Healthcare (International Arrangements) Bill

Baroness Blackwood of North Oxford Excerpts

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

Moved by

[Baroness Blackwood of North Oxford]

That the Bill be now read a second time.

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

My Lords, it is a great honour to speak to the Healthcare (International Arrangements) Bill, on behalf of the Government, as my maiden speech—as my noble friend the Leader of the House put it so encouragingly when we first met, “straight in at the deep end”.

Before addressing the Bill in earnest, however, I hope your Lordships will indulge me as I record my profound thanks to noble Lords from across the House for their warm welcome over the past few weeks. I thank particularly my noble friend Lord Younger, Black Rod and the parliamentary staff who have so patiently guided me through the processes and procedures of this place. I offer special thanks to our wonderful doorkeepers, who have on more than one occasion rescued me from complete disorientation. I must also pay tribute to my two distinguished supporters: my noble friend Lord O’Shaughnessy, who is, I am sure we all agree, a formidable act to follow, and my noble friend Lord Young of Cookham, one of our truly great parliamentarians, as well as a former Health Minister himself, of course. I am grateful for their continued advice and support. Last, but certainly not least, I put on record my sincere thanks, and those of my whole department, to my noble friend Lady Manzoor, who has so ably covered departmental business, responding tirelessly on topics ranging from tooth decay to sepsis to breast cancer, not to mention fielding a few lengthy SIs with grace and good humour.

I understand that it is a tradition to treat those of us who have come from the other place to a lesson or two in the nature of truly forensic scrutiny and expert debate. I humbly await my tutorial. However, I am sure the House will also appreciate that I remain very proud to have been elected by the constituents of Oxford West and Abingdon, and the outcome of the 2017 election was a great sadness for me. It was, of course, my home seat. My father was a cardiologist. He met my mother, then a scrub nurse, in an operating theatre in the Radcliffe Infirmary in north Oxford in 1973. On many a doorstep, constituents would tell me how fondly they remembered my father, who had treated or taught them, before proceeding to tell me in no uncertain terms that this did not mean that they would be voting for me.

It was a constant joy to represent such a research-intensive seat, where constituents were always so informed, engaged and unsparingly direct. I used to say that not only was I the only MP to get footnoted letters but I had to spend constituency days constantly at the ready for impromptu tutorials from world experts. Indeed, on one visit to the Rutherford Appleton Laboratory, a particularly keen particle physicist sequestered me in his office for a full 45-minute lecture on the nature of the muon—and, naturally, why STFC funding for his project should be maintained.

It is for this reason that when Garter Principal King of Arms asked me to choose a title, I had no hesitation in selecting north Oxford, the place where I have grown up physically and intellectually all these years. I have a suspicion that—although my previous roles as chair of the Commons Science and Technology Select Committee, Health Minister and chair of the Human Tissue Authority will of course prove valuable—my former constituents, who were so expert and so challenging, will actually have done the most to prepare me to serve your Lordships as a Minister in this Chamber.

I am mindful that the Companion states that maiden speeches should be short and uncontroversial. Short, perhaps, is within my gift, but I fear that my subject matter may diverge from strict convention. EU exit raises the collective blood pressure so notably that I have often wondered whether public health language should be developed for just such occasions. However, during its passage through the other place, the purpose of this Bill attracted cross-party support, and for good reason. However varied our views may be on our future relationship with Europe, we can all agree that access to healthcare is essential both for British nationals living in European countries and for EU citizens living in the UK.

In addition, as we look to a future increasingly defined by global mobility and chronic illness, it is the responsibility of government to consider, with all appropriate care and scrutiny, a more comprehensive approach to reciprocal healthcare. Your Lordships will know that current reciprocal healthcare arrangements give people retiring abroad more security, support tourism and enable essential mobility in our economy. The UK is party to a number of reciprocal healthcare agreements, which range from light-touch arrangements with Australia and New Zealand to the more complex EU reciprocal healthcare system.

I will briefly outline the latter: the UK funds healthcare for 180,000 pensioners and their dependants in the EU, living principally in Spain, France, Cyprus and Ireland. We fund needs-arising healthcare in the EU for UK tourists and students. The scheme is hugely popular. There are 27 million EHIC cards in circulation in the UK, resulting in around 250,000 claims each year. We directly fund healthcare for 10,000 posted workers and their dependants in the EU, EEA and Switzerland, and we fund around 1,350 UK residents to travel overseas to receive planned treatment in the EU, primarily maternity care.

The cost of EU reciprocal healthcare is £630 million a year, and at present we recover £66 million each year. This amount is increasing as the NHS gets better at identifying EU visitors and ensuring that the UK is reimbursed for care provided, but it is likely to remain a net spend because many more British pensioners go to Europe than the other way round. Unless there is a dramatic change in the weather across the continent, our models do not forecast that changing much in the near future.

It is clearly in the interests of the British public to ensure that reciprocal healthcare arrangements similar to those currently in place continue when we leave the EU, whether that happens through an agreement with the EU itself, as we very much want, or through bilateral agreements with individual member states in the unlikely event of no deal. For this reason, although this is a short Bill of just six clauses, it is vital. The powers in it are designed to ensure that, no matter the outcome of the exit negotiations, British nationals living in European countries and EU citizens living in the UK, not to mention tourists and posted workers, can have certainty and continuity of care. Should we wish to, the Bill would also allow us to strengthen existing reciprocal healthcare agreements with non-EU countries and to explore new agreements in future.

The Government are determined that we will reach a deal with the EU. With a deal, the withdrawal agreement will enable the continuation of existing reciprocal healthcare rules during the implementation period, and afterwards for people covered by that withdrawal agreement. But it is not a long-term arrangement and does not provide for the unlikely event that the withdrawal agreement is not concluded. In the event of no deal, the powers in the Bill would enable the UK to act swiftly to protect existing healthcare cover for British nationals in the EU, EEA and Switzerland, whether deals are made with the EU or with individual member states. This is clearly undesirable but it is the job of a responsible Government to prepare for all scenarios.

In preliminary discussions with a number of your Lordships, I have been asked about the scope of the powers contained in the Bill. In this regard, I record my thanks to my noble friend Lord Blencathra and the DPRRC for the work that it has already done on this matter and for its characteristically robust report. I wrote last week to the committee in response to its report and have placed a copy of that letter in the Library.

So what, in detail, does the Bill do? There are three key elements. First, it seeks payment powers so that the Secretary of State can make payments for healthcare abroad. Expenditure by the Department of Health and Social Care relating to EU and other reciprocal healthcare arrangements is currently published in this place in the form of annual resource accounts in line with government reporting rules, and will continue to be so to ensure transparency. Secondly, it seeks discretionary powers to make regulations to give effect to healthcare agreements that are entered into. It is important to note at this point that any secondary legislation under this clause that amends primary legislation—Henry VIII powers—would be brought forward under the affirmative procedure, while other regulations that are expected to be technical and administrative in nature, such as replacing or updating the administrative forms, would take the negative procedure. Thirdly, the Bill seeks powers for authorised persons to lawfully share data to facilitate payments or treatments in a safe and effective way. Data would be shared in accordance with UK data protection legislation, including the Data Protection Act 2018.

It is important to note that the Bill does not affect the UK’s ability to negotiate or enter into international agreements; the power to negotiate and sign treaties is a prerogative power and always has been. It simply empowers the Secretary of State to implement agreements once they have been negotiated. The details of new reciprocal healthcare agreements will of course remain subject to negotiation and parliamentary scrutiny. I am aware that there has been some debate about whether CRaG powers are sufficient and that the Constitution Committee, so ably led by the noble Baroness, Lady Taylor, is currently conducting an inquiry into this very matter. I shall be interested to hear its conclusions.

I reassure the House that there can be no cause for concern that the Bill represents an attempt by the UK Executive to seize power from the devolved Administrations. The Department of Health and Social Care currently funds and arranges EU reciprocal healthcare for people from England, Scotland, Wales and Northern Ireland. We have been working with the devolved Administrations for some time now. I am delighted that we have received a legislative consent Motion from Scotland, and we will of course continue to ensure that we legislate for reciprocal healthcare in a way that fully respects the devolution settlements.

In particular, I note concerns raised in the EU Home Affairs Sub-Committee report debate in July, especially by my noble friend Lord Ribeiro, regarding the importance of protecting healthcare in the island of Ireland. I reassure the House that the UK and Ireland are committed to protecting reciprocal healthcare rights fully and appreciate how important it is that UK and Irish nationals can continue to access healthcare when they live in, work in or visit the other country. We also want to maintain co-operation between the UK, Northern Ireland and Ireland on a range of medical issues, including planned treatment, public health and workforce, in both a deal and no-deal scenario.

Having set out the general purpose of the Bill in broad terms, my priority today is to hear from the House so I can begin what I know will be a robust process of scrutiny and strengthening of the Bill. Reciprocal healthcare arrangements enjoy broad public support and the Bill is designed to ensure that we can give British nationals living in European countries and EU citizens living in the UK certainty and continuity of care. It is designed to protect tourism and economic mobility. It is a Bill that looks to the future, giving us the ability to strengthen existing reciprocal healthcare agreements with non-EU countries and explore new agreements in the future.

I look forward to hearing the views of all noble Lords as we enter into the detail of the Bill. I will listen carefully and seek to engage as fully as I possibly can, whether with groups, by party or with individuals, so that we can ensure that proper scrutiny is given to the content and intent of the Bill. It is a necessary and pragmatic Bill. It is one that respects Parliament and the devolution settlements and looks to the future of reciprocal healthcare for generations to come. It is with that in mind that I commend this Bill to the House. I beg to move.

--- Later in debate ---

[Baroness Blackwood of North Oxford]

My Lords, I thank the House for a most robust and incisive debate. It is great for me to be welcomed into a very balanced House, with the noble Lord, Lord Marks, admitting that he campaigned against me and my noble friend Lord Lansley having campaigned for me. I feel as though I have been welcomed into a warm embrace. The debate has been strong and, as anticipated, a great lesson for a former Member of the other place. I will attempt to answer as many questions as I can and address the major issues raised. If I cannot, I will write to noble Lords.

First, I am grateful for the widespread support for the intent of the Bill, which, as the noble Baroness, Lady Thornton, said, is essential. As the noble Lord, Lord Bethell, reminded us, it has strong public support. There is a desire to maintain robust reciprocal healthcare arrangements, which benefit many people across the country when working, living, studying and travelling abroad. Every day, the lives of people across the country are improved by these arrangements. Examples range from a young British student with severe asthma, able to study for a year abroad at a European university, to a British grandmother with multi-morbidities, able to visit her newly born grandchild—or, in my case, a young bride with a rare disease honeymooning in perhaps one of the most romantic cities in the world: Venice. On the value of this scheme, it is notable that many noble Lords have their own stories to tell about the importance of us maintaining reciprocal healthcare. I will write to the noble Baroness, Lady Thornton, about her mother’s case when I have found out the details for her.

All these journeys are made easier by a reciprocal healthcare system ensuring that if you require healthcare in another EU member state, you will be looked after. The British Government want such arrangements to continue; the Bill provides a legislative framework for that. I recognise that a number of noble Lords have raised important and substantive issues concerning the Bill. I will address as many of them as possible in the time available but I look forward to debating them further in the coming weeks.

The noble Lords, Lord Foulkes, Lord Marks and Lord Thurlow, the noble Baronesses, Lady Barker, Lady Brinton and Lady Jolly, and my noble friend Lord Dundee mentioned the DPRRC report. It was characteristically robust, as I said in my opening remarks. The Government responded to it; I placed a copy of that letter in the Library for your Lordships’ consideration. The committee will consider that response on 13 February, which I will take into account and reflect on very carefully. On the Bill’s powers, we must find a balance between the flexibility and agility we need as we go forward into our EU exit, and appropriate scrutiny, as my noble friend Lord Bridgeman said so eloquently.

It may be helpful for me to outline the five delegated powers in the Bill in a little more detail. Four of those powers come under Clause 2, and one under Clause 4. The first, in Clause 2(1)(a), would be used to set out in detail complex payment arrangements under reciprocal healthcare deals. The second, in Clause 2(1)(b), is needed to provide healthcare abroad outside reciprocal healthcare arrangements. The third, in Clause 2(1)(c), is needed to give effect to comprehensive healthcare agreements entered into in another country or international organisation, such as the EU. The fourth, in Clause 2(3), is needed to allow the Secretary of State to give directions to a person to whom they have delegated functions under the Bill. The fifth, in Clause 4(6)(e), enables the Secretary of State to make regulations to add to the list of people who can process data for the purposes of the Bill, for example a future arm’s-length body that does not currently exist. I know that data issues have been raised by a number of your Lordships, which I will return to later.

I know of a lot of legitimate concern over the inclusion of Henry VIII powers in EU exit legislation. The only Henry VIII power in the Bill comes under Clause 5. It is not a standalone power: it is a tidying power to ensure that the statute book is coherent when implementing future arrangements under the Bill. In particular, I have heard noble Lords’ preference for wider use of the “made affirmative” procedure, which I will reflect on more as we head towards Committee.

The noble Lords, Lord Marks and Lord Foulkes, and my noble friend Lord Dundee asked about financial reporting procedures in future reciprocal healthcare. In the letter to the DPRRC, we committed to issuing an annual ministerial Statement on the operation of reciprocal healthcare arrangements, which will be published as soon as is practicable after the end of each financial year to allow for accurate financial reporting. The Statement would include, but not be limited to: information on the expenditure and income of healthcare provisions overseas as a whole, which would include aggregated expenditure, income from the financial year and a country-by-country summary of expenditure and income; an update on the operation of arrangements, which could identify areas of successful operation or where arrangements are being improved to promote efficiency; and the strategic direction of reciprocal healthcare arrangements, which could be a statement either on future priorities for the current operation or on where the UK is engaging with other countries to establish new arrangements. I hope that that is helpful.

The noble Lord, Lord Foulkes, was absolutely right to identify the importance of EU workers to the NHS. I want to put on record again both my and the Government’s appreciation of the work of EU staff in the NHS. Let me be very clear: we want those staff to stay. I am very pleased to report that more than 4,300 more EU workers are now working in the NHS than before the referendum. We wish to continue with that positive trend.

My noble friend Lord O’Shaughnessy has already clarified the point regarding right of access to NHS services for those ordinarily resident in the UK, but the noble Lord, Lord Thurlow, and the noble Baronesses, Lady Brinton and Lady Jolly, raised the issues of the impact of these changes on the NHS and charging. Let me be clear that we do not need to have any new front-line NHS services to charge visitors or tourists from the EU, either directly or via reciprocal healthcare arrangements. We already have these processes in place as part of our current EU reciprocal healthcare arrangements. EHIC claims and EU visitors are identified for the purposes of whether they are chargeable or directly covered through the current system. This is done by overseas visitor managers in the NHS trusts, who manage charging. The Government have been the first to make significant progress regarding charging overseas visitors and recouping funds. To reassure the noble Lord, Lord Thurlow, since 2015 we have increased identified income for the NHS with reciprocal arrangements by 40%. Directly charged income has increased by 86% over the same period. We are not satisfied with that progress, but it is certainly moving in the right direction.

I also reassure the noble Baroness, Lady Brinton, that we have work ongoing with NHS Improvement, which is now working with 50 NHS trusts, to improve further its practices in this regard, with a bespoke improvement team in place providing on-the-ground support and challenge, and identifying and sharing best practice. That should be of great assistance as we move into this next period.

A number of noble Lords raised the global scope of the powers, in particular the noble Lord, Lord Bethell, and the noble Baronesses, Lady Jolly and Lady Thornton. As I have noted, the Government’s immediate priority with the Bill is our reciprocal healthcare arrangements with the EU. That is absolutely right, but we already have a number of existing reciprocal healthcare arrangements with countries outside the EU, such as Australia and New Zealand, as my noble friend Lord Bridgeman noted. The passage of the Bill through Parliament presents us with a natural opportunity to consider how we can best support Britons in an increasingly global world. International travel is under- taken by increasing numbers of people for professional, social, recreational and humanitarian purposes. More people travel greater distances and at greater speed than ever before. Global reciprocal healthcare agreements have the potential to protect public health by supporting international visitors to access emergency and needs-arising treatment when they need it.

In addition, international collaboration through reciprocal healthcare agreements can also make it much easier for people to receive treatment, including specialised treatments, such as those mentioned by the noble Baroness, Lady Thornton, which may be more clinically effective or better for a person to access abroad. For example, as I mentioned in my opening speech, in 2017, 1,352 UK patients received pre-planned treatments in the EU, while 1,241 EU patients received pre-planned treatment in the UK. Some of those treatments would not have been possible if we did not have that scheme in place. We do not want to prevent ourselves being able to strengthen our agreements with non-EU countries by curtailing the Bill’s scope, but we must obviously ensure that appropriate scrutiny and parliamentary oversight is in place as we do that.

I move on to the questions raised by the noble Lord, Lord Marks, and the noble Baronesses, Lady Brinton, Lady Thornton and Lady Jolly, regarding trade. The Government are completely committed to the guiding principles of the NHS—that it is universal and free at the point of need. Our position is definitive: the NHS is not and never will be for sale. The Bill’s powers are to allow the department to enter into reciprocal healthcare agreements, either bilaterally or with international organisations, entirely independently of any other international organisations or agreement. I hope that that statement is clear enough.

To reassure noble Lords even further, I will briefly set out the scrutiny powers available to the House for the international treaties under which these agreements would be agreed. It is obviously the Executive’s responsibility to negotiate these treaties under the royal prerogative. The Bill does not replace or limit the prerogative power to enter into international agreements, in the healthcare sphere or more generally. We already have international healthcare agreements, as I have stated, with non-EU countries such as Australia and New Zealand, and Crown dependencies, allowing them certain free access to NHS services.

Parliamentary scrutiny of international treaties is of great importance. Ministers are accountable to Parliament for the exercise of those functions. The principal statutory framework providing scrutiny of these treaties is the Constitutional Reform and Governance Act 2010—CRaG—established by Parliament under its own powers. CRaG has enshrined in statute the long-standing convention known as the Ponsonby rule that was the product of lengthy consultation and dialogue. The Act enables either House to object to the ratification of a treaty and the House of Commons can block ratification of a treaty indefinitely.

I understand that the House of Lords Constitution Committee has an ongoing inquiry into future scrutiny of international treaties. The Committee will look into all aspects of treaty scrutiny, which is obviously apposite at this moment, including what, if any, new committees need to be set up to deliver scrutiny of treaties post exit. I obviously look forward to the review’s findings, but noble Lords can be reassured that this Bill’s purpose is the implementation of international treaties that can be scrutinised under the CRaG process. Noble Lords can also be reassured that all international healthcare agreements will be subject to the scrutiny route considered most appropriate by Parliament.

[Lord Lansley]

At the commencement of the Committee stage of the Trade Bill the House voted for a Motion whose effect was that the Government should bring forward their proposals for the future scrutiny of further treaties before the Report stage. The expectation from the debate on the Trade Bill was that we would go beyond the CRaG legislation. It would be helpful for my noble friend to make it clear that Ministers will be doing that for the Trade Bill and that that bears directly on this Bill. It would be very useful for the Bill to proceed in the light of that same response from Ministers.

[Baroness Blackwood of North Oxford]

I thank my noble friend Lord Lansley for that intervention. One of the reasons why I raise that process is because I am aware that there are ongoing discussions in other parts of the House. We will reflect on that as we progress the Bill.

My noble friend Lord O’Shaughnessy spoke of positive engagement with his EU counterparts on bilateral arrangements in the event of no deal. A number of noble Lords raised what would happen should the withdrawal agreement not go forward. My noble friends Lord Ribeiro and Lord Lansley both raised the question of no deal. My noble friend Lord Lansley is right that we should be careful and seek to reassure those who currently rely on reciprocal healthcare that they will be able to rely on these arrangements going forward. Great interest has been expressed by our counterparts in the European Union, where we are seeking bilateral arrangements with relevant member states in the event that we reach 29 March without a deal with the EU.

[Lord Foulkes of Cumnock]

The Minister has been really helpful in her reply and has dealt extremely well with the points raised. She has come to a crucial one now. I think that everyone understands that if there is a deal along the lines that have been agreed, reciprocal arrangements will continue. That is one of the positive things about it. However, if there is no deal the Minister and the Government need to be honest with us and the public about it. It will not be easy to negotiate bilateral deals with 27 different countries if we come out with no deal. If the Minister and the Government are honest about that, it will make people understand that it is vital, if we are to leave the European Union, that there must be some kind of deal, because no deal would be a real disaster for healthcare.

[Baroness Blackwood of North Oxford]

The noble Lord, Lord Foulkes, raises a very important point, and he is absolutely right that the Government do not seek to have no deal. The best way to avoid no deal is to have a deal. Under the withdrawal agreement there is protection of reciprocal healthcare arrangements for EU citizens in the UK and for UK citizens abroad, and that is what the Government seek to deliver. We have set out a number of steps to ensure that individuals who currently receive reciprocal healthcare can be protected as much as possible under a no-deal scenario. One of them is to put in place the powers in this Bill so that we can go very quickly to seeking bilateral arrangements. That is why I hope we will receive the support of the noble Lord as we go forward with this legislation.

[Lord Marks of Henley-on-Thames]

I think the point made by the noble Lord, Lord Foulkes, was that it is very dangerous to give the reassurance that the Minister was giving and to tell the public that all will be well in the event of no deal. The public need to know that all will not be well in the event of no deal. Even if this Bill and the regulations go through as quickly as they can, there will be a very serious hiatus. It is important that, rather than reassuring the public, the Government—which want a deal, as I know the Minister does—should say how dangerous it will be to leave without a deal on 29 March.

[Baroness Blackwood of North Oxford]

The noble Lord, Lord Marks, has made an important point. The Government have not in any way avoided the consequences of no deal. They have been very clear in outlining some of the risks associated with no deal and exactly why they are seeking a deal, with strength and authority. Those currently using reciprocal healthcare arrangements abroad can find advice on the GOV.UK and nhs.uk websites. Any of your Lordships who would like more specific advice are very welcome to write to me or to seek a meeting with me on that.

I would like to make a little more progress, as there are only two more minutes before I must close and I have not dealt with a number of issues your Lordships raised with me. On Ireland, which was raised by a number of important Members—the noble Baronesses, Lady Barker, Lady Brinton and Lady Jolly—I reassure noble Lords that the UK is firmly committed to maintaining the common travel area and to protecting the rights enjoyed by UK and Irish nationals in each other’s states, whatever the terms of the UK’s withdrawal from the EU. The common travel area facilitates the principle of free movement for British and Irish citizens between the UK and Ireland and the reciprocal enjoyment of rights and entitlements to public services of citizens in each other’s states.

In addition, on negotiations with the devolved Administrations, we are very pleased to have received a legislative consent Motion from Scotland and are continuing to negotiate.

To conclude, I hope that I have been able to summarise the main issues and topics. There are clearly still some important questions that need to be answered, and I will write on the further points. It is clear from this debate that there is much work still to be done on the Bill, and I am sure that we will have adequate time in what my noble friend Lord Bridgeman predicts—I suspect rightly—will be a lively Committee to make sure that the Bill is in the best possible shape. However varied our views may be on the future relationship with Europe, I think that we can all agree that access to healthcare is essential both for British nationals living in European countries and for EU citizens living in the UK. We have heard that reciprocal healthcare arrangements enjoy broad public support. This Bill is designed to ensure that we can give British nationals living in European countries and EU citizens living in the UK certainty and continuity of care. With that in mind, I beg to move that this Bill be committed to a Committee of the whole House.

Bill read a second time and committed to a Committee of the whole House.

Healthcare (International Arrangements) Bill

Baroness Blackwood of North Oxford Excerpts

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

[Baroness Brinton (LD)]

My Lords, I will comment on a couple of points from a political perspective. We have heard from a significant constitutional expert during the course of the last hour and a half. I thank the Minister for her letter following Second Reading and for her response at Second Reading. But what has become clear in the past hour is that for most of us who have been engaging in the debate this has clearly been a Brexit Bill. Indeed, the Minister says at the beginning of her letter:

“Although this Bill is being brought forward as a result of the UK’s exit from the EU, it is not intended to only deal with EU exit”.


However, it is one of the series of Bills that must be passed by 29 March, regardless of whether there is a deal, because we do not yet have the detail. As far as this House is concerned, it is in the list of Bills that we have been told must go through by that date. For that reason, I am afraid that I take issue with the noble Lord, Lord O’Shaughnessy, who says that it is not being rushed through. We have been waiting for this Bill and others for some time. We now have to rush it through because we are 39 days away from 29 March and time is extremely limited.

Some of the allegations that some of us made at Second Reading that this was all about future trade deals have become much clearer to us. I raised concerns then about TTIP. In her letter, the Minister appears to contradict herself. She says on page 2:

“Should the Government wish to enter into new comprehensive arrangements, this Bill provides the framework to implement these”.


Two paragraphs later she says:

“This Bill is not about negotiating new agreements, but to ensure … appropriate mechanisms … to implement them”.


It seems from everything that the noble Lords, Lord Lansley and Lord O’Shaughnessy, said that this provides the framework that will influence the Trade Bill and any future trade agreements. That is one of the most important reasons why a Bill that we understood was coming before us in order to replicate health arrangements with the EU, whatever our relationship is with it after 29 March, is now moving into a much broader political arena that deserves more than one and a half days in Committee to discuss it—let alone whatever time we are going to be allowed at Report.

I want to leave it there at this point, except to say to the noble Baroness—because I do not think there is another point at which I can do so without laying down an amendment that does not particularly have reference to the scope—that she tried to reassure me and others, both in Hansard in what she said winding up the Second Reading debate and in her letter, that the NHS was safe in the hands of this Government, and that the Government basically agree with the principle of the service of the NHS being free at the point of need. But the question that I asked has not been answered, either in her letter or in her response on the Bill. I am concerned about the replication of the EU directive on public procurement that provides many of the protections that we are seeking for the NHS in its entirety as we continue in the future.

I went on to the NHS Confederation website to look at what advice the Government were providing for the NHS in the event of a no-deal Brexit, and found that all the bullet points relating to public procurement were about emergency supplies running out. There is nothing about the intrinsic changes that are provided for in the current EU directive about not having to go out to competitive tender for certain parts of NHS procurement. We have used those as a protection over recent years, including during the coalition Government, to say that the NHS is safe in our hands. So I ask the Minister specifically if she can point me to where the replication of that EU directive on public procurement will appear before us prior to 29 March this year, because I am having trouble finding it.

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

My Lords, it is not often that one rises to speak for the first time in Committee in the presence of the head of one’s graduate college, who has just quoted Lady Thatcher at you in no uncertain terms. I am most grateful to the noble Lord, Lord Wilson, for his characteristic directness, and I promise that I shall be on my best behaviour.

I thank the noble Baronesses, Lady Thornton and Lady Jolly, for Amendments 1, 2, 12, 13, 14, 45, 46 and 47, the noble Lord, Lord Marks, for Amendment 3, the noble Lord, Lord Patel, for Amendment 5, and the noble Lords, Lord Patel and Lord Kakkar, and the noble and learned Lord, Lord Judge, for Amendment 44 and the notice of their intent to oppose Clause 1 standing part of the Bill. I am grateful to them for being clear that their intention is to strengthen, not to wreck, the Bill. I was, however, a little hurt by the noble and learned Lord, Lord Judge, stating that the role of committees of the House, particularly the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, and indeed the scrutiny of this Chamber, was being dismissed or in any way taken lightly by the Government in this case.

As the noble Lord, Lord Lisvane, an old friend of mine from the other place, will know, as a former chair of a Select Committee, I could not take the scrutiny of this House more seriously, and my purpose here today is to engage seriously and effectively with the firm intention of the Bill leaving this place in a better state. Perhaps it is the optimism of a novice speaking. I welcome my noble friend Lord Cormack back from his sick bed, but believe that, given the quality of engagement in this place today, we can aspire perhaps not to quaffable wine but to more than just improving the Bill to make it applicable to the EU, the EEA and Switzerland, as the noble Lord, Lord Marks, said. We can aspire to non-EU healthcare agreements that are as valued by recipients as the EU scheme is.

Each of these amendments allows me to speak to the intent of the Bill and to the future of reciprocal healthcare arrangements after we exit the EU. As noble Lords have mentioned, although the Bill has been brought forward in response to our exiting the EU, it is not intended to deal just with that. It is designed to respond and offer certainty to those who rely on EU reciprocal healthcare, but it is more than that. It can give us the opportunity to strengthen existing reciprocal healthcare agreements with non-EU countries and to consider future additional reciprocal healthcare agreements. Given the level of public support for EU reciprocal healthcare, I would have thought that the Government seeking to strengthen global reciprocal healthcare would be a welcome move, provided, of course, that the Bill is appropriately scrutinised and strengthened.

--- Later in debate ---

[Baroness Thornton]

The Minister’s colleague in the Commons said exactly that: it was a trade Bill.

[Baroness Blackwood of North Oxford]

He may have said that, but I have clarified this point with the department, the Secretary of State, and others: that is not the case. The Bill is not about trade deals; it is about reciprocal healthcare. In addition to that, I have clarified that free trade agreements, including those to which we are currently party as EU members, contain specific wording to safeguard public services, including the NHS. As we leave the EU, the UK will ensure that future agreements have the same protections. I clarified this at Second Reading and I reiterate it now: the NHS is not and never will be for sale to the private sector, overseas or domestic. If the noble Lord, Lord Brooke, would like to follow up on the points he has raised today, I would be happy to do so outside this Chamber.

I have heard the concerns raised today and at Second Reading regarding the global scope of the powers and I will explain why the Government have drafted the Bill in this way. We believe that the reciprocal healthcare arrangements that we enjoy with EU member states are a positive and beneficial policy. This view has been supported in today’s debate, and by both Houses. It has broad public and clinical support. Indeed, the EU Home Affairs Sub-Committee of this House remarked in its Brexit: Reciprocal Healthcare report:

“Reciprocal healthcare oils the wheels of the day-to-day lives of millions of citizens”,


and the arrangements,

“bring greatest benefit to some of the most vulnerable members of our society”.

In addition, we already have reciprocal healthcare agreements with non-EU countries such as Australia and New Zealand, other European countries such as the Balkan states, and the British Overseas Territories. These often pre-date the EU and have never been limited to Europe.

[Lord Brooke of Alverthorpe]

Do we have one with America?

[Baroness Blackwood of North Oxford]

There would be significant challenges to a reciprocal healthcare agreement with the United States, because it has a different payment system. I do not envisage one being on the cards. Having listened to the debate today, I do not believe that there is an in-principle objection to non-EU reciprocal healthcare agreements. There is, however, a concern about the nature of the powers in the Bill, to which I now turn.

As noble Lords have mentioned, Clause 1 gives the Secretary of State a new power to make payments, and to arrange for payments to be made, to fund healthcare abroad. Currently there are limited domestic powers in relation to funding healthcare abroad so at the moment non-EU healthcare agreements do not transfer money. The payment system for funding EU reciprocal healthcare is currently set out in EU law. For this reason, if we want to enter into international healthcare agreements, whether with EU or non-EU countries, we need the powers in the Bill to extend beyond 2020 or in certain no-deal scenarios. Clause 1, therefore, enables the funding of any reciprocal healthcare agreements that the UK may enter into with EU member states, non-EU states and international organisations, such as the EU, as well as unilateral funding of treatment abroad in exceptional circumstances.

In the future, detailed provisions could be given effect domestically by regulations under Clause 2(1), which we will debate in the fifth group of amendments. This approach speaks to Amendment 3, tabled by the noble Lord, Lord Marks, with whom it is always a delight to tangle in the Chamber. He has proposed that the power in Clause 1 should be used only after regulations have been laid. I completely understand the motive behind this amendment, but there is a reason why the Bill has been drafted in this way. While it is making good progress through Parliament, it is very unlikely that the Bill will achieve Royal Assent before March. With the best will in the world, it would not be possible to lay regulations using the powers in the Bill until, we estimate, at least summer 2019. In an unprecedented no-deal situation, there may be a need to use the powers before then.

The UK has recently concluded citizens’ rights agreements with the EFTA states and with Switzerland to protect reciprocal healthcare for people living in those countries on exit day, or in other specified cross-border situations. It is good news that we would have an operative agreement in those states in a no-deal scenario, as they will guarantee healthcare for those covered by the agreements. However, in that situation, it is likely that we would need to use the power in Clause 1, alongside Clause 4, to temporarily implement those agreements to share data or make healthcare payments and associated arrangements, where required under the terms of each agreement, before laying regulations to implement them more transparently at the earliest opportunity. This may also be true of other agreements we conclude before or shortly after exit day if complete reciprocity was not agreed with EU countries. If this is the case, we will make Parliament aware of it, along with our plans to legislate for these agreements.

I have heard concerns about spending public money. This is obviously closely monitored; money spent under Clause 1 would be no exception to that rule and the usual Treasury safeguards would apply. This will be debated in more detail in the seventh and eighth groups of amendments, so I will leave that until then.

I turn to Amendment 5, in the name of the noble Lord, Lord Patel. I understand completely the basis for concern about how the power to confer functions has been drafted, so it may be helpful if I explain the intent of these provisions. The current EU reciprocal healthcare agreements are implemented in partnership with a number of NHS bodies and organisations. For example, the NHS Business Services Authority has responsibility for customer services in EU reciprocal healthcare. It prints and distributes EHICs, processes claims and recovers costs. NHS England is responsible for authorising applications for the S2 route. NHS trusts are obviously responsible for identifying visitors and making sure that they are not individually charged, and for ensuring that the UK can recover costs from member states.

It is important to note that it is not just healthcare bodies that are relevant to delivering reciprocal healthcare. For example, the DWP has a role with its responsibility for pensions and social security. When we lay regulations to implement healthcare agreements, such as those currently operating, we will need to confer the relevant functions on each organisation according to the role it plays, giving it a clear legal responsibility and operating mandate. That is the purpose of these two provisions. I note the concerns raised by noble Lords on this point and am open to discussing this issue in further detail.

Finally, I shall address Amendment 44 in the names of the noble Lords, Lord Patel and Lord Kakkar, and the noble and learned Lord, Lord Judge, which would limit the legal effect of the Bill to a two-year period after exit day. I entirely recognise the rationale behind this approach, but I have some concerns about the amendment’s potential consequences. It would mean that hundreds of thousands of people who access healthcare under these arrangements would have no certainty that their healthcare could continue two years after exit day. It would also mean that it would be difficult for the Government to enter into medium and longer-term healthcare agreements. I hope noble Lords will understand that the Government cannot support an amendment that places such uncertainty on the people for whom these arrangements are intended. However, I recognise the nature of the concerns raised by noble Lords and, as we proceed through Committee and on to Report, I want to continue working with and listening to noble Lords, on an individual and party level.

For these reasons, I hope the noble Baroness will withdraw the amendment and that the noble Lords, Lord Patel and Lord Kakkar, and the noble and learned Lord, Lord Judge, will not oppose Clause 1 standing part of the Bill.

[Baroness Thornton]

I congratulate the Minister on her summing up and answers. As these things go, it was absolutely perfect. I did not agree with a lot of it, but I commend her skills.

I thank all noble Lords who have taken part in this debate. I know it has taken almost two hours, and I knew this would be a very important debate because it is about the scope of the Bill. The noble Lord, Lord Patel, was right to put down clause stand part, because it focuses the mind—of the Government, certainly—when you are facing a clause stand part. We all knew that this was probing the scope of the Bill, which was exactly right.

I say to the noble and learned Lord, Lord Judge—just keep banging on. I agree with other noble Lords that this is very important. All of us will be reading the noble and learned Lord’s remarks very carefully, because they have given us a lot of material for how we are going to take these discussions forward. The noble and learned Lord may have used the term “carte blanche Bill”. My honourable friend Justin Madders in the other place called it the Martini Bill: good “any time, any place, anywhere”. I wanted to join in with finding different ways of describing the Bill and the experience of the noble Baroness.

The noble Lord, Lord Ribeiro, was right to draw attention to the issue of no deal and to talk about the problems of the scope of this Bill. I welcome the remarks of the noble Lord, Lord Lisvane, because he has such huge knowledge of the powers that are being talked about in this Bill. With the noble Lords, Lord Cormack and Lord Wilson, he expressed enormous frustration—from enormous knowledge, power and experience—with what we are dealing with here and how unacceptable it is. I am afraid that the Minister and the noble Lords, Lord O’Shaughnessy and Lord Lansley, have not dealt with that frustration. I take one grain of hope from the fact that the noble Baroness said she was open to discussion, and that was very wise of her. We will need to have more discussions.

I am looking forward to the future amendments in the name of noble Lord, Lord Marks, but this was a very useful amendment to put into this group. The noble Baroness, Lady Brinton, is quite right to talk about changes to NHS procurement. As we know—and I declare an interest as the chair of the procurement committee for a clinical commissioning group—European rules do rule, and that is important.

--- Later in debate ---

[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—

[Baroness Blackwood of North Oxford]

The noble Lord, Lord Marks, is very kind in giving way. It may be helpful if I clarify. The Bill is an implementing Bill, and that power can implement only an international agreement which has been entered into; it would be laid before Parliament for scrutiny under the CRaG process. That reciprocity would have to be scrutinised by Parliament.

[Lord Marks of Henley-on-Thames]

That is a helpful intervention. It brings me back to the point that all that Parliament can do under CRaG is for the House of Commons to reject the entire treaty. If there is a stage at which a Government are interested in securing a trade Bill that even a majority in Parliament may regard as deleterious to the NHS, they may decide not to throw out the treaty because that is a very strong thing to do. Although I take the view that I suspect the noble Lord, Lord Lansley, takes—that the CRaG procedures are insufficient—that merely makes the point in favour of my amendment.

We ought to be looking to the question of international healthcare agreements outside the context of the very important aim we now have of replicating EU arrangements. Taken at their worst—obviously, not if the noble Lord, Lord O’Shaughnessy, and the noble Baroness are right that these agreements will be used for wholly benign purposes for the benefit of the NHS—they could do serious damage to the NHS, which is already cash strapped. They could encourage visitors coming here to seek treatment from the NHS in competition with UK residents. They could put added pressure on a service that is already suffering from staff shortages, which will be compounded after Brexit by the additional loss of large numbers of EU doctors, nurses and vital support staff.

What the Bill needs to do, and all it needs to do, is to ensure that in the appalling event of no deal, we can attempt to salvage our reciprocal healthcare arrangements by coming to replacement healthcare agreements with our present partners. That can be simply assured by our amendment, which would leave out all the offensive unrestricted powers in Clauses 2(2) to 2(4) and substitute a requirement that regulations may be used only to the extent necessary to replicate, as far as possible, our existing arrangements.

Agreements with the rest of the world can be left for another day under clearer, more carefully constructed and constitutionally appropriate legislation, for which we will need a great deal of time to consider. I beg to move.

--- Later in debate ---

[Baroness Blackwood of North Oxford]

I offer my thanks to the noble Lord, Lord Marks, the noble Baroness, Lady Thornton, and my noble friend Lord Dundee for tabling Amendments 4 and 10, and for the opportunity to speak to our intentions for reciprocal healthcare arrangements. I also thank all noble Lords who have participated in the debate on this group.

My first point, in response to the noble Lord, Lord Marks, is that, far from going global with this Bill, we are already global when it comes to reciprocal healthcare. The UK has had reciprocal healthcare agreements with individual countries in Europe and the rest of the world since the 1950s and has taken part in EU arrangements since the 1970s. We want reciprocal healthcare arrangements with the EU after we leave, and that is the purpose behind a suite of measures that we are taking. But when it comes to non-EU arrangements, which perhaps the noble Lord, Lord Foulkes, missed in my summing up on the previous group, one of the reasons we are seeking the powers in this Bill is that currently we do not exchange money or data in non-EU reciprocal healthcare arrangements. We do not have those powers in our domestic legislation. That is why we are seeking them, so that we can strengthen those non-EU reciprocal healthcare arrangements.

The Government’s intention is to continue current reciprocal healthcare arrangements with countries as they are now in any exit scenario—deal or no deal—until 2020. The in-principle agreement that we have reached with the EU is that during the implementation period ending in 2020, all reciprocal healthcare entitlements will continue and there will be no changes to healthcare for pensioners, workers, students, tourists and other visitors, the EHIC scheme or planned treatment.

[Lord Foulkes of Cumnock]

The noble Baroness said that no money was exchanged in the case of New Zealand and Australia. So how do these reciprocal healthcare arrangements work? As I understand it, we have the same healthcare when we go to New Zealand as a New Zealander, and vice versa. Should that not be done? Why does it need the exchange of money?

[Baroness Blackwood of North Oxford]

It is done through waiver agreements.

Longer-term rights would also be guaranteed for those covered by the citizens’ rights deal, including people living in other countries at the end of the implementation period.

[Lord Foulkes of Cumnock]

The noble Baroness said that this was done through waiver agreements. If they work through waiver agreements, why can waiver agreements not work with other countries as well? They work in Serbia and Bosnia and Herzegovina, along with a number of other countries, as well as Australia and New Zealand, under current legislation. The Minister still has not explained why these extra powers are needed.

[Baroness Blackwood of North Oxford]

We have relatively simple agreements with these countries that do not allow for the level of complexity which we have within the EU reciprocal healthcare agreements, which allow for tourists, posted workers and UK pensioners who live in EU countries. We do not have that scale of agreements with non-EU countries. Perhaps we might like to explore that, as it has many benefits for people who go to those countries. However, that is yet to be explored and is part of the reason why we would be seeking those powers.

Perhaps I may continue to speak to the amendments in this group. The Government want to secure a wider reciprocal healthcare agreement with the EU following exit that supports a broader range of people such as those not covered by citizens’ rights when they move between the UK and the EU for leisure, work or study. We would then use the Bill to enable the UK to implement any future relationship with the EU on reciprocal healthcare from 2021. In a no-deal scenario we are attempting to prepare for any outcome.

I would like to speak to the points raised by the noble Baroness, Lady Finlay. She asked how people would be identified and for the details of implementation and communication with individuals regarding potential changes in circumstances. These issues will be addressed in quite a lot of detail in the eighth or ninth group, so if she will forgive me, I will not address them now. Regarding the points she raised around trade, I would hope that the assurances that I have offered from the Dispatch Box today and in writing in my letter at the beginning of this week will offer the assurance that she is seeking that the position I have laid out is the position of the Government and it is not going to change.

Finally, regarding her question about the devolved Administrations and our consultations with them, we are very pleased to have received a legislative consent Motion from the Scottish Government and agreement from Northern Ireland, and we are in advanced discussions with the Welsh Government. I hope to be able to report back on that point in more detail on Report and I will be happy to continue discussions with her on it.

I will go into a little more detail on our offer to the EU, EEA and Switzerland. It is to maintain reciprocal healthcare agreements so that nobody faces sudden changes to how they access healthcare. Maintaining the current arrangements as they are now is possible only with agreement from other member states. I can reassure noble Lords that we have commenced formal discussions on this issue. The two SIs we have introduced under Section 8 of the EU withdrawal Act, and which I wrote to your Lordships about, afford the UK a mechanism for ensuring that there is no interruption to healthcare arrangements after exit day in those member states which agree to maintain the current arrangements after exit day. Through these instruments, the UK can maintain current EU reciprocal healthcare arrangements for countries where we have agreed reciprocity for the transitional period lasting up to 2020. These arrangements would not apply to a member state which did not agree to maintain the current reciprocal healthcare arrangements. Importantly, the SIs also provide protection for individuals regardless of reciprocity, both here and overseas, who are in a transitional situation. This would provide additional protection for people who are, for example, in the middle of treatment.

Turning to Amendment 10, I can assure the noble Baroness, Lady Thornton, and my noble friend Lord Dundee that we want a relationship with EU member states that includes reciprocal healthcare. The fact that we have introduced this Bill is evidence of that. However, I have concerns about the amendment. First, there is good reason for the convention that one does not put negotiating terms on the face of primary legislation, because that does not allow for dynamic international relations—and we are in quite a dynamic situation at the moment. Secondly, it is important that reciprocal healthcare arrangements are consistent with wider mobility arrangements between the UK and the EU, such as the rights of different groups of people to move and work. These are areas that will also be under negotiation and may have implications for reciprocal healthcare. It is necessary that we have the flexibility to make changes in response to that.

[Baroness Thornton]

I am quite happy to accept that this may be a faulty amendment—but that is allowed in Committee. Is the Minister saying that the reason for not accepting it is that it undermines the flexibility that is needed for the broader negotiation of healthcare arrangements? Of course, this is in line with our wish to limit this to being about the European Union Brexit arrangements for healthcare. As the noble Baroness knows, that is a better way forward. Putting that into the Bill would therefore not undermine any negotiations, because that is what we want to do.

[Baroness Blackwood of North Oxford]

Under a withdrawal deal, reciprocal healthcare is protected. Under the no-deal scenario with member states agreeing to reciprocal healthcare, people would be protected under the SIs. The powers in this Bill are for asymmetrical arrangements, as it were, which may arise if member states do not want to pursue reciprocal healthcare arrangements exactly as they stand, or for the negotiation of post-2020 arrangements. It is very difficult for us to predict exactly how they will go, so putting in the Bill that we will continue with the reciprocal healthcare arrangements exactly as they are now is not realistic, given that we do not know where EU legislation will go. That is not within our power and we cannot predict it.

The amendment would mean that a future arrangement provided for under this Bill would as far as possible need to conform with and replicate the current EU, EEA and Swiss model of reciprocal healthcare as it stands at exit day. There is a lot to commend the current EU model of reciprocal healthcare. It supports people to obtain healthcare if they move between countries—EHIC—and people with long-term conditions, but the amendment would be too restrictive when we think about the future reciprocal healthcare arrangements, both in a deal and a no-deal scenario. For example, in a deal scenario it is important that future reciprocal healthcare arrangements are consistent with wider mobility arrangements between the UK and the EU, such as rights people have to travel, move and work. These areas will be under negotiation and may have implications for reciprocal healthcare. This amendment would remove our flexibility to adapt to this.

On a technical point, as I mentioned, EU law in this area evolves and under proposals currently before the European Parliament, elements of the model will soon change. This amendment would prevent the UK implementing such an evolved arrangement even if there were a desired negotiating position from the UK. In a no-deal scenario, the Bill will ensure the UK can respond to all possible scenarios and complements the approach we are taking with the withdrawal Act SIs, which I have already mentioned.

--- Later in debate ---

[Lord Foulkes of Cumnock]

My Lords, there is very little I can add to what my friend the noble Earl, Lord Dundee, said. If there is not a role for the ECJ, what system will there be? If there are disputes, how will they be resolved? I would like to hear what the Minister suggests.

[Baroness Blackwood of North Oxford]

My Lords, I thank the noble Baroness, Lady Wheeler, for moving Amendment 6 in the names of the noble Baroness, Lady Thornton, and the noble Lord, Lord Marks. I thank also my noble friend Lord Dundee and the noble Lord, Lord Foulkes, for tabling and speaking to Amendment 9. These allow me the opportunity to dwell for a moment on the importance of dispute resolution in the context of the Bill.

I am sympathetic to the spirit of these amendments and agree that it is of great importance that the Government establish robust dispute resolution in future healthcare agreements. We have every intention of being transparent and accountable as this develops. There are a number of ways in which dispute resolution might be approached in future reciprocal healthcare arrangements, but the majority would not require or benefit from regulations under the Bill. Dispute-resolution mechanisms that apply between two international parties should be set out in the agreement itself rather than in domestic regulations, since such regulations cannot bind another country’s Government. These regulations would be used to make any necessary domestic provisions for the agreed dispute-resolution mechanism.

I would, however, like to give further reassurance on the Government’s intention for future dispute-resolution mechanisms. There are different options for dispute-resolution mechanisms and it will be important to discuss these as part of future negotiations with other countries or the EU in respect of a future relationship.

To give some further context, as has been debated, the primary mechanism for resolving disputes on the withdrawal agreement is through consultation at the joint committee with the aim of reaching a mutually agreeable resolution. If parties are unable to resolve a dispute in the joint committee, either party can request the establishment of an independent arbitration panel to resolve the dispute. Prior to this, the parties can also agree to refer the dispute to independent arbitration. Future agreements for reciprocal healthcare may therefore seek to set out similar dispute mechanisms, but this is all subject to negotiation on an international rather than domestic level. This would be the case in a no-deal scenario as well as in a scenario post 2020.

In particular, noble Lords raised the point about clarity over the role of the ECJ in any future agreement with the EU. This is one point on which I believe the Government have been consistently clear, and I am happy to lay out our position. As we leave the EU, the direct jurisdiction of the European court will come to an end. However, as outlined in the political declaration, we have agreed that where a dispute raises a question of interpretation of EU law, the arbitration panel can refer this question to the CJEU for interpretation.

I reassure the Committee that, in resisting this amendment, the Government are in no way indicating that we do not place importance on dispute resolution; nor do we intend to conceal from noble Lords the approach that we may pursue. Instead, we resist this amendment as it would not be feasible or necessary to provide this level of detail regarding all possible dispute-resolution mechanisms in the regulations used to give effect to future negotiations and agreements. The correct place for this detail is in the international agreement itself, as I am sure your Lordships will agree.

The CRaG procedure will provide opportunity for scrutiny of those international agreements, which are legally binding and require ratification. We have been and will continue to be transparent about the agreements we reach. I am sure Noble Lords will agree that we abide by the rule of international law and take those commitments seriously. This means that we would be committed to upholding our end of any international agreement, including dispute resolution, and we would hold our partners accountable for doing the same.

I hope I have addressed the crux of the concerns raised and that the noble Baroness will withdraw the amendment.

[Baroness Wheeler]

I thank noble Lords for their contributions. It is hard to see how the ECJ will not have some kind of role in future health agreements. The contributions we have heard obviously underline the importance of dispute agreements being an integral part of healthcare agreements and the need for them to uphold the principles adhered to under the current provisions.

I thank the Minister for her response and her reassurances about transparency, accountability and future intentions. I hope she will reflect further on this important issue and provide fuller details as soon as possible on the dispute and appeals procedure and processes that will pertain. It is essential work that needs to be done and I hope we will be kept informed on it. I beg leave to withdraw the amendment.

--- Later in debate ---

[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.

[Baroness Thornton]

Would the noble Baroness mind repeating the part of her answer that referred to overlapping competences? I would be very grateful if she could do so.

[Baroness Blackwood of North Oxford]

I simply said that two amendments on devolution have been tabled, so we will be discussing that issue in a lot of detail when we reach Amendment 42.

I hope that my noble friend will feel able to withdraw his amendment.

[Lord Lansley]

I am very grateful to my noble friend. Her response has given reassurance. She is quite right to say that it will not be until such agreements are negotiated and entered into that we will have absolute clarity, but the commitment to the equal treatment principle is clear. I just hope that, equally, other countries recognise that. There is an awful temptation for them to think that healthcare is delivered in the United Kingdom on the basis of ordinary residence and that therefore a significant proportion of the citizens of those countries who go to live and work in the United Kingdom become eligible for NHS care. It might suit them to choose not to be the competent member state when it comes to the purposes of the agreement and paying for their healthcare in the United Kingdom. I hope that they will not be tempted in that direction but there is a potential discontinuity and indeed an imbalance between what we provide in the United Kingdom and what is provided in other countries. I suppose that, if I say nothing else, I should say that we should always guard against that and ensure that agreements are, as far as we can make them, properly bilateral and reciprocal. However, on the basis of the reassurance that my noble friend has been able to give me, I am happy to beg leave to withdraw the amendment.

Healthcare (International Arrangements) Bill

Baroness Blackwood of North Oxford Excerpts

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

[Baroness Brinton]

I am grateful that I am able to follow the noble Lord, Lord Lansley, because I think the point is made that this is very much a probing amendment. If the Minister gave reassurances that the contents of the amendment would be the practice followed by the Department of Health and Social Care, many of us would be reassured.

We spoke earlier about kidney patients on dialysis, but let me give another illustration of a family very close to me, who have a two year-old who requires an overnight ventilator. If they want to go anywhere outside the EEA, the cost of medical insurance for a small child on an overnight ventilator is more than the flights for the entire family—so they go to Europe. At the moment, they cannot book their summer holiday because their insurers say that they do not know or understand the arrangements, and of course we have no idea whether there will be any reciprocal arrangements. Families such as this will want access to advice very speedily if we are in the unfortunate position of a no-deal Brexit. By the way, following the collapse of the Malthouse compromise, I gather that the EU has said today that it is much more convinced that there will be a no-deal Brexit. Let us hope that it is wrong.

Although I understand the concerns of the noble Lord, Lord Lansley—the noble Baroness, Lady Thornton, may have different views—it would be good to have reassurance from the Minister that many of the things proposed in these amendments are exactly what the department will do and that it will be able to reassure the House and the wider public in the next few weeks.

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

I am very grateful to the noble Baroness, Lady Thornton, for Amendments 20 and 21. As the noble Baroness, Lady Brinton, has just said, I very much hope that I can reassure the Committee on these points. The noble Baroness is absolutely right that within the broader debate on the Bill, where noble Lords have valid concerns, we cannot forget that the Bill is being brought forward to protect individuals. These points were also raised earlier, by the noble Baroness, Lady Finlay, and the noble Lord, Lord Foulkes.

Speaking first to Amendment 20, I wholeheartedly agree with the spirit of the noble Baroness’s amendment. It is absolutely right that the Government provide individuals with relevant, timely information relating to their healthcare access after EU exit. The Government have already taken steps to inform individuals of what could happen to reciprocal healthcare in a deal or no-deal scenario. As a matter of course, we will continue to provide up-to-date information to individuals as soon as it becomes available.

The Government have issued advice via GOV.UK and NHS.UK to UK nationals living in the EU, UK residents travelling to the EU and EU nationals living in the UK. The advice provided on these websites explains how the UK is working to maintain reciprocal healthcare arrangements, but this depends on negotiations as they proceed. It also sets out options on how people might access healthcare under local laws in the member state they live in if we do not have a deal or a bilateral agreement in place, and what people can do to prepare, although we are determined that this will not happen. These pages will be updated as information becomes available. Our advice to people travelling abroad must continue to be to purchase travel insurance, which we already recommend, even though I recognise the challenge for those who have long-term conditions—in this debate, I have already expressed the challenge I myself experience.

[Baroness Brinton]

The Minister may recall that I pointed out at Second Reading that the Liberal Democrats had done some mystery shopping for travel insurance. It is not just about insurance for people who have special medical needs. Most of the insurers approached said they could not yet provide anything, because their insurance amounts would be based on whatever the final outcome is. Most of them, including very large insurers, were not prepared to tell potential travellers that they would cover them at all. The situation is much more serious and affects more than a handful of people with difficult medical conditions.

[Baroness Blackwood of North Oxford]

I am aware. This is a really challenging point. That is one of the reasons why we are determined to get the powers in the Bill, those in the SI and the best possible reciprocal healthcare arrangements through. That is one of the reasons why I am working so hard to make sure that we can strengthen the Bill as much as possible.

In addition to the point I just made, the Government are in constant dialogue with system partners throughout the health and social care system, including NHS England and NHS trusts, to ensure that the UK is prepared whatever the outcome of EU exit. I know noble Lords just had a debate on this on the previous group of amendments, so I will not take up too much time on it now. Looking to our expat communities in the EU, the DHSC and the FCO are working together to ensure that embassies and consular services can provide individuals with relevant information and support regarding their healthcare entitlements after EU exit, especially those who might need individual and specialised support.

I fully support the spirit of the amendment that the noble Baroness, Lady Thornton, tabled. I will ensure that we continue to take those actions to provide individuals with the information that they need. I hope that she has been reassured by this. If the noble Baroness, Lady Brinton, has any further concerns on this point I would be very happy to meet her and discuss detailed ways in which we can improve the service we are providing, given the situation in which we find ourselves.

Amendment 21 suggests using the Bill to offer financial support for British citizens to help them with healthcare costs should the UK leave the EU without a deal and without other agreements in place. It is important that I am clear about what support the Government can realistically offer, and why we are unable to go quite as far as the noble Baroness proposes.

The Government’s intention is to continue current reciprocal healthcare arrangements with member state countries in any scenario as they are now until 2020. However, healthcare for UK nationals who live in or visit other countries is ultimately for the individuals themselves or foreign authorities. We recognise that the UK can play an important supporting role by brokering reciprocal healthcare agreements, which we very much hope and intend to do. We have made very clear and generous offers to all countries in the EU and EEA, and Switzerland, to maintain reciprocal healthcare arrangements for the transitional period, and we will be negotiating for the period after that. This means maintaining reciprocal healthcare rights for pensioners, workers, students, tourists and other visitors in line with the current arrangements, including, as we have already debated, reimbursement of healthcare costs until 2020. But this depends on decisions by member states. People’s access to healthcare could change; we must be honest and open about that. Naturally, there is concern about what this will mean and what should be done. This is an uncertain situation and I very much appreciate that it will be difficult for people. I hope I can be a little bit reassuring about the actions we have already taken.

The 27 EU member states are all countries with universal healthcare coverage. In general, people would have good options for obtaining healthcare, providing they take the appropriate steps. After exit, and should there be no bilateral agreements in place, which we do not expect, the vast majority of UK nationals who live or work in the EU would still have good options for accessing healthcare. Depending on the country, it will generally be possible to access healthcare through legal residency, current or previous employment, joining a social insurance scheme, or contributing a percentage of income, as other residents need to. Less frequently—we have looked into this—people may need to purchase private insurance. People who return to the UK will also be able to use the NHS.

We recognise that this means a change and, in some circumstances, additional expense for UK nationals living abroad. It is to avoid this that we are offering not only to continue existing reciprocal agreements but to consider expanding our reciprocal healthcare arrangements outside the EU.

Speaking directly to the noble Baroness’s amendment, the Government will not be able to unilaterally fund healthcare for all UK citizens who live in or visit the EU. There are good reasons for this. It would be a new scheme that would cater for hundreds of thousands of people in up to 30 countries. It would place huge financial and administrative burdens on NHS bodies, assuming they made payments promptly and in-year. The technical challenges, including the risk of fraud, would be considerable. It would make it less likely that individuals would take the steps they need to, even if they were able to. It would undermine our approach with member states in negotiating reciprocal agreements. We do not think that is the right approach, but I reassure the noble Baroness that while these are difficult decisions and we cannot accept her amendment, we are taking important steps in addition to the reciprocal agreement negotiations that I have discussed.

We have mentioned the statutory instruments under the withdrawal Act that, in a no-deal scenario, can fund healthcare for people who are in the middle of treatment on exit day for up to one year. That assumes that the member state is willing to treat them and accept reimbursement; we have been discussing this. They would also enable some residents to recover costs if they are charged.

Healthcare (International Arrangements) Bill

Baroness Blackwood of North Oxford Excerpts

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

[Baroness Thornton]

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Foulkes of Cumnock]

The Minister has been very helpful and said that she will consider the points raised. Am I raising my hopes too high by expecting that the Government may come forward with some amendments on Report?

[Baroness Blackwood of North Oxford]

The noble Lord is right to expect that I will take these questions away and consider them.

[Lord Marks of Henley-on-Thames]

My Lords, I am very grateful to the Minister for assuring us that she is listening to the criticisms, that the Government have seen the point of them, and that she will consider them before Report. In those circumstances, I invite the House to accept my withdrawing the amendment. It is not enough to give assurances on how the Government intend to use the powers, for all the reasons we canvassed on Tuesday. It is important that the Government consider how far the powers need to go and how far they can be limited, in order to achieve the object that the Minister seeks to achieve—and only the object that she seeks to achieve. If the Bill comes back limited in that way, the Minister may well get a much more favourable wind when she seeks to put such a power through on Report.

I also suggest that the Minister asks the noble Lord, Lord Wilson of Dinton, whether there is now a parliamentary barrister acting as parliamentary counsel who will take the same rather tough view on the extent of powers that are taken as that consulted by him when he was a junior official. It is that kind of rigour that is necessary and must be brought to bear upon the powers.

Regarding the point made by the noble Lord, Lord Lansley, and the response by the noble and learned Lord, Lord Hope, it seems that a greater use of appropriate conjunctions, making clear when “and” is meant and when “or” is meant, would help in Clause 5 and Clause 1. A little bit of English grammar might go a long way to improving this and other legislation. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Thornton]

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

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

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

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

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

[Baroness Blackwood of North Oxford]

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

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

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

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

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

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

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

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

--- Later in debate ---

[Baroness Thornton]

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

[Baroness Blackwood of North Oxford]

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

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

[Lord Lansley]

I am grateful to my noble friend and to all noble Lords who have taken part in this short debate. I thought it was very constructive and I am especially grateful to my noble friend Lord O’Shaughnessy for his support for my two amendments. I thank the Minister for her willingness to think about these issues positively and constructively. We will return to them on Report and I look forward to that. On the basis of her helpful assurance, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Blackwood of North Oxford]

My Lords, I am grateful to the noble Baronesses, Lady Jolly and Lady Humphreys, for Amendments 30A and 30B, and to the noble Baroness, Lady Wheeler, for speaking to Amendment 42 on behalf of the noble Baroness, Lady Thornton, and for the opportunity to address this important issue of engaging and working with the devolved Administrations. As we take the Bill forward at pace, we endeavour to do so in a way that is collaborative and respects the devolution settlement and the conventions for working together.

To that effect, the contribution from the noble Lord, Lord Hain, was rather disappointing in implying that the Government have anything but the highest regard for the role of the devolved Administrations in this matter. Indeed, as the noble and learned Lord, Lord Wallace, described, the department has had, and continues to have, constructive discussions both at ministerial and official levels with all the devolved Administrations, on the Bill and on the underlying policy.

As your Lordships have already noted, the regulation-making powers in this Bill provide us with a legal mechanism to implement international agreements into domestic law for the benefit of UK nationals; this is a UK competence, but we recognise that in some parts of the Bill, powers may be used in ways which relate to devolved matters; namely, the domestic healthcare elements. With that in mind, as my noble friend Lord O’Shaughnessy has said, we are delighted that the Scottish Parliament has granted the legislative consent Motion to the Bill. We have had positive and constructive engagement with colleagues in Northern Ireland’s Department of Health and in the Northern Ireland Office, and we are grateful for their support and their agreement to ensure that the Bill applies and extends to Northern Ireland.

We are working very closely with colleagues in the Welsh Government to secure their support for a legislative consent Motion, and to that end, as the noble and learned Lord, Lord Wallace, will I hope be pleased to hear, we will be introducing a government amendment on Report which places a statutory duty to consult with the devolved Administrations, where regulations under Clause 2 would make provision that would be within the legislative competence of the devolved Administrations.

Furthermore, I confirm that we have now agreed a memorandum of understanding with the Welsh Government to accompany the amendment. This MoU sets out how we intend to work with each other, and how the UK Government intend to work with all the devolved Administrations in respect of this policy area. In response, we expect the Welsh Government to lodge and support a consent Motion in the Welsh Assembly very shortly.

We have also been working to secure the support of colleagues in both Northern Ireland and Scotland to the terms of that memorandum of understanding. We hope that colleagues in both of those Administrations will agree to the measures provided for in the MoU, following some very recent final discussions and changes with the Welsh Government. The MoU sets out a pragmatic and mutually beneficial working relationship to ensure that the devolved Administrations will continue to have a vital role to play in delivering reciprocal healthcare for the benefit of all UK citizens. In addition, it will enable devolved Ministers to set out their views at an early stage of reciprocal healthcare policy formation. Where they relate to devolved matters, we will share the draft regulations we intend to make under Clause 2 with the devolved Administrations before they are laid.

This agreement is both pragmatic and practical, allowing us to move forward in a collaborative way. I thank my colleague, Stephen Hammond, the Minister of State, who has taken the lead on this engagement, and acknowledge the positive relationships that he has sought to build with his counterparts in the devolved Administrations. He has been speaking to them this very week. We consider that amendments to the Scotland Act 1998, the Government of Wales Act 2006 and the Northern Ireland Act 1998 would be outside the scope of regulations made under this Bill, and it would therefore be unnecessary to place a consent requirement in the Bill in this regard, but the UK Government are committed to working closely with the devolved Administrations, now and in the future, to deliver an approach that works for the whole of the United Kingdom.

I hope that now that I have reported these positive developments, the noble Baroness will be moved to withdraw her amendment—

[Lord Hain]

I am grateful to the Minister, and reassured by what she has said. Perhaps I will withdraw the tone of some of my earlier remarks, which were made without knowing what she was going to say.

I ask the Minister to bear in mind, in terms of advice to Whitehall officials working on Brexit legislation of this kind, that it is not an accident that these extra consultative arrangements she is now describing were not in the original Bill. This has been true all the way through the Brexit process, and I am afraid that when I said that it seems to be in the DNA of Whitehall, it is as though the default position is that these consultative rights are not put on the statute book. I ask the Minister to use what influence she has with the rest of the ministerial team to say that this must not happen again, in any other legislation.

[Baroness Blackwood of North Oxford]

Part of the reason that this amendment has come at this stage is because it has been part of a negotiation, and we wanted to have agreement with the devolved Administrations to ensure that it was in a manner which suited them. That is why it has been part of the process: because it was in agreement and in consultation, rather than us putting it in at the beginning and then consulting afterwards. I hope that as the result of that discussion and agreement, I have reassured—

[Lord Wallace of Tankerness]

I acknowledge that the Minister said that an amendment will be brought forward. That is very welcome. Is there anything technically defective with Amendment 42 and is she going to accept it?

[Baroness Blackwood of North Oxford]

We need to bring forward the clause which we have agreed with the devolved Administrations. It is appropriate to do that but I thank the noble and learned Lord for his intervention and, on that basis, I hope that the noble Baroness will feel free to withdraw her amendment.

[Baroness Humphreys]

I thank the Minister for her clarification and the excellent news that the memorandum of understanding has been signed. I seek assurance from her that this matter will be reported on, or an amendment put forward on Report, so that we can hear exactly whether the Welsh Government have completed the LCM process. I thank her very much and I beg to withdraw the amendment.

--- Later in debate ---

[Baroness Wheeler]

My Lords, I listened carefully to the strong arguments put forward by the noble Lord, Lord Marks, on this issue, and I await the Minister’s response. We have every sympathy with the intention behind the amendment, and the noble Lord’s frustration that the House can either accept or reject a statutory instrument but cannot amend it, while parliamentarians can and often do take note of or reject Motions. However, Parliament is ultimately at the mercy of the Government to withdraw regulations and bring forward a revised draft, which may or may not adequately address the concerns that have been expressed. Fatal Motions are quite rightly used rarely, in exceptional circumstances.

The noble Lord, Lord Marks, says this is a probing amendment. However, I fear that, in this circumstance, it would be counterintuitive to the Bill’s primary objective of implementing reciprocal health agreements after Brexit. As my noble friend Lady Thornton said on Amendment 33 in an earlier group, time is not on our side, and I fear that the approach contained in this amendment would lead to delays in implementing reciprocal health agreements. In the event of no deal, when millions of British citizens will lose their current access to healthcare treatment overnight, any delay while Parliament debates and considers draft regulations would be catastrophic. Obviously the delay that would occur from the proposals that the noble Lord, Lord Marks, suggests would have to be taken into consideration in any future changes, and would certainly need to be discussed.

[Baroness Blackwood of North Oxford]

My Lords, I thank the noble Lord, Lord Marks, for suggesting in Amendment 32 an approach to the important issue of appropriate levels of parliamentary scrutiny, and for clarifying that this is a probing amendment. The Government clearly recognise the importance of appropriate levels of scrutiny in this Bill and the secondary legislation made under it. Obviously, the hallmark of an effective and responsible parliamentary system is the process by which we draft, consider and test legislation.

During this debate, I have listened very carefully to your Lordships and the views expressed on the affirmative resolution procedure. This is an interesting proposal by which we could consider draft legislation. While the Government support the spirit of the amendment and agree that appropriate scrutiny is important, we have questions about this approach.

It is vital that we can make regulations that allow us to respond appropriately to a variety of possible scenarios arising from not just the UK’s exit from the EU but any situation where we would need to implement regulations, where this Bill might be needed quickly and where it is required for a comprehensive international agreement. Such an approach for scrutiny would, we believe, increase the time taken to develop and lay regulations, and this may have quite a significant negative impact on our ability to bring forth timely regulations to provide healthcare arrangements to support hundreds of thousands of individuals who rely on these provisions—perhaps in a case which may be considered an emergency.

Healthcare (International Arrangements) Bill

Baroness Blackwood of North Oxford Excerpts

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

[Viscount Bridgeman (Con)]

My Lords, I am privileged to follow my noble friend Lord O’Shaughnessy, and I am sure that Peers from all sides of the House will have been impressed by the thoughtful letter which the Minister has sent to us all. In it, there are a number of concessions, which will be subject to later amendments in this debate. The insertion of a sunset clause is a valuable safeguard, as are the requirements that arrangements are limited to a public authority, and the statutory duty to report to Parliament on an annual basis. All of these are important concessions. Finally, on the Henry VIII clause, the Minister’s letter refers to removing the powers in the Bill to make regulations containing consequential amendments to primary legislation. Individual healthcare waits for nobody.

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

My Lords, I am grateful to the noble Baronesses, Lady Thornton and Lady Jolly, and to the noble and learned Lord, Lord Judge, the noble Lord, Lord Marks, and the noble Earl, Lord Dundee, who I am sorry could not be with us today, for giving me the opportunity to deal with the important matter of the global nature of the Bill. We have already had a good deal of debate about this during our progress on the Bill, but it is a pleasure to return to it today yet again.

It is important that the Government explain why we believe it appropriate to seek powers which are global in nature. As I mentioned in my response in Committee, the EU Home Affairs Sub-Committee of this House, which is very wise, remarked that:

“Reciprocal healthcare oils the wheel of the day-to-day lives of millions of citizens”,


and brings the,

“greatest benefit to some of the most vulnerable members of our society”.

I am grateful to noble Lords from across the House, not only in the debate today but during the progress of this Bill, who have been clear that there is widespread cross-party support for the current EU arrangements, and for providing the people who rely on these arrangements with the assurance that the Government are taking all the necessary steps to support them in these uncertain times.

We clearly all support the arrangements we have with the EU. It therefore does not seem logical to preclude the possibility of seeking new arrangements or strengthening existing ones outside the EU. Where the Government have a good policy in one place, it seems logical that we should want to extend it to others. Reciprocal healthcare agreements promote tourism and facilitate economic exchange and growth by enabling people to study, travel and work abroad without worrying about their ability to access healthcare, or the cost of doing so. As we have discussed in our debates on this issue, reciprocal healthcare arrangements are particularly important for older people, people such as me with chronic conditions, or people with disabilities, for whom access or costs can be a genuine barrier to travelling.

Reciprocal healthcare agreements enable people to travel overseas for planned treatment, which enables patient choice. One of the genuine benefits of the current EU arrangements is to enable mothers to travel to a home country to give birth close to their families and support networks. That is available only to EU citizens at the moment, not to those from other countries who live here. Our existing arrangements with the EU enable around 1,350 UK residents to receive planned treatment or maternity care in another EU member state. We do not want to be forced to limit choices only to EU countries in the future.

Reciprocal healthcare agreements can also help to support international healthcare co-operation through fostering closer working relationships between countries and states. We can be proud that the UK is a prominent voice in the global healthcare community and is a key driver in global attempts to raise standards of patient safety. We could help to further drive that agenda through developing even stronger relationships with our close partners. I have heard the concerns raised by noble Lords about the costs of these arrangements. Reciprocal healthcare agreements enable countries to reimburse one another on a fair and transparent basis. Noble Lords, particularly the noble Lord, Lord Foulkes, have queried why we cannot simply rely on waiver agreements. Fair reimbursement is the key reason why. Without this Bill, we would be restricted to waiver agreements outside the EU without a way to establish fair and transparent payment and cost-recovery mechanisms.

Agreements with other countries predate the EU and have never been limited to Europe. This is one reason why the concept of restricting the Bill to the EU does not make sense. We have agreements outside the EU now and will continue to have them in the future. The noble and learned Lord, Lord Judge, and my noble friend Lord Ribeiro raised the matter of scope—the countries which the Bill would apply to. As Clause 4 sets out, data can be shared only in accordance with the GDPR and our data protection regulations. This means that no reciprocal healthcare agreement could be reached with a country that does not meet data adequacy standards. Over and above that, as my noble friend rightly noted, this scope would be further narrowed by the need to agree reciprocal healthcare arrangements only with countries that have a compatible healthcare system. This would mean that countries such as Venezuela, raised by the noble and learned Lord, Lord Judge, would simply be out of scope for an international healthcare agreement. Safeguards built into the Bill would be in place.

I make it clear that I have heard the concerns raised at Second Reading and in Committee about the global scope of the Bill and the breadth of the delegated powers. We have taken considerable steps to address the concerns about the breadth of the powers—the root cause of the concern about the global scope. As has already been referred to, we have tabled a large package of concessions, which I worked hard to try to deliver. The first was to remove the consequential Henry VIII powers; I am taken by the terminology for this now being a “Blackwood amendment”. We have limited the ability to confer functions to public bodies. We have provided greater parliamentary scrutiny over regulations relating to data processing and greater transparency over the financial aspects of future reciprocal healthcare policy in the form of an annual report. I hope that this reassures the noble and learned Lord, Lord Judge. We have placed a statutory duty to consult the devolved Administrations where regulations make provision within devolved competence. Finally, and very significantly, we will sunset two of the three regulation-making powers at Clause 2, so that they can be exercised only for a period of five years after exit day. This final amendment means that it is not possible for the Secretary of State to set up any kind of long-term scheme to unilaterally fund mental health treatment in Arizona or hip replacements in Australia, as the DPRRC proposed. In tabling these amendments, we have limited the delegated powers and therefore the scope of what can be done under the Bill around the world. We have also provided additional parliamentary scrutiny mechanisms and greater transparency.

During the debate on Amendments 1, 2, 11, 12, 13, 27, 28 and 29, from the noble Baronesses, Lady Thornton and Lady Jolly, the noble and learned Lord, Lord Judge, and my noble friend Lord Dundee—who cannot be in his place—I have not heard any concerns raised on the fundamental principle of reciprocal healthcare in countries outside the EU. Rather, I have heard the need for reassurance that in implementing agreements with other countries we seek to appropriately cost such arrangements, protect the NHS, and ensure that those countries which we strengthen or make new agreements with have appropriate healthcare systems and are able to process data appropriately. We are firmly committed to all these principles.

When the Bill was debated in the other place, questions were raised concerning the possibility of a reciprocal agreement with Guernsey, which is something we will need to look into following EU exit. This was seen as a positive possibility of the Bill; it is just one example of how our relationships might evolve and how the Bill can offer people new opportunities which they are currently denied under our legislative framework. If the scope of the Bill is limited to matters relating only to EEA countries and Switzerland, the Government would be unable to implement a reciprocal healthcare agreement with countries such as Guernsey where we are able to reimburse one another fairly. We would also be giving up the opportunity to support people, to bring them confidence and comfort outside the EU.

As the UK considers its relationship with the rest of the world, it is appropriate to take this opportunity to consider strengthening our existing agreements while exploring possible agreements with other countries. The powers under this Bill allow us to fund healthcare overseas to support UK nationals who live in, work in, study in, want to visit or give birth in other countries, while ensuring that we also have appropriate scrutiny powers within this Bill. They also allow us to extend similar opportunities to overseas nationals to use the NHS funded by their own country, making the NHS more sustainable and fit for the future. This is what we would be giving up with these proposed amendments.

There has been much debate in this House and outside it about whether there should, in fact, be two separate Bills: one to provide for implementing agreements with EU, EEA countries and Switzerland, and the other at a later date to provide for countries outside that group. I believe that this is the intent of Amendment 4, in the name of the noble Lord, Lord Marks. That would not be an effective use of parliamentary time; it would prove a barrier to the development and implementation of policy in this area that is clearly in the interests of the people whom I have already discussed. I am also not clear how different a different implementing Bill would look, as it would simply be for the implementation of international healthcare agreements and would be rather similar, whether they are for the EU country or for a country in another part of the globe. It seems to be doing the same work twice.

With the Bill, we seek to ensure that we have an implementing mechanism for reciprocal healthcare now and into the future. While it may be appropriate in other policy areas for the Government to seek new primary powers to implement specific, individual international agreements, it is simply not the case with reciprocal healthcare agreements. These agreements are not far-reaching in nature and are very limited in subject matter: they are about reciprocal healthcare. As has already been discussed, the Government already rely on the royal prerogative to enter into these agreements with other countries. This Bill is simply a smarter implementing mechanism for these agreements.

I also have concerns that Amendment 4 risks our ability to effectively implement a future relationship with the EU. Recognising the broader benefits of reciprocal healthcare, we want a long-term relationship with the EU but, as with any area of policy, we must have flexibility as to how we negotiate with the EU and how we arrange our broader relationship with it. EU law evolves and, as we discussed in Committee, there are proposals currently before the European Parliament that would mean that elements of that model might change in the near future. This amendment would prevent the UK from implementing that evolved arrangement even if that was the desired negotiating position of the UK. If we put this on the face of the Bill, we would have no flexibility on how we would do that, including agreements already concluded with Switzerland and the EEA and EFTA states. The noble Lord himself acknowledges in his amendment that flexibility is needed, but through this amendment that flexibility would be difficult to apply in practice.

In relation to all the amendments in this group I firmly believe that, in pursuing future reciprocal healthcare policy with close partners outside the EEA and Switzerland, the Government are providing hope and opportunity to people. Our colleagues and friends in the other place overwhelmingly supported this endeavour. We have introduced significant restrictions on what this Bill can do globally. However, I regret that these amendments would prevent us from being able to look to the future and embrace an opportunity for EU exit. It would be a great shame to miss that opportunity.

I recognise the valuable contributions from many Members of the House on enhancing and improving many elements of this Bill; I thank them for the time that they have given me, but I am unable to accept these amendments. I hope noble Lords will feel able not to press their amendments on that basis.

[Baroness Thornton]

I thank the Minister for her remarks and for the attention that she has paid to this matter all the way through. Everybody appreciates that enormously. In a way, she has made my argument for me, as has the noble Lord, Lord O’Shaughnessy, because nothing in the Bill says that healthcare agreements have to be reciprocal. In a way, that proves that we do not need an international healthcare arrangements Bill: we need a European Union-EEA healthcare Bill to deal with reciprocal arrangements and do the job that we have in front of us.

I do not accept the argument put by the noble Lord, Lord O’Shaughnessy, tugging at our heartstrings, about the human consequences of this. Actually, there is nothing to stop the Government bringing forward a global healthcare Bill. I am absolutely sure that the Minister and her colleagues, with the help of the noble Lord and others, could get this into the Queen’s Speech in two months’ time, when we could have all these discussions about how it might work. He said that we do not have any disagreements in principle about this. Actually, we do not know whether we have any disagreements in principle about international healthcare because we have not had that discussion: that is the discussion we would have if we were dealing with a Bill that was being consulted upon, going through pre-legislative scrutiny and all those other things that we have been arguing need to happen if we are to have a Bill of the scope that the Minister and her party wish to have.

I thank the noble and learned Lord, Lord Judge, the noble Lord, Lord Marks, the noble Baronesses, Lady Brinton and Lady Jolly, and my noble friends Lord Foulkes and Lord Judd for their support. In particular, I thank the noble Lord, Lord Wilson, who, in his brief remarks got the argument absolutely right yet again. As I was preparing for this, I looked at the agreements we have with Australia and New Zealand, for example. These things are complicated—of course they are— and in a way that is why they deserve and need further consideration. I fear that we are not convinced by the Minister’s arguments and I would like to test the opinion of the House.

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[Lord Hope of Craighead (CB)]

My Lords, I think that the noble Lord is right in saying that we are establishing a precedent, but I have been looking at the word “example”, and wonder whether the Minister has examples of this kind of legislation being used elsewhere. I cannot think of any. I examined the withdrawal Bill, which was very wide-ranging, and as far as I can recall this phrase does not appear in it even though it contains many provisions about delegated legislation. It would, therefore, be helpful to me if it was demonstrated that this is not the kind of precedent that has been described. In general, however, I congratulate the Minister and her Bill team on going a very long way to meet our objections in later parts of the Bill. I am, however, worried about this bit of it and would like to be reassured.

[Baroness Blackwood of North Oxford]

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

[Lord Marks of Henley-on-Thames]

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

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Moved by

[Baroness Blackwood of North Oxford]

6: Clause 2, page 2, line 1, leave out “on the Secretary of State or on any other person”

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Moved by

[Baroness Blackwood of North Oxford]

9: Clause 2, page 2, line 8, at end insert—
“(6) No regulations may be made under subsection (1)(a) or (b) after the end of the period of five years beginning with exit day.”

[Baroness Blackwood of North Oxford]

My Lords, the Bill’s delegated powers and their global application have been a source of spirited debate since this Bill’s introduction, and noble Lords have rightly given considerable scrutiny to this matter. A number of amendments were tabled in Committee, including those by the noble Baronesses, Lady Thornton and Lady Jolly, the noble Lords, Lord Patel, Lord Kakkar and Lord Marks, and the noble and learned Lord, Lord Judge. This issue has concerned Peers across the House. I am pleased to say that the Government have listened carefully and tabled an amendment that significantly curtails the scope of the delegated powers in the Bill.

Amendment 9 directly addresses the concerns raised by restricting the exercise of the delegated powers, and, as we have already discussed, limits the global scope. The Bill is intended to support the implementation of comprehensive reciprocal healthcare arrangements with countries within and outside the EU, and to implement possible future partnerships. It was drafted to fulfil this purpose in a number of different scenarios, and that remains the Government’s intention, but we have listened closely to the points raised by Peers both inside and outside of this Chamber, as well as to the views of the DPRRC and the Constitution Committee, and concluded that the regulation-making powers that can be used to set up schemes for unilateral healthcare overseas should be time-limited.

The powers in Clause 2(1)(a) and Clause 2(1)(b) would primarily be needed, in the event of a no deal, to mitigate any detrimental effects of a sudden change in healthcare access for UK nationals living in the EU. These powers would be required in the event that reciprocal arrangements are not in place. Our aim remains to reach an agreement on reciprocal arrangements, but as a sensible Government, we need to plan for all eventualities.

In the unprecedented event of leaving the European Union with no deal, we would need to have the option of establishing support mechanisms for people in exceptional circumstances where there would be a serious risk to their health should any member state not agree to maintain reciprocal healthcare. However, we have listened, and want to ensure that while the Government have the ability to provide for people in this unprecedented time, we are still respectful of the constitutional roles of Parliament and the Executive. In response, we feel that the delegated powers that implement healthcare arrangements outside of reciprocal healthcare agreements with other countries should be sunsetted.

During the five years before the sunset, we will retain the flexibility to deal with exit scenarios using regulations under Clause 2(1) as appropriate. These powers can be used to offer UK nationals reassurance and certainty, which we intend through this Bill. After the sunset, making use of the regulation-making powers under Clause 2(1) would be limited to Clause 2(1)(c) only, which provides the Government with a mechanism to give effect to future complex global healthcare agreements. However, it is important to state that this amendment will mean that it is not possible for the Secretary of State to set up any long-term scheme to unilaterally fund mental health treatment in Arizona or hip replacements in Australia, as has been suggested. Of course, this is not something a reasonable Government would intend to do, but I am happy to provide that reassurance. However, we would want to remove any perceived risk regarding this power, and that is the intention of this amendment.

In tabling the amendment, the Government have sought to clarify the intended use of the important powers in Clause 2(1)(a) and (b). This represents a significant restriction of the Government’s use of delegated powers, in direct response to concerns raised by parliamentarians across this House. It also represents a significant check on the global scope of the Bill. On that basis, I beg to move.

[Lord Lansley (Con)]

My Lords, my noble friend will forgive me if I ask for a point of clarification. If Amendment 9 is passed, after the sunset clause is implemented, powers could only be made in relation to a healthcare agreement. However, Clause 3 says that a healthcare agreement can concern either healthcare provided outside the United Kingdom and paid for by the United Kingdom, or healthcare provided in the United Kingdom with another country paying. It does not require reciprocity. Is that quite the restriction my noble friend was suggesting, since it could still be unilateral, not reciprocal?

[Baroness Thornton]

I thank the Minister for tabling this sunset clause; she is quite right to do so. I had not thought of the question asked by the noble Lord, Lord Lansley, but it is a good one. However, we support the amendment.

[Baroness Blackwood of North Oxford]

I thank my noble friend Lord Lansley for his question. This power enables a unilateral scheme, so it does not require reciprocity and is intended to be used only in an emergency scenario where a group of individuals are in difficulty. That is why it is appropriate to sunset it in this way.

I thank the House for its support for the amendment and hope that the noble and learned Lord, Lord Judge, will withdraw his amendment on that basis. I beg to move.

Amendment 9 agreed.

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Moved by

[Baroness Blackwood of North Oxford]

18: Clause 5, page 3, line 38, leave out subsection (3)

[Baroness Blackwood of North Oxford]

My Lords, I now turn directly to the Henry VIII powers of the Bill. As noble Lords know well, the inclusion of the consequential Henry VIII power in the Bill has been the subject of animated debate both inside and outside this Chamber. The Government have been listening closely to these concerns in the Chamber but also in the reports from the DPRRC and the Constitution Committee. In response, we have tabled Amendments 18, 19, 20, 24 and 25, which is a significant step and addresses these concerns directly.

This group of amendments removes Clause 5(3) and amends Clause 5(4). As a result, it will now not be possible to make consequential amendments to primary legislation using regulations made under the Bill.

I want to be clear that the consequential Henry VIII powers were initially included as a future-proofing mechanism. They were never free-standing and we had envisaged using them in only a limited set of circumstances. As negotiations have not yet concluded and the terms of any agreements are not yet settled, there may be situations where it would be appropriate to amend primary legislation. This is why the power was included. We cannot rule out that we may want to amend primary legislation to give effect to a reciprocal healthcare agreement in future, and the lack of such a future-proofing mechanism limits our ability to ensure that the statute book in future is as coherent as it can be.

However, we want to alleviate any fears that we are taking powers which are not absolutely necessary in this Bill. As such we are prepared to take the significant step of removing the entire Henry VIII consequential powers in Clauses 5(3) and (4).

In addition, the Government have listened carefully to the concerns about the list of persons who can lawfully process data as a part of implementing new reciprocal healthcare arrangements under the Bill. To facilitate greater parliamentary scrutiny on this issue, the Government have tabled Amendment 20, which subjects any regulations that add to the list of persons authorised to process data for the purposes of the Bill to the draft affirmative procedure, which we have already debated. This would allow Parliament the opportunity to scrutinise authorised persons handling sensitive patient data, while equally ensuring that the Government can guarantee that future agreements are administered in the most efficient and effective way possible.

I hope that your Lordships will view these amendments, together with the other government amendments, as a genuine and significant effort to reduce the scope of powers in this Bill and respond to the concerns raised by this House concerning the use of Henry VIII powers. On that basis, I commend the amendments to the House.

[Lord Judge]

My Lords, I have already spoken warmly about the efforts by the noble Baroness, Lady Blackwood, and referred to us having a little touch of Blackwood in this House. Let it continue. I should like what has happened today to be habit-forming.

[Baroness Thornton]

I tabled an amendment in this group. First, I join the noble and learned Lords and all noble Lords in saying thank you very much to the Government and the noble Baroness for removing these Henry VIII powers, which cause so much heartache in this House—we really do not like them at all. I tabled Amendment 21 because I should like an explanation. Given that our Constitution Committee and the Delegated Powers Committee have several times said that they find the negative procedure rampant in the Bill, and that the British Medical Association has also voiced its concern about legislation being subject to the negative resolution procedure, in the interests of accountability, I need to ask the Minister to explain to the House the justification for negative procedure throughout the Bill. Should it not be subject to the same level of scrutiny as in the European Union (Withdrawal) Act, for example?

[Baroness Blackwood of North Oxford]

I thank the noble and learned Lords for their support for our amendments to Clause 5 and the removal of the Henry VIII operation within the Bill. I shall do my best to continue in the way I have started in this House.

I thank the noble Baroness, Lady Thornton, for her Amendments 21 and 23. The Government recognise that appropriate levels of scrutiny are the hallmark of an effective and responsible parliamentary system and that the processes by which we draft, consider and test legislation must be robust. It is necessary that we look at the nature of the subordinate legislation in the Bill and balance the need for scrutiny against the appropriate use of parliamentary time.

The draft affirmative resolution offers a greater level of parliamentary scrutiny and may be appropriate for particularly significant or sensitive regulations. For example, that is why the Government have agreed that that is appropriate when amending the list of authorised persons able to process data for the purposes of reciprocal healthcare. It is important to understand that, where the UK negotiates a new comprehensive international healthcare agreement, most of the important elements setting out its terms would be included in the agreement itself rather than in the regulations, made under the Bill, that implement it. The regulations giving effect to such an agreement would be much more likely to focus on the procedural, administrative or technical details, such as the types of documents or forms to be used to administer reciprocal healthcare arrangements. Evidence tabled during the course of the Bill’s passage from the Academy of Medical Royal Colleges and the British Medical Association demonstrates that the administration for current arrangements works well. The regulations made under this Bill would be likely to simply provide for the effective and efficient administration of these arrangements.

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Moved by

[Baroness Blackwood of North Oxford]

19: Clause 5, page 3, line 43, after “law” insert “that is not primary legislation”

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Moved by

[Baroness Blackwood of North Oxford]

20: Clause 5, page 3, line 45, leave out “this Act which amend, repeal or revoke primary legislation” and insert “section 4(6)”

[Baroness Blackwood of North Oxford]

I beg to move.

Amendment 21 (to Amendment 20)

Tabled by

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Moved by

[Baroness Blackwood of North Oxford]

24: Clause 5, page 4, line 3, leave out “A” and insert “Any other”