Healthcare (International Arrangements) Bill

Baroness Manzoor Excerpts

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

[Baroness Thornton]

My Lords, I added my name to the amendment in the name of the noble Lord, Lord Clement-Jones, and I am grateful that he has made the argument so I do not need to repeat it. Of course, I spoke about this in Committee and, like other noble Lords, I was reassured at the time by the explanation given by the noble Baroness, Lady Manzoor. Since then, however, the Bill team has actually made available the Bill data processing factsheet, which is very useful. It explains things in great detail, so I wondered whether it might be a good idea if this was given to everybody involved with this Bill. I do not know whether the noble Lord has seen this, but it is a very useful piece of information. Otherwise, I was satisfied in Committee, and if the Minister answers the questions, I am sure that I will remain satisfied.

[Baroness Manzoor (Con)]

My Lords, I thank the noble Lord, Lord Clement-Jones, and the noble Baronesses, Lady Jolly and Lady Thornton, for tabling Amendment 14 and raising the issue of the lawful and responsible processing of data. I start with an apology to the noble Lord, Lord Clement-Jones. My noble friend Lady Blackwood did write to the noble Lord, and I am sorry that he has not yet received the letter. We will endeavour to send him another copy as soon as possible.

As my noble friend Lord O’Shaughnessy said—and I reassure the noble Lord, Lord Patel, that—data sharing is a necessary and crucial aspect of maintaining effective complex reciprocal healthcare arrangements, and the Government are committed to the safe, lawful processing of people’s personal data. There are, as the noble Lord said, safeguards in place in respect of processing personal data for the purposes set out under the Bill, for which the Bill makes express provision. The Bill makes it absolutely clear that it does not authorise the processing of data that contravenes UK data protection legislation.

Data processing will be permitted only for the limited purposes set out in the Bill. Personal data will be processed in accordance with UK data protection law—as the noble Baroness, Lady Thornton, observed—namely, the Data Protection Act 2018 and the general data protection regulation, which will form part of UK domestic law under the European Union (Withdrawal) Act 2018 from exit day.

I assure the noble Lords, Lord Patel and Lord Clement- Jones, and the noble Baroness, Lady Thornton, that the Caldicott principles are an important part of the governance of confidential patient information in the NHS and a guiding mechanism for organisations in how they should handle confidential patient information on a practical level. The NHS is expected to adhere to these principles.

Since 1999, NHS bodies have been mandated to appoint a Caldicott Guardian. These principles are therefore ingrained in the current operation of the NHS and confidential patient data handled by the NHS for purposes in relation to reciprocal healthcare will be subject to these principles. The principles are consistent with the requirements of the GDPR and a breach of the Caldicott principles would most likely amount to a breach of the GDPR and the Data Protection Act 2018. The principles are not intended for statute but are of real practical and operational importance when confidential patient information is processed. This will be the case when confidential patient information needed for reciprocal healthcare arrangements is processed.

It is also worth noting that reciprocal healthcare arrangements will not normally involve the processing of confidential patient information, except in particular circumstances, such as facilitating planned treatment. However, where this information is processed through reciprocal healthcare arrangements under the NHS, it must comply with UK data protection legislation. NHS organisations, as they do now, will be required to adhere to the Caldicott principles. The data ethics framework that the noble Lord, Lord Clement-Jones, mentioned sets out collective standards and ethical frameworks for how data should be used across the whole public sector, as well as the standards for transparency and accountability when building or buying new data technology. Where the framework refers to personal data, it consistently cross-refers to the principles in the GDPR, which is the relevant legislation that policymakers must consider when processing personal data.

Personal data processed for the purposes of reciprocal healthcare arrangements would therefore also take into account the data ethics framework. In addition, from 1 April 2019, the National Data Guardian will be put on a statutory footing and will therefore be able to issue formal guidance and informal advice to organisations and individuals about the processing of health and adult social care data in England. This will provide patients statutory independent oversight of the use of health data, with health bodies being required by law to have regard to the guidance issued by the National Data Guardian. This is another way in which NHS organisations in England which are processing data in respect of reciprocal healthcare will be monitored and personal data can be further protected as necessary.

It is important to note that express reference to these principles in the Bill would not provide any additional protections for personal data or confidential patient information, as the standard of protections required is the same as the existing data protection legislation already provided for in the Bill. I am grateful to the noble Baroness, Lady Thornton, and others for their support in observing this. Furthermore, as I have said, these principles already apply to NHS organisations and will continue to do so in respect of reciprocal healthcare. As a result, it would be inappropriate to put these in the Bill and I am therefore unable to accept the amendment. However, the Government have listened carefully to concerns surrounding the list of persons who can lawfully process data as a part of implementing new reciprocal healthcare arrangements under the Bill and have tabled an amendment on this issue.

Currently, the list of authorised persons under the Bill includes the Secretary of State, Scottish Ministers, Welsh Ministers and a Northern Ireland department, NHS bodies and providers of healthcare. Of course, over time, public bodies change, are reformed and refashioned, and functions are transferred between them in consequence. Clause 4(6)(e) gives the Secretary of State the ability to respond to such changes so that systems can operate efficiently and data can follow in an appropriate and lawful way to enable such operation. We propose, however, subjecting any regulations that add to the list of persons authorised to process data for the purposes of the Bill to the draft affirmative procedure. This would allow Parliament the opportunity to scrutinise authorised persons handling personal data while ensuring that the Government have the ability to guarantee that future agreements are administered in the most efficient way possible.

The Government are firmly committed to the safe, lawful processing of personal data, and to ensuring that patients have enforceable protections under data protection legislation. I hope, given my assurances that any data processing under the Bill would comply with the Caldicott principles and the data ethics framework as appropriate, that the noble Lord will feel able to withdraw the amendment.

The noble Baroness, Lady Thornton, kindly mentioned the factsheet. Of course, if it is useful, we would be very happy to put this in the Library. Officials do a tremendous job and I am very grateful to them. I hope, with the assurance I have given noble Lords, and the fact we are providing greater scrutiny, that the noble Lord feels able to withdraw the amendment.

[Lord Clement-Jones]

My Lords, that was exactly the kind of robust response from the Minister that I was hoping for. It is very rare that I listen to a government response and nod all the way through, so I thank her for that very careful response, both on the Caldicott principles and the framework for data ethics, and for going into the accountabilities, and the affirmative procedure guarantee at the end—that was a bouquet. It is not that we on these and other Benches do not understand the value of NHS data and the real importance of that balance. This is not designed as a negative approach to the use of NHS data; it has huge potential benefits, but we have to make sure that it is kept within that ethical framework. The Minister has demonstrated that that kind of culture is ingrained—or is certainly expected to be ingrained—in the NHS and that Caldicott Guardians, post 1 April, will be very much on the case. In those circumstances, with pleasure, I beg leave to withdraw my amendment.

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Moved by

[Baroness Manzoor]

15: After Clause 4, insert the following new Clause—
“Requirement for consultation with devolved authorities
(1) Before making regulations under section 2 that contain provision which is within the legislative competence of a devolved legislature, the Secretary of State must consult the relevant devolved authority on that provision.(2) In this section—“devolved authority” means the Scottish Ministers, the Welsh Ministers or a Northern Ireland department;“devolved legislature” means the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly.(3) A provision is within the legislative competence of a devolved legislature if—(a) it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of the Scottish Parliament;(b) it would be within the legislative competence of the National Assembly for Wales if it were contained in an Act of the Assembly (including any provision that could only be made with the consent of a Minister of the Crown); or(c) the provision, if it were contained in an Act of the Northern Ireland Assembly—(i) would be within the legislative competence of the Assembly, and(ii) would not require the consent of the Secretary of State.”

[Baroness Manzoor]

My Lords, in Committee, the noble Baronesses, Lady Thornton, Lady Jolly, and Lady Humphreys, tabled amendments on devolution and specifically sought to place an obligation on the Government to consult with the devolved Administrations when making regulations under this Bill. We listened very carefully to that debate and were committed to bringing forward a government amendment which set out, on the face of the Bill, a duty to consult the devolved Administrations where regulations under Clause 2 would make provisions that would be within the legislative competence of a devolved legislature. Government Amendment 15 fulfils this commitment.

I am delighted that the Scottish Parliament has granted a legislative consent Motion to the Bill and that the Welsh Government have tabled a consent motion in the Welsh Assembly recommending that the Assembly, which is debating the Motion today, grants consent to the Bill. We have also had positive and productive engagement with colleagues in the Northern Ireland Department of Health and in the Northern Ireland Office. We are grateful for their support and agreement to ensure that this Bill applies and extends to Northern Ireland.

The regulation-making powers in the Bill provide us with a legal mechanism to implement comprehensive international healthcare agreements into domestic law and provide for healthcare outside the UK for the benefit of all UK nationals. It is, however, recognised that these powers may be used in ways which relate to devolved matters, by which I mean domestic healthcare. In light of this, the amendment provides:

“Before making regulations under Section 2 that contain provision which is within the legislative competence of a devolved legislature, the Secretary of State must consult the relevant devolved authority”.

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[Lord Wallace of Tankerness (LD)]

My Lords, I signed the amendment in the name of the noble Baroness, Lady Thornton, in Committee. Indeed, as I indicated in the speech I made then, when evidence was given to the Scottish Parliament committee that was looking at the legislative consent Motion memorandum issue, there was an expectation that there would be a consent provision in the Bill. The noble Baroness, Lady Blackwood of North Oxford, clearly indicated an intention to do so when she replied to the debate; I put on record an appreciation of the fact that we now have this delivered in letter and in spirit.

[Baroness Manzoor]

My Lords, I thank the noble Baronesses, Lady Wheeler and Lady Humphreys, for their support for this amendment.

I point out to the noble Baroness, Lady Humphreys, that of course consent means exactly that. We have gone a long way to set out a memorandum of understanding that is mutually beneficial; it will be a beneficial working relationship to ensure that the devolved Administrations will continue to play a vital role in delivering reciprocal healthcare. We will continue to consult and to work closely with them, both at ministerial and official level. I therefore reassure her on that point.

I will write to clarify the issue that the noble Baroness, Lady Wheeler, raised. As I said, the MoU that we have agreed sets out our future working relationship, which will include consideration of where compliances overlap.

This amendment represents our close working relationship; I give an assurance from the Government that we are committed to ensuring that arrangements will be conducive to the development of a reciprocal healthcare system that operates effectively across the whole of the UK in a way that fully respects the devolution settlements. I hope that, with the assurances I have given, noble Lords will feel able to support the amendment.

Amendment 15 agreed.

Moved by

[Baroness Manzoor]

16: After Clause 4, insert the following new Clause—
“Report on payments made under this Act
(1) The Secretary of State must, in relation to each relevant period—(a) prepare a report in accordance with this section, and(b) lay the report before Parliament as soon as practicable after the end of the period.(2) Each report must give details of payments made under the powers conferred by or under this Act.(3) “Relevant period” means—(a) the period beginning with the day on which this Act is passed and ending with the end of the first financial year to begin after exit day;(b) each subsequent period of 12 months.(4) “Financial year” means the period of 12 months beginning with 1 April.”

[Baroness Manzoor]

My Lords, financial reporting in the context of the Bill has already been the subject of debate in Committee. The noble Baroness, Lady Thornton, and my noble friend Lord Dundee, who, sadly, is not here today, tabled an amendment on this matter, and the noble Baronesses, Lady Brinton, Lady Wheeler, Lady Jolly and Lady Finlay, also spoke on this important matter.

While we were unable to support the amendment tabled in Committee, the Government supported its spirit, in line with our ongoing commitment to transparency, particularly when it comes to the use of public money. We made this clear in our letter to the Delegated Powers and Regulatory Reform Committee earlier this year, and I am pleased now to introduce this government amendment, which provides a statutory duty to publish an annual report. Government Amendment 16 places a duty on the Secretary of State to lay a report before Parliament each year. This report will outline all payments made during the preceding financial year in respect of healthcare arrangements implemented by the Bill. I believe this amendment directly addresses many of the concerns raised by noble Lords in Committee, and the clear request for increased scrutiny of the use of public money.

The nature and implementation of future reciprocal healthcare agreements is, of course, a matter for future negotiations. However, we envisage that, through this reporting mechanism, we would also be able to provide Parliament with further information on the operation of future agreements. For example, we anticipate that this report would include details of both expenditure and income to reflect the reciprocal nature of agreements.

The amendment provides for annual reports, which will be published as soon as is practicable after the end of each financial year. Expenditure by the Department of Health and Social Care relating to EU reciprocal healthcare arrangements is currently published to Parliament in the form of annual resource accounts. Reporting on future reciprocal healthcare arrangements will continue in this way. Indeed, as now, the department’s future expenditure on reciprocal healthcare will be subject to the existing government reporting requirements. For example, DHSC income and expenditure accounts, relating to current EU reciprocal healthcare arrangements, are already audited by the Comptroller and Auditor-General and published by the Treasury as part of the annual report presented to Parliament.

However, the Government have heard the need for greater transparency in our administration and implementation of reciprocal healthcare arrangements. Moreover, we understand the importance of presenting this information in a clear and accessible document, which is why we propose to go beyond the current reporting requirements with this amendment. Our intention is that Parliament should have clear and easy-to-access details of the public spending on healthcare arrangements implemented under the Bill.

Noble Lords have also expressed concern over the scope of the powers in the Bill. This proposal works alongside the Government’s other amendments in providing clarity. It allows for increased parliamentary scrutiny in respect of costs incurred in relation to future healthcare arrangements.

We remain committed to financial transparency. The amendment ensures that we are able to continue providing Parliament with further opportunities for scrutiny. I hope that your Lordships will be able to offer their support to this amendment. I beg to move.

Amendment 17 (to Amendment 16)

Moved by

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[Lord Lansley]

I am making a simpler point: it is no good asking for information that is not collected. There is a good reason why it is not collected. Although, this might happen in future, at the moment I do not think anybody is proposing to switch the Australian and New Zealand agreements to ones where there is reciprocal reimbursement. In this case, I do not think the information is being collected.

[Baroness Manzoor]

My Lords, I am grateful to the noble Baroness, Lady Thornton, for her amendment and to the noble Baroness, Lady Brinton, and my noble friend Lord Lansley for their contributions. I am not sure I want to go down this route. However, if the noble Baroness, Lady Brinton, wants me to write to her to clarify the point she raised, I will certainly do so. From what I have seen, my noble friend Lord Lansley is correct in saying that we have a reciprocal agreement with the countries he mentioned, where money does not exchange hands.

I can reassure the noble Baronesses, Lady Thornton and Lady Brinton, that—as I indicate—the Government have listened to the need for greater transparency in the administration and implementation of reciprocal healthcare arrangements. I welcome the support around the House for our intentions. We understand the importance of presenting this information in a clear and accessible document, which is why we propose to go beyond the current reporting requirements. Our initial commitment to the DPRRC is contained in the amendment that the Government have tabled on this matter.

As I said, the government amendment directly addresses concerns raised by noble Lords. I hope it reassures noble Lords and demonstrates that we have listened to the clear request for increased scrutiny of the use of public money.

The amendment of the noble Baroness, Lady Thornton, would ensure that specific requirements are reported on. The detailed content of the financial report should—and could only—be determined, once reciprocal healthcare agreements have been made and technical and operational details are known. We do not know what these agreements may be in future. If we accepted the amendment, we would be placing a statutory duty on future Administrations to collect and report on data we have not yet agreed to exchange with other countries. This is not appropriate.

Our amendment is a more feasible way of reporting on future healthcare arrangements that does not pre-empt their nature or how they may be implemented, but still allows for transparency and accountability, which the noble Baroness, Lady Thornton, and other noble Lords seek. It is a baseline, and we intend to go further than just reporting on payments, but we cannot provide a statutory obligation to do so.

The Department for Health and Social Care is currently working to ensure that UK nationals can continue to access healthcare in the EU in the same way they do now, either through an agreement at EU level or through agreements with relevant member states. In either case, we will have to agree how eligibility is evidenced, how—and how frequently—that information is exchanged and the reimbursement mechanisms that will govern those new agreements. Such agreements will have to take into account the operational possibilities and limitations of each contracting party to ensure the smooth operation of reciprocal healthcare arrangements. This should include how NHS trusts in the UK can evidence eligibility for the treatment of non-UK citizens in the most efficient and least burdensome manner.

Once those administrative details are known, the Government will be able to speak confidently to the specific measures that can be reported on for each country. There is an annual reporting mechanism in the government amendment to provide such detail. I acknowledge that the amendment of the noble Baroness, Lady Thornton, is well meaning and agree with its spirit, but the level of detail proposed in it could constrain or create unnecessary burden when administering future healthcare arrangements that have not yet been negotiated.

It is in the interest of neither the Government nor Parliament to force unnecessary administrative burdens on the NHS, which the amendment could inadvertently cause. The level of detail required in the amendment may create new reporting requirements on front-line NHS services.

As always, should the noble Baroness wish, the Minister or others from the department would be very happy to meet her to talk further about the issues, once we have a clear understanding of future negotiations and how they progress. I hope I have reiterated the Government’s commitment to accountable financial reporting, and that the noble Baroness and other noble Lords feel reassured on our commitment to ensuring that sufficient and appropriate checks and balances are in place on reciprocal health agreements. I hope she will agree that her amendment, which places a statutory duty on future Administrations to collect and report on data we have not yet agreed to exchange with other countries, is inappropriate. I hope I have reassured her and other noble Lords and she feels able to withdraw her amendment.

[Baroness Thornton]

I thank the Minister. I said from the outset that this was a probing amendment and I therefore beg leave to withdraw it.