Tuesday 19th February 2019
(5 years, 1 month ago)
Lords ChamberHealthcare (European Economic Area and Switzerland Arrangements) Act 2019 View all Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 Debates 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.