Clause 39
Health and Social Care Bill
1:15 pm
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I have known the saying for years. I have heard it many times, but I have never had the opportunity to use it. I thank the Committee for its indulgence.
To my mind, the provision is a Henry VIII power, which is when primary legislation is amended by statutory instrument. I hope that the Minister can help me, because the provision makes all of part 2 subject to a Henry VIII measure. We are concerning ourselves with primary legislation, so that means that it can all be amended by statutory instrument. My question might show my ignorance of procedure, but does the provision include the potential for repeal?
I am sure that the Minister is aware that Lord Justice Law suggested in 2002 in the Metric Martyrs case that it was unfair to attribute such powers to his late Majesty who reigned 100 years before the civil war and longer, yet before the establishment of parliamentary legislative supremacy. In today’s world, it would be interesting to know the thoughts of the Lords Constitution Committee on the clause. I do not know whether there has been an opportunity for informal or even formal consultation within the Government.
It would be helpful when considering the clause if the Minister could tell the Committee what newly regulated activities he envisages and what changes they might bring to the legislation, accepting that the clause is designed to catch the unforeseen. As an addendum, can he tell the Committee about the provenance of the list under subsection (3)? Given our discussions and those of the Liberal Democrats about not wanting to include in the past certain lists to give priority of identification, such a proposal suddenly seems to veer towards the Minister’s prescriptiveness. I question that as a matter of both consistency and precedent. Will he explain the provenance of the list as it might help us to understand why he has chosen that list, but not the list that we proposed?