Cannabis: Medicinal Use

Baroness Thornton Excerpts

Monday 4th March 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

I do not accept the characterisation that the noble Baroness has just given. UK patients are not being denied access to these medications; they are able to access medication via prescription from a doctor who is on the specialist medical register. The Government have acted fast on the review of the best clinical evidence and we are going further with forthcoming NICE guidelines and a Health Education England training package to raise even more awareness.

[Baroness Thornton (Lab)]

What troubles me about the Minister’s answer is that NHS England’s guidance says that medical cannabis can be provided only where all,

“other treatment options have been exhausted”,

and where there is, “published evidence of benefit”. We have heard lots of evidence of the benefit this afternoon but we are right to be worried about the research that is allowing that to happen. Why is it not happening quickly enough? Can the Minister describe what level of opiate addiction and which severe side-effects of other medication can be tolerated before medical cannabis is prescribed?

[Baroness Blackwood of North Oxford]

The evidence base for the quality and effectiveness of these products is limited; it is developing. This is why the Government have asked the MHRA to call for a proposal to enhance our knowledge of these medications. However, we have not waited for this; we have introduced a route via unlicensed medications which allows for doctors who are on the specialist register to prescribe for patients. This is the right route; these are the doctors who will understand the conditions mostly likely to benefit from prescription and who are able to make a judgment about the safety and efficacy of medicinal cannabis. It is the route usually used for unlicensed medications and already set up by the MHRA. We want to see more licensed products in this route, however; we call upon industry to invest in more trials and publish the results and full underpinning data to build our knowledge so that more patients are able to benefit.

Safety of Medicines and Medical Devices

Baroness Thornton Excerpts

Thursday 28th February 2019 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I congratulate the noble Lord, Lord O’Shaughnessy, on initiating this important debate—which, of course, a few weeks ago he would have been answering himself. I declare my interests, which are in the register: my long association with the British Healthcare Trades Association and as a lay member of a clinical commissioning group. I also congratulate the noble Lord, Lord Carrington, on his spirited maiden speech and welcome him to the House. I thank all the organisations which have sent us briefings on this issue, and indeed our own Library. They have been very helpful indeed.

While my sympathies are totally with the mesh campaign, I am not going to refer to it because several noble Lords have spoken about it with enormous passion. My heart is with them but I am going to talk about other issues. In that regard I particularly welcome the contributions of my noble friends Lady Bryan and Lord Hunt. The House is aware that these matters are close to the heart of the noble Lord, Lord O’Shaughnessy, and his record of taking action to deal with issues of safety is to be commended, including the establishment of the commission of inquiry which is being chaired and led so wonderfully by his noble friend Lady Cumberlege. She has given us an up-to-date briefing and, indeed, enormous cause for hope.

This is a good time to reflect on the infrastructure that safeguards the introduction of medicines and devices into the UK as Brexit looms. The noble Earl spoke knowledgeably about this and I am grateful to him for his remarks. Like other noble Lords, I believe that we have a legislative and regulatory structure in the UK which is designed to protect patients and which has been material to the development of Europe-wide regulation from which we have all benefited. Several noble Lords have suggested that it is creaky, which I think is right, and that it has to keep up. That sentiment was well expressed by the noble Baroness, Lady Masham. Following a question posed not so long ago by the noble Baroness, Lady Walmsley, about the protection of patients from counterfeit medicines after the UK has left the EU, it was quite clear from the briefings that arrived in my mailbox that the UK pharmaceutical and biotechnology industry and organisations such as the Association of the British Pharmaceutical Industry and the UK BioIndustry Association are warning that leaving the EU without a deal would increase the risk of counterfeit medicines entering both the UK and EU supply chains.

The first issue that I would like to raise with the Minister is this. She will know that the falsified medicines directive—FMD—was published on 1 July 2011 and the legislation became effective on 8 February this year. It introduces tougher rules to ensure that medicines are safe and that the trade in medicines is rigorously controlled. This directive is being introduced to tackle the counterfeit high-price medicines that are a threat to public health worldwide. Does the Minister agree that a no-deal Brexit is likely to see the UK’s access to EU databases revoked, including the European Medicines Verification System, which is the heart of EU-wide compliance with the falsified medicines directive? Those proposals also present a risk to UK patients as unilaterally revoking FMD legislation in the UK would make the country a target for counterfeiters. Both the bodies involved in this area are very concerned indeed. Post Brexit we need to be assured that keeping fake or fraudulent medicines out of our supply chain is an absolute priority.

In this context, three things are important: making specific reference to the importance of co-operating on the regulation of medicines in the political declaration; making it clear that the UK and the EU will co-operate on protecting citizens from infectious disease and counterfeit medicines; and making it clear that the UK and the EU will agree closer collaboration on science and innovation.

The second issue I wish to raise stems from my support over many years for the British Healthcare Trades Association, which, having been founded in 1917, is one of the UK’s oldest and largest healthcare associations. My connection with the association arises partly because many years ago I met stoma nurses and discussed with them the work they do. I had conversations with them about the design and importance of support for stoma patients. Those conversations led to me getting to know the BHTA and realising that a lot of the devices, innovation and design we have in this country rest with small and medium-sized enterprises, which need our support. The BHTA provides them with the controls and regulatory framework that are so important in their relationship with the NHS and individuals. It deals with class 1 and some class 2 devices.

I also want to ask the Minister about the suppliers of other equipment and devices. The wide availability of medical devices from places such as Argos and through Amazon, and the purchase of apps and other monitoring devices, concern me greatly. Last summer I was sent copies of an Argos leaflet, available in a GP surgery outside London, advertising a whole range of equipment, including monitoring devices available in its stores. There was no suggestion in any of these leaflets that it might be a good idea to get professional advice before forking out on these items. We would want a physio to assess us before using walking aids—sticks and rollators—and to be measured up to make sure that we get the correct ones. A shower stool could be dangerous if you had Parkinson’s or a one-sided weakness or found it hard to stand. You would need an occupational therapist to work out whether you needed a chair with a back or with arms.

While we wish people to take responsibility for preventive care and self-care, and monitoring your own health and progress is to be encouraged, effective self-help is a complex thing. It requires ongoing education and support from health and social care workers. Done well, it is fantastic. I ask the Minister her view of the ease with which people can buy medicines and devices, either online or in places such as Argos. For example, is there any research to inform issues of patient safety, knowledge, usage or whether there are enhanced outcomes in terms of prevention or well-being?

Thirdly, I will briefly mention access to new devices for diabetics. Technology plays a key role in diabetes care, particularly for people with type 1 diabetes but also for people with type 2. Over the last few decades new technologies have transformed that. However, it is a postcode lottery. I ask the Minister: what are the Government doing to ensure that there is fair distribution and access to these very important technologies?

Finally, I think I need to ask the Minister about a recent leak concerning the NHS app, which is designed to be a digital front door, and the fact that it would appear it is not able to connect with any other providers of online GP consultations. The leaked NHS Digital briefing shows that a survey of 32 online consultation suppliers, such as LIVI and Babylon Health, found that none of the technology was able to integrate with the NHS app. This is quite a serious matter, because the NHS Long Term Plan commits to building the app into a single digital front door for patients to,

“provide advice, check symptoms and connect people with healthcare professionals—including through telephone and video consultations”—

all brilliant stuff. This is a serious issue of patient safety. I would like assurance from the Minister, given that she, her predecessor—the noble Lord, Lord O’Shaughnessy—and their boss have embraced this technology with such huge enthusiasm. I hope we are not heading into another technological black hole.

I congratulate all noble Lords on their contributions. This has been an absolutely excellent debate, one that I hope will provide support for those people campaigning on a variety of very important issues around patient safety, and will take the debate forward.

Mental Capacity (Amendment) Bill [HL]

Baroness Thornton Excerpts

Tuesday 26th February 2019 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, this is a very difficult area. I agree with all the noble Baronesses who have spoken, in so far as they stress the problems of trying to identify what one means by “liberty” in this area, particularly regarding mental health. A number of cases have come before the courts, both in this House when it was sitting in its appellate capacity, and in the UK Supreme Court, where I sat and grappled with this problem myself. I support the government amendment which seems much more consistent with the way the Strasbourg court has interpreted Article 5.

There is a great deal of case law that has been developed over the years as to the meaning of “liberty” in its various contexts. The point that comes out very clearly from a case called HL v the United Kingdom—it went to Strasbourg following a decision in this House in a case called R v Bournewood Community and Mental Health NHS Trust—is that account has to be taken of a whole range of factors when you look at the word “liberty” for the purposes of the article. The court says that in the end it will always come down to a question of degree and intensity, regarding whether what has been going on really is a deprivation of liberty or merely a restriction. It is trying to devise a dividing line between these factors that one is searching for in looking for a definition.

The court said it decided not to try to define the world “liberty”, because it was so difficult to find a workable definition that would apply to all circumstances. What you tend to find is the approach that the government amendment takes, of saying what does not fall within the article in a given case, and what does. It is a safer way of proceeding, rather than trying to, as the amendment in the name of the noble Baroness does, lay down in clear terms what the “deprivation of liberty” amounts to. The problem is that if one looks at the way in which that amendment is framed, in future cases the courts are going to find it very difficult to see whether Article 5 is consistent with what is in the amendment. Then there is the problem of the court having to declare an incompatibility, which then has to be sorted out by some further amendment.

The safer and most useful route is to anchor the amendment to Article 5, as subsection (1) of the government amendment does; and then, for the guidance of those who have to deal with these difficult issues, set out some clearly defined areas where they are not at risk of it being said that they are in conflict with the article. I do not find the provisions set out in the subsections that follow difficult to understand.

[Baroness Thornton (Lab)]

I thank the noble and learned Lord for allowing me to ask a question about the comments of the Joint Committee on Human Rights and its grave reservations about the formulation which the Government are putting forward.

[Lord Hope of Craighead]

I am not surprised; we are all grappling with a difficult area. Based on my own experience, and my reading of the Strasbourg decisions, the Government’s approach is the safer one to adopt. Before the noble Baroness stopped me, I was trying to say that there are situations where the use of a double negative is a perfectly intelligible way of proceeding, so that criticism does not seem particularly strong. I suggest that we follow the Government’s approach for the reasons I have given, especially because of the way it anchors the proposed section to Article 5 itself. We are always going to come back to the Strasbourg court and the way it interprets the article. We do not have the final word on this, I am afraid, because of the way the convention is framed, the way we have subscribed to it and the way we apply the decisions of the Strasbourg court.

--- Later in debate ---

[Baroness Thornton]

My Lords, it is a matter of great regret that we have reached this point in the Bill and are still debating the definition of deprivation of liberty. We should have been able to resolve this over the last six months, and we should not be having this discussion. We should have agreed it. The reason we have not agreed it, to put one point of criticism, is stated in the letter from the Joint Committee on Human Rights:

“It is regrettable that there was no time for adequate consultation on the proposed definition”.


I think that is exactly right.

We are where we are, and what we have is a disagreement between our very eminent lawyers—the noble and learned Lords, Lord Hope and Lord Mackay—and those of us who have been looking at and considering the Bill since July last year.

--- Later in debate ---

These amendments strengthen the protections provided by the liberty protection safeguards. I hope that noble Lords will be content to accept these changes made by the House of Commons, and I beg to move.

[Baroness Thornton]

My Lords, I shall speak briefly to Amendment 41A, but first I congratulate the Minister on moving such an enormous group with such coherence. She deserves at least a drink of water, if not a cup of tea. I tabled this small and modest amendment for the sake of completeness. During the passage of the Bill, the noble Lord, Lord O’Shaughnessy, gave us undertakings and assured us that issues to do with independent hospitals would be addressed in the Commons. I congratulate the Government on the fact that indeed they have been. In November, the noble Lord said:

“The Government believe that independent hospitals would benefit from AMCP involvement, and therefore our intention is to bring forward an amendment, or amendments, as required, in the Commons to deal with this issue and make sure that there is such a role for the AMCP in all deprivation of liberty cases”.—[Official Report, 21/11/18; col. 279.]


In some ways the Minister has already partly addressed my concern, which is about the fact that in many independent hospitals most of the patients will be there because of the local authority or the CCG. So the clarification that I am seeking is on whether independence is truly protected when an AMCP is appointed under those circumstances. This amendment seeks to clarify that. The Minister has gone some way towards clarifying that, but I think I need to press her a little on whether that is the case. I declare an interest as a member of a CCG that commissions many of these services. When we are looking at commissioning an independent hospital, should we be the body that also takes the decision about the appointment of an AMCP?

[Baroness Meacher (CB)]

I shall speak very briefly. I welcome very much Amendments 13 and 22 in particular in relation to independent hospitals. In Committee, a number of us raised that issue and were very concerned that independent hospitals, which are often hundreds of miles away from a person’s home, could act as the responsible body and make crucial decisions where perhaps they have a commercial interest in keeping that person on their premises.

With the permission of the current Minister, I will applaud the noble Lord, Lord O’Shaughnessy, because I feel I know that he played a key role in making sure that these amendments found their way into the Bill. The stipulation that the local authority shall be the responsible body is important. Although I understand what the noble Baroness, Lady Thornton, is saying, it seems to be a huge step forward to take the responsible body away from the independent hospital. I would like to feel that local authorities—the professionals dealing with the assessment of such cases—would have a real interest in making sure that those people returned home, if at all possible, as soon as possible. That is what all this should be about.

The other matter I will raise briefly is that of people in domestic settings, where deprivation of liberty is at stake. At our recent meeting with the Bill team we were assured that such cases would be dealt with under this new piece of legislation in the course of the normal care planning process, rather than requiring a reference to the Court of Protection. When an elderly person is caring for a demented husband or wife, the last thing they need is some bureaucratic requirement. This seemed very important, and I was delighted when the Bill team gave us an assurance that this, too, was being dealt with.

There is nothing in the Commons amendments on this, but I wonder whether the Minister could give the House an assurance that it will indeed be the case that people in domestic settings will be dealt with within the local authority planning process, and will not require a reference to the Court of Protection.

--- Later in debate ---

Tabled by

[Baroness Thornton]

41A: Line 6, at end insert—
“(2A) In making arrangements under sub-paragraph (2)(c), the appropriate authority must have regard to the principle that a person to whom a proposed act or decision relates should, so far as practicable, be represented and supported by a person who is independent of any person who will be responsible for the act or decision.”

Mental Health: Eating Disorders

Baroness Thornton Excerpts

Monday 25th February 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

I thank my noble friend for that question and in particular for raising the issue of stigma. We have put £150 million and extended over 70 services into the community specifically so that services can be more accessible to young girls and boys and so that people can feel free to come forward and seek help where they need it.

[Baroness Thornton (Lab)]

It is to be welcomed that the proportion of children with an eating disorder starting urgent treatment within a week or so remains quite high in London, but it is much higher than the rest of the country, according to the data analysed by the Royal College of Psychiatrists. What will the Government do to address what looks like a postcode lottery if your child needs support and help with an eating disorder and you happen to be in Bradford?

[Baroness Blackwood of North Oxford]

I am grateful to the noble Baroness, Lady Thornton, for raising the issue of ensuring that we improve services across the country and do not have a postcode lottery. Since July, NHS England has opened up 126 beds for children and young people in areas of the greatest geographical challenge to ensure that we can address exactly that problem.

GP Partnership Review

Baroness Thornton Excerpts

Thursday 21st February 2019 Lords Chamber

Asked by

[Baroness Thornton]

To ask Her Majesty’s Government what steps they will take to implement the recommendations of their report GP Partnership Review: Final Report, published on 15 January.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)]

My Lords, we recognise the huge contribution that general practice and the partnership model has made to patients over the lifetime of the NHS. We wish to thank Dr Watson for the report of his independent review, and we are currently considering his recommendations. We are planning to publish a formal response in due course.

[Baroness Thornton (Lab)]

I thank the noble Baroness for that Answer. The GP Partnership Review makes seven key recommendations, including: an increase in the number of GPs and funding for those roles; an expansion of the range and capacity of healthcare professionals working with GPs, such as developing the role of practice nurses; focusing on general practice in medical training; and recommendations to deal with an unsustainable workload. Those are all laudable aims. What puzzles me is the context in which these aspirations can be delivered. Some 78% of EU doctors working in the UK are not reassured by the Prime Minister’s commitment to protect the rights of EU citizens, and 35% of EU doctors are considering leaving the UK and moving to another country. The tier 2 visa cap means that 1,500 applications for healthcare workers were rejected by the Home Office last year, and indeed more GPs are retiring, leaving or going part time than are entering the profession. So is there a plan to remedy the existing shortfall and the impending shortfall, which threaten and will continue to threaten patient care and safety?

Healthcare (International Arrangements) Bill

Baroness Thornton Excerpts

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

[Lord Hope of Craighead]

The noble Lord, Lord Lansley, raises an interesting point. It is something that should be clarified by better drafting. Splitting things into subheads, as is done frequently throughout the Bill, tends in some ways to open up the arguments to which the noble Lord, Lord Patel, has drawn attention. As I think I have mentioned to the Minister outside the Chamber, the way these provisions are drafted in this cumulative form is rather unfortunate because if they are read together in a single sentence they can be narrowed down, whereas if they are separated out it suggests that paragraph (a) has a life of its own, so one may wonder what “any other person” can possibly refer to. I hope that the Minister will take these points away and ask the draftsmen to look more carefully at how the Bill is drafted, particularly when using that style of drafting.

[Baroness Thornton (Lab)]

My Lords, this has been a very powerful and useful debate to have as a precursor to the one we are about to have, where we will again address the nature of the powers in the Bill. I enjoy it very much when noble Lords such as the noble and learned Lord, Lord Hope, use the words “rather unfortunate”. Of course, in House of Lords-speak, which the Minister will become accustomed to, it is a very serious thing to say of a piece of legislation that its drafting is rather unfortunate. I want to say how much I appreciated the interventions from the noble Lord, Lord Butler, and the noble and learned Lord, Lord Mackay of Clashfern, to whom I always listen most carefully.

My noble friend Lord Foulkes referred to discussions that may take place outside this Chamber on whether statutory instruments should be referred back, but actually we know from the past that, when your Lordships become exercised about a statutory instrument, we see threats in the press about our existence and, “How dare they!”. That is a serious problem, so I think there is an issue that we need to address that is broader than just this Bill.

[Lord Butler of Brockwell]

It seems to me that the situation is exactly the same with amendments to primary legislation. Governments will often put pressure on their Back-Benchers to support it, but very often the Government are defeated on amendments and legislation is thereby improved. I cannot see why the same thing should not happen with statutory instruments.

[Baroness Thornton]

The noble Lord and I absolutely agree about that, and the noble Lord is quite right. I am not saying that one would bow to that pressure at all. Your Lordships’ House has a proud record of persuading the Government to change both statutory instruments and primary legislation with regard to the powers that they have.

I shall say one final thing. It is not the case that these issues were not raised by my honourable friends in the House of Commons; in fact, they were. Indeed, the Delegated Powers Committee’s first report on the Bill was quoted extensively in Committee in the Commons; unfortunately, the votes were not there to carry its effects through. We might think about changing that at a later stage in the Bill.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)]

My Lords, I thank the noble Lord, Lord Marks, for Amendments 26, 29, 30 and 31, the noble Lord, Lord Patel, for Amendment 28, and my noble friend Lord Lansley for Amendments 37 and 39, and all noble Lords who have participated in this debate, which has been very robust.

These amendments seek to address concerns raised about the ability to make consequential changes to primary legislation using regulations under the Bill. I reassure noble Lords that the Government have been listening closely to these concerns, some of which—as the noble Lord, Lord Marks, put it—were trenchantly expressed earlier in Committee, and I want to continue these conversations as we move towards Report.

That said, I would like to take this opportunity to provide some context to the approach we have taken in the Bill. The Henry VIII powers in this Bill are not free-standing; they flow directly from the delegated powers in Clause 2(1)—which I know has also met with a little bit of disapprobation. The noble Lord, Lord Butler, recognised the importance of parliamentary scrutiny, and we do as well. We recognise the concerns over the Henry VIII powers, and the Bill has been drafted to ensure that regulations making such changes would all be subject to the affirmative procedure. The intention of including this power to make consequential changes to primary legislation is simply to ensure that healthcare agreements are implemented in an efficient and effective way.

There is a broad legislative landscape which currently implements reciprocal healthcare arrangements with the EU. It currently includes EU law, as well as domestic primary and secondary legislation. In implementing future comprehensive healthcare agreements, it may be necessary to amend different types of legislation so that we can operationalise things domestically. In the past when we have implemented international healthcare arrangements, amendments were needed to primary legislation. For example, when we implemented the EU cross-border healthcare directive in 2013, we needed to insert discrete new sections into the National Health Service Act 2006. With that specific experience in mind, we felt it was important that the Bill was able to amend primary legislation because it seemed likely that it would be necessary in order to implement future agreements, albeit in very restricted circumstances and subject to the affirmative procedure.

We can give some reassurance that this is not a stand-alone power and it will not need to be used in the vast majority of regulations made under the Bill. Our intention in including this was only to ensure that the statute book is coherent when implementing future arrangements under the Bill. I recognise that there is serious concern from noble Lords on this matter, and am grateful for their thorough scrutiny so far. I give my reassurance that the Government have listened carefully and we will welcome further discussion on this critical issue before Report.

On my noble friend Lord Lansley’s Amendments 37 and 39, it is only right that parliamentary time is allowed for regulations that need enhanced scrutiny, but it is not appropriate for all regulations. The concept of retained EU law was introduced in the European Union (Withdrawal) Act 2018. The issue of the status of retained EU law was considered during the passage of that Act, which I am sure my noble friend was involved in. As a result of those considerations, the EUWA set out bespoke rules determining how types of EU retained law might be modified. This was set out in Section 7 of and Schedule 8 to that Act, as I know the noble Lord is well aware. Crucially, the EUWA does not require that all amendments to retained direct principle EU law must be subject to the affirmative procedure. That is true both in relation to regulations made under the EUWA and regulations made under other pieces of legislation, such as this Bill. As such, I hope noble Lords will agree that it is reasonable that we should follow the rules set by the Act—which ultimately was debated and passed by this House—in order to ensure coherence. The EUWA gives flexibility for future legislation to provide for this level of parliamentary scrutiny, which is considered appropriate. That is what we have done in this Bill.

--- Later in debate ---

[Lord O'Shaughnessy (Con)]

My Lords, I will speak briefly on my noble friend Lord Lansley’s Amendments 27 and 41. Noble Lords will know that because of my role as a Minister up until the end of last year, I find some of the provisions in the Bill rather more defensible than do other noble Lords, and I know that that is a minority opinion. Nevertheless, the Minister has said that she will reflect on the House’s strength of feeling, and of course she has much greater wisdom than me on these matters.

I was struck by some comments made by my noble and learned friend Lord Mackay of Clashfern on the last group, when he talked about the scope of the Bill; that is relevant to the context of the amendments laid by my noble friend Lord Lansley. That is the point I was trying to make on Tuesday: there is no reason a priori why the Bill should not have a broader scope. As my noble friend pointed out, in other contexts, the House is arguing that similar Bills ought to, but it follows from that that the functions carried out as a consequence of the Bill are of two distinct types. One concerns what my noble friend called rollover Bills, to provide continuity with the EEA and Switzerland; the other concerns new arrangements—not necessarily with new countries but of a new and deeper kind. Clearly, that will be taking on a relationship that does not have precedent when it comes to dealing with individual countries, even if it has precedent as modelled on those available with the EEA and Switzerland.

My noble friend’s logic in thinking about how the regulation-making power ought to reflect that distinction is therefore sound. Clearly, there needs to be sensitivity. That is reflected in the timeliness and urgency of what we need to do for one set of circumstances and what we might want to do with the longer-term global role.

I am sure that the Minister will reflect carefully on the amendments. If the goal of the Bill should be to give us the broad scope, as I still believe, not only to deal with the consequences of leaving the European Union but to build a different, broader, more global set of relationships, which I think is the kind of network the House supports, there is a compelling case for my noble friend’s argument for a differentiated approach. Whether the specifics are right, I do not know; others will be in a position to judge. I look forward to hearing the Minister’s comments on the amendments.

[Baroness Thornton]

Listening to the noble Lord, Lord O’Shaughnessy, I reflected on our debates on Tuesday. I think he is again making the argument for two Bills, but there we go. He is quite right about differentiation. I thank the noble Lord, Lord Lansley, for introducing this group of amendments, all of which seek to curb the powers of the Secretary of State under Clause 5. I shall speak to Amendment 33 in this group. It would ensure that amendments are made under the affirmative procedure. We have sought to use the affirmative procedure in the event of no deal, which would enable the Government to bring in replacement bilateral arrangements immediately. That is because we are concerned that delays under the draft procedure would leave British and EU citizens not covered by a health agreement, with serious implications.

This group of amendments points in the same direction and comes from every part of the House. They broadly agree with both the Delegated Powers Committee and the Constitution Committee reports. As noble Lords have said, the Henry VIII powers in Clause 5(3) and (4) provide for regulations to amend, repeal, revoke or retain EU law. I very much welcome the fact that the Minister said in our previous debate that she intends to consider what has been said. I will resist the temptation to quote what the Constitution Committee said about this, because I know that noble Lords have read its influential reports at length.

These powers have been mentioned by noble Lords all the way through Committee. Clauses 2 and 5 are particularly worrying, to put it mildly. What concerns me is the Government’s reaction to the legitimate concerns expressed so clearly by both those highly regarded Lords committees, on whose advice we depend for our scrutiny of legislation. They overuse the words “flexibility and capability” and argue that the Bill must be forward-looking and needs those powers to provide that flexibility and capability. I was reminded of the previous general election, when the Conservative Party coined the phrase “strong and stable”. It did not convince anybody, and I am not sure that “flexibility and capability” is convincing noble Lords as a reason for the powers. It is a good reason for what the Government want to achieve, but as a justification for the powers in the Bill, it is not compelling.

The noble Baroness now seems to have realised that in every part of the House, including on her Benches, we take these matters particularly seriously. That is not because there is a desire to stop the Government acting—absolutely not at the moment. It is because our system of checks, balances and accountability requires legislation to be subject to proper scrutiny, in order to safeguard citizens from the tendency of Governments—all Governments—to charge on and ride roughshod, implementing their wishes without let or hindrance.

I know that some officials see this as a kind of game or tussle to see what they can get away with, particularly at the moment, but as the noble Lord, Lord Wilson, wisely said on Tuesday, you cannot put these powers in because they might just be useful. Although I will resist joining the noble Lord in repeating the words of Margaret Thatcher, I agree with his sentiment that the Bill as drafted breaks all the rules of our constitutional understanding. I hope that the Minister takes that seriously because the challenge before her and the House is to amend the Bill so that it fulfils its primary function: to provide healthcare cover for millions of UK citizens and to ensure healthcare for UK citizens living and working in the European Union and European citizens living and working in the UK. In other words, it is about individuals’ lives and their health. We believe that the right amendments, like those defined in this group, will refine the Bill’s scope and give the Secretary of State appropriate powers—an achievable task.

[Baroness Blackwood of North Oxford]

My Lords, I thank my noble friend Lord Lansley for Amendments 27 and 41, the noble Baroness, Lady Thornton, for Amendment 33, my noble friend Lord Dundee and the noble Lord, Lord Foulkes, for Amendment 34 and the noble Lord, Lord Marks, for Amendments 35, 36 and 38. Each amendment speaks to concerns we have heard during the passage of the Bill to date about the breadth of the regulation-making powers and the scrutiny afforded to them.

I wish to open by saying that I listen very carefully to these concerns. I assure the noble Baroness, Lady Thornton, that I see this process as neither a game nor a tussle. The suite of measures on reciprocal healthcare we are introducing is intended entirely to reassure UK citizens living in Europe and elsewhere, and EU citizens living in the UK, that we will work hard to ensure continuity of care for them in this uncertain time and that we are looking forward and thinking about providing care in other places, as a Government should.

To assist our consideration of these issues, I thought it might be helpful to set out the intention of some of the delegated powers as drafted, as we have not yet had a chance to do so in much detail. As I indicated previously, Clause 2(1)(a) is intended to be used to set out the detail of complex payment arrangements under reciprocal healthcare deals because payments can be made in a variety of ways. For example, the UK pays France the actual cost of treatment provided, meaning that a claim for the cost of each person’s individual treatment is made to the UK, whereas in Spain we pay an average cost per person of treatment provided. In Portugal, on the other hand, we offset payments. That is why that power has been drafted in that way.

Clause 2(1)(b) provides for regulations to be made in connection with the provision of healthcare abroad outside reciprocal arrangements, allowing us to put in place complex arrangements outside a bilateral agreement in an urgent situation. That is designed specifically for an EU exit situation that may be an emergency.

Clause 2(1)(c) is needed to give effect to comprehensive healthcare agreements entered into with another country or international organisation, such as the EU. This provides the power to implement agreements in domestic legislation. We believe that it would be unworkable to produce new primary legislation to implement each agreement on an individual basis; I am sure that the House would agree.

Clause 2(2) sets outs examples of the type of provision that might be included in regulations under Clause 2(1). As we have said before, it is an illustrative list of the kinds of provisions that would already be included. I took note of the concern about conjunctives under this clause.

Clause 2(2)(a) highlights that complex healthcare agreements may include a mechanism for calculating payments and regulations but would need to specify how the cost of healthcare would be calculated between different countries.

Clause 2(2)(b) indicates that regulations may establish eligibility criteria that specify which people can access healthcare outside the UK. Establishing robust eligibility criteria is key to preventing the misuse and abuse of healthcare, as referred to already by my noble friend Lord Lansley in previous debates.

--- Later in debate ---

Clause 2(2)(h) indicates that regulations may be used to confer functions on the Secretary of State or any other person, as we already discussed in the first group. Finally, Clause 2(2)(i) indicates that regulations may be used for delegating functions. Reciprocal healthcare agreements are implemented in partnership with a number of NHS bodies and organisations as well as with non-NHS organisations such as the Department for Work and Pensions, which obviously covers pensions and social security. They need to be identified and be given a clear legal responsibility and operating mandate to do so.

[Baroness Thornton]

My Lords, all these powers exist at the moment, as do all these arrangements. However, the powers being asked for in this Bill have not been needed for that. The point that was made on Tuesday is about why we look to have such huge powers when actually we have managed without them in the past.

[Baroness Blackwood of North Oxford]

For the implementation of international healthcare arrangements, these powers exist within EU legislation. At the moment we do not have the powers to implement international healthcare arrangements within domestic legislation. That is why they are being introduced.

The department believes that the negative procedure is appropriate for the use of the delegated powers to arrange the specific implementation purposes which I have laid out. That balances the appropriate level of scrutiny with the use of parliamentary time. However, I have listened closely to the discussions in the debate and I take seriously the concerns which have been raised by noble Lords, by the DPRRC and by the Constitution Committee. However, I hope that noble Lords will understand that we need to ensure that the Government have the legislative tools needed to implement the agreements we reach, especially the ones with reciprocal healthcare at EU exit. I would like to work constructively with your Lordships to further consider these issues in detail as we progress the Bill to Report, and I will make myself and officials free to discuss the breadth of the regulation-making powers further at an open session next week. I hope that with this explanation and these reassurances, my noble friend will feel able to withdraw his amendment.

Human Fertilisation and Embryology: Frozen Eggs Storage

Baroness Thornton Excerpts

Wednesday 20th February 2019 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, does the Minister realise that if a medical condition is the determining factor and has left a woman prematurely infertile, the eggs can be stored for up to 55 years, as is the case with sperm? Therefore, the science has changed. The Government need to recognise that 10 years is an arbitrary and unfair limit. If eggs can be stored for longer, surely this situation is unfair and cruel to women who wish to use those eggs after the 10-year period, for a variety of reasons. Will the Minister ask for a review of the law, and if primary legislation is needed, could it be included in the next Queen’s Speech?

[Baroness Blackwood of North Oxford]

The noble Baroness is right: the 2009 regulations were not just concerned with fertility options for people who are already adults. The 55-year limit is intended for those who become infertile through serious illness or side-effects, which can happen in childhood. I understand the concerns about the 10-year limit—there was no consensus during the 2009 review—but it is being continually reviewed and will remain under review by the department.

Healthcare (International Arrangements) Bill

Baroness Thornton Excerpts

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

Moved by

[Baroness Thornton]

1: Clause 1, page 1, line 3, leave out “outside the United Kingdom” and insert “in a European Economic Area country or Switzerland”

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

With that in mind, I turn to today’s amendments, speaking first on Amendments 1, 2, 12, 13, 14, 45, 46 and 47 from the noble Baronesses, Lady Thornton and Lady Jolly, which seek to limit the scope of the Bill to the EU, EEA and Switzerland. I will first address the concerns, raised by the noble Baroness, Lady Thornton, the noble Lord, Lord Patel, and others, that the Bill will open up the NHS to future trade deals. The Bill is not about trade deals; it is about reciprocal healthcare. It is an implementing Bill.

[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—

[Lord Foulkes of Cumnock]

It is in order to ask a question during Committee.

[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.

Amendment 1 withdrawn.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

[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.

Healthcare (International Arrangements) Bill

Baroness Thornton Excerpts

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

[Baroness Finlay of Llandaff]

I should declare my interest as a past president of the BMA and a current BMA member, because I would like to refer to its brief on this. The BMA has indeed highlighted the potential problem, as the noble Baroness, Lady Brinton, set out, of having 27 reciprocal arrangements all containing different terms. This will inevitably put pressure on front-line NHS staff, who will be expected to be familiar with and administer these different arrangements.

There is an additional problem that the association has highlighted, however: if the 190,000 UK state pensioners who are signed up to the S1 scheme and living in the EU need to return to the UK to receive care, health services will face drastically increased demands and costs. The Nuffield Trust has calculated that if those individuals return to the UK for treatment, that could incur additional costs to health services of between £500 million and £1 billion per annum, and require an additional 900 hospital beds and 1,600 nurses to meet demand. That is quite apart from the additional medical and allied healthcare professional staff, and all the clerical and managerial staff. The potential pressure on services, which are already stretched to bursting point, cannot be ignored.

As the noble Baroness, Lady Brinton, said, the difficulty is in how the money is recouped, where it goes and who can use it, as well as in accounting for it. While we are talking about cost recovery, I shall pick up on general practitioners. It is difficult to know where that money goes and to whom it is reported. If it is the clinical commissioning group, would it be expected to bill the person, who may well have disappeared from the UK by the time any such processes go through? Receptionists are not familiar with billing. The complexity of administering a multiple arrangement scheme cannot be ignored.

My final question goes back to one I have raised previously about the devolved Administrations. Given that there are now different healthcare systems in the four countries of the UK, each administered and managed slightly differently, what discussions have the Government had to date about recouping costs both as they stand and in the event of a large influx of pensioners currently living and receiving treatment abroad?

[Baroness Thornton (Lab)]

My Lords, I knew that the noble Baroness, Lady Brinton, would make a very thorough job of moving this amendment, so I was not just being lazy but was making sure that the Committee got the best person to introduce it. The noble Baroness mentioned the BMA’s brief, to which I shall refer. While the amendment refers to NHS trusts, any funding incurred by primary care providers in administration of the new healthcare arrangements should also be met. As a member of a CCG, I think that probably means CCGs. That is quite important.

--- Later in debate ---

Moved by

[Baroness Thornton]

20: After Clause 3, insert the following new Clause—
“Duty to provide information about changes to reciprocal healthcare arrangements
(1) As soon as this Act is passed, the Secretary of State must prepare guidance to assist—(a) British citizens; and(b) EEA and Swiss citizens living in the United Kingdom;in understanding the effect of the withdrawal of the United Kingdom from the European Union on reciprocal access to healthcare, and publish the information on a website.(2) The Secretary of State must take all reasonable steps to provide a copy of the information to any bodies appearing to the Secretary of State to represent the interests of those who may be significantly affected by changes to reciprocal healthcare arrangements including—(a) NHS Trusts;(b) the Royal College of General Practitioners;(c) British embassies in the European Union; and(d) other bodies the Secretary of State considers appropriate.(3) The information must include—(a) the date on which current reciprocal healthcare arrangements end;(b) the date on which any new agreement is expected to come into effect;(c) information about where people can access help and advice about healthcare costs; and(d) any other information that the Secretary of State considers appropriate.(4) In making arrangements for the purposes of providing information under this section the Secretary of State must—(a) have regard to the needs and characteristics, in respect of the provision of information, of persons to whom the information is to be provided; and(b) consider whether, having regard to those needs and characteristics, it is appropriate to provide any of the information to any of those persons otherwise than in the way in which it would normally be provided.”

[Baroness Thornton]

My Lords, in moving Amendment 20, I will speak also to my Amendment 21 and to Amendment 43, having notified the Minister that I intended do so. These amendments are all concerned with protecting the interests of individual travellers, residents and their families who depend on reciprocal healthcare arrangements and could be affected by the UK leaving the EU without an agreement in place; so all three amendments are about leaving with no deal.

Amendment 20 addresses the duty to provide information, Amendment 21 addresses the issue of costs to British citizens, and Amendment 43 prevents the Secretary of State making regulations on healthcare agreements unless there is a withdrawal agreement with the EU, or the House of Commons has explicitly approved leaving the EU with no deal—the Minister might be familiar with this amendment since it has appeared in other Brexit legislation.

If we crash out, it seems unlikely that the necessary deals with 27 countries to provide reciprocal healthcare payments will be in place; the Minister admitted as much at his briefing, which we attended, and he suggested that we should get health insurance. It might take time to sort out our healthcare, so we have tabled three amendments which we hope will assist this process.

First, we believe that the Government should publicise the changes and provide guidance to people about the impact on their lives, including insurance requirements. That means more than just posting something on the NHS England website. The amendment does what I know that Ministers—and certainly Bill teams—do not like: it puts down a list of places where the changes should be publicised.

Secondly, the Government should have arrangements in place to reimburse British citizens for healthcare costs incurred outside the UK—which would previously have been covered by EU arrangements—for a period of up to six months, until the new healthcare agreements come into effect. This is an obvious, basic protection that should be in place to avoid the risk that our citizens are charged for healthcare because of even two or three weeks of turmoil or churn while agreements are not in place.

Thirdly, Amendment 43 is about how to safeguard reciprocal healthcare in a no-deal situation. It mirrors the amendment that we tabled to the Trade Bill and is about accountability to Parliament. I will be interested to receive the Minister’s reaction to these three proposals, which are about protecting people’s interests in a no-deal situation. I beg to move.

[Lord Lansley (Con)]

In so far as the noble Baroness has referred to Amendment 43, which we might otherwise reach on Thursday, I completely understand the motivation, which we have seen elsewhere, to make no deal so intolerable a prospect that one does not want to enter into it—I do not want us to do so and neither do the Government.

If we were to do the responsible thing and pass this legislation before 29 March, so that we have it in place, but with such an amendment within it, that would be extremely ill-advised. If there were no memorandum of understanding with other countries, leading to a bilateral agreement, the result may be that even the regulations that are going through the House would not enable the Secretary of State to have the power to pay for healthcare for UK citizens in other European countries. If we are going to give people reassurance—the Government have an obligation to do that and Amendment 20 says we should do that—we can do so only on the basis of the law as it is. If this legislation were to have such a poison pill added to it, I am afraid that it would make it impossible for civil servants to give the degree of reassurance that we should be giving people.

--- Later in debate ---

Regarding Amendment 43, the noble Baroness will see that the Government have set out a clear prospectus of legislation in order to meet the requirements of reciprocal healthcare in the context of—although not just because of—exiting the EU. The Government have been clear that their priority is to secure a withdrawal agreement with the EU, but we must prepare for all eventualities. I hope that I have been clear that we are seeking to maintain and protect all rights, providing as much certainty and continuity of care as possible, as my noble friend Lord Lansley said. It would not be appropriate to introduce into the Bill a measure which meant that we had a period of uncertainty after exit day; the powers in this Bill are specifically designed to ensure that we will not have any gap in our ability to provide healthcare. Currently the withdrawal deal makes arrangements for reciprocal healthcare to be continued; the SIs allow for a no-deal scenario; and in addition to that we have powers in the Bill to make provision for emergency arrangements. This is a suite of powers which are designed to work together, and the reason the Bill needs to commence on exit day is so that if necessary—if there were a situation in which we did not have reciprocity—we would be able to step in and take action. On that basis, I hope that the noble Baroness feels able to withdraw her amendment..

[Baroness Thornton]

I thank the Minister for that very comprehensive answer, and thank other noble Lords, including the noble Baroness, Lady Brinton, for speaking up.

These are important questions because people are concerned about what will happen to them and to their families if we do not have an agreement. I am reassured by the answer on Amendment 20; it sounds as though the Government are already having comprehensive discussions. On Amendment 21, I can see that setting up a new system for payments would be very difficult, and I will read what the Minister has said. There and on Amendment 43, I am interested in what the gaps might be, so I will read and consider what she has said. Now that I have spoken to Amendment 43, I will not be moving it as the last amendment in the whole business. With that, I beg leave to withdraw Amendment 20.

Amendment 20 withdrawn.

--- Later in debate ---

[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.

Healthcare (International Arrangements) Bill

Baroness Thornton Excerpts

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

[Baroness Thornton (Lab)]

My Lords, I welcome the Minister to the House and congratulate her on an excellent maiden speech. It combined the essential description of the Bill before the House with revealing the formidable talent and understanding that she will bring to her new life. I do not recommend that she leave herself so short of time to be in her place, and I apologise to the House—I was just at the door and only just made it into my seat. It is not my normal practice.

The debate has reflected the importance, if not the size, of the Bill, as was remarked on by my noble friends Lord Foulkes and Lord Morgan. It would seem that the Bill is regarded, as the Minister in the Commons said in the helpful briefing we had, as the most straightforward and simple piece of healthcare Brexit legislation. By now, I gulp at what the rest of the legislation will look like if that is the case. Although it has only six clauses, it has potentially profound effects and implications. Our job is to test those and make amendments accordingly if necessary. We must not allow the shortness of time—entirely, I must say, of the Government’s own making—to deter us from our job, particularly as concerns the powers that the Government intend to take in the Bill. Of course, the Government always have the option to extend Article 50 if they find themselves in a pickle and not ready on Brexit day.

As most noble Lords have said, and of course we agree, it is blindingly obvious that the Bill is essential. As I said in my speech in the debate on the European Union Committee report on reciprocal healthcare on 3 July—a debate led by the noble Lord, Lord Patel—healthcare for people working, living and travelling across Europe and those coming to the UK is clearly an urgent matter to be resolved. Here we are, within weeks of leaving the European Union, whether by accident or by deal, and this issue is still not yet resolved. Worse, as the BMA states in its briefing note:

“Brexit could lead to obvious and significant changes in these existing reciprocal healthcare arrangements. The BMA has repeatedly warned that a ‘no deal’ Brexit could lead to reciprocal healthcare arrangements for UK citizens and residents within the EU, and EU citizens and residents within the UK, ending. This would lead to significant disruption to those individuals’ healthcare arrangements, an increase in insurance costs, and uncertainty regarding access to healthcare abroad”.


This affects millions of people. The contribution of the noble Lord, Lord Bethell, was interesting, because it recognised that 27 million people is a large part of our population. I cannot imagine many other things where half the population have signed up to something.

Many of our fellow citizens in Spain are watching the progress of the Bill with some anxiety. The Government have said that they want both UK and EU citizens to be able to continue to use the EHIC scheme after Brexit, but that this would need to be agreed as a part of any deal on our future relationship. The future relationship will be negotiated in the transition period—which of course, as we know, is not the same as the withdrawal agreement as we know it. However, in the absence of an agreement on future relations, the right to reciprocal healthcare enjoyed by our 27 million UK citizens through the EHIC will cease after Brexit. When at our very helpful briefing I asked the Commons Minister for his advice in those circumstances, he advised us to take out health insurance. That is now on the website. The Association of British Insurers, which gave evidence to the Commons in Committee, said that the estimate of costs varied between 5% and 20% in the increase on travel insurance, but that there is a difference between travel insurance and health- care insurance and there is the matter of pre-existing conditions, which the Financial Conduct Authority has been examining, as the noble Baroness, Lady Barker, pointed out.

I always try to look at practical examples of what might happen under such circumstances. I am thinking about my late mother, living with COPD as she did for the last 10 years of her life, and taking her on holiday to France. This is what happened. Of course, we had the EHIC in place. An agreement with oxygen suppliers in France resulted in a discussion with our oxygen suppliers in the UK and, when we arrived in the place where we were staying in France, there were the oxygen supplies and equipment and a wheelchair if needed—free because of the reciprocal agreement. Perhaps the Minister will write to inform me what I might need to do under the circumstances and what might be the cost to my family today.

I hope that the Minister will have had the chance to read the letter sent to her right honourable friend the Prime Minister last week from the coalition of the British in Europe concerning the potential plight of UK pensioners living in the EU facing no deal. What is her advice to the 190,000 mostly older Brits who face the end of the S1 scheme under which the UK pays for their healthcare, which will come to an end under no deal? That was confirmed by the European Union last week. The announcement on the Government’s website last week is causing panic and alarm among UK citizens who are dependent on the scheme for life-sustaining treatment and medication. That was echoed wonderfully by the noble Baroness, Lady Jolly.

We have a Bill that is small but broad in its intent and goes wider than addressing the issue of reciprocal healthcare in the European Union. Despite the siren calls of the noble Lord, Lord O’Shaughnessy, and the Minister, it seems to open the door to healthcare negotiation across the rest of the world. In other words, it also lays the basis for trade and foreign affairs discussion concerning healthcare. One must ask: which countries do the Government have in mind, and for what purpose and why is the Bill addressing world issues and not limited to the European Union? On these Benches, we are very concerned about the scope and believe that the Bill does not need to address the whole world at this point, when I think we have enough on our plates just sorting out the 27 million EHIC holders in the UK and their interests.

I suspect that either a Minister or one of their very bright civil servants decided that this was an opportunity to start a discussion about healthcare deals in many other countries by making the Bill an international healthcare Bill. Frankly, where I come from, we call that being too smart by half. We on these Benches are not at all sure that this is a good idea. If one thinks of the international aspect of the Bill combined with the regulatory power that it gives the Government, there is justifiable cause for alarm. It is reasonable for us to probe the suspicions raised by the noble Baroness, Lady Brinton, about the USA’s eyes on our National Health Service. To deny that that exists is simply not true: of course it exists. Are we putting a Bill on the statute book which will allow that to happen? That is what we are asking.

The Government will have to go some distance to convince noble Lords that this can be justified and explain to us why we do not have before us a much simpler Bill that is smaller in scope, addresses the very important EU issues post Brexit and gives the Government appropriate powers to deal with them. The Commons Minister said:

“The Bill will support the potential strengthening of existing reciprocal healthcare agreements with countries abroad and around the world, and will potentially add to their number as part of future health and trade policy”.—[Official Report, Commons, Healthcare (International Arrangements) Bill Committee, 29/11/18; col. 24.]


I think he rather gave the game away with that. As noble Lords have said, powers in Bills are for ever, not just for Brexit. That is my interpretation of the guidance used by the legislative Committee. The question of international scope is so important because of the powers conferred on the Secretary of State by the Bill. It is not often that one reads that:

“Clause 2 has a breath-taking scope. Indeed, the scope of the regulations could hardly be wider”,


in a Delegated Powers and Regulatory Reform Committee report. The report goes on to list nine areas in which the Bill confers unlimited powers on the Government. Noble Lords have mentioned some examples, so I will do so too. The fifth point in paragraph 10 states:

“The regulations can delegate functions to anyone anywhere”.


The noble Lord, Lord O’Shaughnessy, can say that the Government’s intentions are fine, but that is not the point. The point concerns the powers given to Ministers and Governments, which we must look at.

Noble Lords more knowledgeable than me have spoken at length about the report. How does the Minister intend to respond to it? When will we see the Government’s response? I hope that it will be before the next stage. So far, the Government have failed to convince the DPRRC, our colleagues in the Commons or my noble friend Lord Morgan and other noble Lords who raised these issues that these powers are necessary. The Minister can anticipate engaging with the House about these regulatory powers; as she will soon learn, this is standard fare to noble Lords and an important aspect of our revising role.

I want to ask the Minister about the interesting challenge created by the regulations subject to the negative procedure. She will be aware that they have a 40-day time limit. When does she intend to put them down? To deal with them before exit day, that suggests 18 February, but I may be wrong. What is her intention for them, because that date will come before we have finished considering the Bill? We need to question the powers in the Bill, but there are other matters to consider. As the noble Lord, Lord Kakkar, and other noble Lords explained, Clause 4 is loosely worded about the necessary use of patient data; I suspect that the House will want to address that. I have been in touch with the NHS National Data Guardian. Has the Minister also sought her guidance on this matter?

There are very serious issues around the arrangements between Northern Ireland and the Republic of Ireland, as mentioned by the noble Baroness, Lady Barker, and other noble Lords. Finally, the issues of cost, review and accountability are missing completely from the Bill as it stands, as mentioned by the noble Earl, Lord Dundee. It is important to reiterate that we on these Benches agree that reciprocal arrangements are vital. They should be straightforward but the Bill’s complexity and scope puts them at risk. The Minister will need to listen carefully to what the House has to say and make good her promises to do so at an early stage.