Healthcare (International Arrangements) Bill (First sitting)
Tuesday 27th November 2018
(6 years ago)
Public Bill CommitteesRead Full debate Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 27 November 2018 - (27 Nov 2018)
The Chair
Before we begin, I have a few housekeeping notes. I ask hon. Members to switch their phones and other electronic devices to silent mode, and remind them that tea and coffee are not allowed during sittings. Today, we will first consider the programme motion on the amendment paper, then a motion to allow the reporting of written evidence for publication, and then a motion to allow us to deliberate in private about our questions before the oral evidence sessions. In view of the time available, I hope that we can deal with those matters formally, without debate. The programme motion was discussed yesterday by the Programming Sub-Committee for the Bill. Date Time Witness Tuesday 27 November Until no later than 10.25am Academy of Medical Royal Colleges; British Medical Association Tuesday 27 November Until no later than 10.55 am Association of British Insurers Tuesday 27 November Until no later than 11.25 am Kidney Care UK
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 27 November) meet—
(a) at 11.30 am and 2.00 pm on Thursday 29 November;
(b) at 9.25 am and 2.00 pm on Tuesday 4 December.
(2) the Committee shall hear oral evidence in accordance with the following Table:
(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 4 December. —(Stephen Hammond.)
The Chair
The deadline for amendments to be considered at the first line-by-line sitting of the Committee was Monday 26 November and therefore has passed. The deadline for amendments to be considered on the second day of line-by-line consideration of the Bill is the rise of the House on Thursday.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Stephen Hammond.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee Room.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Stephen Hammond.)
The Chair
Q
I remind hon. Members that questions should be limited to matters within the scope of the Bill, and that we must stick to the timings in the programme motion that the Committee agreed for this session. We have until 10.25 am. I hope, because the Minister has to be on his feet on the Floor of the House immediately after this, to cut a couple of minutes off the session to enable him to carry out his duties.
Are there any relevant interests to declare? No. Will the witnesses introduce themselves?
Mr Henderson: Thank you. I am Alastair Henderson, the chief executive of the Academy of Medical Royal Colleges, which is the umbrella body for all the different medical royal colleges and faculties in the UK and Ireland. We represent the range of specialties, particularly on training, education and standards matters.
Raj Jethwa: I am Raj Jethwa, director of policy at the British Medical Association, which is the trade union and professional association for doctors in the UK.
The Minister for Health (Stephen Hammond)
Q
Mr Henderson: Yes, certainly. I think that the feeling of clinicians and health organisations, and also of patients, is that the current regulations work well because they are simple, well understood, easy to operate and pretty well universal in their coverage. We have a good system at the moment that is effective and easy to operate, and going forward we are looking for something that repeats or replicates that as closely as possible.
Stephen Hammond
Q
Mr Henderson: Yes, I do; we are pleased to see that. I suppose our position is that, overall, the best and easiest thing would probably be for reciprocal healthcare agreements to be covered in an overall agreement. That seems to me to be the best thing. If we are not in the position of having an overall agreement, the Bill, which puts in these complementary arrangements, seems to be exactly the right thing. We are very supportive of it and are pleased to see that there.
Stephen Hammond
Q
Mr Henderson: In terms of the overall cost, that may well be the position. It is not known what the arrangements for cost recovery would be. Both clinicians and health organisations are concerned that we could end up with a system that is both administration-intensive and time-intensive. If all people in this country from the European Union or European economic area have to be charged, what would be the implications for NHS organisations and clinicians?
It is important to say that doctors have had a consistent anxiety about becoming involved in being responsible for either immigration rules or charging rules, which would potentially have a quite adverse effect on the doctor-patient relationship. I think it is really important that whatever arrangements come in are as seamless and as simple as possible, so that they do not take people away from clinical duties or get in the way of delivering care.
Stephen Hammond
Q
Mr Jethwa, good morning. I noticed in your written brief that the BMA stated that the Government should undertake every effort to retain the current model of reciprocal healthcare. My first question is the same as that to Mr Henderson: can you state why you think the current system works so well?
Raj Jethwa: For exactly the same reasons my colleague sets out: the arrangements are wide-ranging, secure and simple. They give security and clarity and are well established. Our view is that the best possible arrangement is for those arrangements to continue. If they cannot, the arrangements that come in their place should mirror them as far as possible.
Stephen Hammond
Q
Raj Jethwa: We largely welcome the Bill for exactly the intention behind it, but because the detail in it is limited we have some concerns about exactly the clarity going forward that the Bill allows for. We support the broad intentions behind the Bill, but we would like to see more detail about exactly how the arrangements will operate in practice, particularly the scrutiny arrangements to ensure there is clarity and transparency in what the arrangements negotiated and facilitated through the Bill would look like.
Stephen Hammond
Q
Raj Jethwa: No, I beg your pardon. We do have concerns about security, but I meant clarity, from the perspective of patients understanding and being secure in themselves about what the arrangements would mean.
Justin Madders (Ellesmere Port and Neston) (Lab)
Q
Mr Henderson: I do not pretend to be an expert on the cost recovery system. I think our members would be very clear that they believe the primary effectiveness of the current arrangements is about providing effective healthcare for citizens across the EU. As clinicians, that is their primary responsibility.
On the recovery of costs, not just in this area but for other areas where recoverable costs were brought in more recently, there are always questions about the amount of effort and return in the whole system. I am not at all opposed to the idea of recovery of costs, but I am not sure we have yet found a hugely simple and easy way of recovering any costs really. I would happily support that, but it seems to us that this works as a system on its most important requirement, which is providing quick, clear and safe healthcare for people.
Justin Madders
Q
Mr Henderson: It is not a hugely attractive prospect, is it, 32 different settings, for those presumably trying to agree the arrangements? In practical terms, the idea that if you are a GP or a hospital doctor trying to work out whether there are different arrangements for 32 different lots of patients sounds pretty much like a nightmare set-up. What clinicians on the ground want is a clear and simple system—ideally a single system—that will cover all the people they are seeing.
Justin Madders
Q
Raj Jethwa: We have done some work on that.
Justin Madders
Would you like to say what you are doing?
Raj Jethwa: Our concern about the situation there is primarily based on the fact that there are some very effective cross-border agreements which have facilitated healthcare over the last two or three decades, particularly through co-operation and working together as a programme. That is only one aspect of it. Given the population demands on the whole island of Ireland, both in the Republic of Ireland and Northern Ireland, there have been some fantastic examples of where clinicians have either co-located services in a particular trust or facility where there is not the demand from the local population to warrant it, or travelled across the border to work on different sites. Those two facets together have meant that there have been some great examples of cross-border co-operation. One of our concerns is that those arrangements remain in place in the future.
Justin Madders
Q
Raj Jethwa: That is something that we can write to the Committee about afterwards. We have been talking to our members about this situation. Our anticipation—our hope—is that an arrangement will remain in place whereby that work can continue.
Justin Madders
Q
Raj Jethwa: We are familiar with the research that the Nuffield Trust has done on this, as most people are. Our members are very cognisant of this. I know the Committee will be familiar with the figure of approximately 190,000 UK pensioners who may require access to healthcare facilities in the future if the S1 arrangements do not remain in place. We have concerns about that. In particular, if the arrangements do not remain in place in the future, those people may need to access healthcare facilities back in the United Kingdom. That would be a concern in terms of doctor and clinician numbers and beds, and the tight financial resources that the NHS has to work under at the moment.
Julie Cooper (Burnley) (Lab)
Q
Mr Henderson: As Raj says, this is an enabling Bill, so it is slightly hard to say whether there is sufficient protection there or not. Clearly, it is a hugely important issue that needs to be fully addressed. Equally, we would say very strongly that, while individual patients’ data must be protected, the free flow of data and exchange of information are absolutely crucial. We should never forget that side of the equation: properly and safely sharing anonymised data for research purposes, clinical trials and so on is crucial. While it is absolutely essential that we ensure that personal data is protected, I would put more emphasis on that other side, which is ensuring that we continue to share and benefit from the exchange of anonymised data for purposes that benefit the health service and research.
Julie Cooper
Q
Raj Jethwa: It is important that an agreement can allow a seamless operation, but there are some well-established ethical principles and safeguards in relation to this. First, it has to be relevant data and it has to be accessed on a need-to-know basis, and only when it is in line with patients’ expectations. Data sharing has to be transparent. We would be absolutely concerned that any safeguards meet those criteria and principles. I do not think the details in the Bill make that clear at the moment. We would like to see more clarity and detail about that in future.
Maggie Throup (Erewash) (Con)
Q
Raj Jethwa: We would like to see much more emphasis on scrutiny of all the discussions in the arrangements going forward. There are some negative procedures—I think that is the term. Given the weight of the issue and the number of people that could be affected by it—I have mentioned the 190,000 UK pensioners who live abroad at the moment, but there are close to 3 million people from the European Union who access healthcare in this country, and there are many more than that who travel across the European Union at the moment—there probably needs to be greater scrutiny of any arrangements going forward.
Matt Western (Warwick and Leamington) (Lab)
Q
Mr Henderson: I am not actually sure I have all the detail. My understanding is that the European health insurance card and such arrangements work for all emergency situations, certainly, and most normal circumstances. I think, and Raj may know better than I, that there are some areas that are not covered particularly, but as I understand it, it is fairly universal. I am not an absolute expert in that, I am afraid.
Raj Jethwa: We can write to the Committee. My opinion is that it is pretty universal. There are probably niche areas that may not be covered. We can look into that and get back to the Committee if that would be helpful.
Justin Madders
Q
Raj Jethwa: I do not know that, but again we are happy to look into that and to come back to you if we find out that somebody back home does know the answer. I am not sure that I know.
Mr Henderson: It is probably lost in the mists of various previous agreements.
Stephen Hammond
Q
Raj Jethwa: One of the concerns we have is the reference to the authorised person and who could fit into that category. Without seeing more detail about what the arrangements will look like in the future, we do have some concerns and we are seeking that level of understanding. Without seeing that and knowing exactly what process will be used to, for example, recoup the money or make payments, it is hard to know exactly what those arrangements would look like and on what basis information would be shared. We do have concerns about the authorised person aspect of the Bill, and we need to ensure that we have greater understanding about exactly who would be an authorised person, beyond that list of specific bodies and individuals who are named in the Bill at the moment.
The Chair
Does the Committee have any more questions? No. I thank the witnesses for helping the Committee with its deliberations, and call the next witness.
Examination of Witness
Alisa Dolgova gave evidence.
The Chair
Q
Alisa Dolgova: Hi. I am Alisa Dolgova. I am the manager looking after Brexit at the Association of British Insurers. We are a membership organisation representing more than 250 insurance and long-term savings firms in the UK, ranging across general, life and reinsurance companies.
Stephen Hammond
Q
Alisa Dolgova: I agree with those who gave evidence before me, in that the advantage of the EHIC is that it is a simple, easy-to-understand system. From an insurance perspective, the EHIC covers the medical treatment of UK nationals travelling through one of the covered countries, in the same way as local nationals would be covered in terms of state provision of healthcare. The insurance then covers anything that is not covered by EHIC, meaning things that are not covered by the state healthcare system—some countries have a greater tradition of state healthcare than others—but also things such as repatriation. The advantage of the current system continuing for customers is mainly that it is a system that is well understood, and there is a minimum that is covered for everybody, irrespective of whether they have travel insurance.
Stephen Hammond
Q
Alisa Dolgova: If EHIC were not in place, those costs would be covered by the person’s travel insurance, if they have insurance in place. That means that costs that are currently covered by EHIC would be borne by the insurer. I think £156 million is currently covered by EHIC, so part of that would be covered by the insurer, and that would have an impact on the claims costs for insurance companies—costs that currently are not there. That might have an impact on the premiums that insurers charge their customers.
Stephen Hammond
Q
Alisa Dolgova: That is difficult. Insurers do not know what the impact is going to be, because currently they do not have the data on where the policyholders travel to. By far the most common type of travel policy that is bought in the market is a multi-year insurance policy, which covers an individual who can travel anywhere in the EU—or the rest of the world, for that matter. Currently, because part of that is covered by EHIC, insurers do not have the breakdown, and it is therefore difficult to give a number for what might happen.
Stephen Hammond
Q
Alisa Dolgova: Generally speaking, premiums will be higher for two reasons: first, if the chance of the person claiming is higher, and secondly, if the volume of payout is likely to be higher—so, if someone has a condition that is particularly expensive to treat. That is why health is one of the risk factors that may increase premiums. Again, it is quite difficult to say what the difference in the potential increase would be between those who have existing conditions and those who are in good health, because it basically depends on where that group of people is likely to travel to, in terms of how expensive healthcare is in that country. For example, if someone travels to the US, that is a lot more expensive than if they were to travel to some other destinations. I would just say that if you look at countries where you do not have EHIC or reciprocal arrangements, insurance policies are available but it may require a bit more effort to locate the right product for the right individual. We are working with the Financial Conduct Authority, Macmillan and other organisations on that.
Stephen Hammond
Q
Alisa Dolgova: Most private medical insurance policies in the UK are generally designed to cover treatment within the UK. It is relatively rare for the policies to also cover healthcare while you are travelling.
Stephen Hammond
Q
Alisa Dolgova: Yes. It may vary depending on the type of policy, but generally speaking that is the most common situation.
Stephen Hammond
Q
Alisa Dolgova: For health insurance?
Stephen Hammond
Yes, for health specifically.
Alisa Dolgova: The implications for health insurance are a lot less than for travel insurance. Apart from that, health insurance would primarily be affected in the same way as any other insurance in terms of transferring data across borders. I am not sure there is likely to be a significant impact on health insurance if the reciprocal healthcare arrangements are not in place.
Stephen Hammond
Q
Alisa Dolgova: We are supportive of the Bill and giving the Government the powers they need to implement reciprocal healthcare arrangements. From the insurers’ perspective, the most important thing for us is to know as early as possible, whatever the outcome, so that insurers can plan for any changes and so that we can let our customers know what the impact is likely to be.
Stephen Hammond
So, the sooner the Bill gets Royal Assent, the happier you will be.
Justin Madders
Q
Alisa Dolgova: My colleague Hugh Savill gave evidence to the House of Lords, where he stated that there is likely to be an increase of between 10% and 20%. To be honest, we do not really know, because it very much depends on the particular insurer, who it insures and where that specific group of people travels to.
Justin Madders
Q
Alisa Dolgova: The main message that insurers are giving to the customers is that it has always been important to have travel insurance because it covers things that EHIC does not, but it will be even more important to have it in case there is not a transitional period, because travellers would no longer have the benefit of EHIC. The message is that you need to have travel insurance in place, and that travel insurance will cover you, irrespective of whether you have EHIC.
Justin Madders
Q
Alisa Dolgova: We have not currently seen an increase in premiums. Firms are currently pricing in the assumption that there will be a withdrawal agreement in place with a transitional period that will allow more time for the Government to enter into a reciprocal healthcare arrangement.
Justin Madders
Q
Alisa Dolgova: I have briefly alluded to the work that we have been doing with the Financial Conduct Authority. The FCA published a feedback statement in June this year, looking at travel for people with pre-existing conditions. The finding was that there are products available on the market but they may be difficult to locate at the moment, which is why we are doing additional work at the moment. So there are products available that will cover people.
Justin Madders
Q
Alisa Dolgova: I do not have information with me about which types of conditions are more expensive than others, but it will be the types of conditions that are more likely to require treatment while you are travelling, and insurers do take factors into account such as, “What has been your recovery time?”
Justin Madders
Q
Alisa Dolgova: Yes, sure. EHIC covers you for public healthcare in the same way as a person from that country would be covered, and healthcare provision differs a lot, depending on which EU country you are in. Some countries, such as Italy, have healthcare systems that are much closer to the NHS than others, and if you travel there, EHIC will give you greater coverage. Some countries, such as Spain, have a mixed public/private system and some countries, such as Germany, have a greater tradition of private healthcare. Actually, that means the degree you are covered by EHIC varies depending on where you travel and that is why you need insurance.
Justin Madders
Q
Alisa Dolgova: Yes. It will give you more coverage across all countries, but what that coverage is depends on what the situation is in that country.
Alberto Costa (South Leicestershire) (Con)
Q
Alisa Dolgova: It depends on the specific terms of the travel insurance policy that you have. For example, some policies have a specific provision that you need to use EHIC first and then have resort to your insurance policy, and insurers may also provide incentives to use EHIC as well. For example, they might provide a waiver for access costs of EHIC; that has been used.
Alberto Costa
Q
Alisa Dolgova: The claims cost will definitely increase, which may lead to an increase in travel insurance costs as well.
Matt Western
Q
Alisa Dolgova: Sorry, your question is who would pick up the cost if treatment were provided overseas, but it fails?
Matt Western
Yes. If that implant failed, whatever it might be, and the cost to revise that implant were then borne by the NHS, who picks up the cost, and how does that work? How does it work currently, and how might it work in the future based on this?
Alisa Dolgova: I am not sure I have a detailed enough answer to give at the moment. I would be happy to come back to the Committee on that, but again, I think it would ultimately depend on exactly what travel insurance policy is in place. I would assume that the travel insurance policy is likely to cover a person for the treatment they receive overseas, and if they then need additional medical treatment back in the UK, they would be treated within the UK healthcare system in the same way as they are currently.
The Chair
Are there any more questions from members of the Committee? If not, I thank you very much for helping the Committee with its deliberations on this Bill, and I call the next witness.
Examination of Witness
Fiona Loud gave evidence.
The Chair
Q
Fiona Loud: My name is Fiona Loud, and I am the policy director for Kidney Care UK. We have been around for over 40 years and were formerly known as the British Kidney Patient Association. We are the national kidney patient support charity, so we give emotional, financial and practical help to patients and their families who are affected by kidney disease, but particularly kidney failure.
Stephen Hammond
Q
Fiona Loud: At the moment, 29,000 people in the UK are dependent on dialysis. That is three times a week, about five hours at a time, and those people cannot miss a session, because those sessions maintain their life. If a person is on dialysis and wishes to travel—anywhere in the world, but let us talk about the EU here—whether to meet family, to have a holiday, or to work, they need to be able to pre-book a slot or slots at a dialysis unit that is convenient to the place they are travelling to. At the moment, the EHIC card either covers it completely or, in countries where there is a co-payment because local residents make a co-payment, it covers the bulk of your care. Many patients tend to go to places such as Spain and France, and some go to Italy, because they are holiday-type destinations. It works for them because they get the EHIC, are able to get their life-maintaining treatment and have the opportunity, for themselves and their families, for a much-needed break. That is an example of one of the main reasons people might use that.
So it works well at the moment. It is not completely perfect because sometimes units that were public become private and it may occasionally happen that someone has booked a holiday a long way in advance. But, in general terms, it means that people are able to go away with the confidence that they will be able to be supported and receive the treatment they need.
Stephen Hammond
Q
Fiona Loud: For people with a pre-existing condition, such as kidney failure, we always advise that they take out insurance in addition to having a current EHIC card, because there will be situations in which they may need to cancel their travel at very short notice due to illness. What we regularly hear from patients—this is probably one of the most common questions asked on our closed social media forums, especially at holiday time—is, “Where do I book? Where do I get insurance from? Where do I get the best deal?” My understanding is that some people go to specialist insurers to get their cover—they will be those that we tend to recommend to people because they are much more likely to understand and to be able to support these complex conditions. Whether everyone gets insurance, I honestly do not know. Some people will say that it is so expensive that they cannot afford it, and that could put them off travelling. Other people will say that they have incredibly cheap deals, and I do wonder whether those would actually cover the situation of someone really needing care.
Let me give you a recent example of someone who booked a holiday a year in advance, not in the EU but further away. They took out specialist travel insurance and during that time their transplant failed, which meant that they became dependent on dialysis, were particular ill and had to cancel the holiday for them and all their family. They were able to get all their money back because they had given a clear declaration and that had been accepted. That is how it should work, and it was some comfort to them in what was not a very good situation.
We have people who are taking the option to travel now because they have no idea what will happen after 29 March. For them, the ability to travel with confidence—I think there is something in the Bill about people being able to travel with confidence—is something they can do now, and they are not confident yet that they will be able to do that after 29 March.
Stephen Hammond
Q
Fiona Loud: We understand the reason for it and we support its intentions. You may have seen some of our comments: we want more assurance, some more detail and some things about contingency as well but, yes, we have been hoping for some time that something could be put in place to set this process in motion.
Stephen Hammond
Q
Fiona Loud: The contingency issues would be for people who have holidays already booked for after 29 March. There are people who have already done that and, because their EHIC card has a date of after 29 March—the cards will go on for many years afterwards, as we all know; they are issued for five or 10-year chunks—they imagine that they can go away and receive their dialysis. What happens in the case of no deal, where holidays are booked on that presumption? Will there be cover?
The second question will be about emergency cover. I have just given an example of somebody who was fine when they booked the holiday but who now may not be fine, because people’s health state can change. Generally speaking, holidays are booked in advance. It is basically about looking at what the immediate arrangements would be and to make sure that no citizens are caught in the gap of assuming they have cover and somehow not realising that things have changed. There is an awful lot about Brexit at the moment and this is a very specific detail in a much noisier environment. Those are the people who might be caught out and whom we are concerned about.
Stephen Hammond
Q
Fiona Loud: Yes, it is our conclusion that it would be very hard. It is worth mentioning that at the moment it is generally easier to obtain dialysis at a unit away from your home in Europe than it is in the UK, because we have a heavily pressed NHS. Trying to get capacity in other units is possible with a lot of planning, but if you want to travel for a funeral or for something at short notice, it becomes very difficult to go away for more than one or two days in between dialysis sessions. NHS staff will help and do their very best, but it is easier to go away for two weeks in Europe and take a break in that way than it is to get two weeks in a UK unit, unfortunately.
Justin Madders
Q
Fiona Loud: I have heard it as a comment.
Justin Madders
Q
Fiona Loud: I have not come across any publicly available guidance on that at all. We have given advice and organisations that we work with give advice, but it is informal advice. It is not formal, because it comes from us as a charity, not from any public health or other such body.
Justin Madders
Q
Fiona Loud: That is what many people would do, for the very reasons we have given. We have people who are sometimes thinking about two years in advance. If you have kidney failure, it may well be that your income is quite limited. If you are spending three days a week in hospital and you are not particularly well, you would be likely to plan a long way in advance, because it is so important. As a charity, we give grants to kidney patients to be able to go away and have that break, so we hear quite a lot about it from various patients. Some can be up to two years in advance; others will be at shorter notice.
Julie Cooper
Q
Fiona Loud: Although we completely understand the need to be able to have the latitude to make bilateral arrangements for everyone’s benefit, from a patient point of view we would like to see a simple arrangement that is the same across all countries. People will not be sitting in these Committees or reading these Bills in great detail. They simply want to be able to go away. They know how a system works at the moment: they will perhaps turn to somebody in their own NHS unit, or they will turn to us or to other specialists, and ask, “How do I go ahead and book my holiday?” and they will assume that, because they have that card, that is how it will be. That would be our wish and our preference, but we understand that that is not always possible.
If I may make a separate comment about Northern Ireland, there are potential issues there that are nothing to do with holiday but are simply about residents who are used to going across the border day to day for their care and treatments. There are pre-existing arrangements and protocols there. For example, somebody might be on dialysis in Northern Ireland but, because the rest of their family live in Ireland—it is only 10 or 15 miles away—they might be planning to retire there in a year or two and assume that they can just carry on having their dialysis there.
The provision exists for people who live in Northern Ireland to be listed on the Irish organ donor register—you can only be on one—and vice versa. They will need to look at where they are registered. Does that change immediately? There are also other arrangements for organ sharing. If an organ is donated in one of those two jurisdictions and the weather is too bad to take it to the mainland, it can be taken across by road. That is not used very often, but those are just a couple of examples of some of the detail that might affect people. That is to do with healthcare but it is also separate. There may, therefore, need to be some other bilateral arrangement for Northern Ireland, which is separate from the more general one that we have just discussed.
Julie Cooper
Q
Fiona Loud: We are. A dialysis session in the EU would cost between €250 and €350, so that is about €1,000 a week. We have had correspondence with Sabine Weyand, who is the deputy chief negotiator for exiting the EU. She confirmed to us that British nationals would be treated as third-country nationals, in the case of no negotiation being in place. Therefore, our conclusion is that for third-country nationals, those costs that I have just referred to would be applied. Therefore, only people who were able to afford that, alongside a higher insurance policy—which would not cover the dialysis, though it would cover other things—would be able to travel, effectively making it out of reach for most patients, unfortunately.
The Chair
Are there any more questions from the Committee? If not, I thank you very much for helping us with our deliberations today. That concludes our oral evidence-gathering for the Bill. The Committee will meet again on Thursday 29 November at 11.30 am in Room 12, when we will commence line-by-line consideration of the Bill.
Ordered, That further consideration be now adjourned. —(Wendy Morton.)
Healthcare (International Arrangements) Bill (Second sitting)
Thursday 29th November 2018
(6 years ago)
Public Bill CommitteesRead Full debate Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 29 November 2018 - (29 Nov 2018)
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 8 - Question accordingly agreed to.
The Chair
I remind the Committee that electronic devices should be turned to silent or turned off. Tea or coffee is not allowed in the Committee Room during sittings.
We now begin the line-by-line consideration of the Bill. The selection list for today is available in the room and on the Bill website. It shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or similar issues.
A Member who has put their name to the leading amendment in a group is called first. Other Members are then free to catch my eye to speak on all or any of the amendments within the group, and a Member may speak more than once in a single debate. At the end of a debate on an amendment, I shall call the Member who moved the leading amendment again. Before they sit down, they will need to indicate if they wish to withdraw the amendment or seek a decision. I shall work on the assumption that the Minister wishes the Committee to reach a decision on all Government amendments if they are tabled.
Members should note that decisions on amendments do not take place in the order in which they are debated, but in the order in which they appear on the amendment paper. In other words, debate occurs according to the selection and grouping list, but decisions are taken when we come to the clause that the amendment affects. I shall use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following the debates on the relevant amendments.
Clause 1
Power to make healthcare payments
Question proposed, That the clause stand part of the Bill.
The Minister for Health (Stephen Hammond)
It is a pleasure to serve under your chairmanship, Mr Stringer. This is a short, sensible Bill to ensure that we are prepared, whatever the outcome of leaving the European Union. The Bill confers powers on the Secretary of State to make and to arrange for payments to be made in respect of the cost of healthcare provided outside the United Kingdom. It will allow for the funding of reciprocal healthcare arrangements for UK nationals living in the EU, the European Economic Area and Switzerland.
The Bill is part of the Government’s preparation for EU exit and will allow us to take the necessary steps to broadly continue reciprocal healthcare arrangements or to otherwise support UK residents to obtain healthcare when they move to or visit the EU. It is an important and necessary piece of legislation, so that the British public can look forward to the future with the confidence that they will get the healthcare they need when they need it.
Clause 1 introduces a new power for the Secretary of State to make payments and to arrange for those payments to be made to fund healthcare abroad. I will start by setting out for the Committee why it is necessary for the Government to seek that power.
Currently, there are limited domestic powers in relation to the funding of healthcare abroad. The existing reciprocal healthcare arrangements with the EU are based on EU law. Reciprocal arrangements with other third countries at this time do not involve making payments, as they are based on waiver agreements. In line with the Public Accounts Committee concordat, the clause provides statutory authorisation for the expenditure in relation to future funding of healthcare abroad. It enables the funding of any reciprocal healthcare arrangements that the UK may enter into with EU member states, non-EU states and international organisations, such as the EU, as well as unilateral funding of treatment abroad if needed. It is a vital power to ensure a smooth transition post EU exit.
As a number of colleagues set out on Second Reading, including the Chair of the Select Committee on Health and Social Care, it is essential that the Government take appropriate measures to support a reciprocal healthcare arrangement and agreement with the EU. The Bill and the clause are crucial to that endeavour. Our arrangements with the EU are by their nature reciprocal and require a mutual understanding, and continuation of the arrangements are therefore a matter for negotiations between ourselves and the EU. It is incumbent upon any responsible Government to take forward responsible measures, and the Bill will ensure that we can broadly continue reciprocal healthcare arrangements, where agreed, with the EU. It is the Government’s ambition to ensure that we have the powers and the legal basis to implement comprehensive reciprocal healthcare agreements with other countries around the world, where that would be cost-effective and support wider health and foreign policy objectives after the EU exit.
Clause 1 means that we are ready to respond to any scenario concerning future reciprocal healthcare arrangements with the EU on exit day. In a deal scenario, we would use the power to fund a future reciprocal healthcare arrangement with the EU following the implementation period. In the unlikely no deal scenario, our offer to all EU member states would be to maintain reciprocal healthcare arrangements on a bilateral basis for at least a transitional period. We would use the power to fund those arrangements.
On 2016-17 estimates, the United Kingdom spends about £630 million per year on the EU system of reciprocal healthcare. That is an accrued liability where payments are made to individual member states on a monthly basis in arrears. Once we leave the EU, the clause will allow the Government to continue to fund such a system of reciprocal healthcare, subject to any agreement with the EU and/or EU member states.
The payment system for funding reciprocal healthcare arrangements is set out in EU law. In the future, detailed provisions could be given effect domestically by the regulations under clause 2(1), which we will discuss later, and the payments could be made by exercising clause 1.
Of course, the spending of any public money is and should be closely monitored. The money spent under clause 1 would be no exception to that rule—the usual safeguards apply. As with all departmental expenditure, it would need to be authorised by the Treasury supply process and will be included in the Department’s annual estimates, as well as being included in the annual resource accounts that are audited by the Comptroller and Auditor General. The exact arrangements will be provided for under the future reciprocal arrangements, which are obviously a matter for negotiation. It is envisaged that the current arrangements will be used as a basis for future arrangements with the EU.
It may be helpful to the Committee to look briefly at how the current process of payments works. At the moment, if a UK national were to injure themselves on a holiday in France, they would present their European health insurance card, commonly known as EHIC, at the hospital and receive the necessary treatment. The hospital would then raise an invoice for the treatment with its liaison body. In the case of the United Kingdom, that liaison body is the NHS Business Services Authority. The French liaison body would then submit a claim for the cost of the treatment to the NHS Business Services Authority based on receipt of the invoice from the hospital.
Once the NHS Business Services Authority is satisfied that the claim is accurate and valid, the UK would then release the payment to France, alongside any other claims received for that month. Our intention is to provide for those administrative and operational facets through the regulation-making powers in clause 2(1), which I referred to a moment ago and which we will discuss later. Clause 1 will provide for the payment element.
As is clear to all Committee members, the UK Government’s ambition is to have a reciprocal healthcare agreement with the EU, which should include reciprocal healthcare for state pensioners, UK participation in the EHIC scheme, and co-operation on planned treatment. We expect that that will continue to involve our making payments—for example, on the hundreds of thousands of British citizens who require treatment each year during their holidays in Europe. It also reflects current arrangements, whereby we receive money from EU member states when healthcare has been provided in the United Kingdom—for example, when a tourist to the United Kingdom has presented their EHIC.
It is, of course, our ambition to secure a future deal with the EU on the matter. Should that not be possible, we would seek to agree a broad continuation of the current system with EU member states on a bilateral basis for at least a transitional period. The Bill also provides flexibility to fund healthcare even where there is no bilateral agreement, which we might explore using in exceptional circumstances to secure healthcare for certain groups of people.
At the outset of the Committee’s line-by-line scrutiny, I put on the record my thanks to all hon. Members who spoke on Second Reading and who were supportive of the Bill in principle, and I thank hon. Members for their attendance today. I am also grateful, as I am sure everybody is, to the witnesses who attended on Tuesday. I put on the record my thanks to them, not only for giving us their valuable insight but for supporting the Bill.
Hundreds of thousands of people rely on reciprocal arrangements to access healthcare every year. Ensuring that the Government have a clear legal basis on which to fund these arrangements in the future is an essential component of allowing us to meet our shared goals in this area. I therefore recommend that the clause stand part of the Bill.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Healthcare and healthcare agreements
Question proposed, That the clause stand part of the Bill.
Stephen Hammond
This clause goes to the heart of the purpose of the Bill. It will ensure that the Government have the discretionary powers they need to respond flexibly to all possible outcomes of EU exit; to make regulations in relation to making or arranging payments in respect of healthcare provided abroad; to make regulations to support the provision of healthcare outside the United Kingdom; and to make regulations to give effect to complex international healthcare agreements. The Government can use such regulations to confer or delegate functions. The clause also provides that the Government can issue directions to a person about exercising functions as circumstances require. The powers in the clause are needed to provide the Government with both the flexibility and capability to implement detailed and complex arrangements concerning healthcare abroad. These powers ensure that we are taking the appropriate measures to be able to respond to the multiple EU exit scenarios.
As I remarked earlier regarding the powers in clause 1, as a responsible Government we believe that it is important to take forward appropriate measures. The Bill, and the clause, will ensure that we can broadly continue reciprocal arrangements with the EU where agreed, or, if necessary, with individual EU states on a bilateral basis. The Bill will support the potential strengthening of existing reciprocal healthcare agreements with countries abroad and around the world, and will potentially add to their number as part of future health and trade policy. I am grateful to my hon. Friend the Member for East Renfrewshire, who supported this facet of the Bill on Second Reading.
Facilitating the provision of healthcare for UK nationals abroad can be incredibly complex, and the scope of these powers necessarily reflects that. For example, the EHIC system is a broad and generous scheme for all UK and EU nationals. It covers a variety of different types of care, including emergency care, ongoing routine maternity care or a trip to a GP while abroad for someone with a chronic condition.
As I mentioned, it is our intention to negotiate a future arrangement with the EU that provides broad continuation of the current reciprocal healthcare system, including our participation in the EHIC scheme. That is a complex arrangement to provide for, and requires suitable domestic implementation to ensure that it operates effectively. It is therefore necessary and appropriate for the Government to seek suitably flexible powers to make regulations and directions that will allow us to implement such a scheme. It is also appropriate that these powers should afford us the capacity to implement and make provision for similar arrangements with other countries all over the world where this would be cost-effective and would support wider health and foreign policy objectives. The powers in the clause ensure that we are taking the appropriate measures to be able to respond to multiple EU exit scenarios, including the making of regulations for, or in connection with, the funding of provision for healthcare abroad and for implementing healthcare agreements.
Justin Madders (Ellesmere Port and Neston) (Lab)
It is a pleasure to serve under your chairmanship, Mr Stringer. First of all, I join the Minister in thanking those witnesses who came and gave evidence on Tuesday. There were certainly some helpful comments that we will no doubt return to in Committee.
As was made clear on Second Reading, this is a very important piece of legislation. More than 190,000 UK expats live in the EU and of course there are 50 million British visits within the EEA countries each year: all those people want clarity about what the arrangements are in the event that they will need healthcare. So we do not oppose the principle of the Bill. We absolutely agree that it is important that there are arrangements in place after 29 March 2019 and into the future. However, we are concerned about a number of issues, some of which I referred to on Second Reading and some of which we will discuss today.
It is fair to say that there are concerns about the breadth of powers that the Secretary of State is requesting in clause 2; I do not believe they would be countenanced at all under normal circumstances. I appreciate that we are not in normal circumstances and I am grateful to the Minister for setting out how he envisages those powers will be used in practice. We are not here to judge things just on what the situation is at the moment, but on how the powers could be used at some point in the future. With regard to that, the Minister referred to this Bill being used possibly to further foreign policy and trade objectives. When he responds, I would be grateful if he expanded on what he has in mind.
To compound our issues about the scope of the regulations, we are also concerned about our lack of opportunity to scrutinise them; we will return to those concerns when I move amendment 2 to clause 5 later on. Of course, we are not alone in having concerns about the scope of this clause and the lack of clarity about how the powers might be used. In the evidence session, Raj Jethwa, Director of Policy at the British Medical Association, said:
“We would like to see much more emphasis on scrutiny of all the discussions in the arrangements going forward.”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 27 November 2018; c. 6.]
We will certainly push for that today.
The Delegated Powers and Regulatory Reform Committee in the other place went further than that, describing the scope of clause 2 as “breath-taking”. As that Committee correctly pointed out, there is no limit to the amount of any payments, to who can be funded or to the types of healthcare being funded. The regulations can confer or delegate functions to anyone, anywhere, and primary legislation can be amended for these purposes.
It is also worth noting that although this legislation has been presented as a Bill to enable us, as far as possible, to retain the arrangements that we already have—who would disagree with that?—the powers conferred by the clause, as I think has been conceded by the Minister, can go far beyond the current EU and EEA countries that we are primarily concerned about.
We consider the powers in the clause to be inappropriately wide, if they are not going to be subject to the correct levels of scrutiny. At this eleventh hour, we understand why a certain level of flexibility is being sought by the Government, but with that request comes a responsibility to ensure that proper parliamentary scrutiny is exercised.
Rather than oppose the clause in its entirety, we believe that the appropriate remedy would be to ensure that any regulations introduced under the Bill will be subject to the affirmative procedure. We will return to that point when we consider amendment 2 to clause 5.
Stephen Hammond
The hon. Gentleman is right to say that these powers are flexible. Part of the reason for that is that there may well be a need to anticipate the sort of bilateral arrangements that we put in place in the future—notwithstanding our hopes that we will secure a continuation of the current reciprocal healthcare arrangements, which is our ambition. When we come to debate not only the hon. Gentleman’s amendment, but clause 5—when the discussion on scrutiny of these arrangements should take place—I will seek to reassure him that the procedures in place will allow for the usual and appropriate parliamentary scrutiny of the Bill.
The hon. Gentleman talked about the powers being too broad. The Bill has a very focused purpose: to ensure that the reciprocal healthcare arrangements, which benefit UK nationals abroad and also EU and non-EU nationals in the UK, are continued. He also challenged me on the issue of potential future trade or foreign policy objectives. As he will know, we already have arrangements with a number of countries outside the EU, and the Bill must have the flexibility for the continuation and updating of those arrangements. The matter will clearly be of operational importance—potentially, it will be a policy decision after exiting the EU. Were a UK holidaymaker going abroad to a non-EU country, they would clearly expect the Government to have in place—or to have the potential to put in place—the reciprocal healthcare arrangements that would allow them to be treated should that be necessary.
I hope those words will satisfy the hon. Gentleman that the clause needs to stand part of the Bill. We can have the appropriate discussion about scrutiny in somewhat more depth when we debate clause 5.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Meaning of “healthcare” and “healthcare agreement”
Question proposed, That the clause stand part of the Bill.
Stephen Hammond
Mr Speaker—sorry, Mr Stringer: although who knows what may happen later next year?
Stephen Hammond
One that I am sure would be welcomed by Members on both sides of the Committee.
Clause 3 is very simple and sets out the definition of “healthcare” and “healthcare agreement” used within the Bill. The definition of healthcare is modelled on the definition provided in the Health and Social Care Act 2012, which we have adapted to include the additional element of ancillary care. That is to reflect where current arrangements provide for ancillary costs, such as travel, which do not fit strictly within the definition of healthcare. As in France, this is for use in circumstances where residents are reimbursed a contribution of their travel costs when attending healthcare appointments.
I would like to clarify that access to social care in England would not be provided for through any reciprocal healthcare agreement. It is up to each individual country to determine what is available through the public healthcare system, just as we do with the NHS. The clause would enable individuals to access healthcare on those terms.
A healthcare agreement could be made either bilaterally or multilaterally, or it could be an agreement between states, countries or multilateral organisations. Such agreements provide access to agreed forms of healthcare when individuals from one country seek healthcare in the other, and vice versa. They also provide for how the funding will be shared between parties. Funding could mean a direct payment, arrangements to waive or set off costs, or other arrangements to cover costs. Clause 3 is short but important.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Data processing
Julie Cooper (Burnley) (Lab)
I beg to move amendment 1, in clause 4, page 3, line 17, leave out paragraph (d).
It is a pleasure to serve under your chairmanship, Mr Stringer, and I am pleased to have the opportunity to speak to clause 4. At this time of great uncertainty, when the nature of our future relationship with the European Union is still unknown, we welcome the intention outlined in the Bill to give some confidence to those who currently rely on the reciprocal health arrangements between the UK and the nations of the EU and EEA. We are only surprised that the Bill has taken so long to come before us.
The scope of the Bill is designed to cater for all possible outcomes of the UK and EU negotiations. The intention is that, deal or no deal, the Bill will empower the Secretary of State to negotiate future reciprocal healthcare arrangements between the nations of the UK and the EU, and any other such nation as is desired. Providing for pensioners, visitors, students and workers to live, work, study and travel in EU member states with complete peace of mind regarding the provision of healthcare is a priority for Labour. We therefore recognise the need for the Bill.
While understanding that any future agreement must allow for the smooth transference of data for the achievement of the best possible outcomes for patients, we believe it is also crucial that the Bill provides robust powers to protect personal data. Health records contain both personal and sensitive data, and access to such information must be allowed sparingly and only for medical purposes. Access to personal data should be available to health professionals who are bound by a duty of confidentiality on the basis of need to know. The Data Protection Act 2018 outlines the key principles relating to the protection of data; compliance with the spirit of those principles is fundamental to good data protection practice, and embodies the spirit of lawful, fair and transparent use of data.
Currently, the General Data Protection Regulation places restrictions on the transfer of personal data to countries outside the EU and EEA. As the UK leaves the EU, we will not automatically enjoy existing protections; indeed, this Bill provides powers for negotiations to take place with nation states across the world, to reach agreement on a bilateral basis. That makes it imperative, in our view, that the Bill protects against potential misuse of personal data.
Clause 4 outlines the detail of how data will be processed for the purposes of the Bill. We have noted the wide-ranging powers to be given to authorised persons, who may
“process personal data held by the person in connection with any of the person’s functions where that person considers it necessary for the purposes of implementing, operating or facilitating the doing of anything under or by virtue of this Act.”
We are not satisfied that sufficient safeguards are in place when defining an authorised person for the purposes of the Bill. We have listened carefully to the concerns of the British Medical Association, and share that organisation’s concerns about the lack of detail in the definition of “authorised person” in subsection (6). Mr Jethwa, representing the BMA, said in his evidence to this Committee that data
“has to be accessed on a need-to-know basis, and only when it is in line with patients’ expectations. Data sharing has to be transparent. We would be absolutely concerned that any safeguards meet those criteria and principles. I do not think the details in the Bill make that clear at the moment. We would like to see more clarity and detail about that in future.”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 27 November 2018; c. 5, Q14.]
Mr Henderson, from the Academy of Medical Royal Colleges, said that although he recognises that there must be a “free flow” of data,
“individual patients’ data must be protected”,
and that
“it is slightly hard to say whether there is sufficient protection there or not”.––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 27 November 2018; c. 5, Q13.]
He is correct: it is hard to see that there are sufficient protections in the Bill. This is a hugely important issue that needs to be fully addressed.
With that in mind, we are of the view that subsection (6)(d) should be deleted, principally because it gives the Secretary of State a power—to authorise private health companies to access patient data—that is far too wide ranging. We believe that removing that paragraph protects personal data and achieves a balance, giving more confidence to patients while allowing the smooth transfer of data to designated qualified personnel.
The right to privacy and access to healthcare are rights that we value, and the one should not be conditional on the other. We wish to ensure that the Bill gives UK patients, and patients from the EU, full confidence that their personal information will not be shared inappropriately. That remains the case whether healthcare is received in the UK or overseas as part of a reciprocal healthcare agreement. As we leave the European Union, citizens accessing medical care as part of a reciprocal health agreement need to be sure that their personal data will not be shared inappropriately. Without that assurance, citizens may be discouraged from seeking medical assistance.
Stephen Hammond
I thank the hon. Member for Burnley for moving this amendment, because it gives me the opportunity to set out clearly and in some depth why we have chosen to include clause 4(6)(d) in the Bill. I want to lay out the reasoning for our concerns about this amendment. I hope that I will be able to reassure her of the vital importance of paragraph (d), and that it is necessary and appropriate, because we will be unable to accept the amendment.
Reciprocal healthcare agreements are made possible by close, consensual co-operation of different parties and bodies, such as the Department of Health and Social Care, the Commissioners for Her Majesty’s Revenue and Customs, Ministers of devolved Administrations, healthcare providers and all their opposite numbers in EU and EEA countries. Since the Bill is about the provision of healthcare, it would be remiss of Her Majesty’s Government to exclude healthcare providers, either those in the United Kingdom or those in other countries, from the list with authority and sanction to process and share data. Given that it is the Government’s position that in the agreement with the EU, future arrangements for the provision of healthcare abroad will reflect existing ones, it is worth reflecting on the place of healthcare providers in these processes, to illustrate the role they play in the commission and delivery of healthcare abroad.
Under the S2 route, a UK resident may decide to seek planned treatment abroad. As part of the ordinary procedure, the UK resident must visit a healthcare provider in the UK. The clinician would then provide written evidence that the person has had a full clinical assessment, which must clearly state why the treatment is needed in their circumstances and what the clinician considers to be a medically justifiable time period within which they should be treated again, based on their circumstances. As is clear under existing arrangements, this function can only be served by a medically trained healthcare provider. This paperwork is then passed on to NHS England or the comparable authority in the devolved Administrations for further processing. Many of those organisations are provided for by subsection (6)(c). Members will, I hope, understand that the lack of qualification around the term “provider of healthcare” is appropriate and necessary at this stage, given that future arrangements are not yet clear.
If the Government are adequately to fulfil the purposes outlined in clause 1, they need to be able to facilitate and fund healthcare for UK persons, for whom they feel responsible, whether the provider is based in the UK or overseas. In that connection, I think it is worth pointing out that the current reciprocal healthcare arrangements allow UK persons to access treatment from providers of healthcare in another country that are not NHS bodies or comparable state providers in another country, as defined by UK healthcare legislation. That might include an optometrist or a dentist, many of whom fall outside the state healthcare system.
Subsection 6(d) proposes to ensure that other types of healthcare providers are authorised to process personal data under the Bill, but most importantly that NHS bodies are able, where necessary, to share personal data for the purposes of the Bill with healthcare providers based outside the UK. Simply, if such providers were not also considered authorised, it would be impossible for healthcare commissioned, implemented, facilitated or funded by the UK to be authorised to be rendered abroad.
The hon. Lady is concerned that the clause will allow private providers access to patient data and the powers to process it. She should be reassured that that is already legal and proper under existing arrangements governed by EU regulations. Under existing reciprocal healthcare arrangements, UK persons are able to receive treatment in another country on the same basis as a local resident of that country. That includes healthcare or other treatments given by healthcare providers other than those that fall within the scope of domestic UK healthcare legislation.
After the fact and on return to the UK, the person would be able to seek reimbursement, where appropriate, from the relevant UK authorities. It is worth noting that the person who sought treatment abroad would typically only be reimbursed up to the amount it would have cost under the NHS. It would be for the person, not the Department of Health and Social Care, to bear the financial risk of any additional cost.
Since our desire to continue existing arrangements is shared by those on both sides of the House, I do not feel that the clause has inappropriate powers. To further allay any other fears, I remind members of the Committee that the clause contains safeguards to guard against any misuse of data. The Bill gives powers to providers, either in state healthcare systems or private ones, to process solely where it is necessary for the limited purpose of funding or arranging healthcare abroad—nothing more.
All processing of the data by all parties must also comply with existing data protection legislation. That is a crucial safeguard under UK data legislation. Data concerning healthcare is personal or specific category data. That can only be processed where specific conditions are met, namely that processing is necessary for the purpose of healthcare and in the public interest. Members will recognise that clause 4(6)(d) does not represent a deviation or new departure from existing arrangements and simply allows for the Government to maintain or improve those arrangements in whatever circumstances we find ourselves in after exit.
In closing, were the amendment agreed, it could risk patient outcomes by excluding providers of healthcare from the list of authorised persons. The hon. Lady expressed some concerns, and I hope that my response has allayed them. I offer to make my officials available to provide a briefing on this matter to her and any other member of the Committee who should so wish, so that they can be completely reassured that the normal data protection legislation will apply to the Bill. The exchange of data may happen only for a limited and focused purpose. The hon. Lady was right to express her concerns, and I hope she will be reassured by my words and that she will not feel the need to press her amendment to a Division.
Julie Cooper
I am grateful to the Minister for those explanations, and I welcome him saying it is a very limited and focused use of the data. I would be happy to take a briefing from his officials, but further to that, to give assurance to our side, I would be grateful if he will undertake to go further on Report and outline the scope of the subsection. If he will do that, we will not press the amendment to a Division.
Stephen Hammond
We will carefully consider what the hon. Lady has said and her request for further details on Report. I have listened and have offered that briefing, and I hope that is sufficient for her to decide not to press the amendment to a Division now.
Julie Cooper
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Stephen Hammond
I will try to limit my comments, given that we have already had discussions on the amendment. I am sure that will be welcome on this cold November day in a rather warm room.
Clause 4 provides a clear legal basis for processing personal data under the Bill for the purposes of UK data protection legislation. At present, the EU regulations provide a lawful basis for processing data for the purposes of reciprocal healthcare. Personal data is integral for providing healthcare abroad. It is vital that authorised persons in the UK can process data for that purpose. The clause ensures that, after exit day, there is a clear and transparent basis for processing personal data for the purposes of providing healthcare abroad, as required by UK data protection legislation. Clause 4 will ensure that safeguards are in place for that processing.
Subsection (1) limits processing to that which is necessary for the purposes of the Bill. Subsections (2) and (3) ensure that any such processing must remain in compliance with UK data protection legislation and the Investigatory Powers Act 2016, and any other relevant restrictions. Finally, the persons who can process data under the Bill are limited to those authorised in subsection (6), which we have just discussed.
The safeguards limit the scope of clause 4 to what is necessary and proportionate to provide healthcare abroad. For reciprocal healthcare, personal data is required to process reimbursements to and from other countries, and where reimbursement is made to a person as well. It is also sometimes necessary for healthcare providers to share medical information to facilitate treatment. The clause ensures that the Government can continue to process personal data as necessary, after exit day, in an effective and lawful way. Personal data transferred from outside the UK will remain subject to the need for safeguards to be put in place before it is transferred. Those safeguards will not be able to be contracted out as part of any healthcare agreement with the EU or member states or third countries.
As I said a moment ago, subsection (1) provides for an authorised person to process data related to the provision of healthcare abroad. Personal data is defined in the GDPR as data that relates to a living person who can be directly or indirectly identified from the data. Specific category data is personal data containing health and genetic data. At present, there are different routes for providing healthcare abroad, such as the S1, S2 or EHIC routes, and each route requires different forms of personal data.
Subsection (2) disapplies the duty of confidence and any restriction on the processing that would otherwise apply. The exemption ensures that data can be disclosed where it is necessary for the limited purposes of the Bill. The measure is necessary and appropriate. For example, authorised persons may need to share data if a person is unconscious and therefore not in a state to provide it themselves. Importantly, as expressed in subsection (3), data processing must continue to comply with the UK data protection legislation, which ensures there are further safeguards around data processing. The GDPR also governs data transfers between the UK and other countries. All EU and EEA countries are bound by the GDPR, which means the relevant national data protection safeguards in each country are adequate, allowing the free transfer of data between countries.
Subsection (3)(a) expressly requires that the processing of data does not contravene existing data protection legislation, and subsection (3)(b) requires that the processing of data must comply with parts 1 to 7 or chapter 1 of part 9 of the Investigatory Powers Act 2016. The only purposes for which investigatory powers may be required are to investigate and tackle suspected cases of fraud and error relating to healthcare abroad.
As set out in subsection (1), the processing of data under the Bill is limited to authorised persons who, as we have discussed, are defined in subsection (6). The list reflects those persons and bodies currently involved in processing data, including personal data under existing reciprocal healthcare arrangements.
I mentioned that, for clarity’s sake, subsection (6)(a) lists
“the Secretary of State, the Treasury, the Commissioners for Her Majesty’s Revenue and Customs, the Scottish Ministers, the Welsh Ministers and a Northern Ireland department”.
Healthcare abroad is entirely managed and operated by the Department of Health and Social Care in co-operation with the Executives in the devolved Administrations and their local healthcare systems. Although the Bill is about the provision of healthcare abroad, it is vital that the Executives of the devolved Administrations are considered authorised persons, since healthcare abroad is often facilitated in co-operation with them. Under subsections (6)(b), (c) and (d), healthcare bodies and providers are considered authorised persons as they are directly involved in the provision of healthcare.
Finally, subsection (6)(e) gives the Secretary of State the power to add to the list of authorised persons, which will ensure that the Government can respond appropriately, whatever the outcome of EU exit. It is also deemed necessary to allow the Secretary of State to respond to the changing demands of systems and operations. In future, duties may change and adding to the list will be difficult, so it is necessary to have the power in place.
Clause 4 is an important component of the Bill. It provides the Government with the necessary power to process and share data that relates to healthcare provided abroad. Therefore, I recommend that the clause stand part of the Bill.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Regulations and directions
Justin Madders
I beg to move amendment 2, in clause 5, page 3, line 44, leave out subsection (5) and subsection (6) and insert—
“(5) Any statutory instrument which contains regulations issued under this Act may not be made unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House.”
This amendment would make all regulations issued under this Act subject to the affirmative procedure and require approval from Parliament before they become law.
This amendment is probably one of the most important items that we will discuss in Committee. As I made clear when we discussed clause 2, there are widely held concerns about the scope of the regulations, which are exacerbated by the fact that these extraordinarily wide powers, necessary as they may be in the circumstances, are subject only to the negative procedure.
As I referred to earlier, the Delegated Powers and Regulatory Reform Committee in the other place clearly set out the potential impact of my amendment not being accepted when it said:
“If, without such amendment, the Secretary of State wished to fund wholly or entirely the cost of all mental health provision in the state of Arizona, or the cost of all hip replacements in Australia, the regulations would only be subject to the negative procedure. Of course, these examples will not be priorities for any Secretary of State in this country.”
I hope that is the case, but we are here to look at how the powers could be used over, possibly, the next 100 years, and not just how we would expect them to be used in the foreseeable future.
Nobody knows where this process will take us, and when examining legislation there is always merit in considering the unlikely as well as the stated intentions of the Government at the time. The Minister’s comments about wider objectives reaffirms the importance of our scrutinising the regulations as much as possible. We find ourselves in an unprecedented situation in Parliament, and it is therefore important that we consider all eventualities.
If Committee members need further persuasion that the amendment should be carried, that Lords Committee set out a devastating list of reasons why the negative procedure is inappropriate. It said:
“There is no limit to the amount of the payments. There is no limit to who can be funded world-wide. There is no limit to the types of healthcare being funded. The regulations can confer functions…on anyone anywhere. The regulations can delegate functions to anyone anywhere.”
The Committee concluded:
“In our view, the powers in clause 2(1) are inappropriately wide and have not been adequately justified by the Department. It is particularly unsatisfactory that exceedingly wide powers should be subject only to the negative procedure.”
The most significant reason why we do not object to the legislation is that the biggest risk at this stage is that arrangements are made that do not safeguard the ability of our constituents, when they travel abroad, or of UK citizens who currently live overseas to access healthcare, as they do now. However, because of the way the Bill is drafted, we will find that we are unable to debate whether those safeguards are in place as a matter of course. We have heard many references to the 190,000 UK expats living abroad and the 50 million or so nationals who travel to EEA countries every year. These are huge numbers of people, and the impact of the legislation on them is potentially huge. We owe it to all those people to ensure that any future arrangements are properly scrutinised.
We also need to consider the impact of any new arrangements on the NHS. As Alastair Henderson, chief executive of the Academy of Medical Royal Colleges, set out in evidence on Tuesday:
“Both clinicians and health organisations are concerned that we could end up with a system that is both administration-intensive and time-intensive.”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 27 November 2018; c. 3, Q4.]
He went on:
“In practical terms, the idea that if you are a GP or a hospital doctor trying to work out whether there are different arrangements for 32 different lots of patients sounds pretty much like a nightmare set-up.”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 27 November 2018; c. 4, Q9.]
If we do not agree to the amendment, Parliament could end up in that scenario without any voice.
While there is scope for the affirmative procedure to be used in cases where Henry VIII powers are invoked to amend primary legislation, I think it is pretty clear that potentially the most significant changes to reciprocal agreements that could be enacted under the legislation are those that are subject only to the negative procedure. As we know, the negative procedure means that an instrument is laid in draft and cannot be made if that draft is disapproved within 40 days, normally via a prayer against, which is usually by way of an early-day motion. If that does not happen, the legislation is then passed. That is a 40-day process in the best-case scenario.
If I am correct, and if we leave without a deal, the Secretary of State will have to reach agreement with each of the 30-plus countries no later than Friday 15 February, assuming that Parliament does not sit on the following Sunday. At this stage, who knows where we might end up, but we will assume for now that the sitting days are as set out, so Friday 15 February will be the last day that an instrument can be laid that will pass before 29 March, assuming that it is not prayed against. Hopefully the Minister will be able to advise whether my understanding of the timetable is correct.
Will the Minister concede that, on a practical level, it would be better for regulations moved under the Bill to be moved using the affirmative procedure? We could then get them through scrutiny in both Houses much quicker than the 40-day procedure currently allows.
Stephen Hammond
The hon. Gentleman raises some important issues, including the issue at the heart of the clause—the appropriate, necessary and correct scrutiny arrangements for Parliament. Let me be clear at the start: the Government absolutely recognise the importance of appropriate levels of scrutiny of the Bill and its subsequent secondary legislation. It is clearly the hallmark of any effective parliamentary system that there are processes in place by which we draft, consider and test legislation. After all, that is what we are doing today.
The appropriate parliamentary procedure for the scrutiny of regulations made under the Bill that do not amend, repeal or revoke primary legislation is the negative procedure. If I am not able to reassure the hon. Member for Ellesmere Port and Neston and he chooses to press the amendment to a Division, I am afraid the Government will resist it.
Justin Madders
I am afraid the Minister has not managed to reassure me, despite his best efforts. When a Bill would confer power on the Executive, we have to be very careful about giving that power away. It cannot be done without good reason, even in these extraordinary times. I have not heard any justification for giving such sweeping powers to the Secretary of State without adequate scrutiny. No matter how well-intentioned the Minister is in his responses—I acknowledge his sincerity —we do not know who will be doing what in 12 months’ time. As we said earlier, we could be handing a future Secretary of State the ability to enter into arrangements for hip replacements in Australia or such like.
As the Minister said, the regulations will enable the Government to enter into detailed and complex arrangements on future healthcare. That is precisely why we need them to be subject to the affirmative procedure. I appreciate the point about the treaties possibly containing more detail, but this is about how Parliament will be able to scrutinise and challenge those arrangements.
Stephen Hammond
The hon. Gentleman will have heard that the treaty arrangements will be subject to parliamentary scrutiny in the normal way. We are discussing the regulations as to how we enact those treaties. I was hoping that he might be reassured by that.
Justin Madders
I am afraid that I am not reassured.
The Minister has not really addressed the practical issue about the 40-day waiting time for the negative procedure. If we enter a no-deal scenario after 29 March, as I said earlier, all the instruments under the Bill would have to be laid no later than 15 February. I am imagining the Secretary of State whisking around the 30-plus countries that we would need to enter into bilateral arrangements with throughout the whole of January, and having to get that all signed up and put on the Order Paper by 15 February. I am actually trying to help the Minister here by suggesting that if we do it by affirmative procedure, we can get these things through Parliament more quickly and with the appropriate level of scrutiny that these arrangements deserve. Therefore, I will push the amendment to a vote.
Question put, That the amendment be made.
Stephen Hammond
Having failed to reassure the hon. Member for Ellesmere Port and Neston, I will have another attempt in this stand part debate. Clause 5 supplements the substantive regulation-making powers in clause 2. It provides detail on the parliamentary procedure, as we have already discussed, that will apply to regulations made under the Bill. Subsections (1) and (2) introduce standard provisions, and are consistent with regulation and direction-making powers in many other Acts of Parliament, such as the Health and Social Care Act 2012 and the National Health Service Act 2006.
The clause is required to ensure that regulations and directions made under the Bill will be fit for purpose. As I have said, the powers in the Bill provide the Government with the flexibility and capability to ensure and implement detailed and complex arrangements concerning healthcare abroad. For example, the Government may use regulations to confer different functions on different bodies, in order that they may implement and operate effectively what may be provided for in an agreed reciprocal healthcare agreement. We do that now in relation to the EHIC scheme, which, as I said earlier, the NHS Business Services Authority administers on behalf of the Department. That administration includes the registering and issuing of EHICs and the processing of EHIC claims.
Future administrative arrangements to implement reciprocal healthcare agreements may reflect the current situation, or may involve conferring different functions on other bodies, as appropriate. Once the arrangements are negotiated, we will be in the best position to decide what the appropriate bodies to administer those arrangements are. We will be able to provide for the practical processes and implementation arrangements through the regulations. Clause 5 provides the Government with the flexibility to ensure that any healthcare arrangements can be implemented effectively and efficiently.
Subsection (3) provides that regulations made under clause 2
“may amend, repeal or revoke primary legislation…for the purpose of conferring functions”,
or
“to give effect to a healthcare agreement.”
I want to try again to reassure the Committee about that. The Government are conscious that Parliament rightly takes an interest in this area and, of course, we share the view about the importance of scrutiny.
This is a consequential power to make amendments to primary legislation, which is limited to three restricted uses: for the purpose of conferring functions, to give effect to a healthcare agreement and to make modifications to retained EU law. It is not a free-standing power; it is a focused power to ensure that we can implement healthcare arrangements effectively. That may involve conferring functions on healthcare bodies, which could involve amending primary legislation.
Subsection (4) provides that:
“Regulations under this Act may amend, repeal or revoke retained EU law”,
which is the body of existing EU law that the European Union (Withdrawal) Act 2018 will convert into domestic law, together with the laws we have already made in the UK to implement our EU obligations. It is vital that the regulation-making powers extend to amending, repealing and revoking retained EU law, because the bulk of the existing provisions that relate to current reciprocal healthcare arrangements with the EU will be EU retained law.
Subsection (4) will ensure that domestic legislation in that area is clear and accessible. It will allow us to amend EU retained law, where appropriate, to give effect to new reciprocal healthcare arrangements. It would be an oversight if the Bill did not provide for such amendment, given that current reciprocal healthcare arrangements with the EU are entirely bound up in EU law.
I stress again that, of course, Parliament will be given the opportunity for the appropriate scrutiny of regulations made under the Bill that amend, repeal or revoke primary legislation. As such, subsection (6) makes it clear that regulations that contain provisions that make modifications to primary legislation will be subject to the affirmative resolution procedure and, therefore, Parliament will have the opportunity to debate them. That is the parliamentary scrutiny procedure befitting Henry VIII powers, and one that allows for proper scrutiny.
Regulations made under the Bill that do not contain provisions that amend, repeal or revoke primary legislation will be subject to the negative resolution procedure. It is our job—and I think it is only right—to ensure that legislation is afforded the appropriate level of scrutiny. Therefore, regulations that are made under the Bill that do not amend, repeal or revoke primary legislation should be subject to the negative procedure, as is normal.
The remit of our regulating powers is focused. They can be used only to give effect to healthcare agreements or to arrange, provide for or fund healthcare abroad, as is clear in the enabling powers found in clause 2(1). Where the UK negotiates a comprehensive international healthcare agreement, whether multilaterally with the EU or bilaterally with EU members, the most important element that sets out the terms of that agreement would be included in the agreement itself, as hon. Members would expect. Regulations that give effect to such an agreement would likely focus on procedural, administrative and technical details, such as the types of documents or forms that could be used to administer those reciprocal healthcare arrangements, which is a point I made earlier.
In a scenario where a comprehensive healthcare agreement is being implemented through regulations made under clause 2(1)(c), that agreement would be subject to parliamentary scrutiny under the ratification procedure contained in section 20 of the Constitutional Reform and Governance Act 2010. That ratification procedure provides an opportunity for parliamentary scrutiny of the substance of the healthcare agreements being given effect to in the regulations made under the Bill. It is for those reasons that I rejected amendment 2, which the hon. Member for Ellesmere Port and Neston moved a moment ago.
The final provision of the clause, subsection (7), sets out the definition of “primary legislation”. To reassure the hon. Gentleman, and the Committee, the Government absolutely understand and appreciate the necessity for appropriate parliamentary scrutiny. The level of scrutiny must reflect the substance of the piece of legislation. That is what I believe the clause does, and I therefore recommend that it stand part of the Bill.
Justin Madders
The Minister and I will not agree on that, unfortunately. I will not repeat the arguments that we have already gone through, but I will remind hon. Members that the Lords Delegated Powers and Regulatory Reform Committee described the powers and regulation as “breath-taking”, and said that
“There is no limit to the amount of the payments. There is no limit to who can be funded world-wide. There is no limit to the types of healthcare being funded. The regulations can confer functions…on anyone anywhere.”
The scope of the clause is breath-taking. Although the Minister is trying to reassure us, as parliamentarians, we need the security of the affirmative procedure.
Christian Matheson (City of Chester) (Lab)
I am grateful to my hon. Friend and constituency neighbour for giving way. Would he have been a little more reassured by the Minister’s attempts at reassurance if this was not part of a process and of a pattern of behaviour by the Government? There have been power grabs and the use of Henry VIII clauses throughout the Brexit process.
Justin Madders
I thank my hon. Friend and neighbour for his intervention. He is absolutely right. One of the things that was stated during the referendum campaign was that Parliament should take back control, and that is what I believe should be happening following the result. Parliament needs to make sure that, as much as possible, the legislation that will be necessary in the coming months is subject to full parliamentary scrutiny. That is why the affirmative procedure should be included in the clause, which we cannot support as it currently stands.
Question put, That the clause stand part of the Bill.
Stephen Hammond
I wish to introduce this short clause, which I suspect will be somewhat less contentious than the previous one. Subsection (1) provides that the Bill extends to England and Wales, Scotland and Northern Ireland. Subsection (2) provides that the Bill will come into force on Royal Assent, which reflects the need to respond to the range of possible EU exit scenarios in a timely manner. Subsection (3) establishes that the short title of the Act will be Healthcare (International Arrangements) Act 2018. With that short explanation, I recommend that the clause stand part of the Bill.
Clause 6 accordingly ordered to stand part of the Bill.
New Clause 1
Annual report on the cost of healthcare arrangements
‘(1) The Secretary of State must lay before Parliament an annual report setting out all expenditure and income arising from each healthcare arrangement made under this Act.
(2) The annual report laid under subsection 1 must include, but is not limited to—
(a) all payments made by the government of the United Kingdom in respect of healthcare arrangements for healthcare provided outside the United Kingdom to British citizens;
(b) all payments received by the government of the United Kingdom in reimbursement of healthcare provided by the United Kingdom to all non-British citizens;
(c) the number of British citizens treated under healthcare arrangements outside the United Kingdom;
(d) the number of non-British citizens treated under healthcare arrangements within the United Kingdom;
(e) any and all outstanding payments owed to or by the government of the United Kingdom in respect of healthcare arrangements made before this Act receives Royal Assent; and
(f) any and all administrative costs faced by NHS Trusts in respect of healthcare arrangements.
(3) The information required under section 2(a) and 2(b) above must be listed by individual country in every annual report.’—(Julie Cooper.)
Brought up, and read the First time.
Julie Cooper
I beg to move, That the clause be read a Second time.
I should stress that we support the intention of the Bill. Providing that UK citizens can live, work, study and travel in EU member states with complete peace of mind with regard to the provision of healthcare is a priority for us. We are aware that, under existing arrangements, the healthcare of 190,000 UK state pensioners living abroad, principally in Ireland, Spain, France and Cyprus, and of their dependent relatives, is protected.
In addition, we seek to ensure that the health benefits currently enjoyed by UK residents who visit the EU on holiday or to study continue, so that they may use the European health insurance card to access healthcare and emergency treatment for healthcare needs that arise during their stay. We also seek to continue the arrangement under which EU nationals receive reciprocal provision when they visit the UK post Brexit.
We note, however, that the Bill is intended to provide for all reciprocal healthcare arrangements in the future, even though we still do not know—even at this late stage, two and a half years after the referendum—whether a satisfactory Brexit deal will be approved by the UK Parliament. Given the possibility of a no deal scenario, where the UK crashes out of the EU and potentially enters a period of unprecedented uncertainty, we are extremely concerned.
We understand and support the Government’s preferred policy position with regard to future reciprocal healthcare agreements, where the intention is to seek a wider agreement with the EU that covers state pensioners retiring to the EU or UK and allows for continued participation in the European health insurance card scheme, together with planned medical treatment. We want to ensure, however, that appropriate safeguards are in place with regard to costs, not least because the Bill provides the authority for the Secretary of State not only to facilitate a continuation of existing arrangements, but to enter into any number of bilateral agreements with individual member states, with no provision for parliamentary scrutiny.
We also note that the Bill provides the authority to strengthen existing reciprocal healthcare agreements with countries outside the EU, or to implement new ones with countries across the globe, in line with the Government’s aspiration to develop trading arrangements with countries beyond the EU. There is, therefore, the potential for the establishment of multiple complex agreements.
As it is not possible to know the detail of those agreements in advance, we cannot assess their likely cost implications. We therefore believe that the Government’s impact assessment is woefully inadequate in that regard. The assessment suggests that the cost of establishing a future reciprocal healthcare arrangement would be £630 million per year, which is the same as the current agreement and takes no account of inflation or future medical developments. The impact assessment’s suggestion that costs might actually be less than those we already incur is not credible.
We will be in uncharted waters, facing the prospect of the necessity to negotiate multiple agreements, some of which may be complex. As the former Secretary of State said,
“It is perfectly possible to agree the continuation of reciprocal healthcare rights as they currently exist, but it is not possible to predict the outcome of the negotiations.”
We agree that it is impossible to provide reliable estimations of likely costs in advance. We are therefore not prepared to give the Government carte blanche.
New clause 1 would provide a sensible requirement for the Government to report back to Parliament on an annual basis. Subsection 2(a) would require the Government to provide details of all payments made by the UK Government for healthcare provided outside the UK to British citizens. Subsection 2(b) would stipulate a requirement to provide details of all payments received by the UK Government in reimbursement of healthcare provided by the UK to all non-British citizens. Subsections (c) and (d) are straightforward and would require details of the numbers of citizens treated under reciprocal arrangements. Subsection 2(e) would write into law a requirement to report on all outstanding payments owed to or by the UK Government.
The Bill provides an opportunity to monitor efficiency in this area and may provide an incentive to address the concerns raised by the Public Accounts Committee in its 2017 report, “NHS treatment for overseas patients”. It stated,
“the NHS has been recovering much less than it should”,
and,
“The systems for cost recovery appear chaotic.”
That is not good enough and we would not want to see that poor level of performance replicated as a result of any new reciprocal agreements.
Currently, the Public Accounts Committee reports that there is no evidence that EU reciprocal health arrangements are being abused. However, there is an increased risk of poor performance on collection targets if there are multiple future arrangements with differential terms. Subsection 2(e) will enable ongoing parliamentary scrutiny of performance levels. While respecting that urgent medical care is provided to any patient who needs it, the NHS and the Department of Health and Social Care must always ensure that money due to the NHS is recovered. We need a system that is fair to taxpayers and to patients who are entitled to free care either by virtue of being a British citizen or under a reciprocal agreement.
It is clear that, even under current arrangements, the collection of moneys owed for healthcare provided to foreign nationals, together with the administration of existing reciprocal healthcare agreements, is an onerous task for hospital trusts. As we leave the EU, it might be necessary for the UK to enter into multiple complex arrangements on a bilateral basis. Indeed, the Bill gives powers to the Secretary of State to enter into any number of agreements, which would introduce additional considerable financial burdens on hospital trusts whose duty it will be to administer the collection of charges for NHS services provided to foreign nationals who retire to the UK or who visit the UK under future reciprocal arrangements. It is likely to be a more onerous process as a series of differential arrangements might be required. The BMA and the Royal College of Paediatrics both agree that, should it be necessary to establish bilateral reciprocal arrangements with EU nations, significant additional costs would fall on the NHS.
Subsection 2(f) would introduce a requirement for the Government to report the detail of all costs incurred by hospital trusts in the pursuance of that duty. Cuts to real-terms NHS funding since 2010, together with increased demand, have pushed many NHS hospital trusts into deficit positions. The NHS is underfunded and understaffed, and hospitals face all-year-round crises. It is therefore imperative that hospital trusts are not required to shoulder additional financial burdens because of the costs of administering the collection of charges. It is absolutely essential that all agreements reached within the remit of the Bill do not direct funds for the treatment of patients to administration.
Ordered, That the debate be now adjourned.—(Wendy Morton.)
Healthcare (International Arrangements) Bill (Third sitting)
Thursday 29th November 2018
(6 years ago)
Public Bill CommitteesRead Full debate Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 29 November 2018 - (29 Nov 2018)
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Minister for Health (Stephen Hammond)
Mr Streeter, it is a pleasure to see you in the Chair this afternoon and to serve under your chairmanship. The hon. Member for Burnley has moved the motion, and in responding, I will take the opportunity to deal with the important issues of financial reporting and facilitating parliamentary scrutiny.
I will say at the outset that there can be no suggestion, nor is it the Government’s intention, that we should have anything other than a commitment to transparency and transparent use of public money. We are also committed to appropriate parliamentary scrutiny: we have taken several significant steps to ensure that central Government data is published in a transparent way, including spending control. However, that needs to be done in an efficient and effective manner, and we need to know what data is available and is not available. I have problems with the hon. Lady’s new clause because such a detailed reporting requirement is premature, and risks the very thing that she seeks to avoid. She seeks to avoid placing an administrative burden on the public bodies, but that is exactly what the new clause might do.
We believe that the frequency and detailed content of a financial report should be determined once the reciprocal healthcare arrangements have been made and the technical and operational details of those agreements are known. At the moment, the collection of administrative data is facilitated by the registration and exchange of e-forms through the processes provided for in the relevant EU regulations. As a result, the UK and other EU member states are able to collect data and report both nationally and at an EU level, based on known processes. Current spending on EEA healthcare is reported as part of the Department of Health and Social Care’s annual report—which the hon. Member for Burnley may wish to look at, or may well already know about—as well as the accounts that are presented to this place. The Department also provides information to the European Commission for its triennial report on cross-border healthcare, as well as providing an annual statement of financial accounts to the Commission.
The Department is currently negotiating with the EU and individual states therein with a view to providing UK citizens with continued access to healthcare in the EEA, either through an agreement or through bilaterals. In that case, we will have to agree how eligibility is evidenced; how, and how often, that information is exchanged; and, of course, the reimbursement mechanisms that will govern the new arrangements. Those agreements will have to take into account the operational possibilities and limitations of each contracting party. That should include how NHS trusts in the UK can evidence eligibility for treatment, and how that can be done in the most efficient and least burdensome manner. I therefore say to the hon. Lady that much of the data she requests is already published. There is no suggestion that the new healthcare reciprocal arrangements will change the administrative burden; in certain cases, it is a simple matter of looking at coding within systems. However, only once the technical details are known will the Government be able to formally commit to any additional reporting, if necessary.
I am bound to say to the hon. Member for Burnley that when I saw that the new clause had been tabled, I remembered that 10 years ago, I was in the place she is in now. It is the traditional role of Oppositions to table these new clauses for almost every Bill; it is also the traditional role of Governments to reject them when they see them, as I remember only too clearly from when I was sat in the hon. Lady’s place. I therefore hope I have gone some way towards making clear to her that we are not trying to avoid any reporting requirement, or to shy away from any parliamentary scrutiny. There are already a number of reporting processes in place, and we want to make sure that any future reporting processes operate in a proportionate and considered manner. I hope that the hon. Lady will accept the spirit of my remarks, and that she will therefore choose not to press the new clause to a Division.
Julie Cooper (Burnley) (Lab)
It is a pleasure to serve under your chairmanship, Mr Streeter, and to respond to the Minister’s points. I appreciate some of his arguments, but we are in unprecedented times. As the Bill will facilitate the arrangement of a diverse range of agreements, it must cover every eventuality. It is therefore perfectly reasonable to expect the technical agreements, once they have been reached, to be reported back to Parliament annually. Parliament cannot be expected to grant a blank cheque. I accept that I do not have the Minister’s experience in this place, but large amounts of money will be spent on as yet unknown agreements, so it seems reasonable to request that, when the negotiations result in an agreement, it is reported back to Parliament once a year. That is the first thing that concerns me.
I should have thought that the Government would want to take the opportunity to report on the improved performance and collection of charges due to the UK in respect of all non-UK citizens seeking to access care in the UK.
Stephen Hammond
Indeed, and of course we are doing so. We have made that clear. As the hon. Lady knows, over the past four years we have quadrupled the amount of income we are recovering.
Julie Cooper
I am grateful to the Minister for that clarification, but my understanding is, as the Public Accounts Committee reported, that the Government have still not met their own targets on improved collection, and there will potentially be greater barriers to protection if several agreements are negotiated. I therefore want Parliament to have the opportunity to scrutinise the Government’s delivery on collection.
I am concerned that the Minister does not think it fitting for Parliament to have sight of an impact assessment of the additional burdens that the collection resulting from the as yet unknown agreements would have on NHS hospital trusts’ general financial wellbeing. I will press this new clause to a Division. I think it is sensible and reasonable, so there can be no cause to object to it.
Question put, That the clause be read a Second time.
Justin Madders (Ellesmere Port and Neston) (Lab)
I beg to move, That the clause be read a Second time.
It is a pleasure to serve under your chairmanship, Mr Streeter. I recall that the first Westminster Hall debate that I secured was under your chairmanship. Indeed, you were also in the Chair the first time I was the Opposition Front-Bench spokesman in a Bill Committee. In these turbulent times, you are a consistent and familiar face—certainly to me and, hopefully, to many other hon. Members.
Reciprocal healthcare is of most importance for those countries where it is accessed most—none more so than on the island of Ireland. When the British Medical Association gave evidence on Tuesday, it was clear about the success story that has been achieved, particularly in the border area, particularly with a dispersed population of around 2 million. It said:
“Given the population demands on the whole island of Ireland, both in the Republic of Ireland and Northern Ireland, there have been some fantastic examples of where clinicians have either co-located services in a particular trust or facility where there is not the demand from the local population to warrant it, or travelled across the border to work on different sites.”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 27 November 2018; c. 4, Q10.]
Fiona Loud from Kidney Care UK raised the example of patients who currently cross the border daily for their care and treatments. She also mentioned organ donation and organ sharing, and the need to ensure that the existing and very successful arrangements that we have are preserved.
It is easy to talk about scaremongering when we raise the spectre of patients being turned away at the border, and I am sure that we will all do our utmost to ensure that such circumstances do not arise, but we are talking about really important issues here. The healthcare arrangements on the island date back to before the UK and the Republic of Ireland joined the EU, but they are now underpinned by EU law, so we cannot simply revert back to the old arrangements, should a full EU-wide deal not be reached.
I was concerned about the lack of consideration given to the issue in the supporting documents and in the contribution from the previous Minister, the right hon. Member for North East Cambridgeshire (Stephen Barclay), on Second Reading. If we do not get this issue right, the Bill will be a failure. The amendment would ensure that the provisions do not reach the statute book until clarity on this hugely important issue is provided. I appreciate that article 13 of the Northern Ireland protocol in the withdrawal agreement indicates a desire to continue north/south co-operation in a range of areas, including healthcare, but that does not help us if Parliament does not support the withdrawal agreement. That is why the amendment asks for a strategy to be provided as a matter of urgency.
Stephen Hammond
The new clause deals with the crucial question of healthcare on the island of Ireland. It focuses on reciprocal access to healthcare between Northern Ireland and Ireland, if there is no UK and EU deal, and would require the Secretary of State to set out plans for an agreement to protect medical access for British and Irish citizens moving between Ireland and Northern Ireland.
We agree that it is absolutely our intention to do two things. First, there should be a deal for reciprocal arrangements between the UK and the EU, and secondly, it is absolutely essential, in the unlikely scenario of no deal, that essential access continues. The UK and Ireland are committed to protecting reciprocal healthcare rights, so that UK and Irish nationals can continue to access healthcare when they live in, work in or visit the other country. We also want to maintain the co-operation between the UK and Ireland on a range of medical issues, including planned treatment, public healthcare and workforce. It is absolutely the intention of the Government that people should be able to live their lives as they do now, and that our healthcare systems support one another.
If there is no deal—in that unlikely scenario—the UK and Ireland will want to set out how we both agree to protect reciprocal healthcare arrangements, but it is also true, and the hon. Gentleman will know, that the UK Government are firmly committed to maintaining the common travel area and to protecting the rights currently enjoyed by UK and Irish nationals when in each other’s states. The hon. Gentleman’s issue about the border is mitigated by the fact that the UK Government are committed to maintaining the common travel arrangements, which allow full protection and maintenance of the status quo for all journeys for individuals between the UK and Ireland. It is currently estimated that there are something like 110 million crossings.
As I said earlier, as with other member states, we would expect to have a healthcare agreement between the two countries in the unlikely situation that there were no deal—an agreement that could be implemented into legislation that would provide the reassurances that the hon. Gentleman seeks. The NHS charging regulations can already exempt individuals that are covered by reciprocal healthcare arrangements. We can also use the powers in the Bill to maintain aspects of our current co-operation, such as reimbursement for healthcare costs and the sharing of data to support entitlements. I therefore say to the hon. Gentleman that I do not think the new clause is necessary, given the clear commitment by both sides. I hope he recognises that commitment and does not feel that he needs to press the new clause to a vote.
Justin Madders
I am minded not to press the new clause to a vote if the Minister assures us that he will endeavour to keep us updated on the contingency plans, if it looks like we are approaching a cliff-edge scenario. That is really what we are trying to achieve.
Stephen Hammond
Let me make the hon. Gentleman the same offer that I made to the hon. Member for Burnley. In that unlikely scenario, I guarantee that I will make my officials available to give a briefing to the hon. Gentleman and any member of the Committee who wishes to understand what our proposals are.
Justin Madders
I am content with the Minister’s comments. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 3
Strategy for settling disputes concerning healthcare agreements
(1) The Secretary of State must, within one month of this Act receiving Royal Assent, lay before Parliament a strategy containing a defined process for settling disputes concerning healthcare agreements between the government of the United Kingdom and either the government of a country or territory outside the United Kingdom or an international organisation.
(2) The strategy under section 1 above must include information on—
(a) the body, bodies or jurisdiction that will be responsible for settling disputes;
(b) the process which will be followed by that body, bodies or jurisdiction when settling a dispute, including details of any further appeal mechanisms; and
(c) anything else the Secretary of State thinks is relevant to such a strategy.—(Justin Madders.)
Brought up, and read the First time.
Justin Madders
I beg to move, That the clause be read a Second time.
On Second Reading, I spoke about the importance of dispute resolution, and asked the then Minister for Health, the right hon. Member for North East Cambridgeshire (Stephen Barclay), to set out how he envisaged it operating in both a deal and a no deal scenario. Despite some prompting from me and my hon. Friend the Member for Weaver Vale (Mike Amesbury), the Minister was not able to set out how dispute resolutions will be handled under the terms of any new agreement or even if the European Court of Justice will continue to represent a red line for the Government. The latter point is particularly interesting, given the new role of the right hon. Member for North East Cambridgeshire. It appears that he did not provide detail on that point because, at that stage, the Government were simply not in a position to confirm what was in the draft withdrawal agreement.
The Prime Minister categorically ruled out any jurisdiction of the European Court of Justice very early in the process, but I have yet to hear any serious suggestion about how disputes can be resolved, if we manage to reach a full reciprocal healthcare agreement with the EU27 beyond the transition period, without some reference back to the ECJ. The same concerns would apply if bilateral agreements were necessary in a no deal scenario.
Given the importance that the Prime Minister and members of her Cabinet have placed on the ECJ following our exit from the European Union, it is curious to say the least that we do not have a clear statement of intent from the Government while we debate this Bill. If their position continues to be that we will not have truly left the European Union if we are not in control of our own laws, as the Prime Minister put it in January 2017, it is vital that we have clarity about the arrangement that will be used in place of the ECJ. If a new arrangement is established, what will the cost be? Who will the judges be? Where will it be based? Will it be an open process?
If, on the other hand, we look to the ECJ for dispute resolution after all, even if only in the limited area of reciprocal healthcare, would that not represent a significant political U-turn? This issue is fundamental to the Government’s approach to Brexit. For example, they decided that we could not continue to host the European Medicines Agency, causing it to go to Amsterdam at the cost of 900 jobs in this country, and potentially hundreds of millions of pounds of investment. The Health Secretary’s sole justification for that was that the Government were not prepared to accept the European Court of Justice’s jurisdiction. Our purpose in tabling this new clause is to get clarity from the Minister about whether the European Court of Justice remains a red line for the Government.
Stephen Hammond
The new clause would place a duty on the Secretary of State to lay before Parliament a detailed strategy defining the process for settling disputes concerning healthcare agreements after we leave the European Union. No one in the room would dispute the spirit behind the new clause. As I have stated throughout our examination of the Bill, it is right that there should be transparency regarding the UK’s future relationship with the EU and other countries after exit. It is right that that transparency should apply to the arrangement of future healthcare agreements, and the processes that underpin them, such as dispute resolution, but, although I agree with the spirit of the new clause, I am not entirely sure that it would achieve its intended aim. I will give a number of reasons why.
The new clause would confer a duty on the Secretary of State to lay a strategy on the process for dispute resolution before Parliament. Both in a deal and a no deal scenario, such a strategy would be unlikely to provide information on the process for settling disputes concerning healthcare agreements that is not already available in the public domain. That is not due to a lack of endeavour; it is an issue of timing and consideration of what is already publicly available. In the expected scenario that the UK agrees a deal with the EU, the proposed process for settling disputes has already been confirmed in the White Paper on the future relationship, the draft withdrawal Bill that governs the implementation period and, most recently, the political declaration on the future relationship between the UK and EU. The processes have already been confirmed. They are outlined in those documents and would apply not only to disputes, but clearly therefore to disputes in any reciprocal healthcare agreement.
The hon. Gentleman asks what the dispute mechanism is. I am sure that the Committee will be pleased that I am not going to quote extensively from the withdrawal agreement, but it is worth putting on the record that the mechanism for resolving disputes will be through consultation at the Joint Committee, with the aim of reaching a mutually agreeable resolution. If the parties are not able to resolve the dispute in the Joint Committee, either party can request the establishment of an independent arbitration panel to resolve it. The panel will be made up of five members, with one person being the chairperson. The UK and the EU will nominate two members to sit on the panel and then mutually agree the fifth member, who will be the chairperson. The panel members will act independently and do not represent the party that nominated them. It is binding that the panel members be independent and impartial and they must possess specialised knowledge or experience of EU law and international law.
The hon. Gentleman challenges me on the role of the ECJ. He is right that the ECJ has a role here, but its role is very clear and very limited. The role of the ECJ after the implementation period will be restricted to ensuring the correct interpretation of EU law. There is no suggestion that the ECJ will determine the dispute, or that we would ever agree to the ECJ determining the dispute.
That is the likely scenario and the processes that are already formally set out via the documents that I described earlier. In the unlikely scenario that the UK leaves the European Union without a deal, the United Kingdom will arrange reciprocal healthcare agreements, and in those agreements, there will have to be bilateral dispute resolution. That would clearly have to be determined on a case-by-case basis as part of the negotiations to put those bilateral healthcare agreements in place, and, therefore, there is unlikely to be a single dispute resolution process, which is what the new clause suggests, so while I accept the spirit of it, the wording would restrict the ability for future reciprocal healthcare arrangements.
More importantly, the requirement for such a strategy to be laid before the House one month after the Bill receives Royal Assent does not align with the aim of the Bill to provide future reciprocal healthcare agreements with countries both inside and outside the EU. Clearly, those agreements are likely to be negotiated over a period of time and, as I have just mentioned, the dispute resolution mechanisms within them are likely to be different and may vary. It would therefore be arbitrary and unhelpful to produce a general strategy immediately after Royal Assent.
I understand the intention behind the new clause, but it would place an unnecessary burden and duty on the Secretary of State. In a deal scenario, the procedures are already there. In the unlikely no deal scenario, it would be likely to frustrate the ability to put in place future reciprocal healthcare agreements.
I hope that, having heard that, the hon. Gentleman will accept that, although we understand the spirit of his new clause, its wording would be likely to frustrate the purpose of the Bill. I therefore ask him not to press it to a vote.
Justin Madders
I am grateful to the Minister for setting that out in more detail than we were able to elicit on Second Reading. Given that the withdrawal agreement had not been published at the time, I understand why the then Minister was not able to do that. The present Minister has been very helpful in setting out the process for leaving with a deal. He is right that, if we leave without a deal, we are in uncharted territory. I do not think I heard any confirmation that there are red lines, in terms of the European Court of Justice, in that scenario. That is really what the new clause was meant to establish. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 4
Duty to consult with devolved administrations
Before issuing any regulations under this Act, the Secretary of State must consult the Scottish Government, the Welsh Government and the Northern Ireland Government and have regard for their views on the regulations.—(Justin Madders.)
Brought up, and read the First time.
Justin Madders
I beg to move, that the clause be read a Second time.
I hope this is a straightforward and uncontroversial new clause. We have already spoken about the importance of reciprocal healthcare arrangement to citizens in Northern Ireland, and of course there will also be an impact on patients in Wales and Scotland. The Scottish and Welsh Governments have clearly and robustly articulated their support for a continuation of reciprocal healthcare agreements, and why would they not?
The Delegated Powers and Regulatory Reform Committee was clear in its recommendation that there should be active participation of the devolved Administrations in setting out the UK’s position in future arrangements, but I am not aware that there have been any discussions. I would be grateful if the Minister could set out what conversations have taken place, because we did not get clarity on that on Second Reading.
The new clause repeats some of the issues that we raised this morning, which you did not have the pleasure of hearing, Mr Streeter. It is about the scope and power of the Bill and the wide range of duties given to the Secretary of State, which will be subject to the negative procedure. We think it is important that, as part of the Bill, when those wide powers are given to the Secretary of State, there must be a clear duty to consult with the devolved Administrations before those regulations are enacted.
The Fisheries Bill and the Agriculture Bill have dealt extensively with the need to involve the devolved Administrations. I think this is the bare minimum that we need. It would represent a consistent and equitable approach across the devolved nations, in terms of our future relationship with the EU.
Stephen Hammond
It is a pleasure to respond to this new clause, which addresses the extraordinarily important issue of engaging and working with the devolved Administrations. We completely agree that regulations made under the Bill may relate to devolved matters, by which I mean domestic healthcare. The Government will engage and meaningfully consult with the devolved Administrations in line with our existing arrangements, as found in the 2012 memorandum of understanding between the UK Government and the devolved Administrations, and the principles that underlie relations between us. That reinforces the positive work that the UK Government continue to do with the devolved Administrations daily for the benefit of the whole of the UK on this matter.
I am forced to reflect that, though the hon. Gentleman’s new clause is not necessary, the sentiment behind it is shared by everyone in Committee, I suspect. The regulation-making powers in the Bill provide us with a legal mechanism to implement international agreements domestically. The Bill will ensure that we can broadly continue reciprocal healthcare arrangements, where agreed with the EU, to the benefit of the residents of England, Wales, Scotland and Northern Ireland. The powers offer flexibility and can be used to implement comprehensive healthcare agreements with third countries in the future for the benefit of all UK nationals.
Justin Madders
The Minister has put on record pretty clearly his intention in respect of ongoing and continued engagement with the devolved institutions. He is right that we are concerned that the powers under the Bill are wide. Those concerns remain, but in so far as they involve the new clause, his comments have done enough to assure us that it will not be necessary for us to press it to a vote.
I echo the Minister’s sentiments, given that we are now making the closing remarks of this Bill Committee. I thank you for chairing, Mr Streeter, and hon. Members for participating in Committee today.
I look forward to Report. We need to continue to explore some important issues, but we must move forward with this legislation, as is necessary in this uncertain time. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Bill to be reported, without amendment.
Healthcare (International Arrangements) Bill
Monday 21st January 2019
(5 years, 11 months ago)
Commons ChamberRead Full debate Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 21 January 2019 - (21 Jan 2019)
19:16 - The House divided: - Ayes: 260 / Noes: 295 - Question accordingly negatived.
19:31 - The House divided: - Ayes: 261 / Noes: 298 - Question accordingly negatived.
Mr Deputy Speaker (Sir Lindsay Hoyle)
I should inform the House that notification has been received that the Scottish Parliament has agreed to the legislative consent motion in respect of this Bill. Copies will be available in the Vote Office.
New Clause 1
Annual report on the cost of healthcare arrangements
‘(1) The Secretary of State must lay before Parliament an annual report setting out all expenditure and income arising from each healthcare arrangement made under this Act.
(2) The annual report laid under subsection (1) must include, but is not limited to—
(a) all payments made by the government of the United Kingdom in respect of healthcare arrangements for healthcare provided outside the United Kingdom to British citizens;
(b) all payments received by the government of the United Kingdom in reimbursement of healthcare provided by the United Kingdom to all non-British citizens;
(c) the number of British citizens treated under healthcare arrangements outside of the United Kingdom;
(d) the number of non-British citizens treated under healthcare arrangements within the United Kingdom;
(e) any and all outstanding payments owed to or by the government of the United Kingdom in respect of healthcare arrangements made before this Act receives Royal Assent; and
(f) any and all administrative costs faced by NHS Trusts in respect of healthcare arrangements.
(3) The information required under section 2(a) and 2(b) above must be listed by individual country in every annual report.”—(Justin Madders.)
Brought up, and read the First time.
Justin Madders (Ellesmere Port and Neston) (Lab)
I beg to move, That the clause be read a Second time.
Mr Deputy Speaker (Sir Lindsay Hoyle)
With this it will be convenient to discuss amendment 1, in clause 5, page 3, line 44, leave out subsections (5) and (6) and insert—
‘(5) Any statutory instrument which contains regulations issued under this Act may not be made unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House.”
This amendment would make all regulations issued under this Act subject to the affirmative procedure and require approval from Parliament before they become law.
Justin Madders
We want to ensure that there are appropriate safeguards with regard to costs, not least because the Bill currently gives the Secretary of State authority not only to facilitate a continuation of existing arrangements, but to enter into any number of bilateral agreements with individual member states, with very little opportunity for parliamentary scrutiny. It also provides the authority to strengthen existing reciprocal healthcare agreements with countries outside the EU, or to implement new ones across the globe, in line with the Government’s aspiration to develop trading arrangements with countries beyond the EU. There is therefore a potential for the establishment of multiple complex agreements.
New clause 1 addresses the important point that the Bill before us is rightly intended to provide for all reciprocal healthcare arrangements in the future, and to provide for all eventualities. As we know, a no-deal Brexit could lead to a multitude of new bilateral agreements within the EU27, let alone the rest of the world. At this stage, none of us can be clear about how many of those agreements will come into being. We cannot assess their likely cost or impact, and, indeed, the Government’s own impact assessment is inadequate in that regard. It suggests that the cost will be similar to, or lower than, the current £630 million per year.
Mr Jim Cunningham (Coventry South) (Lab)
My hon. Friend has mentioned potential bilateral agreements with different countries. Does he agree that there could be a problem if our citizens are not covered when travelling to those countries for a variety of purposes, and insurance companies send premiums through the roof? That is always a big factor, even with the current arrangements in Europe.
Justin Madders
It is true that there is some concern in the insurance industry about our potential failure to secure bilateral agreements. I think it inevitable that unless those agreements are secured, premiums will rise. That is why the Opposition support the thrust of the Bill.
It is impossible to provide reliable estimates of the costs of the new agreements in advance without knowing who they would be with or what they would cover. The British Medical Association has said that any prediction of costs is likely to be unreliable, and we cannot afford to give the Government carte blanche.
New clause 1 proposes a sensible and very reasonable requirement for the Government to report back to Parliament annually. It would require the Government to provide details of all payments made by the UK Government for all healthcare provided outside the UK to British citizens. It would also stipulate a requirement to provide details of all payments received by the UK Government as reimbursement for healthcare provided by the UK to all non-British citizens. It would also write into law a requirement for the Government to set out any outstanding payments owed to, or by, the UK Government. This would provide an important opportunity to monitor efficiency in this area and may provide an incentive to address some of the concerns raised by the Public Accounts Committee in its 2017 report, “NHS treatment for overseas patients”, which stated that
“the NHS has been recovering much less than it should”,
and
“The systems for cost recovery appear chaotic.”
Even with the Government’s recent funding announcements, the NHS continues to struggle. I am sure that the Minister would not want to see funds destined for patient care swallowed up by the additional administrative burden created by the introduction of a range of complex charging arrangements and a failure to recover the costs that have been incurred. It is imperative that hospital trusts are not required to shoulder additional financial burdens because of the costs of administering the collection of charges. That is why if the Government are, as the Minister said in Committee, committed to transparency and parliamentary scrutiny, new clause 1 should be supported.
Turning briefly to the amendment that I tabled, we have discussed previously widely held concerns about the scope of this Bill that are exacerbated by the fact that the powers contained within it to create regulations will, in many cases, be subject only to the negative procedure. The Delegated Powers and Regulatory Reform Committee in the other place set out very clearly the potential impact of this Bill should my amendment not be accepted today. It said:
“If…the Secretary of State wished to fund wholly or entirely the cost of all mental health provision in the state of Arizona, or the cost of all hip replacements in Australia, the regulations would only be subject to the negative procedure.”
It added:
“Of course, these examples will not be priorities for any Secretary of State in this country”.
I am sure that is the case, but we must consider how the powers could be used, not just how we would expect and hope them to be used.
There is always merit when examining legislation in considering all potential scenarios as well as the stated intentions of the Government at the time, and in such an unprecedented period of uncertainty it is prudent to consider all eventualities. As the Government have included these powers in the legislation we cannot simply consider the world as it is now, nor how it might be in a year or two—indeed, if anyone knows what the world will be like in two or three weeks’ time I will be very impressed. We need to look at what the world might be like in many years’ time and how the powers in the Bill can be used.
If we require further persuasion about the need for caution, the Committee set out in its report a devastating list of reasons why the negative procedure is inappropriate. It said:
“There is no limit to the amount of the payments. There is no limit to who can be funded world-wide. There is no limit to the types of healthcare being funded. The regulations can confer functions (that is, powers and duties, including discretions) on anyone anywhere. The regulations can delegate functions to anyone anywhere.”
The Committee concluded:
“In our view, the powers in clause 2(1) are inappropriately wide and have not been adequately justified by the Department. It is particularly unsatisfactory that exceedingly wide powers should be subject only to the negative procedure.”
Just for good measure, it went on to describe the powers sought in the Bill as “breath-taking”.
Parliament is not alone in having concerns about the scope of the clause and the lack of clarity about how the powers might be used. In the Committee evidence session, Raj Jethwa, director of policy at the British Medical Association said:
“We would like to see much more emphasis on scrutiny of all the discussions in the arrangements going forward.”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 27 November 2018; c. 6, Q14.]
Picking up on the Committee’s comments, despite the Government having ample opportunity both on Second Reading and in Committee to justify the need for these exceedingly wide powers, I believe that the arguments that they advanced during the passage of the Bill have not only failed to do so, but have strengthened the case for greater scrutiny. The Minister conceded in Committee:
“The Bill also provides flexibility to fund healthcare even where there is no bilateral agreement, which we might explore using in exceptional circumstances to secure healthcare for certain groups of people.”
That is the nub of it: we know the well-rehearsed and necessary reasons why the Bill is required to secure the continuation of arrangements as we leave the EU, but it is on the record that the Bill can potentially do far more than that. We do not know what those exceptional circumstances are, and we do not know who those groups of people might be, and even if the Minister were able to set out here and now what he was referring to in that statement, he cannot bind a successor to that. The Bill gives the Secretary of State what I might describe as Martini powers: any time, any place, anywhere. If he is to have such wide powers they must at the very least be subject to the affirmative procedure.
The Minister also said in Committee that not only would the Bill encapsulate existing healthcare agreements but that it
“will potentially add to their number as part of future health and trade policy.”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 29 November 2018; c. 23-24.]
That is also a concern. I do not know whether the Minister intended it to come across as it did, but it sounded very much to me as if the Government were intending to couple trade negotiations with access to healthcare. I hope that that is not the case.
Many people have expressed concern over a number of years that the Government appear willing to open up the NHS to American private healthcare companies as part of trade negotiations, but I am not sure that many people imagined that the Government also had designs on opening up the NHS to patients around the world as part of a strategy to secure trade deals with other nations. Perhaps I am wrong about that, but it is clear that the Bill can be used in that way, which is why any arrangements ratified under it need proper scrutiny.
We also to consider the impact of new arrangements on the NHS. Alastair Henderson, chief executive of the Academy of Medical Royal Colleges, said in the Committee evidence session:
“Both clinicians and health organisations are concerned that we could end up with a system that is both administration-intensive and time-intensive.”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 27 November 2018; c. 3, Q4.]
We went through some of the implications of that when discussing new clause 1.
Finally, there is a practical element to this. As we know, under the negative procedure, once an instrument is laid in draft it cannot be made law if the draft is disapproved within 40 days. This would be done via a prayer against, usually by way of an early-day motion. If that is not invoked then the legislation is passed. Under the negative procedure, that is still a 40-day process in the best-case scenario, and if we leave without a deal the Secretary of State in the next three weeks will have to reach agreement with each of the 30-plus other countries, sign those agreements, draft statutory instruments and lay them before Parliament so they are with us no later than Friday 15 February, the last date on which they could be laid in order for them to be passed by 29 March—and that is assuming they are not prayed against.
If we assume this Bill completes Third Reading today, that gives the Lords about three weeks to complete their consideration—and the Minister will no doubt be crossing his fingers that they do not table any amendments. That seems to be a tall order, and given the Committee’s comments on this amendment the Lords may well be minded to send the measure back to us, but in either case it all seems rather a tight, if not unrealistic, timetable. I therefore urge the Minister to think through the practicalities of this; the affirmative procedure could be significantly quicker than the negative one, and it has the advantage of being far more transparent.
The Minister tried to reassure me in Committee that there would be adequate scrutiny by virtue of the Constitutional Reform and Governance Act 2010, but I am afraid that that just does not cut the mustard. Under that Act, there is a specified process enabling Parliament to object to a treaty being ratified within 21 days, but that does not automatically lead to a debate and a thorough examination of the issues of concern. The Act simply says that in the event of an objection the Government must issue a statement setting out why they still want to ratify; this process could apparently be repeated ad infinitum, and crucially under the Act there is no requirement for a debate. It would be open to either Government or Opposition to set aside some of their allotted time to facilitate a debate, but there is no requirement to do so. In addition, there are exceptions that enable the Government to ratify treaties outside the Act—for example, if there are “exceptional circumstances”, which of course is a judgment that is within Government’s gift. The measure does not cover memorandums of understanding either, and some of the older reciprocal healthcare arrangements fall within that description.
Putting new agreements into force in these extraordinary circumstances is necessary, but we simply cannot accept the clause as it stands. No matter how well-intentioned everyone might be now, once that power has been given away it is not easily taken back. Do Members want us to fund hip replacements in Arizona? Are Members comfortable with access to the NHS being used as a bargaining chip in trade deals? Of course they are not, so why do they not vote for the amendment tonight?
Martyn Day (Linlithgow and East Falkirk) (SNP)
I suspect this debate will be slightly less contentious than the earlier statements, and probably a lot quicker.
The Bill basically gives powers to the Secretary of State to agree reciprocal deals. However, I believe that we will not get a better reciprocal arrangements than those we currently have. We recognise the need for all these arrangements to continue, and the Scottish Government will do all they can to work with the UK Government to ensure that they do, and of course we note the legislative consent motion that has been granted. Through the Joint Ministerial Committee we believe a common framework system can be achieved that ensures these specific health arrangements can be administered through common agreement between the UK and Scottish Governments. Clearly, Brexit threatens the loss of reciprocal healthcare arrangements for millions in Scotland and across the UK. The Bill’s impact assessment makes this conclusion in relation to a no-deal scenario:
“If UK citizens in the EU are treated as 3rd country nationals (i.e. they cease to have rights of movement and access to services in EU Member States, and are treated like citizens coming from non-EU countries) some may face additional financial costs or difficulties accessing healthcare services, with potential implications for their health and wellbeing.”
The Minister for Health (Stephen Hammond)
It is a great pleasure to bring the Bill to its Report stage tonight. Before I address new clause 1 and amendment 1, it might help the House if I set out with clarity what the Bill actually does. It provides the powers to fund and arrange payments for healthcare for UK residents, or indeed former residents, outside the UK as well as to share the necessary data to facilitate this. In a deal scenario, the Bill’s powers would support the Government’s attempts and motivation to implement a future relationship with the EU from 2021 and bilateral arrangements with individual member states, should the EU agreement fall short. In a no-deal scenario, the powers would ensure that the UK was prepared for any outcome. This could include implementing any negotiated reciprocal healthcare arrangements, which might differ from the current EU arrangements, or making unilateral arrangements for UK nationals in order to assist with accessing healthcare abroad in exceptional circumstances.
I am grateful to the hon. Member for Ellesmere Port and Neston (Justin Madders) for tabling new clause 1, because it gives me the opportunity to reiterate what I said in Committee about the important issue of financial reporting and facilitating parliamentary scrutiny. I note that, in Committee, the hon. Member for Burnley (Julie Cooper) tabled exactly the same provision as new clause 1, and that it was defeated. I said at the time that I recognised the new clause as a device that Oppositions always used. That does not make it any less relevant, but I explained that the Government were committed to openness when it came to the managing of public money. Expenditure by the Department of Health and Social Care relating to EU reciprocal healthcare arrangements is currently published in this place in the form of annual resource accounts, and will continue to be so. However, given that we do not know the provisions and administrative processes of future reciprocal agreements, the Government are once again unable to accept the proposal. As now, the Department’s future expenditure on reciprocal healthcare would be subject to the existing Government reporting requirements.
However, the hon. Gentleman’s new clause asks the Government to place a statutory duty on future Administrations to collect and report on data, which we have not yet agreed to exchange with other countries. This cannot be appropriate. The frequency and detailed content of a financial report should and could be determined only when reciprocal healthcare agreements have been reached. Currently, the UK and other EU member states are able to collect data and report both nationally and at EU level, as provided for in the relevant EU regulations. Spending on EU healthcare is reported as part of the Department of Health and Social Care annual report and accounts laid before this place.
My Department is currently working to ensure that UK nationals can continue to access healthcare in the EU in exactly the same way as they do now, either through an agreement at EU level or through agreements with the relevant member states. In either case, we will have to agree how eligibility is evidenced, the way in which and frequency with which that information is exchanged and, of course, the reimbursement mechanisms that will govern the new agreements.
Lady Hermon (North Down) (Ind)
I have listened closely to what the Minister has said. It would be helpful if he could offer some reassurance to Irish citizens living in Northern Ireland who, under the terms of the Good Friday/Belfast agreement, are entitled to regard themselves as Irish citizens, British citizens or indeed both. I presume that their rights will continue unchanged in Northern Ireland after Brexit. Am I right?
Stephen Hammond
The hon. Lady is completely correct. We explored that in Committee, and discussed the purposes of the common travel area. Indeed, there was an explicit debate in Committee on the arrangements for Northern Ireland. I am happy to confirm that to her.
Each of the agreements that we are seeking to strike could differ from country to country. Such agreements will have to take into account the operational possibilities and limitations of each contracting party, to ensure the smooth operation of reciprocal healthcare arrangements. This should include how NHS trusts in the UK can evidence eligibility for the treatment of non-UK citizens in the most efficient and least burdensome manner. Only when these technical details are known will the Government be able to speak confidently to the specific measures that we can report on for each country. Regardless of the specifics of any arrangements entered into, and as with all departmental expenditure, reciprocal healthcare costs are and will continue to be authorised by the Treasury supply process and to be included in the Department’s annual estimates, as well as being included in the annual resource accounts, which are audited by the Comptroller and Auditor General. I said in Committee that I hoped that the hon. Member for Ellesmere Port and Neston would be satisfied by that commitment to transparency, and I give that commitment again tonight. With that, I hope that he will feel able to withdraw new clause 1.
Turning to amendment 1, the hon. Member for Ellesmere Port and Neston again raised the important issue of appropriate levels of parliamentary scrutiny. The Government clearly recognise the importance of such scrutiny for this Bill and for secondary legislation made under it. The hallmarks of an effective and responsible parliamentary system are the processes by which we draft, consider and test legislation, and the appropriate parliamentary procedure for the scrutiny of regulations made under this Bill is the negative resolution procedure. The exception to that is where provision within regulations is needed to make consequential changes to amend, repeal or revoke primary legislation. Consequently, the Government are once again resisting that amendment.
As I have said previously, the powers in this Bill provide the Government with both the flexibility and the capacity to implement detailed and complex arrangements concerning healthcare access abroad. The remit of our regulation-making powers is tightly focused. They can be used only to give effect to healthcare agreements or arrange, provide for or fund healthcare abroad. Therefore, the subject matter to which the regulations relate is narrow. I say again that when regulations amend, repeal or revoke primary legislation, they will of course be subject to the affirmative resolution procedure, which is the appropriate level of scrutiny for such powers. However, where statutory instruments do not make changes to primary legislation, and deal with procedural, administrative or technical provisions, they should be subject to the negative resolution procedure, and that is reflected in our approach to this Bill.
We have been clear about our intentions for reciprocal healthcare in the context of exiting the EU. In the short term, our policy is to maintain the current system of reciprocal healthcare with the EU on a transitional basis until the end of 2020. That would happen automatically if there is an implementation period, and it is something that we are seeking to agree individually with member states in the event of no deal.
Kevin Foster (Torbay) (Con)
I welcome the Minister’s confirmation of the Government’s intentions behind this Bill. Will he confirm that the nonsense we heard from the shadow Minister about funding hip operations in Arizona is absolute tosh? While the shadow Minister may be enthusiastic about the healthcare system in the United States, will the Minister confirm that we are not?
Stephen Hammond
My hon. Friend is right. I said continually in Committee and I say it again now that this Bill is tightly focused in terms of the regulations that can be made under it. We want long-term reciprocal healthcare arrangements with the EU or relevant member states, and that is the Bill’s focus.
When the UK negotiates an international healthcare agreement in the future, the most important elements setting out the terms of that agreement would, as Members should expect, be included in the agreement itself. Such agreements are likely to contain all the detail of which Parliament should have due consideration, such as who is covered under the terms of that agreement. In contrast, the regulations implementing the agreement would not include anything fundamentally new. They would contain the procedural, administrative and technical details, such as the types of documents or forms to be used. It is therefore right that regulations issued under this Bill be subject to the negative procedure. That is an appropriate use of parliamentary time. Were we to accept amendment 1, it is likely that this Parliament would find itself debating whether the forms required to process reciprocal healthcare arrangements should be changed. That would clearly be a misuse of Parliamentary time.
I once again reassure the House that Parliament will have the opportunity to undertake appropriate scrutiny of future binding healthcare arrangements. Where we strike a comprehensive healthcare agreement with the EU or with individual member states, that agreement would be subject to the appropriate parliamentary scrutiny. Part 2 of the Constitutional Reform and Governance Act 2010 sets out the process under which Parliament can review what are intended to be legally binding healthcare agreements. That provides an opportunity for parliamentary scrutiny in respect of the substance of healthcare agreements. Implementation of such an agreement, if that is by way of regulations under the Bill, will then be subject to its own scrutiny before ratification of the healthcare agreement.
Everyone in this House wants reciprocal healthcare arrangements. Overwhelming support for reciprocal healthcare has been shown throughout the passage of this Bill, including in Committee during the evidence sessions with the expert witnesses. We heard directly from several Members and evidence was presented, and there is a clear desire for current arrangements to continue.
Stephen Hammond
I beg to move, That the Bill be now read the Third time.
We have had a productive debate on the Bill, and I am grateful to all Members, including those who recently contributed, who have engaged so constructively with the passage of the Bill and demonstrated a shared commitment to protecting the healthcare-access options of UK nationals in the EU. The support shown to the Bill throughout its passage shows the value of reciprocal healthcare. I wish to put on record my appreciation for the consensual approach shown by all parties in the House, and particularly to note the contributions from the hon. Members for Burnley (Julie Cooper) and for Ellesmere Port and Neston (Justin Madders). Not only in Committee but on Report, they raised objections but were very helpful in respect of the passage of the Bill.
Although the Bill is short, it is nevertheless important. The powers it contains will ensure that we are prepared, whatever the outcomes of exiting the EU are, and also that we are able better to implement complex reciprocal healthcare agreements with members and non-member states. Powers under the Bill will enable the UK to fund and give effect to our future relationship with the EU on reciprocal healthcare. The Bill allows us to look to the future. The powers it contains will allow us to implement strengthened reciprocal healthcare arrangements, or new ones with countries outside the EU. It is necessary to provide the Government with the powers to ensure a smooth transition from our current relationship with the EU to the future one.
Let me take this opportunity to thank those Members who served on the Public Bill Committee, in particular my hon. Friend the Member for South West Devon (Sir Gary Streeter) and the hon. Member for Blackley and Broughton (Graham Stringer), who ably chaired the Committee. I reiterate my thanks to those who gave oral evidence to the Committee and to those who provided written evidence, including Mr Alastair Henderson, Mr Raj Jethwa, Ms Alisa Dolgova and Ms Fiona Loud. Their expertise and perspectives were vital in understanding the importance and impact of reciprocal healthcare arrangements to medical professionals, insurers and, most importantly, the patients. I also put on record my thanks to my officials, who have guided me through this process.
As a responsible Government, it is important that we plan not only for every eventuality currently before us but for the future. The Bill is intended to provide reassurance to UK nationals living in the EU or those planning to travel to the EU. Again, I thank Members for their support. I commend the Bill to the House.
Julie Cooper (Burnley) (Lab)
First, as the Bill is given its Third Reading, may I thank all Members who have contributed?
We will not oppose the Bill at this stage, as we acknowledge the importance of safeguarding healthcare for the estimated 190,000 UK expats living in the EU and the 50 million nationals who travel abroad to EEA countries each year. That is not to say that the Bill is perfect—far from it. There are issues that for us remain unresolved, and we are anxious about the implications of the sweeping powers that the Bill will give the Secretary of State. We hope that Members in the other place will pick up on some of these concerns.
We are now only 67 days away from formally leaving the EU. On Second Reading—which, coincidentally, was 67 days ago—there was a clear assumption on the Government’s part that an agreement with the EU would be reached and that arrangements would carry on as now. I do not think it is an understatement to say that that is now looking rather less certain.
I said at the time that the Government’s own impact assessment seemed seriously to underestimate the consequences of a no-deal scenario. As my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) said earlier, the impact assessment set out how the costs of establishing future reciprocal healthcare arrangements on the same basis as now would be £630 million per year. It then went on to estimate that, in the event of a no-deal scenario, the costs would be expected to be similar or less, depending on the number of schemes that were established. It has never been made clear why the costs might be less, unless we stop reciprocating with other countries, and I do not believe anyone expects that.
The British Medical Association and the Royal College of Paediatrics and Child Health have expressed concern that, should no EU-wide reciprocal agreement be achievable, the significant costs of establishing bilateral reciprocal arrangements with the EU and EEA countries would in future fall on the NHS. Perhaps in the scenario we now face, we will be able to replicate exactly what is in place now, but that is not certain, and the implications are potentially significant. I therefore ask the Minister whether he would mind keeping us updated on the progress in bilateral discussions.
UK state pensioners living abroad account for 75% of the total amount that we spend on reciprocal healthcare, and they will be anxious to know that they will be able to enjoy the same access as they do now. If not, those with chronic conditions or complex healthcare needs may need insurance that is prohibitively expensive—if it can be found at all. The potential implications of that cannot be underestimated. For those travelling abroad, the BMA and others have said that, without a reciprocal healthcare agreement, patients with disabilities would also be among the most affected. Again, for those groups, as much information on progress as possible would be appreciated.
Associated with that is a lack of clarity over how dispute resolution will work in the event of bilateral agreements being necessary. We know from what the Minister has told us that, if we manage to reach full agreement with the EU27, there will still be a limited role for the European Court of Justice, but we do not know what the dispute resolution procedure will be if we do not. Can he confirm whether it is still the Government’s position that the ECJ will have no jurisdiction in the event of bilateral agreements being necessary? I am not sure what incentive there will for other countries to agree to a brand new dispute resolution architecture, and I doubt very much that they would want to pay for one. It seems to me that, sooner or later, the Government will have to come clean with their own Back Benchers that, in this area at least, the ECJ will still have a role to play, even in the event of a no-deal scenario.
Even under the current arrangements, cost recovery is something that we do not appear to have handled satisfactorily and the fault for that lies with the Government alone. In 2012-13, the NHS charged only around 65% of what it could have done to visitors from outside the EEA and Switzerland, and only 16% to visitors from within that area. Although I accept that things have improved since then, they are still far from perfect. Indeed, as my hon. Friend the Member for Ellesmere Port and Neston mentioned, the Public Accounts Committee said that it was chaotic.
The Law Society of Scotland was clear on the importance of this issue when it gave evidence to the Lords Committee. It said that
“as the NHS has never been very effective in reclaiming the fees owed to it by overseas visitors to the UK, the UK may find itself substantially worse off financially when new arrangements for funding cross-national use of health services are put in place.”
So the Government need to raise their game in terms of cost recovery. If there is an additional administrative burden on the NHS in setting up new systems of cost recovery because of agreements reached, will the Minister give a commitment that NHS providers will be adequately compensated?
Perhaps the issue of reciprocal healthcare matters most on the island of Ireland where the border area has a dispersed population of around 2 million people, with an integrated healthcare system that has to survive whatever the future arrangements end up being. They cannot be failed by this Bill, which is why we believe that there needs to be maximum parliamentary oversight.
This Bill is necessary, but it does seem that the Government have used the opportunity to give themselves powers far beyond those that are necessary to achieve the objective set out under this legislation. They are using every trick in the book to avoid proper scrutiny of their actions. That is part of a disturbing trend that we are seeing across much of the Brexit legislation. It is a trend that does the Government no credit and it is a trend that I believe Members from across the House will come to regret.
Dr Sarah Wollaston (Totnes) (Con)
I do not intend to detain the House for long. I support this Bill, but only regret that it is necessary. I wish to tell the House about an email that I received from a friend recently. He told me about his 92-year-old father who was visiting France and had a fall. He phoned my friend, who dialled 999 in this country, and an hour later his father was in hospital—all of that at no cost to his father because he carried a European health insurance card. The close ties that we have involving our reciprocal healthcare are not just financial. They are also about those close links and data transfer. I profoundly regret that this is the kind of thing that people will not realise they have lost until it is gone. That is the great tragedy here. The point is that it is not people like us, who are relatively fit and healthy, who will necessarily lose out by having to spend an extra 10% to 20% on our health insurance costs; it is our constituents who are elderly, who have to have regular kidney dialysis or who have other complex medical conditions, who will simply find themselves uninsurable or having to face prohibitively expensive insurance costs, and who, if they run into difficulties while they are abroad, will find themselves really adrift.
I hope that the Minister will make it absolutely clear to our constituents that, 67 days from now—the chances are looking more likely that we could crash out with no deal—very, very many of our constituents will find themselves in a really dire situation should they fall into difficulties abroad. They need to be given clear and specific advice about their holiday plans. For those of our fellow citizens who have retired to the European Union and who find themselves in difficulties, I regret that this is a situation for which we will all have to take responsibility in years to come. I hope that the Government will rule out no deal because the consequences will be profound.
Question put and agreed to.
Bill accordingly read the Third time and passed.
Healthcare (International Arrangements) Bill
Tuesday 22nd January 2019
(5 years, 11 months ago)
Lords ChamberRead Full debate Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 21 January 2019 - (21 Jan 2019)
Healthcare (International Arrangements) Bill
Tuesday 5th February 2019
(5 years, 10 months ago)
Lords ChamberRead Full debate Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 21 January 2019 - (21 Jan 2019)
Baroness Blackwood of North Oxford
That the Bill be now read a second time.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con) (Maiden Speech)
My Lords, it is a great honour to speak to the Healthcare (International Arrangements) Bill, on behalf of the Government, as my maiden speech—as my noble friend the Leader of the House put it so encouragingly when we first met, “straight in at the deep end”.
Before addressing the Bill in earnest, however, I hope your Lordships will indulge me as I record my profound thanks to noble Lords from across the House for their warm welcome over the past few weeks. I thank particularly my noble friend Lord Younger, Black Rod and the parliamentary staff who have so patiently guided me through the processes and procedures of this place. I offer special thanks to our wonderful doorkeepers, who have on more than one occasion rescued me from complete disorientation. I must also pay tribute to my two distinguished supporters: my noble friend Lord O’Shaughnessy, who is, I am sure we all agree, a formidable act to follow, and my noble friend Lord Young of Cookham, one of our truly great parliamentarians, as well as a former Health Minister himself, of course. I am grateful for their continued advice and support. Last, but certainly not least, I put on record my sincere thanks, and those of my whole department, to my noble friend Lady Manzoor, who has so ably covered departmental business, responding tirelessly on topics ranging from tooth decay to sepsis to breast cancer, not to mention fielding a few lengthy SIs with grace and good humour.
I understand that it is a tradition to treat those of us who have come from the other place to a lesson or two in the nature of truly forensic scrutiny and expert debate. I humbly await my tutorial. However, I am sure the House will also appreciate that I remain very proud to have been elected by the constituents of Oxford West and Abingdon, and the outcome of the 2017 election was a great sadness for me. It was, of course, my home seat. My father was a cardiologist. He met my mother, then a scrub nurse, in an operating theatre in the Radcliffe Infirmary in north Oxford in 1973. On many a doorstep, constituents would tell me how fondly they remembered my father, who had treated or taught them, before proceeding to tell me in no uncertain terms that this did not mean that they would be voting for me.
It was a constant joy to represent such a research-intensive seat, where constituents were always so informed, engaged and unsparingly direct. I used to say that not only was I the only MP to get footnoted letters but I had to spend constituency days constantly at the ready for impromptu tutorials from world experts. Indeed, on one visit to the Rutherford Appleton Laboratory, a particularly keen particle physicist sequestered me in his office for a full 45-minute lecture on the nature of the muon—and, naturally, why STFC funding for his project should be maintained.
It is for this reason that when Garter Principal King of Arms asked me to choose a title, I had no hesitation in selecting north Oxford, the place where I have grown up physically and intellectually all these years. I have a suspicion that—although my previous roles as chair of the Commons Science and Technology Select Committee, Health Minister and chair of the Human Tissue Authority will of course prove valuable—my former constituents, who were so expert and so challenging, will actually have done the most to prepare me to serve your Lordships as a Minister in this Chamber.
I am mindful that the Companion states that maiden speeches should be short and uncontroversial. Short, perhaps, is within my gift, but I fear that my subject matter may diverge from strict convention. EU exit raises the collective blood pressure so notably that I have often wondered whether public health language should be developed for just such occasions. However, during its passage through the other place, the purpose of this Bill attracted cross-party support, and for good reason. However varied our views may be on our future relationship with Europe, we can all agree that access to healthcare is essential both for British nationals living in European countries and for EU citizens living in the UK.
In addition, as we look to a future increasingly defined by global mobility and chronic illness, it is the responsibility of government to consider, with all appropriate care and scrutiny, a more comprehensive approach to reciprocal healthcare. Your Lordships will know that current reciprocal healthcare arrangements give people retiring abroad more security, support tourism and enable essential mobility in our economy. The UK is party to a number of reciprocal healthcare agreements, which range from light-touch arrangements with Australia and New Zealand to the more complex EU reciprocal healthcare system.
I will briefly outline the latter: the UK funds healthcare for 180,000 pensioners and their dependants in the EU, living principally in Spain, France, Cyprus and Ireland. We fund needs-arising healthcare in the EU for UK tourists and students. The scheme is hugely popular. There are 27 million EHIC cards in circulation in the UK, resulting in around 250,000 claims each year. We directly fund healthcare for 10,000 posted workers and their dependants in the EU, EEA and Switzerland, and we fund around 1,350 UK residents to travel overseas to receive planned treatment in the EU, primarily maternity care.
The cost of EU reciprocal healthcare is £630 million a year, and at present we recover £66 million each year. This amount is increasing as the NHS gets better at identifying EU visitors and ensuring that the UK is reimbursed for care provided, but it is likely to remain a net spend because many more British pensioners go to Europe than the other way round. Unless there is a dramatic change in the weather across the continent, our models do not forecast that changing much in the near future.
It is clearly in the interests of the British public to ensure that reciprocal healthcare arrangements similar to those currently in place continue when we leave the EU, whether that happens through an agreement with the EU itself, as we very much want, or through bilateral agreements with individual member states in the unlikely event of no deal. For this reason, although this is a short Bill of just six clauses, it is vital. The powers in it are designed to ensure that, no matter the outcome of the exit negotiations, British nationals living in European countries and EU citizens living in the UK, not to mention tourists and posted workers, can have certainty and continuity of care. Should we wish to, the Bill would also allow us to strengthen existing reciprocal healthcare agreements with non-EU countries and to explore new agreements in future.
The Government are determined that we will reach a deal with the EU. With a deal, the withdrawal agreement will enable the continuation of existing reciprocal healthcare rules during the implementation period, and afterwards for people covered by that withdrawal agreement. But it is not a long-term arrangement and does not provide for the unlikely event that the withdrawal agreement is not concluded. In the event of no deal, the powers in the Bill would enable the UK to act swiftly to protect existing healthcare cover for British nationals in the EU, EEA and Switzerland, whether deals are made with the EU or with individual member states. This is clearly undesirable but it is the job of a responsible Government to prepare for all scenarios.
In preliminary discussions with a number of your Lordships, I have been asked about the scope of the powers contained in the Bill. In this regard, I record my thanks to my noble friend Lord Blencathra and the DPRRC for the work that it has already done on this matter and for its characteristically robust report. I wrote last week to the committee in response to its report and have placed a copy of that letter in the Library.
So what, in detail, does the Bill do? There are three key elements. First, it seeks payment powers so that the Secretary of State can make payments for healthcare abroad. Expenditure by the Department of Health and Social Care relating to EU and other reciprocal healthcare arrangements is currently published in this place in the form of annual resource accounts in line with government reporting rules, and will continue to be so to ensure transparency. Secondly, it seeks discretionary powers to make regulations to give effect to healthcare agreements that are entered into. It is important to note at this point that any secondary legislation under this clause that amends primary legislation—Henry VIII powers—would be brought forward under the affirmative procedure, while other regulations that are expected to be technical and administrative in nature, such as replacing or updating the administrative forms, would take the negative procedure. Thirdly, the Bill seeks powers for authorised persons to lawfully share data to facilitate payments or treatments in a safe and effective way. Data would be shared in accordance with UK data protection legislation, including the Data Protection Act 2018.
It is important to note that the Bill does not affect the UK’s ability to negotiate or enter into international agreements; the power to negotiate and sign treaties is a prerogative power and always has been. It simply empowers the Secretary of State to implement agreements once they have been negotiated. The details of new reciprocal healthcare agreements will of course remain subject to negotiation and parliamentary scrutiny. I am aware that there has been some debate about whether CRaG powers are sufficient and that the Constitution Committee, so ably led by the noble Baroness, Lady Taylor, is currently conducting an inquiry into this very matter. I shall be interested to hear its conclusions.
I reassure the House that there can be no cause for concern that the Bill represents an attempt by the UK Executive to seize power from the devolved Administrations. The Department of Health and Social Care currently funds and arranges EU reciprocal healthcare for people from England, Scotland, Wales and Northern Ireland. We have been working with the devolved Administrations for some time now. I am delighted that we have received a legislative consent Motion from Scotland, and we will of course continue to ensure that we legislate for reciprocal healthcare in a way that fully respects the devolution settlements.
In particular, I note concerns raised in the EU Home Affairs Sub-Committee report debate in July, especially by my noble friend Lord Ribeiro, regarding the importance of protecting healthcare in the island of Ireland. I reassure the House that the UK and Ireland are committed to protecting reciprocal healthcare rights fully and appreciate how important it is that UK and Irish nationals can continue to access healthcare when they live in, work in or visit the other country. We also want to maintain co-operation between the UK, Northern Ireland and Ireland on a range of medical issues, including planned treatment, public health and workforce, in both a deal and no-deal scenario.
Having set out the general purpose of the Bill in broad terms, my priority today is to hear from the House so I can begin what I know will be a robust process of scrutiny and strengthening of the Bill. Reciprocal healthcare arrangements enjoy broad public support and the Bill is designed to ensure that we can give British nationals living in European countries and EU citizens living in the UK certainty and continuity of care. It is designed to protect tourism and economic mobility. It is a Bill that looks to the future, giving us the ability to strengthen existing reciprocal healthcare agreements with non-EU countries and explore new agreements in the future.
I look forward to hearing the views of all noble Lords as we enter into the detail of the Bill. I will listen carefully and seek to engage as fully as I possibly can, whether with groups, by party or with individuals, so that we can ensure that proper scrutiny is given to the content and intent of the Bill. It is a necessary and pragmatic Bill. It is one that respects Parliament and the devolution settlements and looks to the future of reciprocal healthcare for generations to come. It is with that in mind that I commend this Bill to the House. I beg to move.
Lord O'Shaughnessy (Con)
I congratulate my noble friend on a truly outstanding maiden speech and say how delighted I am to see her in her place. Her speech has shown a glimpse of the many qualities that she will bring to this House: her intelligence, her humour and her commitment to public service. She did not mention that she is also a superb singer and flautist; perhaps today is not the day, but I hope she will give noble Lords the opportunity to hear and appreciate her musical skills at some point. I have dropped her in it now—not for the first time.
Not only did my noble friend give me the great honour of supporting her introduction yesterday but we had the opportunity to work together as Ministers for six months. During that time, she gave me one of the best pieces of advice I have ever had: watch your mailbag. It is an early warning signal when things are going wrong and problems need to be seen to. Because I was watching carefully under her very sage advice, I noticed more and more letters about problems with transvaginal mesh and sodium valproate. In many ways, they led to the review that my noble friend Lady Cumberlege is carrying out on medicine and medical device safety. That is the kind of impact that my noble friend has already had in her life as a Minister and she will go on to have an even more profound impact. She will know as well as I do that it is a huge privilege to hold the job that she does and I hope she enjoys it as much as I did. I would also like to join her in congratulating my noble friend Lady Manzoor on holding the fort so ably in the last month.
The Bill before us is an incredibly important piece of legislation, for two reasons. First, it will give the Government the powers they need to continue our mutually beneficial reciprocal health agreements with EU member states. The advantages of these are already enjoyed by many of our citizens: 250,000 British tourists make medical claims every year under the EHIC card, 180,000 British pensioners live in the EU and hundreds of people take planned treatments paid for by the NHS but delivered abroad.
Secondly, as my noble friend said, as we become an independent trading nation once again, we want to be able to enter into similar arrangements with our trading partners. Lighter versions of our reciprocal healthcare arrangements already exist with Australia, New Zealand and some of the EU accession states. However, as we strike new trade and other agreements, it is absolutely right that the British Government make the most of the opportunities these present for our citizens to travel, work and retire abroad.
It is also a necessary Bill because the powers on which we base our current ability to strike reciprocal healthcare agreements derive from EU law, specifically EU Regulations 883 and 987. These will become inoperable once we leave the European Union, however that should happen. At the risk of disappointing the noble Lord, Lord Foulkes, who will speak directly after me, this legislation does not fit into his category of the no-deal planning which he believes to be a waste of time and money. It is quite the opposite: we need these powers for any deal that we strike with the EU, whether the one agreed by the PM, the one that is official Labour Party policy or any other that might emerge.
For these reasons I strongly support the Bill, which will not come as a surprise since I was the Minister responsible for it until the end of December. However, I also believe it is one that all noble Lords should support because of the benefits it will bring to British citizens. Critically, this point is recognised by the Scottish Government, not the greatest friend of either this Government or Brexit but who have exceptionally agreed to a legislative consent Motion for the Bill.
Nevertheless, as this debate will show, and as debates on the Bill in the other place and the report of the DPRRC have brought out, there are some significant questions about the legislation that must be dealt with. The first, which was the subject of Labour Front-Bench amendments in the Commons, is to do with creating specific reporting requirements on any spending involved in new reciprocal deals. I can understand the desire for such information but there is already a robust annual reporting process, which is used today and which covers reciprocal health and other departmental spending, that allows for scrutiny by both Houses of Parliament as well as by the Public Accounts Committee and the NAO. It is of course also covered in the DHSC’s annual report. If the current procedures are good enough while we are still a member of the EU, and if our intention is by and large to recreate the same kind of relationships, then I see no good reason to change this approach.
The second question is the criticism, made forcibly in the DPRRC report, that there are too few constraints on the powers that the Bill gives to the Secretary of State. I always take the opinion of the committee very seriously but in considering its view, it is essential to consider not only the intent of the Bill but its reach. On intent, as I have said, the overall aim is to agree reciprocal deals that are similar to those we currently enjoy with the EU and to strike new, more sophisticated deals with our trading partners. However, with our new-found freedoms it is likely that we will want to consider additional, yet to be anticipated approaches.
The Bill clearly ought to be flexible enough to accommodate this, because it is simply impossible to determine in advance what might be desirable as we agree new trade deals and other international agreements. On its own, I accept that this might be a cause of concern, until one realises that the reach of the Bill is in fact limited because the powers it confers on the Secretary of State can be used only within the scope of an international treaty, which will always be subjected to detailed scrutiny and approval in Parliament. In that sense, the Bill is essentially concerned with giving the Secretary of State implementation powers under the broader aegis of an international treaty, each of which will require parliamentary approval. I believe that this ought to give noble Lords reassurance that the powers in the Bill cannot be misused.
Thirdly, there is the issue of regulation-making powers and affirmative procedures, as already mentioned by my noble friend. It is somewhat ironic to find those who vehemently oppose the UK’s departure from the EU promoting this cause, given that our membership gives the UK Parliament no say whatever in whether EU law should be implemented, but let us not dwell on that inconsistency. The approach outlined in the Bill, using the affirmative procedure only for changes to primary legislation, is entirely reasonable and consistent with other legislation. Nevertheless, my noble friend the Minister will no doubt want to reflect on the findings of the committee and the views of the converts to the cause of taking back control as we move forward.
Finally, there is the issue of data security. The exchange of data is essential to any sophisticated reciprocal healthcare agreement, which is why it features so prominently in the Bill. But as my noble friend the Minister will know—she understands the data issue deeply—it is of great concern to the public, so I hope she will be able to reassure the House that we would enter into such data-sharing arrangements only if the highest standards of security can be met.
I will end by talking about what is at stake here. It is not just our citizens who support the continuation of reciprocal healthcare arrangements with our European neighbours; so do the citizens and Governments of those countries. During my time as a Minister, I went to several EU health ministerial meetings and met most of my European counterparts. As your Lordships might imagine, that involved some interesting and occasionally challenging conversations. But without exception, those countries want to continue the reciprocal healthcare agreements once we leave the EU. Indeed, while my job in those meetings was to present the case for a deep and special relationship with the EU on health and other issues post Brexit—sometimes receiving polite nods and the line “the Commission leads on negotiations”—on reciprocal healthcare, several Ministers initiated discussions with me about how we could continue our partnership in future. This is partially about financial self-interest—the UK is a net contributor to EU member states through the current arrangements—but it also reflects a profound and historical commitment, in some cases dating back pre-war, to partnership and co-operation.
What this Bill represents is not only the chance to do the right thing for British citizens and patients, but also to extend the hand of friendship to our European neighbours and our partners around the world as we leave the European Union. That is a laudable cause, which I hope will draw support from noble Lords across the House today.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, before I revert to my usual mode of careful scrutiny, I offer a sincere triple congratulations to the Minister: first, on her elevation to this place—she did a great job in the other place and we welcome her here—secondly, on her appointment as Minister; and thirdly, as the noble Lord, Lord O’Shaughnessy, said, on a really excellent maiden speech. She comes to us with a great reputation and, I understand, undoubted ability. Given this Bill, she is going to need a lot of that.
This is an astonishing piece of legislation. With respect, relatively few have understood the wide and serious implications—and the consequences—of this Bill. I am astonished that the Scottish Government have not seen the implications, and that some of my colleagues down in the other place have not yet seen them. Thankfully, our Delegated Powers and Regulatory Reform Committee has understood it and produced a very good report. I am particularly grateful to the noble Lord, Lord Blencathra, and his colleagues for it. It particularly refers to Clause 2. I have read a few reports in my time, but this is really quite devastating. I will quote from it:
“We draw attention to clause 2 of the Bill. If the reason for the Bill’s introduction is to protect British citizens if a ‘no deal’ scenario affects current reciprocal healthcare agreements with other EU countries”,
which it does,
“clause 2 of the Bill goes considerably wider. It allows the Secretary of State to make regulations”,
first,
“in relation to the payment by the Secretary of State of the cost of all forms of healthcare … provided by anyone anywhere in the world”—
astonishing—secondly,
“for and in connection with the provision of any such healthcare, provided by anyone anywhere in the world”,
and thirdly,
“to give effect to international healthcare agreements”.
It goes on to say:
“Clause 2 has a breath-taking scope. Indeed, the scope of the regulations could hardly be wider … There is no limit to the amount of the payments … There is no limit to who can be funded world-wide … There is no limit to the types of healthcare being funded … The regulations can confer … powers and duties … on anyone anywhere … The regulations can delegate functions to anyone anywhere … the regulations can amend or repeal any Act of Parliament ever passed”—
astonishing powers—and that:
“The Government say that clause 2 ‘enables the Secretary of State to address essential matters relating to healthcare abroad’. But the powers in the Bill go much wider than essential matters”.
It continues:
“All regulations made under clause 2 are subject only to the negative procedure”.
My noble friend Lord Adonis knows that that is a very—
Lord Foulkes of Cumnock
—dangerous procedure, but also that there is very scant scrutiny in that procedure. The report states that the regulations are subject to the negative procedure,
“save where they amend primary legislation. If, without such amendment, the Secretary of State wished to fund wholly or entirely the cost of all mental health provision in the state of Arizona, or the cost of all hip replacements in Australia, the regulations would only be subject to the negative procedure”.
It is really quite astonishing. That is a great report. I could not have done better myself.
Lord Foulkes of Cumnock
Anywhere. That is just a random choice. It could be Texas or Alaska—it would be a bit more expensive in Alaska.
That is a really wide provision. Before we finally pass this Bill, Clause 2 needs drastic amendments. I say to my noble friends on the Labour Front Bench, to my friends—and they are my friends—on the Liberal Democrat Front Bench, to members of the committee and to Cross-Bench and Conservative Members that I hope that we will see those amendments in Committee. I hope that we will properly scrutinise this Bill because it has not yet been done.
The inevitable consequence of the Bill is to replace a system that works well and gives peace of mind to many thousands of British citizens with completely unnecessary worry and uncertainty. Whatever the Minister says, it will be about damage limitation. Of course, the worst of all options is no deal, which would immediately remove the guarantees which British citizens living in the European Union and European Union citizens in the UK currently take for granted. That the no-deal option is still on the table is an indictment of the Government and their failure to face up to the consequences of their attempts to appease the hard right of the Tory party. All we are offered by the Bill is uncertainty and “Trust the Minister; everything’ll be okay”. The Bill allows her or him to do just about anything, but instructs them to do absolutely nothing. That is a recipe for uncertainty.
Let us first take the S1 scheme, which is central to this debate. This allows individuals from one EEA member state to receive healthcare in another, with the cost of that care met by the state in which the patient would ordinarily reside. Some 190,000 UK pensioners living in the European Union or the EEA are currently registered for this scheme. What happens to their rights if we leave without a deal? Many would have to return to the United Kingdom in fear of facing astronomical health bills elsewhere. That would affect not only those currently benefiting from the S1 scheme but the NHS, which would have to take the strain of the increase in number of elderly returning citizens. A report by the Nuffield Trust estimated that if expats returned in large numbers, we would require 900 extra beds and over 1,000 more nurses. Where would they come from? It certainly would not be from European Union countries, since the Government are already busy telling them that they are not really welcome in the United Kingdom.
That brings me to the EHIC. I hope that everyone has it. I have mine. Every time I go abroad, I take it with me. We rely on it to make travel abroad a possibility. At present, 27 million active United Kingdom EHICs are in circulation. They are used to pay for around 250,000 medical treatments each year. Incidentally, I tried to find out how to apply for or to renew an EHIC. I put “European health insurance card” into the Google search. I pressed it and what did I get? “This page cannot be displayed”. We cannot find out. Can the Minister tell us why the Government are not allowing people access to the EHIC? Is it in anticipation of a decision relating to it? Is it in anticipation of a deal or no deal?
Lord Foulkes of Cumnock
If we lose this right, the only ones celebrating will be the insurance industry. When I tweeted something about the EHIC no longer going to be available, lots of people tweeted back saying, “Ah, but we can get travel insurance”. That is all right if you are reasonably wealthy, but for ordinary people who have struggled just to get enough money to go abroad, it is an extra cost.
These arrangements are the cornerstones of the freedom of movement principle which the European Union rightly sees as its own but which the UK Government, sadly, are hell-bent on opting out of. There are those who point to the deal that the EU has with Switzerland at present. It is true that, under the Bill in the event of no deal, we would be able to implement new bilateral agreements with European Union states, Norway, Iceland and Switzerland. This would be lengthy and costly, ultimately leaving the European Union without reciprocal arrangements for an unknown period. I raised this with the Minister and her counterpart in the Commons when they kindly held a briefing on it. They would be scrabbling around the European Union—indeed around the world—negotiating bilateral agreements. If the Health Secretary is as successful in doing deals as the Trade Secretary, there are going to be an awful lot of sick Britons scattered around the world for years to come.
We need to approve the Bill—of course we do; the Minister said it; the noble Lord, Lord O’Shaughnessy, said it—but with some appropriate and significant amendments to Clause 2. Without it, the Secretary of State will not even be allowed to do the deals which will protect British citizens abroad. However, there should be no doubt at all that the very good arrangement which we have at present is being replaced by, at the very least, an inferior one. It remains to be seen if the operative word really is “inferior” or if, as I fear, “disastrous” is a better way to describe what we are facing if we go for no deal. I hope everyone in this House will do everything they can to ensure that that does not happen. For the health of British expatriates and of those of us who travel overseas, it is vital that we do so.
Lord Marks of Henley-on-Thames (LD)
My Lords, I join the noble Lords, Lord O’Shaughnessy and Lord Foulkes, in welcoming the noble Baroness, Lady Blackwood of North Oxford, to the House and to her post. I congratulate her on making an excellent maiden speech. I hope she will forgive me when I admit to spending a great deal of time in her erstwhile constituency and to having campaigned there in the last two general elections—so I may have played a very small part in her elevation to your Lordships’ House.
Although I thoroughly enjoyed the Minister’s speech, particularly the passages about Oxford, she did not—perforce, I accept, as did she—comply with the tradition that maiden speeches ought to be uncontroversial. I oppose the Bill in its present form. I am conscious of the fact that it has passed through the House of Commons unamended and that the report of the Delegated Powers and Regulatory Reform Committee was, unusually, produced on 15 November, before Committee in the other place. Nevertheless, regrettably, the Committee’s report was taken insufficiently seriously by the House of Commons. Sometimes the lack of scrutiny of departures from our constitutional arrangements is frankly unforgivable.
Of course, noble Lords across this House much want to see arrangements for reciprocal healthcare with member states of the EU, the EEA and EFTA continuing as closely as possible to their present form. Indeed, one of the great risks of the calamitous decision to leave the European Union is 27 million UK EHIC card holders, and 180,000-odd UK state pensioners living in the EU who benefit from the S1 scheme, risking the loss of their current rights to reciprocal healthcare.
The Explanatory Memorandum and the Minister say that the Bill has been introduced as a result of the decision to leave the EU and is intended to respond to all possible outcomes of EU exit with new reciprocal healthcare agreements. However, the Bill confers on the Secretary of State exceptional and untrammelled powers that are utterly objectionable. Furthermore, as I will argue, the breadth of these is entirely unnecessary to achieve what is needed to enable satisfactory reciprocal healthcare arrangements to be made on Brexit.
I shall start by turning to the proposed powers. Clause 1 states:
“The Secretary of State may make payments, and arrange for payments to be made, in respect of the cost of healthcare provided outside the United Kingdom”.
There is no limit on the amount of such payments. There is no limit on the type of healthcare to be provided. Indeed, Clause 3 says that,
“‘healthcare’ means all forms of healthcare provided for individuals, whether relating to mental or physical health, and includes related ancillary care”.
There is no geographical limit on where it is to be provided: the power is worldwide. The additional definition of “healthcare agreement” covers providing to other countries healthcare without limit within the UK, and possibly at UK taxpayers’ expense. Clause 2(1) cures none of these deficiencies.
Worse still, Clause 2(2) is entirely unlimited. The regulations may do any of the things provided in subsections (a) to (i), “for example”. So logically they may also do anything else. The Secretary of State may specify, in regulations, levels of payments and their calculation; classes of beneficiaries; types of healthcare to be provided; set-off arrangements; and reimbursement levels, which may include caps. I interpose that this is particularly important because the Secretary of State may decide who pays back what—whether citizens, international organisations, states or the UK Government. The list goes on with processes, appeals, discretion and an unlimited power to boot to delegate any functions under the clause.
Further, the Secretary of State may, in an exercise of absolute power under Clause 2(3),
“give directions to a person”,
and under Clause 2(4),
“may vary or revoke directions”,
in relation to any function. The Bill does further violence to our constitutional arrangements by providing, at Clause 5(3) and (4), that:
“Regulations under section 2 may amend, repeal or revoke primary legislation—(a) for the purpose of conferring functions on the Secretary of State or on any other person (including conferring a discretion);—
or—
“(b) to give effect to a healthcare agreement … Regulations under this Act may amend, repeal or revoke retained EU law”.
These are Henry VIII powers in terms that would have made even that Tudor monarch blush. But we should remember that Henry VIII powers take their name from the Statute of Proclamations 1539, which enabled the King to govern by decree without regard to Parliament. In the context of a process whereby Parliament is supposed to be taking back control, these powers fly in the face of parliamentary sovereignty.
The House will by now be familiar, from speeches by the noble Lord, Lord Foulkes, and others, with the conclusion of the Delegated Powers and Regulatory Reform Committee:
“Clause 2 has a breath-taking scope. Indeed the scope of the regulations could hardly be wider”.
I had the honour of serving on that committee under the distinguished chairmanship of my noble friend Lady Thomas of Winchester. Our discussions were entirely non-partisan and our reports generally—indeed, I think always—unanimous. They were carefully considered. We were extremely well staffed and our recommendations were almost always accepted and implemented by the Government.
The principles we applied were well known and well understood. First, we considered whether a delegation to a Minister was proper and appropriate. Only if it was would we move to the second stage of considering the proposed level of parliamentary scrutiny. Henry VIII powers were to be severely limited to those cases where the need for them was fully explained and justified.
The passage of legislation around Brexit has seen many arguments about the use of Henry VIII powers, but I regret that the Bill persuades me that the Government have learned nothing. As we are forced into an unholy rush to get Bills through, our constitution takes second place to political expedience and face saving. An important passage in the committee report is at paragraph 11:
“All regulations made under clause 2 are subject only to the negative procedure, save where they amend primary legislation. If, without such amendment, as quoted by the noble Lord Lord Foulkes, the Secretary of State wished to fund wholly or entirely the cost of all mental health provision in the state of Arizona, or the cost of all hip replacements in Australia, the regulations would only be subject to the negative procedure. Of course, these examples will not be priorities for any Secretary of State in this country. But we judge powers by how they are capable of being used not by how governments say they propose to use them. The fact that the powers could be used in this way suggests that they are too widely drawn”.
That last reference to the potential use of powers is an important quote from paragraph 20 of the committee’s guidance to departments, published in 2014:
“If the government has in mind a particular proposed exercise, it is helpful for the Committee to be told of this. But the Committee will judge the power by reference to what could be done under it by the current or any future government and not only what the current government say they intend to use the power for”.
That principle is what makes the Government’s Explanatory Memorandum unhelpful and the caution of the committee essential. I am afraid that the Minister’s speech and that of the noble Lord, Lord O’Shaughnessy, failed to grapple with this issue. The Minister seeks to reassure the House while she urges the House to accept the possibility of what is unacceptable. I accept the committee’s view that its examples of Arizona and Australia are extreme. However, we have a Government who are, in their own words,
“determined to make a success of Brexit”,—[Official Report, Commons, 10/7/18; col. 929.]
and resolutely opposed to our staying in a customs union with the EU, so as to be free to make trade deals across the world. May it not be that, in their zeal to reach such trade deals, given the difficulties of so doing, the Government could offer in exchange for trade deals health agreements to third countries on terms that Parliament might consider unsatisfactory were it allowed to consider them properly?
The EU’s new economic partnership agreement with Japan, mentioned earlier by the noble Lord, Lord Henley, demonstrates how difficult new trade deals may be. Nor should we forget either that the ill-fated TTIP attracted so much opposition in the United Kingdom precisely because it opened up our healthcare market to American competition, to the extent that the Conservative Government in 2016—
Lord Framlingham (Con)
The noble Lord is putting a most peculiar slant on some aspects of this legislation. I am following this very carefully. Is there not a good case for being perhaps overgenerous and having a wide scope in this area to ensure that nobody misses out, rather than being too precise and risking the chance that people will suffer as a result?
Lord Marks of Henley-on-Thames
No, and I regard that view as profoundly dangerous. The reason is that when we need arrangements that justify legislation, we can specify what legislation we need. As I will seek to go on to show, I believe that the arrangements that could be put in place by the Bill, were it tightly drawn and properly amended, could enable all outcomes from our exit from the European Union to be catered for by reciprocal healthcare arrangements in a way that is constitutionally acceptable—as I do not believe this is. As for giving too much ground and being too generous, that is a slippery slope indeed to allowing the Executive to take undue and unacceptable power from Parliament.
I suggest that it is not unrealistic to foresee a Government seeking to enter into healthcare agreements that would be unfair to the UK and unwelcome to many. The Bill would make that possible by unamendable regulation, possibly passable by the negative procedure.
So what should happen? If we secured a withdrawal agreement, an implementation period to the end of December 2020 and any extension of such a period would ensure that we continued reciprocal healthcare arrangements substantially as at present. That is what the Minister wants; I accept that she wants it, and that many in the Government want it as well. But we cannot guarantee that we are going to get it, and the Government have resolutely set their face against ruling out a no-deal agreement.
There is presently no reason whatever to make fresh statutory provision for any extra healthcare agreements outside the EU, the EEA and Switzerland. Such arrangements can be made if relevant, when necessary and authorised by a proper and detailed statute—nothing to do with Brexit—just as they could have been made at any stage over the past few years.
The need now is for provision in the event of no deal. I suggest that in that ruinous event, the only arrangements that we could practically make for continuing reciprocal healthcare would be the same as, or broadly comparable to, the existing arrangements. The noble Lord, Lord O’Shaughnessy, explained that, from his discussion with other European Health Ministers, he regards it as likely that they would want similar arrangements. Similar arrangements might be possible. Something completely different would, I suggest, be entirely impractical.
It might be necessary to agree such arrangements on a bilateral basis with individual states. It might be possible to make such arrangements on a multilateral basis. For such purposes, I accept that legislation is necessary. An appropriate Bill could be drafted without undue difficulty. Indeed, as the Bill is here and has passed through the House of Commons, I accept that amendment of it, while demanding, might be possible. The powers of the Secretary of State to introduce a new scheme and make equivalent agreement arrangements with other member states, whether on a bilateral or multilateral basis, could be carefully drafted in a fashion that was appropriately limited and would command the confidence and respect of this House.
However, I have no hesitation in saying to the House that the Government must come back in Committee with amendments that limit this Bill to that achievable and justifiable purpose. To press ahead with it in its present form for fear of a no-deal Brexit would be unconstitutional and improper. The Government must think again.
Lord Kakkar (CB)
My Lords, I join other noble Lords in congratulating the Minister on her excellent maiden speech and the very thoughtful way in which she introduced this important Bill at Second Reading. In so doing, I declare my interest as Professor of Surgery at University College London and chairman of UCL Partners. I should add that my noble friend Lord Patel, who regrettably cannot be in the Chamber at the moment because he is chairing a meeting of your Lordships’ Science and Technology Committee, very much wanted to participate, shares many of the views that I shall put to your Lordships and has committed to participate actively in further consideration of the Bill by your Lordships.
As we have heard, the Bill is vital. The current reciprocal healthcare arrangements that exist as part of our treaty obligations with the European Union provide for 180,000 UK pensioners living in other EU nations to be secure in the knowledge that they have access to all their healthcare needs. This is a very important consideration, because we know that, with advancing age, there is a greater demand on healthcare resource. The anxiety that attends any uncertainty about access to healthcare, particularly for those with chronic, long-standing conditions, through arrangements that have been well tried and tested, is clearly unacceptable and something with which no United Kingdom Government would ever wish to be associated.
Equally, we have heard about the 27 million European health insurance cards that have been issued and the important opportunities the scheme provides for students and tourists to be able to travel through the European Union and have their immediate healthcare needs addressed at times of emergency—again, avoiding uncertainty. Then there is the small number of our citizens—the figure of 1,300 was mentioned by the Minister—who are able to avail themselves of treatments and interventions on mainland Europe as part of their healthcare needs as a result of the reciprocal healthcare arrangement. That should not be underestimated.
The question is: with the proposed departure from the European Union, how can Her Majesty’s Government best achieve continuity and certainty in an area that affects the lives of so many of our fellow citizens? Clearly, of course, the best opportunity would be to ensure that the current arrangements of reciprocal healthcare are continued in any agreement that is finally settled with our European partners. If that is not entirely possible at the moment, how should Her Majesty’s Government make arrangements to deal with what the consequences may be? Both in the other place and so far in this debate, we have heard that some form of Bill, accurately and purposefully drafted to achieve those objectives, is essential. In the other place, it was agreed by consensus that impediment should not be put in place of achieving something, by way of the Bill’s purpose, prior to 29 March; that should be the guiding principle in your Lordships’ House.
Having said that, your Lordships must address the important issues raised both in the debate so far and in the Bill’s consideration in the other place. The first concerns data sharing—a hugely sensitive matter when it comes to healthcare data. At the moment, we are confident that, through the Data Protection Act 2018, the position on data protection adopted in the United Kingdom is consistent with that adopted across other European community/EEA nations. Of course, that is reassuring because this framework ensures that we share healthcare data on the same basis, with the same security and with the same confidence.
However, moving forward, it is important for Her Majesty’s Government to be clear that, if at the time of our EU departure there is any divergence away from the recognised data protection standards, there will be an opportunity for this House and the other place to understand what it will be, and that the protection of our citizens and their sensitive healthcare data is maintained. Indeed, as the Bill proposes the opportunity to negotiate broader reciprocal healthcare agreements beyond the current European Economic Area, it is important for your Lordships’ House to understand how those data protections will be maintained if Her Majesty’s Government decide to avail the Bill—eventually to be an Act of Parliament—to negotiate those agreements. How will data security and data protection be ensured across a range of jurisdictions that do not currently sign up to the protections we enjoy as part of the European Union?
Clause 4(6) outlines the authorities that might benefit from data sharing, including HMRC, Treasury Commissioners and so on. It must be clear about on what basis sensitive healthcare data will be shared and the purpose of that sharing with other elements of the state beyond those directly concerned with the delivery of healthcare. I can imagine that the reasons are very good in terms of understanding, for instance, the status of a pensioner living elsewhere in the European Union by reference back to their time as a resident in the United Kingdom. As part of scrutinising the Bill, it will be essential to understand the basis for that.
Noble Lords have asked important questions about the scrutiny associated with the powers in the Bill and, indeed, the resultant statutory instruments and secondary legislation that will be generated by necessity. In this regard, there are important constitutional questions, as well as important practical and clinical ones, about how your Lordships and Parliament in general can satisfy themselves that the regulations to deal with the procedures and practical implications of the powers that the Secretary of State will need to exercise will be scrutinised. I will give an example, if I may. Let us say, for instance, that a settled UK pensioner living somewhere else in the European Union currently receives healthcare and treatment of some form for a chronic condition. As I understand it, under the provisions of the Bill, the Secretary of State will have to make provision for the continued payment of that care. But what happens if that individual receives a therapeutic intervention that is standard and part of a carefully considered and accepted protocol for treatment—let us say cancer therapy with a biological agent—in the other European country, but, in our own healthcare system, NHS England through to the National Institute for Health and Care Excellence has taken the view that it should not be supported? How will the administrative and procedural arrangements that flow from this legislation be crafted to deal with that situation? There might indeed be considerable unhappiness after the Bill passes if our fellow citizens living in the European Union will have an intervention available to them that we do not believe is necessarily appropriate and should not be available in our own country.
How will the development of that administrative tool be scrutinised by Parliament? It would be seen by convention as a procedural and administrative matter. Under those circumstances it would be subject to the negative resolution procedure, but it has severe and important implications and the benefit of active and thorough scrutiny would help all parties. That is an important issue.
I have one final point. We have heard discussion about the Secretary of State’s powers to make new international agreements beyond the European Union and the European Economic Area and how those might attend future trade agreements. How do Her Majesty’s Government propose to extend the potential opportunities that will flow from the Bill to other jurisdictions beyond those where we have reciprocal healthcare agreements? How will that choice be made? The delivery of healthcare in our country through the National Health Service is a matter of social equity. How can we reassure ourselves that all individuals in our country will have access to the same standard of healthcare and the same opportunities to achieve that access? It cannot be argued that providing reciprocal healthcare for our fellow citizens living in the European Union is anything other than an obligation under a broad treaty, but in the future, when there might be bilateral agreement between certain countries and not others, how will we be able to argue that pensioners living in one jurisdiction and not the other should benefit from the Bill’s opportunities? There might be a simple answer, but as we take forward this legislation and decide to broaden it beyond the current European Economic Area, that might be something that your Lordships need to pay attention to.
Lord Lansley (Con)
My Lords, I join colleagues across the House in welcoming my noble friend to this House and to her new position. I had the privilege to serve in the other place with her. I know how highly regarded she was for her work there and in her constituency. As a former Member for South Cambridgeshire, I think it is very like north Oxford as a place. I had the pleasure of campaigning with my noble friend in Abingdon and had something to do, in a very small way, with getting her elected in the first place. The Commons’ loss is our gain. We are delighted to have her with us. I know that the Department of Health and Social Care is delighted to have its former Minister back.
I very much share the view of my noble friend Lord O’Shaughnessy, who was instrumental in the Bill’s composition, that it is very important and necessary. It is important that we do not alarm people about the circumstances of their healthcare. We should make it clear, if we can, that we are all setting out to try to ensure that there is continuity in the existing arrangements for reciprocal healthcare across the European Economic Area. We might not be in a position to guarantee that because the withdrawal agreement might not be implemented. If it is, that will be all well and good, but if not, we have to put something in its place. As a consequence, there may be some urgency associated with securing bilateral agreements to deliver that continuity. That is at the heart of what needs to be in the Bill: an ability for the existing healthcare arrangements to be replicated through bilateral agreements in short order, not necessarily waiting on the approval of the two Houses of Parliament in a logjam.
I know that noble Lords will immediately say, “Hang on a minute, we have to be able to approve this thing”. I bring to the discussion of this Bill the benefit of having just been involved in Committee on the Trade Bill. Because there was a lack of powers, on the Trade Bill we were asked to provide the necessary powers to secure continuity and the rollover of existing agreements. In legal terms, this is not the same. We are not rolling over agreements—we may be implementing agreements —but the substantive purpose is the same: to enable healthcare provision across Europe to be provided for UK residents in the future in the same way as in the past. As we go through the legislation we need to make a distinction between what is a continuity provision and what is a new provision for new agreements. Where the Trade Bill was concerned, we did not need to do that; it was not about new agreements.
The noble Lord, Lord Marks, must be careful with the point he made about Clause 5 and regulations that,
“may amend, repeal or revoke primary legislation”.
Yes, it can be,
“(a) for the purpose of conferring functions on the Secretary of State or on any other person”,
but he added an “or” before paragraph (b). He said,
“or to give effect to a healthcare agreement”,
but it is not this; it is,
“to give effect to a healthcare agreement”.
As my noble friend Lord O’Shaughnessy said, this is all in order to implement international treaties.
Lord Foulkes of Cumnock
The noble Lord is absolutely right to distinguish between continuity legislation and totally new provisions in legislation. Does he not agree that it is bad enough to push to get a number of Bills and other legislation through quickly by the end of next month when it is continuity legislation—but that if it is totally new legislation, there is absolutely no justification at all?
Lord Lansley
We spent four days in Committee on the Trade Bill. I do not know how much time is planned for this Bill but it is perfectly possible for us to consider this legislation and to put in place the necessary powers for future agreements, as long as it is done with the necessary scrutiny and approval provisions. I will come on to make one or two points about that, and I am sure we will go on to debate that robustly—as my noble friend on the Front Bench said—in the days ahead.
Lord Marks of Henley-on-Thames
I accept the noble Lord’s point that I should not have said “or”. My point is that outside the context of the withdrawal agreement, which would have been fully debated, any new agreement is a new healthcare agreement, so the limitation of the lack of an “or” does not make a great deal of difference.
Lord Lansley
I will come on to precisely that point about new agreements and the extent to which we need to amend existing legislation to give effect to such agreements.
I will say a word about what we are trying to achieve here. I do not think we should underestimate that the Government have committed to the significant, continuing—effectively permanent—cost of providing healthcare across the European Union for those who have been resident in the United Kingdom. As we have heard, this is £630 million-plus per year. There is not a corresponding expenditure in this country by other countries because it is only a fraction of that for other EU citizens and residents coming to the United Kingdom. This is quite a generous provision. It is not the case that every beneficiary of this would be eligible for healthcare in the United Kingdom. For example, a pensioner who goes to live in Spain might ordinarily cease to be resident in the United Kingdom and hence to be eligible for NHS care. So this is not simply to provide NHS care to people wherever they happen to be, nor should it be interpreted as such. It is a very specific provision.
Equally, there might be people who are in exactly the same position as a pensioner going to live in Spain but who go to live in Florida. We do not, and are not proposing to, provide such healthcare there. That is not simply because the American Government do not provide a reciprocal benefit for Americans in the United Kingdom, because the legislation does not require reciprocal healthcare. It enables the Secretary of State to provide healthcare for UK residents in other countries. The reason is straightforward and rather ironic. We propose to legislate to give continuing healthcare provision across Europe as a consequence of the freedom of movement provisions, while at the same time proposing to get rid of those freedom of movement provisions.
If we were to follow through the logic of ending freedom of movement, which allows people to live and work in other European countries and pensioners to have access to the social security regulations in other countries, we would scrap all this. But that would not be popular. It would feel very unfair and, as my noble friend Lord Kakkar—if he will forgive me for calling him that—said, this matters a great deal to people. They would be extremely anxious and distressed by the removal of something that they had been accustomed to receiving in the past.
But it may not be available in the future. We cannot say that the European health insurance card will be offered to people and available for travel and work in the future as it has been in the past, although I say to the noble Lord, Lord Foulkes, that I have just looked it up. The website is there. The bit where the Department of Health and Social Care tells you about the European health insurance card is still online, but it unfortunately has to tell people that, because we do not know where we will be after 29 March, they might be advised to take out travel insurance.
The point I come back to is this: we are making a provision and we should recognise that we are doing that so as not to take away something of considerable importance for many people who have come to rely on it. We do not want to create that distress. It is a long-term commitment and I hope that people will recognise the value of that. We cannot go around extending it easily. I am not aware of any proposals for bilateral agreements with other countries to extend this healthcare benefit elsewhere. If there are any I would be very interested to hear of them.
I hope that we will be able to replicate the current structures as far as we can in the way in which this is managed in the future, but it is important that we give proper scrutiny. I will say three things. First, we must be able to have continuity delivered rapidly if necessary. Secondly, like treaties, new agreements must be subject to prior agreement within Parliament about the basis on which the Government should conclude them, rather than Parliament simply being given the opportunity to renege on them or not. Thirdly, when it comes to the amendment of legislation, we should be very clear that not only must any Henry VIII provision that amends primary legislation be subject to the affirmative procedure, but regulations that seek to amend, repeal or revoke direct EU legislation—retained EU law of a significant character—should, equally, be subject to affirmative resolution. The drafting here does not recognise the sources of law with which we have to deal and the way in which we should deal with them in the future.
Subject to all of that, I hope that we will not spread alarm. I hope that noble Lords on the Liberal Democrat Benches will at least recognise that there is a purpose to this legislation and that in our further consideration we will ensure that it is entrenched and the Bill passes with that purpose firmly in place.
Baroness Barker (LD)
My Lords, I, too, congratulate the noble Baroness, Lady Blackwood of North Oxford, on the clarity with which she introduced this legislation. On the basis of her speech, I look forward to many spirited debates with her in your Lordships’ House. I have a fair degree of sympathy with her as she has to bring forward this Bill under the constraints of her maiden speech. I thought she did that extremely well.
Before we get lost in a Bill which is bereft of detail, it is important to reflect on the purpose of the law, which is to enable citizens to understand and exercise their rights and to enable them to fulfil their obligations as citizens. It is not to provide a blank cheque or a blanket set of excuses to the Executive. This Bill is deficient in that respect. I do not believe that any citizen of this country reading the Bill would understand their rights and responsibilities under it as of April. The noble Lord, Lord Foulkes, who went first, reported the thunder of the Delegated Powers and Regulatory Reform Committee. Some noble Lords have heard me use the description of that committee given by Mark D’Arcy, which is that they are a group of people among whom the raising of an eyebrow can be considered severe criticism. A report such as its report on the Bill is the equivalent of throwing a chair through a window because it is pretty strong:
“Clause 2 has a breath-taking scope. Indeed, the scope of the regulations could hardly be wider … There is no limit to the amount of the payments … There is no limit to who can be funded world-wide … There is no limit to the types of healthcare being funded … The regulations can confer functions (that is, powers and duties, including discretions) on anyone anywhere”.
I and many Members of your Lordships’ House have many a time sat through debates in this House about the detail of primary legislation that enables citizens of this country to go abroad for healthcare and the circumstances in which that would be approved by the National Health Service. There is nothing in this Bill about that. I wonder whether the Government are not setting themselves up for a slew of court cases at some point in the future in which people who have been unable to receive treatment in this country see that it is possible to have such treatment in another part of the world, as the noble Lord, Lord Kakkar, said, and try to do so. In particular, I am thinking of things such as fertility treatment. I do not imagine that that is the intention behind the Bill, but it is certainly possible.
We seem to be moving from a situation in which over time we have worked with our European partners, who have broadly comparable health systems and systems of publicly funded health provision which exercise similar clinical standards, and are seeking to extrapolate from that agreements with countries across the world where that does not apply and where the public provision may be extremely limited or expensive, as in the case of the United States. I think we are in some difficulty. The noble Lord, Lord Lansley, was correct when he put it to the House that the Government are putting in place temporary, almost emergency, continuity arrangements for public healthcare but have given us this Bill, which is so bereft of detail that it can be much more widely interpreted. That is a problem, not just for individuals but for business.
I shall tell your Lordships about a young man I talked to about 18 months ago on this very subject. He was desperately worried about his future. He is a young man who would expect to go abroad during his career and to be a high earner and highly successful. The problem is that he is HIV positive, which means that it would simply not be possible for him to pursue his career in many places. He would be unable to do so in the Commonwealth because he would have to divulge his status and either he would not be admitted or he would not be allowed to live in a country legally. He cannot go to the Middle East, and he cannot go to America due to the healthcare costs. Therefore, he can see his world and his job prospects shrinking. Coming forward at such a late date with a Bill that is so lacking in detail makes life difficult for people like him.
I noticed during the discussions in another place that questions were put to the insurance industry, which was very honest. It is as much in the dark as anybody else. It was very forthright in saying that there are only two conditions that it can deal with under the changes in our arrangements with Europe: either having the EHIC or not having the EHIC. Frankly, if we do not have it, the cost of travel insurance will go up. Not only that but it will not be as easy for people with pre-existing conditions or disabilities to get insurance to travel for business or pleasure as it is for the rest of us.
I want to concentrate on one area which I do not think has been mentioned so far—the reciprocal provision between the United Kingdom and the Republic of Ireland. From what has been said, I understand that citizens of the Republic of Ireland and the United Kingdom benefit from the common travel area arrangements. We also have arrangements that are currently underpinned by the Belfast/Good Friday agreement. I understand that it is not the Government’s intention to cease the common travel arrangement. It is very beneficial to people on both sides of the border: people can access specialist treatment in the Republic of Ireland; equally, citizens of the Republic can travel for treatment in the north.
Ministerial Statements are extremely important, so, when the noble Baroness responds, I would like her to explain whether under the terms of this legislation the arrangements between the United Kingdom and the Republic of Ireland will be those in place as of 29 March and, if not, whether they are to be updated. For example, if treatments that are not currently available were to become available in the future in either the United Kingdom or the Republic of Ireland, would citizens of either country be able to take advantage of them? That is a very important point.
I think that we are in some difficulty with this Bill, and there is a particular danger for women. They might well get pregnant within whatever the timescale is, depending on what arrangements are agreed, and they might need treatment under maternity and gynaecology services. I would like to think that at the very least we might be able to give them some reassurance that they will, if only on an emergency basis, be able to seek treatment. I have absolutely no doubt that medical people the world over will abide by the oath of their profession; they will not seek to deny treatment to anyone in urgent need. However, that is not the point; the point is that we need to try to secure arrangements around which individuals and businesses can build their lives and construct their future prosperity.
I agree with my noble friend that this is not taking back control; it is a constitutional land grab. As a matter of principle, we should not let legislation as deficient as this pass through without an intense amount of scrutiny, and I hope that the Government are willing to come back with the degree of detail that should have been in the original Bill.
Lord Ribeiro (Con)
My Lords, it is indeed a pleasure to take part in this debate, and in particular to follow the noble Lords who have spoken and to welcome our new Minister to the Front Bench in her new position. I declare an interest as a member of the EU Home Affairs Sub-Committee and commend to the House its report, Brexit: Reciprocal Healthcare, published in March 2018.
Like many of your Lordships, although I use travel insurance when I am in Europe, I am always grateful to have in addition my EHIC. Some years ago, while I was on holiday with my family in France, one of my children broke a toe while going down a slide. Faced with having to pay for her surgery and then claim back the cost, I produced my E111 form with a flourish—noble Lords may remember those days. I managed to convince the hospital authorities in my pidgin French, although that was more challenging. The E111 form worked a treat and surgery was performed at no cost to me. The current EHIC is equally reassuring, but mine runs out in May 2019, so I seek reassurance from my noble friend the Minister that I will be able to renew it during the implementation period of the withdrawal Act—if it is finally implemented.
What happens in the event of a no-deal Brexit, the drums for which are continuing to beat in some quarters? Our report confirmed that some 27 million cards, as has been mentioned, exist in the UK, from which only 250,000 claims—less than 1%—have been made so far each year. In relation to UK citizens living in Europe, approximately 190,000 UK state pensioners, as we have heard, rely on the S1 scheme. This provides ongoing access to healthcare, the costs borne by the member state with the social security system to which the individual has contributed the longest. The scheme supports the elderly and ensures that reciprocal healthcare is a portable benefit. On page 10, paragraph 16 of our report says:
“A disproportionate number of UK citizens benefit from the S1 scheme. There are only around 1.2 million UK citizens living in other EU countries compared with around three million EU citizens living in the UK. But some 190,000 of those UK citizens are pensioners, who are more likely to benefit from the S1 scheme, compared to only 5,800 EU/EEA citizens who have registered for the S1 scheme in the UK”.
That is quite a disproportionate number.
In all this, we remain net beneficiaries. I hope that noble Lords will forgive me for focusing on the no-deal scenario, but the implications are dire for this group of UK citizens and the 27 million EHIC holders I mentioned, many of whom, as we know, voted to leave the EU. If the EHIC is not maintained—which is a distinct possibility with no deal—short–term visitors to the EU would need travel insurance. In giving evidence to the committee, Mark Dayan of the Nuffield Trust told us that the highest cost of travel insurance was the medical cost. Without the EHIC, the cost of travel insurance is bound to rise.
There is also concern about the onward movement of UK citizens living or working in the EU in relation to free-movement rights or rights to reciprocal healthcare, which are not covered by the joint agreement or the withdrawal agreement. It has been suggested that bilateral and multilateral arrangements, as currently occur with countries outside the EU such as Australia or New Zealand, could be applied to the EU. But these arrangements largely cover emergency healthcare and not the arrangements we currently enjoy through the S2 scheme in relation to planned treatments. For example, as I mentioned in my speech on 3 July 2018, the proton beam cancer treatment available in Prague and other European cities is not currently available here, although we hope it will very soon come on stream. So what reassurances can the Minister give that future relations and arrangements will protect the current S1 and S2 arrangements, which form part of the four routes to reciprocal healthcare? Reciprocal healthcare is assured until December 2020, as we have heard—if we have an agreement. In the event of no deal, which is fast approaching, what assurances can the Minister give that the deadline of December 2020 can still be maintained to allow “alternative arrangements” to be negotiated between individual EU countries and the UK?
It is important that we provide reassurance to UK citizens, many of whom are in their twilight years and have chosen to reside in EU member states, that their health needs are protected. This should happen, deal or no deal. If we end up with no deal, analysis by the Nuffield Trust shows that British pensioners will lose healthcare cover in EU states and have to return to the UK to access care. The cost of that care in the NHS is estimated at about £1 billion—pounds, not euros, although it is about the same—which is twice as much as the UK currently spends on the care of people abroad under the S1 scheme, as spelled out earlier by the noble Lord, Lord Foulkes, when he referred to this. The resource implication of such expatriate return to the UK is the equivalent of two new NHS hospitals the size of St Mary’s Hospital, Paddington. We noted in our report a large amount of evidence expressing concern at the additional costs to the UK and the NHS of returning expats. What contingency plans do the Government have in the event of such an outcome occurring?
Lord Morgan (Lab)
My Lords, I do not intend to speak for very long but I begin by thanking the House and the Front Bench for allowing me to speak at all. I am afraid that I was wrongly advised about the timing of Motions today. I particularly apologise to the Minister; I was anxious to hear her maiden speech, which obviously was very successful, and I was particularly anxious to hear someone identified with north Oxford, where I have spent some of the happiest years of my life, so I am sorry.
The Bill has been described as very wide-ranging, global in its implications and, according to a House of Lords committee, “breathtaking”, but I want to focus on one aspect nearer home and try to point out how it is possible that the implications of breaking away from one Union, the European Union, can lead to severe and perhaps irreparable damage to another union, that of the United Kingdom. The Bill reproduces issues that we have examined before; we in the Constitution Committee have certainly looked at them. On the European Union (Withdrawal) Act there was much dispute when the UK seemed reluctant, it was said, to honour the devolution settlement and seemed less than straightforward in respecting the reserved powers accruing to the Scottish Parliament and the Welsh Assembly.
It seemed to me at the time that quite needless acrimony was created by that, and indeed that it was a gift for nationalists north of the border and the movement for independence, which I do not support and do not wish to see flourish. At present we have the same kind of division and conflict over authority in relation to the Agriculture Bill, with exactly the same points being made about where authority lies. We find there is a persistent threat of conflict every time the Government try to make wider or international arrangements that will follow Brexit and engage in the repatriation of powers from the European Union. We have the same kind of argument, which to me indicates again the lack of care and preparation taken, particularly in the astonishingly few weeks that remain for the implementation of Brexit.
Strong criticisms have already been expressed in this debate about the wide delegated powers given to Ministers—the greater powers of Henry VIII and other monarchs—which are going to be adopted very rapidly. The argument over devolution is more serious still and deeply worrying, since it affects the corporate structure of these islands. As a Welsh person, I find it deeply worrying that an area where no serious argument currently exists is now being fomented.
At the moment, we have deadlock. The Scottish Government have withheld consent from the Bill on principle and claimed that it lacks clarity about their role. The Welsh Government have been a good deal more moderate, but they have also withdrawn their consent to the Bill so far. Both devolved Governments feel that in health—which is clearly a reserved area, like agriculture and fisheries—the Westminster Government are riding roughshod and with little courtesy over their agreed competencies and ignoring much of the context in which the devolution settlement has continued; the Sewel convention seems to be completely set aside at this time. It seems to them—and one can see the argument—to be an almost colonial attitude adopted by English nationalists to unbalance a complicated and careful devolution settlement that has acted in a stable way and been extended over the past 20 years.
There are two issues. One is the simple intellectual issue about authority and whether international agreements about healthcare such as this one have anything to do with devolution. Are they an external matter or, as the Scottish Government have argued, since these measures have to be implemented by the devolved Governments—in areas of competence such as agriculture, fisheries and health—are they therefore their responsibility? The situation is very unclear; it is a permanent, unresolved, intellectual conundrum that has cropped up time after time and will go on doing so, damaging not merely our external position but the internal integrity of the United Kingdom.
The other question that we on the Constitution Committee have been asking in vain for a long time is: who decides how these matters are to be resolved? Quis custodiet? At the moment, we have the Joint Ministerial Committee and I can be completely impartial in saying that over the years it has been totally useless. Even being partisan, I say that it was useless under Labour, under a coalition Government and under a Conservative Government. We raised the fact that it has not been effective in the Constitution Committee the other week with the Chancellor of the Duchy of Lancaster. He said that these difficulties arose because, latterly, we have had different Governments—nationalist, Labour and Conservative—in different parts of the United Kingdom. That is of course a complicating factor but it is not the real issue at all because the essential point has not been decided.
It has not been decided because the Joint Ministerial Committee is an ineffective body, with erratic membership and occasional hours of meeting. There are more meetings at present under Mr Lidington, which is a good thing. But otherwise, speaking as an historian, it rather reminds me of Lloyd George, who did not have proper Cabinets; he had meetings of Ministers, carefully chosen or sometimes not chosen at all but simply those who turned up. It has been rather like that. We have this very important constitutional issue affecting the integrity of our country and decided by a body that is not at all fit for purpose, particularly in handling very sensitive areas of intergovernmental relations in the United Kingdom.
The question of intergovernmental relations has been very unsatisfactory and it is ironic that in discussing Brexit measures, which are designed to point out the centrality and integrity of the United Kingdom in standing up to its international situation, those measures may have the reverse effect. As previous speakers have said, Brexit is a totally disastrous prospect for this country. As we are already seeing, it will make it economically weaker and less confident. I fear that if we continue to have these divisive issues over devolution, the loosely associated union state that is the United Kingdom may find it difficult to be a country at all.
Lord Thurlow (CB)
My Lords, it is a pleasure to welcome the noble Baroness, Lady Blackwood of North Oxford, and I congratulate her on her fine maiden speech. She has certainly hit the ground running by going straight on to the Front Bench. I thank the Library as well for its excellent briefing for this debate.
I laud the efforts of the Government to recreate or replicate the pre-Brexit arrangements within the EEA and EU, while anticipating the future. It is of course of mutual benefit to EEA citizens as well—the noble Lord, Lord O’Shaughnessy, referred to this. But given our apparent failure to collect our share of the cost inflicted on the NHS, in my opinion those countries would be mad not to agree. Given the important comments on Henry VIII powers raised by the noble Lords, Lord Foulkes and Lord Marks, and particularly by the noble Baroness, Lady Barker, I should declare my membership of the Delegated Powers and Regulatory Reform Committee. We were not preparing furniture for throwing through the windows.
My concern is the failure to accurately calculate the cost of our great national health services as supplied to foreign nationals. The current arrangement with the EU and the EEA allows for a reconciliation on a pro-rata basis for cost recovery—quite right, very sensible and fair. However, it is evident that we in UK cannot work out how much those users from overseas—possibly not those carrying the appropriate cards—cost the NHS. It appears that there is no universal, accurate mandatory recording system in place at the point of delivery.
In my local hospital, which is a very large NHS one, to try to set about recovering costs, people walk around with clipboards inquiring of people in the hospital who have not given the necessary data information on arrival, trying to find out where they have come from and whether or not they are entitled. It is ridiculous. You can imagine the success rate of the people with the clipboards, trying to find out information from those who are not entitled, in particular from those who know they are abusing the system. There have been attempts to improve these systems, but we see continued—extensive, probably—financial shortfall in this area, partly from Europe and particularly from those outside the European Union.
We proudly boast that our great NHS is free at the point of delivery. It certainly is; it appears to be free for the whole world. There have been attempts to overcome this unintended anomaly, but hospitals and others are reluctant debt collectors; they are, after all, in the healing business, not the banking business. We need to design a system that works without asking the health industry to collect the money. An ID system that works and is not easily abused must be capable of simple introduction—they seem to do it elsewhere very effectively.
I was going to refer to statistics. We have heard a lot about the number of UK residents living in Europe, the number of retirees living in warmer climes, those who use medical services in continental Europe because they have been referred, and so on. But the fact is that there are apparently some 3 million EU nationals living in the UK, and 1 million British nationals living in the EU. Yet we recover only 10% of what they recover. I do not get the arithmetic. I am sure I will be corrected—
Lord O'Shaughnessy
I can tell the noble Lord the reason for that. It is fantastic to hear somebody from the Cross Benches supporting the efforts that the Government have been making for cost recovery, because it is not always a popular topic in this House. One of the main reasons is that if you are here for six months or if you have made your home here, wherever you are from, you are counted as ordinarily resident and are therefore entitled to free care. That is a founding principle of the way the NHS is set up, and the reason for the discrepancy that the noble Lord talks about. It is not a failure to deliver costs—it is an entitlement that anybody from any country has if they are counted as ordinarily resident under the law.
Lord Thurlow
I thank the noble Lord for his clarity.
Health tourists are a different category. The BMJ reported 18 months ago that in the year before, some 50% of births at a particular London hospital were to mothers not entitled to NHS services. I realise that this is a completely different category, but health tourism is something we are all aware of. The estimates I have read of the cost of this to the NHS vary from £300 million to £500 million; a senior doctor at a London hospital estimates that the figure is well over £1 billion. There appears to be a well-organised shuttle service of sorts from west Africa, giving access to those who can afford the service, no doubt for a great price. Are our doors really that wide open to this abuse of taxpayers’ money?
Why my interest? I am not a ranting, Brexiteering, screaming far-right nationalist, I promise you. I am doing this as a taxpayer and we, the legislature, owe a duty of care to all British taxpayers and citizens. The Second Reading is the first opportunity for us to debate the key principles and the main purpose of the Bill and to flag up concerns. To read that the cost of the mix of inefficiency and fraud may cost the NHS only £300 million or £500 million is insulting. Just try getting that out of the Treasury for your next worthy project. Does the Inland Revenue stop chasing us when it gets down to the last £300 million? We are all taxpayers, all paying for this shortfall.
In 2014, the visitor and migrant NHS cost recovery programme was, I believe, implemented. It sought a target, for some reason, of £500 million per annum. To do this, it wanted to improve existing charging systems, laying a health surcharge on non-EU citizens. This Bill provides an opportunity to redress this programme and so support the principle of fairness by ensuring that those not entitled through treaties pay for their care. It requires that the particulars of NHS access entitlement must be made completely clear to foreigners as they arrive in the UK, to avoid confusion for both patients and service providers.
In our great liberal democracy I could easily be perceived as a bogeyman or pariah—no one else has raised these points before in this debate. Please do not do that. It is taxpayers’ money; it is hard cash. We have a duty, as I have said, to stamp out abuse. Please do not turn a blind eye to this shameful state of affairs. The UK is not a rich country at the moment. We are doing our best to recover from the great recession of 2008 to 2012. We had austerity—closing rural schools and closing or reducing hundreds of other public services. Yet we appear to waste hundreds of millions of pounds because this is in the “too difficult” category. At the least, we could let DfID pay for the illegal health tourists through the aid budget. After all, it is foreign aid.
We must create an effective system to record the origin of unentitled users of the NHS, and allow for the accurate reconciliation of costs as the system is set up to do. To stop health tourism, users must pay. It is not a job for medical practitioners, but we have hospitals staffed by highly paid administrators. If remedied, hundreds of millions of pounds could be added to the funding of the NHS. Why is cost recovery not more effective and what, if anything, is being done to radically overhaul the system which allows this shameful waste of taxpayers’ money?
Lord Bethell (Con)
My Lords, I thank the Minister for her excellent introduction and her absolutely excellent maiden speech. I have known her since before she was an MP, followed her progress with absolute awe and grown to respect particularly her expertise in health technology—an area which is a huge opportunity for the country but will also need a lot of scrutiny from the kind of expertise found in this House. I look forward to many engagements on that subject.
On this legislation, I thank the members of the Home Affairs Sub-Committee of the EU Select Committee—the noble Lord, Lord Jay of Ewelme, and his fellows—for their excellent report. What I found striking was the great concern it expressed about the potential loss of existing reciprocal healthcare rights, the dangers of the cost to the NHS and the potential administrative burden, and the large amount of coverage that the report received in the press. It was a brisk reminder of how an overlooked area of policy and machinery of government which is precious to a lot of people needed to be focused on as we approach Brexit.
I was grateful to the noble Lord, Lord Thurlow, for his reminder of the costs of this area of government—it was an important point. I was grateful also to the noble Lord, Lord Lansley, for reminding us that, if we are to take away freedom of movement, we should perhaps get rid of such reciprocal rights—there is a sort of logic to that. I am here to reject both those arguments and to make an appeal in the opposite direction. I want to try just for a moment to extend the debate outside the Chamber, beyond Brexit and Henry VIII powers, to offer a little reminder of how many of the public might regard this as not only a healthcare issue but as one that touches on a subject that is very important to most of them; that is, travel.
Travel has changed dramatically in the public mind. It is not felt to be a luxury any more, as it was when I was a child. It is felt more to be a right and a form of expression; it is a part of one’s education, and it is critical to business. We can all wonder about the sense of entitlement among the modern generation, but I for one celebrate the benefits of travel. It satisfies the yearning to improve oneself personally and, among the business community, enables one to reach exciting new markets. In the context of this debate, we have not really talked much about the benefits of travel both to the country and to individuals. Underpinning that yearning for travel is a desire for frictionless, risk-free and affordable travel. The reciprocal rights that we are talking about are there to provide that kind of cover.
I do not think that there will be a massive change in the country’s mindset in respect of travel just because of Brexit and 29 March; if anything, quite the opposite. There has been a huge boom. Last year, Britons undertook 73 million trips overseas, representing an increase of 4% on the year before—that is a hell of a lot. That growth has gone on at a very steady rate for many years. That growth will go on into the future and we should think in policy terms about its implications. The range of destinations that people are travelling to is only getting wider.
People are also relocating in later life. We have heard a lot about the 190,000 people who have already moved to Tuscany, Provence and the costas, but that number is also edging up. We have to accept that we face the possibility of making provision for an ever larger number of people.
Some 27 million Britons already have an EHIC—the noble Lord, Lord Foulkes, showed us his; I thank him for that. We in my family have six of them; I do not have mine with me. I was staggered when I heard that the figure was 27 million. That is an unbelievable number. For a public policy to be quite so successful and to get through to nearly half the country like that is a huge achievement. There will be public policy professionals who are incredibly envious of that sort of penetration. There were 250,000 claims against those cards last year. Again, that is a daunting number—much higher than I could have imagined.
My appeal today is for us to try to think about this policy not just in terms of the daunting prospect of Brexit, the constitutional implications of the Bill and the cost, but through the lens of the macro changes that we see in society about people’s yearning to go overseas, to take their business and their families with them and to see other lands. We should think about future-proofing this overlooked part of our healthcare provision and accepting that we may need to extend those arrangements in terms not only of their geographical reach but of the sophistication of how we manage them. We should communicate a clear statement to British people and the outside world that nothing that happens around Brexit is about turning our backs on the world or closing the doors. Rather, we should show through our reciprocal healthcare arrangements that we will guarantee fair and reasonable treatment for people who visit Britain and support our own citizens who might run into difficulties when they travel abroad.
Baroness Brinton (LD)
My Lords, I join others in welcoming the noble Baroness, Lady Blackwood of North Oxford, and congratulating her on her maiden speech. It is always slightly bizarre for a maiden speech also to be a ministerial introduction to a Bill, but she did it extremely well and set out the case. Along with my colleagues on the Liberal Democrat Benches, I may disagree with some of the things that she said, but she set out the Government’s position eloquently.
In addition to thanking the Library for its very good briefing, I want to thank the BMA for its own. One point that it makes has not been covered so far in our debate today. It says:
“It is essential that any alternative cost-recovery system introduced post-Brexit should not place an undue burden on either the NHS or on doctors or allied health professionals working within the health service”.
In view of the rearrangement of the BBC charter, whereby the BBC is taking on responsibility for the public benefit of TV licences for the over-75s, I worry that a Government in future might take the attitude that it is perfectly acceptable to offset—so I completely support the BMA in saying that it must not affect costs.
Others have spoken eloquently about the number of UK residents who hold EHICs and have received reciprocal treatment. I speak as someone who lost their father-in-law 10 years ago in France. He had the most wonderful treatment over a three and a half-week period after a brain haemorrhage, but sadly died. At no stage of the treatment, moving from a front-line hospital to a big regional hospital of excellence, was there any problem with the card or the E111 form. The only slightly bizarre thing that happened was that, after he died and all treatment was concluded, my mother-in-law received a bill for the ambulance service. It was not that she had to pay it, because if one is covered by E111/EHIC form the cost is met by the state, but every family gets a copy of the ambulance bill because it reminds them how expensive it is—and, guess what, in France there is no abuse of the ambulance paramedic system whatever.
At paragraphs 75 and 76 of the EU Committee report, Brexit: Reciprocal Healthcare, published in March last year—about one year ago—the committee sets out its concerns about making sure that negotiations should start early. It stated:
“We applaud the spirit underlying this ambition”—
of wishing to maintain reciprocal healthcare arrangements—
“but it is difficult to square it with the Government’s stated aim of ending freedom of movement of people from the EU”,
which is of course symptomatic of the principle of reciprocal healthcare. It went on to state:
“More generally, reciprocal healthcare arrangements will only be achieved by agreement between the UK and the EU. The Government has not yet set out its objectives for the future UK-EU relationship. We … urge the Government to confirm how it will seek to protect reciprocal rights to healthcare of all UK and EU citizens post-Brexit, as part of any agreement on future relations”.
It is worth noting that, 52 days away from 29 March, we are still not clear about what the UK wants from the arrangements. We seem to be going back to the negotiating table. I suspect that that explains what the noble Lord, Lord O’Shaughnessy, said about the sparsity of information. It is almost as if Ministers are saying, “Trust the Government, because we don’t quite know yet where we are”.
Some of the points made later in the EU Committee’s very good report give a signpost to where we might be. Chapter 6, on reciprocal arrangements, private healthcare and insurance, talks about contingency planning for the S1 and S2 arrangements and the EHIC. I will not dwell on those, because colleagues have mentioned them, but I remain concerned about arrangements with insurers. The chapter’s final conclusions state:
“Time is now short for the Government to provide much-needed clarity to the insurance industry to help with planning, particularly for multi-trip travel insurance policies that will include the period beyond March 2019”.
It goes on to say:
“There will be consequences not just for the insurance industry, but for tourism and individual travellers. While the industry might derive some benefit should it be required to play an expanded role in providing cover, we recommend that any move for greater reliance on private medical insurance by UK citizens travelling within the EU post-Brexit be subjected to careful scrutiny, particularly in terms of the further regulatory oversight that might be needed to ensure that patients and consumers are treated fairly”.
In November last year, my noble friend Lord Bruce of Bennachie asked the noble Lord, Lord Bates, about the arrangements and advice that would be provided to UK residents planning to book a holiday in an EU member state commencing after the end of March 2019. The noble Lord, Lord Bates, said, in summary, that he did not have details, but went on to say:
“The Government continue to strongly encourage all British nationals travelling abroad, including within the EU, to take out comprehensive travel insurance that covers their personal circumstances and meets their needs. In the unlikely event of no deal, travel insurance policies will remain valid”.—[Official Report, 1/11/18; col. 1424.]
Last week, my honourable friend Tom Brake, who is the Liberal Democrat Brexit spokesman in another place, reported that we had done some mystery shopping for travel insurance in the preceding week, in January 2019. Of the seven travel insurers spoken to, only two firms said that insurance would be paid out as normal in the event of a no-deal Brexit. Three said that they did not know what would happen if a no-deal Brexit came into force. Most worryingly, two of the companies said that holidaymakers would not be covered in this event because they had not yet got any policy on it. That is why I am really worried by the lack of detail in the Bill, which is symptomatic of the lack of detail and discussions going on with the industry itself.
I will briefly touch on Northern Ireland. The noble Lord, Lord Foulkes, has spoken about the importance of arrangements elsewhere in the union. The arrangements that pertain in Northern Ireland at the moment are absolutely not the same as elsewhere in the European Union. Joint health services allow patients to get medicine at any pharmacy, north or south of the border, irrespective of the location of the GP responsible for the prescription. Ambulances on both sides of the border are currently free to travel across it to attend emergencies. People across the island of Ireland are allowed to receive radiotherapy at a new £50 million centre for cancer patients from both sides of the border in Derry. It is important that that specialist provision is available, yet there is no pathway for managing these difficult cross-border issues in Ireland. Will these current arrangements remain in place after 29 March, in the event of a no-deal Brexit? Even in the event of a deal, will it continue if there is no final agreement? Are specific discussions going on between the Republic, Northern Ireland and the UK Government to ensure that there are no cliff edges for residents of Northern Ireland or the Republic? This is not just holidaymakers, or a handful of workers abroad. This is a full, two-way process.
Finally, I move on to the Henry VIII powers. I am grateful to my noble friends Lord Marks and Lady Barker and to the noble Lord, Lord Foulkes, for expressing their concerns in detail. I will not repeat them, but I agree with them about the enormous scope of the Bill and of the underlying arrangements it sets in place. The noble Lord, Lord O’Shaughnessy, responded to the DPRRC saying that there were “too few constraints” on power by saying that there needed to be flexibility because of future trade deals. He will know of my concerns in this area, because I raised questions with him about the protection of the NHS when he was the Minister. One of the lesser-known pillars currently protecting our NHS is the EU directive on public health procurement. It governs the way in which public bodies purchase goods, services and works and seeks to guarantee equal access and fair competition for public contracts in EU markets.
I was concerned by the noble Lord’s mention of future trade deals. We know that the United States of America wanted, through TTIP, to use trade deals to get a foot in the door of larger contracts within the UK. In the past I have said to colleagues on the Labour Benches that we have the protection of the EU directive. I now worry that that will disappear in a puff of smoke if we have a no-deal Brexit on 29 March. I am grateful to the noble Lord, Lord Livingston of Parkhead, who answered my question on this issue in November 2014 by saying:
“Commissioner de Gucht”—
from the EU—
“has been very clear: ‘Public services are always exempted ... The argument is abused in your country’”—
the UK—
“‘for political reasons’”.—[Official Report, 18/11/14; col.274.]
Can we count on the Prime Minister’s statement that all EU law will be enacted fully in the UK and that if changes are to happen they will follow later? Can I take it from that that this EU directive will be enacted and in force on 29 March to protect the NHS from unscrupulous trade deals that we were promised would not happen?
I am particularly concerned. When I asked these questions in the past, Barack Obama was President of the United States. Under President Trump I remain even more concerned about the protection of the NHS. The Minister may say that this should not be affected, because this is about arrangements, but I worry that the scope which sits behind it might actually allow it to happen—so I look forward to hearing from the Minister.
Viscount Bridgeman (Con)
My Lords, I have the rare pleasure and privilege of congratulating the Minister on her most impressive introduction of the Bill—on only her second day in the job—and addressing the challenge of a maiden speech in such style. We await her further contributions from the Dispatch Box. I welcome her as a Member of your Lordships’ House.
The Government are to be commended on this Bill. Of course, we await the outcome of the Prime Minister’s dialogue with the European Union, but the Bill has the merit of addressing with flexibility every possible outcome of these negotiations and of the future relationship between the United Kingdom and the European Union. The health of individuals is impatient with political considerations and we can therefore be pleased that the Bill comes before Parliament at an opportune time. Whatever the outcome of negotiations with the EU, the reciprocal healthcare arrangements which currently exist within the EU, the EEA and the European Free Trade Area are an achievement of which all participating countries, and the European Union itself, can be proud. I welcome the flexibility which the Bill introduces, giving the Secretary of State the power to conclude individual agreements with other states, outside and inside the European Union, should they be needed following our exit from the EU.
The noble Lord, Lord Kakkar, who is not in his place, referred to countries on the continent which advocate treatment which would not be available under the NHS in this country. For my own benefit, will the Minister clarify whether the Bill will address that problem? The Minister mentioned the light-touch arrangements that Australia and New Zealand have with this country. I was not party to these negotiations and I just ask whether the Bill is intended to enable our agreements with those two countries to be upgraded to the standard currently available in the EU reciprocal arrangements.
I recently undertook to assist a Hungarian friend of my family, who is registered with the NHS in England and who suffers from breast cancer, to obtain consent under the S1 or S2 procedure to be treated in Budapest, which she wished for personal reasons. I certainly had to go around the block getting advice, which was well-meaning but often contradictory. I eventually located the office in Leicester which handles the S1 and S2 requests and the necessary permission was granted. I ask the Minister to take the opportunity provided by the Bill to ensure that the reciprocal arrangements admirably provided for in it are publicised simply and clearly.
To sum up, this is a timely Bill. Going by the speeches of noble Lords, we can look forward to some very lively later stages, but it was admirably introduced by my noble friend in her new role and I join other noble Lords in wishing her all success with it and all other health matters in your Lordships’ House.
The Earl of Dundee (Con)
My Lords, I join others in congratulating my noble friend the Minister on her very useful introduction of this debate and on an excellent maiden speech.
I welcome the Bill but I share concerns over a number of its defects. These include: inadequate parliamentary scrutiny; insufficient awareness of cost consequences; and, still left by it, the degree of uncertainty affecting United Kingdom citizens living abroad and foreign citizens living here. As my noble friend Lord O’Shaughnessy explained, it is sensible that the Secretary of State should be given wide powers. Since any particular Brexit outcome is as yet unknown, that is the best way to protect international healthcare arrangements in a Bill such as this. Thereafter, no doubt, the negative statutory instrument procedure might otherwise have been the right method for ongoing parliamentary supervision. For, as the Government already argue, by then, although not now, the focus of Parliament would be able to be on a specific post-Brexit healthcare agreement. Also, negative statutory instrument procedures are often the means of looking at regulations made under all Bills, including this one.
The alternative is to make use of the affirmative statutory instrument procedure. In this instance, does the Minister agree that we should do that instead? There are clear benefits. These are against a background of public anxiety over all post-Brexit plans and their detailed results, corresponding to a correct and increasing public desire for maximum transparency. The affirmative procedure responds to this demand. Its deployment instead of the negative procedure—against which the noble Lords, Lord Foulkes, Lord Marks of Henley-on-Thames and Lord Kakkar, among others, have warned—would therefore provide much greater reassurance that ongoing parliamentary scrutiny will be carried out in a proper and accurate manner.
As a number of your Lordships have cautioned, we might also harbour misgivings about excessive costs. So far, these may have been underestimated because meaningful budgeting has to depend upon the terms of a future withdrawal agreement—as yet a matter for speculation, not least on whether there will be one at all. In view of that, as my noble friend Lord Ribeiro emphasised, it is impossible just now to anticipate the financial burden on the NHS of British nationals who might return to the United Kingdom for treatment; equally unable to be calculated at present are the administrative costs of carrying out, as envisaged, all sorts of concordats with the European Union, with the EEA and with other countries across the world. Clearly, we hope for efficient reciprocal healthcare arrangements arising from a competent withdrawal agreement at the outset. However, although germane and even crucial to it, these still lie outside the Bill. Within its scope, conversely, is the opportunity for Parliament to monitor all expenditure and income to do with healthcare plans. Does the Minister therefore concur that reports with these details should be laid before Parliament annually?
On this issue in another place, the Government may have prevaricated slightly and hidden behind the skirts of obvious current circumstances. While they say that the Bill should not prescribe a particular timetable for reporting back until new healthcare plans have come to light, they also claim that a number of reporting processes can anyway be deployed instead. Yet is there not a simple and necessary corollary to this? If we really want to increase confidence and transparency, why not just make sure that Parliament is given relevant healthcare facts and figures at least once a year? Then, if the Government wish to report further through any other processes, they are free to do so.
Then there is the safeguarding of the reciprocal healthcare rights of United Kingdom citizens abroad and foreign citizens here. The aim is to avoid slippage and to maintain equivalence. This is the common theme of all post-Brexit challenges and obstacles, which many of us, including myself, while determined to meet and overcome them, are also regretful to have to confront at all, believing as we do that by far the best deal for the United Kingdom would be not to leave the European Union in the first place. Along with us, United Kingdom citizens living abroad will acknowledge the usefulness of the Bill. Nevertheless, at the same time, and as we do, they will recognise that for the proposed legislation to work efficiently, a robust and reciprocal deal for international arrangements has to be put together to begin with.
Meanwhile, the Bill should be improved in several respects, amended so that parliamentary affirmative procedures and annual reports can enhance supervision and transparency, and, as your Lordships have urged, with a stronger commitment of intentions to the people concerned, through a proper undertaking to those wishing to travel and who suffer long-term medical conditions. There must be a firm resolve not to short-change but to preserve reciprocal medical delivery as it is, and there must be greater clarity on the role of the European court to protect such standards as they are.
Baroness Jolly (LD)
My Lords, I join other noble Lords in welcoming the noble Baroness, Lady Blackwood of North Oxford, to the Dispatch Box and in congratulating her on her very fine maiden speech. I hope she learns to love her brief. On these Benches we look forward to working with her, improving legislation and asking fairly regular questions.
One of the privileges of membership of the European Union is that, no matter where we are in the EU, our health needs are safeguarded when we need medical attention. Under EU agreements, the UK has participated in a variety of reciprocal healthcare arrangements with other countries, with the result that all citizens and visitors are protected. This Bill aims to allow the Government to implement new relationships with our EU neighbours, but it goes far further. It aims to give the Secretary of State powers to fund healthcare outside the UK and to give effect to healthcare arrangements between the UK and other countries. It gives data powers to the Secretary of State that exceed what one might think he or she should need.
We know how crucial it is that people’s health is protected after 29 March. In 2016, 91,000 British citizens used their EHICs while abroad in Spain. In Germany, 22,000 British citizens accessed medical help when they urgently needed it. Each year, thousands of older British people who have retired to the EU rely on reciprocal healthcare to access services as they age. Kidney Care UK has called for greater certainty for people living or travelling abroad with long-term health conditions and for those of us who have booked holidays for after Brexit. The BMA warns that care needs may not be met if many people are forced to return from abroad where their health needs are no longer covered. The BMA and the Nuffield Trust have estimated that in that scenario, an additional 900 beds might be needed. Of course, social care might also be affected.
A Bill of this kind is necessary if we are to leave the European Union. I do not believe that the extraordinary scope of the overall Bill has been adequately justified by the department, and I have several areas of concern. First, I am concerned by the extent of the powers called for. This issue has been raised several times today, but it is important to reiterate it. In November, the House’s Delegated Powers and Regulatory Reform Committee described the scope of Clause 2 as “breath-taking”. The committee noted that the clause covers everything from what kinds of healthcare can be funded to whom functions can be delegated to. That would appear to be everyone, everywhere. The Bill does not limit its scope just to Europe. It calls for worldwide powers to make healthcare agreements with any country, anywhere. Why is this necessary? Surely the focus of the Bill should be purely on building new agreements with the EU and EFTA countries.
Clause 4 makes any healthcare provider and anyone the Secretary of State decides an authorised person. Does this mean that confidential health records can be shared with private healthcare providers and anyone else the Secretary of State gives authority to, in the UK or abroad? I appreciate that data is important, but I wonder whether the Government are getting distracted from the key issue at hand.
In direct contradiction to the Government’s promises regarding the Bill, only last week a no-deal technical notice was published by the Department of Health and Social Care which recommended that British nationals living abroad should buy health insurance.
I am seriously concerned by the lack of comprehensive affirmative procedure in the Bill. Under this version of the Bill, regulations which do not contain provisions that make modifications to primary legislation are subject to the negative resolution procedure. Simply put, the Bill does not make provision for adequate parliamentary oversight, is too wide, and is unfocused in what it covers. As the DPRR Committee noted in paragraph 11 of its report, there is nothing that would prevent the theoretical funding of incongruous or excessive health procedures with the blessing of the Secretary of State. It is regrettable that these issues have been raised countless times since November, yet the Government have not fully explained why they request so much power and so much scope. Will the Minister, in her summing up, therefore justify in plain terms the reasons for the Bill being formulated in such a way?
I will spend some of my time considering the issue of devolution. I was glad to catch up with the noble Baroness at a recent meeting before she became Minister, when we were able to share ways of working—probably the nicest way to put it—which could be useful. I was pleased to hear that the Bill team has been working closely with Scotland, Wales and Northern Ireland, as the Bill will affect their NHS systems too. Scotland and Wales have already voiced their support for the Bill, but I will draw attention to some reservations. The Senedd noted that,
“given the significant impact on devolved areas it is crucial that Welsh interests are appropriately considered in the development of reciprocal health arrangements and that mechanisms are in place to ensure that the Welsh Government contributes to the making of decisions that affect Wales”.
If the Bill passes, will the Government commit to consulting the devolved nations when new reciprocal healthcare relationships are negotiated?
Northern Ireland, as has already been stated, faces a particularly tricky set of issues with regards to healthcare post Brexit. For example, children regularly travel from Northern Ireland for cardiac surgery in Dublin, and there is a radiology unit in Derry that is a cross-border initiative available equally to patients on either side of the border. It is co-staffed and co-funded, and ambulance routes cross the border many times a day. While we are on Northern Ireland, could the Minister consider this scenario of a citizen of the Republic of Ireland living in France and returning to live in London? How do they stand with regard to the Bill? I am pleased that the Minister has confirmed that close work is going on between Westminster and relevant officials in Northern Ireland and the Republic to ensure that no individual reliant on cross-border services faces disruption in the case of a no-deal situation.
I am also concerned by the provisions for data sharing in the Bill. The noble Lord, Lord Kakkar, referred to that issue in his speech, and we will come to it in quite a lot of detail in Committee. Clause 4 provides a legal basis for “authorised people” to process personal data for reciprocal healthcare after the UK leaves the EU. This could be as part of an agreement with the EU, an agreement with a non-EU country, or in connection with no-deal plans. Clause 4 clarifies that this data sharing must be in accordance with data protection legislation. But how do we guarantee our data safety once it is exchanged with bilateral partners? Health data, by its detailed nature, proves particularly sensitive in this regard even when it is made anonymous.
In the NHS, the Caldicott principles were developed in 1997 to consider how patient information is handled across the system. Principle 4 states that access to personal confidential data should be on a strict need-to-know basis. Clause 4 does not adequately safeguard this need-to-know principle. The purpose of this clause appears to be so that we can know how many citizens of other countries are using the NHS, and vice versa. The noble Lord, Lord Thurlow, made the point earlier that it is important that we should know that, but it is not contained in this part of the legislation. In practice, we all know that this is very tricky data to collect. NHS England and the devolved NHSs all use different data management systems. This NHS England data will be in the purview of the Minister; I wish her the best of luck with it, because it needs a strong hand.
A core value of our NHS is that it is free at the point of need. We know already that our hospitals and surgeries are not set up to process treatment charges, let alone to feed this information back into a complex system to be adequately anonymised and passed to the relevant country. We heard about dummy bills; I lived in the Middle East for some years in the 1990s, and in the country where I was living healthcare was free. You went to see the doctor and were given a prescription, you had a conversation and might be referred on, and you were given a dummy bill so that you understood what the value of your care was. That was quite an eye-opener. I am sure that it would be quite difficult to implement here—they were starting with an almost brand-new health service—but it brought you up short and made you think. Have the Government fully considered the practicalities of implementing some aspects of Clause 4?
I fail to understand why the Bill is of global scope when it is brought in in order to mitigate the damaging effects of Brexit. The Bill should refer to future reciprocal health arrangements with EU and EFTA members only. I am also worried by the extent to which data protection and devolution issues have been considered. These are key areas where the Government can achieve their objectives to guarantee reciprocal healthcare without reaching for such powers. It seems that the Bill embraces a somewhat laissez-faire approach to our future international healthcare arrangements. By asking for far-reaching powers, the Government neglect thinking critically about what they will truly need to negotiate future agreements.
I am sure that we will explore these issues in more depth in Committee, when I hope that the Minister will listen to and act upon the concerns that are expressed by this House. Parliament should not, and I am sure will not, lightly hand such sweeping powers to the Executive to do as they please. Parliament has the right to say no. If the Government do not listen to this House and do not act to limit the powers in the Bill, we will have no choice but to vote against its passing at Third Reading.
Baroness Thornton (Lab)
My Lords, I welcome the Minister to the House and congratulate her on an excellent maiden speech. It combined the essential description of the Bill before the House with revealing the formidable talent and understanding that she will bring to her new life. I do not recommend that she leave herself so short of time to be in her place, and I apologise to the House—I was just at the door and only just made it into my seat. It is not my normal practice.
The debate has reflected the importance, if not the size, of the Bill, as was remarked on by my noble friends Lord Foulkes and Lord Morgan. It would seem that the Bill is regarded, as the Minister in the Commons said in the helpful briefing we had, as the most straightforward and simple piece of healthcare Brexit legislation. By now, I gulp at what the rest of the legislation will look like if that is the case. Although it has only six clauses, it has potentially profound effects and implications. Our job is to test those and make amendments accordingly if necessary. We must not allow the shortness of time—entirely, I must say, of the Government’s own making—to deter us from our job, particularly as concerns the powers that the Government intend to take in the Bill. Of course, the Government always have the option to extend Article 50 if they find themselves in a pickle and not ready on Brexit day.
As most noble Lords have said, and of course we agree, it is blindingly obvious that the Bill is essential. As I said in my speech in the debate on the European Union Committee report on reciprocal healthcare on 3 July—a debate led by the noble Lord, Lord Patel—healthcare for people working, living and travelling across Europe and those coming to the UK is clearly an urgent matter to be resolved. Here we are, within weeks of leaving the European Union, whether by accident or by deal, and this issue is still not yet resolved. Worse, as the BMA states in its briefing note:
“Brexit could lead to obvious and significant changes in these existing reciprocal healthcare arrangements. The BMA has repeatedly warned that a ‘no deal’ Brexit could lead to reciprocal healthcare arrangements for UK citizens and residents within the EU, and EU citizens and residents within the UK, ending. This would lead to significant disruption to those individuals’ healthcare arrangements, an increase in insurance costs, and uncertainty regarding access to healthcare abroad”.
This affects millions of people. The contribution of the noble Lord, Lord Bethell, was interesting, because it recognised that 27 million people is a large part of our population. I cannot imagine many other things where half the population have signed up to something.
Many of our fellow citizens in Spain are watching the progress of the Bill with some anxiety. The Government have said that they want both UK and EU citizens to be able to continue to use the EHIC scheme after Brexit, but that this would need to be agreed as a part of any deal on our future relationship. The future relationship will be negotiated in the transition period—which of course, as we know, is not the same as the withdrawal agreement as we know it. However, in the absence of an agreement on future relations, the right to reciprocal healthcare enjoyed by our 27 million UK citizens through the EHIC will cease after Brexit. When at our very helpful briefing I asked the Commons Minister for his advice in those circumstances, he advised us to take out health insurance. That is now on the website. The Association of British Insurers, which gave evidence to the Commons in Committee, said that the estimate of costs varied between 5% and 20% in the increase on travel insurance, but that there is a difference between travel insurance and health- care insurance and there is the matter of pre-existing conditions, which the Financial Conduct Authority has been examining, as the noble Baroness, Lady Barker, pointed out.
I always try to look at practical examples of what might happen under such circumstances. I am thinking about my late mother, living with COPD as she did for the last 10 years of her life, and taking her on holiday to France. This is what happened. Of course, we had the EHIC in place. An agreement with oxygen suppliers in France resulted in a discussion with our oxygen suppliers in the UK and, when we arrived in the place where we were staying in France, there were the oxygen supplies and equipment and a wheelchair if needed—free because of the reciprocal agreement. Perhaps the Minister will write to inform me what I might need to do under the circumstances and what might be the cost to my family today.
I hope that the Minister will have had the chance to read the letter sent to her right honourable friend the Prime Minister last week from the coalition of the British in Europe concerning the potential plight of UK pensioners living in the EU facing no deal. What is her advice to the 190,000 mostly older Brits who face the end of the S1 scheme under which the UK pays for their healthcare, which will come to an end under no deal? That was confirmed by the European Union last week. The announcement on the Government’s website last week is causing panic and alarm among UK citizens who are dependent on the scheme for life-sustaining treatment and medication. That was echoed wonderfully by the noble Baroness, Lady Jolly.
We have a Bill that is small but broad in its intent and goes wider than addressing the issue of reciprocal healthcare in the European Union. Despite the siren calls of the noble Lord, Lord O’Shaughnessy, and the Minister, it seems to open the door to healthcare negotiation across the rest of the world. In other words, it also lays the basis for trade and foreign affairs discussion concerning healthcare. One must ask: which countries do the Government have in mind, and for what purpose and why is the Bill addressing world issues and not limited to the European Union? On these Benches, we are very concerned about the scope and believe that the Bill does not need to address the whole world at this point, when I think we have enough on our plates just sorting out the 27 million EHIC holders in the UK and their interests.
I suspect that either a Minister or one of their very bright civil servants decided that this was an opportunity to start a discussion about healthcare deals in many other countries by making the Bill an international healthcare Bill. Frankly, where I come from, we call that being too smart by half. We on these Benches are not at all sure that this is a good idea. If one thinks of the international aspect of the Bill combined with the regulatory power that it gives the Government, there is justifiable cause for alarm. It is reasonable for us to probe the suspicions raised by the noble Baroness, Lady Brinton, about the USA’s eyes on our National Health Service. To deny that that exists is simply not true: of course it exists. Are we putting a Bill on the statute book which will allow that to happen? That is what we are asking.
The Government will have to go some distance to convince noble Lords that this can be justified and explain to us why we do not have before us a much simpler Bill that is smaller in scope, addresses the very important EU issues post Brexit and gives the Government appropriate powers to deal with them. The Commons Minister said:
“The Bill will support the potential strengthening of existing reciprocal healthcare agreements with countries abroad and around the world, and will potentially add to their number as part of future health and trade policy”.—[Official Report, Commons, Healthcare (International Arrangements) Bill Committee, 29/11/18; col. 24.]
I think he rather gave the game away with that. As noble Lords have said, powers in Bills are for ever, not just for Brexit. That is my interpretation of the guidance used by the legislative Committee. The question of international scope is so important because of the powers conferred on the Secretary of State by the Bill. It is not often that one reads that:
“Clause 2 has a breath-taking scope. Indeed, the scope of the regulations could hardly be wider”,
in a Delegated Powers and Regulatory Reform Committee report. The report goes on to list nine areas in which the Bill confers unlimited powers on the Government. Noble Lords have mentioned some examples, so I will do so too. The fifth point in paragraph 10 states:
“The regulations can delegate functions to anyone anywhere”.
The noble Lord, Lord O’Shaughnessy, can say that the Government’s intentions are fine, but that is not the point. The point concerns the powers given to Ministers and Governments, which we must look at.
Noble Lords more knowledgeable than me have spoken at length about the report. How does the Minister intend to respond to it? When will we see the Government’s response? I hope that it will be before the next stage. So far, the Government have failed to convince the DPRRC, our colleagues in the Commons or my noble friend Lord Morgan and other noble Lords who raised these issues that these powers are necessary. The Minister can anticipate engaging with the House about these regulatory powers; as she will soon learn, this is standard fare to noble Lords and an important aspect of our revising role.
I want to ask the Minister about the interesting challenge created by the regulations subject to the negative procedure. She will be aware that they have a 40-day time limit. When does she intend to put them down? To deal with them before exit day, that suggests 18 February, but I may be wrong. What is her intention for them, because that date will come before we have finished considering the Bill? We need to question the powers in the Bill, but there are other matters to consider. As the noble Lord, Lord Kakkar, and other noble Lords explained, Clause 4 is loosely worded about the necessary use of patient data; I suspect that the House will want to address that. I have been in touch with the NHS National Data Guardian. Has the Minister also sought her guidance on this matter?
There are very serious issues around the arrangements between Northern Ireland and the Republic of Ireland, as mentioned by the noble Baroness, Lady Barker, and other noble Lords. Finally, the issues of cost, review and accountability are missing completely from the Bill as it stands, as mentioned by the noble Earl, Lord Dundee. It is important to reiterate that we on these Benches agree that reciprocal arrangements are vital. They should be straightforward but the Bill’s complexity and scope puts them at risk. The Minister will need to listen carefully to what the House has to say and make good her promises to do so at an early stage.
Baroness Blackwood of North Oxford
My Lords, I thank the House for a most robust and incisive debate. It is great for me to be welcomed into a very balanced House, with the noble Lord, Lord Marks, admitting that he campaigned against me and my noble friend Lord Lansley having campaigned for me. I feel as though I have been welcomed into a warm embrace. The debate has been strong and, as anticipated, a great lesson for a former Member of the other place. I will attempt to answer as many questions as I can and address the major issues raised. If I cannot, I will write to noble Lords.
First, I am grateful for the widespread support for the intent of the Bill, which, as the noble Baroness, Lady Thornton, said, is essential. As the noble Lord, Lord Bethell, reminded us, it has strong public support. There is a desire to maintain robust reciprocal healthcare arrangements, which benefit many people across the country when working, living, studying and travelling abroad. Every day, the lives of people across the country are improved by these arrangements. Examples range from a young British student with severe asthma, able to study for a year abroad at a European university, to a British grandmother with multi-morbidities, able to visit her newly born grandchild—or, in my case, a young bride with a rare disease honeymooning in perhaps one of the most romantic cities in the world: Venice. On the value of this scheme, it is notable that many noble Lords have their own stories to tell about the importance of us maintaining reciprocal healthcare. I will write to the noble Baroness, Lady Thornton, about her mother’s case when I have found out the details for her.
All these journeys are made easier by a reciprocal healthcare system ensuring that if you require healthcare in another EU member state, you will be looked after. The British Government want such arrangements to continue; the Bill provides a legislative framework for that. I recognise that a number of noble Lords have raised important and substantive issues concerning the Bill. I will address as many of them as possible in the time available but I look forward to debating them further in the coming weeks.
The noble Lords, Lord Foulkes, Lord Marks and Lord Thurlow, the noble Baronesses, Lady Barker, Lady Brinton and Lady Jolly, and my noble friend Lord Dundee mentioned the DPRRC report. It was characteristically robust, as I said in my opening remarks. The Government responded to it; I placed a copy of that letter in the Library for your Lordships’ consideration. The committee will consider that response on 13 February, which I will take into account and reflect on very carefully. On the Bill’s powers, we must find a balance between the flexibility and agility we need as we go forward into our EU exit, and appropriate scrutiny, as my noble friend Lord Bridgeman said so eloquently.
It may be helpful for me to outline the five delegated powers in the Bill in a little more detail. Four of those powers come under Clause 2, and one under Clause 4. The first, in Clause 2(1)(a), would be used to set out in detail complex payment arrangements under reciprocal healthcare deals. The second, in Clause 2(1)(b), is needed to provide healthcare abroad outside reciprocal healthcare arrangements. The third, in Clause 2(1)(c), is needed to give effect to comprehensive healthcare agreements entered into in another country or international organisation, such as the EU. The fourth, in Clause 2(3), is needed to allow the Secretary of State to give directions to a person to whom they have delegated functions under the Bill. The fifth, in Clause 4(6)(e), enables the Secretary of State to make regulations to add to the list of people who can process data for the purposes of the Bill, for example a future arm’s-length body that does not currently exist. I know that data issues have been raised by a number of your Lordships, which I will return to later.
I know of a lot of legitimate concern over the inclusion of Henry VIII powers in EU exit legislation. The only Henry VIII power in the Bill comes under Clause 5. It is not a standalone power: it is a tidying power to ensure that the statute book is coherent when implementing future arrangements under the Bill. In particular, I have heard noble Lords’ preference for wider use of the “made affirmative” procedure, which I will reflect on more as we head towards Committee.
The noble Lords, Lord Marks and Lord Foulkes, and my noble friend Lord Dundee asked about financial reporting procedures in future reciprocal healthcare. In the letter to the DPRRC, we committed to issuing an annual ministerial Statement on the operation of reciprocal healthcare arrangements, which will be published as soon as is practicable after the end of each financial year to allow for accurate financial reporting. The Statement would include, but not be limited to: information on the expenditure and income of healthcare provisions overseas as a whole, which would include aggregated expenditure, income from the financial year and a country-by-country summary of expenditure and income; an update on the operation of arrangements, which could identify areas of successful operation or where arrangements are being improved to promote efficiency; and the strategic direction of reciprocal healthcare arrangements, which could be a statement either on future priorities for the current operation or on where the UK is engaging with other countries to establish new arrangements. I hope that that is helpful.
The noble Lord, Lord Foulkes, was absolutely right to identify the importance of EU workers to the NHS. I want to put on record again both my and the Government’s appreciation of the work of EU staff in the NHS. Let me be very clear: we want those staff to stay. I am very pleased to report that more than 4,300 more EU workers are now working in the NHS than before the referendum. We wish to continue with that positive trend.
My noble friend Lord O’Shaughnessy has already clarified the point regarding right of access to NHS services for those ordinarily resident in the UK, but the noble Lord, Lord Thurlow, and the noble Baronesses, Lady Brinton and Lady Jolly, raised the issues of the impact of these changes on the NHS and charging. Let me be clear that we do not need to have any new front-line NHS services to charge visitors or tourists from the EU, either directly or via reciprocal healthcare arrangements. We already have these processes in place as part of our current EU reciprocal healthcare arrangements. EHIC claims and EU visitors are identified for the purposes of whether they are chargeable or directly covered through the current system. This is done by overseas visitor managers in the NHS trusts, who manage charging. The Government have been the first to make significant progress regarding charging overseas visitors and recouping funds. To reassure the noble Lord, Lord Thurlow, since 2015 we have increased identified income for the NHS with reciprocal arrangements by 40%. Directly charged income has increased by 86% over the same period. We are not satisfied with that progress, but it is certainly moving in the right direction.
I also reassure the noble Baroness, Lady Brinton, that we have work ongoing with NHS Improvement, which is now working with 50 NHS trusts, to improve further its practices in this regard, with a bespoke improvement team in place providing on-the-ground support and challenge, and identifying and sharing best practice. That should be of great assistance as we move into this next period.
A number of noble Lords raised the global scope of the powers, in particular the noble Lord, Lord Bethell, and the noble Baronesses, Lady Jolly and Lady Thornton. As I have noted, the Government’s immediate priority with the Bill is our reciprocal healthcare arrangements with the EU. That is absolutely right, but we already have a number of existing reciprocal healthcare arrangements with countries outside the EU, such as Australia and New Zealand, as my noble friend Lord Bridgeman noted. The passage of the Bill through Parliament presents us with a natural opportunity to consider how we can best support Britons in an increasingly global world. International travel is under- taken by increasing numbers of people for professional, social, recreational and humanitarian purposes. More people travel greater distances and at greater speed than ever before. Global reciprocal healthcare agreements have the potential to protect public health by supporting international visitors to access emergency and needs-arising treatment when they need it.
In addition, international collaboration through reciprocal healthcare agreements can also make it much easier for people to receive treatment, including specialised treatments, such as those mentioned by the noble Baroness, Lady Thornton, which may be more clinically effective or better for a person to access abroad. For example, as I mentioned in my opening speech, in 2017, 1,352 UK patients received pre-planned treatments in the EU, while 1,241 EU patients received pre-planned treatment in the UK. Some of those treatments would not have been possible if we did not have that scheme in place. We do not want to prevent ourselves being able to strengthen our agreements with non-EU countries by curtailing the Bill’s scope, but we must obviously ensure that appropriate scrutiny and parliamentary oversight is in place as we do that.
I move on to the questions raised by the noble Lord, Lord Marks, and the noble Baronesses, Lady Brinton, Lady Thornton and Lady Jolly, regarding trade. The Government are completely committed to the guiding principles of the NHS—that it is universal and free at the point of need. Our position is definitive: the NHS is not and never will be for sale. The Bill’s powers are to allow the department to enter into reciprocal healthcare agreements, either bilaterally or with international organisations, entirely independently of any other international organisations or agreement. I hope that that statement is clear enough.
To reassure noble Lords even further, I will briefly set out the scrutiny powers available to the House for the international treaties under which these agreements would be agreed. It is obviously the Executive’s responsibility to negotiate these treaties under the royal prerogative. The Bill does not replace or limit the prerogative power to enter into international agreements, in the healthcare sphere or more generally. We already have international healthcare agreements, as I have stated, with non-EU countries such as Australia and New Zealand, and Crown dependencies, allowing them certain free access to NHS services.
Parliamentary scrutiny of international treaties is of great importance. Ministers are accountable to Parliament for the exercise of those functions. The principal statutory framework providing scrutiny of these treaties is the Constitutional Reform and Governance Act 2010—CRaG—established by Parliament under its own powers. CRaG has enshrined in statute the long-standing convention known as the Ponsonby rule that was the product of lengthy consultation and dialogue. The Act enables either House to object to the ratification of a treaty and the House of Commons can block ratification of a treaty indefinitely.
I understand that the House of Lords Constitution Committee has an ongoing inquiry into future scrutiny of international treaties. The Committee will look into all aspects of treaty scrutiny, which is obviously apposite at this moment, including what, if any, new committees need to be set up to deliver scrutiny of treaties post exit. I obviously look forward to the review’s findings, but noble Lords can be reassured that this Bill’s purpose is the implementation of international treaties that can be scrutinised under the CRaG process. Noble Lords can also be reassured that all international healthcare agreements will be subject to the scrutiny route considered most appropriate by Parliament.
Lord Lansley
At the commencement of the Committee stage of the Trade Bill the House voted for a Motion whose effect was that the Government should bring forward their proposals for the future scrutiny of further treaties before the Report stage. The expectation from the debate on the Trade Bill was that we would go beyond the CRaG legislation. It would be helpful for my noble friend to make it clear that Ministers will be doing that for the Trade Bill and that that bears directly on this Bill. It would be very useful for the Bill to proceed in the light of that same response from Ministers.
Baroness Blackwood of North Oxford
I thank my noble friend Lord Lansley for that intervention. One of the reasons why I raise that process is because I am aware that there are ongoing discussions in other parts of the House. We will reflect on that as we progress the Bill.
My noble friend Lord O’Shaughnessy spoke of positive engagement with his EU counterparts on bilateral arrangements in the event of no deal. A number of noble Lords raised what would happen should the withdrawal agreement not go forward. My noble friends Lord Ribeiro and Lord Lansley both raised the question of no deal. My noble friend Lord Lansley is right that we should be careful and seek to reassure those who currently rely on reciprocal healthcare that they will be able to rely on these arrangements going forward. Great interest has been expressed by our counterparts in the European Union, where we are seeking bilateral arrangements with relevant member states in the event that we reach 29 March without a deal with the EU.
Lord Foulkes of Cumnock
The Minister has been really helpful in her reply and has dealt extremely well with the points raised. She has come to a crucial one now. I think that everyone understands that if there is a deal along the lines that have been agreed, reciprocal arrangements will continue. That is one of the positive things about it. However, if there is no deal the Minister and the Government need to be honest with us and the public about it. It will not be easy to negotiate bilateral deals with 27 different countries if we come out with no deal. If the Minister and the Government are honest about that, it will make people understand that it is vital, if we are to leave the European Union, that there must be some kind of deal, because no deal would be a real disaster for healthcare.
Baroness Blackwood of North Oxford
The noble Lord, Lord Foulkes, raises a very important point, and he is absolutely right that the Government do not seek to have no deal. The best way to avoid no deal is to have a deal. Under the withdrawal agreement there is protection of reciprocal healthcare arrangements for EU citizens in the UK and for UK citizens abroad, and that is what the Government seek to deliver. We have set out a number of steps to ensure that individuals who currently receive reciprocal healthcare can be protected as much as possible under a no-deal scenario. One of them is to put in place the powers in this Bill so that we can go very quickly to seeking bilateral arrangements. That is why I hope we will receive the support of the noble Lord as we go forward with this legislation.
Lord Marks of Henley-on-Thames
I think the point made by the noble Lord, Lord Foulkes, was that it is very dangerous to give the reassurance that the Minister was giving and to tell the public that all will be well in the event of no deal. The public need to know that all will not be well in the event of no deal. Even if this Bill and the regulations go through as quickly as they can, there will be a very serious hiatus. It is important that, rather than reassuring the public, the Government—which want a deal, as I know the Minister does—should say how dangerous it will be to leave without a deal on 29 March.
Baroness Blackwood of North Oxford
The noble Lord, Lord Marks, has made an important point. The Government have not in any way avoided the consequences of no deal. They have been very clear in outlining some of the risks associated with no deal and exactly why they are seeking a deal, with strength and authority. Those currently using reciprocal healthcare arrangements abroad can find advice on the GOV.UK and nhs.uk websites. Any of your Lordships who would like more specific advice are very welcome to write to me or to seek a meeting with me on that.
I would like to make a little more progress, as there are only two more minutes before I must close and I have not dealt with a number of issues your Lordships raised with me. On Ireland, which was raised by a number of important Members—the noble Baronesses, Lady Barker, Lady Brinton and Lady Jolly—I reassure noble Lords that the UK is firmly committed to maintaining the common travel area and to protecting the rights enjoyed by UK and Irish nationals in each other’s states, whatever the terms of the UK’s withdrawal from the EU. The common travel area facilitates the principle of free movement for British and Irish citizens between the UK and Ireland and the reciprocal enjoyment of rights and entitlements to public services of citizens in each other’s states.
In addition, on negotiations with the devolved Administrations, we are very pleased to have received a legislative consent Motion from Scotland and are continuing to negotiate.
To conclude, I hope that I have been able to summarise the main issues and topics. There are clearly still some important questions that need to be answered, and I will write on the further points. It is clear from this debate that there is much work still to be done on the Bill, and I am sure that we will have adequate time in what my noble friend Lord Bridgeman predicts—I suspect rightly—will be a lively Committee to make sure that the Bill is in the best possible shape. However varied our views may be on the future relationship with Europe, I think that we can all agree that access to healthcare is essential both for British nationals living in European countries and for EU citizens living in the UK. We have heard that reciprocal healthcare arrangements enjoy broad public support. This Bill is designed to ensure that we can give British nationals living in European countries and EU citizens living in the UK certainty and continuity of care. With that in mind, I beg to move that this Bill be committed to a Committee of the whole House.
Healthcare (International Arrangements) Bill
Tuesday 19th February 2019
(5 years, 10 months ago)
Lords ChamberRead Full debate Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 155-II Second marshalled list for Committee (PDF) - (19 Feb 2019)
Baroness Thornton
Baroness Thornton (Lab)
My Lords, I start by welcoming the Minister to her first experience of the House of Lords in Committee. I hope that it will not be too painful an experience and I wish her well over the next two days in Committee.
In moving Amendment 1, I shall speak also to the other amendments in this group. These amendments deal with the powers and scope of this legislation. Amendment 1 reduces the scope of the Bill, enabling the Secretary of State to make healthcare agreements with the EEA, European Union and Switzerland only. Amendment 2 is a paving amendment limiting the scope of the Bill. Amendment 3 in the name of the noble Lord, Lord Marks, addresses the exercising of the power to make healthcare payments. Amendment 5 would prevent regulations being made unless they specify the process for settling disputes, including the names of responsible bodies and their jurisdiction and procedure.
Amendments 12, 13 and 14 are paving amendments limiting the scope of the Bill. Clause stand part and Amendment 44 are both in the names of the noble Lords, Lord Patel and Lord Kakkar, and the noble and learned Lord, Lord Judge. I say to the Minister that had these three distinguished noble Lords put down an amendment on a Bill that I had been dealing with, I would pay close attention to what they had to say; certainly, the rest of us will be doing so. Amendments 45, 46 and 47 are all paving amendments concerning the scope of the Bill; they include changing its title to reflect its new scope.
The amendments in my name and that of the noble Baroness, Lady Jolly, as well as that in the name of the noble Lord, Lord Marks, clause stand part and Amendment 44, are all expressions of concern to bring the scope of the Bill in line with the issue we face today, with increasing urgency: that is, the looming date of exit from the European Union and its implications for reciprocal healthcare. We need to discuss what the legislative framework should be to facilitate reciprocal healthcare in the circumstances of both Brexit with a deal and Brexit without a deal. What are the appropriate powers needed by the Government under each of these circumstances?
Unfortunately, what we have before us is a Bill that casts its net much wider than the European Union. Noble Lords do not have to take my word for this—the House of Lords Constitution Committee, whose report was published yesterday morning, says:
“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”.
The DPRR Committee noted in its first report in November the “breath-taking scope” of this Bill, commenting that,
“the scope of the regulations could hardly be wider”.
The committee said:
“It is one thing to introduce skeletal legislation needed in the event of no EU withdrawal agreement. But this Bill is as much to do with implementing future reciprocal healthcare agreements entered with non-EU countries. Indeed, it goes much wider than merely giving effect to healthcare agreements and covers the provision of any healthcare provided by anyone anywhere in the world.”
It concluded that the powers in the Bill were,
“inappropriately wide and have not been adequately justified by the Department”.
In other words, let us leave making healthcare arrangements with the rest of the world until we have dealt with the issues before us today: the 27 million EHIC holders and the healthcare needs of several hundred thousand fellow citizens in both the EU and UK.
When addressing the issue of the scope of the Bill in relation to reciprocal healthcare agreements with states other than the EU, the Minister says in her letter sent to noble Lords last night that,
“it is appropriate that we take this opportunity to consider how we may want to strengthen these”—
that is, other agreements—
“and seize the opportunities that a more global approach following EU exit can offer”.
The letter goes on to say that the Bill has an important forward-facing policy aim. I realise that these are seductive words, as we all want to be part of forward-facing policies—of course we do—and, post Brexit, there is no doubt that we will need to address several issues, which will include healthcare trade policy. The Minister is at pains to assure us that the Government are committed to public service and to ensuring that the NHS is free at the point of use and adequately funded. Perhaps we can have a discussion some other time about the adequacy of the funding, but the Minister was firm in her statement about this matter at Second Reading, and I would have expected no less. However, her assurances miss the point which I made then and will make again for clarification, and which I think the Minister needs to address. The scope and powers of this Bill enable the Secretary of State to arrange contracts with providers to our NHS from anywhere. The noble Baroness has not denied this, either at Second Reading or in the letter she sent yesterday. This matter concerns those who might be suppliers of services and goods to our NHS. While it might be the legitimate scope of a trade Bill, or even a future healthcare trade Bill, it is not appropriate in this Bill, which seeks to protect and ensure reciprocal healthcare across the European Union.
My contention at Second Reading and my contention now is that the breadth of scope which introduces new Brexit policy, combined with the “breath-taking” powers in this Bill, pretty much confers on the Secretary of State the ability to make deals with anyone he wants to anywhere in the world. That is a matter for concern. Is it possible for the Secretary of State to undertake such deals? Perhaps the noble Baroness could tell us. Certainly, as was shown in the first Delegated Powers and Regulatory Reform Committee report in November, and repeated in its report last week, the Government have not yet convinced that committee and they certainly have not convinced these Benches.
The Constitution Committee takes the view that the Bill goes beyond the powers necessary to enable the Government to respond effectively post Brexit on healthcare arrangements and,
“allows for the creation of new policy relating to healthcare agreements with countries outside of the EU”.
I think the Constitution Committee is correct, particularly when it refers to the powers in the Bill and suggests that they should not extend to give effect to new policy unrelated to Brexit.
At Second Reading, I said to the Minister that the Government would have to convince the House—and certainly these Benches—about the new policy agenda, which is accompanied by huge powers which encompass the world. So far the Minister has not convinced me, but I would say that that is not her main challenge. She has not convinced either the DPRR committee or the Constitution Committee and that is a matter for major concern. I beg to move.
Lord Patel (CB)
My Lords, before addressing the amendments in my name and the names of my noble and learned friend Lord Judge and my noble friend Lord Kakkar—the clause stand part debate and Amendments 5 and 44—I welcome the Minister to the House and to her first experience of Committee. I sympathise with her, as she has to take this Bill through; she was not part of it from the very beginning, as it had already passed in the House of Commons. However, I have no doubt that she will do well.
I start by saying that if we were not in these times of uncertainty about leaving the European Union, this Bill—if it had been brought to the House in the state that it is in today—would have received the most stringent scrutiny and would have been drastically amended. However, because we do not want UK citizens who live in, work in and visit the European Union to feel the threat of not getting healthcare, we might be more constrained in the way we deal with this. I accept that this Bill is essential to serve the needs of UK citizens who live in EU countries and EU citizens who live in the United Kingdom, allowing them to benefit from the reciprocity of the current healthcare arrangements.
I have to say that, in all its clauses, this Bill is quite wide in its power and scope and goes way beyond what is required to deliver the EU arrangements. I could go on, but the House’s Delegated Powers and Regulatory Reform Committee laid it out much more clearly, and I hope my noble friend Lord Lisvane, who is on that committee, has something to say. He nods, so I am sure he will join in. I summarise what the committee said regarding the Bill:
“There is no limit to the amount of the payments … no limit to who can be funded world-wide … no limit to the types of healthcare being funded … regulations can confer functions”,
anywhere in the world. The committee continued:
“The regulations can delegate functions to anyone anywhere”.
That shows how wide the Bill’s scope is.
Lord Judge (CB)
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.
Baroness Jolly (LD)
My Lords, I thank the Minister for her letter, but I rather feel that it posed as many questions as it has answered. Much of what I was going to be talking about with this group of amendments has been said very elegantly by the noble and learned Lord, Lord Judge. However, I am supporting Amendments 1, 2, 12, 13, 45, 46 and 47. As has just been said, your Lordships’ House has many committees. The refrain of the Second Reading was the expression “breath-taking scope”. The 47th report of the Delegated Powers Committee continues in the same vein:
“Under the powers in clause 2(1)(a) and (b) of the Bill, the Secretary of State could fund the entire cost of mental health provision in, say, the state of Arizona as well as the cost of all hip replacements in, say, Australia. If this might appear fanciful, we assess powers by how they are capable of being used, not by how governments say that they propose to use them. The fact that the powers could be used in these ways suggests that they are too widely drawn”.
When I read the Bill, parts of it read very much like a trade Bill. We believe that reciprocal arrangements with other than EU states are better dealt with one-to-one, much like those with Australia and New Zealand, for example. I am not convinced that arrangements with other than EU states will all fit in the same pattern. If the Minister wishes to bring a subsequent Bill for worldwide minus EU, we would be happy to look at it. Will she confirm that the Bill before us has been drawn up to fit in with future trade agreements across the world? Would any further secondary legislation be required? What parliamentary scrutiny would there be and are there any red lines?
Lord Brooke of Alverthorpe (Lab)
My Lords, first, I apologise to the Committee for not having been able to speak at Second Reading. Secondly, I welcome the Minister to her new post and wish her well with it, although I am sorry, like the noble and learned Lord, Lord Judge, that she has been given a hospital pass on this one. I shall speak briefly in support of Amendment 1 in the name of the noble Baroness, Lady Thornton. I am sorry to hear that the clause stand part may not be pushed to a vote, but perhaps the way that the debate goes may necessitate that.
My interest goes back before the Minister came into the House. I asked a series of questions about the proposed trade agreement between the UK and the USA. I have been particularly concerned, as have many in the health industry, that this agreement will open up an opportunity for the USA to come in very strongly indeed. The health industry in America is a very big part of the economy, and one area in which it has not been able to make great movement is within the NHS. Some of us have been concerned that the trade agreement would open that up, and we have been seeking to have it taken off the agenda. I have tabled Questions asking for it not to be on the agenda, and the Government have so far not been prepared to give any such assurance. I have contemplated moving an amendment to this Bill to ensure that, while the Minister is saying that this has nothing to do with that, she could accept such an amendment and set my mind at rest very quickly.
I read very carefully what she said in response to similar criticisms of the Bill at Second Reading:
“The Government are completely committed to the guiding principles of the NHS—that it is universal and free at the point of need. Our position is definitive: the NHS is not and never will be for sale”.—[Official Report, 5/2/19; col. 1488.]
She was not saying anything there with which I would disagree, but one worries about trade agreements whereby people can effectively take over and, while not owning it, can run parts of a major utility such as the NHS. That is why some of us have been seeking an agreement that it would not be on the agenda at all and the NHS would be left as it is, free of any trade agreement, particularly with the United States. I would be grateful, therefore, if the Minister could reassure me that in no way would a trade agreement with the USA have the NHS as part of it. If not, I may have to go away and see whether I can bring back an amendment on this issue.
Lord Ribeiro (Con)
One can see why, in the event of a no-deal Brexit, the amendment moved by the noble Baroness, Lady Thornton, would be attractive, as it focuses our minds on restoring reciprocal healthcare arrangements with the EU 27, other EEA countries and Switzerland. As I said on Second Reading, a disproportionate number of UK citizens benefit from the S1 scheme compared with EU citizens in the UK, so there is much to lose in a no-deal scenario.
In March 2018, the UK reached an agreement in principle with the EU on the implementation period which would ensure continuation of the current reciprocal healthcare rights until 31 December 2020. If we crash out, there has to be a plan B which allows us to consider reciprocal healthcare arrangements with other countries. Although I understand the need to write “international arrangements” into the Bill, it presents problems. They were identified by the Delegated Powers and Regulatory Reform Committee, as mentioned by the noble Baroness, Lady Jolly, which described as “fanciful” the idea of providing the Secretary of State with wide powers to fund the costs of healthcare anywhere in the world—for example, as the noble Baroness described, mental health provision in Arizona or all hip replacements in Australia.
This is far too wide, and the focus of international arrangements should in the first instance be applied to Britain’s 13 overseas territories, far-flung as they are—some in the Falklands and the Galapagos, as the noble and learned Lord, Lord Judge, stated—but the closest of which is Gibraltar: close to us and close to Europe. Ninety-six per cent of Gibraltarians voted to remain in the EU, and our focus should be to ensure reciprocal healthcare for those overseas countries for which we have responsibility. Post Brexit, whatever the arrangements are, we can then think about the wider international arrangements; but for now, we should focus on the areas for which we have responsibility.
I hope that my noble friend can provide assurances as to how best to protect the overseas territories in the event of no deal and give further consideration to what the Government intend “international arrangements” to cover.
Lord Lisvane (CB)
My Lords, it is a great pleasure to welcome the new noble Baroness to the Front Bench and I echo the welcome offered by other noble Lords. I am only sorry that the first task that has fallen to her is, as described by my noble and learned friend Lord Judge, a hospital pass. I prefer to see it as a sort of legislative grenade with the pin out.
As my noble friend Lord Patel mentioned, I am a member of the Delegated Powers and Regulatory Reform Committee, but of course I do not speak on its behalf: this is an entirely personal set of observations. Delegated powers of unacceptable scope and inadequate arrangements for scrutiny are simply getting worse. Noble Lords may recall our extended debate on the EU withdrawal Bill in Committee and at Report, when noble Lords rightly became very agitated about the use of the word “appropriate”—widening the way in which ministerial powers might be used—as against “necessary”, which provided some sort of objective test as to whether those powers should be deployed. Amendments which would have fixed that went down the oubliette in the Commons. With my noble friend Lord Wilson of Dinton, I declare a degree of interest because my name and his, along with that of other noble Lords, were on those amendments.
This Bill takes us into new realms of the use of delegated powers, albeit that the Trade Bill and the Agriculture Bill, both of which have already been mentioned this afternoon, are strong competitors for this legislative wooden spoon. I congratulate my noble and learned friend Lord Judge on his forensic dismantling of the need for the powers contained in the Bill and his warnings about the way in which they might be used. Any thought of his grandchildren saying that he was “banging on” should not inhibit him in any way from continuing to bang on about those subjects, and I hope that many other noble Lords will do the same.
Two points of principle have a general application but are particularly lively in the context of this worrying Bill. The first is the use of Henry VIII powers. I think that His late Majesty would be extremely jealous of some of what is contained in the Bill, as with the Agriculture Bill, the Trade Bill and the other Brexit Bills to come trooping our way. I accept that Henry VIII powers are sometimes needed, perhaps when there are urgent issues for which you need to make primary legislative provision, but you cannot get a Bill through in the normal course of events. However, where such powers are used, I suggest that there should be a test: that of the three Ss.
Lord Cormack (Con)
My Lords, I associate myself entirely with the remarks of the noble Lord, Lord Lisvane. We have been here before. We went through these issues many times last year, when a number of us spoke about constitutional issues. I want to concentrate my remarks there today. Before doing so, I add my welcome to my noble friend on the Front Bench. I am sure that she will have a distinguished career in your Lordships’ House. I was extremely sorry to miss her Second Reading speech but I was recovering from surgery, so I could not be present and take part as I would have otherwise sought to do.
The noble and learned Lord, Lord Judge, and the noble Lord, Lord Lisvane, are members of a group that I have the privilege of chairing: the Campaign for an Effective Second Chamber. I want to reflect on those words for a few moments. You can have a truly effective second Chamber in a Parliament, or indeed an effective first Chamber, only if you do not have an overbearing Executive. Everything that the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lisvane, have said underlines the fact that we are in extremely dangerous territory.
Of course, as they have done, I entirely absolve my noble friend on the Front Bench. She has been given a poisoned chalice and she will handle it with dexterity and finesse, but whatever she does, she will not be able to remove the hemlock and replace it with quaffable wine because this really is a very dangerous Bill. The name of Henry VIII has already been quoted a number of times—and even Henry XVI, although I am not quite sure what he will be up to. But I prefer to call this Bill a carte blanche Bill because what we are being asked to do is to give the Executive a totally blank cheque. That is inimical to constitutional parliamentary democracy. There has been a great deal of talk recently, and there will be more next week, about the role of Parliament vis-à-vis the Executive. We have to have a proper balance, but we do not have a proper balance if we have an Executive invested with so much power that Parliament really counts for nothing.
Of course, I know why we are going to have to give this Bill a speedy passage, but I deeply regret it. It goes against the parliamentary grain as far as I am concerned. In the almost 49 years that I have been in one House or the other, I have seen what the noble and learned Lord, Lord Judge, referred to as the steady accretion of power to the Executive branch. No lip service to the power of Parliament paid by the setting up of Back-Bench committees and all the rest of it has really disguised that. It is one of the reasons why colleagues in another place have recently been flexing their muscles in seeking to wrest back power from the Executive to Parliament. I will not pursue that argument now because, frankly, in a Committee stage it would be straying out of order. But what I will say to your Lordships is that if we give this Bill its passage, as I suppose we must, it is crucial that we redouble our resolve to ensure that this sort of thing happens less frequently in the future.
In a parliamentary democracy there has to be a true balance of power and a responsibility to scrutinise legislation, but how can you scrutinise legislation which is so open-ended that it gives unbridled power for years to come? The noble Lord, Lord Lisvane, referred to that. I do not want to trespass on the private grief of friends opposite—and I do regard them as friends—but do I really want powers like these to be exercised by Mr McDonnell or Mr Corbyn? No, I do not, and I suspect that there are very few, if any, in your Lordships’ House who do.
I therefore put down a marker in total support of the eloquence of the noble and learned Lord, Lord Judge, and say that when we have got over the next few traumatic weeks, if we get over them—I suppose we will—we must send an emphatic message to the Executive that this sort of sharp practice is something up with which we will not put.
Baroness Andrews (Lab)
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.
Lord O'Shaughnessy (Con)
Perhaps noble Lords will allow me to follow the noble Baroness, given that she made specific reference to some of the comments I made on Second Reading and previously.
I have listened carefully, as I always do—and always did as a Minister—to the views expressed by noble Lords whether through the reports of the two committees or in debate. However, some fundamental mistakes of logic have been exposed in this group of amendments which I want to dive into.
The first mistake is the assumption that this is a Brexit Bill. It is not a Brexit Bill—or at least not solely a Brexit Bill—in the sense that it is required because our statute book will change after we leave the European and this will ensure that we have continuity of arrangements going forward. It is worth pointing out that we do not need to rush into this because statutory instruments have been laid to provide for arrangements in a no-deal scenario. We are considering this Bill in order to replace statutes that exist on our books which will become unworkable once we leave the European Union because of their reciprocal nature—it is not possible to have a one-sided reciprocal commitment in law—and that is what this Bill seeks to do.
The report of the Constitutional Affairs Committee states on this point:
“While the exceptional circumstances of the UK’s departure from the European Union might justify legislation containing broader powers that would not 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”.
However, that is conflating two different issues: one is the nature of the restrictions that apply to primary legislation and the way in which secondary legislation should be carried out, and we have heard the discussion on why that should be the case; and the second is whether or not this Bill should limit itself in scope only to countries which are within the EEA and Switzerland.
There is no good reason why we should limit ourselves in such a way. Indeed the opposition parties are always telling the Government that they are too focused on Brexit and should take a wider view. The Bill does two things: it provides us with an opportunity for continuity and to put in place new arrangements, as well as an opportunity to make legislation of the kind that we are always being encouraged to make so that we can continue with our relationships—and deepen them—that we have with every other country in the world. Given that the Conservative Party and this Government are always accused of being too parochial, I would have thought this would be welcomed.
There is no reason to think that this Bill, a priori, should not have two functions. Yes, we need to replace the legislation under which we have powers in order to strike reciprocal agreements, but there is no good reason why we should limit ourselves to having those agreements with the European Union, the EEA and Switzerland as a set of countries. It may be that we ought to have different arrangements for approving such agreements. We all want to see continuity and it is the stated aim of the Government to provide it, but there is no reason why we might not have one set of arrangements to deal with that given that there is a deadline coming up.
I take issue, advisedly, with the noble Lord, Lord Patel, and others, who have said that this process is being expedited. The Bill is not being expedited. It had proper scrutiny in the other place and is being properly scrutinised in this place. It is not being rushed through or dealt with inappropriately in terms of procedure. We are able to proceed properly in scrutinising the Bill and to think about the way in which we want to enact the two kinds of reciprocal arrangements that we will have in the future.
Baroness Thornton
I am not sure that the noble Lord, Lord O’Shaughnessy, is helping the Minister in his exposition. Certainly he is convincing me that we need to have two Bills. Perhaps I may ask the noble Lord why all the documentation accompanying this Bill starts with the words, “This Bill is being introduced as a result of the decision to leave the European Union and is intended to enable the Government”—blah, blah, blah—“to deal with reciprocal healthcare”?
Lord O’Shaughnessy
My Lords, the reason is that the statute by which we are able to strike reciprocal healthcare agreements—the regulations stated in the Explanatory Notes—comes from the body of EU law. Without that we are not able to have reciprocal agreements with anyone, so in that sense we are replacing the source of our law with a different source. It does not follow that with the law we have in place, we should restrict ourselves to having arrangements with a subset of the countries where we could do so.
Lord Winston (Lab)
I have the greatest respect for the noble Lord, Lord O’Shaughnessy, who we feel did a great job while he was in the department as a Minister, but does he not see that this is indeed a Brexit Bill? Out there in the community, people voting in the referendum said, “Take back power”. It was about taking back control and the paradox in this amendment—it may be irony, I am not quite sure which—is that we are not taking back control. Parliament will not have the control, which is what the people wanted at the time of voting for Brexit. That is fundamentally wrong and inappropriate, therefore I am quite certain that this amendment is appropriate.
Lord O’Shaughnessy
That is a separate issue. As I said at the beginning, the issue here is actually in two parts. The first is whether we ought to use the new legislation to strike deals with a subset of countries, those with which we already have reciprocal deals through our membership of the EU, or to strike broader ones. The secondary question is: what ought to be the correct process for Parliament to provide scrutiny of the kind of deals that are set up, either to provide continuity with the ones that we have under the EU or with new partners? Those are different questions. It is up to this Committee to make its decision about what it feels is the appropriate route to go forward, but it is important to expose that those are different and separate questions and we ought to consider them as such.
Perhaps I may respond to the point made by the noble Baroness, Lady Andrews, and others about trade. It is absolutely not the case that this is some Trojan horse for privatisation of the NHS, as the noble Lord, Lord Brooke, said, or anything else. My noble friend the Minister made that completely clear in her letter, as I used to in the letters that I once sent the noble Lord as well. Consider this: one of the reasons that we have deep reciprocal healthcare agreements with EU countries is due to the fact that we are part of a large trading bloc called the European Union. It is perfectly normal for partners engaged in economic, social, cultural, scientific and other activities to have these kind of agreements, partly because they facilitate the movement of people from one to another, whether on holiday or for work and other things.
I would hope, regardless of whether we were leaving the European Union or not, that we would want to have these kind of agreements with our partner countries throughout the world. Regardless of one’s views on Brexit, we ought to want to do that. It is not something that we have the legal basis to do at the moment and the Bill gives us that. I want to correct the impression given by the noble Baroness, Lady Andrews, which I do not think is fair, that this is somehow a Trojan horse for some sort of nefarious agenda. That is absolutely not the case; it is about taking a broader view of the kind of relationships that we currently enjoy with the EU and want to enjoy with other countries, whether they are Commonwealth partners or the overseas territories and Crown dependencies noted by my noble friend Lord Ribeiro.
I hope that I have described clearly what I believe the intent is in this regard. It is absolutely noble and will facilitate the broader movement of people throughout the world.
Baroness Andrews
I take the noble Lord’s personal assurances on that. Who could disagree with what he has just said about the need to have these sorts of vigorous, expansive and generous trading arrangements, which we hope will involve skills, health and knowledge? My question is really: why are these powers in this Bill? If they are necessary and within our reach, why can we not have them in an appropriate Bill with appropriate powers, which we can all be certain will not be exploited and lead to perverse consequences?
Lord O’Shaughnessy
I take the noble Baroness’s point but the critical thing here is that the powers set out in the Bill are constrained by giving effect to healthcare agreements, which themselves sit under the aegis of the creation of international agreements. My noble friend’s letter set out how the entire so-called CRaG arrangements govern how they ought to be approved. To satisfy my noble friend Lord Cormack’s concern, it is simply not the case that this Bill could be used unilaterally to fund the healthcare of the people of Venezuela, which might be a concern of the leaders of the Labour Party, as he pointed out.
Lord Marks of Henley-on-Thames (LD)
My Lords, this is a compendious group of amendments to a Bill that may appear simple but is made complex by the fact that it is, for all the reasons developed by the noble and learned Lord, Lord Judge, the noble Lord, Lord Lisvane, the noble Baroness, Lady Andrews, and others, frankly a constitutional affront. I of course join other noble Lords in welcoming the Minister to her first Committee stage. We tangled on some of these issues at Second Reading, but I am afraid I look forward to tangling with her a great deal during the rest of the passage of the Bill.
Most of what I will say about the powers in the Bill and its geographical scope I will address in the context of the amendments I and others have tabled to Clause 2, which are in the next group. I will also address much of what the noble Lord, Lord O’Shaughnessy, said, but I agree with what the noble Baronesses, Lady Thornton and Lady Andrews, said when they intervened during the speech of the noble Lord, Lord O’Shaughnessy. It seems that he was trying to justify international arrangements outside of our existing arrangements with the EU, the EEA and Switzerland, within the same Bill and subject to the same time constraints and breadth of powers that the existing arrangements might justify for their extension, in a way that would enable international arrangements to be made within a legislative framework that is frankly unacceptable. The whole point of our amendment in the next group is that the Bill should be drawn in tight terms to replace our existing arrangements, and that other arrangements can then be made for future international agreements.
It is always a great pleasure to hear from the noble Lord, Lord Cormack, but I have to say that whereas I have agreed with almost everything everybody else has said, on this occasion I thought his ambition was limited when he said, “I suppose we must pass this Bill and it is to be hoped that in future Bills like this will become much rarer”.
On the amendments already tabled for today and Thursday, it would be possible, certainly when they are refined on Report, to produce a Bill on this restricted aim of replicating our arrangements with the EU, the EEA and Switzerland that was not a constitutional affront. It will be our aim to enable the Government to tailor this Bill to an acceptable, laudable and desirable aim without it being the constitutional outrage that it presently is. To that end, Amendment 3 is in my name.
I completely agree with the view expressed so far in this debate that Clause 1 is wildly inappropriate as it stands. On the face of it, it gives the Secretary of State an unrestricted blanket power to organise and make payments from the pocket of the British taxpayer for healthcare outside the UK—that is, anywhere in the world. In one sense, I suppose that it could be described as a general political statement but it really is not; it confers a power on the Secretary of State that is simply far too wide.
I agree with the straightforward position taken by the noble Lords, Lord Patel and Lord Kakkar, and the noble and learned Lord, Lord Judge, that Clause 1 should simply not stand part of the Bill, and I agree with every word that the noble and learned Lord uttered. If his grandchildren say that he is banging on, I join with the noble Lord, Lord Lisvane, in saying, “Long may it continue. May he bang on unrestrained by his grandchildren, certainly on this issue, for as long as he wishes to contribute in this House”. These are important points that deserve constant repetition until they are finally listened to and we get back to a semblance of parliamentary democracy that allows proper scrutiny by this House, and the other House—where scrutiny is, frankly, often lacking.
If striking down Clause 1 is not accepted by the Committee, my amendment would at least address the fundamental point that the power proposed in the clause is not limited by any provision setting out how that power should be exercised. It would simply limit Clause 1 by insisting that the exercise of the power to make and arrange payments for healthcare abroad may be exercised only in accordance with regulations.
Clause 2(1) confers on the Secretary of State the power to make regulations, on which we have heard much already and much more will be heard later from me and others. My amendment would, however, add a limitation to the effect that the Secretary of State may not exercise the power under Clause 1 other than in accordance with the legitimate regulations. The need for such an amendment, if Clause 1 survives and stands part of the Bill, is, I suggest, self-evident. The power of the Secretary of State must be governed, defined and limited by clauses in the statute and by regulations made under the statute. That is how law-making in a parliamentary democracy must work if parliamentary democracy is to mean anything at all. If the Bill remains as drawn, I expect the Minister will say that it is the Government’s intention that regulations under Clause 2 will be constrained. However, that is not the point; the point is the potential of such regulations. My amendment would ensure that regulations constrained Clause 1 as well.
Lord Wilson of Dinton (CB)
My Lords, I assure the Minister that my comments, which are very much in support of the noble and learned Lord, Lord Judge, the noble Lords, Lord Lisvane and Lord Cormack, and in fact all noble Lords except the noble Lord, Lord O’Shaughnessy, are in no way a criticism of her. I heard her maiden speech, which was memorable. I think we will all remember it, and we all know that she is not responsible for the problem that she has today.
To the noble Lord, Lord O’Shaughnessy, whom I do not follow, I simply say that I think that accidentally he made a really powerful case for splitting the Bill so that we can deal immediately with the immediate problem and the Government can think more carefully about the legal framework within which new arrangements are brought forward. I thought that he made a very persuasive case; it just happened to be in the opposite direction from the one he intended.
I support the arguments made, which we have heard before. We heard them on Clause 7 of the EU withdrawal Bill, as the noble Lord, Lord Lisvane, reminded us. I still regard the word “appropriate” as objectionable, but we did our best there. We must not let only the noble and learned Lord, Lord Judge, bang on; we must not leave it to him alone. We all have to bang on about this issue because it is of fundamental constitutional importance.
I say to the Minister that this Bill is worse than the EU withdrawal Bill because, as the noble Lord, Lord O’Shaughnessy, admirably demonstrated, it is not confined to Brexit. Let us look at the use of words. The language in Clause 5 is like a red rag to a bull:
“Regulations … may amend, repeal, or revoke primary legislation”.
We cannot accept this practice creeping in general into our legislation. I believe that there is such a thing as good and bad government. I have thought about my career and the years when we were governed well, and when we were governed badly—the years when the machinery worked well, and when it worked badly. Sometimes—in the 1970s, for example—it was really dreadful, and we are in a period of really bad government now.
I remember my first Bill 50 years ago, the Trade Descriptions Bill, which I connect with this Chamber. I was a junior official. We went to see parliamentary counsel who, in those days, were venerable people. You were allowed to see them only with a solicitor present. My assistant secretary was asked why we needed a particular power, and he rather flippantly replied, “Because I thought it might be useful”. Parliamentary counsel gave him a withering look and said, “I am not going to draft a clause for you simply because it might be useful. You have to know what you want it for”. He did not know, and we did not get that power. I read this Bill today and thought, “It has all been thrown in just in case it is useful”. The Government do not know what they want; they are putting it in simply in case it might be useful later on. My goodness, the job of this House is to stand up and say no to that. In Mrs Thatcher’s words: “No, no, no”.
I hope the Minister will accept the amendment of the noble Baroness, Lady Thornton, or that she will at least pause, consider it and come back on Report. I hope that she will also consider the option of a sunset clause, which I believe will be overwhelmingly important. The Bill as drafted breaks all the rules of our constitutional understanding. We have no written constitution. The machinery of government works only because we know where the constraints are and what the rules and behaviours are. We have understandings between ourselves—Governments and Oppositions—about how we run and manage legislation. This Bill tramples on that understanding. It does so in the name of Brexit, but it goes far too wide.
I hope that parliamentary counsel will say no to the Government, in private, and that the machine will say no. I hope the Government will have the wisdom—this is about wisdom—to think again, because the precedent being set here is wholly unacceptable. We have to make a stand.
Lord Lansley (Con)
My Lords, I believe it falls to me to be a back-marker. I can be brief, not least because I agreed with much of what my noble friend Lord O’Shaughnessy had to say. However, it might be helpful if I were to explain, purely from my own point of view, why some of the criticisms levelled at the Bill are excessive. First, the structure of the legislation—which provides a power to make payments that are then subject to a number of specific constraints and criteria—is not unusual. One sees this in a lot of legislation. Treating Clause 1 in isolation is therefore a mistake; it must always be treated in the context of the Bill as a whole.
Secondly, on the scope of the Bill, it would have been perfectly possible—I presume; I was not party to the discussion—for Ministers to bring forward legislation with a purpose simply to seek to replicate the existing EU reciprocal healthcare agreements. However, the nature of the agreements we will enter into with our partners across Europe are as yet undetermined. This is not about the transition period. This is effectively about the political declaration and what the future relationship looks like. As my noble friend said—and no doubt the Minister can add more specifics if necessary—the regulations that have been laid separately are intended to deal with the immediate consequences if we leave without any deal and without bilateral agreements with other countries across Europe in place.
Lord Marks of Henley-on-Thames
Does the noble Lord accept that all Parliament can do to treaties is withhold agreement in the House of Commons? Is he seriously arguing that that is sufficient scrutiny of potential healthcare treaties and that this House should not persist in its objection?
Lord Lansley
The noble Lord invites me to go on about a subject that I anticipate Report stage of the Trade Bill will discuss in considerable detail. I do not propose to discuss it now, if he will forgive me, because this is a wide debate that raises broader issues that will have to be addressed. Quite properly, they might be better addressed in the Trade Bill, which is actually about large-scale international treaties that we are likely to enter into in short order. I am not aware of any proposals for an international healthcare agreement that will be presented in the form of a treaty that we will have to ratify in any immediate timescale. I would rather think about it under those circumstances.
I will say one more thing about sunset clauses. Because of their nature, I am rather sympathetic to the idea that, if we know legislation has a limited shelf life, we should put one into the legislation, otherwise the temptation to go on and on will be irresistible to Ministers. But I do not understand that this Bill has such a limited shelf life. We want to enter into healthcare agreements that might or might not be agreed by December 2020; they might be agreed in 2021 or 2022. In so far as they relate to non-European Economic Area countries, they might arise at any time. There is no immediate prospect of them doing so. To have a sunset clause of this kind would be potentially unduly restrictive, especially expressed as a two-year limit, as it is.
For all those reasons, the debate has been useful. I absolutely understand its importance, because I have future amendments, as the noble and learned Lord, Lord Judge, said, about the ability to amend retained EU law and the question of whether there should be different arrangements relating to agreements that replicate an EU agreement or do something different. As my noble friend Lord O’Shaughnessy rightly said, I raised that at Second Reading and I have amendments that will allow us to debate it later. Those are practical steps where we can question the structure of scrutiny and control that Parliament will exercise in relation to these regulations. A future group that I hope we will get to this evening questions the extent of the Secretary of State’s power to pay money—to whom and how much. That is important. All of us want to set down in legislation how we think Ministers’ use of this power should be structured in the agreements they might consider with other countries. Those debates will be useful, not least in terms of the Minister’s response—which I very much look forward to.
Baroness Brinton (LD)
My Lords, I will comment on a couple of points from a political perspective. We have heard from a significant constitutional expert during the course of the last hour and a half. I thank the Minister for her letter following Second Reading and for her response at Second Reading. But what has become clear in the past hour is that for most of us who have been engaging in the debate this has clearly been a Brexit Bill. Indeed, the Minister says at the beginning of her letter:
“Although this Bill is being brought forward as a result of the UK’s exit from the EU, it is not intended to only deal with EU exit”.
However, it is one of the series of Bills that must be passed by 29 March, regardless of whether there is a deal, because we do not yet have the detail. As far as this House is concerned, it is in the list of Bills that we have been told must go through by that date. For that reason, I am afraid that I take issue with the noble Lord, Lord O’Shaughnessy, who says that it is not being rushed through. We have been waiting for this Bill and others for some time. We now have to rush it through because we are 39 days away from 29 March and time is extremely limited.
Some of the allegations that some of us made at Second Reading that this was all about future trade deals have become much clearer to us. I raised concerns then about TTIP. In her letter, the Minister appears to contradict herself. She says on page 2:
“Should the Government wish to enter into new comprehensive arrangements, this Bill provides the framework to implement these”.
Two paragraphs later she says:
“This Bill is not about negotiating new agreements, but to ensure … appropriate mechanisms … to implement them”.
It seems from everything that the noble Lords, Lord Lansley and Lord O’Shaughnessy, said that this provides the framework that will influence the Trade Bill and any future trade agreements. That is one of the most important reasons why a Bill that we understood was coming before us in order to replicate health arrangements with the EU, whatever our relationship is with it after 29 March, is now moving into a much broader political arena that deserves more than one and a half days in Committee to discuss it—let alone whatever time we are going to be allowed at Report.
I want to leave it there at this point, except to say to the noble Baroness—because I do not think there is another point at which I can do so without laying down an amendment that does not particularly have reference to the scope—that she tried to reassure me and others, both in Hansard in what she said winding up the Second Reading debate and in her letter, that the NHS was safe in the hands of this Government, and that the Government basically agree with the principle of the service of the NHS being free at the point of need. But the question that I asked has not been answered, either in her letter or in her response on the Bill. I am concerned about the replication of the EU directive on public procurement that provides many of the protections that we are seeking for the NHS in its entirety as we continue in the future.
I went on to the NHS Confederation website to look at what advice the Government were providing for the NHS in the event of a no-deal Brexit, and found that all the bullet points relating to public procurement were about emergency supplies running out. There is nothing about the intrinsic changes that are provided for in the current EU directive about not having to go out to competitive tender for certain parts of NHS procurement. We have used those as a protection over recent years, including during the coalition Government, to say that the NHS is safe in our hands. So I ask the Minister specifically if she can point me to where the replication of that EU directive on public procurement will appear before us prior to 29 March this year, because I am having trouble finding it.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)
My Lords, it is not often that one rises to speak for the first time in Committee in the presence of the head of one’s graduate college, who has just quoted Lady Thatcher at you in no uncertain terms. I am most grateful to the noble Lord, Lord Wilson, for his characteristic directness, and I promise that I shall be on my best behaviour.
I thank the noble Baronesses, Lady Thornton and Lady Jolly, for Amendments 1, 2, 12, 13, 14, 45, 46 and 47, the noble Lord, Lord Marks, for Amendment 3, the noble Lord, Lord Patel, for Amendment 5, and the noble Lords, Lord Patel and Lord Kakkar, and the noble and learned Lord, Lord Judge, for Amendment 44 and the notice of their intent to oppose Clause 1 standing part of the Bill. I am grateful to them for being clear that their intention is to strengthen, not to wreck, the Bill. I was, however, a little hurt by the noble and learned Lord, Lord Judge, stating that the role of committees of the House, particularly the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, and indeed the scrutiny of this Chamber, was being dismissed or in any way taken lightly by the Government in this case.
As the noble Lord, Lord Lisvane, an old friend of mine from the other place, will know, as a former chair of a Select Committee, I could not take the scrutiny of this House more seriously, and my purpose here today is to engage seriously and effectively with the firm intention of the Bill leaving this place in a better state. Perhaps it is the optimism of a novice speaking. I welcome my noble friend Lord Cormack back from his sick bed, but believe that, given the quality of engagement in this place today, we can aspire perhaps not to quaffable wine but to more than just improving the Bill to make it applicable to the EU, the EEA and Switzerland, as the noble Lord, Lord Marks, said. We can aspire to non-EU healthcare agreements that are as valued by recipients as the EU scheme is.
Each of these amendments allows me to speak to the intent of the Bill and to the future of reciprocal healthcare arrangements after we exit the EU. As noble Lords have mentioned, although the Bill has been brought forward in response to our exiting the EU, it is not intended to deal just with that. It is designed to respond and offer certainty to those who rely on EU reciprocal healthcare, but it is more than that. It can give us the opportunity to strengthen existing reciprocal healthcare agreements with non-EU countries and to consider future additional reciprocal healthcare agreements. Given the level of public support for EU reciprocal healthcare, I would have thought that the Government seeking to strengthen global reciprocal healthcare would be a welcome move, provided, of course, that the Bill is appropriately scrutinised and strengthened.
Baroness Thornton
The Minister’s colleague in the Commons said exactly that: it was a trade Bill.
Baroness Blackwood of North Oxford
He may have said that, but I have clarified this point with the department, the Secretary of State, and others: that is not the case. The Bill is not about trade deals; it is about reciprocal healthcare. In addition to that, I have clarified that free trade agreements, including those to which we are currently party as EU members, contain specific wording to safeguard public services, including the NHS. As we leave the EU, the UK will ensure that future agreements have the same protections. I clarified this at Second Reading and I reiterate it now: the NHS is not and never will be for sale to the private sector, overseas or domestic. If the noble Lord, Lord Brooke, would like to follow up on the points he has raised today, I would be happy to do so outside this Chamber.
I have heard the concerns raised today and at Second Reading regarding the global scope of the powers and I will explain why the Government have drafted the Bill in this way. We believe that the reciprocal healthcare arrangements that we enjoy with EU member states are a positive and beneficial policy. This view has been supported in today’s debate, and by both Houses. It has broad public and clinical support. Indeed, the EU Home Affairs Sub-Committee of this House remarked in its Brexit: Reciprocal Healthcare report:
“Reciprocal healthcare oils the wheels of the day-to-day lives of millions of citizens”,
and the arrangements,
“bring greatest benefit to some of the most vulnerable members of our society”.
In addition, we already have reciprocal healthcare agreements with non-EU countries such as Australia and New Zealand, other European countries such as the Balkan states, and the British Overseas Territories. These often pre-date the EU and have never been limited to Europe.
Baroness Blackwood of North Oxford
There would be significant challenges to a reciprocal healthcare agreement with the United States, because it has a different payment system. I do not envisage one being on the cards. Having listened to the debate today, I do not believe that there is an in-principle objection to non-EU reciprocal healthcare agreements. There is, however, a concern about the nature of the powers in the Bill, to which I now turn.
As noble Lords have mentioned, Clause 1 gives the Secretary of State a new power to make payments, and to arrange for payments to be made, to fund healthcare abroad. Currently there are limited domestic powers in relation to funding healthcare abroad so at the moment non-EU healthcare agreements do not transfer money. The payment system for funding EU reciprocal healthcare is currently set out in EU law. For this reason, if we want to enter into international healthcare agreements, whether with EU or non-EU countries, we need the powers in the Bill to extend beyond 2020 or in certain no-deal scenarios. Clause 1, therefore, enables the funding of any reciprocal healthcare agreements that the UK may enter into with EU member states, non-EU states and international organisations, such as the EU, as well as unilateral funding of treatment abroad in exceptional circumstances.
In the future, detailed provisions could be given effect domestically by regulations under Clause 2(1), which we will debate in the fifth group of amendments. This approach speaks to Amendment 3, tabled by the noble Lord, Lord Marks, with whom it is always a delight to tangle in the Chamber. He has proposed that the power in Clause 1 should be used only after regulations have been laid. I completely understand the motive behind this amendment, but there is a reason why the Bill has been drafted in this way. While it is making good progress through Parliament, it is very unlikely that the Bill will achieve Royal Assent before March. With the best will in the world, it would not be possible to lay regulations using the powers in the Bill until, we estimate, at least summer 2019. In an unprecedented no-deal situation, there may be a need to use the powers before then.
The UK has recently concluded citizens’ rights agreements with the EFTA states and with Switzerland to protect reciprocal healthcare for people living in those countries on exit day, or in other specified cross-border situations. It is good news that we would have an operative agreement in those states in a no-deal scenario, as they will guarantee healthcare for those covered by the agreements. However, in that situation, it is likely that we would need to use the power in Clause 1, alongside Clause 4, to temporarily implement those agreements to share data or make healthcare payments and associated arrangements, where required under the terms of each agreement, before laying regulations to implement them more transparently at the earliest opportunity. This may also be true of other agreements we conclude before or shortly after exit day if complete reciprocity was not agreed with EU countries. If this is the case, we will make Parliament aware of it, along with our plans to legislate for these agreements.
I have heard concerns about spending public money. This is obviously closely monitored; money spent under Clause 1 would be no exception to that rule and the usual Treasury safeguards would apply. This will be debated in more detail in the seventh and eighth groups of amendments, so I will leave that until then.
I turn to Amendment 5, in the name of the noble Lord, Lord Patel. I understand completely the basis for concern about how the power to confer functions has been drafted, so it may be helpful if I explain the intent of these provisions. The current EU reciprocal healthcare agreements are implemented in partnership with a number of NHS bodies and organisations. For example, the NHS Business Services Authority has responsibility for customer services in EU reciprocal healthcare. It prints and distributes EHICs, processes claims and recovers costs. NHS England is responsible for authorising applications for the S2 route. NHS trusts are obviously responsible for identifying visitors and making sure that they are not individually charged, and for ensuring that the UK can recover costs from member states.
It is important to note that it is not just healthcare bodies that are relevant to delivering reciprocal healthcare. For example, the DWP has a role with its responsibility for pensions and social security. When we lay regulations to implement healthcare agreements, such as those currently operating, we will need to confer the relevant functions on each organisation according to the role it plays, giving it a clear legal responsibility and operating mandate. That is the purpose of these two provisions. I note the concerns raised by noble Lords on this point and am open to discussing this issue in further detail.
Finally, I shall address Amendment 44 in the names of the noble Lords, Lord Patel and Lord Kakkar, and the noble and learned Lord, Lord Judge, which would limit the legal effect of the Bill to a two-year period after exit day. I entirely recognise the rationale behind this approach, but I have some concerns about the amendment’s potential consequences. It would mean that hundreds of thousands of people who access healthcare under these arrangements would have no certainty that their healthcare could continue two years after exit day. It would also mean that it would be difficult for the Government to enter into medium and longer-term healthcare agreements. I hope noble Lords will understand that the Government cannot support an amendment that places such uncertainty on the people for whom these arrangements are intended. However, I recognise the nature of the concerns raised by noble Lords and, as we proceed through Committee and on to Report, I want to continue working with and listening to noble Lords, on an individual and party level.
For these reasons, I hope the noble Baroness will withdraw the amendment and that the noble Lords, Lord Patel and Lord Kakkar, and the noble and learned Lord, Lord Judge, will not oppose Clause 1 standing part of the Bill.
Baroness Thornton
I congratulate the Minister on her summing up and answers. As these things go, it was absolutely perfect. I did not agree with a lot of it, but I commend her skills.
I thank all noble Lords who have taken part in this debate. I know it has taken almost two hours, and I knew this would be a very important debate because it is about the scope of the Bill. The noble Lord, Lord Patel, was right to put down clause stand part, because it focuses the mind—of the Government, certainly—when you are facing a clause stand part. We all knew that this was probing the scope of the Bill, which was exactly right.
I say to the noble and learned Lord, Lord Judge—just keep banging on. I agree with other noble Lords that this is very important. All of us will be reading the noble and learned Lord’s remarks very carefully, because they have given us a lot of material for how we are going to take these discussions forward. The noble and learned Lord may have used the term “carte blanche Bill”. My honourable friend Justin Madders in the other place called it the Martini Bill: good “any time, any place, anywhere”. I wanted to join in with finding different ways of describing the Bill and the experience of the noble Baroness.
The noble Lord, Lord Ribeiro, was right to draw attention to the issue of no deal and to talk about the problems of the scope of this Bill. I welcome the remarks of the noble Lord, Lord Lisvane, because he has such huge knowledge of the powers that are being talked about in this Bill. With the noble Lords, Lord Cormack and Lord Wilson, he expressed enormous frustration—from enormous knowledge, power and experience—with what we are dealing with here and how unacceptable it is. I am afraid that the Minister and the noble Lords, Lord O’Shaughnessy and Lord Lansley, have not dealt with that frustration. I take one grain of hope from the fact that the noble Baroness said she was open to discussion, and that was very wise of her. We will need to have more discussions.
I am looking forward to the future amendments in the name of noble Lord, Lord Marks, but this was a very useful amendment to put into this group. The noble Baroness, Lady Brinton, is quite right to talk about changes to NHS procurement. As we know—and I declare an interest as the chair of the procurement committee for a clinical commissioning group—European rules do rule, and that is important.
Lord Foulkes of Cumnock (Lab Co-op)
I apologise to my noble friend that I was not here earlier, due to travel difficulties—
Baroness Thornton
As much as I admire and love my noble friend, he should probably not intervene at this moment, but he has lots of opportunities to do so in the next few hours and I know he will take them.
The letter that the Minister sent, and the representations of the Government to the DPRRC, really did not take these concerns seriously. My noble friend Lady Andrews was right when she said that while these long letters are full of interesting things, they do not address the powers. The powers are not just for Brexit and the following years—they are for ever. That is the point.
While of course I will withdraw the amendment, because that is what we do in Committee, I assure the Minister that unless something changes in the next few weeks regarding discussions with her, I suspect we will be returning to this at the next stage of the Bill. I beg leave to withdraw.
“(2) Regulations under subsection (1) may be used only to the extent necessary to replicate so far as possible the model of reciprocal healthcare for the European Union, the European Economic Area and Switzerland in place before the withdrawal of the United Kingdom from the European Union.”
Lord Marks of Henley-on-Thames
My Lords, this group contains two amendments. Amendment 4 is in my name and the names of the noble Baronesses, Lady Finlay of Llandaff and Lady Watkins of Tavistock. Amendment 10 is in the names of the noble Baroness, Lady Thornton, and the noble Earl, Lord Dundee.
Amendment 4 addresses two fundamental faults, as we see them, with the Bill. The first is that the Bill is a global Bill, when it does not need to be. The second is that the powers proposed for the Secretary of State in the Bill are, in effect, unlimited and so thoroughly dangerous. The first point, the international scope of the Bill, has been considered in part and defended by noble Lords opposite—the Minister and the noble Lords, Lord Lansley and Lord O’Shaughnessy—in the previous group. Notwithstanding the position taken by the Government and those noble Lords, my position is firmly that the noble Lord, Lord Wilson of Dinton, and the noble Baroness, Lady Thornton, were right to say that the Bill ought to be directed solely at ensuring the continuation of the reciprocal healthcare arrangements we currently enjoy with the EU, the EEA and Switzerland, and that international healthcare arrangements outside that context should be left for another day when they can be more carefully considered, with a consideration that I raised with the noble Lord, Lord Lansley, about the effect of CRaG in the picture at that time.
That immediate EU/EEA/Switzerland Bill is what British travellers in Europe need; what EU visitors to the UK need; and, perhaps most important from a UK point of view, what 190,000 desperately worried British pensioners living in other states of the EU need to ensure that their existing healthcare will continue. The Explanatory Memorandum makes it clear that the Bill is being introduced because we are leaving the EU. Whatever our views of that decision, we all share the aim of ensuring that our current reciprocal healthcare arrangements continue.
The Bill is necessary if—but only if—we leave without a deal that secures a transitional period as envisaged by the current version of the withdrawal agreement. If we do secure the withdrawal agreement, or something like it, our reciprocal healthcare arrangements will continue, and one would hope that they would be replicated on a permanent basis before the transitional period ended. However, the Bill goes far further than is needed to achieve that limited and legitimate aim. The Government are seeking—unashamedly—to use the Bill to go global in healthcare by making arrangements with other countries across the world. That is simply not necessary because arrangements with third countries can be made at any time, and they should be negotiated and brought before Parliament properly, subject to the CRaG procedure and extra procedures. There is no urgency about that. We already have agreements with Australia, New Zealand and some others. So far as I know—and the noble Lord, Lord Lansley, knows—there are no others in the pipeline, but any which are in prospect can be dealt with individually in their own time.
The Constitution Committee, as has been said, reported on the Bill yesterday. While it acknowledged that Brexit legislation might justify,
“broader powers than would otherwise be constitutionally acceptable”,
it was absolutely clear that such powers should be used only for the limited purpose of passing that Brexit legislation. It reported in clear terms that:
“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”.
Lord Foulkes of Cumnock
The noble Lord has quite rightly referred to the existing countries—Australia, Bosnia-Herzegovina, North Macedonia, Montenegro, New Zealand and Serbia, as well as our independent territories—with which we have reciprocal agreements. They are being dealt with at the moment without the need for this Bill, so is my noble friend Lady Thornton not right to be suspicious, irrespective of the Minister’s assurances? We know that 24 Tory MPs and Peers have links to 15 private healthcare companies which have £1.5 billion worth of NHS contracts. We are right to be suspicious about what they are up to; indeed, there is one of them sitting opposite.
Lord Marks of Henley-on-Thames
My Lords, I am grateful for that intervention: I did not know the facts about the involvement of certain members of our political establishment in healthcare arrangements. I agree that we are right to be suspicious and I shall come to that later in my contribution, but for now I will go on to the second fundamental fault with the Bill, which is that the proposed powers would enable the Secretary of State not only to make healthcare arrangements with countries across the world but to make such arrangements on whatever terms he or she chooses. That is a dangerous concept.
Many noble Lords, including me, quoted the Delegated Powers Committee’s powerful first report on the Bill at Second Reading. We have now had its second report, published on 14 February. It is in similarly strong terms, speaking, for example, of,
“unprecedented powers for Ministers to make law by statutory instrument”.
The powers are described as far too wide and,
“drafted in far wider terms than are necessary to give effect to the Department’s limited aims”.
I agree with the noble Baroness, Lady Andrews, that the Government ought to be listening more carefully to that committee and to the Constitution Committee. I agree that it is frankly outrageous that, on receipt of the first report of a committee that, when I was a member of it, generally expected its reports to be accepted by the Government, instead of that report being accepted, the Government came back with a response that stuck by every word in the Bill, made no real amendments to it, and provoked the second, outraged report of the committee. That, in my experience, is unprecedented. The committee chose, on this occasion, to deal with the Bill before the Commons had finished dealing it, rather than between Second Reading and Committee in the House of Lords, and the Government, frankly, took no notice.
The Constitution Committee said:
“We agree with the Delegated Powers and Regulatory Reform Committee that the powers in clause 2 are ‘inappropriately wide and have not been adequately justified’”.
I went through the powers in outline at Second Reading. The committees have been through the powers in detail, but the Bill puts absolutely no limit on the Government’s power to enter such deals. The Secretary of State would be empowered to authorise payments and claim reimbursement at any level he or she chooses and for any kinds of healthcare arrangements. Parliament would have no effective scrutiny or control. I urge the Committee to remember the Delegated Powers Committee’s central point, which it repeated in its second report, that,
“we assess powers by how they are capable of being used, not by how governments say that they propose to use them”.
The Government now profess entirely innocuous motivations for taking the powers contained in the Bill to make international healthcare arrangements outside the European context. Indeed, the noble Lords, Lord O’Shaughnessy and Lord Lansley, almost suggested that this was an exciting prospect. In closing the Second Reading debate, the Minister spoke of,
“a natural opportunity to consider how we can best support Britons in an increasingly global world … Global reciprocal healthcare agreements have the potential to protect public health by supporting international visitors to access emergency and needs-arising treatment when they need it”.—[Official Report, 5/2/19; col. 1488.]
She may be right. She repeats all those points in her long and detailed letter—a well-drafted, well-written and impressive letter that she sent to all of us yesterday or the day before. However, I am afraid that what she envisages as the use of the powers misses the point, as her answer to the noble Lord, Lord Brooke, on the possibility of a healthcare arrangement with the United States, illustrated. It is the powers that count, not what Ministers of the day might envisage for their use. The powers are not limited to such benign purposes.
I am not generally a cynic, but if we leave without a deal, then the day after Brexit one can foresee this Government, battered by the failure to reach an agreement, being desperately keen to make all kinds of trade deals with third countries across the world, in an effort to protect a vision of our future as “global Britain”, and no doubt to give the Department for International Trade a purpose to fulfil at the same time. There is a serious risk, in such a climate, of the Government offering third countries health deals in return for trade deals. The terms of such health deals could be seriously detrimental to the United Kingdom. Access to the NHS could be sold cheaply, and across wide and populous markets. UK taxpayers could be committed to unreasonable payments to foreign countries for offering treatment to UK citizens, and all as sweeteners to secure free trade deals. This is why I share the suspicions of the noble Lord, Lord Foulkes, and all this in an attempt to rescue an economy in difficulties—
Lord Lansley
I am sorry, but I am getting a bit confused here. By what mechanism does the Bill, which provides a power to make payments in respect of healthcare outside the United Kingdom, give power to access the NHS? It simply does not, does it?
Lord Marks of Henley-on-Thames
It simply does: you can make a healthcare arrangement with countries outside the United Kingdom in return for access to healthcare within the United Kingdom, on the same basis as the EU reciprocal arrangements do at the moment.
Lord Lansley
I do not mean to badger the noble Lord, but this is simply not true. The power in the Bill relates to payments for healthcare outside the United Kingdom. Governments make agreements with other Governments all the time, including trade agreements, but this Bill does not provide for what is in a trade agreement. It provides for the power to make payments outside the United Kingdom. That has no bearing on access to the NHS inside the United Kingdom.
Lord Marks of Henley-on-Thames
That does not, as I understand it, prevent the Government offering other countries access to the NHS on terms that are sweet for them.
Lord Foulkes of Cumnock
Clause 3(b) concerns,
“healthcare provided in the United Kingdom, payments in respect of which may be made by a country or territory outside the United Kingdom”.
So it is reciprocal and the noble Lord, Lord Lansley, who is one of the people involved with private healthcare, is trying to mislead the House by intervening.
Lord Lansley
I object to what the noble Lord has said: I am not involved in private healthcare in any sense. Not now nor at any time in the past have I acted in any way as a representative of the private healthcare sector. I think the noble Lord should simply withdraw that.
Lord Marks of Henley-on-Thames
My Lords, I make no aspersions on either the motivation or the interests of the noble Lord, Lord Lansley, but I think the noble Lord, Lord Foulkes, was right to draw attention to the definition of “healthcare agreement” in Clause 3, which provides that,
“‘healthcare agreement’ means an agreement made between the government of the United Kingdom and either the government of a country or territory outside the United Kingdom or an international organisation, concerning either or both of the following— (a) healthcare provided outside the United Kingdom, payments in respect of which may be made by the government of the United Kingdom; (b) healthcare provided in the United Kingdom, payments in respect of which may be made by a country or territory outside the United Kingdom”.
That makes the point I am trying to make about the danger. If the noble Lord, Lord Lansley, disagrees with me about that, perhaps we could discuss it outside the Chamber, but for the moment I regard it as a serious danger.
Lord Lansley
With respect to the noble Lord, we are having the debate now. I have read the Bill, and reading it out does not make his point. The Bill simply defines what a healthcare agreement is. The Government have the power to make healthcare agreements now. He is objecting to the Bill. The only power it gives the Government that they do not presently have is to make payments in respect of healthcare outside the United Kingdom.
Lord Marks of Henley-on-Thames
It is right that Clause 1 allows the Secretary of State to make payments out, but the point is that the regulations in Clause 2 provide for giving effect to a healthcare agreement. A healthcare agreement, as defined, allows reciprocity. My concern is that if we enter into healthcare agreements giving reciprocity on terms that are disadvantageous to the United Kingdom, that could involve our giving cheap access to the NHS.
Lord O'Shaughnessy
This is a reciprocal healthcare Bill, after all. Let us separate out the point that the noble Lord is making about non-EEA countries for a moment. First, why would a Government—any Government—want to make such an agreement? It is meant to be reciprocal; it is not reciprocal if it is heavily one-sided. Secondly, why on earth would the House of Commons, which has the power to reject such a Bill, accept it? It is like saying that we would trade one thing for something entirely different because it is logically possible. Well, possibly, but that does not mean that anyone in their right mind would do it.
My noble friend could not have been clearer in everything she said: this Government, whose motives the noble Lord is impugning, would not act in such a way. The insinuation he is making simply does not follow from the Bill.
Lord Marks of Henley-on-Thames
The noble Lord makes the point that whatever innocuous motivations may be expressed by Ministers at this stage, the powers in the Bill go far further. If there comes a stage where a Government are not so benign and have motivations that are political and unhelpful to the NHS—those could be, as I suggest, trade motivations—that presents a real risk. If easy access is given to the NHS in return, for example, for trade deals—
Baroness Blackwood of North Oxford
The noble Lord, Lord Marks, is very kind in giving way. It may be helpful if I clarify. The Bill is an implementing Bill, and that power can implement only an international agreement which has been entered into; it would be laid before Parliament for scrutiny under the CRaG process. That reciprocity would have to be scrutinised by Parliament.
Lord Marks of Henley-on-Thames
That is a helpful intervention. It brings me back to the point that all that Parliament can do under CRaG is for the House of Commons to reject the entire treaty. If there is a stage at which a Government are interested in securing a trade Bill that even a majority in Parliament may regard as deleterious to the NHS, they may decide not to throw out the treaty because that is a very strong thing to do. Although I take the view that I suspect the noble Lord, Lord Lansley, takes—that the CRaG procedures are insufficient—that merely makes the point in favour of my amendment.
We ought to be looking to the question of international healthcare agreements outside the context of the very important aim we now have of replicating EU arrangements. Taken at their worst—obviously, not if the noble Lord, Lord O’Shaughnessy, and the noble Baroness are right that these agreements will be used for wholly benign purposes for the benefit of the NHS—they could do serious damage to the NHS, which is already cash strapped. They could encourage visitors coming here to seek treatment from the NHS in competition with UK residents. They could put added pressure on a service that is already suffering from staff shortages, which will be compounded after Brexit by the additional loss of large numbers of EU doctors, nurses and vital support staff.
What the Bill needs to do, and all it needs to do, is to ensure that in the appalling event of no deal, we can attempt to salvage our reciprocal healthcare arrangements by coming to replacement healthcare agreements with our present partners. That can be simply assured by our amendment, which would leave out all the offensive unrestricted powers in Clauses 2(2) to 2(4) and substitute a requirement that regulations may be used only to the extent necessary to replicate, as far as possible, our existing arrangements.
Agreements with the rest of the world can be left for another day under clearer, more carefully constructed and constitutionally appropriate legislation, for which we will need a great deal of time to consider. I beg to move.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, I point out that if Amendment 4 is agreed, I cannot call Amendment 5 by reason of pre-emption.
Baroness Finlay of Llandaff (CB)
My Lords, I listened to the first part of the debate today, and I add my welcome to the Minister to her new post. I regret that I was unable to be here at Second Reading because of a commitment that I could not cancel, and I declare that I am a member of the European advisory group to the Wales Assembly Government. I added my name to the amendment because the Bill goes far beyond its purported remit by providing the ability for the Government to create new policy relating to healthcare agreements with countries outside the European Union, the EEA and Switzerland.
We all understand that there is need for speedy passage of the Bill because of the approaching deadline, but the question arises: why not restrict it to the problem that it has to solve? Given that the purpose of the Bill is to ensure that reciprocal healthcare arrangements are in place once we have left the EU, it is appropriate that the Secretary of State’s powers are limited to do just that and nothing more. As I understand it, that is what the amendment is intended to, and does so for three reasons, because it aims to achieve three things.
First, it aims to ensure that UK patients in the EU and vice versa can continue to access healthcare easily, including those with long-term conditions. Secondly, our NHS is protected from a dramatic increase in demand for services that a failure to reach an agreement could generate. We anticipate that 190,000—some figures say 180,000—UK pensioners in Europe are currently reliant on reciprocal healthcare. They may otherwise have to return to the UK for treatment if healthcare agreements are not replicated. Thirdly, the General Medical Council has already pointed out that the medical profession could be deemed to be at breaking point. Those working in healthcare need to be able to focus on providing care rather than on cost-recovery and complex administration.
I have questions for the Minister on that. In the event that we do not have an agreement and cannot get reciprocity, as we would like, how will the identity for eligibility be confirmed? How many people will need to be employed to make the relevant checks? Do the Government plan to issue current NHS cards that must be presented to prove eligibility, and would such NHS eligibility be incorporated in visas to work, study or be resident here?
Clause 2 authorises the Secretary of State to make regulations,
“in relation to the exercise of the power conferred by section 1 … for and in connection with the provision of healthcare outside the United Kingdom … to give effect to a healthcare agreement”.
I fully accept the Minister’s sincere confirmation that this is not a trade Bill, but I have a question about that. We have had firm confirmation here but, in the other place, something contrary was said and recorded. Which has precedent? Does what was said in the other place take precedence over any assurances given here? I accept that they are given after the event but, as far as I am aware, we have not received anything in writing or had placed before us anything from the Minister to say that that was not the case.
Another issue, raised in previous debates by the noble Baroness, Lady Jolly, concerns the risk of the Bill being used as a political tool to promote a global healthcare strategy by enabling the Secretary of State to make arrangements with countries across the world, without restrictions on the terms under which that would happen. As a clinician working in the NHS, my concern relates simply to overburdened NHS services. At the same time, I understand that the Welsh Government have not yet provided a consent Order in Council on the Bill. Has there been consultation? How do the Welsh Government anticipate the Welsh NHS coping in the event of no deal and the failure of reciprocal arrangements?
Lord Foulkes of Cumnock
My Lords, I apologise to the noble Lord, Lord Lansley, and accept his assurance, which was given in good faith. I support the amendment very much. In his intervention, the noble Lord, Lord O’Shaughnessy, said that anyone in their right mind would not do the kind of deal indicated by the noble Lord, Lord Marks. Anyone in their right mind would not be moving us towards a no-deal Brexit, which I am afraid the Government are doing, so sometimes we do not believe them. We expect all our politicians, particularly the current ones, to be in their right mind.
I am not a Corbynista, as my noble friend Lord Liddle knows very well, but I am still in the Labour Party because it is my party. I had the awful experience of 16 years in the other place with the Conservatives in office, so I have become increasingly wary of what they get up to. I watch them very carefully indeed. I listen to their assurances and see them broken. I listen to what they say about the health service and see it undermined, slowly but surely. It would have been further undermined if we on these Benches and those on the Labour Benches in the other place had not done as much as possible to protect it, which is why I am suspicious of what is proposed.
Our current reciprocal arrangements work very well; my son works in New Zealand where, as in Australia, they work very well. They have been dealt with through current legislation so why do we need additional legislation? The Minister has not explained that properly. If we can have such arrangements now—not just with New Zealand, Australia, Bosnia-Herzegovina and Serbia, whose arrangements were achieved under the current legal framework—why do we need something new? I am sure the Minister understands why we are suspicious of this being tacked on to a Bill originally planned to deal solely with the problems that would arise in the health service and our reciprocal arrangements with the European Union in the event of a no-deal Brexit.
This matter raises all sorts of issues with priorities. Which countries would come first? Would it be the EU 27, collectively or individually? Which other countries would be on the list of priorities? Would this be a priority for the hard-worked officials in the health department? The Minister did not answer that question properly in her intervention. Of course, as she knows, she can intervene in the debate in Committee just like the rest of us—as long as we are here at the beginning of the debate on a particular amendment, as I was reminded earlier and accept.
In her intervention, the Minister said that any deals would of course be scrutinised by Parliament. Yes, but we will come to debate later scrutiny and the negative procedure versus the “made affirmative” procedure, neither of which can amend instruments. That is the problem with the scrutiny here: it is not proper scrutiny. We are taking that up in another context to deal with it. We see it happening at the moment with statutory instrument after statutory instrument being pushed through without proper scrutiny as we rush towards the cliff edge of Brexit. That is why we are very suspicious.
Like the noble Baroness, Lady Finlay, I welcomed the Minister at Second Reading; the debate was very good and the Minister replied well to it. I hope that she will excuse me but I spent 26 years in the other place and have seen the differences between a Conservative Government undermining the National Health Service and a Labour Government expanding it, developing it and putting more resources into it. I hope that she understands why we get a bit suspicious sometimes.
Baroness Thornton
My Lords, I intend to speak to Amendment 10 in my name. I thank the noble Lord, Lord Marks, and the noble Baroness, Lady Finlay, for their remarks and questions. I agree with my noble friend Lord Foulkes—he of the suspicious mind. Do not worry, I will not break into song.
The amendment seeks to retain the current arrangements. It proposes a new clause to put the Government’s stated negotiating objective of remaining part of the EHIC scheme in the Bill. The reason for that is quite simple: 27 million of our citizens have EHICs, which cover pre-existing medical conditions as well as emergency care. Individuals with chronic illnesses—for example, those who require daily dialysis— can travel knowing that they will receive treatment on the same terms as the citizens of the country they are visiting or residing in. The Government have said that they want both UK and EU citizens to be able to continue using the EHIC scheme after Brexit. The amendment would put that beyond doubt.
Indeed, it reflects the 47th report of the Delegated Powers and Regulatory Reform Committee, which, as the Minister will be aware, has batted back to the Government and reaffirmed its view of the Bill. The report states:
“It is a skeleton Bill allowing the Secretary of State by regulations … to make provision in relation to the exercise of the power to make payments in respect of the cost of all forms of individual healthcare provided by anyone anywhere in the world … to make provision for and in connection with the provision of any such healthcare … and … to give effect to healthcare agreements”.
It goes on to say:
“We are concerned that the Brexit process has given rise to a series of Bills, of which this is the latest, containing unprecedented powers for Ministers to make law by statutory instrument”.
Neither the Minister nor her supporters have addressed why that is necessary and dangerous. They have not acknowledged the issue that this House is very concerned about.
I will mention two more things. In a recent briefing, the Association of British Insurers said that it is supportive of proposed amendments that would encourage detailed agreement with the EU to be sought in order to provide certainty for travellers with long-term medical conditions and reciprocal arrangements for pensioners in the UK and EU. Talking about the retention of current reciprocal arrangements, the BMA said in a recent briefing that it believes that,
“the UK Government should undertake every effort to retain the current model of reciprocal healthcare with the EU rather than seeking alternative mechanisms”.
I will end there but that is why we have tabled this amendment.
The Earl of Dundee (Con)
My Lords, within this grouping I support Amendment 10, spoken to just now by the noble Baroness, Lady Thornton.
As indicated, its objective is for current arrangements to be retained as they are. Certainly the Government would wish that in any case—and for the successful negotiation of a new healthcare arrangement to apply post Brexit.
But there are good reasons why this particular government intention should nevertheless now form part of the Bill, for its inclusion would give much comfort both to those directly affected and to all others concerned about their plight.
At the same time, its exhortation is a balanced one that is flexible without being at all restrictive. For example, the introductory words of the amendment are:
“It shall be the objective of Her Majesty’s Government”.
That does not compel the Government to achieve something which might prove to be impossible. Instead, as is only fitting within this Bill, these words properly encourage the Government to do everything they can to replicate what is already there.
Baroness Blackwood of North Oxford
I offer my thanks to the noble Lord, Lord Marks, the noble Baroness, Lady Thornton, and my noble friend Lord Dundee for tabling Amendments 4 and 10, and for the opportunity to speak to our intentions for reciprocal healthcare arrangements. I also thank all noble Lords who have participated in the debate on this group.
My first point, in response to the noble Lord, Lord Marks, is that, far from going global with this Bill, we are already global when it comes to reciprocal healthcare. The UK has had reciprocal healthcare agreements with individual countries in Europe and the rest of the world since the 1950s and has taken part in EU arrangements since the 1970s. We want reciprocal healthcare arrangements with the EU after we leave, and that is the purpose behind a suite of measures that we are taking. But when it comes to non-EU arrangements, which perhaps the noble Lord, Lord Foulkes, missed in my summing up on the previous group, one of the reasons we are seeking the powers in this Bill is that currently we do not exchange money or data in non-EU reciprocal healthcare arrangements. We do not have those powers in our domestic legislation. That is why we are seeking them, so that we can strengthen those non-EU reciprocal healthcare arrangements.
The Government’s intention is to continue current reciprocal healthcare arrangements with countries as they are now in any exit scenario—deal or no deal—until 2020. The in-principle agreement that we have reached with the EU is that during the implementation period ending in 2020, all reciprocal healthcare entitlements will continue and there will be no changes to healthcare for pensioners, workers, students, tourists and other visitors, the EHIC scheme or planned treatment.
Lord Foulkes of Cumnock
The noble Baroness said that no money was exchanged in the case of New Zealand and Australia. So how do these reciprocal healthcare arrangements work? As I understand it, we have the same healthcare when we go to New Zealand as a New Zealander, and vice versa. Should that not be done? Why does it need the exchange of money?
Baroness Blackwood of North Oxford
It is done through waiver agreements.
Longer-term rights would also be guaranteed for those covered by the citizens’ rights deal, including people living in other countries at the end of the implementation period.
Lord Foulkes of Cumnock
The noble Baroness said that this was done through waiver agreements. If they work through waiver agreements, why can waiver agreements not work with other countries as well? They work in Serbia and Bosnia and Herzegovina, along with a number of other countries, as well as Australia and New Zealand, under current legislation. The Minister still has not explained why these extra powers are needed.
Baroness Blackwood of North Oxford
We have relatively simple agreements with these countries that do not allow for the level of complexity which we have within the EU reciprocal healthcare agreements, which allow for tourists, posted workers and UK pensioners who live in EU countries. We do not have that scale of agreements with non-EU countries. Perhaps we might like to explore that, as it has many benefits for people who go to those countries. However, that is yet to be explored and is part of the reason why we would be seeking those powers.
Perhaps I may continue to speak to the amendments in this group. The Government want to secure a wider reciprocal healthcare agreement with the EU following exit that supports a broader range of people such as those not covered by citizens’ rights when they move between the UK and the EU for leisure, work or study. We would then use the Bill to enable the UK to implement any future relationship with the EU on reciprocal healthcare from 2021. In a no-deal scenario we are attempting to prepare for any outcome.
I would like to speak to the points raised by the noble Baroness, Lady Finlay. She asked how people would be identified and for the details of implementation and communication with individuals regarding potential changes in circumstances. These issues will be addressed in quite a lot of detail in the eighth or ninth group, so if she will forgive me, I will not address them now. Regarding the points she raised around trade, I would hope that the assurances that I have offered from the Dispatch Box today and in writing in my letter at the beginning of this week will offer the assurance that she is seeking that the position I have laid out is the position of the Government and it is not going to change.
Finally, regarding her question about the devolved Administrations and our consultations with them, we are very pleased to have received a legislative consent Motion from the Scottish Government and agreement from Northern Ireland, and we are in advanced discussions with the Welsh Government. I hope to be able to report back on that point in more detail on Report and I will be happy to continue discussions with her on it.
I will go into a little more detail on our offer to the EU, EEA and Switzerland. It is to maintain reciprocal healthcare agreements so that nobody faces sudden changes to how they access healthcare. Maintaining the current arrangements as they are now is possible only with agreement from other member states. I can reassure noble Lords that we have commenced formal discussions on this issue. The two SIs we have introduced under Section 8 of the EU withdrawal Act, and which I wrote to your Lordships about, afford the UK a mechanism for ensuring that there is no interruption to healthcare arrangements after exit day in those member states which agree to maintain the current arrangements after exit day. Through these instruments, the UK can maintain current EU reciprocal healthcare arrangements for countries where we have agreed reciprocity for the transitional period lasting up to 2020. These arrangements would not apply to a member state which did not agree to maintain the current reciprocal healthcare arrangements. Importantly, the SIs also provide protection for individuals regardless of reciprocity, both here and overseas, who are in a transitional situation. This would provide additional protection for people who are, for example, in the middle of treatment.
Turning to Amendment 10, I can assure the noble Baroness, Lady Thornton, and my noble friend Lord Dundee that we want a relationship with EU member states that includes reciprocal healthcare. The fact that we have introduced this Bill is evidence of that. However, I have concerns about the amendment. First, there is good reason for the convention that one does not put negotiating terms on the face of primary legislation, because that does not allow for dynamic international relations—and we are in quite a dynamic situation at the moment. Secondly, it is important that reciprocal healthcare arrangements are consistent with wider mobility arrangements between the UK and the EU, such as the rights of different groups of people to move and work. These are areas that will also be under negotiation and may have implications for reciprocal healthcare. It is necessary that we have the flexibility to make changes in response to that.
Baroness Thornton
I am quite happy to accept that this may be a faulty amendment—but that is allowed in Committee. Is the Minister saying that the reason for not accepting it is that it undermines the flexibility that is needed for the broader negotiation of healthcare arrangements? Of course, this is in line with our wish to limit this to being about the European Union Brexit arrangements for healthcare. As the noble Baroness knows, that is a better way forward. Putting that into the Bill would therefore not undermine any negotiations, because that is what we want to do.
Baroness Blackwood of North Oxford
Under a withdrawal deal, reciprocal healthcare is protected. Under the no-deal scenario with member states agreeing to reciprocal healthcare, people would be protected under the SIs. The powers in this Bill are for asymmetrical arrangements, as it were, which may arise if member states do not want to pursue reciprocal healthcare arrangements exactly as they stand, or for the negotiation of post-2020 arrangements. It is very difficult for us to predict exactly how they will go, so putting in the Bill that we will continue with the reciprocal healthcare arrangements exactly as they are now is not realistic, given that we do not know where EU legislation will go. That is not within our power and we cannot predict it.
The amendment would mean that a future arrangement provided for under this Bill would as far as possible need to conform with and replicate the current EU, EEA and Swiss model of reciprocal healthcare as it stands at exit day. There is a lot to commend the current EU model of reciprocal healthcare. It supports people to obtain healthcare if they move between countries—EHIC—and people with long-term conditions, but the amendment would be too restrictive when we think about the future reciprocal healthcare arrangements, both in a deal and a no-deal scenario. For example, in a deal scenario it is important that future reciprocal healthcare arrangements are consistent with wider mobility arrangements between the UK and the EU, such as rights people have to travel, move and work. These areas will be under negotiation and may have implications for reciprocal healthcare. This amendment would remove our flexibility to adapt to this.
On a technical point, as I mentioned, EU law in this area evolves and under proposals currently before the European Parliament, elements of the model will soon change. This amendment would prevent the UK implementing such an evolved arrangement even if there were a desired negotiating position from the UK. In a no-deal scenario, the Bill will ensure the UK can respond to all possible scenarios and complements the approach we are taking with the withdrawal Act SIs, which I have already mentioned.
Lord Marks of Henley-on-Thames
My Lords, I propose to withdraw the amendment at this stage. We have had a lively debate, and I am grateful to everybody who has taken part in it and extremely grateful to the Minister for her comprehensive reply. In begging leave to withdraw the amendment, however, I urge the Government to consider very seriously the points made in this group and the last on the two issues that our amendment raises. The first is the global scope of the Bill and the second is the extent of the powers, particularly in Clause 2.
On the global scope, of course we wish the Government the very best of fortune in negotiating reciprocal arrangements against the horrible possibility of leaving the EU without a deal. If that can be done and reciprocal healthcare with as many countries as possible can be safeguarded in that way, that is all to the good. The Minister made technical points about the need to change our amendments to cover difficulties that might arise if they were passed in their present form. If she is attracted by the idea of restricting this Bill to EU, EEA and Switzerland arrangements, we would be very keen to discuss with her ways in which the amendment can be altered and for her to come back on Report with a different type of Bill.
On the powers, everything that needed to be said was said in the first group. Our amendment would replace the unacceptable powers with the aim of replicating the arrangements we have with the EU. If I may say so, it is a very important aim. I do not believe this House will let powers of the nature of those included in Clause 2 at present pass Report without dividing—and I have a fairly clear idea what the outcome of any such Division will be. So we will come back to this on Report—probably, in any event. It is an important issue that we raise.
On the dangers I saw in future healthcare agreements with third countries outside the EU, EEA and Switzerland, I was pressed—in a number of interventions that I can only describe as vigorous—by a former Health Secretary, a former Health Minister and an existing Health Minister, and I stood up to those interventions as best I could. But after I sat down, as one always does, I remembered something I probably ought to have said. To be fair, the noble Baroness, Lady Brinton, passed me her iPad with a mention of something I ought to have said. It was a quote from a document, and I will read it:
“The Bill will provide a legislative framework to implement any future longer-term reciprocal healthcare arrangements with the EU, individual Member States or countries outside the EU. The Bill is also a key piece of legislation to ensure that the UK can respond to all possible scenarios”.
As the Minister probably recognises, that document originated with the lady who signed it “Yours, Nicola”—the Minister. That is the danger. We are concerned; it is a concern that needs addressing. With those words, I beg leave to withdraw the amendment.
Baroness Wheeler
“(2A) Regulations under subsection (1)(c) may not be made unless they specify a defined process for settling disputes concerning healthcare agreements.(2B) The process specified under subsection (2A) must include information on—(a) the body, bodies or jurisdiction that will be responsible for settling disputes;(b) the procedure which will be followed by that body, bodies or jurisdiction when settling a dispute, including details of any further appeal mechanisms; and(c) anything else the Secretary of State thinks is relevant to settling such disputes.”
Baroness Wheeler (Lab)
My Lords, I am moving Amendment 6 in the name of my noble friend Lady Thornton. The amendment would prevent regulations being made unless they specify the process for settling disputes concerning healthcare agreements, including the name of the responsible body or bodies, their jurisdiction, the procedure that must be followed and any further appeals mechanisms.
Amendment 9 in the names of the noble Earl, Lord Dundee, and my noble friend Lord Foulkes has similar intent but includes a specific reference to the need for information on the involvement, if any, of the European Court of Justice in the resolution of disputes relating to healthcare agreements made in the EU. My honourable friend Justin Madders doggedly pursued this matter in the Commons, particularly the lack of clarity and information about how disputes would be resolved and whether the Government would oppose the European Court of Justice having any jurisdiction where there are disputes over agreements with European countries.
Agreements between countries must be applied, interpreted and enforced if they are to be worth making. Any and every healthcare agreement made under this Act will need to stipulate a dispute resolution process that must be followed in the event of a dispute between the UK and another country. The Government have repeatedly stated that they intend to end the jurisdiction of the European Court of Justice in the UK. However, it is hard to see how leaving the EU will not still involve some sort of continuing role for the ECJ in cross-border disputes. I understand that in the event of a deal under the terms of the draft Brexit withdrawal agreement, mechanisms for resolving disputes would be through consultation at the Joint Committee and, if that is unsuccessful, an independent arbitration panel. However, if any dispute rests on the interpretation of EU law, the arbitration panel refers the case to the ECJ for a binding decision. We have yet to receive any clarity on how disputes will be adjudicated in a no-deal scenario which, following the Government’s historic defeat in the meaningful vote and failure to renegotiate the backstop, looks increasingly likely.
In dispute resolution, would the ECJ also be the final tier and ultimate arbitrator? The European Commission’s negotiating guidelines say that the ECJ should be able to decide any disputes that involve the interpretation of EU law that still applies to the UK, rights of citizens or the financial settlement between the UK and the EU. While the draft EU withdrawal agreement does contain the bare bones of a disputes process through consultation at the Joint Committee level and, if that is unsuccessful, independent arbitration if requested, the response from the Government to a no-deal scenario is so far just to refer to having case-by-case bilateral dispute resolutions included in negotiations, with no single dispute resolution process. What further work has been undertaken by the Government on how this process will operate? What kind of dispute resolution procedure does the Minister envisage in the case of bilateral agreements with individual states?
The Minister’s response in the Commons did not appear to contain any confirmation that there were red lines on ECJ involvement in the case of the uncharted territory and chaos we would have in respect of disputes over reciprocal health agreements if there is no deal. Is the Minister able to clarify today the position of the Government? It is difficult to see what incentive there will be for other countries to agree a brand new architecture for dispute resolution, let alone pay for one. Is it not only desirable but inevitable that the ECJ will need to play a continued role in dispute resolution on these matters?
The Minister has previously advised that the Government are in “advanced negotiations” for bilateral healthcare agreements with at least five EEA countries as part of the Department of Health’s no-deal planning. Can the Minister advise what dispute-resolution mechanisms have been discussed in each case and whether the Government’s position is still that the ECJ will have no jurisdiction over such issues? Can she also tell the House what alternative institutional mechanisms have been discussed?
Lord Marks of Henley-on-Thames
My Lords, I will speak to the amendment in my name and that of the noble Baroness, Lady Thornton.
As the noble Baroness, Lady Wheeler, pointed out in moving the amendment, our existing arrangements are the result of European law. The EHIC scheme is provided by EU regulation 883 of 2004. As was mentioned at Second Reading, there are 27 million active EHICs in circulation. Most importantly from our point of view, the S1 scheme entitles 190,000 UK pensioners living elsewhere in the EU to healthcare provision on the basis that they are in receipt of a UK pension. The scheme also entitles anyone enjoying an income from a particular member state but living elsewhere within the EU and EEA countries to reciprocal healthcare. The S2 scheme authorises pre-authorised elected health and maternity care abroad for those away from their country of residence or those who choose to go away to receive that care. The S1 and S2 schemes are established under the same EU regulation. The patients’ rights directive enables patients from one EU or EEA country to access specialist or high-quality healthcare available in different member states of their choice and to claim reimbursement from the member state of which they are resident. The common feature of all these beneficial arrangements is that they are established under European law.
I repeat all the questions that the noble Baroness, Lady Wheeler, has asked. My concern is that there seems to be an aversion, which I would accurately describe as pathological, among members of the Government, and many advocates of Brexit in the Conservative Party’s ranks, to dispute resolution that depends on the European Court of Justice having a role that ultimately monitors the development of the law. It is important to ensure that, whatever arrangements we have for reciprocal healthcare, we have a sensible and practical dispute-resolution system, and one that develops in accordance with EU law under the regulations and the directive that are being replicated.
No one has come up with any suggestion at all that there is anything wrong with or unworkable about the arrangement whereby our legal rights to reciprocal healthcare are embodied in domestic law but are subject to an appellate arrangement that ensures consistency across the EU and the EEA under the aegis of the Court of Justice of the European Union. But if political dogma is to drive us to adopt an alternative, the Government need to start thinking now about what that alternative will be and how it will ensure the important objective of securing a body of healthcare law, consonant with the law of the European Union, that will apply to future arrangements with our partners as developments continue. I support this amendment.
The Earl of Dundee
My Lords, I will speak to Amendment 9 in this group, which, as the noble Baroness, Lady Wheeler, has indicated, differs from Amendment 6 in only one respect: through its reference to the European court. It is intended as a probing amendment.
It may have been implied that post Brexit we will not have recourse to the ECJ for arbitration or any other purpose. However, so far, that has not been clarified. Is my noble friend able to comment?
Could it be that we might come to use the ECJ for dispute resolution all the same, even if such were to be confined to reciprocal healthcare only? If not, how confident are we that, compared with the ECJ, an alternative system of arbitration will not be much more expensive—as the noble Baroness, Lady Wheeler, warns—and perhaps much less efficient? Who will the judges be? Where will adjudication take place? Will it be an open process?
If, as the Government have indicated in another place, the ECJ must keep a limited role in any case—this being for an accurate interpretation of EU law—might it then follow that it should therefore be retained more widely?
That would be the case not least if, as a result and compared with alternatives, this were to emerge as a cheaper and more convincing way for achieving competent arbitration in reciprocal healthcare disputes in the United Kingdom and the EU.
Lord Foulkes of Cumnock
My Lords, there is very little I can add to what my friend the noble Earl, Lord Dundee, said. If there is not a role for the ECJ, what system will there be? If there are disputes, how will they be resolved? I would like to hear what the Minister suggests.
Baroness Blackwood of North Oxford
My Lords, I thank the noble Baroness, Lady Wheeler, for moving Amendment 6 in the names of the noble Baroness, Lady Thornton, and the noble Lord, Lord Marks. I thank also my noble friend Lord Dundee and the noble Lord, Lord Foulkes, for tabling and speaking to Amendment 9. These allow me the opportunity to dwell for a moment on the importance of dispute resolution in the context of the Bill.
I am sympathetic to the spirit of these amendments and agree that it is of great importance that the Government establish robust dispute resolution in future healthcare agreements. We have every intention of being transparent and accountable as this develops. There are a number of ways in which dispute resolution might be approached in future reciprocal healthcare arrangements, but the majority would not require or benefit from regulations under the Bill. Dispute-resolution mechanisms that apply between two international parties should be set out in the agreement itself rather than in domestic regulations, since such regulations cannot bind another country’s Government. These regulations would be used to make any necessary domestic provisions for the agreed dispute-resolution mechanism.
I would, however, like to give further reassurance on the Government’s intention for future dispute-resolution mechanisms. There are different options for dispute-resolution mechanisms and it will be important to discuss these as part of future negotiations with other countries or the EU in respect of a future relationship.
To give some further context, as has been debated, the primary mechanism for resolving disputes on the withdrawal agreement is through consultation at the joint committee with the aim of reaching a mutually agreeable resolution. If parties are unable to resolve a dispute in the joint committee, either party can request the establishment of an independent arbitration panel to resolve the dispute. Prior to this, the parties can also agree to refer the dispute to independent arbitration. Future agreements for reciprocal healthcare may therefore seek to set out similar dispute mechanisms, but this is all subject to negotiation on an international rather than domestic level. This would be the case in a no-deal scenario as well as in a scenario post 2020.
In particular, noble Lords raised the point about clarity over the role of the ECJ in any future agreement with the EU. This is one point on which I believe the Government have been consistently clear, and I am happy to lay out our position. As we leave the EU, the direct jurisdiction of the European court will come to an end. However, as outlined in the political declaration, we have agreed that where a dispute raises a question of interpretation of EU law, the arbitration panel can refer this question to the CJEU for interpretation.
I reassure the Committee that, in resisting this amendment, the Government are in no way indicating that we do not place importance on dispute resolution; nor do we intend to conceal from noble Lords the approach that we may pursue. Instead, we resist this amendment as it would not be feasible or necessary to provide this level of detail regarding all possible dispute-resolution mechanisms in the regulations used to give effect to future negotiations and agreements. The correct place for this detail is in the international agreement itself, as I am sure your Lordships will agree.
The CRaG procedure will provide opportunity for scrutiny of those international agreements, which are legally binding and require ratification. We have been and will continue to be transparent about the agreements we reach. I am sure Noble Lords will agree that we abide by the rule of international law and take those commitments seriously. This means that we would be committed to upholding our end of any international agreement, including dispute resolution, and we would hold our partners accountable for doing the same.
I hope I have addressed the crux of the concerns raised and that the noble Baroness will withdraw the amendment.
Baroness Wheeler
I thank noble Lords for their contributions. It is hard to see how the ECJ will not have some kind of role in future health agreements. The contributions we have heard obviously underline the importance of dispute agreements being an integral part of healthcare agreements and the need for them to uphold the principles adhered to under the current provisions.
I thank the Minister for her response and her reassurances about transparency, accountability and future intentions. I hope she will reflect further on this important issue and provide fuller details as soon as possible on the dispute and appeals procedure and processes that will pertain. It is essential work that needs to be done and I hope we will be kept informed on it. I beg leave to withdraw the amendment.
Lord Lansley
“( ) Regulations under subsection (1) may not specify or describe persons who are not—(a) United Kingdom citizens;(b) in receipt of a United Kingdom state pension; or(c) eligible at the relevant time for free NHS treatment because they are ordinarily resident in the United Kingdom.”
Lord Lansley
My Lords, perhaps it is my turn now to try to mark the Government’s card on the use of these powers.
We are dealing with Clause 2 and the implementing regulations. There are a number of respects in the regulations under which the Government will have to specify to whom they apply, under what circumstances and what payments will be made. For example, in Clause 2(2)(a) and (e), provision is expected to be made about the levels of payment and how they are to be calculated, and the reimbursement levels. Under subsection (2)(b) the regulations may specify or describe persons in respect of whom payments and provision may be made. Who are these persons and what is the extent of the payment?
I freely acknowledge that the amendments are intended to draw out the Government rather than for final inclusion in the Bill. I think this will be useful in two respects. Amendment 7 seeks to discover who we intend to provide payments for outside the United Kingdom. I have included United Kingdom citizens but not all United Kingdom citizens. I remember that when I was in the Natal province of South Africa there were 250,000 UK passport holders; I am not sure what proportion of them are UK citizens but it may be a relatively large number, so being a UK citizen is clearly not a sufficient criterion.
What else does the amendment require? It requires too that a person is in receipt of the United Kingdom state pension. It is not intended to be UK citizens who are also in receipt of the United Kingdom state pension because the state pension is a consideration in itself. This is what the EU reciprocal healthcare agreement presently provides. If one is a UK pensioner living in Spain, France or the Republic of Ireland, one has access to healthcare in that country as if one was a resident of that country. The UK is regarded as the competent member state and the Government of that country can seek reimbursement from the United Kingdom Government, and do so. So receiving a state pension is a sufficient consideration in itself.
Interestingly, as I understand it, one does not have to be a UK citizen in order for that to be the case. This is one of the reasons why there is a relatively large number of UK-insured registered pensioners in Ireland. The Explanatory Notes state that the most recent number, for 2018, is 45,000. They are principally citizens of the Republic of Ireland who have worked in the United Kingdom, acquired a United Kingdom state pension and subsequently retired to the Republic of Ireland. They are covered by virtue of that.
The third consideration is whether the person in respect of whom the payment is made is eligible for free NHS treatment because they are ordinarily resident in the United Kingdom. In these bilateral agreements there is a certain discontinuity between the way in which healthcare is provided in this country and for whom, compared with how and for whom it is provided in other countries. Therefore, although the structure of the EU regulation looks straightforward—it is that wherever people go they should be treated as though they were resident in that country—in practice that does not mean that in every EU country everything is free in the way that it is in the United Kingdom.
This means that those who are ordinarily resident in the United Kingdom can apply, as I understand it—the Minister will doubtless correct me if I am wrong—for a European health insurance card. By virtue of possessing that—it gives them eligibility for NHS treatment—they can secure access to healthcare in the country they are visiting. I presume that that explains the figure in the Explanatory Notes, in the table on page 4, which says that there were 55,000 UK residents using EHIC in Poland in 2016. These are not by and large people who were born and brought up in the United Kingdom but people who have moved to the United Kingdom from Poland and are now visiting Poland with their European health insurance card.
When we are considering who we are paying for we probably have to think in terms of those people who are eligible for NHS treatment. When they go somewhere else, they should have access to the support that the United Kingdom Government give them. Amendment 7 seeks to show who we are describing and, by implication, to say that it would not extend to other people. We do not have responsibility for them so why would we not limit the regulation-making power to those people?
Amendment 8, also in my name, concerns the amount of payment. Proposed new paragraph (a) would not permit the payment to exceed what the cost of the healthcare would be in the country or territory where the healthcare was being provided. For example, if a country would expect to pay £1,000 for a treatment, it would not be permissible for it to charge the United Kingdom £2,000.
There is an issue here in relation to the Republic of Ireland, which I will briefly mention. My noble friend may wish to refer to it. I am not sure of the current situation but it used to be the case when I was Secretary of State that the amount we paid the Republic of Ireland, when averaged across the number of pensioners we paid for there, significantly exceeded two- or threefold—rather than an order of magnitude—the amount that we paid on average for pensioners in England. This begged the question: was healthcare in the Republic of Ireland that much more expensive? I do not think the answer was yes. The answer was that an agreement had been reached that had acquired a certain character over time. I initiated further discussions with our Republic of Ireland colleagues on this matter, which may or may not have led to a conclusion.
Lord Lansley
Yes. It might have been part of the backstop agreement in the old days, I do not know.
The second limb of Amendment 8 is to say that although care is free to NHS patients in the United Kingdom, the object of the support is to put people in the same position in other countries as if they were residents of that country. Of course, care is not free in other countries. In a significant number of EU countries—I think about half—some out-of-pocket expenses are required in relation to their healthcare provision, which would not necessarily be reimbursed. We should not expect to pay more than would be the case if somebody were a resident of that country. The expectation should not be that because the NHS is a free service here, there should be a free service everywhere.
Lord Foulkes of Cumnock
My Lords, it is encouraging that on this occasion the noble Lord, Lord Lansley, and I are on the same page. We agree in relation to this. I declare my interest as chair of Age Scotland, which is concerned with the interests of older people in Scotland. Amendments 18 and 19 deal with travellers with long-term medical conditions, and pensioners. These are particularly vulnerable categories in the case of the noble Lord’s amendments. We are suggesting that the current provision in respect of healthcare for UK citizens with long-term medical conditions travelling to the EU, and for EU citizens with such conditions travelling to the United Kingdom, should remain the same. This would create an essential legal commitment for those travelling to the European Union, who would otherwise have to face astronomical insurance charges that could price them out of travelling altogether.
There may be one or two Members of this House over the age of 75. If they have tried to get travel insurance to a non-European country, I think they will have found that very difficult. The banks often give insurance as part of having your account with them up to the age of 75, but after that Age UK or Saga—I again declare my interests—may be the only two companies or organisations which can provide insurance for such older people, particularly those with long-term medical conditions, so we are in a difficult area.
The cost of overseas medical treatment varies according to the country and the type of treatment needed but the costs for those with long-term illnesses are inevitably much higher. If we do not put arrangements in place, often families will go away without some of their older relatives being able to go. The costs add up extremely quickly; as we know from countries where we do not currently have healthcare agreements, they can be thousands of pounds. As we heard in previous debates, we do not currently enjoy reciprocal health arrangements with most of the world. This means that, at the moment, the EU and EEA countries present the only realistic travel option for many people with health conditions. It is a tragedy for them that they may not have that option after 29 March.
Take those who have kidney dialysis, for example. There are 29,000 who get kidney dialysis, usually on about three days a week. At present when they travel to the EU, they need to book slots in units near where they stay. The EHIC allows them to do that, but in the event of no deal, UK citizens would be required to pay for those slots. That could cost anything between €250 and €350 for each session—something like €1,000 a week, which will be impossible for most people. The Law Society of Scotland has reported that more than a quarter of disabled adults already feel that they are being charged more for travel insurance, or simply denied it, because of their condition. That is at the moment but it would be as nothing compared with the post-Brexit scenario. The Association of British Insurers has written to all of us, I think. It is supportive of this amendment, stating that it,
“would encourage detailed agreement with the EU to be sought in order to provide certainty for travellers with long-term medical conditions”.
If the ABI supports it, I would hope that the Government will, too.
I turn to healthcare provision for pensioners. There are currently 180,000 UK state pensioners and their dependants living abroad, as mentioned earlier by the noble Lord, Lord Lansley. They are mostly in Ireland, Spain, France and Cyprus. Under the S1 scheme, the UK provides healthcare for all those British people abroad. The S1 covers not only pensioners but some others with exportable benefits, such as frontier workers and posted workers, for an initial period. It is estimated that UK state pensioners and their dependants made up about 75% of the total cost of £468 million in 2016-17.
The UK Government have said on their website that the S1 will be invalid with effect from 30 March. But the website offers no sensible advice—I hope that the Minister will—or alternatives to UK pensioners resident in the European Union, who are totally dependent now on the S1 for their medical care. British in Europe, which is the coalition of UK citizens in Europe, said:
“The maintenance of this scheme from March 30th in the event of No Deal is absolutely vital for those it covers. It is quite literally their only life-line. It is their NHS. They moved to the EU confident that they would be entitled to healthcare for life, based on this scheme”.
In fact, when I was in France last weekend, some people talked to me about it and they were deeply worried about their future. This is understandably causing alarm among all these citizens.
After Second Reading, I received an email from a British citizen living in Germany who had written to the Department of Health and Social Care. I hope that the Minister may have seen and even replied to his letter. He said:
“Any decision by the German authorities giving us a token right to stay after a No Deal Brexit would be pointless if we did not have the financial means to do so”.
I heard a pensioner in France say that she would be in difficulties in this way as well. This Brit in Germany went on to say that,
“most pensioners will have paid national insurance contributions and taxes into the UK system all their working lives. I continue to pay all my taxes into the UK. For what? Even if I could afford an extra €400-500 premium monthly for public health insurance … I should not have to”.
Of course he should not have to. He continued:
“If I am unlucky enough to require hospital or medical treatment after 29th March, the UK Department will be receiving the relevant invoices or will have to provide details of how they will be reimbursing me for my national insurance contributions”.
He has paid for it and is getting nothing in return. He said:
“Otherwise, it would just amount to the UK Government pocketing our contributions”,
and he is right on that. He also said:
“UK expat pensioners are innocent people caught in the middle of this debacle. We can’t just go out next month and top up our income if we are a bit low in funds. Please don’t play political games with people’s lives and livelihoods. If we must leave the EU”—
incidentally, as everyone knows here, I do not think that we should—
“then at the very least, please ensure Citizens’ Rights are properly protected”.
In cases where UK residents are not eligible for permanent residency, there will in some countries be potential for a voluntary opt-in to public health insurance schemes but that will vary from state to state and generally involve additional costs. In Spain, for example, there is a public health insurance policy if you have lived in that country for more than five years. However, it costs €1,900 for those 65 and over and €700 for those under 65. These are costs which British citizens in Europe do not currently incur. For them, it will be another Brexit tax. These innocent citizens will be caught out in this way because of Brexit. The Government must offer them some hope; otherwise it will be a really sorry situation.
The Earl of Dundee
My Lords, in this group, I support Amendments 18 and 19, which were addressed by the noble Lord, Lord Foulkes of Cumnock. As with a number of earlier amendments, here there are two specifications, each of which serves a clear and useful purpose: giving assurance without applying any onerous impositions.
In their forthcoming negotiations, the Government will clearly seek to protect current arrangements, in this case including those affecting travellers with long-term medical conditions as well as those for pensioners.
Be that as it may, incorporating these categories in the Bill would give much-needed comfort to direct participants as it would to others desirous of protecting them. If that is a positive effect, there is really no downside. That is avoided through Amendment 18, which states:
“It shall be the objective of Her Majesty’s Government”.
Post Brexit, those words will encourage the Government to replicate what already obtains without forcing that eventuality against insurmountable difficulties if any such should happen to intervene.
Baroness Jolly
My Lords, at Second Reading I spoke about Northern Ireland. All noble Lords will be aware that there is no Assembly in Northern Ireland, which makes for difficulties. Notwithstanding that, for the past 20 years there has been two-way traffic of patients across the Northern Ireland border. There is a raft of cross-border successes including radiotherapy, ENT, cardiology, ambulance services which operate north and south of the border and the common travel area. I do not need to underline to noble Lords that any barrier at the border would be detrimental to healthcare, especially to children and vulnerable patients.
While international agreements are for the UK Government to agree, healthcare is a devolved matter, so as powers become repatriated from the EU after Brexit, the potential for overlapping competences will increase as well as the possibility for disagreement about how health issues should be managed. The Constitution Committee recommended that the Government set out how they intend to manage overlapping competences in relation to the Bill and other policy areas. Will the Minister clarify this? The amendment also outlines that the UK Government must ensure they use as a negotiating strategy continued access to healthcare in Northern Ireland and the Republic. There is also a danger that the Secretary of State will be able to overturn any Act of Parliament in history, including Northern Ireland legislation. This is theoretical, but the Bill should be judged on what it can do, not on what the Government of the day anticipate it will do.
I have a few questions for the Minister. Within the EU, we have had peace of mind knowing that our health needs are safeguarded if medical attention is required. Does the Minister agree that if a withdrawal agreement has not been ratified by exit day it is essential that UK citizens living in Northern Ireland can continue to access medical treatment in the Republic under a healthcare agreement so that this amendment is necessary? How is that best managed? The noble Baroness, Lady Thornton, talked about a strategy. Can the Minister confirm that in negotiations with the EU the common travel area is treated as a priority for healthcare in the island of Ireland? Is it intended to create a strategy or does one exist? With whom was it negotiated? Can Parliament see it?
Baroness Thornton
My Lords, I shall briefly reply to the remarks of the noble Baroness, Lady Jolly. I think the noble Lord, Lord Lansley, asked some very good questions and I looking forward to hearing the answers. These are genuine probing amendments to seek reassurance and understanding about the Bill. My noble friend Lord Foulkes and the noble Earl, Lord Dundee, spoke very well, so I do not intend to repeat their remarks.
I think I need to declare an interest as I have quite a large family in Cavan just the other side of the border in the Republic. They have asked me what I think is going to happen—not that I know the answer—and I imagine they are not alone among citizens of the Republic of Ireland and Northern Ireland in asking those questions because, as the noble Baroness, Lady Jolly, said, there is enormous cross-border traffic. We had a very useful briefing from the BMA, which firmly believes that continued access to medical care in Northern Ireland and the Republic of Ireland is very important. Cross-border arrangements have been established. They provide high-quality care for patients in a range of areas which the noble Baroness, Lady Jolly, mentioned, and it is important that those services are not destabilised during or after the Brexit process. We are seeking reassurance about some very practical issues regarding the treatment of children and other people in the Republic and in Northern Ireland.
Baroness Finlay of Llandaff
My Lords, I support the amendments in this group. They go to the very heart of the human aspect of healthcare provision. If you have a sick child who needs to go to a cardiology clinic, you may well have other children, and you need to be able to look after all of them as well as focusing on the one who is sick. Anything that endangers the services that have taken years to set up and which are known to be working well will have a major downstream effect not only on individual patients but on all others in the family when you have cross-border flow.
When we talk about people who are already ill travelling, quite often they are going to major family events or reunions. They are not going just for the sake of having a nice holiday. To deny them the ability to travel because the cost of insurance is prohibitive or because they will not have reciprocal cover could have quite severe downstream effects on the mental health and psychological welfare of some of the people who have been affected by it. While these are probing amendments, they go to the heart of why we need to have things in place.
Lord O’Shaughnessy
I shall follow the theme expounded by the noble Baroness, Lady Finlay, and talk about Northern Ireland and the Republic of Ireland. It will come as no surprise to noble Lords that with a name such as mine I have family in Ireland, but more importantly, I had several meetings with Irish Health Ministers during my time as Minister and I want to provide insight and reassurance from those conversations. Noble Lords will understand that during those conversations we had to discuss difficult issues—more challenging topics, shall we say—within the Brexit realm, but there was absolute clarity in every meeting about the intended outcome being continued cross-border delivery and co-ordination of healthcare. That could be done under the aegis of the common travel area and the Belfast agreement and there was no reason for the fact of the United Kingdom leaving the European Union to interrupt that. Clearly that needed to be established as well as the legal processes and basis, but that was deep, long-standing and productive work.
I wonder whether the Minister can update the Committee to give a flavour of where we have got to; it is not just about the Republic and the north, as people from the Republic of Ireland use tertiary healthcare services in the UK. This is an incredibly deep and long-standing relationship with huge benefits, and I am sure that the Minister will be able to confirm that we are at the right point in those discussions to provide reassurance. I can tell her that it has always been the intention of the UK Government, and it was clearly the intention of the Irish Government, to achieve that.
Perhaps I may reflect briefly on the amendments in the name of my noble friend Lord Lansley, which in a sense are about clarifying who benefits. I absolutely agree that that is necessary, and I am sure that the Minister will be able to respond.
I shall risk partially agreeing with the noble Lord, Lord Foulkes, and my noble friend Lord Dundee in the sense that they make a very strong case for our agreement with the European Union incorporating pensioners and those with long-term conditions, as indeed is the case now. I do not think that that needs to be in the Bill, not least because their amendments include the word “preserves”. Of course, these are ongoing and dynamic relationships that will change over time; nevertheless, that is the Government’s objective.
The noble Lord, Lord Foulkes, made a very compelling case for the Bill having a global reach when he talked about those with long-term conditions being unable to travel outside the EU because the arrangements are not in place. I hope that that is a sign that there might be agreement across the aisle about how it is necessary to formulate these agreements so that when our people travel to Australia, New Zealand, Serbia, Gibraltar, Guernsey and other places, they are able to do so with the same kind of reassurance with which they are able to travel in Europe now.
Baroness Blackwood of North Oxford
I offer my thanks to my noble friend Lord Lansley for his Amendments 7 and 8, to the noble Baronesses, Lady Thornton and Lady Jolly, for Amendment 17, and to my noble friend Lord Dundee and the noble Lord, Lord Foulkes, for Amendments 18 and 19. I also thank all noble Lords for a good debate on this group.
Each of the amendments seeks to provide clarity about the nature of the reciprocal healthcare agreements that we are seeking to implement after exit for the people who benefit from them. I understand that these are uncertain times and that people want to know that the UK Government are doing all they can so that there are no disruptions to people’s healthcare abroad after the UK exits the EU. I hope that noble Lords can all agree that this legislation is important, as it grants the public the confidence that this Parliament is working to ensure that people can continue to access healthcare abroad.
The Government’s intention is to continue current reciprocal healthcare arrangements with countries in any exit scenario—deal or no deal—as they are now until 2020. In any exit scenario, we are committed to the principle of equal treatment—that is, that UK nationals are not treated differently from local citizens when accessing healthcare in the EU. The Government are also committed to ensuring good value for taxpayers’ money and will carefully consider the associated costs of any future reciprocal healthcare agreement that they enter into. I think that that speaks directly to the points made by my noble friend Lord Lansley.
I agree with the sentiment of my noble friend’s Amendments 7 and 8, but I suggest that requirements such as the scope of people to be included in regulations and the principle of equal treatment are matters for the healthcare agreement. Questions around who should be eligible within specific reciprocal healthcare agreements and the affordability of those agreements would naturally be part of the scrutiny of any international healthcare agreement brought before Parliament as part of the CRaG process.
I just note, again, that the purpose of the Bill is to implement those agreements, not to define their parameters, as we do not yet know how the negotiations will proceed between now and the final agreements. However, my noble friend is absolutely right when he says that questions of eligibility, the principle of equality of in-country care, the impact on the NHS and value for the taxpayer will be at the heart of the Government’s consideration as they move forward with reciprocal healthcare. It is certainly our intention to be clear and transparent about this, not least because we are discussing the personal healthcare arrangements of UK citizens. As the noble Baroness, Lady Finlay, put it, this goes to the human heart of the Bill.
In addressing the specific concerns raised by the other amendments, I shall offer reassurances about some of the specific cohorts of people mentioned in the debate. First, I shall speak directly to Amendment 17 in the names of the noble Baronesses, Lady Thornton and Lady Jolly, and spoken to by the noble Baroness, Lady Finlay, and my noble friend Lord O’Shaughnessy. I can confirm that it is the UK’s negotiation strategy to continue UK-Irish healthcare co-operation regardless of EU exit. Both the UK and Ireland are committed to continuing reciprocal healthcare rights so that UK and Irish nationals can continue to access healthcare when they live in, work in or visit the other country.
To turn to a point raised by the noble Baroness, Lady Finlay, we also want to maintain co-operation between the UK and Ireland on a range of health issues, including planned treatment. We want people to be able to live their lives as they do now and for our healthcare systems to continue supporting each other. The common travel area provides an important context for this. The CTA holds a special importance for people in their daily lives and it goes to the heart of the relationship between these islands.
To answer the point raised by the noble Baroness, Lady Jolly, about overlapping competences, two amendments have been tabled on devolution, so we will be looking at that when we reach Amendment 42 and I will deal with that matter in more detail then.
With regard to Amendments 18 and 19 tabled by my noble friend Lord Dundee and the noble Lord, Lord Foulkes, the Government are acutely aware of how reciprocal healthcare arrangements benefit UK state pensioners and those with long-term conditions. Speaking as someone with a rare condition, when I travel, I travel at risk; I am not eligible for insurance. I understand this only too personally. Therefore, I thank the noble Lord, Lord Foulkes, for rightly raising the question of how effectively we communicate with those who currently rely on reciprocal healthcare arrangements. As well as speaking from a personal perspective, I can say that the Government are very conscious that it can be difficult to get insurance. We are working with Kidney Care UK to ensure that advice is sensitive to these issues and that people have the information they need to make the best decisions. We will discuss this issue in a lot more detail when we reach the group commencing with Amendment 20, but I want to offer the noble Lord my personal thanks.
The noble Lord also referred to a letter from a friend of his. I think that that would have gone to my right honourable friend the Minister with responsibility for Brexit. However, if he has not received a response, will he please let me know?
Access to healthcare overseas is obviously vital for the groups we have mentioned. The Government are seeking to maintain reciprocal healthcare rights for pensioners and those with long-term conditions through the “in principle” withdrawal agreement in a deal scenario, and in a no-deal scenario through our discussions with member states, the two EU withdrawal Act SIs that we have introduced, and of course through the powers in this Bill.
In responding to these amendments, I hope that I have made it clear that the Government’s negotiating position is to provide for the continuation of the current reciprocal arrangements and the ease of access to healthcare that these provide, especially to the people on the island of Ireland, those with long-term illnesses and pensioners. I hope that this reassurance addresses the concerns of noble Lords and that my noble friend will feel sufficiently reassured to withdraw his amendment.
Baroness Thornton
Would the noble Baroness mind repeating the part of her answer that referred to overlapping competences? I would be very grateful if she could do so.
Baroness Blackwood of North Oxford
I simply said that two amendments on devolution have been tabled, so we will be discussing that issue in a lot of detail when we reach Amendment 42.
I hope that my noble friend will feel able to withdraw his amendment.
Lord Lansley
I am very grateful to my noble friend. Her response has given reassurance. She is quite right to say that it will not be until such agreements are negotiated and entered into that we will have absolute clarity, but the commitment to the equal treatment principle is clear. I just hope that, equally, other countries recognise that. There is an awful temptation for them to think that healthcare is delivered in the United Kingdom on the basis of ordinary residence and that therefore a significant proportion of the citizens of those countries who go to live and work in the United Kingdom become eligible for NHS care. It might suit them to choose not to be the competent member state when it comes to the purposes of the agreement and paying for their healthcare in the United Kingdom. I hope that they will not be tempted in that direction but there is a potential discontinuity and indeed an imbalance between what we provide in the United Kingdom and what is provided in other countries. I suppose that, if I say nothing else, I should say that we should always guard against that and ensure that agreements are, as far as we can make them, properly bilateral and reciprocal. However, on the basis of the reassurance that my noble friend has been able to give me, I am happy to beg leave to withdraw the amendment.
Healthcare (International Arrangements) Bill
Tuesday 19th February 2019
(5 years, 10 months ago)
Lords ChamberRead Full debate Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 155-II Second marshalled list for Committee (PDF) - (19 Feb 2019)
Lord Patel
Lord Patel (CB)
My Lords, if my first amendment in the first group was a wrecking amendment, this is more like a slightly frivolous amendment. It seeks an explanation of the Government’s intentions and relates to Clause 3, which is headed “Meaning of ‘healthcare’ and ‘healthcare agreement’”. The clause states:
“In this Act—
‘healthcare’ means all forms of healthcare provided for individuals, whether relating to mental or physical health, and includes related ancillary care”.
That is fair enough—it includes mental and physical health—but there are conditions, such as some dementias, which are not progressive, as Alzheimer’s is, which could have mental and physical overlay. Does this include dementias or not? That puts a completely different context to the cost that might be involved. I seek clarification. When the clause states “mental or physical health”, does that include mental health or physical health that may also be overlaid on dementias?
Baroness Manzoor (Con)
My Lords, I thank the noble Lord, Lord Patel, for moving Amendment 11 and highlighting the importance of an appropriate definition of healthcare in the Bill.
We have adapted the definition set out in the Health and Social Care Act 2012 to include the additional element of ancillary care, as the noble Lord noted. This is to reflect where current arrangements provide for ancillary costs, such as travel costs, which do not strictly fall within the definition of healthcare. This would be for use in such circumstances as in France, where residents are reimbursed with a contribution to their travel costs when attending healthcare appointments. The definition of healthcare in Clause 3 ensures that we can implement arrangements that are based on the current EU arrangements, if negotiated in future.
The noble Lord indicated that this is a probing amendment and, as a former clinician, he will understand that limiting the definition to exclude certain conditions would be inappropriate, as it is not in the UK’s jurisdiction to determine what level of access to healthcare should be provided in another country. It is up to each country to determine what is available as part of its public healthcare system, as we do here in the NHS. The government definition would enable individuals to access healthcare on those terms under reciprocal healthcare agreements. The Government are committed to ensuring access to healthcare in line with current arrangements, and that UK nationals can continue to benefit from them, as they do now.
The Government have been clear during the passage of the Bill—this alights at the heart of the noble Lord’s question—that access to social care in England would not be provided through any reciprocal healthcare agreement. However, it is worth noting that some types of treatment related to dementia care can be medical in nature and may be provided by the NHS. As the noble Lord knows, in the UK, we treat all people with any physical or mental health condition. This demonstrates the complexity of the issues that narrowing the scope of such an important definition in the Bill may afford. I hope the noble Lord, Lord Patel, will therefore agree that the definition used in the Bill is the most sensible. However, I thank him—he is a noble friend—for raising this important issue. With the assurances I have given, I hope he will feel able to withdraw his amendment.
Lord Patel
My Lords, I thank the Minister for her comments. I raised this issue only to make sure that whenever such agreements are made, it is borne in mind that there may be implications for other conditions not directly regarded as mental or physical health conditions; for example, an increasing number of people have dementia. On that basis, I beg leave to withdraw the amendment.
Baroness Wheeler
“Annual report on the cost of healthcare agreements
(1) The Secretary of State must by the end of the period of 12 months beginning with the day on which this Act is passed and every year thereafter lay before Parliament a report setting out all expenditure and income arising over the preceding year from each healthcare agreement implemented under this Act.(2) The annual report laid under subsection (1) must include, but is not limited to—(a) all payments made by the government of the United Kingdom in respect of healthcare arrangements for healthcare provided outside the United Kingdom to British citizens;(b) all payments received by the government of the United Kingdom in reimbursement of costs of healthcare provided by the United Kingdom to all non-British citizens;(c) the number of British citizens treated under healthcare agreements outside the United Kingdom;(d) the number of non-British citizens treated under healthcare agreements within the United Kingdom;(e) any and all outstanding payments owed to or by the government of the United Kingdom in respect of the provision of healthcare outside the United Kingdom made before the passing of this Act; and(f) any and all administrative costs faced by NHS Trusts in respect of implementing healthcare agreements.(3) The information required under subsection (2)(a) and (b) must be listed by individual country in every annual report.”
Baroness Wheeler (Lab)
My Lords, we have pursued this matter in the Commons and this House because it is vital to be clear about how the Government will report annually to Parliament on the expenditure and income from each healthcare agreement implemented under the Act and what information will be provided. We are talking about potentially multiple and complex agreements, the costs and implications of which will not be known until the technical and operational provisions for the agreements are settled.
We have consistently been told by the Government that reporting processes are already in place. At Second Reading, the Minister assured the House that,
“all international healthcare agreements will be subject to the scrutiny route considered most appropriate by Parliament”.—[Official Report, 5/2/19; col. 1489.]
As the amendment sets out, our clear view is that a report should be produced,
“by the end of the period of 12 months beginning with the day on which this Act is passed and every year thereafter … setting out all expenditure and income”,
and the number of people treated under each healthcare agreement implemented under the Act by country. It should also detail the costs incurred by NHS trusts in administering these agreements and any outstanding payments owed to the UK.
Since it is not possible to know the detail of these healthcare agreements in advance, we cannot assess the likely costs and system implications. The detail of the impact assessment on costs is woefully inadequate. Its assessment of the annual cost of establishing reciprocal healthcare agreements of £630 million takes no account of inflation, future medical developments or fluctuations in exchange rates. Moreover, the impact assessment’s contention that the costs might even be less than the current costs is just not credible. Greater clarity on the cost of new healthcare agreements in the context of the presentation of a single report on the full range of schemes and arrangements is essential.
So far, the Government’s response has been to insist that existing reporting arrangements will provide sufficient scrutiny and detail, whether through the Public Accounts Committee, the National Audit Office, similar bodies or existing processes for reporting and scrutinising international treaties. However, none of those would provide the scrutiny and strategic overview required in the circumstances we face. The Minister has, however, provided a chink of light. In paragraph 41 of her letter to the Delegated Powers Committee, dated 30 January and published in its report of 14 February, she says that,
“the Government has heard the need for greater transparency in our administration and implementation of reciprocal healthcare arrangements”.
It also says that,
“the Government is committing to issue an annual written ministerial statement on the operation of reciprocal healthcare arrangements. This statement will be published as soon as is practicable after the end of each financial year to allow for accurate financial reporting”.
Can the Minister provide further details on this proposed statement?
For the sake of clarity and the record, the Minister commits in that letter that the statement will provide, first:
“Information on the expenditure and income of healthcare provision overseas as a whole. This would include aggregated expenditure/income for the annual year, as well as country by country sum of expenditure/ income”.
We are also promised:
“An update on the operation of arrangements. This statement could identify areas of successful operation or where arrangements are being improved to promote efficiency”.
Finally, we are promised that information will be included on:
“The strategic direction of reciprocal healthcare arrangements. This would be a statement on the future priorities for the current operation or a statement of where the UK is engaging with other countries to establish new arrangements”.
Certainly this is a step in the right direction towards the information and accountability needed, but can the noble Baroness answer some specific points concerning the Written Ministerial Statement that we have raised in our amendment?
Will it include full details of the payments made by the UK on healthcare arrangements for healthcare providers outside the UK to British citizens? Will payments received by the UK in respect of the investment costs of healthcare provided to all non-British citizens be recorded? Will the number of British and non-British citizens treated under healthcare agreements inside and outside the UK be included? Will any and all outstanding payments owed to or by the UK Government related to the provision of healthcare outside the UK be made before the passing of this Bill? Most important, as we heard in earlier amendments, can we be assured that any or all of the costs faced by NHS trusts in respect of implementing healthcare agreements will be shown, so that we can be clear not only on the costs but also that front-line staff are not having to spend additional time administering these schemes?
Our amendment would give Parliament its rightful role in scrutinising the schemes and, in particular, the Government’s delivery on collection and reimbursement. It is perfectly reasonable to expect healthcare agreements, once they have been reached, to be reported back to Parliament annually. Parliament cannot be expected to grant a blank cheque. An annual report on the costs and arrangements for the new healthcare agreements would considerably increase accountability within the systems, exploring changes in both the expenditure and the scope of healthcare provision arising from the loss of access to reciprocal arrangements after Brexit. I beg to move.
The Earl of Dundee (Con)
My Lords, I support Amendment 15, which proposes a new clause and has been moved by the noble Baroness, Lady Wheeler, on behalf of her noble friend Lady Thornton. As I indicated at Second Reading, in another place the Government may have slightly prevaricated on this issue by hiding behind the skirts of obvious current circumstances. While they say that the Bill should not prescribe a particular timetable for reporting back until new healthcare plans have come to light, they also claim that a number of reporting processes can anyway be deployed instead.
However, is there not a simple and necessary corollary to this? If we really want to increase confidence and transparency, why not just make sure that Parliament is given the relevant healthcare facts and figures at least once a year? If the Government should then wish to report additionally through other means, they are always free to do so.
Baroness Brinton (LD)
My Lords, I echo the points made by the two previous speakers and will just point to one further reason why having an annual report with this level of detail is important for the future of monitoring any reciprocal agreements. In 2016-17 the National Audit Office published its report on the recovery of the costs of NHS treatment for overseas visitors, which makes fascinating reading. It includes how the amounts recouped, whether by reciprocal agreement or direct payment by the patient, had increased and by which type of trust. It is clear that unless that sort of detail is monitored regularly, we will not understand the consequences of changes to reciprocal agreements. I propose to talk more about this report in the next group of amendments, but that transparency means that we need an understanding of exactly how having these agreements will work and if, as was apparent when the report was written, more than 22 trusts never reported any cases under the EHIC scheme. It shows that there is an enormous differential between trusts in how they collect money owed to the Government in one form or another.
Baroness Finlay of Llandaff (CB)
My Lords, perhaps I may add briefly to the very important comments made by the noble Baroness, Lady Brinton. I am concerned about not only how the data is collected in this country but how we can verify costs that may be charged to this country by other countries with which we have reciprocal arrangements. One of the difficulties with healthcare costs is the way they are calculated. There may be individual costs of bits of equipment and staff time, but then there will be overall management costs, which may simply be divided up among the number of patients or even in a more arbitrary way. I am concerned, and seek assurance from the Government, that verification procedures will be put in place to make sure that bills received by the UK fairly represent the terms of an agreement.
Baroness Manzoor (Con)
My Lords, in Amendment 15 the noble Baronesses, Lady Wheeler, Lady Brinton and Lady Finlay, and my noble friend Lord Dundee raise an important issue on the importance of financial reporting and facilitating parliamentary scrutiny, which I can assure noble Lords that the Government are committed to ensuring. As the noble Baroness, Lady Wheeler, said, this was also the subject of Labour Front-Bench amendments in the Commons and is an issue that the Government have carefully considered. I would like to reassure the noble Baroness, Lady Wheeler, and my noble friend Lord Dundee that—as the Minister, my noble friend Lady Blackwood, set out at Second Reading—the Government are committed to openness in managing public money. I understand the desire for transparency in this area. Noble Lords can be reassured that, as indicated by the noble Baroness, Lady Wheeler, there are existing robust annual reporting processes, overseen by the Comptroller and Auditor-General, that are used today and cover reciprocal health and other departmental spending.
Expenditure by the Department of Health and Social Care relating to EU reciprocal healthcare arrangements is currently published to Parliament in the form of annual resource accounts, and this will continue. This reporting allows for scrutiny by both Houses of Parliament, as well as the Public Accounts Committee. As now, the department’s future expenditure on reciprocal healthcare will be subject to the existing government reporting requirements. However, the Government have heard the need for greater transparency in our administration and implementation of reciprocal healthcare arrangements. The Government are also committed to transparency and the prudent use of public money. This is why we have committed to going beyond the current reporting requirements.
As explained by the Minister, my noble friend Lady Blackwood, at Second Reading, the Government have committed to issuing an annual ministerial Statement on the operation of the reciprocal healthcare arrangements. The noble Baroness, Lady Wheeler, asked what this ministerial Statement would include. I am afraid that I cannot comment on that, because it is subject to any arrangements we enter into with the countries concerned. The Statement will be published as soon as is practical at the end of each financial year. It will include, but will not be limited to, reporting on the expenditure and income of reciprocal arrangements as a whole. This could include aggregated expenditure and income for the year, as well as country-by-country sums of expenditure and income. It could also provide an overview of the operation of arrangements, identifying areas of successful operation. I hope that that allays the fears that the noble Baroness, Lady Finlay, expressed. The types of reciprocal agreement entered into will determine the content of the Statement, as I said. However, I am happy to meet the noble Baroness to discuss these details further.
I hope that the noble Baroness, Lady Wheeler, and my noble friend Lord Dundee feel reassured on our commitment to ensuring that there are sufficient and appropriate checks and balances in place on reciprocal healthcare agreements and agree that it is not necessary to set out in the Bill detailed provisions on reporting. In any case, as I said, the frequency and detailed content of a financial report should and could only be determined once reciprocal healthcare agreements have been made. Currently, the UK and other EU member states are able to collect data and report both nationally as well as at EU level, as provided for in the relevant EU regulations.
The department is currently working to ensure that UK nationals can continue to access healthcare in the EU in the same way as they do now, either through an agreement at EU level or through agreements with relevant member states. In either case, we will have to agree how eligibility is evidenced, the way that and frequency with which information is exchanged and the reimbursement mechanisms that will govern these new agreements. Each of these could differ from country to country. Such agreements will have to take into account the operational possibilities and limitations of each contracting party to ensure the smooth operation of reciprocal healthcare arrangements. This should include how NHS trusts in the UK can evidence eligibility for the treatment of non-UK citizens in the most efficient and least burdensome manner. Once these administrative details are known, the Government will be able to confidently speak to the specific measures that can be reported for each country. It is therefore unnecessary to set out detailed reporting provisions in the Bill for aspects that are subject to negotiations.
It must not be forgotten, however, that regardless of the specifics of any arrangements entered into, as with all departmental expenditure, reciprocal healthcare costs are and will continue to be authorised by the Treasury supply process and included in the department’s annual estimates, as well as being included in the annual resource accounts, which, as I said, are audited by the Comptroller and Auditor-General.
The noble Baroness, Lady Finlay, raised this issue, and it was raised earlier this evening. Let me be very clear that we do not need new front-line NHS processes to charge visitors and tourists from the EU, either directly or via reciprocal healthcare arrangements. We already have processes in place for non-EU visitors. After exit day, instead of identifying EU visitors for the purposes of EHIC claims, they will be identified for the purposes of whether they are chargeable directly or covered by a reciprocal healthcare arrangement, in the same way as non-EU visitors are currently identified. They will then be charged as appropriate.
I will end by saying this. As well as the auditing that will be done by the Auditor-General, as I have mentioned, the Government have committed to lay before the House an annual ministerial Statement, which will provide an additional check and balance on the Government’s reciprocal healthcare arrangements. I hope that I have a given sufficient assurances to noble Lords, and that the noble Baroness will feel able to withdraw the amendment.
Baroness Finlay of Llandaff
Can the noble Baroness confirm whether she is absolutely confident that the current systems in place to pick up those coming from abroad who should not be treated on the NHS and who should be charged for their care are 100% effective? How many of those systems are not effective? I am concerned that, with a potentially increased number of people coming into the system, any system that is already not functioning well will just fall over unless more people are put in to administer it.
Baroness Manzoor
My Lords, no one can ever be 100% confident, but we are putting in place robust charging mechanisms. Each trust has an accountable person to look at how charging is working. We are working very closely with NHS organisations to ensure that, where charging needs to take place, it is done effectively and efficiently.
Baroness Brinton
I want to go back to the issue of the report. The noble Baroness read out a litany of different places where different items would be reported. Is there some benefit to having it all in one place? I do not know about other noble Lords, but I would be quite content if the annual ministerial Statement incorporated what is set out in the proposed new clause in the amendment—the information that parliamentarians think they want. But I wonder whether all parliamentarians, or anybody outside, would know all the different places to look for the odd sentence here and there in reports once a year.
Baroness Manzoor
I fully understand the point made by the noble Baroness, Lady Brinton. I always believe in a simplified place, but those are the accounting rules that we have for government and therefore they remain. We have gone the additional mile by saying that we will place on record a ministerial Statement at the end of each financial year and that this will include the areas I have indicated.
Baroness Jolly (LD)
The Minister referred to arrangements being put into NHS organisations to make this happen—but what about GP practices? If you talk to GPs, they will tell you that they are in private partnerships. Presumably the Government are talking to the Royal College. The last time I had a conversation with GPs was five or six years ago, when they were totally averse to collecting money for their services. Can the Minister clarify whether things have changed?
Baroness Manzoor
I can clarify that NHS trusts are funded on the basis of existing agreements and will provide additional funding for any new agreements reached within the powers of the Bill. The same thing will apply to GPs where charges need to be made for people who are not entitled to that care and do not fall within the reciprocal arrangements that we have in place. The procedure would apply as it currently applies and such people would be charged as appropriate. If they are part of the reciprocal agreements that we have, whether bilaterally or multilaterally, such charges will not be incurred.
Baroness Wheeler
I thank the Minister for her response. Whichever way you look at it, it is a complex system for reporting information across a wide range of different sources. The point made by the noble Baroness, Lady Brinton, about having the information in one place as part of the ministerial Statement needs to be pursued, and I hope that the Minister will do that. I noted her agreement to discussing it or exchanging correspondence about it, but important matters need to be set out in the ministerial Statement—albeit that the information is presented elsewhere—in order to reassure and inform us about how these agreements are working. With that proviso, I withdraw the amendment.
Baroness Brinton
“Cost recovery
The Secretary of State must grant funding to NHS Trusts sufficient to meet the costs associated with administering healthcare agreements under this Act.”
Baroness Brinton
My Lords, I am moving this amendment on behalf of the noble Baroness, Lady Thornton, and myself.
Amendment 16 seeks to tackle the difficult issue of cost recovery—which we started to debate in the previous group of amendments—and states simply:
“The Secretary of State must grant funding to NHS Trusts sufficient to meet the costs associated with administering healthcare agreements under this Act”.
I refer again to the excellent National Audit Office report, Recovering the Cost of NHS Treatment for Overseas Visitors, which looks back over the preceding five or so years. It becomes apparent on reading the report the point at which Governments and then the NHS started to seriously recover the costs which are due.
However, within that, it is very noticeable that different trusts have different abilities and resources available to collect these costs. London has 44% of EEA visitors and records 35% of the value of all EHIC cases in this country. Even within that, only 10 of the 150 acute and specialist trusts accrued half of all charges made to visitors from the EEA. So we have a very small number of very large hospitals which are expert in collecting and recovering these costs. Ten trusts were responsible for more than a quarter of the amounts, just under the EHIC scheme. As I said, 22 trusts did not report any cases under the EHIC scheme at all.
The NAO report refers to the capacity of trusts to administer these schemes. In the debate this afternoon we discussed “usually resident” and how it is defined. After further digging it transpired that in the NHS there are 32 identifiers that clerks need to go through to establish whether somebody is normally resident in the UK. So already a large bureaucracy is being added on to an A&E department or any other part of a hospital.
The NAO report has a helpful flow chart to show where the pressures come within each NHS trust in working out cost recovery. While one could wish it were otherwise, one can understand how small, hard-pressed district hospital trusts struggle to cover the administrative costs to make those decisions and then to charge.
Baroness Finlay of Llandaff
I should declare my interest as a past president of the BMA and a current BMA member, because I would like to refer to its brief on this. The BMA has indeed highlighted the potential problem, as the noble Baroness, Lady Brinton, set out, of having 27 reciprocal arrangements all containing different terms. This will inevitably put pressure on front-line NHS staff, who will be expected to be familiar with and administer these different arrangements.
There is an additional problem that the association has highlighted, however: if the 190,000 UK state pensioners who are signed up to the S1 scheme and living in the EU need to return to the UK to receive care, health services will face drastically increased demands and costs. The Nuffield Trust has calculated that if those individuals return to the UK for treatment, that could incur additional costs to health services of between £500 million and £1 billion per annum, and require an additional 900 hospital beds and 1,600 nurses to meet demand. That is quite apart from the additional medical and allied healthcare professional staff, and all the clerical and managerial staff. The potential pressure on services, which are already stretched to bursting point, cannot be ignored.
As the noble Baroness, Lady Brinton, said, the difficulty is in how the money is recouped, where it goes and who can use it, as well as in accounting for it. While we are talking about cost recovery, I shall pick up on general practitioners. It is difficult to know where that money goes and to whom it is reported. If it is the clinical commissioning group, would it be expected to bill the person, who may well have disappeared from the UK by the time any such processes go through? Receptionists are not familiar with billing. The complexity of administering a multiple arrangement scheme cannot be ignored.
My final question goes back to one I have raised previously about the devolved Administrations. Given that there are now different healthcare systems in the four countries of the UK, each administered and managed slightly differently, what discussions have the Government had to date about recouping costs both as they stand and in the event of a large influx of pensioners currently living and receiving treatment abroad?
Baroness Thornton (Lab)
My Lords, I knew that the noble Baroness, Lady Brinton, would make a very thorough job of moving this amendment, so I was not just being lazy but was making sure that the Committee got the best person to introduce it. The noble Baroness mentioned the BMA’s brief, to which I shall refer. While the amendment refers to NHS trusts, any funding incurred by primary care providers in administration of the new healthcare arrangements should also be met. As a member of a CCG, I think that probably means CCGs. That is quite important.
Baroness Manzoor
My Lords, I am grateful to the noble Baronesses, Lady Thornton, Lady Brinton and Lady Finlay, for tabling Amendment 16 and providing the opportunity to address two important issues: the processes we have in place to recover costs from overseas visitors and how we support the NHS to deliver services to people covered by reciprocal healthcare agreements. As the noble Baroness, Lady Finlay, noted, there is complexity in the system, but this amendment proposes a new obligation upon the Secretary of State for Health to provide sufficient funding to the NHS to administer reciprocal healthcare agreements implemented using the powers in the Bill.
I reassure all noble Lords that the Government are committed to ensuring that the NHS is funded and fit for the future. Through the NHS long-term plan and the historic commitment of an extra £20.5 billion a year, we are working to make sure the NHS is fit for future patients, their families and NHS staff.
The noble Baronesses, Lady Brinton and Lady Finlay, raised two issues. They asked whether there will be 27 different agreements that require implementation. Our intention is to reach agreement with the EU so that there will be one agreement to implement. If agreements are negotiated with individual countries, it will depend on the content of the agreement being implemented, but I stress that we do not need new systems to implement them. We are not expecting costs to be much greater than at present. Every hard-working taxpayer plays a part in supporting our much-loved NHS, so it is only right that overseas visitors also make a contribution to the health service, whether that be individually, through the immigration health surcharge or through their Government reimbursing the treatment costs incurred.
The NHS has been responsible for delivering the current reciprocal healthcare arrangements for as long as they have been in operation and it has been sufficiently resourced to do so. Funding is distributed to NHS providers as part of general allocations. These support all the administrative costs associated with patient care, not just any costs associated with administering reciprocal healthcare agreements. That applies to clinical commissioning groups, which then apply funding to GPs.
We have robust administrative processes in place to recover costs from overseas visitors. These are managed by overseas visitor managers and their teams, who identify whether visitors are chargeable or are directly covered by an existing reciprocal healthcare arrangement.
Perhaps I may further reassure noble Lords that there are benefits for NHS providers who deliver services to those currently covered by EU reciprocal healthcare agreements. NHS providers receive an EHIC incentive payment of 25% of the tariff for the treatment provided to an overseas visitor covered by an EHIC. Trusts can reinvest these incentives in front-line services, meaning that we can continue to protect the most vulnerable in society and ensure that everyone receives urgent care when they need it. This is a scheme that we would certainly want to continue.
The Government have also made significant progress on charging overseas visitors and recouping funds where appropriate. However, as I indicated on the previous amendment, we want to go further—we are not quite there yet. Since 2015, we have increased identified income for the NHS with reciprocal arrangements by 40% and directly charged income has increased by 86% over the same period. Although we are satisfied that we are moving in the right direction, as I said, there is more to be done. That is why we are working with NHS Improvement to drive further improvements in the practice of cost recovery. A bespoke improvement team is working with over 50 NHS trusts to provide on-the-ground support and to share best practice.
I understand and commend the spirit behind this proposed new clause—we all want to ensure the best for our NHS—but it seems that it would replicate existing duties on the Secretary of State for Health. As the noble Baroness is aware, the Secretary of State is under an existing duty to promote a comprehensive health service, available to all who need the support that it provides. This duty encompasses ensuring that the NHS is funded for the services that it provides. Funding to provide treatment for overseas visitors is, and will continue to be, distributed to NHS providers as part of general allocations.
Further, I reassure noble Lords that any future reciprocal healthcare agreements that the UK implements through this Bill will be subject to thorough consideration and will need to take into account the existing duties on the Secretary of State to promote a comprehensive health service available to all who need the support that it provides.
I hope that my explanation has provided further reassurance to noble Lords that the Government are absolutely committed to protecting the NHS, and that the noble Baroness, Lady Brinton, will feel able to withdraw the amendment.
Baroness Brinton
I am grateful to the noble Baronesses, Lady Finlay and Lady Thornton, for their contributions to this brief debate, and indeed to the Minister for her response, even though I am somewhat disappointed by it. The point that all three of us were trying to make is that we are asking not for new processes but for reassurance that the costs will be reimbursed to trusts. As the Minister said, there is a general allocation, and one thing that we have discussed repeatedly since Second Reading is that there is a strong likelihood of substantially more non-EEA-type payments if there is a no-deal Brexit or if there are loads of different reciprocal arrangements that will make life very complex for hospital trusts and primary care providers.
As a brief illustration, currently when a non-EEA patient pays, half of it goes to the commissioner and half goes to the trust. The commissioner then pays half of it back to the trust and so it goes on. It is a complex arrangement. If we suddenly have 27 different arrangements just to cope with life after the EEA or with a no-deal Brexit, I can see that it will be very complex. It would be easy for NHS England—and, indeed, the Government—to miss trusts being unable to cope with the deluge of different arrangements they have to support.
At this stage, this is very much a probing amendment. I am happy to withdraw it this evening but I reserve the right to bring it back in the future. I beg leave to withdraw the amendment.
Baroness Thornton
“Duty to provide information about changes to reciprocal healthcare arrangements
(1) As soon as this Act is passed, the Secretary of State must prepare guidance to assist—(a) British citizens; and(b) EEA and Swiss citizens living in the United Kingdom;in understanding the effect of the withdrawal of the United Kingdom from the European Union on reciprocal access to healthcare, and publish the information on a website.(2) The Secretary of State must take all reasonable steps to provide a copy of the information to any bodies appearing to the Secretary of State to represent the interests of those who may be significantly affected by changes to reciprocal healthcare arrangements including—(a) NHS Trusts;(b) the Royal College of General Practitioners;(c) British embassies in the European Union; and(d) other bodies the Secretary of State considers appropriate.(3) The information must include—(a) the date on which current reciprocal healthcare arrangements end;(b) the date on which any new agreement is expected to come into effect;(c) information about where people can access help and advice about healthcare costs; and(d) any other information that the Secretary of State considers appropriate.(4) In making arrangements for the purposes of providing information under this section the Secretary of State must—(a) have regard to the needs and characteristics, in respect of the provision of information, of persons to whom the information is to be provided; and(b) consider whether, having regard to those needs and characteristics, it is appropriate to provide any of the information to any of those persons otherwise than in the way in which it would normally be provided.”
Baroness Thornton
My Lords, in moving Amendment 20, I will speak also to my Amendment 21 and to Amendment 43, having notified the Minister that I intended do so. These amendments are all concerned with protecting the interests of individual travellers, residents and their families who depend on reciprocal healthcare arrangements and could be affected by the UK leaving the EU without an agreement in place; so all three amendments are about leaving with no deal.
Amendment 20 addresses the duty to provide information, Amendment 21 addresses the issue of costs to British citizens, and Amendment 43 prevents the Secretary of State making regulations on healthcare agreements unless there is a withdrawal agreement with the EU, or the House of Commons has explicitly approved leaving the EU with no deal—the Minister might be familiar with this amendment since it has appeared in other Brexit legislation.
If we crash out, it seems unlikely that the necessary deals with 27 countries to provide reciprocal healthcare payments will be in place; the Minister admitted as much at his briefing, which we attended, and he suggested that we should get health insurance. It might take time to sort out our healthcare, so we have tabled three amendments which we hope will assist this process.
First, we believe that the Government should publicise the changes and provide guidance to people about the impact on their lives, including insurance requirements. That means more than just posting something on the NHS England website. The amendment does what I know that Ministers—and certainly Bill teams—do not like: it puts down a list of places where the changes should be publicised.
Secondly, the Government should have arrangements in place to reimburse British citizens for healthcare costs incurred outside the UK—which would previously have been covered by EU arrangements—for a period of up to six months, until the new healthcare agreements come into effect. This is an obvious, basic protection that should be in place to avoid the risk that our citizens are charged for healthcare because of even two or three weeks of turmoil or churn while agreements are not in place.
Thirdly, Amendment 43 is about how to safeguard reciprocal healthcare in a no-deal situation. It mirrors the amendment that we tabled to the Trade Bill and is about accountability to Parliament. I will be interested to receive the Minister’s reaction to these three proposals, which are about protecting people’s interests in a no-deal situation. I beg to move.
Lord Lansley (Con)
In so far as the noble Baroness has referred to Amendment 43, which we might otherwise reach on Thursday, I completely understand the motivation, which we have seen elsewhere, to make no deal so intolerable a prospect that one does not want to enter into it—I do not want us to do so and neither do the Government.
If we were to do the responsible thing and pass this legislation before 29 March, so that we have it in place, but with such an amendment within it, that would be extremely ill-advised. If there were no memorandum of understanding with other countries, leading to a bilateral agreement, the result may be that even the regulations that are going through the House would not enable the Secretary of State to have the power to pay for healthcare for UK citizens in other European countries. If we are going to give people reassurance—the Government have an obligation to do that and Amendment 20 says we should do that—we can do so only on the basis of the law as it is. If this legislation were to have such a poison pill added to it, I am afraid that it would make it impossible for civil servants to give the degree of reassurance that we should be giving people.
Baroness Brinton
I am grateful that I am able to follow the noble Lord, Lord Lansley, because I think the point is made that this is very much a probing amendment. If the Minister gave reassurances that the contents of the amendment would be the practice followed by the Department of Health and Social Care, many of us would be reassured.
We spoke earlier about kidney patients on dialysis, but let me give another illustration of a family very close to me, who have a two year-old who requires an overnight ventilator. If they want to go anywhere outside the EEA, the cost of medical insurance for a small child on an overnight ventilator is more than the flights for the entire family—so they go to Europe. At the moment, they cannot book their summer holiday because their insurers say that they do not know or understand the arrangements, and of course we have no idea whether there will be any reciprocal arrangements. Families such as this will want access to advice very speedily if we are in the unfortunate position of a no-deal Brexit. By the way, following the collapse of the Malthouse compromise, I gather that the EU has said today that it is much more convinced that there will be a no-deal Brexit. Let us hope that it is wrong.
Although I understand the concerns of the noble Lord, Lord Lansley—the noble Baroness, Lady Thornton, may have different views—it would be good to have reassurance from the Minister that many of the things proposed in these amendments are exactly what the department will do and that it will be able to reassure the House and the wider public in the next few weeks.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)
I am very grateful to the noble Baroness, Lady Thornton, for Amendments 20 and 21. As the noble Baroness, Lady Brinton, has just said, I very much hope that I can reassure the Committee on these points. The noble Baroness is absolutely right that within the broader debate on the Bill, where noble Lords have valid concerns, we cannot forget that the Bill is being brought forward to protect individuals. These points were also raised earlier, by the noble Baroness, Lady Finlay, and the noble Lord, Lord Foulkes.
Speaking first to Amendment 20, I wholeheartedly agree with the spirit of the noble Baroness’s amendment. It is absolutely right that the Government provide individuals with relevant, timely information relating to their healthcare access after EU exit. The Government have already taken steps to inform individuals of what could happen to reciprocal healthcare in a deal or no-deal scenario. As a matter of course, we will continue to provide up-to-date information to individuals as soon as it becomes available.
The Government have issued advice via GOV.UK and NHS.UK to UK nationals living in the EU, UK residents travelling to the EU and EU nationals living in the UK. The advice provided on these websites explains how the UK is working to maintain reciprocal healthcare arrangements, but this depends on negotiations as they proceed. It also sets out options on how people might access healthcare under local laws in the member state they live in if we do not have a deal or a bilateral agreement in place, and what people can do to prepare, although we are determined that this will not happen. These pages will be updated as information becomes available. Our advice to people travelling abroad must continue to be to purchase travel insurance, which we already recommend, even though I recognise the challenge for those who have long-term conditions—in this debate, I have already expressed the challenge I myself experience.
Baroness Brinton
The Minister may recall that I pointed out at Second Reading that the Liberal Democrats had done some mystery shopping for travel insurance. It is not just about insurance for people who have special medical needs. Most of the insurers approached said they could not yet provide anything, because their insurance amounts would be based on whatever the final outcome is. Most of them, including very large insurers, were not prepared to tell potential travellers that they would cover them at all. The situation is much more serious and affects more than a handful of people with difficult medical conditions.
Baroness Blackwood of North Oxford
I am aware. This is a really challenging point. That is one of the reasons why we are determined to get the powers in the Bill, those in the SI and the best possible reciprocal healthcare arrangements through. That is one of the reasons why I am working so hard to make sure that we can strengthen the Bill as much as possible.
In addition to the point I just made, the Government are in constant dialogue with system partners throughout the health and social care system, including NHS England and NHS trusts, to ensure that the UK is prepared whatever the outcome of EU exit. I know noble Lords just had a debate on this on the previous group of amendments, so I will not take up too much time on it now. Looking to our expat communities in the EU, the DHSC and the FCO are working together to ensure that embassies and consular services can provide individuals with relevant information and support regarding their healthcare entitlements after EU exit, especially those who might need individual and specialised support.
I fully support the spirit of the amendment that the noble Baroness, Lady Thornton, tabled. I will ensure that we continue to take those actions to provide individuals with the information that they need. I hope that she has been reassured by this. If the noble Baroness, Lady Brinton, has any further concerns on this point I would be very happy to meet her and discuss detailed ways in which we can improve the service we are providing, given the situation in which we find ourselves.
Amendment 21 suggests using the Bill to offer financial support for British citizens to help them with healthcare costs should the UK leave the EU without a deal and without other agreements in place. It is important that I am clear about what support the Government can realistically offer, and why we are unable to go quite as far as the noble Baroness proposes.
The Government’s intention is to continue current reciprocal healthcare arrangements with member state countries in any scenario as they are now until 2020. However, healthcare for UK nationals who live in or visit other countries is ultimately for the individuals themselves or foreign authorities. We recognise that the UK can play an important supporting role by brokering reciprocal healthcare agreements, which we very much hope and intend to do. We have made very clear and generous offers to all countries in the EU and EEA, and Switzerland, to maintain reciprocal healthcare arrangements for the transitional period, and we will be negotiating for the period after that. This means maintaining reciprocal healthcare rights for pensioners, workers, students, tourists and other visitors in line with the current arrangements, including, as we have already debated, reimbursement of healthcare costs until 2020. But this depends on decisions by member states. People’s access to healthcare could change; we must be honest and open about that. Naturally, there is concern about what this will mean and what should be done. This is an uncertain situation and I very much appreciate that it will be difficult for people. I hope I can be a little bit reassuring about the actions we have already taken.
The 27 EU member states are all countries with universal healthcare coverage. In general, people would have good options for obtaining healthcare, providing they take the appropriate steps. After exit, and should there be no bilateral agreements in place, which we do not expect, the vast majority of UK nationals who live or work in the EU would still have good options for accessing healthcare. Depending on the country, it will generally be possible to access healthcare through legal residency, current or previous employment, joining a social insurance scheme, or contributing a percentage of income, as other residents need to. Less frequently—we have looked into this—people may need to purchase private insurance. People who return to the UK will also be able to use the NHS.
We recognise that this means a change and, in some circumstances, additional expense for UK nationals living abroad. It is to avoid this that we are offering not only to continue existing reciprocal agreements but to consider expanding our reciprocal healthcare arrangements outside the EU.
Speaking directly to the noble Baroness’s amendment, the Government will not be able to unilaterally fund healthcare for all UK citizens who live in or visit the EU. There are good reasons for this. It would be a new scheme that would cater for hundreds of thousands of people in up to 30 countries. It would place huge financial and administrative burdens on NHS bodies, assuming they made payments promptly and in-year. The technical challenges, including the risk of fraud, would be considerable. It would make it less likely that individuals would take the steps they need to, even if they were able to. It would undermine our approach with member states in negotiating reciprocal agreements. We do not think that is the right approach, but I reassure the noble Baroness that while these are difficult decisions and we cannot accept her amendment, we are taking important steps in addition to the reciprocal agreement negotiations that I have discussed.
We have mentioned the statutory instruments under the withdrawal Act that, in a no-deal scenario, can fund healthcare for people who are in the middle of treatment on exit day for up to one year. That assumes that the member state is willing to treat them and accept reimbursement; we have been discussing this. They would also enable some residents to recover costs if they are charged.
Baroness Thornton
I thank the Minister for that very comprehensive answer, and thank other noble Lords, including the noble Baroness, Lady Brinton, for speaking up.
These are important questions because people are concerned about what will happen to them and to their families if we do not have an agreement. I am reassured by the answer on Amendment 20; it sounds as though the Government are already having comprehensive discussions. On Amendment 21, I can see that setting up a new system for payments would be very difficult, and I will read what the Minister has said. There and on Amendment 43, I am interested in what the gaps might be, so I will read and consider what she has said. Now that I have spoken to Amendment 43, I will not be moving it as the last amendment in the whole business. With that, I beg leave to withdraw Amendment 20.
Lord Patel
Lord Patel
My Lords, I shall speak to Amendment 22, in my name and that of the noble Lord, Lord Kakkar, and Amendment 25, which is in my name. Both relate to personal data, and seek assurance from the Government that, whatever processes are put in place, they will respect the need for confidentiality and trust. While I absolutely recognise the value of transferring individual health data when the patient is receiving treatment, and the need to do so, it is also important that the Bill provides powers to protect personal and health data.
Access to personal health data should be limited to healthcare purposes. Currently, the General Data Protection Regulation imposes restrictions on the transfer of data, which we may not have after we leave the EU. A separate issue is the definition of “authorised persons”, which, when they gave evidence, both the BMA and the Academy of Medical Royal Colleges referred to as a concern.
I am also unhappy about the mechanisms that will operate for patients to consent to having their data transferred. Amendment 25 refers to Clause 4(6), relating to data processing. It says:
“In this section—‘authorised person’ means”.
Paragraphs (a) to (e) then define who the authorised people might be. Amendment 25, which I tabled only to get an explanation from the Minister, suggests that paragraph (e) should be deleted. It says that,
“any other person authorised, or falling within a description of persons authorised, by regulations made by the Secretary of State for the purposes of this section”.
That sounds too wide to me. In this country we have clear protocols and guidelines about who should be transferring patients’ data and to whom. It is not to anybody not clearly defined as an authorised person. I beg to move.
Baroness Jolly
My Lords, the NHS in England has a long history and a good record of data governance. In 1996, Fiona Caldicott was called in and asked to look at the whole issue of NHS data. It must be said that the data was not as digital then as it is now. Her review came up with a group of principles—I think there were seven—and that was then followed by Caldicott 2. More recently, there has been another look at NHS data and we are now down to three principles. It is not just the Caldicott guardians. When he was Secretary of State at DCMS, Matt Hancock announced the data ethics framework and then we had GDPR. There is a really rich background of caring for patients’ data.
The provisions in the Bill authorising the sharing of data appear wide—that is probably the best way to put it. Clause 4(1) provides:
“An authorised person may process personal data held by the person in connection with any of the person’s functions where that person considers it necessary for the purposes of implementing”,
the Act. The words,
“that person considers it necessary”,
are a very wide formulation for the exercise of a function such as this. They seem designed to make a challenge in court almost impossible.
Among others defined as an authorised person is a “provider of healthcare”, so the authority extends beyond the NHS to all organisations that provide NHS care but might not be NHS organisations. So it would include commercial organisations as well as public authorities. Can the Minister confirm this and give an example, to better understand how wide the scope is?
Moreover, it is left to bodies such as the NHS to define for themselves the level of staff who should have this degree of authority. Will the Minister confirm how data is handled with devolved states and within the island of Ireland? How are we intending to communicate clinical data with organisations in the EU, and in the rest of the world, once the Bill has been enacted? Are there issues about shared datasets? We are fairly confident about sharing research data, but clinical data will be absolutely key here.
Baroness Thornton
My Lords, I have an amendment in this group. I support the noble Lord, Lord Patel, and the noble Baroness, Lady Jolly. Clause 4 of the Bill provides the legal basis for processing personal information and data about patients to facilitate patient information and payments for reciprocal healthcare after Brexit—whether as part of an agreement with the EU, an agreement with a country outside the EU or in connection with contingency plans arising from a no-deal scenario. It also seeks to ensure that the key safeguards which should always be at the heart of systems that use and exchange patients’ sensitive personal and medical data are in place. The noble Lord, Lord Patel, is right to press this issue. It was almost the first thing that he and I spoke about when we talked about the Bill, which made me look at and ask why he and other noble Lords, particularly those in the medical profession, were very concerned about this.
At Second Reading the Minister acknowledged that there were deep concerns raised by noble Lords on data processing provisions in Clause 4, and promised to address them—but unfortunately she ran out of time on that day. We look forward to her catching up with that. We know that the noble Baroness has special expertise and experience in this field, so I look forward to hearing her talk about how she envisages the necessary robust standards, security and safeguards applying in post-Brexit healthcare deals with the EU and the rest of the world, and how those will be achieved.
In the Commons, my colleagues pressed this matter with the Minister, Stephen Hammond. He gave an assurance that the powers to access personal data would be limited, and committed at the time to provide a briefing. I wanted to raise that with the Minister—my colleagues in the Commons certainly have not received that, but I thought that she might raise it with her colleague and see what the briefing might have said. I am sure that we too would be interested to receive it.
When I raised this issue at Second Reading, I mentioned that I had been in touch with the National Data Guardian for Health and Social Care, who, as we know, has a vital role in ensuring that confidential healthcare data is used and shared appropriately in protecting the high standard of confidentiality. Pursuing that question is whether the Minister has been in touch and sought her guidance on this matter.
Lord O’Shaughnessy (Con)
My Lords, this has been an important discussion on an area that is, of course, of growing concern not just for people in Parliament but for the general public. Noble Lords will also know about my interest in this issue; we have had many discussions over the last few years about it. It is critical that we get this right, to allay any fears—because there are fears that attend to the use and movement of data for various purposes.
The noble Baroness, Lady Jolly, makes the point in her amendment about the Caldicott principles and so on. I was pleased from the Government’s point of view to be able to bring the National Data Guardian on to a statutory footing, as well as other measures that we took to provide that level of reassurance. My understanding is that these are all part of the scaffolding around the Data Protection Act, which is the GDPR as put into our legislation. They are a way of translating the general provisions of that into healthcare purposes. I ask the Minister to confirm that, because the Bill clearly states that the Data Protection Act is the governing piece of legislation here, it therefore follows that things such as the NDG, the principles and other things apply. They, in effect, derive from that and apply to all aspects of healthcare, including reciprocal healthcare.
Baroness Jolly
We are talking about exchanging health datasets, but in this world we are talking about our EU partners, the EEA and whoever else in the world we make a healthcare arrangement with. Are there mechanisms—this is a question I do not know the answer to—whereby datasets can be standardised so that any method of recording healthcare information that we might use would be recognisable to somebody in the States, Canada or France?
Lord O’Shaughnessy
That is an incredibly important point and it goes to the question that I was about to ask my noble friend. My reading of it is that it will not be possible for us to make reciprocal healthcare arrangements that involve the flow of data with another country unless we deem that country to be adequately complying with the GDPR. That is absolutely right and it is a high bar. It does not just provide a degree of regulatory compliance and standardisation; there are also international healthcare codes that underpin it, as the noble Baroness will know. It would be useful if my noble friend could confirm that, because it is clearly a really important point that will, in a sense, allay some of the fears that have been raised tonight about just how the powers in the Bill, once they extend beyond the European Union, Switzerland, the EEA and so on, might be used.
Baroness Manzoor
My Lords, I thank the noble Lords, Lord Patel and Lord Kakkar, even though the latter is not here, for Amendment 22, the noble Baroness, Lady Jolly, and the noble Lord, Lord Clement-Jones, for Amendment 23, the noble Baroness, Lady Thornton, for Amendment 24, and the noble Lord, Lord Patel, for Amendment 25. Each amendment allows me to speak to strict data processing protections in the Bill.
As my noble friend Lord O’Shaughnessy said, data processing is an important element of operating effective complex reciprocal healthcare arrangements, such as the current arrangements we have with the EU. I reassure noble Lords that the Government are committed to the safe, lawful processing of people’s data in healthcare. Clause 4 provides a lawful basis for the processing of data in respect of future reciprocal healthcare arrangements that are outside the EU regulations mechanism. Data processing will be permitted only for the limited purposes set out in the Bill.
Under the Bill, personal data can be processed only in accordance with UK data protection law, namely the Data Protection Act 2018 and the general data protection regulation, which will form part of UK domestic law under the EU withdrawal Act 2018 from exit day. The purpose of including data provision in the Bill is to provide a transparent basis for the processing of personal data for the purposes of funding or arranging healthcare abroad. That is it, my Lords.
On this point, I address Amendment 22, tabled by the noble Lords, Lord Patel and Lord Kakkar, which would limit the scope of personal data processed to data directly related to health. Although I appreciate the sentiment behind the amendment, it would unfortunately undermine the successful operation of reciprocal healthcare arrangements. Personal data is defined in the GDPR as data relating to a living person who can be directly or indirectly identified from that data. Examples include someone’s name, date of birth or residential address.
For example, the current European health insurance card scheme allows for UK nationals to access emergency and needs-arising care when travelling, working short-term or studying in the EU. To establish someone’s eligibility for an EHIC, we need first to establish that the person is living in the UK on a lawful basis and properly settled. Were persons authorised under the Bill unable to process data other than that strictly related to health, they would be unable to make the checks to ensure that those receiving healthcare abroad were entitled to it. Allowing authorised persons to process non-health-related personal data also ensures that we can prevent misuse arrangements and limit fraudulent activity.
The noble Lord, Lord Kakkar, and others, expressed concern at Second Reading that provisions in the Bill must not open the door to the mishandling of patient data. I believe that this is what Amendment 24, tabled by the noble Baroness, Lady Thornton, is intended to address. I absolutely agree with the sentiment. I should like to set out why we think that it would prevent the successful operation of future reciprocal healthcare arrangements. They are made possible by the close co-operation of different parties and bodies, such as the Department of Health and Social Care, commissioners of Her Majesty’s Revenue and Customs, Ministers of the devolved Administrations, healthcare providers and their opposite numbers in other EU and EEA countries. The Bill is about the provision of healthcare. It must include all possible healthcare providers who may provide NHS care in the UK in the list of those with authority to process data for the purposes of implementing arrangements under the Bill—just under this Bill.
It is also worth reflecting on the place of healthcare providers in the current EU arrangements to illustrate the vital role that they play in both the commission and delivery of healthcare abroad. Currently, under the planned treatment route, known as the S2 route, a UK resident may decide to seek planned treatment abroad. As part of the procedure, the UK resident must visit a healthcare provider in the UK to have such treatment authorised. The clinician will provide written evidence that the person has had a full clinical assessment, which must clearly state why the treatment is needed in the person’s circumstances and what the clinician considers to be a medically justifiable period within which they should be treated—again, based on their circumstances.
Under existing arrangements, this function can be served only by a medically trained healthcare provider. This paperwork is then passed to NHS England or the comparable authority in the devolved Administration—that answers a point made by the noble Baroness, Lady Finlay—for processing. Many of these persons are provided for by Clause 4(6)(b), which refers to NHS bodies. However, some NHS services in England are provided by non-NHS bodies, as was rightly pointed out by my noble friend Lord O’Shaughnessy. For example, some primary care providers, such as GPs, may not be captured by this list of NHS bodies. However, they could be involved in pre-authorisation for planned treatment and so would need to process data in that regard. Such providers not also being termed “authorised persons” may limit what reciprocal healthcare arrangements we could implement under the Bill; it could even prevent us fully implementing an agreement. Under existing arrangements governed by EU regulations, some private providers in the UK already process patient data, which is perfectly legal and proper. Of course, data protection safeguards apply to private providers too.
To further allay any other fears, I remind your Lordships that this clause contains protections to guard against any misuse of data. The persons who can process data for the purposes of the Bill are limited to “authorised persons”—quite rightly, as the noble Lord, Lord Patel, said. The list of such persons can be amended only by way of statutory instrument; the term cannot just be given automatically to anyone. The Government included a delegated power in Clause 4(6)(e) to amend this list because future arm’s-length bodies may need to process personal data to enable reciprocal healthcare arrangements to operate effectively. Amendment 25 in the name of the noble Lord, Lord Patel, would limit that ability. I appreciate that that is out of concern for the safety and security of patient data—a sentiment I share totally—but the amendment would undermine the successful operation of future reciprocal healthcare arrangements.
As the noble Lord knows, the existing reciprocal healthcare arrangements are part of a complex web of systems. They rely on the well-spirited co-operation of a number of parties and bodies, which share accurate and relevant data in a prompt fashion. That extends from patients themselves all the way up to healthcare providers and public sector administrators. In time, public bodies change: they are reformed and refashioned, and functions are transferred between them in consequence. Clause 4(6)(e) gives the Secretary of State powers to respond to such changes.
Again, I assure the Committee that the Government are committed to the safe, lawful and responsible processing of people’s data, both now and in future. In doing so, I address Amendment 23 in the names of the noble Baroness, Lady Jolly, and the noble Lord, Lord Clement-Jones, which honourably seeks to include further principles for the safe processing of data in the Bill. As the noble Baroness, Lady Jolly, and my noble friend Lord O’Shaughnessy noted, the Caldicott principles and the Government’s Data Ethics Framework are admirable standards to apply to the handling of patient data. Both of these non-legislative frameworks are in line with the Data Protection Act and the GDPR, which are enshrined in the Bill.
As has been said, data processing is an important element of operating effective complex reciprocal healthcare arrangements, like our current arrangements with the EU. Before I move on, I will answer a couple of the questions asked by the noble Baroness, Lady Thornton, about the Commons data briefing. I understand that officials met Julie Cooper MP, although I am not clear about the written briefing. However, I will pass the issue on to the Minister and bring it to his attention.
I have already covered data protection in the devolved Administrations, which would have to apply under both the GDPR and the DPA 2018. Of course, I would be happy to meet noble Lords should they wish to discuss those issues any further. My noble friend Lord O’Shaughnessy is right to say that we cannot enter into reciprocal agreements if the other country does not meet our data protection standards.
In the light of the assurances I have given and the safeguards in place to protect people’s information, I hope the noble Lord feels able to withdraw his amendment.
Lord Patel
My Lords, I thank the Minister for her response and all noble Lords who have spoken to amendments tabled in this group. As a doctor, I say to the noble Lord, Lord O’Shaughnessy, that I regard the name, address and date of birth of a patient as part of the health record information. When GPs refer a patient to a specialist they will always give the name, address and date of birth. I am seeking assurances that the processes we have in place will maintain the confidence and trust of patients, in particular when their data is transferred.
I think we have made the point. If I am to remain in the good favour of the Chief Whip, I had better sit down because it is exactly 10 o’clock. I beg leave to withdraw the amendment.
Healthcare (International Arrangements) Bill
Thursday 21st February 2019
(5 years, 10 months ago)
Lords ChamberRead Full debate Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 155-II Second marshalled list for Committee (PDF) - (19 Feb 2019)
Lord Marks of Henley-on-Thames (LD)
My Lords, the amendments in this group concern the Henry VIII powers in the Bill. Without going into the details of the drafting of my amendments, because they hang together, I make one central point. It is my contention that, given the breadth of the powers as they currently appear in the Bill, the only Henry VIII powers enabling the Secretary of State to make regulations amending, repealing or revoking primary legislation or EU retained law should be those that are limited to consequential, supplementary, incidental, transitional, transitory or saving provisions. That is quite a wide category for these powers in any case. If when the Bill comes back on Report the Government have changed their position, and the Henry VIII powers in the Bill are limited to those which they can justify in accordance with what I might call a conventional approach to permitting secondary legislation to amend, revoke or modify limited categories of primary legislation, we may change our position.
For the moment, however, we stand by the position taken by the Delegated Powers Committee, which described the Henry VIII powers in the Bill in trenchant terms:
“The Bill contains a Henry VIII power to amend or repeal any Act of Parliament ever passed”.
The power may be used for the purposes in Clause 5(3), but those powers are no narrower than the purposes of the Bill as a whole:
“Regulations under section 2 may amend, repeal or revoke primary legislation (a) for the purpose of conferring functions on the Secretary of State or on any other person (including conferring a discretion); (b) to give effect to a healthcare agreement”.
These purposes are scarcely narrower, and to describe them as limiting is to misuse the English language. The committee pointed out that the Minister does not give any indication of what primary legislation might in future need to be amended. She said that there may be a need to confer functions on healthcare bodies at some stage in future, to which the committee’s robust and, I suggest, accurate response was that the time to confer functions on such bodies is when those bodies are created.
We should all remember why such powers are called Henry VIII powers. Their name is a reference to the Statute of Proclamations of 1539, which effectively enabled the Crown to govern by decree, ordering that proclamations should be obeyed as though they were made by Act of Parliament. Writing in the 18th century in his Commentaries on the Laws of England, Sir William Blackstone—after whom the great human rights set of chambers of which the noble Lord, Lord Pannick, is a member is named—described the Act as a statute,
“calculated to introduce the most despotic tyranny; and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed”.
Those words are as true now as they ever were.
I suggest that when it comes to primary EU retained law, the principles are the same. The Constitution Committee report draws attention to the distinction specifically drawn in Section 7 of the EU withdrawal Act between retained direct principal EU legislation and retained direct minor legislation, on which less stringent conditions are imposed for its modification. In this Bill, the Government have simply ignored the distinction.
The Constitution Committee said:
“One of the purposes of drawing this distinction was to make it possible for subsequent Acts of Parliament 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”.
It continued, in bold:
“We recommend that clause 5 be amended to reflect the distinction drawn in the European Union (Withdrawal) Act 2018 between principal and minor retained direct EU legislation”.
The report drew attention to the fact that the committee had made the same recommendation in its report on the Trade Bill and that the Government, in their response to that report, had accepted it. It went on:
“We recommend that the Government ensures 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”.
First, why have the Government not accepted the committee’s recommendation on this occasion, and, secondly, will the Government commit to complying with the committee’s general recommendation in the future?
Lord Lansley (Con)
My Lords, I shall speak to Amendments 37 and 39 in this group, which are in my name. The noble Lord, Lord Marks, has helpfully introduced them in the point he made towards the latter part of his remarks about the distinction made in the EU withdrawal Act between retained direct principal EU law and retained direct minor EU law.
As the noble Lord said, that principal EU legislation should be subject to the affirmative procedure was recommended for the Trade Bill. That was accepted by the Government but has not been incorporated into this legislation. My Amendments 37 and 39 would do precisely what the Constitution Committee recommended on Monday. Happily, I tabled my amendments last week, rather than waiting until after Monday, as that would have been rather late. The amendments would allow the Government to indicate their support for this process. I hope that they are drafted correctly and that they would do the job, but, even if they do not, we will have the opportunity for that to be remedied on Report. I hope that my noble friend on the Front Bench will say that it is the Government’s intention to make this change.
Participating in the Committee stages of both the Trade Bill and this Healthcare (International Arrangements) Bill gives one an opportunity on occasion to make a positive comparison between the two. However, it is getting confusing. The Trade Bill is intended to roll over existing agreements and specifically does nothing else. Members—not least on the other side—are spending much of their time trying to persuade the Government that it should include reference to how things should be agreed in the future. The Bill before us creates a power not only to roll over existing agreements but to make new ones. On Tuesday, much time was spent on Members of the House arguing that this was inappropriate and should be left to future legislation. As they say: you cannot have it both ways. But it seems that in this instance, at least on this specific point, we can ask Ministers to change the Bill for this purpose.
I commend to the Front Bench Amendments 37 and 39, which would incorporate an affirmative requirement for amendments to retain direct principal EU law.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I strongly support the amendment of the noble Lord, Lord Marks, and everything he said. I fear that, given the welter of things happening in politics at the moment, this kind of Bill is getting through without proper scrutiny and that many people, in both Houses, do not realise the importance and far-reaching implications of what we are considering. We are therefore very grateful to people like the noble Lord, Lord Marks, for drawing attention to this issue. I am astonished that this has apparently got through unchallenged in the other place. Many of my colleagues—with the notable exceptions of my noble friend Lady Thornton and her colleagues on the Front Bench—have not realised what an urgent matter this is.
I arrived late on Tuesday and was unable to participate in the debate on the first amendment. I missed the wonderful speech by the noble and learned Lord, Lord Judge. He raised the issue again at Question Time today and was answered by the noble Lord, Lord Young of Cookham, who is with us. Astonishingly, as the noble and learned Lord, Lord Judge, said on Tuesday and said again today:
“The harsh reality is summarised in the fact that it is exactly 40 years since the other place rejected a statutory instrument—40 years”.—[Official Report, 19/2/19; col. 2172.]
For the last 40 years, we have been dealing with legislation without the ability to amend it. Whether the procedure is affirmative or negative—I will come to that later—does not matter: we have not had the opportunity to amend it. What happens? The statutory instrument is drawn up by civil servants and put forward to Parliament by the Government. What is Parliament asked to do? You have to agree it or not—and if you do not agree it, you get threats. You get people saying, “This is a killer amendment” or, “This is a killer resolution”. That happened yesterday, I think, on a couple of statutory instruments, and the amendments were not moved in the end.
So we have a take it or leave it situation with statutory instruments, unlike with primary legislation. When the subject was raised, the noble Lord, Lord Young of Cookham, said that it was a much wider issue—it had been raised in the wider context. A trickle of SIs has become a flood. More and more issues that ought to be dealt with by primary legislation are being dealt with by secondary legislation. The more that happens, the bigger the transfer of power from the legislature to the Executive. That is exactly what the Government are doing. I ask them to think carefully. This Conservative Government will not be in power for ever. I hope some people agree with me on that—somebody say, “Hear, hear”.
Lord Foulkes of Cumnock
Thank you. I wonder what the noble Baronesses, Lady Blackwood and Lady Manzoor, and the noble Lord, Lord Young, think of the possibility of my good friend Jeremy Corbyn bringing in legislation through statutory instrument after statutory instrument without any ability for scrutiny by a Conservative Opposition. That has to be thought about. This is a parliamentary democracy and people have to think about that and about what they are storing up for themselves. That is exactly what is happening.
I go back to the excellent speech by the noble and learned Lord, Lord Judge. He said:
“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”.—[Official Report, 19/2/19; col. 2171.]
That was a wonderful description.
Earlier, at Question Time, the noble and learned Lord said that we might issue a stamp commemorating 40 years since the last statutory instrument was overturned by the other place. We all thought that was very amusing and it was a lovely description, but it is a very serious matter. I understand the take it or leave it approach to appropriate secondary legislation, but when the issues considered ought to be dealt with through primary legislation, we get into very dangerous territory indeed. I hope the Minister, in the context of this Bill, and the Government, in the wider context of other Bills, will realise the constitutional implications of what they are proposing and that their short-term political expediency will have some long-term consequences that they might live to regret.
Lord Butler of Brockwell (CB)
My Lords, I agree with the noble Lord that our parliamentary processes for dealing with statutory instruments are unsatisfactory—in particular, that we cannot amend them. But is not the remedy in Parliament’s hands? If we were a little bolder and rejected some statutory instruments, it would not be difficult for the Government to reintroduce them in an amended form. The amendment could be very slight. It seems that statutory instruments are necessary, particularly when we are dealing with all those that result from our leaving the European Union. Therefore, we need to look very carefully at the parliamentary process for dealing with them. It seems, as the noble Lord, Lord Young of Cookham, said at Question Time, that this is in Parliament’s hands. We could be bolder and achieve the objective of amending statutory instruments by rejecting some of them.
Lord Mackay of Clashfern (Con)
My Lords, it is important to realise that statutory instruments are a very useful way of dealing with particular situations, but of course it is extremely important that the powers to make these instruments are properly scrutinised and narrow. As the noble Lord, Lord Wilson of Dinton, said on the previous day this Bill was being considered, in his day parliamentary counsel would say, “What do you want to use this for?” If the reply was, “I’m not sure”, they would say, “Well, in that case I’m not drafting it until you know what it is for”.
Lord Foulkes of Cumnock
I was going to intervene in the speech of the noble Lord, Lord Butler, but this applies equally here. I have to be careful not to give away too many secrets and internal arrangements, so this is a purely theoretical example. Certainly that can be done, but if a Chief Whip tells you that voting against this is a fatal Motion and urges you not to do it, when that kind of situation builds up it is very difficult. It may well happen. It may already have happened, without giving too much away.
Lord Mackay of Clashfern
If a defect was pointed out in a statutory instrument, I would consider that a matter for stopping it going forward. Most of the arguments I have heard in recent times do not point to any mistake in an instrument. They are more theoretical. I do not wish to examine them in detail—I have done that once—but it is important. That is what was proposed when these instruments were originally laid. It is much easier to amend an instrument by taking it back and starting again than with an Act of Parliament. That is the appropriate procedure for correcting a defective instrument, and it happens, not necessarily formally, but quite often instruments are withdrawn when a mistake is pointed out; they get round to writing it again and hopefully the second time it is improved.
Lord Hope of Craighead (CB)
My Lords, it is perhaps worth mentioning Amendment 28 in the name of the noble Lord, Lord Patel, which was covered by the noble Lord, Lord Marks of Henley-on-Thames, because he directs our attention to a quite extraordinary provision. On page 3 of the Bill at line 40, we are asked to approve Clause 5(3), which allows regulations to be made amending, repealing or revoking,
“primary legislation … for the purpose of conferring functions on the Secretary of State or on any other person”.
That is extraordinarily wide. I can understand conferring powers on the Secretary of State but why “on any other person”, given that the subsection then adds “(including conferring a discretion)”? That really is the most extraordinarily broad provision, which should be looked at very carefully.
Lord Patel (CB)
I thank my Convenor, the noble and learned Lord, Lord Hope, for bringing attention to my amendment. I will be briefer than brief because the noble Lord, Lord Marks of Henley-on-Thames, not only introduced my amendment but spoke to it. My purpose in tabling Amendment 28 was to bring attention to exactly what the noble Lord and the noble and learned Lord have just said: it is an extraordinary power to take. I fear that it is this kind of power that led the Constitution Committee to suggest that the only way for Parliament to scrutinise the Bill subsequently might be to introduce such a draconian provision as a sunset clause; I say draconian because I am worried that it may have other implications. As I said on Monday, I worry that that will affect what the agreements in the future might do, particularly with the EU. But we will no doubt have another opportunity to discuss that.
Lord Lansley
For completeness, in relation to Amendment 28, which would remove subsection (3), it should be recognised that the power to which the noble and learned Lord, Lord Hope, referred is for the purpose of giving effect to a healthcare agreement. It is not for any other purpose, so if it was not in pursuance of a healthcare agreement the power would not be available. Albeit that healthcare agreements may in themselves be relatively wide-ranging, the power can be used only for that purpose.
Lord Patel
My Lords, I am not too sure about that because the Delegated Powers and Regulatory Reform Committee said in its report:
“The Minister does not give any indication of what primary legislation might in future need to be amended”.
Lord Lansley
But subsection (3) is clear: this is a power to amend primary legislation,
“for the purpose of conferring functions on the Secretary of State … to give effect to a healthcare agreement”.
The noble and learned Lord will know that that at least limits the scope.
Lord Hope of Craighead
The noble Lord, Lord Lansley, raises an interesting point. It is something that should be clarified by better drafting. Splitting things into subheads, as is done frequently throughout the Bill, tends in some ways to open up the arguments to which the noble Lord, Lord Patel, has drawn attention. As I think I have mentioned to the Minister outside the Chamber, the way these provisions are drafted in this cumulative form is rather unfortunate because if they are read together in a single sentence they can be narrowed down, whereas if they are separated out it suggests that paragraph (a) has a life of its own, so one may wonder what “any other person” can possibly refer to. I hope that the Minister will take these points away and ask the draftsmen to look more carefully at how the Bill is drafted, particularly when using that style of drafting.
Baroness Thornton (Lab)
My Lords, this has been a very powerful and useful debate to have as a precursor to the one we are about to have, where we will again address the nature of the powers in the Bill. I enjoy it very much when noble Lords such as the noble and learned Lord, Lord Hope, use the words “rather unfortunate”. Of course, in House of Lords-speak, which the Minister will become accustomed to, it is a very serious thing to say of a piece of legislation that its drafting is rather unfortunate. I want to say how much I appreciated the interventions from the noble Lord, Lord Butler, and the noble and learned Lord, Lord Mackay of Clashfern, to whom I always listen most carefully.
My noble friend Lord Foulkes referred to discussions that may take place outside this Chamber on whether statutory instruments should be referred back, but actually we know from the past that, when your Lordships become exercised about a statutory instrument, we see threats in the press about our existence and, “How dare they!”. That is a serious problem, so I think there is an issue that we need to address that is broader than just this Bill.
Lord Butler of Brockwell
It seems to me that the situation is exactly the same with amendments to primary legislation. Governments will often put pressure on their Back-Benchers to support it, but very often the Government are defeated on amendments and legislation is thereby improved. I cannot see why the same thing should not happen with statutory instruments.
Baroness Thornton
The noble Lord and I absolutely agree about that, and the noble Lord is quite right. I am not saying that one would bow to that pressure at all. Your Lordships’ House has a proud record of persuading the Government to change both statutory instruments and primary legislation with regard to the powers that they have.
I shall say one final thing. It is not the case that these issues were not raised by my honourable friends in the House of Commons; in fact, they were. Indeed, the Delegated Powers Committee’s first report on the Bill was quoted extensively in Committee in the Commons; unfortunately, the votes were not there to carry its effects through. We might think about changing that at a later stage in the Bill.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)
My Lords, I thank the noble Lord, Lord Marks, for Amendments 26, 29, 30 and 31, the noble Lord, Lord Patel, for Amendment 28, and my noble friend Lord Lansley for Amendments 37 and 39, and all noble Lords who have participated in this debate, which has been very robust.
These amendments seek to address concerns raised about the ability to make consequential changes to primary legislation using regulations under the Bill. I reassure noble Lords that the Government have been listening closely to these concerns, some of which—as the noble Lord, Lord Marks, put it—were trenchantly expressed earlier in Committee, and I want to continue these conversations as we move towards Report.
That said, I would like to take this opportunity to provide some context to the approach we have taken in the Bill. The Henry VIII powers in this Bill are not free-standing; they flow directly from the delegated powers in Clause 2(1)—which I know has also met with a little bit of disapprobation. The noble Lord, Lord Butler, recognised the importance of parliamentary scrutiny, and we do as well. We recognise the concerns over the Henry VIII powers, and the Bill has been drafted to ensure that regulations making such changes would all be subject to the affirmative procedure. The intention of including this power to make consequential changes to primary legislation is simply to ensure that healthcare agreements are implemented in an efficient and effective way.
There is a broad legislative landscape which currently implements reciprocal healthcare arrangements with the EU. It currently includes EU law, as well as domestic primary and secondary legislation. In implementing future comprehensive healthcare agreements, it may be necessary to amend different types of legislation so that we can operationalise things domestically. In the past when we have implemented international healthcare arrangements, amendments were needed to primary legislation. For example, when we implemented the EU cross-border healthcare directive in 2013, we needed to insert discrete new sections into the National Health Service Act 2006. With that specific experience in mind, we felt it was important that the Bill was able to amend primary legislation because it seemed likely that it would be necessary in order to implement future agreements, albeit in very restricted circumstances and subject to the affirmative procedure.
We can give some reassurance that this is not a stand-alone power and it will not need to be used in the vast majority of regulations made under the Bill. Our intention in including this was only to ensure that the statute book is coherent when implementing future arrangements under the Bill. I recognise that there is serious concern from noble Lords on this matter, and am grateful for their thorough scrutiny so far. I give my reassurance that the Government have listened carefully and we will welcome further discussion on this critical issue before Report.
On my noble friend Lord Lansley’s Amendments 37 and 39, it is only right that parliamentary time is allowed for regulations that need enhanced scrutiny, but it is not appropriate for all regulations. The concept of retained EU law was introduced in the European Union (Withdrawal) Act 2018. The issue of the status of retained EU law was considered during the passage of that Act, which I am sure my noble friend was involved in. As a result of those considerations, the EUWA set out bespoke rules determining how types of EU retained law might be modified. This was set out in Section 7 of and Schedule 8 to that Act, as I know the noble Lord is well aware. Crucially, the EUWA does not require that all amendments to retained direct principle EU law must be subject to the affirmative procedure. That is true both in relation to regulations made under the EUWA and regulations made under other pieces of legislation, such as this Bill. As such, I hope noble Lords will agree that it is reasonable that we should follow the rules set by the Act—which ultimately was debated and passed by this House—in order to ensure coherence. The EUWA gives flexibility for future legislation to provide for this level of parliamentary scrutiny, which is considered appropriate. That is what we have done in this Bill.
Lord Foulkes of Cumnock
The Minister has been very helpful and said that she will consider the points raised. Am I raising my hopes too high by expecting that the Government may come forward with some amendments on Report?
Baroness Blackwood of North Oxford
The noble Lord is right to expect that I will take these questions away and consider them.
Lord Marks of Henley-on-Thames
My Lords, I am very grateful to the Minister for assuring us that she is listening to the criticisms, that the Government have seen the point of them, and that she will consider them before Report. In those circumstances, I invite the House to accept my withdrawing the amendment. It is not enough to give assurances on how the Government intend to use the powers, for all the reasons we canvassed on Tuesday. It is important that the Government consider how far the powers need to go and how far they can be limited, in order to achieve the object that the Minister seeks to achieve—and only the object that she seeks to achieve. If the Bill comes back limited in that way, the Minister may well get a much more favourable wind when she seeks to put such a power through on Report.
I also suggest that the Minister asks the noble Lord, Lord Wilson of Dinton, whether there is now a parliamentary barrister acting as parliamentary counsel who will take the same rather tough view on the extent of powers that are taken as that consulted by him when he was a junior official. It is that kind of rigour that is necessary and must be brought to bear upon the powers.
Regarding the point made by the noble Lord, Lord Lansley, and the response by the noble and learned Lord, Lord Hope, it seems that a greater use of appropriate conjunctions, making clear when “and” is meant and when “or” is meant, would help in Clause 5 and Clause 1. A little bit of English grammar might go a long way to improving this and other legislation. I beg leave to withdraw the amendment.
Lord Lansley
“( ) A statutory instrument containing regulations made under section 1 which are not made in respect of continuity healthcare agreements may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, both Houses of Parliament.”
Lord Lansley
I am grateful for the opportunity to move Amendment 27, which is linked with Amendment 41. Noble Lords will recall that at Second Reading and again on Tuesday there was considerable debate about the distinction between agreements which are effectively rolled over—existing agreements the purpose of which is to replicate the EU reciprocal healthcare agreement presently in place—and other agreements made under this legislation. In the previous group of amendments, we discussed the Henry VIII power and in what circumstances it should be applied. This is different. From my point of view, this group is about which agreements should be subject to what procedure by way of parliamentary scrutiny where implementing legislation is required in relation to them.
After our debate at Second Reading, it struck me that a clear distinction should be made with what I call “continuity healthcare agreements”, which, as one will see if one looks at Amendment 41, are defined as agreements the purpose of which is to replicate the terms of agreements made presently under the EU social security regulations as there specified. Those are continuity healthcare agreements; they are being rolled over. They are not novel and do not bring new issues to bear. I think that their purpose is entirely agreed: we want to make it swift and certain that existing rights under EU reciprocal healthcare are reproduced in future and implemented rapidly. So it seemed perfectly reasonable for those agreements to be subject to the negative procedure. Therefore, if we could define continuity healthcare agreements in Amendment 41, it would enable those that are not continuity healthcare agreements to be subject to the affirmative procedure. That is what Amendment 27 would do; it would require the additional time and scrutiny to be devoted to where there was a new healthcare agreement—or, as it happened, a substantial amendment to an existing healthcare agreement.
I am not sure that the drafting will necessarily meet with my noble friend’s approval, but my purpose at this stage is to establish the principle that there are two kinds of healthcare agreement. We spent a lot of time on Tuesday arguing whether any extension of the powers beyond existing agreements was desirable and I do not want to re-enter that debate today. However, if we proceed down this path with this Bill, substantially amending existing reciprocal healthcare agreements or adding new ones, we should make a distinction between rollover agreements—that is, continuity healthcare agreements—and those which have substantial changes in them. So I commend Amendment 27 to my noble friend and beg to move.
Lord Foulkes of Cumnock
My Lords, I will make a couple of apologies. The first is to my noble friend Lady Thornton. She is absolutely right about our colleagues in the House of Commons anticipating this problem and the wide powers in this Bill. I accept her correction. Indeed, it was my noble friend who alerted me to the powers in the Bill and got me involved—she may be regretting it now, but I am grateful to her. I apologise also to the Minister for not being able to get to the meeting that she arranged with the noble Earl, Lord Dundee, and the noble Lord, Lord Marks. I was invited, but we had a very long Labour group meeting yesterday. I will not go into any of it in any detail whatever, because I am bound to total secrecy—but you can imagine what fun it was.
I want to deal with the distinction between negative and affirmative instruments. In my previous speech I expressed concern that statutory instruments are being used more and more, and inappropriately. Here, at least affirmative resolutions are better than negative instruments. As things stand, the Secretary of State has very extensive powers through this Bill. As the Delegated Powers and Regulatory Reform Committee said, they are of “breath-taking scope”. If all future legislation relating to the Bill were to be laid through a negative procedure, parliamentary accountability and scrutiny would be further—and substantially—undermined. Introducing the made affirmative, as per the amendment, would be in line with the majority of other legislation. Crucially, the Government could not legislate in the knowledge that they would not face parliamentary scrutiny. The Government argue that the absence of scrutiny will relate mostly to administrative actions. However, given the breadth of the Secretary of State’s powers, the negative procedure could easily be misused.
In her concluding remarks at Second Reading, the Minister, the noble Baroness, Lady Blackwood, said that she had heard,
“noble Lords’ preference for wider use of the ‘made affirmative’ procedure, which I will reflect on more as we head towards Committee”.—[Official Report, 5/2/19; col. 1487.]
We are in Committee now, so will she tell us the result of that reflection—or will we have to wait further to find out about it? The BMA echoed this stance and insisted that,
“any new powers granted to the Secretary of State are proportionate, subject to thorough scrutiny, and that all regulations are subject to the affirmative procedure in Parliament”.
I hope that we will get that assurance.
I return finally to that wonderful speech by the noble and learned Lord, Lord Judge, on Tuesday— I have quoted from it twice or three times already. He said:
“I will try not to bang on any longer”.
I will try not to bang on too long as well.
“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”.
“Hear, hear”, I say to that.
“That option is not open. The healthcare of our citizens in Europe, and EU citizens here, must continue and survive”.—[Official Report, 19/2/19; col. 2172.]
That is what we face. It is a gun pointed at our head: “If you do not agree to this, we are going to go out of the European Union with a bang and our people will suffer”. That gun is being put to our head. It is a pity that it is, otherwise I would support the noble and learned Lord, Lord Judge, in getting rid of Clause 5 altogether. In the meantime, all we can do is try to improve it a bit, and I hope that the Minister will give us an assurance that the statutory instruments will be of the affirmative nature rather than the negative one.
The Earl of Dundee (Con)
My Lords, I shall speak to Amendment 34. Reflecting concerns about the wide scope of regulations, it seeks for them to be subject to affirmative rather than negative procedures. That, in turn, would enable Parliament to exercise more scrutiny.
However, this aim should perhaps be viewed in three different contexts. The first context is reciprocal healthcare arrangements between the United Kingdom and the European Union. The second is arrangements between the United Kingdom and countries outside the European Union. The third is other possible ways and means, apart from affirmative or negative procedures, for redressing what so far may appear to be an imbalance, with too many powers given to the Secretary of State and too little influence assigned to Parliament.
On reciprocal healthcare plans between the United Kingdom and the European Union, the Minister will be right to caution that we should retain negative procedures. After a healthcare agreement is in place, those would be better able to avoid uncertainty and time delays in order to protect the interests of all direct participants within the new scheme.
Yet reciprocal healthcare arrangements between the United Kingdom and the European Union are a different matter. Does the Minister concur that in that regard there is a strong case for replacing the use of parliamentary negative procedures with affirmative ones, and that to do so would provide a more acceptable balance between the influence of Parliament, which becomes greater, and not putting people at risk within the new scheme?
Lord Marks of Henley-on-Thames
My Lords, I will speak briefly to Amendments 35 and 36 in this group, which are in my name. What I say is entirely without prejudice to what I said on the last group: changing the procedure does not make it acceptable for statutes to include fundamentally inappropriate delegations such as are included in the Bill. Nevertheless, we are now considering the Bill and the breadth of the powers as currently drafted, particularly those in Clause 2.
In that context, I draw attention to the use of the ghastly phrase “for example”, to which the noble and learned Lord, Lord Judge, drew attention on Tuesday. To allow for the widest possible powers, and then to introduce them in a clause that starts:
“Regulations under subsection (1) may, for example”,
showing therefore that the powers are entirely unlimited, is completely unacceptable. However, that is the background against which we are considering the question of the appropriate procedure.
I do not believe that any regulations should be made under the Bill unless they are made by affirmative resolution. Should the Government come back on Report with a Bill in which the powers of the Minister are appropriately circumscribed, there may be a case for some regulations of a minor nature to be amenable to the negative resolution procedure.
In particular, I listened with care to what the noble Lord, Lord Lansley, said when he drew a distinction between rolling over agreements that already exist in the regulations in relation to the EU-EEA-Switzerland agreements and others that we already have, and making new agreements and regulations in relation to them. That may be a point on which a distinction can be drawn, and no doubt the Minister and her colleagues will consider it as a possible distinction. Generally speaking, however, regulations of this type ought to be by affirmative resolution.
If, later on, we are looking at a very different Bill, I ask the Minister and her colleagues to consider the Delegated Powers Committee’s Guidance for Departments when determining how the procedures should be adopted, which procedure should be adopted, and the criteria that should be applied in choosing them.
Lord O'Shaughnessy (Con)
My Lords, I will speak briefly on my noble friend Lord Lansley’s Amendments 27 and 41. Noble Lords will know that because of my role as a Minister up until the end of last year, I find some of the provisions in the Bill rather more defensible than do other noble Lords, and I know that that is a minority opinion. Nevertheless, the Minister has said that she will reflect on the House’s strength of feeling, and of course she has much greater wisdom than me on these matters.
I was struck by some comments made by my noble and learned friend Lord Mackay of Clashfern on the last group, when he talked about the scope of the Bill; that is relevant to the context of the amendments laid by my noble friend Lord Lansley. That is the point I was trying to make on Tuesday: there is no reason a priori why the Bill should not have a broader scope. As my noble friend pointed out, in other contexts, the House is arguing that similar Bills ought to, but it follows from that that the functions carried out as a consequence of the Bill are of two distinct types. One concerns what my noble friend called rollover Bills, to provide continuity with the EEA and Switzerland; the other concerns new arrangements—not necessarily with new countries but of a new and deeper kind. Clearly, that will be taking on a relationship that does not have precedent when it comes to dealing with individual countries, even if it has precedent as modelled on those available with the EEA and Switzerland.
My noble friend’s logic in thinking about how the regulation-making power ought to reflect that distinction is therefore sound. Clearly, there needs to be sensitivity. That is reflected in the timeliness and urgency of what we need to do for one set of circumstances and what we might want to do with the longer-term global role.
I am sure that the Minister will reflect carefully on the amendments. If the goal of the Bill should be to give us the broad scope, as I still believe, not only to deal with the consequences of leaving the European Union but to build a different, broader, more global set of relationships, which I think is the kind of network the House supports, there is a compelling case for my noble friend’s argument for a differentiated approach. Whether the specifics are right, I do not know; others will be in a position to judge. I look forward to hearing the Minister’s comments on the amendments.
Baroness Thornton
Listening to the noble Lord, Lord O’Shaughnessy, I reflected on our debates on Tuesday. I think he is again making the argument for two Bills, but there we go. He is quite right about differentiation. I thank the noble Lord, Lord Lansley, for introducing this group of amendments, all of which seek to curb the powers of the Secretary of State under Clause 5. I shall speak to Amendment 33 in this group. It would ensure that amendments are made under the affirmative procedure. We have sought to use the affirmative procedure in the event of no deal, which would enable the Government to bring in replacement bilateral arrangements immediately. That is because we are concerned that delays under the draft procedure would leave British and EU citizens not covered by a health agreement, with serious implications.
This group of amendments points in the same direction and comes from every part of the House. They broadly agree with both the Delegated Powers Committee and the Constitution Committee reports. As noble Lords have said, the Henry VIII powers in Clause 5(3) and (4) provide for regulations to amend, repeal, revoke or retain EU law. I very much welcome the fact that the Minister said in our previous debate that she intends to consider what has been said. I will resist the temptation to quote what the Constitution Committee said about this, because I know that noble Lords have read its influential reports at length.
These powers have been mentioned by noble Lords all the way through Committee. Clauses 2 and 5 are particularly worrying, to put it mildly. What concerns me is the Government’s reaction to the legitimate concerns expressed so clearly by both those highly regarded Lords committees, on whose advice we depend for our scrutiny of legislation. They overuse the words “flexibility and capability” and argue that the Bill must be forward-looking and needs those powers to provide that flexibility and capability. I was reminded of the previous general election, when the Conservative Party coined the phrase “strong and stable”. It did not convince anybody, and I am not sure that “flexibility and capability” is convincing noble Lords as a reason for the powers. It is a good reason for what the Government want to achieve, but as a justification for the powers in the Bill, it is not compelling.
The noble Baroness now seems to have realised that in every part of the House, including on her Benches, we take these matters particularly seriously. That is not because there is a desire to stop the Government acting—absolutely not at the moment. It is because our system of checks, balances and accountability requires legislation to be subject to proper scrutiny, in order to safeguard citizens from the tendency of Governments—all Governments—to charge on and ride roughshod, implementing their wishes without let or hindrance.
I know that some officials see this as a kind of game or tussle to see what they can get away with, particularly at the moment, but as the noble Lord, Lord Wilson, wisely said on Tuesday, you cannot put these powers in because they might just be useful. Although I will resist joining the noble Lord in repeating the words of Margaret Thatcher, I agree with his sentiment that the Bill as drafted breaks all the rules of our constitutional understanding. I hope that the Minister takes that seriously because the challenge before her and the House is to amend the Bill so that it fulfils its primary function: to provide healthcare cover for millions of UK citizens and to ensure healthcare for UK citizens living and working in the European Union and European citizens living and working in the UK. In other words, it is about individuals’ lives and their health. We believe that the right amendments, like those defined in this group, will refine the Bill’s scope and give the Secretary of State appropriate powers—an achievable task.
Baroness Blackwood of North Oxford
My Lords, I thank my noble friend Lord Lansley for Amendments 27 and 41, the noble Baroness, Lady Thornton, for Amendment 33, my noble friend Lord Dundee and the noble Lord, Lord Foulkes, for Amendment 34 and the noble Lord, Lord Marks, for Amendments 35, 36 and 38. Each amendment speaks to concerns we have heard during the passage of the Bill to date about the breadth of the regulation-making powers and the scrutiny afforded to them.
I wish to open by saying that I listen very carefully to these concerns. I assure the noble Baroness, Lady Thornton, that I see this process as neither a game nor a tussle. The suite of measures on reciprocal healthcare we are introducing is intended entirely to reassure UK citizens living in Europe and elsewhere, and EU citizens living in the UK, that we will work hard to ensure continuity of care for them in this uncertain time and that we are looking forward and thinking about providing care in other places, as a Government should.
To assist our consideration of these issues, I thought it might be helpful to set out the intention of some of the delegated powers as drafted, as we have not yet had a chance to do so in much detail. As I indicated previously, Clause 2(1)(a) is intended to be used to set out the detail of complex payment arrangements under reciprocal healthcare deals because payments can be made in a variety of ways. For example, the UK pays France the actual cost of treatment provided, meaning that a claim for the cost of each person’s individual treatment is made to the UK, whereas in Spain we pay an average cost per person of treatment provided. In Portugal, on the other hand, we offset payments. That is why that power has been drafted in that way.
Clause 2(1)(b) provides for regulations to be made in connection with the provision of healthcare abroad outside reciprocal arrangements, allowing us to put in place complex arrangements outside a bilateral agreement in an urgent situation. That is designed specifically for an EU exit situation that may be an emergency.
Clause 2(1)(c) is needed to give effect to comprehensive healthcare agreements entered into with another country or international organisation, such as the EU. This provides the power to implement agreements in domestic legislation. We believe that it would be unworkable to produce new primary legislation to implement each agreement on an individual basis; I am sure that the House would agree.
Clause 2(2) sets outs examples of the type of provision that might be included in regulations under Clause 2(1). As we have said before, it is an illustrative list of the kinds of provisions that would already be included. I took note of the concern about conjunctives under this clause.
Clause 2(2)(a) highlights that complex healthcare agreements may include a mechanism for calculating payments and regulations but would need to specify how the cost of healthcare would be calculated between different countries.
Clause 2(2)(b) indicates that regulations may establish eligibility criteria that specify which people can access healthcare outside the UK. Establishing robust eligibility criteria is key to preventing the misuse and abuse of healthcare, as referred to already by my noble friend Lord Lansley in previous debates.
Baroness Thornton
My Lords, all these powers exist at the moment, as do all these arrangements. However, the powers being asked for in this Bill have not been needed for that. The point that was made on Tuesday is about why we look to have such huge powers when actually we have managed without them in the past.
Baroness Blackwood of North Oxford
For the implementation of international healthcare arrangements, these powers exist within EU legislation. At the moment we do not have the powers to implement international healthcare arrangements within domestic legislation. That is why they are being introduced.
The department believes that the negative procedure is appropriate for the use of the delegated powers to arrange the specific implementation purposes which I have laid out. That balances the appropriate level of scrutiny with the use of parliamentary time. However, I have listened closely to the discussions in the debate and I take seriously the concerns which have been raised by noble Lords, by the DPRRC and by the Constitution Committee. However, I hope that noble Lords will understand that we need to ensure that the Government have the legislative tools needed to implement the agreements we reach, especially the ones with reciprocal healthcare at EU exit. I would like to work constructively with your Lordships to further consider these issues in detail as we progress the Bill to Report, and I will make myself and officials free to discuss the breadth of the regulation-making powers further at an open session next week. I hope that with this explanation and these reassurances, my noble friend will feel able to withdraw his amendment.
Lord Lansley
I am grateful to my noble friend and to all noble Lords who have taken part in this short debate. I thought it was very constructive and I am especially grateful to my noble friend Lord O’Shaughnessy for his support for my two amendments. I thank the Minister for her willingness to think about these issues positively and constructively. We will return to them on Report and I look forward to that. On the basis of her helpful assurance, I beg leave to withdraw the amendment.
Baroness Humphreys
“( ) Regulations under this Act may not however repeal or revoke primary legislation in the case of—(a) an Act of the Scottish Parliament,(b) a Measure or Act of the National Assembly for Wales, or(c) Northern Ireland legislation,without the consent of the relevant devolved legislature.”
Baroness Humphreys (LD)
My Lords, I apologise for not being able to take part on Second Reading.
This group contains two amendments in my name and that of my noble friend Lady Jolly and a further amendment in the names of the noble Baroness, Lady Thornton, and my noble and learned friend Lord Wallace of Tankerness, which I also support.
Amendment 30A seeks to ensure that the Government may not by regulation repeal or revoke primary legislation made by the devolved legislatures without their consent. Amendment 30B seeks to ensure that the Acts passed in this Parliament giving powers to the devolved legislatures may not be modified without their consent. It could be argued that this is what the Bill tries to do.
I am grateful to the Minister for her response to a question posed by the noble Baroness, Lady Finlay, in Committee on Thursday. However, I would like to use my two amendments to open further discussion around the issue of legislative consent by the devolved Administrations and how this is impacted by the Bill. In the light of the Minister’s response on Tuesday, which was made after my amendments were tabled, I shall keep my contribution relatively short at this stage.
Many noble Lords have already spoken about the wide-ranging powers conferred on the Secretary of State by Clause 2(1)—powers which the Delegated Powers Committee described as “inappropriately wide” and as having “breath-taking scope”. As that committee pointed out in its report of 14 February, its conclusions were supported by the Constitutional and Legislative Affairs Committee of the National Assembly of Wales on the Welsh Government’s legislative consent memorandum on this Bill, where these inappropriately wide powers can be seen to have an impact on the devolved legislatures.
This House’s Constitution Committee records the decision of the Scottish Parliament to agree to an LCM in these “exceptional circumstances”. However, it also records that the Welsh Government have so far declined to give their legislative consent. It describes the Welsh Minister for Health and Social Services, Vaughan Gething AM, as expressing particular concern about Clause 2 because it,
“doesn’t require consultation or consent from Ministers in devolved administrations”.
The Welsh Government would expect to be consulted and their consent sought on this issue because powers over the health service have been devolved to Wales by this Parliament. However, Clause 2 is silent on this and, as such, it is an important omission from the Bill.
The Welsh Government acknowledge, of course, that an LCM will be required by the UK Government because provisions in the Bill modify or fall within the Assembly’s legislative competence. However, they also note that,
“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”—
and, one might add, potentially a significant impact on their finances too if they are expected to implement a UK policy that they have not budgeted for.
Rightly, the Welsh Government seek assurances from the UK Government to ensure that the Welsh Government are involved in matters that affect devolved areas in Wales and that this is recognised in the Bill.
The Minister said on the first day in Committee that she is in advanced discussions with the Welsh Government and that she hoped to be able to report back on this in more detail on Report, so I will not detain the Committee any further today on this issue. I merely wished to outline my concerns and draw your Lordships’ attention to them at this stage. I look forward to that further debate that she promised. I beg to move.
Lord Wallace of Tankerness (LD)
My Lords, I apologise that I was not able to speak at Second Reading. I shall speak in support of Amendment 42, which was tabled by the noble Baroness, Lady Thornton, and to which I have added my name. It is about a duty to consult the devolved Administrations before making regulations under this Act.
My noble friend Lady Humphreys has already given a flavour of the important constitutional and devolution issues which arise as a result of these provisions. As she indicated, unlike the Welsh Assembly, the Scottish Parliament has passed a legislative consent Motion in respect of the Bill—quite exceptionally, because the position of the Scottish Government is generally to withhold consent to legislation in respect of EU withdrawal, but they took the view that they would give consent if there were exceptional circumstances. In this case they believe there are exceptional circumstances. That view was supported by the relevant parliamentary committee in the Scottish Parliament, and last month by the Scottish Parliament as a whole.
This is a relatively modest amendment requiring consultation. The Explanatory Memorandum that accompanies this Bill makes clear in annexe A that there are areas, specifically in Clauses 1, 2 and 4, where a legislative consent Motion is required. It is very obvious, because here we have a situation where international agreements are made by a member state, in this case the United Kingdom, with other countries in respect of a subject matter that is devolved.
I am sure the Minister will be very familiar with Section 2CB of the National Health Service (Scotland) Act 1978, which refers to the functions of health boards outside Scotland. It states:
“Where it is the function of a Health Board to provide or to secure the provision of a service, the Health Board may secure the provision of that service outside Scotland … For the purposes of securing the provision of any service referred to in subsection (1), a Health Board may make such arrangements for the provision of the service as they think fit (and may in particular make contractual arrangements with any person) … Anything done by a Health Board in pursuance of subsection (1) or (2) is to be regarded as done in exercise of functions of the Scottish Ministers conferred on the Health Board by an order under section 2(1)(a)”.
The annotations on the very helpful legislative website indicate that these sections originate in EEA treatment costs regulations. Clearly this impinges on responsibilities devolved to Scottish Ministers. As I said, the legislative consent Motion was passed by the Scottish Parliament.
My noble friend Lady Humphreys mentioned the Constitution Committee. Paragraph 13 of its report on the Bill states:
“We recommend that the Government sets out how it intends to manage overlapping competences in relation to this Bill and other policy areas”.
When the Minister replies, it would be very useful if she could give us some indication of how the UK Government intend to do that. Obviously there are areas—for example, a regulation specifying or describing evidential or administrative requirements or processes—that could have an impact on administrative processes within the responsibility of the Scottish Government or health boards in Scotland.
It is instructive that, when the Health and Sports Committee of the Scottish Parliament took evidence in relation to the legislative consent Motion from Mr Paul Gray, who was the director-general for health and social care and chief executive of NHS Scotland until he stood down this month, he said:
“The Scottish ministers and the UK Government agree that the bill impacts on the devolved function of health. As a result, it requires the consent of the Scottish Parliament. UK Government officials have indicated that the bill will be amended to recognise the responsibility of the devolved Administrations. The proposal is to introduce a requirement to consult the devolved Administrations and to agree a memorandum of understanding with them before regulations can be introduced that impact on devolved matters”.
Subsequently, in answer to questions, Mr Gray went on to say:
“As I said in my opening statement, UK Government officials have indicated that the bill will be amended to recognise the responsibility of the devolved Administrations. The particular point to which I would draw the committee’s attention is the requirement to consult devolved Administrations and agree a memorandum of understanding before regulations can be introduced that impact on devolved matters. The distance that I can go, based on what we have—and bearing in mind that these are proposals—is to say that the current proposal is that there is a requirement to consult the devolved Administrations before regulations can be introduced”.
That was evidence given by the then chief executive of the health service in Scotland to a Scottish parliamentary committee, undoubtedly based on good faith from discussions he had had with officials at UK government level. This amendment seeks to give some substance to what would appear to have been agreed at official level, and I hope that the Minister feels able to accept it.
Lord Hain (Lab)
My Lords, in following the noble and learned Lord, Lord Wallace, I strongly support Amendment 42 and the amendment moved by the noble Baroness, Lady Humphreys. She made the very important point that the Welsh Government have not given their legislative consent. I know that there is considerable concern in the Welsh Government, and I say that as a former Secretary of State for Wales.
By the way, I welcome the Minister to her place as a refugee from the House of Commons—as I am, except that I was not defeated.
Lord Hain
I resigned. However, she is very welcome and I wish her all the best.
What worries me about this—and I hope that the Minister can give us concrete assurances—is that, on the Brexit agenda, it seems to be in the DNA of Whitehall not to have regard for the devolved Governments. The only reference I can find in the Bill to the Welsh, Scottish and Northern Ireland devolved legislative bodies comes right at the end, when it says that it applies to them. At the very least it is essential that a requirement to seek legislative consent and to consult is written into the Bill, because of course health policy is devolved to Scotland, Wales and Northern Ireland.
The Government have form on this issue in the way that they approached the Brexit legislation earlier in the process. As your Lordships will recall, there was a crisis and a real confrontation with the Scottish Parliament and the Welsh Government—and there might well have been with the Northern Ireland Assembly if it had been up and running. It must be in the DNA of Whitehall, because it has simply done it again. That really worries me. I hope the Minister can give reassurances which mean that we do not have to vote at Report on something very similar to these amendments. If a major concession is not made, we will need to do that and seek to defeat the Government.
I endorse what the noble and learned Lord, Lord Wallace, and the noble Baroness, Lady Humphreys, said. I ask the Minister to give very specific assurances, spelling out that, if she does amend the Bill—and I hope she will assure us that she will—she will do so only having agreed those amendments in precise terms with the Welsh Government and the Scottish Parliament, and having consulted officials in the Northern Ireland departments.
Lord O'Shaughnessy
My Lords, it may be useful if I reassure the Committee in response to the comments of the noble Lord, Lord Hain. There was extensive engagement with the devolved Administrations in advance of the Bill, not just by officials but by me as a Minister. I spoke to my counterparts in Scotland and Wales, although of course it was not appropriate to do it in quite that way in Northern Ireland, for obvious reasons—there not being an Executive. That happened before, and subsequent to, the publication of the Bill, so this has been going on for several months. It is one reason why we were very pleased to get the legislative consent Motion in advance from the Scottish Government. Clearly, everyone had recognised the benefits that flow from this for the inhabitants of all parts of the United Kingdom.
It is useful for the Committee to know that this is not an activity that has simply been undertaken as a bolt-on in response to concerns raised during the passage of the Bill; it was baked in from the beginning and it has been our intention to move in the appropriate way with no procedural or constitutional novelty of the kind that the noble Lord fears.
Lord O'Shaughnessy
The different Governments have clearly taken different approaches. The noble Lord will know that it does not automatically follow, even if you know where you all want to get to, that you can agree it overnight. I am sure that my noble friend the Minister will be able to update us.
Lord Foulkes of Cumnock
My Lords, I want to endorse everything that my noble and learned friend Lord Wallace of Tankerness has said. He has the great distinction of having been for some time Deputy First Minister of Scotland and, for a short period, acting First Minister. Very few people can claim that distinction. Again, I agree with every word he said. I describe him as my noble and learned friend in every sense of the term—I hope that is not misunderstood. I also agree with everything said by the noble Baroness, Lady Humphreys.
What I find difficult to understand is why this Bill has received the legislative consent of the Scottish Parliament—which is usually more reluctant to give consent—and not that of the Welsh Parliament. I can only assume that it is because the noble Lord, Lord O’Shaughnessy, kissed the Blarney Stone before he went to Edinburgh again, and was able to persuade them. I am interested to know why and will try to find out from my contacts in Scotland before Report.
I suspect that a lot of the points made about the omissions in this Bill have arisen because this legislation, like much of the legislation we are considering at present, is being rushed because of Brexit, without proper consideration being given. I do not blame the officials, who have so much work to do. I went to a briefing they held right at the start of this process and I know that they work very hard. However, I would rather see them doing more constructive work than some of what they are being required to do on Brexit.
I agree with the noble Lord, Lord Hain—and I find this not only in health but in a lot of other areas—that some officials, particularly at the higher level in Whitehall, still have not come to terms with devolution; they do not quite understand what it means, or that the health service in Scotland is run completely by the Scottish Parliament. It is difficult for those officials who have been involved since before devolution to understand that fully. I hope that we will do more to get the message across as we move forward. I hope that the next Government, of whatever shade—a non-Conservative Government; I will put it that way—take more care of the devolved settlements.
The noble Lord, Lord O’Shaughnessy, said that he has had discussions with the Cabinet Secretary for Health and Sport in Scotland, Jeane Freeman. The Minister has taken over very recently and will not yet have had time to do this, but can she assure us that she will have an opportunity to meet with Jeane Freeman to discuss this issue between now and Report? I hope she will be able to report back to us in more detail on the attitudes of the Scottish Parliament and let us know whether it is satisfied on some of the points that have been raised by the noble Baroness, Lady Humphreys, and my noble and learned friend Lord Wallace of Tankerness.
Baroness Wheeler (Lab)
My Lords, I am moving Amendment 42 in the name of my noble friend Lady Thornton and the noble and learned Lord, Lord Wallace. The noble and learned Lord has already spoken to the amendment and covered many of the points that we need to raise. The amendment focuses on ensuring that the commitment to involve, consult and have regard to the views of the devolved Administrations, before regulations on new health agreements are drawn up, is in the Bill and set out as a clear duty on the Secretary of State. The amendment ensures that:
“Before making any regulations under this Act, the Secretary of State must consult the Scottish Government, the Welsh Government and … if there is no Executive on the day on which this Act is passed the relevant Northern Ireland Department”.
The Minister told the House at Second Reading that the Government have been working with the devolved Administrations and fully understand the need for legislation on reciprocal healthcare agreements to fully respect the devolution settlements. The amendment would reassure the Committee on this matter—that reassurance has to be given, as speakers have illustrated. We also support the principle of the safeguard set out in Amendment 30A, moved by the noble Baroness, Lady Humphreys, and Amendment 30B.
As we have heard, given the significant impact on devolved authorities, it is crucial that their interests are appropriately considered in the development of reciprocal health arrangements and that mechanisms are in place to ensure that each Administration contributes to the making of decisions that affect Scotland, Wales and Northern Ireland. I look forward to the Minister’s update in respect of the Scottish Government. The noble and learned Lord, Lord Wallace, provided us with some of the detail of the ongoing discussions, despite the Scottish Government having carried the legislative consent memorandum. I look forward to the Minister’s updated response to the issues the noble and learned Lord raised.
As we heard from the noble Baroness, Lady Humphreys, and my noble friend Lord Hain, the Welsh Government have so far declined to recommend that the Welsh Assembly give its legislative consent to the Bill. The Welsh Minister for Health and Social Services expressed particular concern about Clause 2 because it does not require consultation with or consent from Ministers in devolved Administrations. However, the Minister of State’s offer to amend the Bill to place a statutory duty on the UK Government to consult the devolved Administrations where regulations under Clause 2 would be within their legislative competence is welcome. This would be underpinned by an accompanying memorandum of understanding, stating that all parties will seek to proceed on the basis of consensus. Draft agreements would be discussed with the devolved Administrations before they are shared with third countries and Ministers would be consulted on the content and drafting of regulations made under Clause 2 where they relate to devolved matters. Could the Minister confirm this?
This approach would be a welcome step that would help to create a positive framework in which the future of reciprocal healthcare arrangements can be discussed on a collaborative and constructive basis. Consulting before making regulations would also smooth the process for making regulations, given that any statutory instrument which amends Welsh, Scottish or Northern Irish primary legislation would of course be subject to a statutory instrument consent memorandum in each legislature, which would decide whether to recommend that consent be given in the circumstances.
As noble Lords underlined, the importance of reciprocal health arrangements to the people of Northern Ireland—and of Ireland—has been raised by noble Lords at Second Reading and in our separate amendment dealt with earlier. A statutory commitment to consult and seek the views of either the Northern Ireland Executive or the relevant NI department on regulations enacting new healthcare agreements would provide reassurances about the continued funding arrangements.
Finally, I hope the Minister will be able to respond to the recommendation from the Constitution Committee’s report, which underlined the need for the Government to set out how they intend to manage those overlapping competences relating to the Bill. As the committee points out, while the making of international agreements is a reserved matter for the UK Government, healthcare is a devolved matter and the potential for overlapping competences increases as all powers are repatriated from the EU, as does the scope for disagreement about such issues. This will need to be managed.
Our amendment places the Minister’s commitments to consultation and involvement with the devolved Administrations in the Bill—no more, no less.
Baroness Blackwood of North Oxford
My Lords, I am grateful to the noble Baronesses, Lady Jolly and Lady Humphreys, for Amendments 30A and 30B, and to the noble Baroness, Lady Wheeler, for speaking to Amendment 42 on behalf of the noble Baroness, Lady Thornton, and for the opportunity to address this important issue of engaging and working with the devolved Administrations. As we take the Bill forward at pace, we endeavour to do so in a way that is collaborative and respects the devolution settlement and the conventions for working together.
To that effect, the contribution from the noble Lord, Lord Hain, was rather disappointing in implying that the Government have anything but the highest regard for the role of the devolved Administrations in this matter. Indeed, as the noble and learned Lord, Lord Wallace, described, the department has had, and continues to have, constructive discussions both at ministerial and official levels with all the devolved Administrations, on the Bill and on the underlying policy.
As your Lordships have already noted, the regulation-making powers in this Bill provide us with a legal mechanism to implement international agreements into domestic law for the benefit of UK nationals; this is a UK competence, but we recognise that in some parts of the Bill, powers may be used in ways which relate to devolved matters; namely, the domestic healthcare elements. With that in mind, as my noble friend Lord O’Shaughnessy has said, we are delighted that the Scottish Parliament has granted the legislative consent Motion to the Bill. We have had positive and constructive engagement with colleagues in Northern Ireland’s Department of Health and in the Northern Ireland Office, and we are grateful for their support and their agreement to ensure that the Bill applies and extends to Northern Ireland.
We are working very closely with colleagues in the Welsh Government to secure their support for a legislative consent Motion, and to that end, as the noble and learned Lord, Lord Wallace, will I hope be pleased to hear, we will be introducing a government amendment on Report which places a statutory duty to consult with the devolved Administrations, where regulations under Clause 2 would make provision that would be within the legislative competence of the devolved Administrations.
Furthermore, I confirm that we have now agreed a memorandum of understanding with the Welsh Government to accompany the amendment. This MoU sets out how we intend to work with each other, and how the UK Government intend to work with all the devolved Administrations in respect of this policy area. In response, we expect the Welsh Government to lodge and support a consent Motion in the Welsh Assembly very shortly.
We have also been working to secure the support of colleagues in both Northern Ireland and Scotland to the terms of that memorandum of understanding. We hope that colleagues in both of those Administrations will agree to the measures provided for in the MoU, following some very recent final discussions and changes with the Welsh Government. The MoU sets out a pragmatic and mutually beneficial working relationship to ensure that the devolved Administrations will continue to have a vital role to play in delivering reciprocal healthcare for the benefit of all UK citizens. In addition, it will enable devolved Ministers to set out their views at an early stage of reciprocal healthcare policy formation. Where they relate to devolved matters, we will share the draft regulations we intend to make under Clause 2 with the devolved Administrations before they are laid.
This agreement is both pragmatic and practical, allowing us to move forward in a collaborative way. I thank my colleague, Stephen Hammond, the Minister of State, who has taken the lead on this engagement, and acknowledge the positive relationships that he has sought to build with his counterparts in the devolved Administrations. He has been speaking to them this very week. We consider that amendments to the Scotland Act 1998, the Government of Wales Act 2006 and the Northern Ireland Act 1998 would be outside the scope of regulations made under this Bill, and it would therefore be unnecessary to place a consent requirement in the Bill in this regard, but the UK Government are committed to working closely with the devolved Administrations, now and in the future, to deliver an approach that works for the whole of the United Kingdom.
I hope that now that I have reported these positive developments, the noble Baroness will be moved to withdraw her amendment—
Lord Hain
I am grateful to the Minister, and reassured by what she has said. Perhaps I will withdraw the tone of some of my earlier remarks, which were made without knowing what she was going to say.
I ask the Minister to bear in mind, in terms of advice to Whitehall officials working on Brexit legislation of this kind, that it is not an accident that these extra consultative arrangements she is now describing were not in the original Bill. This has been true all the way through the Brexit process, and I am afraid that when I said that it seems to be in the DNA of Whitehall, it is as though the default position is that these consultative rights are not put on the statute book. I ask the Minister to use what influence she has with the rest of the ministerial team to say that this must not happen again, in any other legislation.
Baroness Blackwood of North Oxford
Part of the reason that this amendment has come at this stage is because it has been part of a negotiation, and we wanted to have agreement with the devolved Administrations to ensure that it was in a manner which suited them. That is why it has been part of the process: because it was in agreement and in consultation, rather than us putting it in at the beginning and then consulting afterwards. I hope that as the result of that discussion and agreement, I have reassured—
Lord Wallace of Tankerness
I acknowledge that the Minister said that an amendment will be brought forward. That is very welcome. Is there anything technically defective with Amendment 42 and is she going to accept it?
Baroness Blackwood of North Oxford
We need to bring forward the clause which we have agreed with the devolved Administrations. It is appropriate to do that but I thank the noble and learned Lord for his intervention and, on that basis, I hope that the noble Baroness will feel free to withdraw her amendment.
Baroness Humphreys
I thank the Minister for her clarification and the excellent news that the memorandum of understanding has been signed. I seek assurance from her that this matter will be reported on, or an amendment put forward on Report, so that we can hear exactly whether the Welsh Government have completed the LCM process. I thank her very much and I beg to withdraw the amendment.
“( ) Not less than 28 days before laying any regulations pursuant to subsection (1) the Secretary of State must publish a draft of the proposed regulations, and not less than 14 days before such regulations are laid, Her Majesty’s Government must give both Houses of Parliament the opportunity to consider and debate the draft.”
Lord Marks of Henley-on-Thames
My Lords, for years many of us have believed that the procedures for considering statutory instruments have been unsatisfactory. Whether any statutory instrument is to be passed by the affirmative resolution procedure or the negative resolution procedure—a question we have discussed today—is not the fundamental point. That distinction merely determines the way in which the instrument comes before Parliament to be debated—if it does so.
The more fundamental problem, which we all recognise, is that SIs are unamendable. They are “take it or leave it”—every paragraph or none. We were reminded on Tuesday by the noble and learned Lord, Lord Judge, that it is exactly 40 years since the House of Commons rejected a statutory instrument. In this House, we too have the power to reject statutory instruments by fatal Motions. The last time we did so—at least, it was said by some that we did—was over tax credits in 2015. Indeed, it was on the Motion of the noble Baroness, Lady Manzoor, when she was on this side of the House.
On that occasion, the right-wing press railed against us for exceeding what it thought our powers ought to be and advocated our abolition. Anyway, the Government set the noble Lord, Lord Strathclyde, on us, after which the fuss rather died down. However that may be, fatal Motions are very rarely passed by this House. I think that is partly because they are seen as disrespectful of the primacy of the House of Commons and partly, perhaps, as was pointed out by the noble Lord, Lord Foulkes, because the Whips discourage fatal Motions in case they, too, will face such Motions when it comes to their party’s turn in government.
I suggest that the power to reject delegated legislation is an important power and ought to continue. However, it is a residual power to be used very sparingly and when the objection to an SI is very substantial indeed. The noble Lord, Lord Butler of Brockwell, said in debate on the first group that we should use the power to reject SIs more often to achieve amendment by sending them back for review and reintroduction. That is a way of doing it, but it runs into the difficulty that it may be too cumbersome and, for the reasons I have mentioned, I doubt that it would be a politically workable approach. Regret Motions, which we often use, are useful, but they come too late in the process and the Government do not have to take any notice of them.
However, under my amendment, the Government would have to publish a draft 28 days before laying the regulations and give both Houses a chance to debate the draft, and to do so before it is actually laid. That would give us an opportunity in a relatively informal way to identify defects in instruments or particular provisions that ought to be removed. Amendment 32 would avoid the need to go through the super-affirmative procedure, which many would advocate for some of the provisions in this Bill, but it would improve scrutiny.
Under our existing arrangements, the power to scrutinise secondary legislation is weakened by the lack of any provision for Parliament to point to particular provisions in an SI and ask the Government to think again. Mine is of course a probing amendment. I suggest that it is particularly relevant to the provisions of the Bill because the regulation power, as we have all considered—many have made this point—is so general, so unrestricted and so unpredictable in its likely or possible exercise.
This amendment may be of more general relevance—I do not suggest otherwise. It is intended to offer a way for Parliament to have an early opportunity of considering proposed delegated legislation in draft before it is laid; to give MPs and Peers an opportunity to consider and express concerns about a proposed statutory instrument, or particular provisions within it; and to give the Government an opportunity to respond to issues raised in such exploratory debates. The amendment is expressed in the terms of a requirement on the Government to make those debates possible, because it is intended to emphasise that statutory instruments, though made by Ministers, are made under powers vested in Ministers by Parliament and are subject to parliamentary scrutiny.
I do not suggest that this amendment, or this type of procedure, ought to apply to every piece of delegated legislation, but I do suggest that it is worth considering. Many of us believe that scrutiny has become too weak and the power of Ministers too strong. This amendment is intended to explore a way of tilting the balance back in favour of parliamentary scrutiny and would, I suggest, offer us one path to better and more carefully considered secondary legislation. I beg to move.
Baroness Wheeler
My Lords, I listened carefully to the strong arguments put forward by the noble Lord, Lord Marks, on this issue, and I await the Minister’s response. We have every sympathy with the intention behind the amendment, and the noble Lord’s frustration that the House can either accept or reject a statutory instrument but cannot amend it, while parliamentarians can and often do take note of or reject Motions. However, Parliament is ultimately at the mercy of the Government to withdraw regulations and bring forward a revised draft, which may or may not adequately address the concerns that have been expressed. Fatal Motions are quite rightly used rarely, in exceptional circumstances.
The noble Lord, Lord Marks, says this is a probing amendment. However, I fear that, in this circumstance, it would be counterintuitive to the Bill’s primary objective of implementing reciprocal health agreements after Brexit. As my noble friend Lady Thornton said on Amendment 33 in an earlier group, time is not on our side, and I fear that the approach contained in this amendment would lead to delays in implementing reciprocal health agreements. In the event of no deal, when millions of British citizens will lose their current access to healthcare treatment overnight, any delay while Parliament debates and considers draft regulations would be catastrophic. Obviously the delay that would occur from the proposals that the noble Lord, Lord Marks, suggests would have to be taken into consideration in any future changes, and would certainly need to be discussed.
Baroness Blackwood of North Oxford
My Lords, I thank the noble Lord, Lord Marks, for suggesting in Amendment 32 an approach to the important issue of appropriate levels of parliamentary scrutiny, and for clarifying that this is a probing amendment. The Government clearly recognise the importance of appropriate levels of scrutiny in this Bill and the secondary legislation made under it. Obviously, the hallmark of an effective and responsible parliamentary system is the process by which we draft, consider and test legislation.
During this debate, I have listened very carefully to your Lordships and the views expressed on the affirmative resolution procedure. This is an interesting proposal by which we could consider draft legislation. While the Government support the spirit of the amendment and agree that appropriate scrutiny is important, we have questions about this approach.
It is vital that we can make regulations that allow us to respond appropriately to a variety of possible scenarios arising from not just the UK’s exit from the EU but any situation where we would need to implement regulations, where this Bill might be needed quickly and where it is required for a comprehensive international agreement. Such an approach for scrutiny would, we believe, increase the time taken to develop and lay regulations, and this may have quite a significant negative impact on our ability to bring forth timely regulations to provide healthcare arrangements to support hundreds of thousands of individuals who rely on these provisions—perhaps in a case which may be considered an emergency.
Lord Marks of Henley-on-Thames
My Lords, I do not need to reflect very hard to withdraw what was plainly a probing amendment. I raised an idea and I accept the point that, in the context of many of the regulations, particularly those to replicate the European agreements that we have, my amendment might not be appropriate. In the context of the wider issue of any other new healthcare agreements, if they are persisted with, it may be appropriate, and it is something that we would consider.
I would like to say how grateful I am for the offer from the noble Baroness to consider the question of scrutiny. I would like to accept that offer now, and, in so saying, I beg leave to withdraw the amendment.
Healthcare (International Arrangements) Bill
Tuesday 12th March 2019
(5 years, 9 months ago)
Lords ChamberRead Full debate Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 155-R-I Marshalled list for Report (PDF) - (8 Mar 2019)
16:01 - Division on Amendment 1 - Ayes: 262 / Noes: 226 - Amendment 1 agreed.
16:46 - Division on Amendment 5 - Ayes: 254 / Noes: 216 - Amendment 5 agreed.
Baroness Thornton
Baroness Thornton (Lab)
My Lords, I rise to move Amendment 1 and speak to consequential Amendments 2, 12, 13, 14, 45, 46 and 47. The House will realise that these are the same amendments that we discussed in Committee. I am grateful for the support for them that I have received from across the House: from the noble and learned Lord, Lord Judge, the noble Earl, Lord Dundee —who, we learned yesterday, cannot be with us today—and the noble Baroness, Lady Jolly. I like to think that the reason for their support, and that of other noble Lords in Committee, is the amendments’ simplicity in revising the scope of the Bill to deal with the healthcare arrangements for the EU/EEA and not the whole world.
Like other noble Lords, I am very grateful to the Minister for the time and effort she and her team have put into discussing the Bill with noble Lords. We can see from today’s amendments that the Government have listened to concerns expressed during the Bill’s stages. That is to be welcomed. I am afraid, however, that on this issue—the scope of the Bill—we find ourselves some distance apart.
We need to remember that the DPRR Committee noted the Bill’s breathtaking scope and commented that the scope of the regulations could hardly be wider. The committee said that it was one thing to introduce skeletal legislation needed in the event of no EU withdrawal agreement, but that this Bill was as much to do with implementing future reciprocal healthcare arrangements with non-EU countries—indeed, that it went much further than merely giving effect to healthcare agreements and covered the provision of any healthcare by anyone anywhere in the world. It concluded that the powers of the Bill were inappropriately wide and had not been adequately justified by the department.
This view was expanded in many ways by the Constitution Committee, which said that 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 did not extend to giving effect to new policy unrelated to Brexit. It concluded that the Bill should be limited to future reciprocal healthcare arrangements with countries that participate in the existing European health insurance card scheme. We agree. These are the tests that need to be brought to bear on the Bill, as was so eloquently expressed by the noble and learned Lord, Lord Judge, in Committee.
During our discussions with the noble Baroness, it was suggested that it would be in some way inappropriate for this House to reduce the scope of the Bill. If the Constitution Committee and the DPRR Committee think that this revision is appropriate, we are bound to give the matter serious consideration. Surely it our job to offer the elected Chamber the opportunity to reconsider the breathtaking scope and powers of this Bill.
Then there are the issues of practicality and policy. On the practicality test, in this pre-Brexit period—and, my goodness, we are now at possibly the most exciting bit, with the discussions that are taking place in the Commons—surely it should be the Government’s priority to ensure that the millions of British citizens currently benefiting from reciprocal healthcare agreements with the EEA and Switzerland, by virtue of our membership of the European Union, continue to do so. The same should be true for European citizens in the UK. A significant proportion of the many UK citizens living in the EU are pensioners, and they will be personally liable for healthcare costs after exit day unless a new agreement with the EU, or new bilateral agreements with individual member states, are in place. It would cost the UK taxpayer more to treat British nationals who have to return home for healthcare.
Lord Judge (CB)
My Lords, I thank the Minister for her efforts to improve the Bill and her courtesy in accommodating my concerns, meeting me and discussing various amendments. I am particularly grateful to her—I emphasise this—for her amendment, which we will consider later, that delivers us from the tyrannous shackles of King Henry VIII. Perhaps this might be the start of a new understanding that the ghost of that monstrous ogre should no longer walk about the corridors of power in this country. Chance would be a fine thing but I commend a little touch of Blackwood to the House.
However, although the Bill has been significantly improved, it is still not good enough. We are faced with nine major regulatory powers, which are put before us as examples of regulations that the Bill might have in mind, or extend to. It works on the basis that we must—as we must—recognise the need of our citizens living in the EU to have their healthcare properly attended to. That puts great pressure on all of us. If it were not for that pressure, I would not accept that the scope of the Bill should be allowed to extend as far as the EU and Switzerland but I understand why it must be so. We are brought, in effect, to face up to the creation of unacceptable powers, and we have no choice, so far as the EU and Switzerland are concerned.
However, we have a choice in relation to international places other than those in the EU. There are many countries to which these powers could be extended, payments made and so on. Last time I said I was being modest. My real worry is about the creation of legislation for such places as Guadeloupe and the Galapagos; and these powers would extend to Venezuela, where the present Government may not be in power indefinitely. We therefore need to think carefully. Introducing out of the blue nine regulations, which are only examples of the powers that would be given to Ministers, goes too far. It is not the way in which we should legislate.
My objection to the Bill, and the reason why I support the amendment, is simple. We must not legislate in this way. We need time to think, reflect and ponder on what limitations and constraints should be put on the power of Ministers. We are therefore being asked to go too far under the pressure of events surrounding Brexit.
Lord Marks of Henley-on-Thames (LD)
My Lords, I have in my name Amendment 4, which has a great deal in common with the other amendments in the group. It is intended to achieve two objects, the second of which is to restrict the operation of the Bill to the EU, the EEA and Switzerland—as do other amendments of the group—by ensuring that the object of any regulations under the Bill would be limited to replicating existing arrangements. The first sentence of my amendment would delete subsections (2) to (4) and thereby drastically narrow the regulation-making power to replicating the reciprocal healthcare arrangements we have now. That part of my amendment fits more sensibly with the amendments in the second group, and I shall address it then. I will be brief in speaking about this group because I agree with every word that the noble Baroness, Lady Thornton, and the noble and learned Lord, Lord Judge, said.
This House has shown conclusively that it supports ensuring that we can continue to provide EHIC cards to the 27 million British citizens who enjoy them and guarantee continuing healthcare to British pensioners living elsewhere in the EU along with the other arrangements for reciprocal healthcare that we enjoy as members of the European Union. Those arrangements are in place. They work extremely well in providing guaranteed healthcare across the countries that they cover. They enjoy very wide public support and are clear. Millions of our countrymen and countrywomen would be very unhappy to lose them as a result of Brexit, but there is absolutely no urgency for introducing legislation now for healthcare deals around the world.
Throughout the debates on this Bill, the Government have not come up with a single reason why we should not now pass this legislation limited to agreeing the continuation of our existing reciprocal healthcare arrangements while deferring legislation for new healthcare agreements with third countries to another time, and then considering the Secretary of State’s powers in the context of those arrangements in another Bill. Before we legislate for new international healthcare agreements, we should be able to consider in detail the criteria for making them, what should be their objects and limitations, what they should contain, who should be in charge of monitoring them and how we might seek to improve them. We should also have clear arrangements in place for their parliamentary scrutiny better than exists under the existing CRaG rules for consideration of treaties by the House of Commons.
It may be, as the noble Baroness, Lady Thornton, said, that international healthcare agreements could be beneficial to Britain and British citizens, but they could also be detrimental, with unacceptable increases in pressure on the NHS and with the potential for healthcare agreements being offered without proper scrutiny in exchange for trade deals on terms that many would find offensive. All we are asking on this side of the House and, as we have heard, from some of the Cross-Benchers, is to give this Bill a fair wind and pass it quickly only to enable the reciprocal arrangements that we have to be continued but giving Parliament a chance to consider carefully the far wider and more difficult issues involved in agreeing new healthcare agreements across the world. This Bill does not do that.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I support my noble friend Lady Thornton who has done a splendid job in dealing with this Bill, in analysing it and bringing forward amendments for consideration by the House. According to the Delegated Powers Committee, this Bill has “a breath-taking scope”. I have not heard that said about any other Bill coming before the House. All the other Bills and statutory instruments that we have considered deal with providing exactly the same arrangements that we have at present in the event of no deal. They have been precautionary for that. This is the only one, as I understand it, and this is the only department that is trying to include something completely new, very wide and extensive, as the noble Lord, Lord Marks, and my noble friend Lady Thornton said.
If the Government want to do that, as my noble friend said, they can wait until the Queen’s Speech. We know that the Government Chief Whip does not know when that will be, but there has to be one eventually and that is the right time for us to consider it. We can then look at the proposals in detail and, as the noble Lord, Lord Marks, said, examine them then. These additional powers are opposed by the trade unions, the BMA and a whole range of people. Indeed, I have not found anyone except Conservative Members and Ministers in favour of this wide extension, this “breath-taking scope”, of the Bill. I hope that the House today will support my noble friend’s amendment and reject the proposal put forward by Her Majesty’s Government.
Baroness Jolly (LD)
My Lords, I too support the amendments in the names of the noble Baroness, Lady Thornton, and my noble friend Lord Marks. I repeat the view that he and the noble and learned Lord, Lord Judge, expressed: we should be producing only legislation resulting from the decision to leave the EU. I thank the Minister very much for meeting us and for the government amendments—particularly to those Henry VIII clauses, which have absolutely no part in modern legislation.
I agree with previous noble Lords, but any Bill dealing with healthcare agreements outside the EU is different. I would be happy to look at these issues in another Bill at another time. As has just been said, the expansion in scope of the Bill looks opportunistic and is completely inappropriate at the moment.
Baroness Chisholm of Owlpen (Con)
My Lords, I cannot agree with these amendments. As we pointed out during the progression of the Bill, we live in a global world, with more people travelling internationally for all kinds of reasons. There is obviously a huge demand for healthcare systems between countries, giving the traveller peace of mind that the foreign country they are in can respond to healthcare needs.
As was also mentioned, we already have simple reciprocal agreements with non-EU countries. The domestic implications are limited, and our current powers to charge domestic overseas visitors, and the regulations under such powers, provide for domestic implementation. Importantly—
Baroness Chisholm of Owlpen
No, let me finish. The Bill will not replace or limit the prerogative power to enter into international healthcare agreements. My understanding is that agreements will still be subject to appropriate parliamentary scrutiny.
It is surely right for us to take advantage of the Bill and look at the opportunities it can offer us. We are not trying to shoehorn something dastardly into it. It could offer all kinds of things. It seems to me that planning ahead is a refreshing thing to do. Many of the arguments raised have nothing to do with protecting or giving peace of mind to travellers. As a nurse, my main priority will always be those needing care. The Bill allows them reciprocal healthcare outside the EU and just that. Should there be a Division, I hope that noble Lords will keep in mind those people who, under the Bill, will be able to travel globally with renewed peace of mind about their healthcare.
Lord Ribeiro (Con)
My Lords, this is an enabling Bill and no more. In a letter to the chairman of the Delegated Powers and Regulatory Reform Committee on 8 March, the Minister confirmed that these powers would be used only in the exceptional circumstances of EU exit. We will discover the outcome of that tonight.
In these circumstances, the regulations’ implementing powers would be subject to parliamentary scrutiny. The assurances and clear message from our debates in Committee—when the Minister was very clear, in answer to a question from the noble Lord, Lord Brooke of Alverthorpe, that reciprocal healthcare arrangements with the United States would present significant challenges because of the different payment systems and such an arrangement was unlikely—should surely be enough to satisfy those who believe that the Government still have a cunning plan to sell the NHS to Donald Trump and others.
As I said in Committee, I believe that the implementation of our international arrangements should be phased, giving priority to our overseas territories, as has been noted; our Commonwealth partners, of which Australia and New Zealand have already been mentioned; and our important international partners, perhaps excluding Venezuela and the Galapagos Islands from that list, as suggested by the noble and learned Lord, Lord Judge.
Anything enabling this to happen should be considered seriously, given the risks of what I believe is likely to be a no-deal Brexit. I do not support these amendments and I hope that the Minister will be able to come up with suggestions for how this can be implemented to overcome some of the concerns expressed from the other side.
Baroness Brinton (LD)
My Lords, both the noble Lord, Lord Ribeiro, and the noble Baroness, Lady Chisholm of Owlpen, are missing the point of these amendments. While this is only an enabling Bill, it increases the scope of reciprocal health agreements with countries outside the EEA and Switzerland to include trade agreements. The noble Lords, Lord Lansley, and Lord O’Shaughnessy, at earlier stages of the Bill, raised exactly this point about setting up trade agreements. We are extremely concerned, for all the reasons given by the noble Baroness, Lady Thornton; this is the sort of large change that requires considerable consultation with the public prior to Green Papers, White Papers and bringing it through the House. We should not try to rush it through as one of the Brexit Bills, which it is, regardless of what happens over the next few days. This is one of the Bills that we were told must be passed by 29 March. Increasing the scope of the Bill means that we are moving into another area that the country, let alone this House, has not had a chance to consider.
I do not believe that reducing the scope would prevent some of the agreements already made; in fact, as the Minister has said when summing up previously, a number are already available. What it does is protect the NHS from being a bargaining tool, particularly—although not only—with the United States. Until the country has a chance to have that debate, it is important that we reduce the scope.
I endorse entirely the comments made by the noble Baronesses, Lady Thornton, and Lady Jolly, the noble and learned Lord, Lord Judge, and the noble Lords, Lord Marks and Lord Foulkes. Our task is solely to replicate the arrangements that may become out of date on 1 April; it is important that we remain focused on that.
Lord Judd (Lab)
My Lords, I too find this amendment imperative. The Bill as it stands has some exciting prospects, which are worth looking at, but if we are to go down that road we must recognise that the implications are highly complex and potentially demanding economically. It is quite unthinkable that we should move along that road without primary legislation that has been properly considered by a wide cross-section of Britain, including the professions. It is extraordinary to bring in exciting, challenging ideas of this kind on the back of a Bill concerned with making sure that the excellent arrangements that exist within the European Union are protected.
The most imperative words that we have heard in the remarks so far—apart from the, as usual, exemplary speech by my noble friend Lady Thornton—came from the noble and learned Lord, Lord Judge, who, with all his experience, said that this is just wrong and that we cannot pass major legislation on this basis. That is exactly how I feel. To dilute our commitment to those in the European Union and, indeed, to people from the European Union living in this country—arrangements will be reciprocal—would be very unfortunate. I hope the House will warmly endorse the amendments.
Lord Wilson of Dinton (CB)
My Lords, I am glad to follow the last two speakers; they have eloquently made the case for supporting the noble Baroness’s amendment, as I do. This is not about supporting Brexit or wanting to remain; it is about the tension that exists between the Executive and Parliament, and the duty of this House, and of Parliament, to scrutinise the proposals of the Government to ensure that good government, as far as possible, is provided in this country.
I am very glad that the Minister has tabled the amendments that will follow later. However, I agree with the noble and learned Lord, Lord Judge: they are a step in the right direction, but that is not enough. The sweeping nature of the powers proposed in the Bill are in many ways offensive to the proper conduct of legislation. I accept that they are needed in the current situation in relation to the EU and Switzerland, but to go wider than that is wrong, I think. We have to insist on legislation being properly prepared, properly debated, properly scrutinised and properly consulted on. If, in the middle of the current turmoil, we let go of some basics of legislation, we will do ourselves harm and set a bad precedent. I shall support the noble Baroness’s amendments.
Lord O’Shaughnessy (Con)
My Lords, although I do not agree with it, a lot of scepticism about the scope of the Bill has been eloquently expressed at every stage of the debate on this group of amendments so far. However, I remind noble Lords of the human consequences of restricting the Bill in the way proposed by these amendments. I think we all agree in general on the benefits of reciprocal healthcare agreements—many noble Lords have paid testament to those—and we all want to see continuity of arrangements with the EEA and Switzerland. So far, so good. However, we have also debated and agreed in principle—in Committee, at Second Reading and in this group—on the desirability of having such arrangements with more countries. Indeed, the noble Lord, Lord Foulkes, talked in Committee about the opportunities of travelling to the USA, which people with long-term conditions can no longer do because they are now uninsured.
Let us be very clear what is at stake. Accepting the amendments in this group would mean that we miss out on a golden opportunity to achieve a shared goal. What are the reasons for that? I do not agree with them, but very good reasons have been given about the kind of procedure and scrutiny that ought to be applied to the new reciprocal healthcare arrangements that we may strike with countries outside the EEA and Switzerland. This is not a disagreement about the principle of having such arrangements; it is a disagreement about the process of agreeing such arrangements. However, the consequence of these amendments is not to deal with these issues by changing procedure, scrutiny and process, but instead to strike them out on principle. That does not seem to me the right approach to very well substantiated and perfectly reasonable, but ultimately procedural, concerns. By changing the Bill in this way, we will lose the opportunity to deepen relationships with key partners such as New Zealand and Australia, as my noble friend Lord Ribeiro said. We will miss out on the opportunity to give people with long-term medical conditions the chance to travel outside the EEA to visit family or to work, and for young people to broaden their experiences. We will miss out on the opportunity to deepen—
Baroness Brinton
Please allow me to intervene; I am afraid I cannot stand up to do so.
Is the noble Lord suggesting that by passing the Bill, existing arrangements outside the EEA and Switzerland would become null and void?
Lord O’Shaughnessy
I think the noble Baroness knows that that is not what I am saying. We will miss out on the opportunity to turn the fairly shallow arrangements that we have at present into the kind of deep arrangements that we enjoy with the EEA and Switzerland. We would also miss out on the opportunity to deepen relationships with EU accession countries and to provide reciprocal healthcare arrangements that would underpin any other international arrangements that we may want to strike in the future. All this would be lost if we were to accept these amendments.
There are other factors that we must also take into account. Amendment 9 provides greater opportunities for scrutiny and restrains the Government’s powers. The noble and learned Lord, Lord Judge, spoke of the untrammelled ability to organise agreements with countries such as Venezuela and others, but there are natural limitations—not simply the scrutiny available through the processes my noble friend Lord Ribeiro talked about, but also the need for data adequacy. We will not be able to strike such arrangements with any country we want, and they would have to be under the aegis of an international agreement scrutinised and passed in the other place and this House.
It was suggested by the noble Lord, Lord Wilson, in Committee that I had unwittingly made the case for another Bill, and the noble Baroness, Lady Thornton, talked about that. Another Bill is easier said than done, and anyone who has been in Government knows that you cannot just pitch up with a Bill. There is a complicated and often painful process of going through the PBL Committee and other committees to get such Bills. This Government are constantly accused of doing nothing other than Brexit, and here they are doing something other than Brexit. Surely this is a welcome opportunity to do something beyond the thing that, frankly, we are all a bit tired of talking about.
If not now to extend the scope of our powers to strike these arrangements on a global basis, then when? We cannot assume that another opportunity will come this way soon, and what will the human consequences of that be?
Viscount Bridgeman (Con)
My Lords, I am privileged to follow my noble friend Lord O’Shaughnessy, and I am sure that Peers from all sides of the House will have been impressed by the thoughtful letter which the Minister has sent to us all. In it, there are a number of concessions, which will be subject to later amendments in this debate. The insertion of a sunset clause is a valuable safeguard, as are the requirements that arrangements are limited to a public authority, and the statutory duty to report to Parliament on an annual basis. All of these are important concessions. Finally, on the Henry VIII clause, the Minister’s letter refers to removing the powers in the Bill to make regulations containing consequential amendments to primary legislation. Individual healthcare waits for nobody.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)
My Lords, I am grateful to the noble Baronesses, Lady Thornton and Lady Jolly, and to the noble and learned Lord, Lord Judge, the noble Lord, Lord Marks, and the noble Earl, Lord Dundee, who I am sorry could not be with us today, for giving me the opportunity to deal with the important matter of the global nature of the Bill. We have already had a good deal of debate about this during our progress on the Bill, but it is a pleasure to return to it today yet again.
It is important that the Government explain why we believe it appropriate to seek powers which are global in nature. As I mentioned in my response in Committee, the EU Home Affairs Sub-Committee of this House, which is very wise, remarked that:
“Reciprocal healthcare oils the wheel of the day-to-day lives of millions of citizens”,
and brings the,
“greatest benefit to some of the most vulnerable members of our society”.
I am grateful to noble Lords from across the House, not only in the debate today but during the progress of this Bill, who have been clear that there is widespread cross-party support for the current EU arrangements, and for providing the people who rely on these arrangements with the assurance that the Government are taking all the necessary steps to support them in these uncertain times.
We clearly all support the arrangements we have with the EU. It therefore does not seem logical to preclude the possibility of seeking new arrangements or strengthening existing ones outside the EU. Where the Government have a good policy in one place, it seems logical that we should want to extend it to others. Reciprocal healthcare agreements promote tourism and facilitate economic exchange and growth by enabling people to study, travel and work abroad without worrying about their ability to access healthcare, or the cost of doing so. As we have discussed in our debates on this issue, reciprocal healthcare arrangements are particularly important for older people, people such as me with chronic conditions, or people with disabilities, for whom access or costs can be a genuine barrier to travelling.
Reciprocal healthcare agreements enable people to travel overseas for planned treatment, which enables patient choice. One of the genuine benefits of the current EU arrangements is to enable mothers to travel to a home country to give birth close to their families and support networks. That is available only to EU citizens at the moment, not to those from other countries who live here. Our existing arrangements with the EU enable around 1,350 UK residents to receive planned treatment or maternity care in another EU member state. We do not want to be forced to limit choices only to EU countries in the future.
Reciprocal healthcare agreements can also help to support international healthcare co-operation through fostering closer working relationships between countries and states. We can be proud that the UK is a prominent voice in the global healthcare community and is a key driver in global attempts to raise standards of patient safety. We could help to further drive that agenda through developing even stronger relationships with our close partners. I have heard the concerns raised by noble Lords about the costs of these arrangements. Reciprocal healthcare agreements enable countries to reimburse one another on a fair and transparent basis. Noble Lords, particularly the noble Lord, Lord Foulkes, have queried why we cannot simply rely on waiver agreements. Fair reimbursement is the key reason why. Without this Bill, we would be restricted to waiver agreements outside the EU without a way to establish fair and transparent payment and cost-recovery mechanisms.
Agreements with other countries predate the EU and have never been limited to Europe. This is one reason why the concept of restricting the Bill to the EU does not make sense. We have agreements outside the EU now and will continue to have them in the future. The noble and learned Lord, Lord Judge, and my noble friend Lord Ribeiro raised the matter of scope—the countries which the Bill would apply to. As Clause 4 sets out, data can be shared only in accordance with the GDPR and our data protection regulations. This means that no reciprocal healthcare agreement could be reached with a country that does not meet data adequacy standards. Over and above that, as my noble friend rightly noted, this scope would be further narrowed by the need to agree reciprocal healthcare arrangements only with countries that have a compatible healthcare system. This would mean that countries such as Venezuela, raised by the noble and learned Lord, Lord Judge, would simply be out of scope for an international healthcare agreement. Safeguards built into the Bill would be in place.
I make it clear that I have heard the concerns raised at Second Reading and in Committee about the global scope of the Bill and the breadth of the delegated powers. We have taken considerable steps to address the concerns about the breadth of the powers—the root cause of the concern about the global scope. As has already been referred to, we have tabled a large package of concessions, which I worked hard to try to deliver. The first was to remove the consequential Henry VIII powers; I am taken by the terminology for this now being a “Blackwood amendment”. We have limited the ability to confer functions to public bodies. We have provided greater parliamentary scrutiny over regulations relating to data processing and greater transparency over the financial aspects of future reciprocal healthcare policy in the form of an annual report. I hope that this reassures the noble and learned Lord, Lord Judge. We have placed a statutory duty to consult the devolved Administrations where regulations make provision within devolved competence. Finally, and very significantly, we will sunset two of the three regulation-making powers at Clause 2, so that they can be exercised only for a period of five years after exit day. This final amendment means that it is not possible for the Secretary of State to set up any kind of long-term scheme to unilaterally fund mental health treatment in Arizona or hip replacements in Australia, as the DPRRC proposed. In tabling these amendments, we have limited the delegated powers and therefore the scope of what can be done under the Bill around the world. We have also provided additional parliamentary scrutiny mechanisms and greater transparency.
During the debate on Amendments 1, 2, 11, 12, 13, 27, 28 and 29, from the noble Baronesses, Lady Thornton and Lady Jolly, the noble and learned Lord, Lord Judge, and my noble friend Lord Dundee—who cannot be in his place—I have not heard any concerns raised on the fundamental principle of reciprocal healthcare in countries outside the EU. Rather, I have heard the need for reassurance that in implementing agreements with other countries we seek to appropriately cost such arrangements, protect the NHS, and ensure that those countries which we strengthen or make new agreements with have appropriate healthcare systems and are able to process data appropriately. We are firmly committed to all these principles.
When the Bill was debated in the other place, questions were raised concerning the possibility of a reciprocal agreement with Guernsey, which is something we will need to look into following EU exit. This was seen as a positive possibility of the Bill; it is just one example of how our relationships might evolve and how the Bill can offer people new opportunities which they are currently denied under our legislative framework. If the scope of the Bill is limited to matters relating only to EEA countries and Switzerland, the Government would be unable to implement a reciprocal healthcare agreement with countries such as Guernsey where we are able to reimburse one another fairly. We would also be giving up the opportunity to support people, to bring them confidence and comfort outside the EU.
As the UK considers its relationship with the rest of the world, it is appropriate to take this opportunity to consider strengthening our existing agreements while exploring possible agreements with other countries. The powers under this Bill allow us to fund healthcare overseas to support UK nationals who live in, work in, study in, want to visit or give birth in other countries, while ensuring that we also have appropriate scrutiny powers within this Bill. They also allow us to extend similar opportunities to overseas nationals to use the NHS funded by their own country, making the NHS more sustainable and fit for the future. This is what we would be giving up with these proposed amendments.
There has been much debate in this House and outside it about whether there should, in fact, be two separate Bills: one to provide for implementing agreements with EU, EEA countries and Switzerland, and the other at a later date to provide for countries outside that group. I believe that this is the intent of Amendment 4, in the name of the noble Lord, Lord Marks. That would not be an effective use of parliamentary time; it would prove a barrier to the development and implementation of policy in this area that is clearly in the interests of the people whom I have already discussed. I am also not clear how different a different implementing Bill would look, as it would simply be for the implementation of international healthcare agreements and would be rather similar, whether they are for the EU country or for a country in another part of the globe. It seems to be doing the same work twice.
With the Bill, we seek to ensure that we have an implementing mechanism for reciprocal healthcare now and into the future. While it may be appropriate in other policy areas for the Government to seek new primary powers to implement specific, individual international agreements, it is simply not the case with reciprocal healthcare agreements. These agreements are not far-reaching in nature and are very limited in subject matter: they are about reciprocal healthcare. As has already been discussed, the Government already rely on the royal prerogative to enter into these agreements with other countries. This Bill is simply a smarter implementing mechanism for these agreements.
I also have concerns that Amendment 4 risks our ability to effectively implement a future relationship with the EU. Recognising the broader benefits of reciprocal healthcare, we want a long-term relationship with the EU but, as with any area of policy, we must have flexibility as to how we negotiate with the EU and how we arrange our broader relationship with it. EU law evolves and, as we discussed in Committee, there are proposals currently before the European Parliament that would mean that elements of that model might change in the near future. This amendment would prevent the UK from implementing that evolved arrangement even if that was the desired negotiating position of the UK. If we put this on the face of the Bill, we would have no flexibility on how we would do that, including agreements already concluded with Switzerland and the EEA and EFTA states. The noble Lord himself acknowledges in his amendment that flexibility is needed, but through this amendment that flexibility would be difficult to apply in practice.
In relation to all the amendments in this group I firmly believe that, in pursuing future reciprocal healthcare policy with close partners outside the EEA and Switzerland, the Government are providing hope and opportunity to people. Our colleagues and friends in the other place overwhelmingly supported this endeavour. We have introduced significant restrictions on what this Bill can do globally. However, I regret that these amendments would prevent us from being able to look to the future and embrace an opportunity for EU exit. It would be a great shame to miss that opportunity.
I recognise the valuable contributions from many Members of the House on enhancing and improving many elements of this Bill; I thank them for the time that they have given me, but I am unable to accept these amendments. I hope noble Lords will feel able not to press their amendments on that basis.
Baroness Thornton
I thank the Minister for her remarks and for the attention that she has paid to this matter all the way through. Everybody appreciates that enormously. In a way, she has made my argument for me, as has the noble Lord, Lord O’Shaughnessy, because nothing in the Bill says that healthcare agreements have to be reciprocal. In a way, that proves that we do not need an international healthcare arrangements Bill: we need a European Union-EEA healthcare Bill to deal with reciprocal arrangements and do the job that we have in front of us.
I do not accept the argument put by the noble Lord, Lord O’Shaughnessy, tugging at our heartstrings, about the human consequences of this. Actually, there is nothing to stop the Government bringing forward a global healthcare Bill. I am absolutely sure that the Minister and her colleagues, with the help of the noble Lord and others, could get this into the Queen’s Speech in two months’ time, when we could have all these discussions about how it might work. He said that we do not have any disagreements in principle about this. Actually, we do not know whether we have any disagreements in principle about international healthcare because we have not had that discussion: that is the discussion we would have if we were dealing with a Bill that was being consulted upon, going through pre-legislative scrutiny and all those other things that we have been arguing need to happen if we are to have a Bill of the scope that the Minister and her party wish to have.
I thank the noble and learned Lord, Lord Judge, the noble Lord, Lord Marks, the noble Baronesses, Lady Brinton and Lady Jolly, and my noble friends Lord Foulkes and Lord Judd for their support. In particular, I thank the noble Lord, Lord Wilson, who, in his brief remarks got the argument absolutely right yet again. As I was preparing for this, I looked at the agreements we have with Australia and New Zealand, for example. These things are complicated—of course they are— and in a way that is why they deserve and need further consideration. I fear that we are not convinced by the Minister’s arguments and I would like to test the opinion of the House.
Baroness Thornton
“and may not exercise the power conferred by section 1 otherwise than in accordance with such regulations.”
Lord Marks of Henley-on-Thames
My Lords, as I should have done at the beginning of the first group, I thank the Minister for her help and courtesy in discussing this Bill and in engaging with Peers across the House to see how we should proceed with it. I echo the words of the noble and learned Lord, Lord Judge, including his tribute to the Blackwood amendment in respect of Henry VIII powers. As the Minister will have appreciated and has recognised by her actions, there is a real concern about the use of delegated legislation to amend or revoke primary legislation and EU legislation.
Amendment 3 is intended to bring a constitutionally acceptable structure to the Bill. It will ensure that the powers of the Secretary of State can be exercised only within the context of regulations. I will start with a word or two about the other amendments in this group: Amendment 5, on the words “for example”, and government Amendments 6, 7 and 8, which limit the delegation of powers to public authorities.
As we have heard, Clause 2 contains the principal regulation-making powers. We had considerable debate, both at Second Reading and in Committee, about how unacceptably wide those powers are. The use of “for example” at the beginning of Clause 2(2) speaks volumes as to the disrespect shown in the Bill for the proper restriction of ministerial powers. The Delegated Powers Committee and the Constitution Committee have exposed how outrageously broad these powers are.
My amendment is directed at the absence of anything in the Bill that would limit the Secretary of State to exercising his Clause 1 powers only in accordance with regulations. One does not have to read far into the Bill to appreciate that, under Clause 1:
“The Secretary of State may make payments, and arrange for payments to be made, in respect of the cost of healthcare provided outside the United Kingdom”.
This is wholly without restriction. It is this glaring deficiency—the failure to tie the Secretary of State to the exercise of powers in accordance with limitations either in the statute or contained in regulations—that my amendment is intended to cure.
The Minister frankly and commendably, if I may say so, recognised on our first day in Committee that the effect of Clause 1, if not amended in the way I suggest, would be to enable the Secretary of State to make or arrange payments without any regulatory limitation. She justified this untrammelled power—which, frankly, I find frightening—on the basis of urgency. She said that the Bill was unlikely to secure Royal Assent before March, so regulations would not be laid before the summer. If there were no deal, she explained, Ministers might need to use the powers before then. She mentioned—again, frighteningly—sharing data as well as making healthcare payments before the Government had a chance to get regulations passed to deal with these matters “more transparently”, as she put it.
This clause alone, unamended, would justify this country ruling out a no-deal exit and ensuring that our leaving date is delayed. It is an extraordinary travesty of the notion of the United Kingdom Parliament taking back control that we are asked to pass a Bill which involves ceding to Ministers an entirely unconstrained power to pay money out across the world on the sole professed ground that the Government failed to introduce legislation in a timely way, and to permit Ministers to spend public money and make arrangements of great public importance without any parliamentary scrutiny or authorisation.
I turn briefly to the other amendments in the group. Many of us still take the view that their scope is breathtakingly and unacceptably wide. The Government’s proposal to limit possible delegation of the Secretary of State’s powers so that such powers may be conferred only on a public authority is of course welcome; so is the limited five-year sunsetting provision, to which we shall return later, but, taken together, they barely scratch the surface of the massive transfer of unrestrained power from the legislature to the Executive set out in Clause 2. Of course, the sunsetting clause should be more restrictive—at least as restrictive as proposed by the noble and learned Lord, Lord Judge. Again, we will come to that later.
It goes without saying that the ridiculous and offensive restriction-busting words “for example” should be removed, as proposed in Amendment 5. However, the only satisfactory way to restrict the Government’s power to what is necessary and acceptable is for the House of Commons to now accept the amendment we just passed restricting the use of the Bill to replicating the arrangements we have with the EU, the EEA and Switzerland. We hope that it does that.
This Government and future Governments must show more restraint and respect for the proper limits to the scope of delegated legislation. In the Bill, as in others to do with Brexit, they have not done that. It is to be hoped that they return to a wiser path in future.
Baroness Thornton
I thank the noble Lord, Lord Marks, for his exposition, which saves me from exploring yet again the powers in the Bill. I shall speak to Amendment 5, which is a simple amendment but one that we think might be quite clever in its intent. It states that regulations under the Bill can be made only for specific purposes.
When the clause was debated in Committee, noble Lords discussed the nine regulation-making powers mentioned by the noble and learned Lord, Lord Judge, which brought comment from the DPPRC, about the widest possible scope. However, as drafted, Clause 2(2) appears to bestow infinite powers on the Secretary of State to make regulations by virtue of the seemingly innocuous phrase “for example”, which effectively grants the Secretary of State carte blanche to bring regulation forward outside the listed examples in relation to pretty much anything and everything. Just deleting those words will assist with the accountability that needs to be built into the Bill.
Amendment 5, which has the support of the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Jolly, would ensure that regulations can be brought forward under the Act only for the purposes specified. We will, of course, support the Minister in the amendments she has tabled in this group—Amendments 6, 7 and 8 —and I think the combination of our amendment and hers significantly improves the Bill, so I hope she will accept it. I probably need to say that, unless there is a very good reason why she does not want it and why it should not be there, we will seek support from the House for this amendment.
Lord Judge
My Lords, we have here a new example of constitution-making. We have now got rid of Henry VIII in this Bill and we have something rather more subtle—not something that that great, mighty ogre could have conceived of for himself.
The new example is:
“Regulations under subsection (1) may, for example”.
Those of your Lordships who were in the House when we discussed the Trade Bill last week will remember another regulation-making power—another blockbuster like this one—only the words used were not “for example” but “among other things”, in relation to regulations under whichever subsection it was. What kind of primary legislation is this? It is really rather alarming. The primary legislation provides:
“The Secretary of State may by regulations”,
do this, that and the other: (a), (b) and (c). Well, fine. The regulations “may” do nine things—there is an amendment to one of them to come later, but this is not relevant to present purposes—specifying just about anything you can think of.
Why do we not say, even in relation to the EU, that the regulation-making power should be defined as widely as it is in Clause 2(2) but not extend further? The reality is that, with these words, in truth there is no limit to the regulation-making power. I find that astonishing, and I suspect that many Members of your Lordships’ House will find that astonishing. So we now have within the terms of the Bill—subject to the Henry VIII point, which is going—in effect an undefined, unconstrained power given to the Secretary of State to make regulations. It will not do.
Lord Tyler (LD)
My Lords, I am delighted to follow the noble and learned Lord, Lord Judge; he has been totally consistent in this field, and I very much sympathise with the point he has just made.
I serve on the Delegated Powers and Regulatory Reform Committee and, although I cannot speak on its behalf, I think it would share with me the view that the way in which the Minister has responded to our concerns and corresponded with us has been exemplary. We thank her, I am sure, for that; it is very valuable. However—she probably anticipated a “however”—in our report of 14 February there were two critical paragraphs to which she has not responded in the various exchanges we have had with her. I hope your Lordships’ House will not mind if I read them, because they are extremely important, not just for this Bill but for a whole series of Bills that have been coming before us in recent weeks. The paragraphs refer to some of the correspondence we had with the Minister, and go as follows:
“The Minister repeatedly refers to the need for ‘flexibility’, given that reciprocal healthcare arrangements remain subject to negotiation. She says that there must be flexibility as to the meaning of healthcare, as to the persons who can be funded and as to the persons to whom functions can be delegated. The Minister says, at paragraph 19: ‘This is a forward-looking Bill and so flexibility is key’”.
We then put in our report, in heavy type:
“Powers that are too wide are not the more attractive for being part of a ‘forward-facing’ and ‘forward-looking’ Bill”.
We continued:
“At paragraph 29, the Minister says again that the Bill is a ‘forward-facing Bill’, this time to justify taking powers to go beyond replacing current EU arrangements”.
Again, in heavy type the report continued:
“Given that post-Brexit reciprocal healthcare arrangements are the Bill’s principal target, the powers in clause 2 to make law governing the provision of healthcare by anyone anywhere in the world could have been more effectively circumscribed”.
Those two paragraphs are not just appropriate to this Bill but demonstrate how, on many occasions in recent weeks, we have been effectively offered a skeletal Bill, with very considerable primary legislation made subject to largely unspecified future executive powers. Very often, it would seem, there is good reason, because of urgency or expediency. We are, however, establishing precedents for the post-Brexit situation. At the moment this can be used as an excuse—perhaps only for a few more days before the other place decides that the timescale is ludicrous—but it is not acceptable that we are constantly given legislation for a particular purpose and told that Ministers must have very wide-ranging, unspecified future powers simply for reasons of urgency. As the noble and learned Lord, Lord Judge, and the noble Lord, Lord Marks, have said, if we are not very careful we will establish precedents in this way.
I hope that when the Minister responds—having not previously done so in her exchanges with the Delegated Powers and Regulatory Reform Committee—she will comment on the particular points that were made in the report’s recommendations.
Lord Hope of Craighead (CB)
My Lords, I think that the noble Lord is right in saying that we are establishing a precedent, but I have been looking at the word “example”, and wonder whether the Minister has examples of this kind of legislation being used elsewhere. I cannot think of any. I examined the withdrawal Bill, which was very wide-ranging, and as far as I can recall this phrase does not appear in it even though it contains many provisions about delegated legislation. It would, therefore, be helpful to me if it was demonstrated that this is not the kind of precedent that has been described. In general, however, I congratulate the Minister and her Bill team on going a very long way to meet our objections in later parts of the Bill. I am, however, worried about this bit of it and would like to be reassured.
Baroness Blackwood of North Oxford
My Lords, I thank the noble Lord, Lord Marks, for tabling Amendment 3 and the noble Baroness, Lady Thornton, for Amendment 5, both of which seek to place limits on the powers in the Bill.
I will first address the noble Baroness, Lady Thornton, the noble Baroness, Lady Jolly, and the noble and learned Lord, Lord Judge, on Amendment 5, and clarify the purpose of Clause 2(2). We have had some debate about this already but this will be helpful. Clause 2(2) is intended to be an illustrative list of examples of the type of provision that may be included in regulations made under Clause 2(1). It is not itself intended to be a delegated power. The intention has always been to be prudent and transparent in the use of the delegated legislation, and the list was included to be helpful, by demonstrating the types of provision that the regulation-making powers at Clause 2(1) could enable, in order to effectively implement international healthcare regulations in the same way as under reciprocal healthcare regulations. This is not uncommon in primary legislation.
The list is reflective of the kind of provision already included in our current, more comprehensive, reciprocal healthcare arrangements with the EU, and it is intended as a guide to how the powers in Clause 2(1) can be exercised. Regulations under this clause need to be able to do everything that they might need to do to provide healthcare outside the UK, or to give effective agreement. I described in some detail during our debate on this clause in Committee why each of the descriptive lists were included and what they would be used for.
This amendment could mean that future Administrations would be unable to effectively implement reciprocal healthcare agreements with the EU, individual member states or other countries. The reason for this, which has already been alluded to in the debate, is that we have not yet concluded those negotiations and so it is not possible to rule out what we may need to provide for in regulations to give effect to an agreement. In addition, it would not be appropriate to circumscribe in the Bill the Government’s negotiating mandate with the EU, EU member states or countries outside the EEA and Switzerland.
The examples in Clause 2(2) are not exhaustive, but they are useful pointers to aid understanding of how Clause 2(1) is capable of being exercised. I think they have served their purpose, given that we have had such robust debate about them. They offer additional transparency and assistance in understanding how the regulation-making powers in Clause 2(1) would work for the purpose of implementing reciprocal healthcare agreements. This is not an unusual statutory construction; there are examples of where regulation-making powers are accompanied by illustrative lists of what may be included in regulations in order to provide assistance in the understanding of what the powers are capable of doing. As to whether those illustrative lists include the words “for example”, I have an example from Clause 11(2) of the Automated and Electric Vehicles Act 2018, which states:
“Regulations under subsection (1) may, for example—”,
include paragraphs (a), (b) and (c). That is perhaps a helpful example for the noble and learned Lord, Lord Hope.
As this important policy area continues to develop and progress both in the EU and outside the EU, it is appropriate for the Government to be able to respond to protect the continuity of care of those already in receipt of reciprocal healthcare, as well as to explore whether we would like to extend it to others. Were we to accept this amendment, it would, as I said on the previous group, restrict the implementation of reciprocal healthcare arrangements to current processes. That is clearly inappropriate when implementing dynamic agreements in which there are two parties.
Regulations under Clause 2(1) need to be able to do everything they might need to do to provide for healthcare outside the UK or give effect to a healthcare agreement. One small example of why it is right that the Government retain the ability to do this is developments in IT or new technology. As technological change continues to gather pace, it is right that the Government should be able to make the best use of those changes and ensure the most effective and efficient systems for the people accessing these arrangements. That is why we might need to bring in another regulation-making power. I hope the noble Baroness, Lady Thornton, as a former Health Minister, would agree that technology has the power to change the way people access healthcare and can make a real difference in people’s lives, especially perhaps those who are restricted from accessing healthcare because of long-term conditions or distance from services.
While the illustrative list at Clause 2(2) does not expressly make reference to this matter, it may well be necessary to make arrangements to ensure that the most effective and efficient technological processes and systems are incorporated into the implementation of future reciprocal healthcare agreements. The Government are working, through this Bill, to ensure that we have the necessary ability to implement future international healthcare agreements with both EU and non-EU countries.
Amendment 3 in the name of the noble Lord, Lord Marks, speaks to concerns about the breadth of the powers in the Bill. Clause 1 follows a long line of general payment powers found in primary legislation, further to the Public Accounts Committee’s concordant that government expenditure should flow from a specific Act of Parliament. It is a free-standing payment power and needs to be so. Notwithstanding that, we have deliberately chosen to include a power in Clause 2(1) that can be used to support the exercise of the payment power. Therefore, it is not possible for the Government to accept this amendment. Indeed, the DPRRC recognises that general payment powers are not delegated powers.
As I said in my response to this amendment in Committee, the Bill is making good progress through Parliament but clearly will not have Royal Assent until later this month. So, with the best will in the world, we will not be able to lay regulations until the summer. However, in the undesirable, unprecedented situation of no deal, we may need to use these powers before then. That would be specifically for a scenario concerning citizens’ rights agreements with the EFTA states and with Switzerland, which will protect reciprocal healthcare for people living in those countries on exit day, or in other specified cross-border situations.
It is good news that we have operative agreements in the context of no deal, as they will guarantee healthcare for those covered by them. It is likely, though, that we will need to use the power in Clause 1, together with Clause 4, to temporarily implement those agreements. We cannot therefore accept the amendment because we would not be able to protect the healthcare arrangements of people in those countries. We will bring forward further detail in coming weeks when we can be clearer about bilateral agreements, and on the need for any further arrangements. I hope that noble Lords will agree that the Government must have the ability to provide for people at this unprecedented time. I emphasise that stand-alone funding powers such as those in Clause 1 that operate without the need for delegated legislation are not unusual—so this is not being brought in simply because of a no-deal situation.
I have listened carefully and considered the comments of noble Lords about concerns about the scope and breadth of the power. That is why we have sought to address concerns about it, with a large package of amendments to which I have already referred. We have specifically limited the delegated powers and the scope of what can be done under the Bill, and provided additional parliamentary scrutiny mechanisms and greater transparency.
Finally, I will speak to government Amendments 6, 7 and 8. They are in direct response to the concerns raised that regulations under the Bill could be used to confer functions on anyone, anywhere. It is understandable that noble Lords raised the possibility that the regulation-making powers in Clause 2 could be extended to confer functions on private bodies. There is not and has never been an intention to confer functions on private bodies in order to implement reciprocal healthcare arrangements. This was always the case but, given the concerns raised, we are taking action to make this clear.
The proposed government amendments limit Clause 2 to the operation of Clause 2(1) to ensure that any conferral or delegation of functions may only be to a “public authority”. The definition of “public authority” is a person who exercises a function of a public nature. This ensures that public bodies maintain autonomy over how services are procured, contracted and delivered. When making regulations to implement such healthcare agreements, we wish to confer relevant functions on appropriate public bodies according to their part, giving them clear legal responsibility and an operating mandate. Our amendment does not prohibit us from doing this.
I therefore hope that noble Lords will withdraw or not move their amendments.
Lord Marks of Henley-on-Thames
My Lords, I shall seek leave to withdraw my amendment, because I feel very much under pressure from what the Minister has just said. It is the case that the free-standing power is needed, as she said, because of the delay that there has been in order to ensure that the payment power can be used before regulations can be laid. My amendment would therefore imperil the continuation of our current European arrangements. I feel under pressure because it the wrong way to do this. It is a great shame that this legislation was not introduced timeously, but I do not wish to divide the House on my amendment and I beg leave to withdraw it.
“(2) Regulations under subsection (1) may be used only to the extent necessary to replicate so far as possible the model of reciprocal healthcare for the European Union, the European Economic Area and Switzerland in place before the withdrawal of the United Kingdom from the European Union.”
The Deputy Speaker (Baroness Garden of Frognal) (LD)
Amendment 4 is, I think, consequential on Amendment 1.
Lord Marks of Henley-on-Thames
I am not sure that Amendment 4 is entirely consequential, so it is probably better if I do not move it, now that Amendment 1 has been agreed.
Baroness Thornton
Baroness Thornton
I listened very carefully to the Minister and I am not convinced, partly because the regulations under Clause 2(2) are very helpful. They give the Government everything they need to take forward the negotiations on reciprocal healthcare, and as the Minister herself said, we have put the regulations in place to help with a no-deal situation, which I hope will not occur. But the noble and learned Lords, Lord Hope and Lord Judge, made the point that those words are, while dangerous might be an exaggeration, certainly not appropriate.
Lord Woolf (CB)
Does the noble Baroness agree that, with “for example”, you may not be extending the jurisdiction of the regulations but actually limiting their range? That is what the Minister was seeking to tell us in her eloquent description of her case. If you say “for example, cows”, you have the example of animals that fall within the range of cows. Without that phrase, some cases would not apply to cows.
Baroness Thornton
I hate to disagree with the noble and learned Lord, Lord Woolf, but the words “for example” expand the list rather than decrease it. That is the point of this amendment. Given the huge weight of regulations that we are dealing with in this House, if something is not included in that list, I am sure that that can be remedied. We are getting very good at remedying those situations. We on these Benches think—and other noble Lords have certainly agreed—that “for example” expands the range and that is not necessary or appropriate, so I beg to move and wish to test the opinion of the House.
“(2A) But regulations under subsection (1) may not confer functions on, or provide for the delegation of functions to, a person who is not a public authority.”
“(5) In this section “public authority” means a person who exercises functions of a public nature (but does not include a person who does so only because of exercising functions on behalf of another).”
“(6) No regulations may be made under subsection (1)(a) or (b) after the end of the period of five years beginning with exit day.”
Baroness Blackwood of North Oxford
My Lords, the Bill’s delegated powers and their global application have been a source of spirited debate since this Bill’s introduction, and noble Lords have rightly given considerable scrutiny to this matter. A number of amendments were tabled in Committee, including those by the noble Baronesses, Lady Thornton and Lady Jolly, the noble Lords, Lord Patel, Lord Kakkar and Lord Marks, and the noble and learned Lord, Lord Judge. This issue has concerned Peers across the House. I am pleased to say that the Government have listened carefully and tabled an amendment that significantly curtails the scope of the delegated powers in the Bill.
Amendment 9 directly addresses the concerns raised by restricting the exercise of the delegated powers, and, as we have already discussed, limits the global scope. The Bill is intended to support the implementation of comprehensive reciprocal healthcare arrangements with countries within and outside the EU, and to implement possible future partnerships. It was drafted to fulfil this purpose in a number of different scenarios, and that remains the Government’s intention, but we have listened closely to the points raised by Peers both inside and outside of this Chamber, as well as to the views of the DPRRC and the Constitution Committee, and concluded that the regulation-making powers that can be used to set up schemes for unilateral healthcare overseas should be time-limited.
The powers in Clause 2(1)(a) and Clause 2(1)(b) would primarily be needed, in the event of a no deal, to mitigate any detrimental effects of a sudden change in healthcare access for UK nationals living in the EU. These powers would be required in the event that reciprocal arrangements are not in place. Our aim remains to reach an agreement on reciprocal arrangements, but as a sensible Government, we need to plan for all eventualities.
In the unprecedented event of leaving the European Union with no deal, we would need to have the option of establishing support mechanisms for people in exceptional circumstances where there would be a serious risk to their health should any member state not agree to maintain reciprocal healthcare. However, we have listened, and want to ensure that while the Government have the ability to provide for people in this unprecedented time, we are still respectful of the constitutional roles of Parliament and the Executive. In response, we feel that the delegated powers that implement healthcare arrangements outside of reciprocal healthcare agreements with other countries should be sunsetted.
During the five years before the sunset, we will retain the flexibility to deal with exit scenarios using regulations under Clause 2(1) as appropriate. These powers can be used to offer UK nationals reassurance and certainty, which we intend through this Bill. After the sunset, making use of the regulation-making powers under Clause 2(1) would be limited to Clause 2(1)(c) only, which provides the Government with a mechanism to give effect to future complex global healthcare agreements. However, it is important to state that this amendment will mean that it is not possible for the Secretary of State to set up any long-term scheme to unilaterally fund mental health treatment in Arizona or hip replacements in Australia, as has been suggested. Of course, this is not something a reasonable Government would intend to do, but I am happy to provide that reassurance. However, we would want to remove any perceived risk regarding this power, and that is the intention of this amendment.
In tabling the amendment, the Government have sought to clarify the intended use of the important powers in Clause 2(1)(a) and (b). This represents a significant restriction of the Government’s use of delegated powers, in direct response to concerns raised by parliamentarians across this House. It also represents a significant check on the global scope of the Bill. On that basis, I beg to move.
Lord Lansley (Con)
My Lords, my noble friend will forgive me if I ask for a point of clarification. If Amendment 9 is passed, after the sunset clause is implemented, powers could only be made in relation to a healthcare agreement. However, Clause 3 says that a healthcare agreement can concern either healthcare provided outside the United Kingdom and paid for by the United Kingdom, or healthcare provided in the United Kingdom with another country paying. It does not require reciprocity. Is that quite the restriction my noble friend was suggesting, since it could still be unilateral, not reciprocal?
Baroness Thornton
I thank the Minister for tabling this sunset clause; she is quite right to do so. I had not thought of the question asked by the noble Lord, Lord Lansley, but it is a good one. However, we support the amendment.
Baroness Blackwood of North Oxford
I thank my noble friend Lord Lansley for his question. This power enables a unilateral scheme, so it does not require reciprocity and is intended to be used only in an emergency scenario where a group of individuals are in difficulty. That is why it is appropriate to sunset it in this way.
I thank the House for its support for the amendment and hope that the noble and learned Lord, Lord Judge, will withdraw his amendment on that basis. I beg to move.
Lord Judge
“( ) No regulations may be made under subsection 1(a) or (b) in relation to countries outside the European Economic Area or Switzerland after the end of a period of two years beginning with exit day.”
Lord Judge
Given the result of the Division earlier this afternoon, I do not intend to move this amendment. If we have to reconsider the issue, however, I may have to come back to it.
Baroness Thornton
Lord Clement-Jones
“( ) The processing of personal data in accordance with subsection (1) must comply with—(a) the seven Caldicott principles outlined in the Caldicott Committee’s Report on the Review of Patient-Identifiable Information and subsequent reports;(b) the Government’s Data Ethics Framework.”
Lord Clement-Jones
My Lords, I beg to move Amendment 14, and your Lordships will be pleased to hear that I will be brief.
During the passage of the Bill, considerable concerns have been raised by a number of noble Lords about the use and sharing of data within the NHS. It is a hotly contested subject, and one of the best briefings on it is from our Library, prior to a debate on 6 September initiated by the noble Lord, Lord Freyberg. It unpacks a number of the concerns and issues about data within the NHS, and I am sorry that I have been unable to be at Second Reading or in Committee to expand on some of those issues.
During our Select Committee inquiry into artificial intelligence, there were a number of witnesses who talked about the use of data in the NHS, and we drew a number of conclusions, namely that the data was not in good shape to be utilised for beneficial purposes such as research, diagnosis and screening. That is another issue, however; what concerns noble Lords is the question of sharing. Now that we have seen Amendment 1 pass, maybe we will deal only with countries where there is a level of data adequacy which gives us an assurance about the use of NHS data. As the King’s Fund said last year in its report, Using Data in the NHS:
“National policy has to keep a balance between responding to legitimate public concern about the security and confidentiality of data and enabling data to be shared and used by NHS organisations and third parties. It is also essential that NHS national bodies are transparent with the public about how patient data is used”.
It went on to suggest that the level of opt-outs for patients would be key to the quality and validity of future research, and that NHS England and NHS Digital should keep this under review. One of the issues in the NHS is that there are several organisations responsible for NHS data. It is not just NHS England, NHS Digital, the National Information Board and Public Health England. The Caldicott Guardian—the national guardian for health and care—has a responsibility as well. It is quite a disparate, rather balkanised issue.
I was reassured on reading what the noble Baroness, Lady Manzoor, had to say when she responded, as the Minister, to this set of amendments in Committee:
“Under the Bill, personal data can be processed only in accordance with UK data protection law, namely the Data Protection Act 2018 and the general data protection regulation, which will form part of UK domestic law under the EU withdrawal Act 2018 from exit day”.
I am not going to go into all the questions about data adequacy and so on. I take what she said as quite reassuring, but it was less so when she later responded to what was then Amendment 23—this amendment is identical. She said:
“I assure the Committee that the Government are committed to the safe, lawful and responsible processing of people’s data”.
However, she then said:
“As the noble Baroness, Lady Jolly, and my noble friend Lord O’Shaughnessy noted, the Caldicott principles and the Government’s Data Ethics Framework are admirable standards to apply to the handling of patient data. Both of these non-legislative frameworks are in line with the Data Protection Act and the GDPR, which are enshrined in the Bill”.—[Official Report, 19/2/19; cols. 2261-63.]
That is not unequivocal in terms of those standards applying. As the Minister knows, we discussed this between Committee and Report. I had hoped to receive correspondence from her, but sadly I have not done so. She may need to repeat whatever text of the letter she may be able to find in her outbox. I hope she can give the House reassurance that the national data ethics framework and the Caldicott principles will apply to any sharing of data. The data ethics framework is a cross-government standard, of course, but the Caldicott principles are specific to the NHS. It is important to make sure they apply both domestically and internationally.
Lord O'Shaughnessy
My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for giving the House the opportunity to talk about this issue again. He has been deeply involved in this topic and, as he said, I spoke on it in Committee. Compliance with this country’s very robust data protection rules is critical in general and particularly important in healthcare. This was discussed in the debate instigated by the noble Lord, Lord Freyberg; it has been a topic of conversation in this House, both in and out of the Chamber, on many occasions.
The noble Lord talked about the number of bodies that have some responsibility: he called it balkanised. It is important that we do not create a balkanisation in the law, even if a small one is in operation. One set of law should take precedence over all data protection, security and connected issues. That is, and should be, the Data Protection Act 2018. This means that there are operational guidelines, frameworks, principles and so on about how these ought to operate within individual contexts. That is precisely where the Caldicott principles come in. They take a general piece of legislation and translate what good practice in interpreting it ought to mean in a health setting. In that sense, it is important to say that we should not put those principles in a legislative setting. They are interpretive of the core, primary legislation and may need to change over time. They may need to adapt; there may be an eighth principle as we get into interesting questions about the value of data and so on.
It is important to recognise that the Caldicott principles bring to life what the Data Protection Act ought to mean in health settings. It would be a mistake to create competing law. Of course the Government agree with the noble Lord about the importance of giving force to the principles. That is one reason why we supported the Private Member’s Bill brought into this House by my noble friend Lady Chisholm to put the national data guardian on a statutory basis. I hope that that gives him the strength of reassurance about the way that the framework is constructed, which is not to create an opportunity to do funny stuff at the edges, but rather to make sure that there is primacy of one set of legislation.
Lord Clement-Jones
My Lords, the noble Lord used the expression, “giving force”. If those principles are given force, it means that the Government treat themselves and put on the record that they are bound by those principles. That is what giving force would mean in those circumstances, because these are novel circumstances set out in the Bill. That kind of reassurance is needed with the data ethics framework.
Lord Patel (CB)
My Lords, I had amendments that the Minister responded to at the Dispatch Box and I accepted her explanation at the time. Now I take the point that the noble Lord, Lord Clement-Jones, is trying to raise, that those principles that she enunciated about data protection included the Caldicott principles. As that reassurance was given at the Dispatch Box, I think it will cover the issue.
Baroness Thornton
My Lords, I added my name to the amendment in the name of the noble Lord, Lord Clement-Jones, and I am grateful that he has made the argument so I do not need to repeat it. Of course, I spoke about this in Committee and, like other noble Lords, I was reassured at the time by the explanation given by the noble Baroness, Lady Manzoor. Since then, however, the Bill team has actually made available the Bill data processing factsheet, which is very useful. It explains things in great detail, so I wondered whether it might be a good idea if this was given to everybody involved with this Bill. I do not know whether the noble Lord has seen this, but it is a very useful piece of information. Otherwise, I was satisfied in Committee, and if the Minister answers the questions, I am sure that I will remain satisfied.
Baroness Manzoor (Con)
My Lords, I thank the noble Lord, Lord Clement-Jones, and the noble Baronesses, Lady Jolly and Lady Thornton, for tabling Amendment 14 and raising the issue of the lawful and responsible processing of data. I start with an apology to the noble Lord, Lord Clement-Jones. My noble friend Lady Blackwood did write to the noble Lord, and I am sorry that he has not yet received the letter. We will endeavour to send him another copy as soon as possible.
As my noble friend Lord O’Shaughnessy said—and I reassure the noble Lord, Lord Patel, that—data sharing is a necessary and crucial aspect of maintaining effective complex reciprocal healthcare arrangements, and the Government are committed to the safe, lawful processing of people’s personal data. There are, as the noble Lord said, safeguards in place in respect of processing personal data for the purposes set out under the Bill, for which the Bill makes express provision. The Bill makes it absolutely clear that it does not authorise the processing of data that contravenes UK data protection legislation.
Data processing will be permitted only for the limited purposes set out in the Bill. Personal data will be processed in accordance with UK data protection law—as the noble Baroness, Lady Thornton, observed—namely, the Data Protection Act 2018 and the general data protection regulation, which will form part of UK domestic law under the European Union (Withdrawal) Act 2018 from exit day.
I assure the noble Lords, Lord Patel and Lord Clement- Jones, and the noble Baroness, Lady Thornton, that the Caldicott principles are an important part of the governance of confidential patient information in the NHS and a guiding mechanism for organisations in how they should handle confidential patient information on a practical level. The NHS is expected to adhere to these principles.
Since 1999, NHS bodies have been mandated to appoint a Caldicott Guardian. These principles are therefore ingrained in the current operation of the NHS and confidential patient data handled by the NHS for purposes in relation to reciprocal healthcare will be subject to these principles. The principles are consistent with the requirements of the GDPR and a breach of the Caldicott principles would most likely amount to a breach of the GDPR and the Data Protection Act 2018. The principles are not intended for statute but are of real practical and operational importance when confidential patient information is processed. This will be the case when confidential patient information needed for reciprocal healthcare arrangements is processed.
It is also worth noting that reciprocal healthcare arrangements will not normally involve the processing of confidential patient information, except in particular circumstances, such as facilitating planned treatment. However, where this information is processed through reciprocal healthcare arrangements under the NHS, it must comply with UK data protection legislation. NHS organisations, as they do now, will be required to adhere to the Caldicott principles. The data ethics framework that the noble Lord, Lord Clement-Jones, mentioned sets out collective standards and ethical frameworks for how data should be used across the whole public sector, as well as the standards for transparency and accountability when building or buying new data technology. Where the framework refers to personal data, it consistently cross-refers to the principles in the GDPR, which is the relevant legislation that policymakers must consider when processing personal data.
Personal data processed for the purposes of reciprocal healthcare arrangements would therefore also take into account the data ethics framework. In addition, from 1 April 2019, the National Data Guardian will be put on a statutory footing and will therefore be able to issue formal guidance and informal advice to organisations and individuals about the processing of health and adult social care data in England. This will provide patients statutory independent oversight of the use of health data, with health bodies being required by law to have regard to the guidance issued by the National Data Guardian. This is another way in which NHS organisations in England which are processing data in respect of reciprocal healthcare will be monitored and personal data can be further protected as necessary.
It is important to note that express reference to these principles in the Bill would not provide any additional protections for personal data or confidential patient information, as the standard of protections required is the same as the existing data protection legislation already provided for in the Bill. I am grateful to the noble Baroness, Lady Thornton, and others for their support in observing this. Furthermore, as I have said, these principles already apply to NHS organisations and will continue to do so in respect of reciprocal healthcare. As a result, it would be inappropriate to put these in the Bill and I am therefore unable to accept the amendment. However, the Government have listened carefully to concerns surrounding the list of persons who can lawfully process data as a part of implementing new reciprocal healthcare arrangements under the Bill and have tabled an amendment on this issue.
Currently, the list of authorised persons under the Bill includes the Secretary of State, Scottish Ministers, Welsh Ministers and a Northern Ireland department, NHS bodies and providers of healthcare. Of course, over time, public bodies change, are reformed and refashioned, and functions are transferred between them in consequence. Clause 4(6)(e) gives the Secretary of State the ability to respond to such changes so that systems can operate efficiently and data can follow in an appropriate and lawful way to enable such operation. We propose, however, subjecting any regulations that add to the list of persons authorised to process data for the purposes of the Bill to the draft affirmative procedure. This would allow Parliament the opportunity to scrutinise authorised persons handling personal data while ensuring that the Government have the ability to guarantee that future agreements are administered in the most efficient way possible.
The Government are firmly committed to the safe, lawful processing of personal data, and to ensuring that patients have enforceable protections under data protection legislation. I hope, given my assurances that any data processing under the Bill would comply with the Caldicott principles and the data ethics framework as appropriate, that the noble Lord will feel able to withdraw the amendment.
The noble Baroness, Lady Thornton, kindly mentioned the factsheet. Of course, if it is useful, we would be very happy to put this in the Library. Officials do a tremendous job and I am very grateful to them. I hope, with the assurance I have given noble Lords, and the fact we are providing greater scrutiny, that the noble Lord feels able to withdraw the amendment.
Lord Clement-Jones
My Lords, that was exactly the kind of robust response from the Minister that I was hoping for. It is very rare that I listen to a government response and nod all the way through, so I thank her for that very careful response, both on the Caldicott principles and the framework for data ethics, and for going into the accountabilities, and the affirmative procedure guarantee at the end—that was a bouquet. It is not that we on these and other Benches do not understand the value of NHS data and the real importance of that balance. This is not designed as a negative approach to the use of NHS data; it has huge potential benefits, but we have to make sure that it is kept within that ethical framework. The Minister has demonstrated that that kind of culture is ingrained—or is certainly expected to be ingrained—in the NHS and that Caldicott Guardians, post 1 April, will be very much on the case. In those circumstances, with pleasure, I beg leave to withdraw my amendment.
Baroness Manzoor
“Requirement for consultation with devolved authorities
(1) Before making regulations under section 2 that contain provision which is within the legislative competence of a devolved legislature, the Secretary of State must consult the relevant devolved authority on that provision.(2) In this section—“devolved authority” means the Scottish Ministers, the Welsh Ministers or a Northern Ireland department;“devolved legislature” means the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly.(3) A provision is within the legislative competence of a devolved legislature if—(a) it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of the Scottish Parliament;(b) it would be within the legislative competence of the National Assembly for Wales if it were contained in an Act of the Assembly (including any provision that could only be made with the consent of a Minister of the Crown); or(c) the provision, if it were contained in an Act of the Northern Ireland Assembly—(i) would be within the legislative competence of the Assembly, and(ii) would not require the consent of the Secretary of State.”
Baroness Manzoor
My Lords, in Committee, the noble Baronesses, Lady Thornton, Lady Jolly, and Lady Humphreys, tabled amendments on devolution and specifically sought to place an obligation on the Government to consult with the devolved Administrations when making regulations under this Bill. We listened very carefully to that debate and were committed to bringing forward a government amendment which set out, on the face of the Bill, a duty to consult the devolved Administrations where regulations under Clause 2 would make provisions that would be within the legislative competence of a devolved legislature. Government Amendment 15 fulfils this commitment.
I am delighted that the Scottish Parliament has granted a legislative consent Motion to the Bill and that the Welsh Government have tabled a consent motion in the Welsh Assembly recommending that the Assembly, which is debating the Motion today, grants consent to the Bill. We have also had positive and productive engagement with colleagues in the Northern Ireland Department of Health and in the Northern Ireland Office. We are grateful for their support and agreement to ensure that this Bill applies and extends to Northern Ireland.
The regulation-making powers in the Bill provide us with a legal mechanism to implement comprehensive international healthcare agreements into domestic law and provide for healthcare outside the UK for the benefit of all UK nationals. It is, however, recognised that these powers may be used in ways which relate to devolved matters, by which I mean domestic healthcare. In light of this, the amendment provides:
“Before making regulations under Section 2 that contain provision which is within the legislative competence of a devolved legislature, the Secretary of State must consult the relevant devolved authority”.
Baroness Wheeler (Lab)
My Lords, I support this important amendment, to which I have added my name on behalf of these Benches, and I thank the Minister for the proposed new clause.
Our original amendment proposing a duty to consult the devolved Administrations before making regulations under Clause 2 highlighted a glaring omission from the original Bill which has now thankfully been remedied by this amendment. Although we were very grateful for the assurances the Government gave that there was active involvement and discussion on the Bill with the devolved Administrations on matters affecting them, the requirement as a statutory duty was crucial, as many noble Lords stressed in Committee. We underlined that a statutory commitment to consult and seek the views of the devolved Administrations on matters affecting them would enable future discussions on reciprocal healthcare arrangements to take place on a collaborative and constructive basis.
I thank the Minister for updating us on Scotland and Northern Ireland, as also happened in Committee. I note too that a supplementary legislative consent Motion with regard to the Welsh Assembly is being discussed today. I was going to ask the Minister for further news, but obviously she has not had any, and I am sure that she will let us know as soon as there is some.
As the Minister also mentioned, in addition to the requirements contained in the amendment, the memorandum of understanding that has been developed between the devolved Administrations and the UK Government to underpin the amendment provides for devolved Administrations to be consulted on: the negotiation of new healthcare agreements; the development and drafting of regulations under the Bill to implement such agreements; and agreements which apply to or have implications for devolved Administrations, and on regulations giving effect to those agreements. We very much welcome that.
Finally, I ask the Minister for a formal response to the question I raised in Committee on the Constitution Committee’s report on the Bill in February in respect of the devolved Administrations. Paragraph 15 stressed the need for the Government to set out how they intend to manage the overlapping competencies in relation to the Bill and other policy areas. The committee pointed out that the potential for overlapping competencies will increase as all powers are repatriated from the EU, as does the scope for disagreement about such issues, and this will need to be managed. If the Minister prefers to write to me on this matter, that would be acceptable and much appreciated.
Baroness Humphreys (LD)
My Lords, I am grateful to the noble Baroness for introducing the amendment and for the implicit acceptance that the recognition of the powers of the devolved Administrations was a serious omission from the Bill. I must admit that I find the ineptitude—I think that is the right word—of Ministers and officials who produce Bills such as this without “devolution proofing” them deeply frustrating. Surely it would have been possible someone to take a few seconds at the early stages of the Bill’s production to ask, “Does this Bill have an impact on the powers of the devolved Administrations?” That would have saved so much time, and prevented my blood pressure skyrocketing.
While I am pleased that the amendment calls on the Secretary of State to consult with devolved Administrations on matters that are within their devolved competence, may I press the Minister to explain the implications—and perhaps the limitations—of the word “consult”? My amendment in Committee called for an assurance that the Bill would not allow the Secretary of State to amend, repeal or revoke Welsh primary legislation—which is rather different from mere consultation. I would therefore be grateful if the Minister could clarify this for me so that we have on record a full recognition of the powers of the devolved Administrations.
Lord Wallace of Tankerness (LD)
My Lords, I signed the amendment in the name of the noble Baroness, Lady Thornton, in Committee. Indeed, as I indicated in the speech I made then, when evidence was given to the Scottish Parliament committee that was looking at the legislative consent Motion memorandum issue, there was an expectation that there would be a consent provision in the Bill. The noble Baroness, Lady Blackwood of North Oxford, clearly indicated an intention to do so when she replied to the debate; I put on record an appreciation of the fact that we now have this delivered in letter and in spirit.
Baroness Manzoor
My Lords, I thank the noble Baronesses, Lady Wheeler and Lady Humphreys, for their support for this amendment.
I point out to the noble Baroness, Lady Humphreys, that of course consent means exactly that. We have gone a long way to set out a memorandum of understanding that is mutually beneficial; it will be a beneficial working relationship to ensure that the devolved Administrations will continue to play a vital role in delivering reciprocal healthcare. We will continue to consult and to work closely with them, both at ministerial and official level. I therefore reassure her on that point.
I will write to clarify the issue that the noble Baroness, Lady Wheeler, raised. As I said, the MoU that we have agreed sets out our future working relationship, which will include consideration of where compliances overlap.
This amendment represents our close working relationship; I give an assurance from the Government that we are committed to ensuring that arrangements will be conducive to the development of a reciprocal healthcare system that operates effectively across the whole of the UK in a way that fully respects the devolution settlements. I hope that, with the assurances I have given, noble Lords will feel able to support the amendment.
Baroness Manzoor
“Report on payments made under this Act
(1) The Secretary of State must, in relation to each relevant period—(a) prepare a report in accordance with this section, and(b) lay the report before Parliament as soon as practicable after the end of the period.(2) Each report must give details of payments made under the powers conferred by or under this Act.(3) “Relevant period” means—(a) the period beginning with the day on which this Act is passed and ending with the end of the first financial year to begin after exit day;(b) each subsequent period of 12 months.(4) “Financial year” means the period of 12 months beginning with 1 April.”
Baroness Manzoor
My Lords, financial reporting in the context of the Bill has already been the subject of debate in Committee. The noble Baroness, Lady Thornton, and my noble friend Lord Dundee, who, sadly, is not here today, tabled an amendment on this matter, and the noble Baronesses, Lady Brinton, Lady Wheeler, Lady Jolly and Lady Finlay, also spoke on this important matter.
While we were unable to support the amendment tabled in Committee, the Government supported its spirit, in line with our ongoing commitment to transparency, particularly when it comes to the use of public money. We made this clear in our letter to the Delegated Powers and Regulatory Reform Committee earlier this year, and I am pleased now to introduce this government amendment, which provides a statutory duty to publish an annual report. Government Amendment 16 places a duty on the Secretary of State to lay a report before Parliament each year. This report will outline all payments made during the preceding financial year in respect of healthcare arrangements implemented by the Bill. I believe this amendment directly addresses many of the concerns raised by noble Lords in Committee, and the clear request for increased scrutiny of the use of public money.
The nature and implementation of future reciprocal healthcare agreements is, of course, a matter for future negotiations. However, we envisage that, through this reporting mechanism, we would also be able to provide Parliament with further information on the operation of future agreements. For example, we anticipate that this report would include details of both expenditure and income to reflect the reciprocal nature of agreements.
The amendment provides for annual reports, which will be published as soon as is practicable after the end of each financial year. Expenditure by the Department of Health and Social Care relating to EU reciprocal healthcare arrangements is currently published to Parliament in the form of annual resource accounts. Reporting on future reciprocal healthcare arrangements will continue in this way. Indeed, as now, the department’s future expenditure on reciprocal healthcare will be subject to the existing government reporting requirements. For example, DHSC income and expenditure accounts, relating to current EU reciprocal healthcare arrangements, are already audited by the Comptroller and Auditor-General and published by the Treasury as part of the annual report presented to Parliament.
However, the Government have heard the need for greater transparency in our administration and implementation of reciprocal healthcare arrangements. Moreover, we understand the importance of presenting this information in a clear and accessible document, which is why we propose to go beyond the current reporting requirements with this amendment. Our intention is that Parliament should have clear and easy-to-access details of the public spending on healthcare arrangements implemented under the Bill.
Noble Lords have also expressed concern over the scope of the powers in the Bill. This proposal works alongside the Government’s other amendments in providing clarity. It allows for increased parliamentary scrutiny in respect of costs incurred in relation to future healthcare arrangements.
We remain committed to financial transparency. The amendment ensures that we are able to continue providing Parliament with further opportunities for scrutiny. I hope that your Lordships will be able to offer their support to this amendment. I beg to move.
Amendment 17 (to Amendment 16)
Baroness Thornton
“(2) The annual report laid under subsection (1) must include, but is not limited to— (a) all payments made by the government of the United Kingdom in respect of healthcare arrangements for healthcare provided outside the United Kingdom to British citizens;(b) all payments received by the government of the United Kingdom in reimbursement of costs of healthcare provided by the United Kingdom to all non-British citizens;(c) the number of British citizens treated under healthcare agreements outside the United Kingdom;(d) the number of non-British citizens treated under healthcare agreements within the United Kingdom;(e) any and all outstanding payments owed to or by the government of the United Kingdom in respect of the provision of healthcare outside the United Kingdom made before the passing of this Act; and(f) any and all administrative costs faced by NHS Trusts in respect of implementing healthcare agreements.(2A) The information required under subsection (2)(a) and (b) must be listed by individual country in every annual report.”
Baroness Thornton
My Lords, this is a probing amendment to Amendment 16. I am seeking reassurance about the contents of the annual report. I very much welcome the amendment moved by the noble Baroness, Lady Manzoor, which we shall be supporting.
I realise that lists are a dangerous thing to put in a Bill. In proposing her amendment, the noble Baroness covered some of these points. However, it is very important, given the powers that the Bill contains, that information—for example under Clause 2(2)(a) and (b)—must be listed in every annual report by individual countries. We feel that proposed new paragraphs (a) to (f) in our amendment need to be contained within the annual report.
This amendment seeks reassurance that the contents of this report will be consistent with the powers that the Government are seeking in the Bill.
Baroness Brinton
My Lords, I support the amendment moved by the noble Baroness, Lady Thornton. Without repeating our debates at previous stages of the Bill, it would be helpful to have reassurance from the Minister that the content of the list in the noble Baroness’s amendment is exactly the sort of detail we need. It is important to reassure people on exactly how any financial arrangements for healthcare will be made.
Lord Lansley
Further to that point, I think following the list exactly may be the most difficult thing for the Government to do. Amendment 16 sets out to commit to a report on payments. We have healthcare agreements with, for example, Australia and New Zealand where no money changes hands. As I understand the way in which these agreements work, it would be very difficult for numbers of British citizens in Australia or Australian citizens here to be collected to be reported. The noble Baroness, Lady Brinton, asked for the list to contain exactly the sort of information we need. While the list may indicate the sort of information we are looking for, if it is not available, it is not available.
Baroness Brinton
Under current arrangements, the National Audit Office is able to tell us exactly the costs of the reciprocal arrangements with Europe. I am therefore struggling to understand why we might not be able to do this elsewhere in future.
Lord Lansley
The costs are exactly what the Government are proposing to report on. The Australian agreement, for example, does not involve payments to and fro. So costs do not arise. We have mutual, reciprocal agreements about treating each other’s citizens in our domestic healthcare system.
Baroness Brinton
I am sorry to prolong the point but, surely, we would be clocking up those costs in the NHS, even if they were not reclaimed.
Lord Lansley
The Minister may wish to advise on this. I understand that we probably do not—because there is no requirement to recover the money—whereas, under an EU agreement, we collect the data because we are required to charge the Governments who are the competent authorities for those patients.
Baroness Brinton
I am really sorry to prolong this point but, if we are trying to make sure that new reciprocal arrangements are effective, this is exactly the sort of data collection that we should be seeking. Even if it is not used initially, the whole point is that we want to understand the costs of each arrangement.
Lord Lansley
I am making a simpler point: it is no good asking for information that is not collected. There is a good reason why it is not collected. Although, this might happen in future, at the moment I do not think anybody is proposing to switch the Australian and New Zealand agreements to ones where there is reciprocal reimbursement. In this case, I do not think the information is being collected.
Baroness Manzoor
My Lords, I am grateful to the noble Baroness, Lady Thornton, for her amendment and to the noble Baroness, Lady Brinton, and my noble friend Lord Lansley for their contributions. I am not sure I want to go down this route. However, if the noble Baroness, Lady Brinton, wants me to write to her to clarify the point she raised, I will certainly do so. From what I have seen, my noble friend Lord Lansley is correct in saying that we have a reciprocal agreement with the countries he mentioned, where money does not exchange hands.
I can reassure the noble Baronesses, Lady Thornton and Lady Brinton, that—as I indicate—the Government have listened to the need for greater transparency in the administration and implementation of reciprocal healthcare arrangements. I welcome the support around the House for our intentions. We understand the importance of presenting this information in a clear and accessible document, which is why we propose to go beyond the current reporting requirements. Our initial commitment to the DPRRC is contained in the amendment that the Government have tabled on this matter.
As I said, the government amendment directly addresses concerns raised by noble Lords. I hope it reassures noble Lords and demonstrates that we have listened to the clear request for increased scrutiny of the use of public money.
The amendment of the noble Baroness, Lady Thornton, would ensure that specific requirements are reported on. The detailed content of the financial report should—and could only—be determined, once reciprocal healthcare agreements have been made and technical and operational details are known. We do not know what these agreements may be in future. If we accepted the amendment, we would be placing a statutory duty on future Administrations to collect and report on data we have not yet agreed to exchange with other countries. This is not appropriate.
Our amendment is a more feasible way of reporting on future healthcare arrangements that does not pre-empt their nature or how they may be implemented, but still allows for transparency and accountability, which the noble Baroness, Lady Thornton, and other noble Lords seek. It is a baseline, and we intend to go further than just reporting on payments, but we cannot provide a statutory obligation to do so.
The Department for Health and Social Care is currently working to ensure that UK nationals can continue to access healthcare in the EU in the same way they do now, either through an agreement at EU level or through agreements with relevant member states. In either case, we will have to agree how eligibility is evidenced, how—and how frequently—that information is exchanged and the reimbursement mechanisms that will govern those new agreements. Such agreements will have to take into account the operational possibilities and limitations of each contracting party to ensure the smooth operation of reciprocal healthcare arrangements. This should include how NHS trusts in the UK can evidence eligibility for the treatment of non-UK citizens in the most efficient and least burdensome manner.
Once those administrative details are known, the Government will be able to speak confidently to the specific measures that can be reported on for each country. There is an annual reporting mechanism in the government amendment to provide such detail. I acknowledge that the amendment of the noble Baroness, Lady Thornton, is well meaning and agree with its spirit, but the level of detail proposed in it could constrain or create unnecessary burden when administering future healthcare arrangements that have not yet been negotiated.
It is in the interest of neither the Government nor Parliament to force unnecessary administrative burdens on the NHS, which the amendment could inadvertently cause. The level of detail required in the amendment may create new reporting requirements on front-line NHS services.
As always, should the noble Baroness wish, the Minister or others from the department would be very happy to meet her to talk further about the issues, once we have a clear understanding of future negotiations and how they progress. I hope I have reiterated the Government’s commitment to accountable financial reporting, and that the noble Baroness and other noble Lords feel reassured on our commitment to ensuring that sufficient and appropriate checks and balances are in place on reciprocal health agreements. I hope she will agree that her amendment, which places a statutory duty on future Administrations to collect and report on data we have not yet agreed to exchange with other countries, is inappropriate. I hope I have reassured her and other noble Lords and she feels able to withdraw her amendment.
Baroness Thornton
I thank the Minister. I said from the outset that this was a probing amendment and I therefore beg leave to withdraw it.
Baroness Blackwood of North Oxford
My Lords, I now turn directly to the Henry VIII powers of the Bill. As noble Lords know well, the inclusion of the consequential Henry VIII power in the Bill has been the subject of animated debate both inside and outside this Chamber. The Government have been listening closely to these concerns in the Chamber but also in the reports from the DPRRC and the Constitution Committee. In response, we have tabled Amendments 18, 19, 20, 24 and 25, which is a significant step and addresses these concerns directly.
This group of amendments removes Clause 5(3) and amends Clause 5(4). As a result, it will now not be possible to make consequential amendments to primary legislation using regulations made under the Bill.
I want to be clear that the consequential Henry VIII powers were initially included as a future-proofing mechanism. They were never free-standing and we had envisaged using them in only a limited set of circumstances. As negotiations have not yet concluded and the terms of any agreements are not yet settled, there may be situations where it would be appropriate to amend primary legislation. This is why the power was included. We cannot rule out that we may want to amend primary legislation to give effect to a reciprocal healthcare agreement in future, and the lack of such a future-proofing mechanism limits our ability to ensure that the statute book in future is as coherent as it can be.
However, we want to alleviate any fears that we are taking powers which are not absolutely necessary in this Bill. As such we are prepared to take the significant step of removing the entire Henry VIII consequential powers in Clauses 5(3) and (4).
In addition, the Government have listened carefully to the concerns about the list of persons who can lawfully process data as a part of implementing new reciprocal healthcare arrangements under the Bill. To facilitate greater parliamentary scrutiny on this issue, the Government have tabled Amendment 20, which subjects any regulations that add to the list of persons authorised to process data for the purposes of the Bill to the draft affirmative procedure, which we have already debated. This would allow Parliament the opportunity to scrutinise authorised persons handling sensitive patient data, while equally ensuring that the Government can guarantee that future agreements are administered in the most efficient and effective way possible.
I hope that your Lordships will view these amendments, together with the other government amendments, as a genuine and significant effort to reduce the scope of powers in this Bill and respond to the concerns raised by this House concerning the use of Henry VIII powers. On that basis, I commend the amendments to the House.
Lord Judge
My Lords, I have already spoken warmly about the efforts by the noble Baroness, Lady Blackwood, and referred to us having a little touch of Blackwood in this House. Let it continue. I should like what has happened today to be habit-forming.
Lord Hope of Craighead
Perhaps I may add a few words to those of the noble and learned Lord, Lord Judge. I was particularly concerned by Clause 5(3), as the noble Baroness may remember, and am delighted to see it removed because, as worded, it gave rise to a lot of problems. Together with the other amendments proposed, there is considerable improvement and I am most grateful.
Baroness Thornton
I tabled an amendment in this group. First, I join the noble and learned Lords and all noble Lords in saying thank you very much to the Government and the noble Baroness for removing these Henry VIII powers, which cause so much heartache in this House—we really do not like them at all. I tabled Amendment 21 because I should like an explanation. Given that our Constitution Committee and the Delegated Powers Committee have several times said that they find the negative procedure rampant in the Bill, and that the British Medical Association has also voiced its concern about legislation being subject to the negative resolution procedure, in the interests of accountability, I need to ask the Minister to explain to the House the justification for negative procedure throughout the Bill. Should it not be subject to the same level of scrutiny as in the European Union (Withdrawal) Act, for example?
Baroness Blackwood of North Oxford
I thank the noble and learned Lords for their support for our amendments to Clause 5 and the removal of the Henry VIII operation within the Bill. I shall do my best to continue in the way I have started in this House.
I thank the noble Baroness, Lady Thornton, for her Amendments 21 and 23. The Government recognise that appropriate levels of scrutiny are the hallmark of an effective and responsible parliamentary system and that the processes by which we draft, consider and test legislation must be robust. It is necessary that we look at the nature of the subordinate legislation in the Bill and balance the need for scrutiny against the appropriate use of parliamentary time.
The draft affirmative resolution offers a greater level of parliamentary scrutiny and may be appropriate for particularly significant or sensitive regulations. For example, that is why the Government have agreed that that is appropriate when amending the list of authorised persons able to process data for the purposes of reciprocal healthcare. It is important to understand that, where the UK negotiates a new comprehensive international healthcare agreement, most of the important elements setting out its terms would be included in the agreement itself rather than in the regulations, made under the Bill, that implement it. The regulations giving effect to such an agreement would be much more likely to focus on the procedural, administrative or technical details, such as the types of documents or forms to be used to administer reciprocal healthcare arrangements. Evidence tabled during the course of the Bill’s passage from the Academy of Medical Royal Colleges and the British Medical Association demonstrates that the administration for current arrangements works well. The regulations made under this Bill would be likely to simply provide for the effective and efficient administration of these arrangements.
Baroness Blackwood of North Oxford
I beg to move.
Amendment 21 (to Amendment 20)
Baroness Thornton
Baroness Thornton
I thank the Minister for her explanation, which of course I accept. I am sorry I did not speak to Amendment 23 in my name, but it is consequential on Amendment 21. I think we probably just have to be watchful, so I will not move these amendments.
Baroness Thornton
Baroness Thornton
Healthcare (European Economic Area and Switzerland Arrangements) Bill
Tuesday 19th March 2019
(5 years, 9 months ago)
Lords ChamberRead Full debate Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 Read Hansard Text Amendment Paper: HL Bill 166-I Marshalled list for Third Reading (PDF) - (18 Mar 2019)
Baroness Manzoor
Baroness Manzoor (Con)
My Lords, the proposed government amendments in the name of my noble friend Lady Blackwood of North Oxford seek to clarify and remove any potential legal ambiguity in the drafting of the “global scope” amendments made at Report and to clarify the drafting of Clause 2(2) to ensure the other place can consider a legally unambiguous Bill when it returns there from this House.
As noble Lords are aware, the Government resisted the amendments at Report, but I emphasise that these are purely technical amendments and reassure noble Lords that their aim is not to change the policy intention behind the original amendments passed at Report. These technical amendments ensure the other place can review the Bill in a version which is based on government drafting guidance.
The Interpretation Act 1978 uses the definition of an “EEA state”, and this term is used throughout the statute book. Amendments 1, 2, 4, 5, 6 and 7 therefore seek to change the references to “European Economic Area country” to “EEA state” in the Bill.
Turning to Amendment 3, as the phrase “for example” was removed from Clause 2(2) at Report, it is important to ensure the intention behind the amendment is clear from the drafting and avoids the potential for any legal uncertainty. This amendment therefore clarifies that regulations under Clause 2(1) could only include one or more of the types of provision listed in Clause 2(2). The amendment removes any potential argument—even if unlikely—that regulations under Clause 2(1) would have to provide for everything on the list in Clause 2(2), even when it is not applicable or appropriate.
I hope these amendments are clear and will have your Lordships’ support, but it will of course be up to the other place to consider the revised Bill when it returns there. Notwithstanding that, I would like to keep working with noble Lords to ensure we achieve the best possible outcome for this important Bill, which is aimed at providing the Government with the appropriate means to support comprehensive reciprocal healthcare arrangements and the people reliant upon them. I hope that these amendments will be able to command the support of this House. I beg to move.
Lord Hope of Craighead (CB)
I thank the Minister for Amendment 3. That was an important matter to clear up, and the way in which it has been done is entirely in accordance with the wishes of those who were concerned about the previous wording. We are most grateful.
Baroness Thornton (Lab)
My Lords, I thank the Minister for introducing these amendments and explaining their intent. With the exception of Amendment 3, they seek to make the Bill consistent and coherent, its intended scope now being the EEA and Switzerland. I checked on the meaning of Amendment 3; it looks to me like it does the trick, so I thank the Minister for that.
At this stage, given the uncertainties we face over Brexit and what might happen in the next 10 days, surely the Government take the view that right now we have to focus on the challenge before us: the healthcare needs of UK citizens. We need to think about their healthcare arrangements and leave other parts of the world to be considered in due course. That requires a decision by the Secretary of State, and everybody would understand if he felt that the Government had enough on their plates right now.
Indeed, the Secretary of State might have been reading my mind, because at 12:54 today—lo and behold—we received an update in the form of a Written Statement about the continuity of reciprocal healthcare arrangements in the event that we exit the European Union without a deal. I commend this Statement to all noble Lords and hope that they will read. I have one or two questions for the Minister arising out of it. The Statement says,
“We have proposed to EU member states and EFTA states that we should maintain the existing healthcare arrangements in a no-deal scenario until 31 December 2020 with the aim of minimising disruption to UK nationals and EU and EFTA states citizens’ healthcare provision”.
This relates to the passage of the Bill, because the discussions all took place in Committee and on Report.
The Statement went on to say that current arrangements could only continue if there was a deal and an implementation period. Previously, it was said that 27 bilateral agreements would have to be negotiated, so we welcome what the Secretary of State is saying, but I would like the Minister to clarify whether my understanding is correct.
Furthermore, in Committee, Members—including some on these Benches—suggested that UK nationals and others for whom the UK is responsible and who have applied for or are undergoing treatment in the EU prior to and on exit day should be recompensed for up to one year. The then Minister said that this would not be possible because it would place a huge financial and administrative burden on the NHS. She said:
“It would make it less likely that individuals would take the steps they need to, even if they were able to. It would undermine our approach to member states in negotiating reciprocal agreements”.—[Official Report, 19/2/19; col. 2255.]
However, it has to be said—and I welcome it greatly—that this Statement goes some way to meeting that, and suggests that the Government will be prepared to recompense and pay for the treatment of UK residents. I welcome that but seek some clarification from the Minister. The point is that the Secretary of State’s Statement really only reinforces the need for the amendments that this House has put forward and voted on at every stage of this Bill, and that the Government themselves brought forward and voted on at Report. The lengthy Statement addresses the healthcare issues that we face and merely underlines the importance and urgency of sorting this matter out whichever way things go.
Baroness Manzoor
My Lords, on behalf of my noble friend Lady Blackwood and myself, I thank all noble Lords who have contributed to the constructive deliberations and review of the Bill during its passage over the past weeks. In that time, it has been the subject of spirited and carefully considered debate, both inside and outside of this Chamber. As we approach the final leg, I would like, in particular, to offer my thanks to the noble and learned Lords, Lord Hope and Lord Judge; the noble Lords, Lord Patel, Lord Kakkar, Lord Lisvane, Lord Foulkes and Lord Marks; the noble Baronesses, Lady Thornton, Lady Jolly, Lady Brinton and Lady Wheeler; and my noble friends Lord Lansley and Lord Dundee, for their considered contributions to this important debate. I am also grateful to my noble friend Lord O’Shaughnessy, who has been an invaluable supporter of this Bill. I also thank my noble friend Lord Young and the Bill team for all their support and hard work. I fully acknowledge the invaluable role played by my noble friend Lady Blackwood in leading on this Bill.
This Bill has been subject to considerable scrutiny and continues to be so, as the noble Baroness, Lady Thornton, has just said. I am grateful to the noble Lords who sought to improve and strengthen this important Bill.
Baroness Manzoor
Baroness Manzoor
Baroness Manzoor
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, on a point of clarification, the Minister said—in an impeccable way—exactly what changes have been made by the Government. She also said that the amendments we have put forward have, understandably, to be approved by the other place. However, does not the change of the title to the Healthcare (European Economic Area and Switzerland Arrangements) Bill, which is very welcome, imply that the Government are accepting the amendments that this House has made? That is my understanding; is it also the Minister’s?
Baroness Manzoor
My Lords, that is of course a matter for the Commons to decide. I beg to move.
Royal Assent
Tuesday 26th March 2019
(5 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Amendment Paper: HL Bill 158-I Marshalled list for Report (PDF) - (27 Feb 2019)
Healthcare (International Arrangements) Bill (Changed to Healthcare (European Economic Area and Switzerland Arrangements) Bill)
Tuesday 26th March 2019
(5 years, 8 months ago)
Commons ChamberRead Full debate Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 166-I Marshalled list for Third Reading (PDF) - (18 Mar 2019)
The Minister for Health (Stephen Hammond)
I beg to move, That this House agrees with Lords amendment 1.
Mr Deputy Speaker (Sir Lindsay Hoyle)
With this it will be convenient to discuss Lords amendments 2, 8 to 10, 18 to 20, 3 to 7 and 11 to 17.
Stephen Hammond
It is a pleasure to be in the Chamber this afternoon. We now have the opportunity to turn our attention to an issue of great importance which, I know, commands the support of the House: the issue of reciprocal healthcare. As Members know, our ability to fund healthcare abroad brings invaluable benefits to people, and it is our responsibility to ensure that we continue to make them available to the public. I thank Members on both sides of the House for their work in considering the Bill so far, including those who have spoken to me about it outside the Chamber.
The amendments deal with the global scope of the Bill. It was intended to provide the Secretary of State with powers to fund healthcare outside the UK, to give effect to healthcare arrangements and healthcare agreements between the United Kingdom and other countries or international organisations—such as the European Union—and to make provision in relation to data processing, which is necessary to underpin these arrangements and agreements. Although it was introduced as a result of the UK’s exit from the EU, it was intended to be forward-facing and not to deal only with EU exit. It offered an opportunity to implement new comprehensive reciprocal healthcare agreements with countries outside the EU.
Tom Brake (Carshalton and Wallington) (LD)
I am sorry that the Minister was not able to join us at St Helier Hospital yesterday. I understand the reasons for that perfectly, but I hope that he will back the plan for the hospital.
The Minister mentioned the international scope of the Bill. Does he accept that that was a mistake in view of the concerns that people have expressed about, for instance, the opening up of the NHS in future international trade deals with countries such as the United States?
Stephen Hammond
I thank the right hon. Gentleman for his words about why I was unable to go to St Helier Hospital. He knows that, as a Minister, it would have been inappropriate, but as a constituency Member of Parliament, I have no doubt that I will be visiting there again soon. I do not accept his criticism. That was never the point of the Bill. We made that argument consistently both in this House and in the Lords. But we have listened carefully to what has been said about the scope of the Bill and I am about to address that now.
As we prepare for our imminent exit from the EU, the global scope of this Bill has been the source of much discussion in here, outside this House and in the other place. I am pleased that the noble lords did not fundamentally disagree with the idea of reciprocal healthcare arrangements outside the EU. However, it was strongly felt that this was not the time to provide for it. Although the Government would have welcomed that opportunity to provide for it, they have recognised that through this group of amendments their lordships voted to restrict the scope of the Bill to making provision only for EU/EEA countries and Switzerland.
The Government believe it is disappointing to lose at this particular time the opportunity to be able to help UK nationals to obtain healthcare when they visit countries outside the EU, such as when they are travelling, studying or working abroad, or if they want to give birth or obtain treatment. It remains the Government’s view that international arrangements on these issues could promote more life options for our citizens outside the EU, offer greater personalisation of care and assist further in the fostering of international healthcare co-operation. However, it must be our foremost priority to ensure that the Bill receives Royal Assent and is in place so we can respond to the different scenarios without delay and assist, as appropriate, the people who rely on these vital healthcare arrangements.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
The Minister and I have form on this, in that we were in a Statutory Instrument Committee only yesterday when I was trying to get over to him the need to be very clear to our constituents that, when we leave the EU, the EHIC—the European health insurance card—will disappear and when our constituents go to anywhere in Europe the full bank of healthcare will disappear. Yesterday, the Minister suggested people should take out private insurance instead. Is it not his job as a Minister to tell his constituents and my constituents the truth about this?
Stephen Hammond
It absolutely is my job to tell my constituents and the whole of the country the truth, and I did that yesterday in Committee and will do it again now. If the hon. Gentleman votes for the withdrawal agreement and it passes, the EHIC will remain in place, as I said yesterday. As I also said yesterday it has always been the Government’s advice that people should purchase travel insurance. None of that has changed and that is exactly what I said yesterday and it is exactly what I am saying today.
Kevin Foster (Torbay) (Con)
Does my hon. Friend agree that we need to be very clear that, with the EHIC, people will get treated as if they are a local; it is not the NHS on tour, so to speak, so we can still face some charges? Particular note should be taken of repatriation costs. If going abroad on something like a skiing holiday, people would be foolish not to take out full travel insurance.
Stephen Hammond
My hon. Friend is right. I made that point yesterday; I made it when I was speaking at the Dispatch Box on Report; and I am happy to make that commitment again today.
It must be our foremost priority to ensure that the Bill receives Royal Assent and is in place so that we can respond to different scenarios. We take this decision with regard for the people who currently rely on the EU reciprocal healthcare arrangements and, only with that in mind, we are choosing not to disagree with the Lords amendments.
Stephen Hammond
One last time because the hon. Gentleman and I had form on this yesterday.
Mr Sheerman
This is an important issue. If the Minister wants me to make a series of points of order, I will because this is so important. Yesterday in a Committee Room, none of us could understand this. At one point, the Minister said, “This is transitional. This will only cover the transition until we are out of the EU. After we have left the EU, EHIC won’t apply.” That is what he said yesterday. I am still not sure whether EHIC will apply only in the transition period, or will go on forever. He has not been clear about this.
Stephen Hammond
I have been clear. One can say these things as many times as one likes, but if someone won’t hear, they won’t hear. I will say one more time to the hon. Gentleman—I am happy to take his interventions if he is going to move on to other points—that, as I made clear yesterday, if the withdrawal Bill passes, the current arrangements for reciprocal healthcare will continue throughout the implementation period. During that implementation period, it is the express intention of the Government and the EU to secure continuing reciprocal healthcare arrangements.
Stephen Hammond
The hon. Gentleman chunters that there is no guarantee. I have given him the guarantee that it is the express intention of both the UK and the EU to ensure reciprocal healthcare arrangements for our citizens post EU exit. I have set out clearly that, in the event of the withdrawal Bill passing and the implementation period starting, EHIC will continue and I think—
Mr Sheerman
On a point of order, Mr Deputy Speaker. The Minister and I were in an SI Committee yesterday and you will know how pressurised they are. Four SIs were all blended together, so it was very difficult to separate them and do our job of scrutinising the legislation going through this place, which is our prime responsibility. What we could not get from the Minister was absolute clarity, speaking out to the public and saying that actually the likelihood of keeping EHIC after we leave the EU is on a wing and a prayer—there is no certainty at all.
Mr Deputy Speaker (Sir Lindsay Hoyle)
That is not a point of order, but the hon. Gentleman has certainly clarified what he believes needs to be put on the record.
Stephen Hammond
The hon. Gentleman put that on the record yesterday. I answered the question yesterday. I did so with clarity, in a way that I think almost any member of the public could have understood, and I hope that with that we can move on.
The next amendment I wish to discuss is Lords amendment 3. Their lordships have amended clause 2 to limit the regulation-making powers at clause 2(1). Clause 2(2) was intended to be an illustrative list setting out examples of the type of provision that may be included in regulations made under clause 2(1). It is not, on its own, a delegated power. The effect of amendment 3 is to make the list at clause 2(2) exhaustive. Regulations made under clause 2(1) can now only provide for those things on the list at clause 2(2). The intention of the Government has always been to be prudent and transparent in the use of the Bill’s delegated powers and the list was included to be helpful by demonstrating the types of provision that the regulation-making powers at clause 2(1) could include.
Mr Sheerman
On a point of order, Mr Deputy Speaker. I like the Minister—he is a nice man—but he is reading a brief that for most of my constituents and his is absolute gobbledegook—brackets, references here and sub-clauses there. Surely his job as a Minister is to tell this House in plain English what the dangers are to their future travel—their holidays and business in Europe?
Mr Deputy Speaker
Let’s calm it down a little. In fairness, I think the Minister needs to get to the end of his speech. We cannot have him being interrupted on points of order; it is not good form in this House to do so. What I would say is, “Who knows?” because I cannot predict what the Minister is going to say. He may well get to the points the hon. Gentleman feels are not being addressed.
Andrew Griffiths (Burton) (Con)
On a point of order, Mr Deputy Speaker. As a Back Bencher who is keen to see this debate develop and move on so we can get on to other equally important business, what advice can you give me to stop other hon. Members asking pointless points of order in this debate?
Mr Deputy Speaker
The hon. Gentleman not making another point of order might be helpful as well. Let’s just get on and move forward because it is in everybody’s best interests to hear what the Minister has to say.
Stephen Hammond
Much of what we discuss in this House is clearly of a technical nature, and sometimes its language is impenetrable to others who are watching. However, as the hon. Members for Burnley (Julie Cooper) and for Ellesmere Port and Neston (Justin Madders) will know, the House has had a chance to look at this in a fairly exhaustive way. They will know exactly what I am referring to, and I am sure that they will wish to refer to it in their speeches.
Using “for example” to introduce an illustrative list of things that can be done under a regulation-making power can be found in a number of other pieces of legislation. Section 11(2) of the Automated and Electric Vehicles Act 2018 states:
“Regulations under subsection (1) may, for example”.
Section 48G(2) of the Banking Act 2009 says:
“An order may, for example”.
Using “for example” is not unknown. However, we acknowledge the concerns raised about the breadth of the delegated powers in the Bill, and the Government have taken considerable steps to address those concerns via a number of Government amendments that were accepted in the other place, which I will come to shortly. In addition, we are choosing not to disagree to this amendment, to give further reassurance that the delegated powers in the Bill are no wider than necessary.
Mr Sheerman
The Minister knows that I have also been on another, similar Statutory Instrument Committee, which looked at the use of the green card that gives our constituents the assurance when they travel to Europe that if they are hit by an uninsured driver they will be covered by the insurance industry. That will be lost when we leave the European Union. I used that example yesterday, but the Minister did not come back on it. That is a right and privilege that our constituents expect, and now they are going to lose a similar one relating to healthcare. Is it not clear that these are both examples of the real damage that leaving the European Union will do to us?
Stephen Hammond
The hon. Gentleman has confused various clauses of the Bill, but I will not trouble to explain that. I simply say that the green card is clearly an issue for another Department. I also say again, as I said to him yesterday, that citizens are not going to lose the benefits they enjoy under the EHIC if the withdrawal agreement is passed and the implementation period starts. I would guide him by saying that the easiest way to ensure that all the good burghers of Huddersfield whom he so ably represents can continue to enjoy those rights is to vote for the withdrawal agreement.
As I was saying, the Government have taken considerable steps to address these concerns via a series of Government amendments that were accepted in the other place. In addition, we are choosing not to disagree to this amendment, to give further reassurance that the delegated powers in the Bill are no wider than necessary. Our primary concern, as I have said, is to ensure that the Bill is in place so we have the legal mechanism to support people who rely on these vital healthcare arrangements, as may be necessary.
I would now like to turn to the Government amendments in this group. The Government have also sought to restrict the regulation-making powers in clause 2(1). Amendments 4, 5, and 6 will ensure that, if we confer or delegate functions, this will only be to public authorities. The Government have listened closely to the concerns that the regulations could be used to confer functions on “anyone, anywhere”. The hon. Member for Ellesmere Port and Neston argued in Committee that this wide-ranging scope was unacceptable. As I said to him, there has never been an intention to confer functions on private bodies in order to implement reciprocal healthcare arrangements, but, given the concerns that have been raised, we were prepared to make this restriction clear through these amendments to clause 2.
The Government have also brought forward amendment 7. Arguably the most persistent criticism in both Houses has concerned the Bill’s delegated powers. The Delegated Powers and Regulatory Reform Committee and the Constitution Committee both raised particular concerns about the breadth of the powers. The powers in the Bill were sought to provide options in the event of no deal to mitigate the detrimental effects of a sudden change in healthcare overseas for UK nationals living in the EU. In particular, the regulation-making powers in clause 2 (1)(a) and 2(1)(b) provide a means for dealing with situations where there is no bilateral or multilateral agreement in place.
The Government listened carefully to the concerns raised by parliamentarians across both Houses about the scope of the Bill’s regulation-making powers and concluded that the powers used to establish unilateral healthcare arrangements outside of reciprocal healthcare agreements should be sunset for a period of five years following the UK’s exit from the EU. During the five years before the sunset, we will have the ability to use regulations under clause 2(1) as appropriate. These powers can be used to support UK nationals in the EU in different EU exit scenarios. After the sunset, making use of the regulation-making powers under clause 2(1) would be limited to clause 2(1)(c) only. This provides the Government with a mechanism to give effect to future complex healthcare agreements with the EU, individual EEA member states and/or Switzerland.
Mr Sheerman
Will the Minister give a crystal clear guarantee to all those people who are related to our constituents and who live across Europe and have perhaps retired there that, if they have a long-term health need, the benefits they enjoy under the EHIC at the moment will continue? I do not want to hear anything about the difference between transitional and long term; can he assure those people that they will continue to get those health benefits in the long term?
Stephen Hammond
If the hon. Gentleman votes for the withdrawal agreement, he will be able to give them that reassurance.
I want to turn now to Government amendment 11. The matter of financial reporting and parliamentary scrutiny has also been a matter of legitimate concern to this House and the other place, and amendment 11 speaks to this concern. As I explained in Committee, the Government are firmly committed to transparency in the use of public money. We have made this commitment plain in the Bill with a duty on the Secretary of State to lay a report before Parliament each year. This report will outline all payments made during the preceding financial year in respect of healthcare arrangements implemented by the Bill. I believe that this amendment directly addresses the concerns raised by hon. Members in Committee, particularly those raised by the hon. Member for Burnley. The nature and implementation of future reciprocal healthcare agreements is a matter for future negotiations. However, we envisage that through this reporting mechanism we would also be able to provide Parliament with further information on the operation of future agreements. For example, we anticipate that this report would include details of both expenditure and income to reflect the reciprocal nature of the agreements.
Before I speak to Government amendment 12, I am pleased to report that we have secured legislative consent motions from both the Scottish and Welsh Governments, in addition to having positive and productive engagement with colleagues in the Northern Ireland Department of Health and the Northern Ireland Office. I want to put on record my thanks to all of them. We have amended the Bill to reflect the outcome of our productive discussions, and the Secretary of State must now consult the relevant devolved authority before making regulations under clause 2(1) that contain any provision that is within the legislative competence of a devolved legislature. To underpin and facilitate this consultation, we have developed and agreed a memorandum of understanding with the devolved Administrations. The MOU sets out a practical and mutually beneficial working relationship that will ensure that the devolved Administrations continue to play a vital role in delivering reciprocal healthcare for the benefit of all UK nationals. We believe that this practical and pragmatic agreement allows us to move forward in a collaborative way with all our colleagues in the devolved Administrations.
Mr Sheerman
The Minister will remember that, in our previous encounter on this matter in Committee, we asked him how far he had spread his discussions about the impact of this Bill in Northern Ireland. He was very honest and said that he had spoken mainly to officials and civil servants, and not to the politicians who represent the constituents there. Has he changed his mind about that, because that seems like a strangely narrow sort of consultation?
Stephen Hammond
I do not think that it was narrow in the slightest. We have discussed matters with the Welsh and Scottish Governments and, given the situation in Northern Ireland, which the hon. Gentleman well knows, with the Northern Ireland civil service, the Northern Ireland Department of Health and the Northern Ireland Office here. I think that that is exactly what I said yesterday, and I am happy to repeat it.
Turning to amendment 15 and transparency, we have also amended the Bill to allow for further parliamentary scrutiny of the list of persons who can lawfully process data as a part of implementing new reciprocal healthcare arrangements under the Bill.
Mr Sheerman
The Minister is being generous in giving way. He will be aware that even Henry VIII in his full pomp would not have got away with stealing the right to health cover of British citizens travelling on holiday to Europe or visiting on business without full democratic scrutiny of the decision. Henry VIII would have been pleased to have had that privilege. This Government have been smuggling the decision through, both in Committee and here in this empty Chamber, and they are stealing the rights of British people.
Stephen Hammond
Given that I just said that we have accepted the amendment that would remove the powers, that argument is hardly powerful. I also suspect that the Opposition spokesperson and the other members of the Committee will be surprised to hear that they had not fulfilled their role when they sat through the hours of scrutiny in Committee.
In conclusion, I offer my thanks to hon. Members from across the House and to the Lords for its constructive work in scrutinising and improving this Bill. We share a common goal in wanting to ensure that we can continue to benefit from the current reciprocal healthcare schemes and benefit from similar arrangements in the future. This Bill is an important and necessary piece of legislation that seeks to ensure that the Government are ready and able to respond to different EU-exit scenarios and that we are in a position to support, as appropriate, people who rely on current EU reciprocal healthcare arrangements. For that reason, it is critical that we take those steps and that the Bill can become law.
Julie Cooper (Burnley) (Lab)
I rise to support the Lords amendments before us. I thank all the Members who have worked on the Bill at various stages and the staff of the House, who have provided invaluable support. I also put on record my particular thanks to my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) for his great work during the Bill’s earlier stages. I also thank those in the lords for their exceptional work on this Bill. Thanks to their endeavours, we now have a Bill that is fit for purpose. I am pleased that the Government have decided to listen to our noble friends and give full support to the amended Bill, which marks a welcome, if rather belated, climbdown by the Government.
As we prepare to leave the European Union, it is vital that the Government are able to respond to the widest range of possible EU-exit outcomes in relation to reciprocal healthcare. So many people are reliant on the continuation of reciprocal arrangements and the Government are quite right to seek to secure such arrangements as we leave the EU. The Opposition have supported the principle of this Bill from the outset. but our concerns have been around the scope and the wide-ranging powers that were originally proposed. We were not happy to give the Government a blank cheque to enter into any number of health agreements, with anyone anywhere in world, with no requirement to report back to Parliament, and with little or no opportunity for parliamentary scrutiny. These amendments have addressed our concerns, and I again thank those in the lords for their work.
Turning to amendments 1, 2, 8, 10 and 18 to 20, I want to stress to the House the scale of the issue before us, as pointed out by my hon. Friend the Member for Huddersfield (Mr Sheerman), who is no longer in his seat. Under the existing arrangements, 190,000 UK state pensioners and their dependants who live abroad, principally in Ireland, Spain, France and Cyprus, enjoy the benefits of reciprocal health agreements. The current arrangements also provide full access through the EHIC to healthcare and emergency treatment for UK residents who visit the EU on holiday, to study or to work. The same protections are extended on a reciprocal basis to EU nationals who reside in the UK or who seek to visit. For the sake of those people, I am glad that the Government have come to their senses. These arrangements, which give full peace of mind for healthcare, must be protected.
I remind the House of the evidence given by representatives of Kidney Care UK. We heard that 29,000 people in the UK are dependent on dialysis, which involves three five-hour sessions per week to ensure survival. Under the current arrangements, if those people choose to holiday in the EU, they can easily pre-book slots for dialysis, with Kidney Care UK saying that that
“means that people are able to go away with the confidence that they will be able to be supported and receive the treatment they need.”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 27 November 2018; c. 12, Q39.]
That also means that they and their families are able to get a much-needed break. Kidney Care UK also made the point that
“it is easier to go away for two weeks in Europe and take a break in that way than it is to get two weeks in a UK unit”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 27 November 2018; c. 14, Q43.]
Perhaps there is a learning point for us there.
Based on that evidence, the Minister concluded at the time that without a continuation of these arrangements it would be more or less impossible for sufferers of kidney disease to travel. I totally agree, and I am delighted that the Government appreciate the urgency of the situation in which we find ourselves and are giving their full support to this amended Bill. That is important because we may yet leave the EU with no deal, and there will be many British citizens listening nervously to this debate because they have already booked holidays—some of them will be departing at the weekend or in the coming weeks. However, they can now be reassured that the legislation will pass without further delay.
I reassure Baroness Chisholm that the main Opposition priority is always to ensure that those who need care get it. Further to that, we are right in the first instance to protect the rights that UK citizens already enjoy. In short, we must protect our rights to reciprocal healthcare in Europe before we seek to acquire global healthcare provision. Similarly, those UK citizens who have retired to the EU will be relieved to know that treatment for chronic health conditions and ongoing health support will continue to be provided for them, as it is now, without interruption.
If that was not the case because the Bill was unable to receive Royal Assent in a timely fashion, there would have been much understandable consternation and anger among UK citizens currently residing in the EU. A significant proportion of these citizens are pensioners, and they would have been personally liable for healthcare costs after exit day unless a new agreement with the EU or new bilateral agreements with member states were in place. We must also consider the fact that if there is an interruption in provision, many British expats would have no alternative but to return to the UK, which would of course add to the pressures on our already overstretched NHS.
At every stage, both here and in the other place, concerns have been raised about what those in the lords described as the breathtaking powers sought in this Bill. Lords amendments 3 to 7 serve in part to restrict the powers to those that are clearly defined and to those that are necessary for the purpose of protecting reciprocal health arrangements. In amendment 3, just removing the words “for example” assists in terms of essential accountability issues by restricting the powers of the Secretary of State to those regulations specifically listed. The powers listed remain extensive, and the lords was assured that they give the Government everything they need to take forward the negotiations on reciprocal healthcare. We welcome amendments 5 and 6, which ensure that the power to deliver functions is conferred only to a public authority. We are happy that the powers conferred by clause 2 should also be subject to a five-year sunset clause.
We support amendment 11, which provides an important and necessary requirement to consult with the devolved authorities, namely the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. We fully support the vital role that the devolved Administrations play in delivering reciprocal healthcare arrangements, and we welcome the memorandum of understanding that has already been achieved.
Amendment 12, which requires the Secretary of State to report on repayments made under this Bill, is also welcome. This amendment reasonably calls for annual reports to be published after the end of each financial year as soon as is reasonably practicable. It is anticipated that these reports will include details of both expenditure and income. This will facilitate transparency on the Government’s use of public money. I am especially pleased that the Minister has withdrawn his former opposition to that procedure.
On a wider point, in connection with repayments, it is important that we do not overlook the fact that many hospital trusts are struggling to recoup moneys owed under current EU arrangements. Indeed, some costs are never recovered. The UK recovers less than £50 million a year for the cost of treating European patients, while paying £675 million for the care of Britons in Europe.
Mr Philip Dunne (Ludlow) (Con)
The hon. Lady is pointing out the disparity in payments between the UK and the EU. Recognising that there are considerably more EU users of the NHS than UK users of health services on the continent, why is it that the Labour party, in the past, criticised the NHS and the Department of Health and Social Care for trying to recover sums due from EU citizens for taking advantage of our health service?
Julie Cooper
I think the objections raised by the Labour party in the past were based on the methodology used and the potential abuse of personal data, but we would fully support an efficient system to recover moneys owed to the UK.
Dr Philippa Whitford (Central Ayrshire) (SNP)
When talking about the disparity in numbers—there are more than 3 million European citizens here and approximately 1.5 million UK citizens there—is it not the case that the majority of EU citizens here are working and paying taxes and therefore are not covered by this system but are covered by the tax they already pay?
Julie Cooper
The hon. Lady makes an important point. I was referring to the fact identified by the Public Accounts Committee in its concerns about collecting what is due, but I take her point that many people pay for their own health provision while in the UK.
My point further reinforces the rationale of restricting the scope of this Bill to the EEA and Switzerland, which will help to ensure the priority is to improve the recovery of healthcare costs, where they are due, before we even begin to think of entering into non-EEA agreements.
We, of course, welcome the Government’s decision to remove the Henry VIII powers from this Bill. We repeatedly return to that issue in this raft of Brexit legislation, and I hope now, and certainly in connection with this Bill, that the Government agree it can never be right to confer on any Minister the same powers as are conferred on Parliament.
I understand that the Minister has a big vision and wants to take this opportunity to extend the current arrangements and to present a Bill that allows the Government to enter into any number of new reciprocal health agreements with any and every nation of the world, should they so choose. There could be a time and a place for such legislation, but it is not now because time is so short. There is not time for Parliament to scrutinise such an extensive range of proposals properly for such wide-ranging powers.
Our noble Friends raised some very reasonable concerns on that point, and they are correct to note the comments of the Delegated Powers and Regulatory Reform Committee when it concluded that the Bill, in its original form, gave law-making powers that were too wide. Our noble Friends were right to give serious consideration to the Constitution Committee’s recommendation that the scope of the Bill should be limited to countries that participate in the existing EHIC scheme:
“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.”
Above all, we now have a Bill that does what was intended: to ensure the continuation of the current reciprocal healthcare arrangements with the nations of the EU and the EEA. Given that that is the Bill’s principal target, there is no need to give the Bill worldwide scope.
I am pleased to join the Minister in giving our full support to the amended Bill before us.
Kevin Foster
It is a pleasure to be called to speak in this debate. I do not intend to detain the House long with my observations. I enjoyed the Minister’s introduction.
I welcome the Lords amendments, particularly the ones that change the thrust of the Bill to the EEA and Switzerland, but I hope that right hon. and hon. Members will bear in mind that, in the long run, the goal of having reciprocal healthcare arrangements with other nations is not a negative one in itself. I was disappointed yet again to hear from the right hon. Member for Carshalton and Wallington (Tom Brake) that this is all about opening up the NHS to the US health giants—it is not. It is about having reciprocal arrangements for visitors to other countries, including those on business and those who are travelling.
Julie Cooper
I made the point that, in future, there may be a place for such arrangements, but does the hon. Gentleman accept that time is so short, given the urgency of getting something in place to secure arrangements, that now is not the time for that?
Kevin Foster
I meant it more as a comment. I accept the Lords amendments. To be blunt, given the pressure of time and the need to get the Bill on the statute book to give people certainty about their healthcare arrangements, if these amendments achieve consensus with Opposition Front Benchers and the other place, I am more than happy to support them.
In relation to the remarks of the right hon. Member for Carshalton and Wallington, who sadly has not stayed for the rest of the debate, this is about making sure that people who go to hospital to access emergency care are not suddenly faced with a bill for the full cost as if they were completely uninsured.
We have arrangements with Australia and New Zealand that are not at the same level as we have with other EU countries, but they could potentially be developed. I do not want to see that aspiration lost, because we want our young people to have the opportunity to travel and work abroad where appropriate. In many countries, as the hon. Member for Central Ayrshire (Dr Whitford) rightly said, people who work will start earning rights under that country’s social insurance system, which would trump the Bill.
Mr Dunne
My hon. Friend is generous in giving way. In talking about other Commonwealth nations to which we would like to extend such arrangements, does he agree that the dominions of the Channel Islands, which do not currently have reciprocal status with the UK, should not be ignored and should be a matter of importance once the EU arrangements have been completed?
Kevin Foster
As always, I thank my right hon. Friend for his incisive intervention. The Channel Islands might use our currency and, in many ways, fly our flag, but people forget they have a very different constitutional status and are not part of the European Union. For some visitors, it can be a surprise that there is not a reciprocal agreement. There is a reciprocal arrangement with Gibraltar, for example, and it makes eminent sense to try to have such an arrangement between the UK and the Channel Islands, not least given the strong cultural links and the fact that many families split their time between the mainland and the islands.
Looking across the Commonwealth more widely, it might make sense to have arrangements with countries such as Canada and Jamaica in the long run, based on the fact that they have comparable systems of healthcare provision. That is perhaps where the oft-cited example of the United States starts to fall apart, because it is one of the handful of modern, developed countries that do not have a guaranteed system of universal healthcare free at the point of need rather than a system based on insurance schemes for which people may pay.
It is welcome to have ambition, and the Bill is clear about where we are going. I have no problems with the Lords amendments, which are welcome, and I am happy to support them. I am conscious that we are looking to move the debate forward, but I wanted to get those thoughts on the record.
Dr Whitford
Obviously, the Bill itself is quite small. It does not extend or protect continuing reciprocal healthcare rights; it is simply an enabling Bill that gives the Secretary of State powers to try to do that. It enables him to pay for overseas treatment in the EEA and Switzerland. We have heard how the Lords removed the powers to extend that worldwide and increase the scope, as well as limiting some of the Henry VIII powers.
The Bill will allow the Secretary of State and his team to negotiate healthcare agreements with the EEA and Switzerland as a group through the EU system or, failing that, to make bilateral agreements. Unfortunately, that would mean having bilateral agreements with 31 countries, which would inevitably be more complex, more bureaucratic and more expensive.
Clause 4 allows data exchange, which most Members would recognise is absolutely critical not just for collecting payments or swapping money, but for accessing medical health records if someone goes for treatment in another country. It is important that that will be handled only by an authorised person who is part of a statutory body—a public body.
I welcome the new clause in Lords amendment 11, which says that the devolved Governments must be consulted, because it is the three devolved Governments who deliver healthcare in Wales, Northern Ireland and Scotland. It is critical that they are involved in any agreements.
This legislation is needed whether there is a deal or no deal. As came out of the points of order exchange earlier, the withdrawal agreement would extend through the transition period, but we have all seen how the last three years have melted away like snow off a dyke. The next 20 months will also disappear, so legislation is required for the long-term protection of those who already live in Europe and want to stay there, particularly those who have been there only a few years and do not have five years-worth of residency rights in the country they have chosen to settle in. After the Bill is passed, it is therefore important that the Government hope to negotiate the continuation of reciprocal healthcare.
The problem is that reciprocal healthcare is not a free-standing thing on its own; it is there simply to enable freedom of movement. People cannot exercise their freedom of movement rights if they simply cannot afford healthcare where they choose to live, work, love, settle or retire. We have had the right over the past few decades to retire and settle anywhere. People are well aware of my husband’s situation as a German citizen who lives here and has spent virtually all his adult life working in our health system. That was certainly his first concern after the Brexit vote, and I am sure it is a concern for all 5 million people who have either settled here from Europe or settled in Europe from the UK.
The problem is that, as the Government reject freedom of movement and talk merely about a mobility framework, any reciprocal arrangement is likely to be proportional to that mobility framework, as is described in the impact assessment. The Government are not offering visas of over a year for unskilled workers. They are demanding that people be high skilled, possibly that they earn more than £30,000 a year and that they are economically active and are contributors. Will pensioners still be able to retire elsewhere, since they are not necessarily contributors in a major sense and are certainly not necessarily economically active?
People highlight the difference between what the UK has to pay into the European system and what we get back from Europe. A lot of that difference is quite simply because of the number of UK pensioners who choose to retire to sunnier climes—who can blame them?—and the general lack of obsession with retiring to the drizzle and moving in the other direction. Living in Scotland, I can vouch for that. Who would choose to leave the south of France and come to live in the mist, fog and drizzle? That is why the number of European pensioners retiring to the UK is considerably smaller than the number of UK pensioners who retire to the south of Spain and the south of France. That is simple logic.
Dr Whitford
The right hon. Gentleman probably would not like me to get into the clearances of the 17th and 18th centuries when people were burnt out of their villages and put on boats, or when people were transported for criminal activities. There are all sorts of reasons why Scots have ended up all over the world, and they are not all about the weather.
Mr Charles Walker (Broxbourne) (Con)
I just want to say to the hon. Lady that I adore Scotland. I just love the mist, the fog, the rain—it is what I call proper weather, and it is to be celebrated.
Dr Whitford
That is why I live there, right beside the sea, but that does not necessarily mean that somebody living in the vineyards of France will think, “You know what? The weather’s a bit boring here. I fancy somewhere with snow, sleet, hail and sunshine all in one day.”
It is a fact that the disparity is because of the number of pensioners. It is often described as if it is the EU somehow tricking the UK—it simply is not. We are obliged to pay for the pensioners from the UK who have settled in Europe. Indeed, we pay a fixed rate per head that is considerably lower than—just over half—what would be charged for a European citizen settling here.
Jeremy Lefroy (Stafford) (Con)
Does the hon. Lady agree that another reason for the disparity is that the NHS, in being free at the point of need, has not over the years been as geared up as other countries for recording the patient episodes of EU nationals and collecting that kind of data? Because it is not an insurance-based system but is free at the point of delivery, it does not necessarily have the mindset or the paperwork to think about healthcare in terms of money.
Dr Whitford
I totally agree that that is part of it. The Government have to consider, given the numbers involved, whether creating that entire administrative system will bring more money back in than is spent on administering it.
It is important to consider exactly how we will expect doctors and other health staff to demand to see someone’s settled status. Will it be based on a foreign sounding name, a skin colour or an accent? Will people have to produce an ID card if they were born here, they grew up here, they have never been anywhere else and their family are 20 generations English? That is the point: there is no ID card here. In other European countries, there is an ID card and it will show that UK citizens have whatever the equivalent of settled status is. I think doctors and others are anxious about the circumstances in which they should ask for proof of habitual residency.
We see that already in respect of universal credit. I have dealt with a German lady who has been settled here for 30 years and who was refused universal credit on the basis that she was not habitually resident. We are already seeing these things, and we do not want to see them around healthcare.
As we have heard, there are three main groups. The biggest group is the almost 200,000 pensioners using their S1 rights to register somewhere they have never paid tax—and yet they benefit as if they have. It is important that their rights continue, or they may end up having to come back home. They would cost more here than the Government are paying France or Spain to deliver their healthcare. It is important that they are not limited in some way, so that only people who do not have medical health risks are accepted, as happens with insurance. Ordinary pensioners who have exercised those rights would simply not be able to afford comprehensive private health insurance.
A lot of work is being done to protect those who have settled already, but what about the rest of us, who might fancy settling in the south of France or Spain? Will this be achievable by ordinary pensioners in the future?
Approximately 1,300 UK citizens use S2 forms for planned treatment, and the biggest number is the 250,000 claims a year that are made through the EHIC card, which allows people to travel or study all over the EU. As the hon. Member for Burnley (Julie Cooper) said, that includes people with expensive chronic conditions that require treatment such as dialysis three times a week. I defy any Member to find affordable health insurance that would cover such treatment. That is not a risk of healthcare, but planned healthcare, otherwise the trip simply cannot be made.
Justin Madders (Ellesmere Port and Neston) (Lab)
It is a pleasure to speak in this debate—from the Back Benches on this occasion. Although I would have preferred to contribute from the Front Bench as I did during previous stages of the Bill, the Opposition are in safe hands, thanks to my hon. Friend the Member for Burnley (Julie Cooper).
It is curious that both the Minister who led for the Government on Second Reading and I, as Opposition spokesperson, have moved on since then, him to become Brexit Secretary and me to become a Back Bencher. We could have a debate—perhaps even a Division—on who got the better deal.
However, perhaps most curious is that, along the way, the measure has gone from being an international arrangements Bill to an EEA and Swiss arrangements Bill. I have been here for only four years, but I have never heard of a Bill changing its name—but then before this year, I had never heard of Cabinet Ministers breaking collective responsibility and staying in their job, or Parliament taking control of the Order Paper. There are obviously many other examples of the strange times we live in, and this is just another curiosity to add to the list.
The Lords amendments pick up on many of the anxieties we expressed previously about the implications of the sweeping powers in the Bill. I pay tribute to Baroness Thornton and her team who have obviously got greater powers of persuasion than us. They have come up with a series of amendments that rightly curtail the breathtaking powers the Government sought to claim for themselves.
When the Bill began its progress in November, there was a clear assumption on the part of the Government that agreement with the EU would have been reached by now and that arrangements would be in place to carry on very much as we are, at least in the interim period. That in itself raised serious questions about why the scope of the Bill was so wide, and it would not be an understatement to say that the orderly exit envisaged at the time is now not quite so certain. That makes it all the more important that we have a Bill with proportionality and transparency at its heart.
It is worth reminding ourselves that when the Bill first surfaced, the Delegated Powers and Regulatory Reform Committee in the other place set out very clearly its potential impact if it remained unamended. It said that the measure gave the Secretary of State the power to fund the cost of all mental health provision in the state of Arizona, or the cost of all hip replacements in Australia. Although we pushed the Minister on the reason for the need for such wide powers—accepting of course that they would be unlikely ever to be used—the only justification given was that they might prove useful at some future time in trade deals. Although that might be the case, without a clear objective, debated and agreed in Parliament, the powers were unnecessarily broad, so it is right that the Lords raised those concerns and amended the Bill accordingly.
We all have constituents who regularly raise concerns about access to the NHS being used as a bargaining chip in trade negotiations. If the Bill had remained unamended, it would only have given those people more reason to be concerned about such deals. Restricting its scope to EEA countries and Switzerland is therefore proportionate and sensible.
I want to say a few words about amendment 12, which is very similar to an amendment that the Opposition tabled in Committee. It deserves support because even under the current arrangements, cost recovery has not always been handled satisfactorily. Indeed, the Public Accounts Committee described it as “chaotic”. The Law Society of Scotland was clear on the importance of that issue when it gave evidence to the Lords Committee. It said that
“as the NHS has never been very effective in reclaiming the fees owed to it by overseas visitors to the UK, the UK may find itself substantially worse off financially when new arrangements for funding cross-national use of health services are put in place.”
The case for greater accountability is there and has been strengthened by the Government’s impact assessment, which seemed to seriously underestimate the consequences of a no-deal scenario. It set out that the cost of establishing future reciprocal healthcare arrangements on the same basis as now would be £630 million a year, but it went on to estimate that, in the event of a no-deal scenario, the costs are expected
“to be similar or less, depending on the number of schemes that are established.”
I do not think it has ever been clear why the costs might be less unless we stopped reciprocating with some countries, and I do not believe that has ever been an express policy objective of the Government. In fact, they have often—rightly—said the opposite, but the reality is that, in that scenario, the costs could be significantly higher. Both the BMA and Royal College of Paediatrics and Child Health stated that if no EU-wide reciprocal agreement was achievable, the significant extra costs of establishing bilateral reciprocal arrangements with EU and EEA countries in future could fall on the NHS. We need, but have never had, a commitment that, in those circumstances, any extra costs would not be borne directly by NHS trusts. I hope that today the Minister can give such an assurance.
The Lords picked up on a related issue, which we have raised previously, on the lack of clarity about how dispute resolution will work in the event of bilateral agreements being necessary. We know from what the Minister has previously told us that, if we manage to reach full agreement with the EU27, there will still be a limited role for the European Court of Justice, but we do not know what the dispute resolution procedure will be if we do not.
The Lords rightly pointed out that there would be little incentive for other countries to agree to a brand new dispute resolution procedure, and they would certainly be loth to do that if they were expected to pay for it, so in the event of a no-deal scenario, is it not the case that there will be significant additional costs for the UK taxpayer in setting up and resourcing a new dispute resolution scheme? Does the Minister envisage those costs being part of the reporting requirements under amendment 12 and again, can he give a commitment today that those costs will not be directly borne by NHS trusts?
The Bill is in a much better condition than when it started. It does what it is supposed to do, and no more. Crucially, it gives much greater parliamentary oversight than we originally had. I think it is called taking back control.
Lords amendment 1 agreed to.
Lords amendments 2, 8 to 10, 18 to 20, 3 to 7 and 11 to 17 agreed to.
Offensive Weapons Bill (Money)
Queen’s recommendation signified.
Resolved,
That, for the purposes of any Act resulting from the Offensive Weapons Bill, it is expedient to authorise the payment out of money provided by Parliament of any increase attributable to the Act in the sums payable under any other Act out of money so provided.—(Amanda Milling.)
Offensive Weapons Bill (Programme) (No. 3)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Offensive Weapons Bill for the purpose of supplementing the Orders of 27 June 2018 (Offensive Weapons Bill (Programme)) and 28 November 2018 (Offensive Weapons Bill (Programme) (No. 2)):
Consideration of Lords Amendments
(1) Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion two hours after their commencement at today’s sitting.
(2) The proceedings shall be taken in the following order: Lords Amendments Nos. 27, 28, 1 to 26 and 29 to 95.
Subsequent stages
(3) Any further Message from the Lords may be considered forthwith without any Question being put.
(4) The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—(Amanda Milling.)
Question agreed to.