Healthcare (International Arrangements) Bill

Lord O'Shaughnessy Excerpts

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

[Lord Wilson of Dinton (CB)]

My Lords, I am glad to follow the last two speakers; they have eloquently made the case for supporting the noble Baroness’s amendment, as I do. This is not about supporting Brexit or wanting to remain; it is about the tension that exists between the Executive and Parliament, and the duty of this House, and of Parliament, to scrutinise the proposals of the Government to ensure that good government, as far as possible, is provided in this country.

I am very glad that the Minister has tabled the amendments that will follow later. However, I agree with the noble and learned Lord, Lord Judge: they are a step in the right direction, but that is not enough. The sweeping nature of the powers proposed in the Bill are in many ways offensive to the proper conduct of legislation. I accept that they are needed in the current situation in relation to the EU and Switzerland, but to go wider than that is wrong, I think. We have to insist on legislation being properly prepared, properly debated, properly scrutinised and properly consulted on. If, in the middle of the current turmoil, we let go of some basics of legislation, we will do ourselves harm and set a bad precedent. I shall support the noble Baroness’s amendments.

[Lord O’Shaughnessy (Con)]

My Lords, although I do not agree with it, a lot of scepticism about the scope of the Bill has been eloquently expressed at every stage of the debate on this group of amendments so far. However, I remind noble Lords of the human consequences of restricting the Bill in the way proposed by these amendments. I think we all agree in general on the benefits of reciprocal healthcare agreements—many noble Lords have paid testament to those—and we all want to see continuity of arrangements with the EEA and Switzerland. So far, so good. However, we have also debated and agreed in principle—in Committee, at Second Reading and in this group—on the desirability of having such arrangements with more countries. Indeed, the noble Lord, Lord Foulkes, talked in Committee about the opportunities of travelling to the USA, which people with long-term conditions can no longer do because they are now uninsured.

Let us be very clear what is at stake. Accepting the amendments in this group would mean that we miss out on a golden opportunity to achieve a shared goal. What are the reasons for that? I do not agree with them, but very good reasons have been given about the kind of procedure and scrutiny that ought to be applied to the new reciprocal healthcare arrangements that we may strike with countries outside the EEA and Switzerland. This is not a disagreement about the principle of having such arrangements; it is a disagreement about the process of agreeing such arrangements. However, the consequence of these amendments is not to deal with these issues by changing procedure, scrutiny and process, but instead to strike them out on principle. That does not seem to me the right approach to very well substantiated and perfectly reasonable, but ultimately procedural, concerns. By changing the Bill in this way, we will lose the opportunity to deepen relationships with key partners such as New Zealand and Australia, as my noble friend Lord Ribeiro said. We will miss out on the opportunity to give people with long-term medical conditions the chance to travel outside the EEA to visit family or to work, and for young people to broaden their experiences. We will miss out on the opportunity to deepen—

[Baroness Brinton]

Please allow me to intervene; I am afraid I cannot stand up to do so.

Is the noble Lord suggesting that by passing the Bill, existing arrangements outside the EEA and Switzerland would become null and void?

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[Lord O’Shaughnessy]

I think the noble Baroness knows that that is not what I am saying. We will miss out on the opportunity to turn the fairly shallow arrangements that we have at present into the kind of deep arrangements that we enjoy with the EEA and Switzerland. We would also miss out on the opportunity to deepen relationships with EU accession countries and to provide reciprocal healthcare arrangements that would underpin any other international arrangements that we may want to strike in the future. All this would be lost if we were to accept these amendments.

There are other factors that we must also take into account. Amendment 9 provides greater opportunities for scrutiny and restrains the Government’s powers. The noble and learned Lord, Lord Judge, spoke of the untrammelled ability to organise agreements with countries such as Venezuela and others, but there are natural limitations—not simply the scrutiny available through the processes my noble friend Lord Ribeiro talked about, but also the need for data adequacy. We will not be able to strike such arrangements with any country we want, and they would have to be under the aegis of an international agreement scrutinised and passed in the other place and this House.

It was suggested by the noble Lord, Lord Wilson, in Committee that I had unwittingly made the case for another Bill, and the noble Baroness, Lady Thornton, talked about that. Another Bill is easier said than done, and anyone who has been in Government knows that you cannot just pitch up with a Bill. There is a complicated and often painful process of going through the PBL Committee and other committees to get such Bills. This Government are constantly accused of doing nothing other than Brexit, and here they are doing something other than Brexit. Surely this is a welcome opportunity to do something beyond the thing that, frankly, we are all a bit tired of talking about.

If not now to extend the scope of our powers to strike these arrangements on a global basis, then when? We cannot assume that another opportunity will come this way soon, and what will the human consequences of that be?

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[Lord Clement-Jones]

My Lords, I beg to move Amendment 14, and your Lordships will be pleased to hear that I will be brief.

During the passage of the Bill, considerable concerns have been raised by a number of noble Lords about the use and sharing of data within the NHS. It is a hotly contested subject, and one of the best briefings on it is from our Library, prior to a debate on 6 September initiated by the noble Lord, Lord Freyberg. It unpacks a number of the concerns and issues about data within the NHS, and I am sorry that I have been unable to be at Second Reading or in Committee to expand on some of those issues.

During our Select Committee inquiry into artificial intelligence, there were a number of witnesses who talked about the use of data in the NHS, and we drew a number of conclusions, namely that the data was not in good shape to be utilised for beneficial purposes such as research, diagnosis and screening. That is another issue, however; what concerns noble Lords is the question of sharing. Now that we have seen Amendment 1 pass, maybe we will deal only with countries where there is a level of data adequacy which gives us an assurance about the use of NHS data. As the King’s Fund said last year in its report, Using Data in the NHS:

“National policy has to keep a balance between responding to legitimate public concern about the security and confidentiality of data and enabling data to be shared and used by NHS organisations and third parties. It is also essential that NHS national bodies are transparent with the public about how patient data is used”.


It went on to suggest that the level of opt-outs for patients would be key to the quality and validity of future research, and that NHS England and NHS Digital should keep this under review. One of the issues in the NHS is that there are several organisations responsible for NHS data. It is not just NHS England, NHS Digital, the National Information Board and Public Health England. The Caldicott Guardian—the national guardian for health and care—has a responsibility as well. It is quite a disparate, rather balkanised issue.

I was reassured on reading what the noble Baroness, Lady Manzoor, had to say when she responded, as the Minister, to this set of amendments in Committee:

“Under the Bill, personal data can be processed only in accordance with UK data protection law, namely the Data Protection Act 2018 and the general data protection regulation, which will form part of UK domestic law under the EU withdrawal Act 2018 from exit day”.


I am not going to go into all the questions about data adequacy and so on. I take what she said as quite reassuring, but it was less so when she later responded to what was then Amendment 23—this amendment is identical. She said:

“I assure the Committee that the Government are committed to the safe, lawful and responsible processing of people’s data”.


However, she then said:

“As the noble Baroness, Lady Jolly, and my noble friend Lord O’Shaughnessy noted, the Caldicott principles and the Government’s Data Ethics Framework are admirable standards to apply to the handling of patient data. Both of these non-legislative frameworks are in line with the Data Protection Act and the GDPR, which are enshrined in the Bill”.—[Official Report, 19/2/19; cols. 2261-63.]


That is not unequivocal in terms of those standards applying. As the Minister knows, we discussed this between Committee and Report. I had hoped to receive correspondence from her, but sadly I have not done so. She may need to repeat whatever text of the letter she may be able to find in her outbox. I hope she can give the House reassurance that the national data ethics framework and the Caldicott principles will apply to any sharing of data. The data ethics framework is a cross-government standard, of course, but the Caldicott principles are specific to the NHS. It is important to make sure they apply both domestically and internationally.

[Lord O'Shaughnessy]

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for giving the House the opportunity to talk about this issue again. He has been deeply involved in this topic and, as he said, I spoke on it in Committee. Compliance with this country’s very robust data protection rules is critical in general and particularly important in healthcare. This was discussed in the debate instigated by the noble Lord, Lord Freyberg; it has been a topic of conversation in this House, both in and out of the Chamber, on many occasions.

The noble Lord talked about the number of bodies that have some responsibility: he called it balkanised. It is important that we do not create a balkanisation in the law, even if a small one is in operation. One set of law should take precedence over all data protection, security and connected issues. That is, and should be, the Data Protection Act 2018. This means that there are operational guidelines, frameworks, principles and so on about how these ought to operate within individual contexts. That is precisely where the Caldicott principles come in. They take a general piece of legislation and translate what good practice in interpreting it ought to mean in a health setting. In that sense, it is important to say that we should not put those principles in a legislative setting. They are interpretive of the core, primary legislation and may need to change over time. They may need to adapt; there may be an eighth principle as we get into interesting questions about the value of data and so on.

It is important to recognise that the Caldicott principles bring to life what the Data Protection Act ought to mean in health settings. It would be a mistake to create competing law. Of course the Government agree with the noble Lord about the importance of giving force to the principles. That is one reason why we supported the Private Member’s Bill brought into this House by my noble friend Lady Chisholm to put the national data guardian on a statutory basis. I hope that that gives him the strength of reassurance about the way that the framework is constructed, which is not to create an opportunity to do funny stuff at the edges, but rather to make sure that there is primacy of one set of legislation.

Safety of Medicines and Medical Devices

Lord O'Shaughnessy Excerpts

Thursday 28th February 2019 Lords Chamber

Moved by

[Lord O’Shaughnessy]

That this House takes note of the steps being taken to improve the safety of medicines and medical devices.

[Lord O'Shaughnessy (Con)]

My Lords, I am delighted to be able to lead this debate today. I thank all noble Lords who will speak in it and wish the noble Lord, Lord Carrington, the best of luck in delivering his maiden speech—an auspicious occasion that we are all looking forward to.

I also express my gratitude to all those who have provided briefing for today’s debate: In-FACT, Sling The Mesh, The Royal College of Surgeons, the Nuffield Council on Bioethics and others. We are deeply fortunate in this country to have well-informed patient groups, professional organisations, charities, trade bodies and others. Their knowledge provides an indispensable contribution to our national conversation. The same is true of our superb House of Lords Library, which has produced a typically comprehensive and incisive briefing, for which I am grateful.

The reason for this debate stems from my time as a Health Minister, when I had responsibility for medicine and medical device regulation, and for promoting innovation in the NHS. That experience introduced me to the amazing benefits that come from life-changing and life-saving new therapies, but also exposed me to the dreadful harm that can occur—however rarely—as a consequence of the innovations on which we all rely. There is an innate tension between innovation and safety, and that is the principal idea I wish to explore today: how to balance that risk and encourage innovation—especially for those most in need of hope and help—but also act faster, be more agile and more compassionate when things go wrong.

We all have reasons to be grateful for the medical innovations that have become available through the NHS over its 70-year history, many of which were pioneered in this country. From mass vaccination programmes to joint replacement surgery, from organ transplantation to the creation of monoclonal antibodies —the medical and life science research community in the UK has saved and improved the lives of hundreds millions of people around the world. It is a record of which we should be immensely proud, and which the Government are supporting through the Life Science Industrial Strategy.

Our regulatory system can also be seen as a strength. As a Minister, I spent time with many European colleagues, who were always complimentary about the quality of medical regulation in this country, led by the MHRA, CQC and other bodies. They were right to be so, but the experience of the last two years—and the fact that we are having this debate—shows me that we can and must do better.

As I mentioned in responding to her superb maiden speech, my noble friend gave me some excellent and wise advice in 2017, when I joined her as a colleague in the department. She told me to watch my postbag, because it could provide warning signals about problems in the system. How right she was. Among the many letters I had from MPs and noble Lords raising concerns about problems associated with medicines and medical devices, there was a steady stream on two particular areas, which I want to focus on today: mesh, a device often used in a variety of procedures to fix prolapses, incontinence, hernias and other related conditions; and sodium valproate, a highly effective medicine used largely to treat people with severe epilepsy.

It is one thing to read about the problems suffered by patients when medicines and devices cause harm, but it is another thing entirely to meet in person those affected. I have had that opportunity on many occasions, and some of the stories I have heard have been truly heart-wrenching. I will never forget meeting for the first time two remarkable women to discuss the issues associated with sodium valproate. They are here as my guests today: Janet Williams and Emma Murphy of In-FACT, supported by their friend and fellow campaigner Mikey Argy. I was horrified to hear that, despite the risk of the drug’s teratogenic effects—that babies exposed to it in utero ran an unacceptably high risk of developing a range of physical and mental impairments—being known since the 1970s, thousands of women, already vulnerable because of their epilepsy, were still being exposed every year.

I was deeply impressed by the quiet but iron determination of these two women, whose own children have been significantly affected by valproate, and their commitment to reducing risks of other women in this situation. Following that meeting, I worked closely over two years with In-FACT, the APPG and the MHRA—I pay tribute to Dr June Raine and Sarah Morgan for their work—and the heads of the relevant Royal Colleges and other learned societies, to try to do something about this issue. We made a number significant policy changes, including mandating pregnancy prevention programmes for women of child-bearing potential on valproate, and insisting that “do not take in pregnancy” images ought to be put on every prescribed pack.

Change is happening, but despite everyone’s good intentions, the pace is glacial. According to In-FACT, around 30,000 women nationally are prescribed valproate, which is roughly the same as in 2015. While the number of in utero exposures is falling, during a recent valproate stakeholder network meeting, the MHRA stated that some 200 babies have been affected by valproate since April 2018, which was when the pregnancy prevention programme came in. Professor Thangaratinam, professor of maternal and perinatal health, stated in evidence to the Cumberlege review team that every year 350 to 400 women prescribed valproate get pregnant—this for a drug that has a perhaps 50% risk of harming the baby in some way.

I also very clearly remember, following an Oral Question from the noble Lord, Lord Hunt, who I am delighted is speaking after me today, meeting a large group of women whose lives had been ruined by mesh. Some were confined to wheelchairs and all had suffered or were suffering considerable pain as a result of what they had been told at the time was a minor and uncomplicated procedure: the insertion of synthetic mesh. I had several further meetings with affected women and parliamentary campaigners on this issue, and I take this opportunity to thank Kath Sansom and the Sling The Mesh campaign for highlighting the human costs of some of these mesh procedures and for working constructively to change the policy and the regulatory environment to reduce the risks to women.

Again, change has happened—the number of procedures involving mesh is falling and certain categories of use are now effectively banned—but the health system has been too reactive in dealing with a problem that has been apparent for at least 15 years. Faced with the anguish and determination of these women, it was obvious that the Government had to do more. I had also been dealing with the results of the Commission on Human Medicines inquiry into the historic Primodos case, where again a number of families, led by the redoubtable Marie Lyon and her husband, were convinced that their children had been adversely affected by this hormone-based contraceptive.

These cases—Primodos, mesh and valproate—were very different in many ways, but it was also clear, in dealing with these and other issues, that they had critical factors in common. First, our methodology for discovering and verifying adverse events needs to improve. While the UK has one of the best pharmacovigilance regimes in the world, it is still dependent on old-fashioned ideas, such as the voluntary yellow card scheme. Furthermore, the process for regulating devices is not always as rigorous as that for medicines.

Secondly, as must have been obvious from my speech so far, all three cases largely affected women. Of course, women are the greatest users of health services, a fact intimately linked to the fact that they give birth, so we would expect more adverse events to be experienced by them, but there is much more to it than that. In all these cases, I heard women reporting patronising and often patriarchal attitudes from a largely male medical workforce administering a pat on the head, sometimes literally, and telling them that the pain was all in their minds.

Thirdly, and related to the previous point, all these women had been campaigning for years to have their voices heard, their pain and suffering recognised, and it had often fallen on deaf ears. In this respect, the parallels with scandals like the one at Mid-Staffordshire could be seen: a system that too often turns its back when criticised, rather than offering a compassionate and understanding face that seeks to help those affected and prevent the problems occurring for others. It was this insight—that there were common themes that warranted further explanation—that led to my suggesting to the then Health Secretary, Jeremy Hunt, whose abiding principle was that patient safety should always come first, that we needed an independent review into our medicine and medical device safety regime. I was delighted when he and the Prime Minister supported the proposal, and even happier when my noble friend Lady Cumberlege was appointed to lead it. It is fantastic that she is able to speak in the debate today. The work she is doing is so important, and I believe that the way she has engaged patient groups around the country through her review has been truly exemplary. She has already made a big difference, because it was on her recommendation that a pause was instigated on certain mesh procedures in England.

Up to now I have focused on areas where patients have been put at unnecessary risk and provided with inadequate information, and where the system has been too slow to respond. It is certainly my belief that, for medical products with wide usage, where patients expect to live long and broadly healthy lives, we need to do better, but the tension between innovation and safety can manifest itself very differently for people whose outlook is poor. In these cases, the boundary between risk and reward can fall in a very different place. Last January, we in this House were privileged to bear witness to one of the most extraordinary speeches in living memory from our friend, the much loved and much missed Baroness Jowell. I had the honour of responding for the Government to the debate she initiated on improving cancer outcomes. The noble and courageous lady raised many important ideas that day. One of the most significant was that when you do not have long to live, you have little to lose by trying experimental therapies that, in ordinary circumstances, no clinician would dream of giving a patient.

This insight was, of course, also behind my noble friend Lord Saatchi’s Medical Innovation Bill, considered some years ago and inspired by the tragic experience of his own late wife. In these situations, when sadly and frankly the prospects are grim, it is right that the balance between risk and benefit is flexible. In our efforts to improve the safety of medicines and medical devices in general, we must not prevent those willing to take great risks to extend their lives from doing so—quite the opposite. The regulatory regime we need to create must be able to draw a much more sophisticated distinction between the balance of safety and innovation, so that it is dependent on the needs of each individual patient.

There are some really encouraging developments in this area. Next week I will visit Professor Colin Watts and his team at the University of Birmingham. Together with the Brain Tumour Charity they have created BRAIN-MATRIX, a clinical trials platform for people with brain tumours that is the first of its kind. It not only allows patients with a very poor prognosis to access experimental therapies, but also uses adaptive techniques and other methodological innovations to make sure that outcome data is gleaned from every intervention and used to improve each patient’s course of treatment, as well as that of those who will follow them.

I strongly encourage my noble friend the Minister to look at what is happening in Birmingham, and other similar approaches such as Precision Panc, because they have the potential to offer a new way to make sure that patients with these dreadful diseases can quickly access experimental therapies in an ethically acceptable way that generates better treatments for all.

I will conclude by making a few suggestions for how things might change. The current system can be bewildering for patients who do not know where to turn when things go wrong. I think that we need a new national office of patient safety—a compassionate, patient-facing agency that is the first port of call when harm is suffered, that can provide the analytical rigour needed to look at cases on their merits, and that can provide a single focal point for action among the many professional and product regulators that operate in the system.

I am sure that my noble friend the Minister will rightly want to see the results of the Cumberlege review before fully setting out the Government’s own plans, but I am keen to know her thoughts on this proposal. Can she also use the opportunity of this debate to reassure the House—and the many interested patient groups—that the department is fully behind the review and will look at its recommendations later this year with an open and constructive mind?

But we do not have to wait for my noble friend’s review to conclude before we act. It is imperative that the Government support the MHRA and other agencies to use technology and other innovations to improve post-licensing surveillance of medicines and medical devices. This should include using the upcoming EU medical device regulation, the NHS’s own “scan for safety” system and the application of machine learning to the NHS’s unique data resource. It must also include new registries for high-risk devices, such as the one the Government have already committed to for mesh. Can my noble friend the Minister inform the House how the department intends to move forward on this agenda?

For families affected by valproate, does my noble friend agree with me that the ambition should be to limit in utero exposure to as near zero as possible, and to make sure that every eligible woman should be on a pregnancy prevention plan and able to make an informed choice about whether to have a baby?

For women affected by mesh, as well as further strengthening the regulatory regime, will my noble friend ensure that there is a properly funded and staffed national network of expert removal centres and surgical teams who can try to repair some of the damage that has been done?

As medicine evolves and becomes more personalised, and as patients become better informed and more active in managing their own care, the balance between innovation and safety needs to evolve as well. I hope I have set out some of the questions we need to answer as we make these changes, and eagerly anticipate the contributions of noble Lords, including my noble friend the Minister, as we collectively seek to achieve the highest standards of patient safety, care and innovation in our NHS. I beg to move.

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[Lord O'Shaughnessy]

My Lords, it has been a privilege to be part of what has been a superb, incisive and moving debate. I pay tribute to noble Lords for their varied but always excellent contributions. As my noble friend Lady Cumberlege said, the quality of the debate is, in a way, testament to the courage of those who have been affected by medicines and devices when they go wrong—often, as the noble Lord, Lord Hunt, said, in the face of an unresponsive system. It is to them that we must truly pay tribute.

I thank the noble Lord, Lord Carrington, for his excellent speech. He will have found that he got a warmer welcome than his forebear, which I am sure he appreciates. I am struck by something he said: that patient safety is paramount but must be balanced with innovation; not to give someone a potentially effective treatment is also an issue of safety, because they could be harmed. This is what we have been grappling with today.

I am deeply grateful to my noble friend the Minister for her comprehensive answers, not only to my questions but to all those posed by noble Lords. She is quite right to applaud the UK’s record in innovation. How reassuring it was to hear from her about the importance of patient voices being heard, the commitment to an evolving regulatory system and the deep support for my noble friend Lady Cumberlege’s review. I am particularly pleased that she has been able to discuss the service specification for the network of experts on mesh, the commitment on valproate exposure in pregnancy and the comments on Scan4Safety and other matters. I thank her for all that.

I found the speech of my noble friend Lady Cumberlege particularly moving. She has spent time with hundreds of families who have been affected by these issues, and I know this affects her. She has shown great courage and perseverance. I hope she has been reassured by the broad support that her review received in the debate today; we look forward to it with great anticipation.

Noble Lords have covered all topics today. The noble Baronesses, Lady Walmsley and Lady Jolly, and the noble Lord, Lord Brennan, talked about valproate; the noble Lord, Lord Hunt, the noble Baronesses, Lady Walmsley, Lady Jolly and Lady Bryan, talked about mesh; the noble Lord, Lord Alton, talked about Primodos; and my noble friend Lady Cumberlege talked about all three. Of course, we have covered other topics too. There has been support for and discussion of many policy ideas. I hope my noble friend the Minister will go away with lots of suggestions about things that we could do next.

The mesh network was mentioned by the noble Lord, Lord Hunt, and the noble Baroness, Lady Walmsley; the National Patient Safety Office was supported by the noble Lord, Lord Alton; and device registries were mentioned by the noble Baronesses, Lady Masham and Lady Finlay, and the noble Lord, Lord Bethell. As the noble Baroness, Lady Thornton, said, we also need to think about what this means for self-care, as consumers become increasingly involved in their own healthcare. The importance of data was mentioned, to make sure that treatment is more targeted but also for better reporting and mandatory reporting—as mentioned by the noble Lord, Lord Brennan, the noble Baronesses, Lady Bryan, Lady Finlay and Lady Thornton, and the noble Earl, Lord Dundee.

The critical point was made that regulation must not inhibit innovation—the right to therapy, which the noble Baroness, Lady Finlay, spoke about—which relates to our attitude to risk and our need for a sophisticated system. After all, as the noble Lord, Lord Brennan, pointed out, as our medical knowledge expands, complications will only grow. We will need a different, better and more sophisticated system for dealing with those complications. As the noble Lord, Lord Bethell, and the noble Earl, Lord Dundee, pointed out, that includes having adaptive pathways so that we can take difficult, experimental treatments and make sure that they are properly targeted. We need to do that in common with our partners in the EU and around the world. That is particularly true for rare diseases, an area where the numbers of people are not big enough to do anything significant in one country but where we can really change treatment if we act together. I warmly endorse the intention that we should have a deep and lasting relationship with the EMA after Brexit, because that is for the good and the safety of patients in our country and across the European Union.

I finish by reflecting on three things that my noble friend Lady Cumberlege said, which are the lessons for today: we need to be better at listening, better at learning and better at caring. We owe patients in this country better on all those fronts, and I am sure that as a result of today’s debate we will do so. I thank all noble Lords for their contributions, as well as all those families and people who have been affected and have kept at us on these topics to make sure that change happens—critically, often not for their own benefit but for the benefit of those who are not yet affected. I thank them all and I commend the Motion to the House.

Motion agreed.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

Tuesday 26th February 2019 Lords Chamber

[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.

[Lord O'Shaughnessy (Con)]

My Lords, this is a challenging and complex Bill and this topic is possibly the most complex of all. Before considering the merits of the two approaches, it is worth reflecting on the fact that a huge amount of work has gone into the development of the government amendment and that in the name of the noble Baroness, Lady Tyler. I signal our gratitude to that work, and to the contribution of many people who grappled with a difficult and challenging area, as the noble and learned Lord pointed out. I am certain that all those people had the right intentions.

Speaking from the Back Benches, having shepherded the Bill on an interesting rollercoaster ride through this House while I was a Minister, there are two questions which I have to satisfy myself on. The first, and less important in a sense, is whether this fulfils the promise which I made the House that the Government would bring forward a definition. The second—much more important—one is whether the Government have provided an operable definition that will be useful in reality, which is, after all, what we want. My noble friend the Minister gave a robust exposition of the merits of the Government’s amendment. It is certainly the product of a huge amount of work, some of it when I was in the department, and offers clarity and precision. It also offers a way through on the point made by the noble Baroness, Lady Finlay. There has been a great deal of disagreement on what the right, positive definition ought to look like, so going for a negative one—I think it was described as an exclusionist definition—offers a way through.

The noble Baroness, Lady Tyler, made an important point about the complexity of language and whether this is intelligible. We need to draw a distinction between who will be using the Act and who will be using the statutory guidance that will flow from it. The Act will mainly be the subject of scrutiny by lawyers and others who are able to cope with double negatives and such things, in a way that I cannot. More importantly, these will be—and are being—distilled into case studies of how this would operate in practice. That is what will be practically useful for cared-for people, their carers and those who are supporting them. Perhaps when my noble friend responds to this debate she will say a little more about how the statutory guidance which will bring this to life will be scrutinised.

The key question is whether the definition that the Government have provided will be usable in the courts and compatible with the ECHR. I believe that it is but, more importantly for this House, the opinion of the noble and learned Lord, Lord Hope of Craighead, is that it performs that function. On that basis, I am happy to support the approach taken by the Government, not only because it satisfies the commitment I made to this House but, more importantly, because it provides an operable definition that will be useful to those who have to grapple with it every day.

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[Baroness Barker (LD)]

My Lords, I will make three quick points. One is to thank the Minister for the way in which she set out the ways in which the Government listened to the debates at an earlier stage in this House. We had deep misgivings about the lack of attention that we have been able to pay to independent hospitals. I am very glad that the reassurance that they will no longer be the responsible bodies has been given by the Government in another place.

Anybody who has followed our deliberations in great detail, as some people have, will know that we have had to spend an awful lot of time during the passage of this legislation focusing on care-home managers and the inappropriate responsibilities that they were given in the initial draft of the Bill. I am not entirely convinced that in relation to independent hospitals or local authorities we have entirely separated responsibility for assessment, responsibility for determination of what constitutes a care package and deprivation of liberty, and responsibility for the financing of those care packages. If the Bill had started off in a better shape, perhaps we would have been able to spend much more time on that, as we should have done. Therefore, it is important that at this stage we take on board the points made in Amendment 41A tabled by the noble Baroness, Lady Thornton, and make sure that we have not left a conflict of interest anywhere in the Bill.

[Lord O'Shaughnessy]

My Lords, I thank the noble Baronesses, Lady Meacher, Lady Finlay and Lady Thornton, for their kind words. However, the credit for the improvements in this group, outlined by my noble friend the Minister, should go to this House. As everyone involved in the Bill will remember, we had some interesting, challenging and sometimes not quite bad tempered but difficult debates as we attempted to get this right. It is only because in the end noble Lords took a constructive approach to working together that we were able to make these changes. It is a credit to the process and to the people involved in it that we have been able to solve so many of these problems, whether they be on whistleblowing, independent hospitals or other issues.

I will reflect quickly on the intention behind the amendment regarding independence, as set out by the noble Baroness, Lady Thornton. In a sense, avoiding conflict of interest has been at the heart of the changes that everyone has wanted to see made to the Bill, and, as I understand it from what she has said, that is her intention here. My belief is that that is dealt with in this case by making the responsible body, which has responsibility for appointing the AMCP, the local authority or the health board in Wales—or, more specifically, not making it the independent hospital. That then puts it on a level playing field with care homes, which was obviously the subject of huge discussion during our debates. This is where I seek reassurance from the Minister.

If we are satisfied that the changes we have made on the care home front to make sure that the responsible body is the only person who can appoint an AMCP also make sure that there is not a conflict between the AMCP and their role in commissioning, given that local authorities often, although not always, commission social care places and in a sense have that contracting relationship between the local authority and a care home, and given that we are trying to put the independent hospital on a similar footing, and if we are also satisfied, which I think we are—or we were during the passage of the Bill and subject to the amendments that have been brought forward—that there is the appropriate independence and that there are appropriate mechanisms for avoiding conflicts of interest for care homes and the appointment of AMCPs, by deduction it ought to follow that they will be in place because of the Government’s amendments on independent hospitals, and even more so because every single independent hospital case will be referred to an AMCP.

If it is true, as I believe it to be as a consequence of the government amendments, that the commissioning relationships are essentially the same and that the responsibility to appoint an AMCP will essentially be the same for the local authority, whether it is vis-à-vis a care home place or a place in an independent hospital, I hope that it will be possible for my noble friend to reassure the noble Baroness, Lady Thornton, that what she is asking for is already the case and therefore that her amendment is not necessary. However much I applaud the intention behind it, as I said, I think that it would repeat what is already the case. With that reassurance to noble Lords, I hope that we will be able to move on on this issue.

--- Later in debate ---

[Baroness Jolly]

My Lords, I shall speak briefly and I apologise to the House: I should have declared my interest at the beginning of this stage as a chair of an organisation caring for over 2,000 adults with learning disability or autism, or both. In Committee the noble Baroness, Lady Hollins, tabled an amendment on the provision of information for cared-for people, carers, family members and IMCAs. She is not in her place today but the noble Baroness, Lady Watkins of Tavistock, has produced a really elegant amendment and I shall support it.

On Report, I also explained why it is not sufficient to have this commitment in the code of practice. I shall not repeat that argument in detail now but it drew upon a Supreme Court ruling of earlier this year. The MCA code of practice not only misstated the legal situation but could not establish a duty where none had existed. If there is a need for a hard-edged duty or right, that needs to be put into legislation and not the code. We must have provisions in the Bill to provide the person with information about their situation and rights, along with clear statutory entitlements to copies of the relevant documentation for those supporting and representing them.

[Lord O'Shaughnessy]

My Lords, the rights to information are another good example of the positive change that this House made in the passage of the Bill. I pay tribute to the noble Baroness, Lady Watkins, and Baroness Hollis, for making that argument so persuasively. I am very grateful to my noble friend the Minister and my right honourable friend the Minister of State, Caroline Dinenage, for responding.

I completely understand the desire to create—if I can borrow a bit of terminology—a backstop for why these sorts of cases ought to be considered. It is very easy to see how in practice when perhaps a small institution is caring for people with complex needs, the definition of “practicable” could stretch over time because of urgent or important responsibilities. There is a risk that, without some kind of backstop or time limit, this is too vague. However, I have a big problem with having an arbitrary time limit. I know that the noble Baroness is not attached to any particular time, but any time is by definition arbitrary.

My concern is that if this is in primary legislation it could lead to rushed or poor record keeping if it is not, for example, possible to conclude the review, assemble all the relevant pieces of information and provide that in a readable form—bearing in mind that is not going to be just straight English language for everybody—to the appropriate person, the IMCA, and so on. We should particularly bear in mind that an appropriate person could be somebody appointed by the cared-for person who resides in another country. So there are complexities at the edge of these kinds of cases that mean that if an arbitrary limit—which any limit would be—is set out in primary legislation, it could mean that as institutions bump up against it, they just rush to get the job done rather than making sure that they take care to do the highest-quality piece of work. That is my fear, although maybe other noble Lords do not share it.

I take the point that the noble Baroness, Lady Jolly, made about whether or not—in her view, not—the guidance is the place to do it. It seems to me that it is the right place to do it, because we had not defined “practicable” and “appropriate” before. We can now derive some examples of what that would and ought to look like in normal cases, but also in edge cases. I have listened very carefully to the argument—as noble Lords know, my attitude throughout has been to listen and make sure that we can improve this Bill. However, I have concerns about putting an arbitrary limit in, for the reasons that I have set out. I hope my noble friend, as she has been asked to do by my noble friend Lady Browning, will be able to explain things to us in a bit more detail—and give us a flavour of how the statutory guidance would provide that kind of detail—to provide reassurance to noble Lords that this is not just a boundless commitment that does not have some teeth.

[Baroness Wheeler (Lab)]

My Lords, the amendment on this very important matter in the name of the noble Baroness, Lady Watkins, is fully supported on these Benches. The Minister knows the strength of feeling of support in the House to ensure that the cared-for person, or their carer, relative, friend or other person advocating on their behalf, is fully informed about their rights at the start of the LPS authorisation process. The amendment, carried by a substantial majority, was very clear on this issue. That information should be provided up front to families as a matter of course—information not only about the process, but importantly, their rights to advocacy and to challenge—in an accessible format that they can understand.

The provision in Amendment 25 of a statutory duty for information to be provided “as soon as practicable” does not ensure that this essential up-front requirement for information is met. One of the excellent briefings on this matter from Mencap states:

“Families’ carers have consistently fed back to us that the lack of information up-front meant that they didn’t know what was happening, that it was a process done to them and their loved one, and that set in motion misunderstandings, mistrust and instances of an appeal which could have been avoided had information been provided and explained at the beginning”.


Mencap’s concern is that the “as soon as practicable” provision could mean a system working on the timescales of the responsible body, rather than of the individual body and the families. That is our concern, too.

Amendment 25A addresses these concerns and ensures that the loophole in the Government’s amendment is addressed by requiring a record of the decision and justification to be kept where it has not been practicable to provide that up-front information about the decision to commence authorising arrangements under subsection (1). It also provides a necessary timeframe. We have heard that the noble Baroness, Lady Watkins, is not wedded to 72 hours, but it is important to have a timeframe within which, if a copy of the authorisation record has not been provided, there must be a review of whether the lack of information provision was appropriate. The requirement would provide the necessary safeguard for the cared-for person, and the hard- pressed staff, by facilitating routine record keeping and accountability for the decisions made. The noble Baroness pointed out some very explicit examples of the type of record that needs to be kept; it would not be onerous.

We are in a strange position, which we are slowly getting used to, of having the ex-Minister reassuring the House from the Government Benches that everything he promised has been delivered—before the Minister speaks. Amendment 25A highlights a significant loophole that needs to be addressed and I hope that the Government will accept it. We accept that the Government’s intention is to provide the information needed, and as soon as possible, but the amendment is necessary to reassure that “as soon as practicable” is not as open-ended as it can so often turn out to be.

Healthcare (International Arrangements) Bill

Lord O'Shaughnessy Excerpts

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

[Lord Marks of Henley-on-Thames]

My Lords, I will speak briefly to Amendments 35 and 36 in this group, which are in my name. What I say is entirely without prejudice to what I said on the last group: changing the procedure does not make it acceptable for statutes to include fundamentally inappropriate delegations such as are included in the Bill. Nevertheless, we are now considering the Bill and the breadth of the powers as currently drafted, particularly those in Clause 2.

In that context, I draw attention to the use of the ghastly phrase “for example”, to which the noble and learned Lord, Lord Judge, drew attention on Tuesday. To allow for the widest possible powers, and then to introduce them in a clause that starts:

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


showing therefore that the powers are entirely unlimited, is completely unacceptable. However, that is the background against which we are considering the question of the appropriate procedure.

I do not believe that any regulations should be made under the Bill unless they are made by affirmative resolution. Should the Government come back on Report with a Bill in which the powers of the Minister are appropriately circumscribed, there may be a case for some regulations of a minor nature to be amenable to the negative resolution procedure.

In particular, I listened with care to what the noble Lord, Lord Lansley, said when he drew a distinction between rolling over agreements that already exist in the regulations in relation to the EU-EEA-Switzerland agreements and others that we already have, and making new agreements and regulations in relation to them. That may be a point on which a distinction can be drawn, and no doubt the Minister and her colleagues will consider it as a possible distinction. Generally speaking, however, regulations of this type ought to be by affirmative resolution.

If, later on, we are looking at a very different Bill, I ask the Minister and her colleagues to consider the Delegated Powers Committee’s Guidance for Departments when determining how the procedures should be adopted, which procedure should be adopted, and the criteria that should be applied in choosing them.

[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.

--- Later in debate ---

[Lord Hain]

I resigned. However, she is very welcome and I wish her all the best.

What worries me about this—and I hope that the Minister can give us concrete assurances—is that, on the Brexit agenda, it seems to be in the DNA of Whitehall not to have regard for the devolved Governments. The only reference I can find in the Bill to the Welsh, Scottish and Northern Ireland devolved legislative bodies comes right at the end, when it says that it applies to them. At the very least it is essential that a requirement to seek legislative consent and to consult is written into the Bill, because of course health policy is devolved to Scotland, Wales and Northern Ireland.

The Government have form on this issue in the way that they approached the Brexit legislation earlier in the process. As your Lordships will recall, there was a crisis and a real confrontation with the Scottish Parliament and the Welsh Government—and there might well have been with the Northern Ireland Assembly if it had been up and running. It must be in the DNA of Whitehall, because it has simply done it again. That really worries me. I hope the Minister can give reassurances which mean that we do not have to vote at Report on something very similar to these amendments. If a major concession is not made, we will need to do that and seek to defeat the Government.

I endorse what the noble and learned Lord, Lord Wallace, and the noble Baroness, Lady Humphreys, said. I ask the Minister to give very specific assurances, spelling out that, if she does amend the Bill—and I hope she will assure us that she will—she will do so only having agreed those amendments in precise terms with the Welsh Government and the Scottish Parliament, and having consulted officials in the Northern Ireland departments.

[Lord O'Shaughnessy]

My Lords, it may be useful if I reassure the Committee in response to the comments of the noble Lord, Lord Hain. There was extensive engagement with the devolved Administrations in advance of the Bill, not just by officials but by me as a Minister. I spoke to my counterparts in Scotland and Wales, although of course it was not appropriate to do it in quite that way in Northern Ireland, for obvious reasons—there not being an Executive. That happened before, and subsequent to, the publication of the Bill, so this has been going on for several months. It is one reason why we were very pleased to get the legislative consent Motion in advance from the Scottish Government. Clearly, everyone had recognised the benefits that flow from this for the inhabitants of all parts of the United Kingdom.

It is useful for the Committee to know that this is not an activity that has simply been undertaken as a bolt-on in response to concerns raised during the passage of the Bill; it was baked in from the beginning and it has been our intention to move in the appropriate way with no procedural or constitutional novelty of the kind that the noble Lord fears.

[Lord Hain]

I am grateful to the noble Lord for giving way. Why, then, are the Welsh Health Minister and the Welsh Government still so concerned about this Bill? I am encouraged that these consultations took place, but why is there this evident concern?

[Lord O'Shaughnessy]

The different Governments have clearly taken different approaches. The noble Lord will know that it does not automatically follow, even if you know where you all want to get to, that you can agree it overnight. I am sure that my noble friend the Minister will be able to update us.

[Lord Foulkes of Cumnock]

My Lords, I want to endorse everything that my noble and learned friend Lord Wallace of Tankerness has said. He has the great distinction of having been for some time Deputy First Minister of Scotland and, for a short period, acting First Minister. Very few people can claim that distinction. Again, I agree with every word he said. I describe him as my noble and learned friend in every sense of the term—I hope that is not misunderstood. I also agree with everything said by the noble Baroness, Lady Humphreys.

What I find difficult to understand is why this Bill has received the legislative consent of the Scottish Parliament—which is usually more reluctant to give consent—and not that of the Welsh Parliament. I can only assume that it is because the noble Lord, Lord O’Shaughnessy, kissed the Blarney Stone before he went to Edinburgh again, and was able to persuade them. I am interested to know why and will try to find out from my contacts in Scotland before Report.

I suspect that a lot of the points made about the omissions in this Bill have arisen because this legislation, like much of the legislation we are considering at present, is being rushed because of Brexit, without proper consideration being given. I do not blame the officials, who have so much work to do. I went to a briefing they held right at the start of this process and I know that they work very hard. However, I would rather see them doing more constructive work than some of what they are being required to do on Brexit.

I agree with the noble Lord, Lord Hain—and I find this not only in health but in a lot of other areas—that some officials, particularly at the higher level in Whitehall, still have not come to terms with devolution; they do not quite understand what it means, or that the health service in Scotland is run completely by the Scottish Parliament. It is difficult for those officials who have been involved since before devolution to understand that fully. I hope that we will do more to get the message across as we move forward. I hope that the next Government, of whatever shade—a non-Conservative Government; I will put it that way—take more care of the devolved settlements.

The noble Lord, Lord O’Shaughnessy, said that he has had discussions with the Cabinet Secretary for Health and Sport in Scotland, Jeane Freeman. The Minister has taken over very recently and will not yet have had time to do this, but can she assure us that she will have an opportunity to meet with Jeane Freeman to discuss this issue between now and Report? I hope she will be able to report back to us in more detail on the attitudes of the Scottish Parliament and let us know whether it is satisfied on some of the points that have been raised by the noble Baroness, Lady Humphreys, and my noble and learned friend Lord Wallace of Tankerness.

Healthcare (International Arrangements) Bill

Lord O'Shaughnessy Excerpts

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

[Baroness Thornton]

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

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

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

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

[Lord O’Shaughnessy (Con)]

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

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

[Baroness Jolly]

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

[Lord O’Shaughnessy]

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

Healthcare (International Arrangements) Bill

Lord O'Shaughnessy Excerpts

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

This may be something of a side issue in the great Brexit scandal, but for all the reasons that the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lisvane, have set out, these are—one does not want or need to use inflated language—massive and significant constitutional issues. This is a Bill under which a red line should be drawn. I believe that, as the noble and learned Lord has said, under normal circumstances we would not be entertaining such a Bill. I do not think we should entertain either Clause 1 or Clause 2, and I shall certainly support amendments to remove them from the Bill.

[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.

[Lord Winston (Lab)]

I have the greatest respect for the noble Lord, Lord O’Shaughnessy, who we feel did a great job while he was in the department as a Minister, but does he not see that this is indeed a Brexit Bill? Out there in the community, people voting in the referendum said, “Take back power”. It was about taking back control and the paradox in this amendment—it may be irony, I am not quite sure which—is that we are not taking back control. Parliament will not have the control, which is what the people wanted at the time of voting for Brexit. That is fundamentally wrong and inappropriate, therefore I am quite certain that this amendment is appropriate.

[Lord O’Shaughnessy]

That is a separate issue. As I said at the beginning, the issue here is actually in two parts. The first is whether we ought to use the new legislation to strike deals with a subset of countries, those with which we already have reciprocal deals through our membership of the EU, or to strike broader ones. The secondary question is: what ought to be the correct process for Parliament to provide scrutiny of the kind of deals that are set up, either to provide continuity with the ones that we have under the EU or with new partners? Those are different questions. It is up to this Committee to make its decision about what it feels is the appropriate route to go forward, but it is important to expose that those are different and separate questions and we ought to consider them as such.

Perhaps I may respond to the point made by the noble Baroness, Lady Andrews, and others about trade. It is absolutely not the case that this is some Trojan horse for privatisation of the NHS, as the noble Lord, Lord Brooke, said, or anything else. My noble friend the Minister made that completely clear in her letter, as I used to in the letters that I once sent the noble Lord as well. Consider this: one of the reasons that we have deep reciprocal healthcare agreements with EU countries is due to the fact that we are part of a large trading bloc called the European Union. It is perfectly normal for partners engaged in economic, social, cultural, scientific and other activities to have these kind of agreements, partly because they facilitate the movement of people from one to another, whether on holiday or for work and other things.

I would hope, regardless of whether we were leaving the European Union or not, that we would want to have these kind of agreements with our partner countries throughout the world. Regardless of one’s views on Brexit, we ought to want to do that. It is not something that we have the legal basis to do at the moment and the Bill gives us that. I want to correct the impression given by the noble Baroness, Lady Andrews, which I do not think is fair, that this is somehow a Trojan horse for some sort of nefarious agenda. That is absolutely not the case; it is about taking a broader view of the kind of relationships that we currently enjoy with the EU and want to enjoy with other countries, whether they are Commonwealth partners or the overseas territories and Crown dependencies noted by my noble friend Lord Ribeiro.

I hope that I have described clearly what I believe the intent is in this regard. It is absolutely noble and will facilitate the broader movement of people throughout the world.

[Baroness Andrews]

I take the noble Lord’s personal assurances on that. Who could disagree with what he has just said about the need to have these sorts of vigorous, expansive and generous trading arrangements, which we hope will involve skills, health and knowledge? My question is really: why are these powers in this Bill? If they are necessary and within our reach, why can we not have them in an appropriate Bill with appropriate powers, which we can all be certain will not be exploited and lead to perverse consequences?

[Lord O’Shaughnessy]

I take the noble Baroness’s point but the critical thing here is that the powers set out in the Bill are constrained by giving effect to healthcare agreements, which themselves sit under the aegis of the creation of international agreements. My noble friend’s letter set out how the entire so-called CRaG arrangements govern how they ought to be approved. To satisfy my noble friend Lord Cormack’s concern, it is simply not the case that this Bill could be used unilaterally to fund the healthcare of the people of Venezuela, which might be a concern of the leaders of the Labour Party, as he pointed out.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

It is right that Clause 1 allows the Secretary of State to make payments out, but the point is that the regulations in Clause 2 provide for giving effect to a healthcare agreement. A healthcare agreement, as defined, allows reciprocity. My concern is that if we enter into healthcare agreements giving reciprocity on terms that are disadvantageous to the United Kingdom, that could involve our giving cheap access to the NHS.

[Lord O'Shaughnessy]

This is a reciprocal healthcare Bill, after all. Let us separate out the point that the noble Lord is making about non-EEA countries for a moment. First, why would a Government—any Government—want to make such an agreement? It is meant to be reciprocal; it is not reciprocal if it is heavily one-sided. Secondly, why on earth would the House of Commons, which has the power to reject such a Bill, accept it? It is like saying that we would trade one thing for something entirely different because it is logically possible. Well, possibly, but that does not mean that anyone in their right mind would do it.

My noble friend could not have been clearer in everything she said: this Government, whose motives the noble Lord is impugning, would not act in such a way. The insinuation he is making simply does not follow from the Bill.

[Lord Marks of Henley-on-Thames]

The noble Lord makes the point that whatever innocuous motivations may be expressed by Ministers at this stage, the powers in the Bill go far further. If there comes a stage where a Government are not so benign and have motivations that are political and unhelpful to the NHS—those could be, as I suggest, trade motivations—that presents a real risk. If easy access is given to the NHS in return, for example, for trade deals—

--- Later in debate ---

[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.

[Lord O’Shaughnessy]

I shall follow the theme expounded by the noble Baroness, Lady Finlay, and talk about Northern Ireland and the Republic of Ireland. It will come as no surprise to noble Lords that with a name such as mine I have family in Ireland, but more importantly, I had several meetings with Irish Health Ministers during my time as Minister and I want to provide insight and reassurance from those conversations. Noble Lords will understand that during those conversations we had to discuss difficult issues—more challenging topics, shall we say—within the Brexit realm, but there was absolute clarity in every meeting about the intended outcome being continued cross-border delivery and co-ordination of healthcare. That could be done under the aegis of the common travel area and the Belfast agreement and there was no reason for the fact of the United Kingdom leaving the European Union to interrupt that. Clearly that needed to be established as well as the legal processes and basis, but that was deep, long-standing and productive work.

I wonder whether the Minister can update the Committee to give a flavour of where we have got to; it is not just about the Republic and the north, as people from the Republic of Ireland use tertiary healthcare services in the UK. This is an incredibly deep and long-standing relationship with huge benefits, and I am sure that the Minister will be able to confirm that we are at the right point in those discussions to provide reassurance. I can tell her that it has always been the intention of the UK Government, and it was clearly the intention of the Irish Government, to achieve that.

Perhaps I may reflect briefly on the amendments in the name of my noble friend Lord Lansley, which in a sense are about clarifying who benefits. I absolutely agree that that is necessary, and I am sure that the Minister will be able to respond.

I shall risk partially agreeing with the noble Lord, Lord Foulkes, and my noble friend Lord Dundee in the sense that they make a very strong case for our agreement with the European Union incorporating pensioners and those with long-term conditions, as indeed is the case now. I do not think that that needs to be in the Bill, not least because their amendments include the word “preserves”. Of course, these are ongoing and dynamic relationships that will change over time; nevertheless, that is the Government’s objective.

The noble Lord, Lord Foulkes, made a very compelling case for the Bill having a global reach when he talked about those with long-term conditions being unable to travel outside the EU because the arrangements are not in place. I hope that that is a sign that there might be agreement across the aisle about how it is necessary to formulate these agreements so that when our people travel to Australia, New Zealand, Serbia, Gibraltar, Guernsey and other places, they are able to do so with the same kind of reassurance with which they are able to travel in Europe now.

[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.

Healthcare (International Arrangements) Bill

Lord O'Shaughnessy Excerpts

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

[Lord O'Shaughnessy (Con)]

I congratulate my noble friend on a truly outstanding maiden speech and say how delighted I am to see her in her place. Her speech has shown a glimpse of the many qualities that she will bring to this House: her intelligence, her humour and her commitment to public service. She did not mention that she is also a superb singer and flautist; perhaps today is not the day, but I hope she will give noble Lords the opportunity to hear and appreciate her musical skills at some point. I have dropped her in it now—not for the first time.

Not only did my noble friend give me the great honour of supporting her introduction yesterday but we had the opportunity to work together as Ministers for six months. During that time, she gave me one of the best pieces of advice I have ever had: watch your mailbag. It is an early warning signal when things are going wrong and problems need to be seen to. Because I was watching carefully under her very sage advice, I noticed more and more letters about problems with transvaginal mesh and sodium valproate. In many ways, they led to the review that my noble friend Lady Cumberlege is carrying out on medicine and medical device safety. That is the kind of impact that my noble friend has already had in her life as a Minister and she will go on to have an even more profound impact. She will know as well as I do that it is a huge privilege to hold the job that she does and I hope she enjoys it as much as I did. I would also like to join her in congratulating my noble friend Lady Manzoor on holding the fort so ably in the last month.

The Bill before us is an incredibly important piece of legislation, for two reasons. First, it will give the Government the powers they need to continue our mutually beneficial reciprocal health agreements with EU member states. The advantages of these are already enjoyed by many of our citizens: 250,000 British tourists make medical claims every year under the EHIC card, 180,000 British pensioners live in the EU and hundreds of people take planned treatments paid for by the NHS but delivered abroad.

Secondly, as my noble friend said, as we become an independent trading nation once again, we want to be able to enter into similar arrangements with our trading partners. Lighter versions of our reciprocal healthcare arrangements already exist with Australia, New Zealand and some of the EU accession states. However, as we strike new trade and other agreements, it is absolutely right that the British Government make the most of the opportunities these present for our citizens to travel, work and retire abroad.

It is also a necessary Bill because the powers on which we base our current ability to strike reciprocal healthcare agreements derive from EU law, specifically EU Regulations 883 and 987. These will become inoperable once we leave the European Union, however that should happen. At the risk of disappointing the noble Lord, Lord Foulkes, who will speak directly after me, this legislation does not fit into his category of the no-deal planning which he believes to be a waste of time and money. It is quite the opposite: we need these powers for any deal that we strike with the EU, whether the one agreed by the PM, the one that is official Labour Party policy or any other that might emerge.

For these reasons I strongly support the Bill, which will not come as a surprise since I was the Minister responsible for it until the end of December. However, I also believe it is one that all noble Lords should support because of the benefits it will bring to British citizens. Critically, this point is recognised by the Scottish Government, not the greatest friend of either this Government or Brexit but who have exceptionally agreed to a legislative consent Motion for the Bill.

Nevertheless, as this debate will show, and as debates on the Bill in the other place and the report of the DPRRC have brought out, there are some significant questions about the legislation that must be dealt with. The first, which was the subject of Labour Front-Bench amendments in the Commons, is to do with creating specific reporting requirements on any spending involved in new reciprocal deals. I can understand the desire for such information but there is already a robust annual reporting process, which is used today and which covers reciprocal health and other departmental spending, that allows for scrutiny by both Houses of Parliament as well as by the Public Accounts Committee and the NAO. It is of course also covered in the DHSC’s annual report. If the current procedures are good enough while we are still a member of the EU, and if our intention is by and large to recreate the same kind of relationships, then I see no good reason to change this approach.

The second question is the criticism, made forcibly in the DPRRC report, that there are too few constraints on the powers that the Bill gives to the Secretary of State. I always take the opinion of the committee very seriously but in considering its view, it is essential to consider not only the intent of the Bill but its reach. On intent, as I have said, the overall aim is to agree reciprocal deals that are similar to those we currently enjoy with the EU and to strike new, more sophisticated deals with our trading partners. However, with our new-found freedoms it is likely that we will want to consider additional, yet to be anticipated approaches.

The Bill clearly ought to be flexible enough to accommodate this, because it is simply impossible to determine in advance what might be desirable as we agree new trade deals and other international agreements. On its own, I accept that this might be a cause of concern, until one realises that the reach of the Bill is in fact limited because the powers it confers on the Secretary of State can be used only within the scope of an international treaty, which will always be subjected to detailed scrutiny and approval in Parliament. In that sense, the Bill is essentially concerned with giving the Secretary of State implementation powers under the broader aegis of an international treaty, each of which will require parliamentary approval. I believe that this ought to give noble Lords reassurance that the powers in the Bill cannot be misused.

Thirdly, there is the issue of regulation-making powers and affirmative procedures, as already mentioned by my noble friend. It is somewhat ironic to find those who vehemently oppose the UK’s departure from the EU promoting this cause, given that our membership gives the UK Parliament no say whatever in whether EU law should be implemented, but let us not dwell on that inconsistency. The approach outlined in the Bill, using the affirmative procedure only for changes to primary legislation, is entirely reasonable and consistent with other legislation. Nevertheless, my noble friend the Minister will no doubt want to reflect on the findings of the committee and the views of the converts to the cause of taking back control as we move forward.

Finally, there is the issue of data security. The exchange of data is essential to any sophisticated reciprocal healthcare agreement, which is why it features so prominently in the Bill. But as my noble friend the Minister will know—she understands the data issue deeply—it is of great concern to the public, so I hope she will be able to reassure the House that we would enter into such data-sharing arrangements only if the highest standards of security can be met.

I will end by talking about what is at stake here. It is not just our citizens who support the continuation of reciprocal healthcare arrangements with our European neighbours; so do the citizens and Governments of those countries. During my time as a Minister, I went to several EU health ministerial meetings and met most of my European counterparts. As your Lordships might imagine, that involved some interesting and occasionally challenging conversations. But without exception, those countries want to continue the reciprocal healthcare agreements once we leave the EU. Indeed, while my job in those meetings was to present the case for a deep and special relationship with the EU on health and other issues post Brexit—sometimes receiving polite nods and the line “the Commission leads on negotiations”—on reciprocal healthcare, several Ministers initiated discussions with me about how we could continue our partnership in future. This is partially about financial self-interest—the UK is a net contributor to EU member states through the current arrangements—but it also reflects a profound and historical commitment, in some cases dating back pre-war, to partnership and co-operation.

What this Bill represents is not only the chance to do the right thing for British citizens and patients, but also to extend the hand of friendship to our European neighbours and our partners around the world as we leave the European Union. That is a laudable cause, which I hope will draw support from noble Lords across the House today.

--- Later in debate ---

[Lord Thurlow (CB)]

My Lords, it is a pleasure to welcome the noble Baroness, Lady Blackwood of North Oxford, and I congratulate her on her fine maiden speech. She has certainly hit the ground running by going straight on to the Front Bench. I thank the Library as well for its excellent briefing for this debate.

I laud the efforts of the Government to recreate or replicate the pre-Brexit arrangements within the EEA and EU, while anticipating the future. It is of course of mutual benefit to EEA citizens as well—the noble Lord, Lord O’Shaughnessy, referred to this. But given our apparent failure to collect our share of the cost inflicted on the NHS, in my opinion those countries would be mad not to agree. Given the important comments on Henry VIII powers raised by the noble Lords, Lord Foulkes and Lord Marks, and particularly by the noble Baroness, Lady Barker, I should declare my membership of the Delegated Powers and Regulatory Reform Committee. We were not preparing furniture for throwing through the windows.

My concern is the failure to accurately calculate the cost of our great national health services as supplied to foreign nationals. The current arrangement with the EU and the EEA allows for a reconciliation on a pro-rata basis for cost recovery—quite right, very sensible and fair. However, it is evident that we in UK cannot work out how much those users from overseas—possibly not those carrying the appropriate cards—cost the NHS. It appears that there is no universal, accurate mandatory recording system in place at the point of delivery.

In my local hospital, which is a very large NHS one, to try to set about recovering costs, people walk around with clipboards inquiring of people in the hospital who have not given the necessary data information on arrival, trying to find out where they have come from and whether or not they are entitled. It is ridiculous. You can imagine the success rate of the people with the clipboards, trying to find out information from those who are not entitled, in particular from those who know they are abusing the system. There have been attempts to improve these systems, but we see continued—extensive, probably—financial shortfall in this area, partly from Europe and particularly from those outside the European Union.

We proudly boast that our great NHS is free at the point of delivery. It certainly is; it appears to be free for the whole world. There have been attempts to overcome this unintended anomaly, but hospitals and others are reluctant debt collectors; they are, after all, in the healing business, not the banking business. We need to design a system that works without asking the health industry to collect the money. An ID system that works and is not easily abused must be capable of simple introduction—they seem to do it elsewhere very effectively.

I was going to refer to statistics. We have heard a lot about the number of UK residents living in Europe, the number of retirees living in warmer climes, those who use medical services in continental Europe because they have been referred, and so on. But the fact is that there are apparently some 3 million EU nationals living in the UK, and 1 million British nationals living in the EU. Yet we recover only 10% of what they recover. I do not get the arithmetic. I am sure I will be corrected—

[Lord O'Shaughnessy]

I can tell the noble Lord the reason for that. It is fantastic to hear somebody from the Cross Benches supporting the efforts that the Government have been making for cost recovery, because it is not always a popular topic in this House. One of the main reasons is that if you are here for six months or if you have made your home here, wherever you are from, you are counted as ordinarily resident and are therefore entitled to free care. That is a founding principle of the way the NHS is set up, and the reason for the discrepancy that the noble Lord talks about. It is not a failure to deliver costs—it is an entitlement that anybody from any country has if they are counted as ordinarily resident under the law.

[Lord Thurlow]

I thank the noble Lord for his clarity.

Health tourists are a different category. The BMJ reported 18 months ago that in the year before, some 50% of births at a particular London hospital were to mothers not entitled to NHS services. I realise that this is a completely different category, but health tourism is something we are all aware of. The estimates I have read of the cost of this to the NHS vary from £300 million to £500 million; a senior doctor at a London hospital estimates that the figure is well over £1 billion. There appears to be a well-organised shuttle service of sorts from west Africa, giving access to those who can afford the service, no doubt for a great price. Are our doors really that wide open to this abuse of taxpayers’ money?

Why my interest? I am not a ranting, Brexiteering, screaming far-right nationalist, I promise you. I am doing this as a taxpayer and we, the legislature, owe a duty of care to all British taxpayers and citizens. The Second Reading is the first opportunity for us to debate the key principles and the main purpose of the Bill and to flag up concerns. To read that the cost of the mix of inefficiency and fraud may cost the NHS only £300 million or £500 million is insulting. Just try getting that out of the Treasury for your next worthy project. Does the Inland Revenue stop chasing us when it gets down to the last £300 million? We are all taxpayers, all paying for this shortfall.

In 2014, the visitor and migrant NHS cost recovery programme was, I believe, implemented. It sought a target, for some reason, of £500 million per annum. To do this, it wanted to improve existing charging systems, laying a health surcharge on non-EU citizens. This Bill provides an opportunity to redress this programme and so support the principle of fairness by ensuring that those not entitled through treaties pay for their care. It requires that the particulars of NHS access entitlement must be made completely clear to foreigners as they arrive in the UK, to avoid confusion for both patients and service providers.

In our great liberal democracy I could easily be perceived as a bogeyman or pariah—no one else has raised these points before in this debate. Please do not do that. It is taxpayers’ money; it is hard cash. We have a duty, as I have said, to stamp out abuse. Please do not turn a blind eye to this shameful state of affairs. The UK is not a rich country at the moment. We are doing our best to recover from the great recession of 2008 to 2012. We had austerity—closing rural schools and closing or reducing hundreds of other public services. Yet we appear to waste hundreds of millions of pounds because this is in the “too difficult” category. At the least, we could let DfID pay for the illegal health tourists through the aid budget. After all, it is foreign aid.

We must create an effective system to record the origin of unentitled users of the NHS, and allow for the accurate reconciliation of costs as the system is set up to do. To stop health tourism, users must pay. It is not a job for medical practitioners, but we have hospitals staffed by highly paid administrators. If remedied, hundreds of millions of pounds could be added to the funding of the NHS. Why is cost recovery not more effective and what, if anything, is being done to radically overhaul the system which allows this shameful waste of taxpayers’ money?

Blood Safety and Quality (Amendment) (EU Exit) Regulations 2019

Lord O'Shaughnessy Excerpts

Wednesday 19th December 2018 Lords Chamber

Moved by

[Lord O’Shaughnessy]

That the draft Regulations laid before the House on 19 November be approved. Considered in Grand Committee on 12 December

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)]

With the leave of the House—perhaps more in hope than expectation—I would like to move the three Motions standing in my name on the Order Paper en bloc.

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

Object.

--- Later in debate ---

[Lord Foulkes of Cumnock]

My Lords, this is yet another one. I will take up the suggestion of the noble Lord, Lord Trefgarne, and look forward to attendance at Grand Committee in future, where I will do as I did on the aviation statutory instrument yesterday and seek to have it negatived so that we can have a proper debate on the Floor of the House. The Government are sneaking through Grand Committee very important matters which affect this country and there is no proper debate on many of them, which is unfortunate. As my noble friend on the Front Bench said, if the House of Commons had had an opportunity to vote, we could have eliminated the possibility of no deal and freed up civil servants to get on with productive work, which is what they should be doing and what they would like to do.

[Lord O'Shaughnessy]

Perhaps the noble Lord should consider attending some of these debates. We had a very good debate, attended by Front-Benchers of the Liberal Democrats and the Labour Party as well as Cross-Benchers, about these incredibly important regulations which are designed to provide continuity to people who rely on such things as blood and organs and the ability to exchange information for surrogacy purposes—which we want to encourage. While I respect the noble Lord’s right to do what he is doing, it is not a good use of time. It would have been better spent if he had engaged in our debate last week.

[Lord Whitty (Lab)]

Would the frustration of both Ministers and the House not have been met had the Government responded to the point raised on the Statement last week by the noble Lord, Lord Wallace of Saltaire, asking the Government to set out clearly for the House what legislation is required between now and 28 March and in what order it will come in terms of both of primary legislation and SIs? We would then know what the sequence of events was and Ministers would not be faced with concern that the Government are trying to slip things through. I suggest that the Minister talks to his Chief Whip and that the usual channels produce such a schedule in time for us returning in January.

[Lord O'Shaughnessy]

There is a schedule, which is set out in the Act, and we have good debates, as we did on these regulations. It is about making sure that we do everything that a responsible Government should do. If the noble Lord was in this position, would he be doing anything different? Of course he would not.

[Lord Wallace of Saltaire (LD)]

Many of us now doubt that it is possible to get through the mass of legislation, including subordinate legislation, required for an orderly Brexit between when we return in January and the end of March. We fear that the Government will attempt to push it through by one emergency procedure or another. This will not be an emergency; it will be the result of the constant postponement of decisions by Her Majesty’s Government. The only way out seems to be for the Government to ask for a postponement or extension of the Article 50 procedure.

--- Later in debate ---

[Lord Adonis (Lab)]

The Minister referred a moment ago to a “responsible Government”. The idea that a responsible Government would be preparing for a no-deal Brexit is a contradiction in terms. No responsible Government would be preparing for this country to leave the European Union without a proper treaty arrangement next March. Let us be very clear: the Government are seeking to intimidate Parliament into voting for the Prime Minister’s deal by holding us hostage to the idea that there could be a no-deal exit next March. This is a phenomenal waste of the time of Parliament. It is also deeply disreputable in terms of the Government’s dealings with all those external partners, including the Minister’s partners in the NHS, whom he is winding up into thinking that there could be a no-deal exit for which they are preparing but which there is no chance whatever of this Parliament or this Government agreeing. The Minister should withdraw these regulations, say clearly that we are not doing a no-deal exit and prepare an orderly arrangement for us to hold a people’s vote next March so that we do not leave the European Union at all.

[Lord O’Shaughnessy]

It was Parliament that agreed that the exit day should be 29 March: it was voted on. Yes, we may have to work harder than normal in order to be prepared for all eventualities; I am sure that that is something noble Lords would not shirk. There is no sense at all that Parliament is being leaned on or taken for granted. The noble Lord has not been in the debates that I have been in—very good, substantive debates about important issues. That is what matters, not this silly game-playing.

Motion agreed.

Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018

Lord O'Shaughnessy Excerpts

Wednesday 19th December 2018 Lords Chamber

Moved by

[Lord O’Shaughnessy]

That the draft Regulations laid before the House on 19 July be approved. Relevant document: 14th Report from the Joint Committee on Human Rights. Considered in Grand Committee on 12 December

Motion agreed.

Human Fertilisation and Embryology (Parental Orders) Regulations 2018

Lord O'Shaughnessy Excerpts

Wednesday 19th December 2018 Lords Chamber

Moved by

[Lord O’Shaughnessy]

That the draft Regulations laid before the House on 15 November be approved. Considered in Grand Committee on 12 December

Motion agreed.