Chris Whitehouse: The Medicines and Medical Devices Bill faces challenges with the Lords. Ministers must prepare now.

3 Aug

Chris Whitehouse leads the team at his public affairs agency, The Whitehouse Consultancy.

Matt Hancock and Jo Churchill may have seen their Medicines and Medical Devices Bill sail serenely and swiftly through the Commons, but it’s heading for choppier waters in the House of Lords when it returns from its summer recess.

It’s not that their Lordships oppose the Bill in principle. After all, it’s a relatively simple and necessary measure to repatriate powers to the United Kingdom, post-Brexit, to regulate the safety and licensing of human and veterinary drugs and devices.

But, their Lordships have sniffed below that beguiling surface a constitutional truffle of the kind their House loves to expose, and they seem determined to dig it out and have their day with it.

That constitutional truffle is not that this Bill is, as Labour sought to portray the Trade Bill in the Commons, an attempt to bring in American companies to take over the NHS, nor is it that it would put patients at risk by cutting costs or lowering standards.

No, while those themes will no doubt be aired, the real issue of fundamental concern is the sheer all-encompassing sweep of the powers that it gives to ministers and the authorities that answer to them.

The current Bill is 46 pages long, so can be as daunting as many Government Bills when read for the first time. But, in reality, it divides into three substantive parts each only a few clauses long: Medicines, Veterinary Medicines and Medical Devices, and each of those parts is significantly repetitive.

Arguably there is only one section, Section 1, in each part that does much of any substance legally, and that is to grant to the minister and the authorities the power to make regulations on, broadly speaking, any matters they wish affecting medicines development, safety and marketing.

One could commend the open and transparent simplicity of this approach in giving the minister future-proof flexibility to evolve regulations to secure the UK’s position as a world leader in medicines and medical technology.

Unfortunately, our truffle hunters in the Lords don’t see it that way. Indeed, the Lords Constitution Committee has recently been excoriating in its analysis of the measure; as has the Delegated Powers and Regulatory Reform Committee – both Committees being scathing of what they consider the unnecessary and unjustified use of a “skeleton bill”.

Mutterings of “Henry VIII” powers are to be heard in the corridors of the upper House – or at least in their Zoom chats and WhatsApp groups – such powers being ones given to Government by Parliament to make up new laws, as it goes along without the need for future parliamentary consent.

There is talk of “sunset clauses” being introduced so that even if Parliament consents to give ministers such powers, the lawfulness of exercising that power could be time-limited and a renewal of parliamentary consent must be obtained to go beyond the expiry date.

And there is a warning, being gently sounded in ministerial ears at this stage, that the generous scope of the Bill and its very simplicity almost invites further amendments of the kind we saw in relation to the Telecommunications Infrastructure Bill – introducing a human rights threshold as part of the campaign to block on security grounds the greater involvement of Huawei in Britain’s telecoms networks.

Tacking amendments are on the agenda not just for the Medicines and Medical Devices Bill, but also for the Trade Bill, and ministers need to be alert to this, to understand that their Lordships have genuine and serious concerns, and are not as easily whipped as the Commons.

If the Government sees it fit to give itself capacity to create new regulations on a very extensive list of subjects, why shouldn’t the Lords simply add a few more permissive powers to that list?

Whether it’s the introduction of a human rights test into trade agreements, or further regulation of the trade in human organs harvested from the Falun Gong in China; the use of Uighur slave labour and the incarceration of an entire ethnic community in concentration camps, or the clamp down on democracy in Hong Kong; the excesses of kleptocrats in Russia, or religious persecution around the world; there are many Lords sensing that as the political seizure of Covid-19 passes, Government should no longer be allowed to take the passage of legislation for granted.

There’s also concern that the long-awaited Cumberlege review on medicines and medical device safety risks being swept under the carpets of the corridors of power, and that lessons from vaginal mesh use and the harmful effects of Primados for pregnancy-testing risk not being learned. Their Lordships are revolting, and are preparing to flex their ermine-clad legislative muscles in all these regards.

If I were Gerry Grimstone, charged with taking the Trade Bill through its Lords stages, or James Bethell piloting the Medicines and Medical Devices Bill, I would be using the opportunity afforded by the summer recess to look for compromises, to identify which amendments they can in practice accept that would not wreck their Bills and would so allow them a somewhat smoother passage than they might otherwise receive.

In particular, there is a gathering squall behind one on human organ farming from China; one to which ministers, in the current climate, would be well advised to respond with as much sympathy as they can muster.

If ministers choose not to heed such advice, then they will simply store up for later in the session that task currently being undertaken by Diana Barran in seeking to find a human rights threshold for Government itself to introduce into the Telecommunications Bill prior to its delayed third reading – after the pincer movement by Iain Duncan Smith in the Commons and a plethora of pesky Peers in the Lords made it clear that they will have such an amendment if the Government is to have its Bill.

With so much important legislation now before the House of Lords, and with NHS and social care reform coming early in 2021, Government ministers need to identify the real fights, and to allow the Lords to pursue its own issues; for despite the recent nomination of 36 new peers, there’s no Conservative majority in the Lords!