Kingdom, and for the purpose of giving effect to healthcare agreements.
As the Delegated Powers and Regulatory Reform Committee (DPRRC) puts it in its first report on this Bill (a second has now been published), ‘Clause 2 has a breath-taking scope. Indeed, the scope of the regulations [capable of being made under clause 2] could hardly be wider.’ The Lords Constitution Committee, meanwhile, observes that:
The powers in the Bill are not limited in the amount of payments that might be made, the countries to which payments might be made or the types of healthcare that might be funded. Regulations may confer functions on, or delegate functions to, anyone anywhere, and may amend or repeal any Act of Parliament for the purposes of conferring functions on people or giving effect to a healthcare agreement.
The Constitution Committee goes on to consider the Government’s justification for these powers, as set out in its Delegated Powers Memorandum on the Healthcare Bill. In that Memorandum, the Government asserts that the powers are
necessary to enable the Secretary of State to respond appropriately after EU exit. The powers enable the Secretary of State to make provision to fund or for and in connection with the provision of healthcare outside the UK, pending or, in addition to, new reciprocal healthcare agreements being put in place should this be desirable as part of future Government reciprocal healthcare policy. While the powers in the Bill are broad the subject matter to which they relate is narrow; they can only be used to arrange for provision of and payments relating to healthcare access abroad and to give effect to healthcare agreements. This remit is contained.
However, as the Constitution Committee observes, although the ‘subject matter of the Bill may be narrow’, ‘the application of its provisions is not’. In particular, the Committee points out that the Bill ‘goes beyond providing the powers necessary to enable the Government to respond to the effect of Brexit on reciprocal healthcare arrangements: it allows for the creation of new policy relating to healthcare agreements with countries outside of the EU’. Nor is this Bill framed as a temporary, stop-gap measure that is intended to tide things over while uncertainty prevails: thus the delegated powers granted by the Bill are not, in contrast to those conferred by the European Union (Withdrawal) Act 2018 (EUWA) limited by any sunset clause. The Constitution Committee concludes this part of its report with the following recommendation, the significance of which extends beyond the Healthcare Bill itself:
While the exceptional circumstances of the UK’s departure from the European Union might justify legislation containing broader powers than would otherwise be constitutionally acceptable, this does not extend to giving effect to new policy unrelated to Brexit. The Bill should be limited to the making of arrangements for future reciprocal healthcare arrangements with countries that participate in the existing European Health Insurance Card scheme. We also recommend that the broad powers in the Bill are subject to a sunset clause, so that Parliament can scrutinise the detail of the policy in future primary legislation.
Amending retained EU law
Among the extensive powers conferred by the Healthcare Bill are Henry VIII powers that can be used to amend, repeal or revoke primary legislation. At the same time, such powers can be used to amend, repeal or revoke retained EU law. However, while the affirmative procedure must be used in respect of regulations that bite upon primary legislation, only the negative procedure — and thus a significantly lower level of parliamentary scrutiny — is applicable to regulations that bite upon retained EU law.
This scheme does not sit comfortably with that which is found in the EUWA. In particular, that Act distinguishes between ‘retained direct principal EU legislation’ and ‘retained direct minor EU legislation’. As the Constitution Committee explains in its report, ‘One of the purposes of drawing this distinction was to make it possible for subsequent Acts of Parliament’ — such as the present Bill — ‘to afford greater protection to retained direct principal legislation, such as by requiring delegated powers that amend it to be subject to the affirmative procedure’. Given this groundwork that was laid only last year in the EUWA, it is disappointing to find the Government introducing Bills that make no reference to the distinction between principal and minor retained EU legislation. The Committee points out that the same issue arose in respect of the Trade Bill, in which context the Government accepted the Committee’s criticism. Against that background, the Committee recommends that the Healthcare Bill ‘be amended to reflect the distinction drawn in the European Union (Withdrawal) Act 2018 between principal and minor retained direct EU legislation’, with the affirmative procedure applicable to regulations that amend, repeal or revoke retained principal EU legislation.
The Committee also recommends that ‘all future bills that provide for the amendment or repeal of retained EU law include the distinction between principal and minor retained direct EU legislation’. More generally, the Committee identifies a broader concern — namely, that ‘this Bill, as with other Brexit-related bills, provides for elements of retained EU law to be amended by new powers which are not subject to the scrutiny safeguards set out in the European Union (Withdrawal) Act 2018, the operation of which were the result of careful and detailed consideration’. It concludes that: ‘The House may wish to consider whether the powers to amend retained EU law in this Bill should be subject to the same scrutiny procedures as those in the European Union (Withdrawal) Act.’
The Sewel convention
The Healthcare Bill also implicates a matter relating to the territorial constitution and, in doing so, highlights an issue that is affecting other Brexit-related UK legislation too. Indeed, a useful starting-point is supplied by the Agriculture Bill, to which the Scottish Government has so far declined to recommend legislative consent. In its Legislative Consent Memorandum on the Agriculture Bill, the Scottish Government identifies particular aspects of the Bill that, in its view, engage devolved competence. However, more generally, it indicates that it is, in general, disinclined on principle to recommend consent to Brexit-related Bills, independently of the merits of the individual Bill. This stance has been adopted by the Scottish Government in the aftermath of the Miller case and the subsequent enactment of the EUWA without Scottish legislative consent:
[F]ollowing events on the European Union (Withdrawal) Bill the Scottish Government does not believe it should currently seek consent from the Scottish Parliament to UK legislation related to withdrawal from the EU. During the passage of that Bill, the UK Government sought consent from the Scottish Parliament, in line with the Sewel Convention. The Scottish Parliament voted overwhelmingly (by 93 votes to 30) to refuse consent. The UK Government then decided, for the first time since devolution, to continue with the Bill and legislate for matters within or affecting the responsibilities of the Scottish Parliament without its agreement.
The Scottish Government goes on to say that the UK Government has ‘made clear that it is prepared to proceed with any future legislation relating to the UK’s withdrawal from the EU without the consent of the Scottish Parliament’ and that, in this way, London ‘has effectively suspended the established legislative consent process in relation to legislation relating to EU withdrawal’. That the UK Government is perceived to have ‘effectively suspended’ the Sewel convention in respect of Brexit-related legislation is an arresting development, to say the least. Whether or not, by saying this, the Scottish Government overstates its case may be open to debate; but the very fact that it has expressed this view is testament to the nadir that intergovernmental relations have reached thanks in no small part to the pressure that Brexit is exerting upon the UK’s already fragile territorial constitution. So too is the highly unusual step that the UK Government has taken in respect of the Agriculture Bill by publishing a self-proclaimed ‘Scotland myth-buster’, in which it asserts that ‘[c]laims [by the Scottish Government] of [a] “power grab” are completely false and misleading’.
The Healthcare Bill has played out differently with respect to Scotland. In its legislative consent memorandum on the Bill, the Scottish Government reiterates its view that it ‘does not believe it should currently seek consent to provisions in UK legislation related to withdrawal from the EU except in exceptional circumstances’. But it concludes that consent should be granted on the ground that the importance of the Bill gives rise to ‘exceptional circumstances’ justifying departure from the norm of withholding consent. In contrast, although the Welsh Government, unlike its Scottish counterpart, has no general policy of withholding consent in respect of Brexit-related Bills, it has declined to recommend legislative consent as regards the Healthcare Bill. In its legislative consent memorandum, the Welsh Government notes that while ‘there are benefits to having a UK-wide approach, 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’.
Vaughan Gething AM, the Welsh Minister for Health and Social Services, has expressed particular concern about clause 2, because it ‘doesn’t require consultation or consent from Ministers in devolved administrations’. He goes on to draw attention to the constitutional dangers inherent in the UK Government pressing ahead in the absence of consent: ‘Parliament is sovereign in terms of the current UK constitution, but actually there is a political consequence to simply overriding the wishes of directly elected representatives here and in other UK nations.’ The Constitutional and Legislative Affairs Committee of the National Assembly for Wales has expressed similar concerns:
We share the concern of the Minister that the Welsh Government was only made aware of the Bill just before its introduction to the UK Parliament. At a time of such constitutional upheaval as a result of the UK’s withdrawal from the European Union, the need for governments to work together in a spirit of trust and co-operation is paramount. The UK Government’s approach in relation to this Bill is therefore unhelpful. It reinforces the concerns raised in our report [on] UK governance post-Brexit, which identifies changes and improvements that we believe are necessary to the way governments work together in the future.
Viewing the territorial constitution—or any aspect of the constitution—exclusively through the prism of Brexit is liable to give a misleading, or at least a partial, impression. That is so not least because of the extraordinarily unusual set of circumstances that Brexit represents, and the unique pressures that it therefore brings to bear on the UK’s constitutional arrangements. At the same time, however, it would be mistaken to presuppose that the sort of constitutional issues highlighted by the Healthcare Bill are hermetically confined to the context of the UK’s departure from the EU. Such a Brexit-exceptionalist analysis would risk underestimating the potential longer term significance of the constitutional matters on which exit from the EU shines such a penetrating light.
The accretion of executive, at the expense of parliamentary, law-making power and the potential fragility of the territorial constitution in the face of a high-handed approach by UK institutions are ubiquitous issues that transcend the particular context of Brexit. It would thus be recklessly complacent to assume that the constitutional impact of legislation such as the Healthcare Bill will be confined to the Brexit context in which it is being enacted. On the contrary, the risk arises that such Brexit-related legislation will be relied upon by future governments as precedent for sweeping executive powers, while the UK Government’s insensitivity to the territorial constitutional settlement and its correspondingly imperious approach to intergovernmental relations will likely reverberate for a considerable time to come. None of this, of course, is to suggest that a single piece of legislation such as the Healthcare Bill is capable of precipitating a constitutional crisis. Nor is it to suggest that such a crisis necessarily lies in store thanks to the constitutional difficulties created and underlined by Brexit. But the Healthcare Bill—along with other Brexit-related legislation—does serve to illuminate a set of underlying issues concerning the balance of powers under the UK constitution. And while those issues self-evidently long predate Brexit, it is very likely that our understanding of them in the future will be informed, at least to some extent, both by the Brexit process generally and by the legislation that it has precipitated.
The author is a legal advisor to the House of Lords Constitution Committtee. This post, however, is written purely in his personal capacity.