Healthcare (International Arrangements) Bill

Lord Marks of Henley-on-Thames Excerpts

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

[Lord Judge (CB)]

My Lords, I thank the Minister for her efforts to improve the Bill and her courtesy in accommodating my concerns, meeting me and discussing various amendments. I am particularly grateful to her—I emphasise this—for her amendment, which we will consider later, that delivers us from the tyrannous shackles of King Henry VIII. Perhaps this might be the start of a new understanding that the ghost of that monstrous ogre should no longer walk about the corridors of power in this country. Chance would be a fine thing but I commend a little touch of Blackwood to the House.

However, although the Bill has been significantly improved, it is still not good enough. We are faced with nine major regulatory powers, which are put before us as examples of regulations that the Bill might have in mind, or extend to. It works on the basis that we must—as we must—recognise the need of our citizens living in the EU to have their healthcare properly attended to. That puts great pressure on all of us. If it were not for that pressure, I would not accept that the scope of the Bill should be allowed to extend as far as the EU and Switzerland but I understand why it must be so. We are brought, in effect, to face up to the creation of unacceptable powers, and we have no choice, so far as the EU and Switzerland are concerned.

However, we have a choice in relation to international places other than those in the EU. There are many countries to which these powers could be extended, payments made and so on. Last time I said I was being modest. My real worry is about the creation of legislation for such places as Guadeloupe and the Galapagos; and these powers would extend to Venezuela, where the present Government may not be in power indefinitely. We therefore need to think carefully. Introducing out of the blue nine regulations, which are only examples of the powers that would be given to Ministers, goes too far. It is not the way in which we should legislate.

My objection to the Bill, and the reason why I support the amendment, is simple. We must not legislate in this way. We need time to think, reflect and ponder on what limitations and constraints should be put on the power of Ministers. We are therefore being asked to go too far under the pressure of events surrounding Brexit.

[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.

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Moved by

[Lord Marks of Henley-on-Thames]

3: Clause 2, page 1, line 10, at end insert—
“and may not exercise the power conferred by section 1 otherwise than in accordance with such regulations.”

[Lord Marks of Henley-on-Thames]

My Lords, as I should have done at the beginning of the first group, I thank the Minister for her help and courtesy in discussing this Bill and in engaging with Peers across the House to see how we should proceed with it. I echo the words of the noble and learned Lord, Lord Judge, including his tribute to the Blackwood amendment in respect of Henry VIII powers. As the Minister will have appreciated and has recognised by her actions, there is a real concern about the use of delegated legislation to amend or revoke primary legislation and EU legislation.

Amendment 3 is intended to bring a constitutionally acceptable structure to the Bill. It will ensure that the powers of the Secretary of State can be exercised only within the context of regulations. I will start with a word or two about the other amendments in this group: Amendment 5, on the words “for example”, and government Amendments 6, 7 and 8, which limit the delegation of powers to public authorities.

As we have heard, Clause 2 contains the principal regulation-making powers. We had considerable debate, both at Second Reading and in Committee, about how unacceptably wide those powers are. The use of “for example” at the beginning of Clause 2(2) speaks volumes as to the disrespect shown in the Bill for the proper restriction of ministerial powers. The Delegated Powers Committee and the Constitution Committee have exposed how outrageously broad these powers are.

My amendment is directed at the absence of anything in the Bill that would limit the Secretary of State to exercising his Clause 1 powers only in accordance with regulations. One does not have to read far into the Bill to appreciate that, under Clause 1:

“The Secretary of State may make payments, and arrange for payments to be made, in respect of the cost of healthcare provided outside the United Kingdom”.


This is wholly without restriction. It is this glaring deficiency—the failure to tie the Secretary of State to the exercise of powers in accordance with limitations either in the statute or contained in regulations—that my amendment is intended to cure.

The Minister frankly and commendably, if I may say so, recognised on our first day in Committee that the effect of Clause 1, if not amended in the way I suggest, would be to enable the Secretary of State to make or arrange payments without any regulatory limitation. She justified this untrammelled power—which, frankly, I find frightening—on the basis of urgency. She said that the Bill was unlikely to secure Royal Assent before March, so regulations would not be laid before the summer. If there were no deal, she explained, Ministers might need to use the powers before then. She mentioned—again, frighteningly—sharing data as well as making healthcare payments before the Government had a chance to get regulations passed to deal with these matters “more transparently”, as she put it.

This clause alone, unamended, would justify this country ruling out a no-deal exit and ensuring that our leaving date is delayed. It is an extraordinary travesty of the notion of the United Kingdom Parliament taking back control that we are asked to pass a Bill which involves ceding to Ministers an entirely unconstrained power to pay money out across the world on the sole professed ground that the Government failed to introduce legislation in a timely way, and to permit Ministers to spend public money and make arrangements of great public importance without any parliamentary scrutiny or authorisation.

I turn briefly to the other amendments in the group. Many of us still take the view that their scope is breathtakingly and unacceptably wide. The Government’s proposal to limit possible delegation of the Secretary of State’s powers so that such powers may be conferred only on a public authority is of course welcome; so is the limited five-year sunsetting provision, to which we shall return later, but, taken together, they barely scratch the surface of the massive transfer of unrestrained power from the legislature to the Executive set out in Clause 2. Of course, the sunsetting clause should be more restrictive—at least as restrictive as proposed by the noble and learned Lord, Lord Judge. Again, we will come to that later.

It goes without saying that the ridiculous and offensive restriction-busting words “for example” should be removed, as proposed in Amendment 5. However, the only satisfactory way to restrict the Government’s power to what is necessary and acceptable is for the House of Commons to now accept the amendment we just passed restricting the use of the Bill to replicating the arrangements we have with the EU, the EEA and Switzerland. We hope that it does that.

This Government and future Governments must show more restraint and respect for the proper limits to the scope of delegated legislation. In the Bill, as in others to do with Brexit, they have not done that. It is to be hoped that they return to a wiser path in future.

[Baroness Thornton]

I thank the noble Lord, Lord Marks, for his exposition, which saves me from exploring yet again the powers in the Bill. I shall speak to Amendment 5, which is a simple amendment but one that we think might be quite clever in its intent. It states that regulations under the Bill can be made only for specific purposes.

When the clause was debated in Committee, noble Lords discussed the nine regulation-making powers mentioned by the noble and learned Lord, Lord Judge, which brought comment from the DPPRC, about the widest possible scope. However, as drafted, Clause 2(2) appears to bestow infinite powers on the Secretary of State to make regulations by virtue of the seemingly innocuous phrase “for example”, which effectively grants the Secretary of State carte blanche to bring regulation forward outside the listed examples in relation to pretty much anything and everything. Just deleting those words will assist with the accountability that needs to be built into the Bill.

Amendment 5, which has the support of the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Jolly, would ensure that regulations can be brought forward under the Act only for the purposes specified. We will, of course, support the Minister in the amendments she has tabled in this group—Amendments 6, 7 and 8 —and I think the combination of our amendment and hers significantly improves the Bill, so I hope she will accept it. I probably need to say that, unless there is a very good reason why she does not want it and why it should not be there, we will seek support from the House for this amendment.

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[Baroness Blackwood of North Oxford]

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

[Lord Marks of Henley-on-Thames]

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

Amendment 3 withdrawn.

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Tabled by

[Lord Marks of Henley-on-Thames]

4: Clause 2, page 1, line 11, leave out subsections (2) to (4) and insert—
“(2) Regulations under subsection (1) may be used only to the extent necessary to replicate so far as possible the model of reciprocal healthcare for the European Union, the European Economic Area and Switzerland in place before the withdrawal of the United Kingdom from the European Union.”

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

Amendment 4 is, I think, consequential on Amendment 1.

[Lord Marks of Henley-on-Thames]

I am not sure that Amendment 4 is entirely consequential, so it is probably better if I do not move it, now that Amendment 1 has been agreed.

Amendment 4 not moved.