Healthcare (International Arrangements) Bill

Debate between Lord Foulkes of Cumnock and Lord Marks of Henley-on-Thames

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

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I have in my name Amendment 4, which has a great deal in common with the other amendments in the group. It is intended to achieve two objects, the second of which is to restrict the operation of the Bill to the EU, the EEA and Switzerland—as do other amendments of the group—by ensuring that the object of any regulations under the Bill would be limited to replicating existing arrangements. The first sentence of my amendment would delete subsections (2) to (4) and thereby drastically narrow the regulation-making power to replicating the reciprocal healthcare arrangements we have now. That part of my amendment fits more sensibly with the amendments in the second group, and I shall address it then. I will be brief in speaking about this group because I agree with every word that the noble Baroness, Lady Thornton, and the noble and learned Lord, Lord Judge, said.

This House has shown conclusively that it supports ensuring that we can continue to provide EHIC cards to the 27 million British citizens who enjoy them and guarantee continuing healthcare to British pensioners living elsewhere in the EU along with the other arrangements for reciprocal healthcare that we enjoy as members of the European Union. Those arrangements are in place. They work extremely well in providing guaranteed healthcare across the countries that they cover. They enjoy very wide public support and are clear. Millions of our countrymen and countrywomen would be very unhappy to lose them as a result of Brexit, but there is absolutely no urgency for introducing legislation now for healthcare deals around the world.

Throughout the debates on this Bill, the Government have not come up with a single reason why we should not now pass this legislation limited to agreeing the continuation of our existing reciprocal healthcare arrangements while deferring legislation for new healthcare agreements with third countries to another time, and then considering the Secretary of State’s powers in the context of those arrangements in another Bill. Before we legislate for new international healthcare agreements, we should be able to consider in detail the criteria for making them, what should be their objects and limitations, what they should contain, who should be in charge of monitoring them and how we might seek to improve them. We should also have clear arrangements in place for their parliamentary scrutiny better than exists under the existing CRaG rules for consideration of treaties by the House of Commons.

It may be, as the noble Baroness, Lady Thornton, said, that international healthcare agreements could be beneficial to Britain and British citizens, but they could also be detrimental, with unacceptable increases in pressure on the NHS and with the potential for healthcare agreements being offered without proper scrutiny in exchange for trade deals on terms that many would find offensive. All we are asking on this side of the House and, as we have heard, from some of the Cross-Benchers, is to give this Bill a fair wind and pass it quickly only to enable the reciprocal arrangements that we have to be continued but giving Parliament a chance to consider carefully the far wider and more difficult issues involved in agreeing new healthcare agreements across the world. This Bill does not do that.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I support my noble friend Lady Thornton who has done a splendid job in dealing with this Bill, in analysing it and bringing forward amendments for consideration by the House. According to the Delegated Powers Committee, this Bill has “a breath-taking scope”. I have not heard that said about any other Bill coming before the House. All the other Bills and statutory instruments that we have considered deal with providing exactly the same arrangements that we have at present in the event of no deal. They have been precautionary for that. This is the only one, as I understand it, and this is the only department that is trying to include something completely new, very wide and extensive, as the noble Lord, Lord Marks, and my noble friend Lady Thornton said.

If the Government want to do that, as my noble friend said, they can wait until the Queen’s Speech. We know that the Government Chief Whip does not know when that will be, but there has to be one eventually and that is the right time for us to consider it. We can then look at the proposals in detail and, as the noble Lord, Lord Marks, said, examine them then. These additional powers are opposed by the trade unions, the BMA and a whole range of people. Indeed, I have not found anyone except Conservative Members and Ministers in favour of this wide extension, this “breath-taking scope”, of the Bill. I hope that the House today will support my noble friend’s amendment and reject the proposal put forward by Her Majesty’s Government.

Healthcare (International Arrangements) Bill

Debate between Lord Foulkes of Cumnock and Lord Marks of Henley-on-Thames

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

[Lord Foulkes of Cumnock]

The noble Lord has quite rightly referred to the existing countries—Australia, Bosnia-Herzegovina, North Macedonia, Montenegro, New Zealand and Serbia, as well as our independent territories—with which we have reciprocal agreements. They are being dealt with at the moment without the need for this Bill, so is my noble friend Lady Thornton not right to be suspicious, irrespective of the Minister’s assurances? We know that 24 Tory MPs and Peers have links to 15 private healthcare companies which have £1.5 billion worth of NHS contracts. We are right to be suspicious about what they are up to; indeed, there is one of them sitting opposite.

[Lord Marks of Henley-on-Thames]

My Lords, I am grateful for that intervention: I did not know the facts about the involvement of certain members of our political establishment in healthcare arrangements. I agree that we are right to be suspicious and I shall come to that later in my contribution, but for now I will go on to the second fundamental fault with the Bill, which is that the proposed powers would enable the Secretary of State not only to make healthcare arrangements with countries across the world but to make such arrangements on whatever terms he or she chooses. That is a dangerous concept.

Many noble Lords, including me, quoted the Delegated Powers Committee’s powerful first report on the Bill at Second Reading. We have now had its second report, published on 14 February. It is in similarly strong terms, speaking, for example, of,

“unprecedented powers for Ministers to make law by statutory instrument”.

The powers are described as far too wide and,

“drafted in far wider terms than are necessary to give effect to the Department’s limited aims”.

I agree with the noble Baroness, Lady Andrews, that the Government ought to be listening more carefully to that committee and to the Constitution Committee. I agree that it is frankly outrageous that, on receipt of the first report of a committee that, when I was a member of it, generally expected its reports to be accepted by the Government, instead of that report being accepted, the Government came back with a response that stuck by every word in the Bill, made no real amendments to it, and provoked the second, outraged report of the committee. That, in my experience, is unprecedented. The committee chose, on this occasion, to deal with the Bill before the Commons had finished dealing it, rather than between Second Reading and Committee in the House of Lords, and the Government, frankly, took no notice.

The Constitution Committee said:

“We agree with the Delegated Powers and Regulatory Reform Committee that the powers in clause 2 are ‘inappropriately wide and have not been adequately justified’”.


I went through the powers in outline at Second Reading. The committees have been through the powers in detail, but the Bill puts absolutely no limit on the Government’s power to enter such deals. The Secretary of State would be empowered to authorise payments and claim reimbursement at any level he or she chooses and for any kinds of healthcare arrangements. Parliament would have no effective scrutiny or control. I urge the Committee to remember the Delegated Powers Committee’s central point, which it repeated in its second report, that,

“we assess powers by how they are capable of being used, not by how governments say that they propose to use them”.

The Government now profess entirely innocuous motivations for taking the powers contained in the Bill to make international healthcare arrangements outside the European context. Indeed, the noble Lords, Lord O’Shaughnessy and Lord Lansley, almost suggested that this was an exciting prospect. In closing the Second Reading debate, the Minister spoke of,

“a natural opportunity to consider how we can best support Britons in an increasingly global world … Global reciprocal healthcare agreements have the potential to protect public health by supporting international visitors to access emergency and needs-arising treatment when they need it”.—[Official Report, 5/2/19; col. 1488.]

She may be right. She repeats all those points in her long and detailed letter—a well-drafted, well-written and impressive letter that she sent to all of us yesterday or the day before. However, I am afraid that what she envisages as the use of the powers misses the point, as her answer to the noble Lord, Lord Brooke, on the possibility of a healthcare arrangement with the United States, illustrated. It is the powers that count, not what Ministers of the day might envisage for their use. The powers are not limited to such benign purposes.

I am not generally a cynic, but if we leave without a deal, then the day after Brexit one can foresee this Government, battered by the failure to reach an agreement, being desperately keen to make all kinds of trade deals with third countries across the world, in an effort to protect a vision of our future as “global Britain”, and no doubt to give the Department for International Trade a purpose to fulfil at the same time. There is a serious risk, in such a climate, of the Government offering third countries health deals in return for trade deals. The terms of such health deals could be seriously detrimental to the United Kingdom. Access to the NHS could be sold cheaply, and across wide and populous markets. UK taxpayers could be committed to unreasonable payments to foreign countries for offering treatment to UK citizens, and all as sweeteners to secure free trade deals. This is why I share the suspicions of the noble Lord, Lord Foulkes, and all this in an attempt to rescue an economy in difficulties—

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

That does not, as I understand it, prevent the Government offering other countries access to the NHS on terms that are sweet for them.

[Lord Foulkes of Cumnock]

Clause 3(b) concerns,

“healthcare provided in the United Kingdom, payments in respect of which may be made by a country or territory outside the United Kingdom”.

So it is reciprocal and the noble Lord, Lord Lansley, who is one of the people involved with private healthcare, is trying to mislead the House by intervening.

Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Debate between Lord Foulkes of Cumnock and Lord Marks of Henley-on-Thames

Tuesday 29th January 2019 Grand Committee

[Lord Foulkes of Cumnock]

I am most grateful to my noble friend. I take great exception to what the noble Baroness said. I am surprised that she knows a lot about convention, as she has not been here very long, but obviously she has picked it up from somewhere. Conventions are conventions, not rules that need to be and must be obeyed. I understand that one of the conventions is that when Ministers are explaining something and are asked a question, they normally give way and answer it. In all the Grand Committees that I have been in, throughout the years—I have been in a number—the Minister has given way. Of course, we are getting used to the noble and learned Lord, Lord Keen, by now.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, it is not often that I confess to feeling sorry for the noble and learned Lord, Lord Keen, but on this occasion I do, and in the presence of a number of other distinguished lawyers, who have considerable experience of commercial litigation involving cross-border and cross-European border disputes. It is almost impossible to overestimate the importance of the regime that we have built up across the European Union for the resolution of issues of jurisdiction, recognition and enforcement in civil and commercial disputes. We have been promised so many times, in debate after debate on the Brexit issue, that we would not be in this position. The Government were going to get a deal, and one of the first things they would insist on in getting it is that we would preserve the cross-border jurisdiction, recognition and enforcement issues, or rules that we have built up with Brussels Ia.

We are in this position now; I entirely accept that the Minister opened this debate on these regulations on the basis that the Government are still hoping for a deal and that if there is a deal, we will continue along the course of resolving this issue. But it was with horror that many of us heard the noble Lord, Lord Callanan, last night refuse to accede to the Motion of the noble Baroness, Lady Smith, because it ruled out no deal—which it did not—and for him and the Government to be so prepared to countenance no deal.

In our view and that of almost every commercial lawyer with whom I speak, the issues surrounding cross-border litigation are being given far too little prominence and importance. What we are losing is clearly defined in the Explanatory Memorandum as,

“a system of uniform jurisdictional rules to identify the appropriate court in which to bring a civil law or commercial claim”—

that is the first bullet point on page 2—and,

“a simplified mechanism to recognise and enforce the judgment EU Member State/EFTA state courts in civil and commercial cases, with a view to reducing costs for litigants and increasing efficiency. The possibility for such simplified and almost automatic treatment of the judgment of one such state in another is based on the ‘mutual trust’ that each state will have applied the uniform rules of jurisdiction”.

This statutory instrument, subject to some relatively minor exceptions, effectively revokes Brussels Ia, which is at the heart of the Brussels regime. It is also significant that it abandons the European Judicial Network, which has been a forum for judicial co-operation of great use throughout the European Union, and does so with no replacement. The very limited exceptions that I mentioned were mentioned by the Minister: some consumer and employment cases—in British courts, of course—transitional cases and the choice of courts arrangements under the Hague Convention. That is, to coin a phrase used by some Brexiteers in the past, thin gruel indeed compared with the widespread benefits that we get from the system of judicial co-operation and our current arrangements.