Healthcare (International Arrangements) Bill

Baroness Jolly Excerpts

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

[Baroness Jolly (LD)]

My Lords, I join other noble Lords in welcoming the noble Baroness, Lady Blackwood of North Oxford, to the Dispatch Box and in congratulating her on her very fine maiden speech. I hope she learns to love her brief. On these Benches we look forward to working with her, improving legislation and asking fairly regular questions.

One of the privileges of membership of the European Union is that, no matter where we are in the EU, our health needs are safeguarded when we need medical attention. Under EU agreements, the UK has participated in a variety of reciprocal healthcare arrangements with other countries, with the result that all citizens and visitors are protected. This Bill aims to allow the Government to implement new relationships with our EU neighbours, but it goes far further. It aims to give the Secretary of State powers to fund healthcare outside the UK and to give effect to healthcare arrangements between the UK and other countries. It gives data powers to the Secretary of State that exceed what one might think he or she should need.

We know how crucial it is that people’s health is protected after 29 March. In 2016, 91,000 British citizens used their EHICs while abroad in Spain. In Germany, 22,000 British citizens accessed medical help when they urgently needed it. Each year, thousands of older British people who have retired to the EU rely on reciprocal healthcare to access services as they age. Kidney Care UK has called for greater certainty for people living or travelling abroad with long-term health conditions and for those of us who have booked holidays for after Brexit. The BMA warns that care needs may not be met if many people are forced to return from abroad where their health needs are no longer covered. The BMA and the Nuffield Trust have estimated that in that scenario, an additional 900 beds might be needed. Of course, social care might also be affected.

A Bill of this kind is necessary if we are to leave the European Union. I do not believe that the extraordinary scope of the overall Bill has been adequately justified by the department, and I have several areas of concern. First, I am concerned by the extent of the powers called for. This issue has been raised several times today, but it is important to reiterate it. In November, the House’s Delegated Powers and Regulatory Reform Committee described the scope of Clause 2 as “breath-taking”. The committee noted that the clause covers everything from what kinds of healthcare can be funded to whom functions can be delegated to. That would appear to be everyone, everywhere. The Bill does not limit its scope just to Europe. It calls for worldwide powers to make healthcare agreements with any country, anywhere. Why is this necessary? Surely the focus of the Bill should be purely on building new agreements with the EU and EFTA countries.

Clause 4 makes any healthcare provider and anyone the Secretary of State decides an authorised person. Does this mean that confidential health records can be shared with private healthcare providers and anyone else the Secretary of State gives authority to, in the UK or abroad? I appreciate that data is important, but I wonder whether the Government are getting distracted from the key issue at hand.

In direct contradiction to the Government’s promises regarding the Bill, only last week a no-deal technical notice was published by the Department of Health and Social Care which recommended that British nationals living abroad should buy health insurance.

I am seriously concerned by the lack of comprehensive affirmative procedure in the Bill. Under this version of the Bill, regulations which do not contain provisions that make modifications to primary legislation are subject to the negative resolution procedure. Simply put, the Bill does not make provision for adequate parliamentary oversight, is too wide, and is unfocused in what it covers. As the DPRR Committee noted in paragraph 11 of its report, there is nothing that would prevent the theoretical funding of incongruous or excessive health procedures with the blessing of the Secretary of State. It is regrettable that these issues have been raised countless times since November, yet the Government have not fully explained why they request so much power and so much scope. Will the Minister, in her summing up, therefore justify in plain terms the reasons for the Bill being formulated in such a way?

I will spend some of my time considering the issue of devolution. I was glad to catch up with the noble Baroness at a recent meeting before she became Minister, when we were able to share ways of working—probably the nicest way to put it—which could be useful. I was pleased to hear that the Bill team has been working closely with Scotland, Wales and Northern Ireland, as the Bill will affect their NHS systems too. Scotland and Wales have already voiced their support for the Bill, but I will draw attention to some reservations. The Senedd noted that,

“given the significant impact on devolved areas it is crucial that Welsh interests are appropriately considered in the development of reciprocal health arrangements and that mechanisms are in place to ensure that the Welsh Government contributes to the making of decisions that affect Wales”.

If the Bill passes, will the Government commit to consulting the devolved nations when new reciprocal healthcare relationships are negotiated?

Northern Ireland, as has already been stated, faces a particularly tricky set of issues with regards to healthcare post Brexit. For example, children regularly travel from Northern Ireland for cardiac surgery in Dublin, and there is a radiology unit in Derry that is a cross-border initiative available equally to patients on either side of the border. It is co-staffed and co-funded, and ambulance routes cross the border many times a day. While we are on Northern Ireland, could the Minister consider this scenario of a citizen of the Republic of Ireland living in France and returning to live in London? How do they stand with regard to the Bill? I am pleased that the Minister has confirmed that close work is going on between Westminster and relevant officials in Northern Ireland and the Republic to ensure that no individual reliant on cross-border services faces disruption in the case of a no-deal situation.

I am also concerned by the provisions for data sharing in the Bill. The noble Lord, Lord Kakkar, referred to that issue in his speech, and we will come to it in quite a lot of detail in Committee. Clause 4 provides a legal basis for “authorised people” to process personal data for reciprocal healthcare after the UK leaves the EU. This could be as part of an agreement with the EU, an agreement with a non-EU country, or in connection with no-deal plans. Clause 4 clarifies that this data sharing must be in accordance with data protection legislation. But how do we guarantee our data safety once it is exchanged with bilateral partners? Health data, by its detailed nature, proves particularly sensitive in this regard even when it is made anonymous.

In the NHS, the Caldicott principles were developed in 1997 to consider how patient information is handled across the system. Principle 4 states that access to personal confidential data should be on a strict need-to-know basis. Clause 4 does not adequately safeguard this need-to-know principle. The purpose of this clause appears to be so that we can know how many citizens of other countries are using the NHS, and vice versa. The noble Lord, Lord Thurlow, made the point earlier that it is important that we should know that, but it is not contained in this part of the legislation. In practice, we all know that this is very tricky data to collect. NHS England and the devolved NHSs all use different data management systems. This NHS England data will be in the purview of the Minister; I wish her the best of luck with it, because it needs a strong hand.

A core value of our NHS is that it is free at the point of need. We know already that our hospitals and surgeries are not set up to process treatment charges, let alone to feed this information back into a complex system to be adequately anonymised and passed to the relevant country. We heard about dummy bills; I lived in the Middle East for some years in the 1990s, and in the country where I was living healthcare was free. You went to see the doctor and were given a prescription, you had a conversation and might be referred on, and you were given a dummy bill so that you understood what the value of your care was. That was quite an eye-opener. I am sure that it would be quite difficult to implement here—they were starting with an almost brand-new health service—but it brought you up short and made you think. Have the Government fully considered the practicalities of implementing some aspects of Clause 4?

I fail to understand why the Bill is of global scope when it is brought in in order to mitigate the damaging effects of Brexit. The Bill should refer to future reciprocal health arrangements with EU and EFTA members only. I am also worried by the extent to which data protection and devolution issues have been considered. These are key areas where the Government can achieve their objectives to guarantee reciprocal healthcare without reaching for such powers. It seems that the Bill embraces a somewhat laissez-faire approach to our future international healthcare arrangements. By asking for far-reaching powers, the Government neglect thinking critically about what they will truly need to negotiate future agreements.

I am sure that we will explore these issues in more depth in Committee, when I hope that the Minister will listen to and act upon the concerns that are expressed by this House. Parliament should not, and I am sure will not, lightly hand such sweeping powers to the Executive to do as they please. Parliament has the right to say no. If the Government do not listen to this House and do not act to limit the powers in the Bill, we will have no choice but to vote against its passing at Third Reading.

Healthcare (International Arrangements) Bill

Baroness Jolly Excerpts

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

Noble Lords have been very patient with me; I will try not to bang on any longer. If we had time and exit day was further away, I should propose that this Bill should be sent packing back to the Government to redraft it and produce a Bill that is constitutionally acceptable. That option is not open. The healthcare of our citizens in Europe, and EU citizens here, must continue and survive. I shall support the amendments proposed by the noble Baroness, Lady Thornton. This breath-takingly flawed Bill undoubtedly requires the further safeguard of a sunset clause. This would enable the Government the opportunity to rethink their legislation—instead of having it cast straight back on to the Minister’s desk—and come back to the House with fresh proposals before the end of March 2021, when there really should have been enough time to produce an acceptable Bill. Once the Brexit legislative crisis has diminished, Bills like this one should indeed be wrecked.

[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.

--- Later in debate ---

[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?

Healthcare (International Arrangements) Bill

Baroness Jolly Excerpts

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

[Baroness Manzoor]

I fully understand the point made by the noble Baroness, Lady Brinton. I always believe in a simplified place, but those are the accounting rules that we have for government and therefore they remain. We have gone the additional mile by saying that we will place on record a ministerial Statement at the end of each financial year and that this will include the areas I have indicated.

[Baroness Jolly (LD)]

The Minister referred to arrangements being put into NHS organisations to make this happen—but what about GP practices? If you talk to GPs, they will tell you that they are in private partnerships. Presumably the Government are talking to the Royal College. The last time I had a conversation with GPs was five or six years ago, when they were totally averse to collecting money for their services. Can the Minister clarify whether things have changed?

[Baroness Manzoor]

I can clarify that NHS trusts are funded on the basis of existing agreements and will provide additional funding for any new agreements reached within the powers of the Bill. The same thing will apply to GPs where charges need to be made for people who are not entitled to that care and do not fall within the reciprocal arrangements that we have in place. The procedure would apply as it currently applies and such people would be charged as appropriate. If they are part of the reciprocal agreements that we have, whether bilaterally or multilaterally, such charges will not be incurred.

--- Later in debate ---

[Lord Patel]

My Lords, I shall speak to Amendment 22, in my name and that of the noble Lord, Lord Kakkar, and Amendment 25, which is in my name. Both relate to personal data, and seek assurance from the Government that, whatever processes are put in place, they will respect the need for confidentiality and trust. While I absolutely recognise the value of transferring individual health data when the patient is receiving treatment, and the need to do so, it is also important that the Bill provides powers to protect personal and health data.

Access to personal health data should be limited to healthcare purposes. Currently, the General Data Protection Regulation imposes restrictions on the transfer of data, which we may not have after we leave the EU. A separate issue is the definition of “authorised persons”, which, when they gave evidence, both the BMA and the Academy of Medical Royal Colleges referred to as a concern.

I am also unhappy about the mechanisms that will operate for patients to consent to having their data transferred. Amendment 25 refers to Clause 4(6), relating to data processing. It says:

“In this section—‘authorised person’ means”.


Paragraphs (a) to (e) then define who the authorised people might be. Amendment 25, which I tabled only to get an explanation from the Minister, suggests that paragraph (e) should be deleted. It says that,

“any other person authorised, or falling within a description of persons authorised, by regulations made by the Secretary of State for the purposes of this section”.

That sounds too wide to me. In this country we have clear protocols and guidelines about who should be transferring patients’ data and to whom. It is not to anybody not clearly defined as an authorised person. I beg to move.

[Baroness Jolly]

My Lords, the NHS in England has a long history and a good record of data governance. In 1996, Fiona Caldicott was called in and asked to look at the whole issue of NHS data. It must be said that the data was not as digital then as it is now. Her review came up with a group of principles—I think there were seven—and that was then followed by Caldicott 2. More recently, there has been another look at NHS data and we are now down to three principles. It is not just the Caldicott guardians. When he was Secretary of State at DCMS, Matt Hancock announced the data ethics framework and then we had GDPR. There is a really rich background of caring for patients’ data.

The provisions in the Bill authorising the sharing of data appear wide—that is probably the best way to put it. Clause 4(1) provides:

“An authorised person may process personal data held by the person in connection with any of the person’s functions where that person considers it necessary for the purposes of implementing”,


the Act. The words,

“that person considers it necessary”,

are a very wide formulation for the exercise of a function such as this. They seem designed to make a challenge in court almost impossible.

Among others defined as an authorised person is a “provider of healthcare”, so the authority extends beyond the NHS to all organisations that provide NHS care but might not be NHS organisations. So it would include commercial organisations as well as public authorities. Can the Minister confirm this and give an example, to better understand how wide the scope is?

Moreover, it is left to bodies such as the NHS to define for themselves the level of staff who should have this degree of authority. Will the Minister confirm how data is handled with devolved states and within the island of Ireland? How are we intending to communicate clinical data with organisations in the EU, and in the rest of the world, once the Bill has been enacted? Are there issues about shared datasets? We are fairly confident about sharing research data, but clinical data will be absolutely key here.

[Baroness Thornton]

My Lords, I have an amendment in this group. I support the noble Lord, Lord Patel, and the noble Baroness, Lady Jolly. Clause 4 of the Bill provides the legal basis for processing personal information and data about patients to facilitate patient information and payments for reciprocal healthcare after Brexit—whether as part of an agreement with the EU, an agreement with a country outside the EU or in connection with contingency plans arising from a no-deal scenario. It also seeks to ensure that the key safeguards which should always be at the heart of systems that use and exchange patients’ sensitive personal and medical data are in place. The noble Lord, Lord Patel, is right to press this issue. It was almost the first thing that he and I spoke about when we talked about the Bill, which made me look at and ask why he and other noble Lords, particularly those in the medical profession, were very concerned about this.

At Second Reading the Minister acknowledged that there were deep concerns raised by noble Lords on data processing provisions in Clause 4, and promised to address them—but unfortunately she ran out of time on that day. We look forward to her catching up with that. We know that the noble Baroness has special expertise and experience in this field, so I look forward to hearing her talk about how she envisages the necessary robust standards, security and safeguards applying in post-Brexit healthcare deals with the EU and the rest of the world, and how those will be achieved.

In the Commons, my colleagues pressed this matter with the Minister, Stephen Hammond. He gave an assurance that the powers to access personal data would be limited, and committed at the time to provide a briefing. I wanted to raise that with the Minister—my colleagues in the Commons certainly have not received that, but I thought that she might raise it with her colleague and see what the briefing might have said. I am sure that we too would be interested to receive it.

When I raised this issue at Second Reading, I mentioned that I had been in touch with the National Data Guardian for Health and Social Care, who, as we know, has a vital role in ensuring that confidential healthcare data is used and shared appropriately in protecting the high standard of confidentiality. Pursuing that question is whether the Minister has been in touch and sought her guidance on this matter.

[Lord O’Shaughnessy (Con)]

My Lords, this has been an important discussion on an area that is, of course, of growing concern not just for people in Parliament but for the general public. Noble Lords will also know about my interest in this issue; we have had many discussions over the last few years about it. It is critical that we get this right, to allay any fears—because there are fears that attend to the use and movement of data for various purposes.

The noble Baroness, Lady Jolly, makes the point in her amendment about the Caldicott principles and so on. I was pleased from the Government’s point of view to be able to bring the National Data Guardian on to a statutory footing, as well as other measures that we took to provide that level of reassurance. My understanding is that these are all part of the scaffolding around the Data Protection Act, which is the GDPR as put into our legislation. They are a way of translating the general provisions of that into healthcare purposes. I ask the Minister to confirm that, because the Bill clearly states that the Data Protection Act is the governing piece of legislation here, it therefore follows that things such as the NDG, the principles and other things apply. They, in effect, derive from that and apply to all aspects of healthcare, including reciprocal healthcare.

[Baroness Jolly]

We are talking about exchanging health datasets, but in this world we are talking about our EU partners, the EEA and whoever else in the world we make a healthcare arrangement with. Are there mechanisms—this is a question I do not know the answer to—whereby datasets can be standardised so that any method of recording healthcare information that we might use would be recognisable to somebody in the States, Canada or France?

[Lord O’Shaughnessy]

That is an incredibly important point and it goes to the question that I was about to ask my noble friend. My reading of it is that it will not be possible for us to make reciprocal healthcare arrangements that involve the flow of data with another country unless we deem that country to be adequately complying with the GDPR. That is absolutely right and it is a high bar. It does not just provide a degree of regulatory compliance and standardisation; there are also international healthcare codes that underpin it, as the noble Baroness will know. It would be useful if my noble friend could confirm that, because it is clearly a really important point that will, in a sense, allay some of the fears that have been raised tonight about just how the powers in the Bill, once they extend beyond the European Union, Switzerland, the EEA and so on, might be used.

Healthcare (International Arrangements) Bill

Baroness Jolly Excerpts

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

[Baroness Jolly (LD)]

My Lords, I too support the amendments in the names of the noble Baroness, Lady Thornton, and my noble friend Lord Marks. I repeat the view that he and the noble and learned Lord, Lord Judge, expressed: we should be producing only legislation resulting from the decision to leave the EU. I thank the Minister very much for meeting us and for the government amendments—particularly to those Henry VIII clauses, which have absolutely no part in modern legislation.

I agree with previous noble Lords, but any Bill dealing with healthcare agreements outside the EU is different. I would be happy to look at these issues in another Bill at another time. As has just been said, the expansion in scope of the Bill looks opportunistic and is completely inappropriate at the moment.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I cannot agree with these amendments. As we pointed out during the progression of the Bill, we live in a global world, with more people travelling internationally for all kinds of reasons. There is obviously a huge demand for healthcare systems between countries, giving the traveller peace of mind that the foreign country they are in can respond to healthcare needs.

As was also mentioned, we already have simple reciprocal agreements with non-EU countries. The domestic implications are limited, and our current powers to charge domestic overseas visitors, and the regulations under such powers, provide for domestic implementation. Importantly—