Healthcare (International Arrangements) Bill

Debate between Baroness Blackwood of North Oxford and Lord Marks of Henley-on-Thames

Report stage (Hansard): House of Lords
Tuesday 12th March 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

My Lords, I thank the noble Lord, Lord Marks, for tabling Amendment 3 and the noble Baroness, Lady Thornton, for Amendment 5, both of which seek to place limits on the powers in the Bill.

I will first address the noble Baroness, Lady Thornton, the noble Baroness, Lady Jolly, and the noble and learned Lord, Lord Judge, on Amendment 5, and clarify the purpose of Clause 2(2). We have had some debate about this already but this will be helpful. Clause 2(2) is intended to be an illustrative list of examples of the type of provision that may be included in regulations made under Clause 2(1). It is not itself intended to be a delegated power. The intention has always been to be prudent and transparent in the use of the delegated legislation, and the list was included to be helpful, by demonstrating the types of provision that the regulation-making powers at Clause 2(1) could enable, in order to effectively implement international healthcare regulations in the same way as under reciprocal healthcare regulations. This is not uncommon in primary legislation.

The list is reflective of the kind of provision already included in our current, more comprehensive, reciprocal healthcare arrangements with the EU, and it is intended as a guide to how the powers in Clause 2(1) can be exercised. Regulations under this clause need to be able to do everything that they might need to do to provide healthcare outside the UK, or to give effective agreement. I described in some detail during our debate on this clause in Committee why each of the descriptive lists were included and what they would be used for.

This amendment could mean that future Administrations would be unable to effectively implement reciprocal healthcare agreements with the EU, individual member states or other countries. The reason for this, which has already been alluded to in the debate, is that we have not yet concluded those negotiations and so it is not possible to rule out what we may need to provide for in regulations to give effect to an agreement. In addition, it would not be appropriate to circumscribe in the Bill the Government’s negotiating mandate with the EU, EU member states or countries outside the EEA and Switzerland.

The examples in Clause 2(2) are not exhaustive, but they are useful pointers to aid understanding of how Clause 2(1) is capable of being exercised. I think they have served their purpose, given that we have had such robust debate about them. They offer additional transparency and assistance in understanding how the regulation-making powers in Clause 2(1) would work for the purpose of implementing reciprocal healthcare agreements. This is not an unusual statutory construction; there are examples of where regulation-making powers are accompanied by illustrative lists of what may be included in regulations in order to provide assistance in the understanding of what the powers are capable of doing. As to whether those illustrative lists include the words “for example”, I have an example from Clause 11(2) of the Automated and Electric Vehicles Act 2018, which states:

“Regulations under subsection (1) may, for example—”,


include paragraphs (a), (b) and (c). That is perhaps a helpful example for the noble and learned Lord, Lord Hope.

As this important policy area continues to develop and progress both in the EU and outside the EU, it is appropriate for the Government to be able to respond to protect the continuity of care of those already in receipt of reciprocal healthcare, as well as to explore whether we would like to extend it to others. Were we to accept this amendment, it would, as I said on the previous group, restrict the implementation of reciprocal healthcare arrangements to current processes. That is clearly inappropriate when implementing dynamic agreements in which there are two parties.

Regulations under Clause 2(1) need to be able to do everything they might need to do to provide for healthcare outside the UK or give effect to a healthcare agreement. One small example of why it is right that the Government retain the ability to do this is developments in IT or new technology. As technological change continues to gather pace, it is right that the Government should be able to make the best use of those changes and ensure the most effective and efficient systems for the people accessing these arrangements. That is why we might need to bring in another regulation-making power. I hope the noble Baroness, Lady Thornton, as a former Health Minister, would agree that technology has the power to change the way people access healthcare and can make a real difference in people’s lives, especially perhaps those who are restricted from accessing healthcare because of long-term conditions or distance from services.

While the illustrative list at Clause 2(2) does not expressly make reference to this matter, it may well be necessary to make arrangements to ensure that the most effective and efficient technological processes and systems are incorporated into the implementation of future reciprocal healthcare agreements. The Government are working, through this Bill, to ensure that we have the necessary ability to implement future international healthcare agreements with both EU and non-EU countries.

Amendment 3 in the name of the noble Lord, Lord Marks, speaks to concerns about the breadth of the powers in the Bill. Clause 1 follows a long line of general payment powers found in primary legislation, further to the Public Accounts Committee’s concordant that government expenditure should flow from a specific Act of Parliament. It is a free-standing payment power and needs to be so. Notwithstanding that, we have deliberately chosen to include a power in Clause 2(1) that can be used to support the exercise of the payment power. Therefore, it is not possible for the Government to accept this amendment. Indeed, the DPRRC recognises that general payment powers are not delegated powers.

As I said in my response to this amendment in Committee, the Bill is making good progress through Parliament but clearly will not have Royal Assent until later this month. So, with the best will in the world, we will not be able to lay regulations until the summer. However, in the undesirable, unprecedented situation of no deal, we may need to use these powers before then. That would be specifically for a scenario concerning citizens’ rights agreements with the EFTA states and with Switzerland, which will protect reciprocal healthcare for people living in those countries on exit day, or in other specified cross-border situations.

It is good news that we have operative agreements in the context of no deal, as they will guarantee healthcare for those covered by them. It is likely, though, that we will need to use the power in Clause 1, together with Clause 4, to temporarily implement those agreements. We cannot therefore accept the amendment because we would not be able to protect the healthcare arrangements of people in those countries. We will bring forward further detail in coming weeks when we can be clearer about bilateral agreements, and on the need for any further arrangements. I hope that noble Lords will agree that the Government must have the ability to provide for people at this unprecedented time. I emphasise that stand-alone funding powers such as those in Clause 1 that operate without the need for delegated legislation are not unusual—so this is not being brought in simply because of a no-deal situation.

I have listened carefully and considered the comments of noble Lords about concerns about the scope and breadth of the power. That is why we have sought to address concerns about it, with a large package of amendments to which I have already referred. We have specifically limited the delegated powers and the scope of what can be done under the Bill, and provided additional parliamentary scrutiny mechanisms and greater transparency.

Finally, I will speak to government Amendments 6, 7 and 8. They are in direct response to the concerns raised that regulations under the Bill could be used to confer functions on anyone, anywhere. It is understandable that noble Lords raised the possibility that the regulation-making powers in Clause 2 could be extended to confer functions on private bodies. There is not and has never been an intention to confer functions on private bodies in order to implement reciprocal healthcare arrangements. This was always the case but, given the concerns raised, we are taking action to make this clear.

The proposed government amendments limit Clause 2 to the operation of Clause 2(1) to ensure that any conferral or delegation of functions may only be to a “public authority”. The definition of “public authority” is a person who exercises a function of a public nature. This ensures that public bodies maintain autonomy over how services are procured, contracted and delivered. When making regulations to implement such healthcare agreements, we wish to confer relevant functions on appropriate public bodies according to their part, giving them clear legal responsibility and an operating mandate. Our amendment does not prohibit us from doing this.

I therefore hope that noble Lords will withdraw or not move their amendments.

[Lord Marks of Henley-on-Thames]

My Lords, I shall seek leave to withdraw my amendment, because I feel very much under pressure from what the Minister has just said. It is the case that the free-standing power is needed, as she said, because of the delay that there has been in order to ensure that the payment power can be used before regulations can be laid. My amendment would therefore imperil the continuation of our current European arrangements. I feel under pressure because it the wrong way to do this. It is a great shame that this legislation was not introduced timeously, but I do not wish to divide the House on my amendment and I beg leave to withdraw it.

Healthcare (International Arrangements) Bill

Debate between Baroness Blackwood of North Oxford and Lord Marks of Henley-on-Thames

Committee: 2nd sitting (Hansard): House of Lords
Thursday 21st February 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

The noble Lord is right to expect that I will take these questions away and consider them.

[Lord Marks of Henley-on-Thames]

My Lords, I am very grateful to the Minister for assuring us that she is listening to the criticisms, that the Government have seen the point of them, and that she will consider them before Report. In those circumstances, I invite the House to accept my withdrawing the amendment. It is not enough to give assurances on how the Government intend to use the powers, for all the reasons we canvassed on Tuesday. It is important that the Government consider how far the powers need to go and how far they can be limited, in order to achieve the object that the Minister seeks to achieve—and only the object that she seeks to achieve. If the Bill comes back limited in that way, the Minister may well get a much more favourable wind when she seeks to put such a power through on Report.

I also suggest that the Minister asks the noble Lord, Lord Wilson of Dinton, whether there is now a parliamentary barrister acting as parliamentary counsel who will take the same rather tough view on the extent of powers that are taken as that consulted by him when he was a junior official. It is that kind of rigour that is necessary and must be brought to bear upon the powers.

Regarding the point made by the noble Lord, Lord Lansley, and the response by the noble and learned Lord, Lord Hope, it seems that a greater use of appropriate conjunctions, making clear when “and” is meant and when “or” is meant, would help in Clause 5 and Clause 1. A little bit of English grammar might go a long way to improving this and other legislation. I beg leave to withdraw the amendment.

Healthcare (International Arrangements) Bill

Debate between Baroness Blackwood of North Oxford and Lord Marks of Henley-on-Thames

Committee: 1st sitting (Hansard): House of Lords
Tuesday 19th February 2019 Lords Chamber

[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.

Healthcare (International Arrangements) Bill

Debate between Baroness Blackwood of North Oxford and Lord Marks of Henley-on-Thames

2nd reading (Hansard): House of Lords
Tuesday 5th February 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

The noble Lord, Lord Foulkes, raises a very important point, and he is absolutely right that the Government do not seek to have no deal. The best way to avoid no deal is to have a deal. Under the withdrawal agreement there is protection of reciprocal healthcare arrangements for EU citizens in the UK and for UK citizens abroad, and that is what the Government seek to deliver. We have set out a number of steps to ensure that individuals who currently receive reciprocal healthcare can be protected as much as possible under a no-deal scenario. One of them is to put in place the powers in this Bill so that we can go very quickly to seeking bilateral arrangements. That is why I hope we will receive the support of the noble Lord as we go forward with this legislation.

[Lord Marks of Henley-on-Thames]

I think the point made by the noble Lord, Lord Foulkes, was that it is very dangerous to give the reassurance that the Minister was giving and to tell the public that all will be well in the event of no deal. The public need to know that all will not be well in the event of no deal. Even if this Bill and the regulations go through as quickly as they can, there will be a very serious hiatus. It is important that, rather than reassuring the public, the Government—which want a deal, as I know the Minister does—should say how dangerous it will be to leave without a deal on 29 March.

[Baroness Blackwood of North Oxford]

The noble Lord, Lord Marks, has made an important point. The Government have not in any way avoided the consequences of no deal. They have been very clear in outlining some of the risks associated with no deal and exactly why they are seeking a deal, with strength and authority. Those currently using reciprocal healthcare arrangements abroad can find advice on the GOV.UK and nhs.uk websites. Any of your Lordships who would like more specific advice are very welcome to write to me or to seek a meeting with me on that.

I would like to make a little more progress, as there are only two more minutes before I must close and I have not dealt with a number of issues your Lordships raised with me. On Ireland, which was raised by a number of important Members—the noble Baronesses, Lady Barker, Lady Brinton and Lady Jolly—I reassure noble Lords that the UK is firmly committed to maintaining the common travel area and to protecting the rights enjoyed by UK and Irish nationals in each other’s states, whatever the terms of the UK’s withdrawal from the EU. The common travel area facilitates the principle of free movement for British and Irish citizens between the UK and Ireland and the reciprocal enjoyment of rights and entitlements to public services of citizens in each other’s states.

In addition, on negotiations with the devolved Administrations, we are very pleased to have received a legislative consent Motion from Scotland and are continuing to negotiate.

To conclude, I hope that I have been able to summarise the main issues and topics. There are clearly still some important questions that need to be answered, and I will write on the further points. It is clear from this debate that there is much work still to be done on the Bill, and I am sure that we will have adequate time in what my noble friend Lord Bridgeman predicts—I suspect rightly—will be a lively Committee to make sure that the Bill is in the best possible shape. However varied our views may be on the future relationship with Europe, I think that we can all agree that access to healthcare is essential both for British nationals living in European countries and for EU citizens living in the UK. We have heard that reciprocal healthcare arrangements enjoy broad public support. This Bill is designed to ensure that we can give British nationals living in European countries and EU citizens living in the UK certainty and continuity of care. With that in mind, I beg to move that this Bill be committed to a Committee of the whole House.