Healthcare (International Arrangements) Bill

Baroness Brinton Excerpts

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

[Baroness Brinton (LD)]

My Lords, I join others in welcoming the noble Baroness, Lady Blackwood of North Oxford, and congratulating her on her maiden speech. It is always slightly bizarre for a maiden speech also to be a ministerial introduction to a Bill, but she did it extremely well and set out the case. Along with my colleagues on the Liberal Democrat Benches, I may disagree with some of the things that she said, but she set out the Government’s position eloquently.

In addition to thanking the Library for its very good briefing, I want to thank the BMA for its own. One point that it makes has not been covered so far in our debate today. It says:

“It is essential that any alternative cost-recovery system introduced post-Brexit should not place an undue burden on either the NHS or on doctors or allied health professionals working within the health service”.


In view of the rearrangement of the BBC charter, whereby the BBC is taking on responsibility for the public benefit of TV licences for the over-75s, I worry that a Government in future might take the attitude that it is perfectly acceptable to offset—so I completely support the BMA in saying that it must not affect costs.

Others have spoken eloquently about the number of UK residents who hold EHICs and have received reciprocal treatment. I speak as someone who lost their father-in-law 10 years ago in France. He had the most wonderful treatment over a three and a half-week period after a brain haemorrhage, but sadly died. At no stage of the treatment, moving from a front-line hospital to a big regional hospital of excellence, was there any problem with the card or the E111 form. The only slightly bizarre thing that happened was that, after he died and all treatment was concluded, my mother-in-law received a bill for the ambulance service. It was not that she had to pay it, because if one is covered by E111/EHIC form the cost is met by the state, but every family gets a copy of the ambulance bill because it reminds them how expensive it is—and, guess what, in France there is no abuse of the ambulance paramedic system whatever.

At paragraphs 75 and 76 of the EU Committee report, Brexit: Reciprocal Healthcare, published in March last year—about one year ago—the committee sets out its concerns about making sure that negotiations should start early. It stated:

“We applaud the spirit underlying this ambition”—


of wishing to maintain reciprocal healthcare arrangements—

“but it is difficult to square it with the Government’s stated aim of ending freedom of movement of people from the EU”,

which is of course symptomatic of the principle of reciprocal healthcare. It went on to state:

“More generally, reciprocal healthcare arrangements will only be achieved by agreement between the UK and the EU. The Government has not yet set out its objectives for the future UK-EU relationship. We … urge the Government to confirm how it will seek to protect reciprocal rights to healthcare of all UK and EU citizens post-Brexit, as part of any agreement on future relations”.


It is worth noting that, 52 days away from 29 March, we are still not clear about what the UK wants from the arrangements. We seem to be going back to the negotiating table. I suspect that that explains what the noble Lord, Lord O’Shaughnessy, said about the sparsity of information. It is almost as if Ministers are saying, “Trust the Government, because we don’t quite know yet where we are”.

Some of the points made later in the EU Committee’s very good report give a signpost to where we might be. Chapter 6, on reciprocal arrangements, private healthcare and insurance, talks about contingency planning for the S1 and S2 arrangements and the EHIC. I will not dwell on those, because colleagues have mentioned them, but I remain concerned about arrangements with insurers. The chapter’s final conclusions state:

“Time is now short for the Government to provide much-needed clarity to the insurance industry to help with planning, particularly for multi-trip travel insurance policies that will include the period beyond March 2019”.


It goes on to say:

“There will be consequences not just for the insurance industry, but for tourism and individual travellers. While the industry might derive some benefit should it be required to play an expanded role in providing cover, we recommend that any move for greater reliance on private medical insurance by UK citizens travelling within the EU post-Brexit be subjected to careful scrutiny, particularly in terms of the further regulatory oversight that might be needed to ensure that patients and consumers are treated fairly”.


In November last year, my noble friend Lord Bruce of Bennachie asked the noble Lord, Lord Bates, about the arrangements and advice that would be provided to UK residents planning to book a holiday in an EU member state commencing after the end of March 2019. The noble Lord, Lord Bates, said, in summary, that he did not have details, but went on to say:

“The Government continue to strongly encourage all British nationals travelling abroad, including within the EU, to take out comprehensive travel insurance that covers their personal circumstances and meets their needs. In the unlikely event of no deal, travel insurance policies will remain valid”.—[Official Report, 1/11/18; col. 1424.]


Last week, my honourable friend Tom Brake, who is the Liberal Democrat Brexit spokesman in another place, reported that we had done some mystery shopping for travel insurance in the preceding week, in January 2019. Of the seven travel insurers spoken to, only two firms said that insurance would be paid out as normal in the event of a no-deal Brexit. Three said that they did not know what would happen if a no-deal Brexit came into force. Most worryingly, two of the companies said that holidaymakers would not be covered in this event because they had not yet got any policy on it. That is why I am really worried by the lack of detail in the Bill, which is symptomatic of the lack of detail and discussions going on with the industry itself.

I will briefly touch on Northern Ireland. The noble Lord, Lord Foulkes, has spoken about the importance of arrangements elsewhere in the union. The arrangements that pertain in Northern Ireland at the moment are absolutely not the same as elsewhere in the European Union. Joint health services allow patients to get medicine at any pharmacy, north or south of the border, irrespective of the location of the GP responsible for the prescription. Ambulances on both sides of the border are currently free to travel across it to attend emergencies. People across the island of Ireland are allowed to receive radiotherapy at a new £50 million centre for cancer patients from both sides of the border in Derry. It is important that that specialist provision is available, yet there is no pathway for managing these difficult cross-border issues in Ireland. Will these current arrangements remain in place after 29 March, in the event of a no-deal Brexit? Even in the event of a deal, will it continue if there is no final agreement? Are specific discussions going on between the Republic, Northern Ireland and the UK Government to ensure that there are no cliff edges for residents of Northern Ireland or the Republic? This is not just holidaymakers, or a handful of workers abroad. This is a full, two-way process.

Finally, I move on to the Henry VIII powers. I am grateful to my noble friends Lord Marks and Lady Barker and to the noble Lord, Lord Foulkes, for expressing their concerns in detail. I will not repeat them, but I agree with them about the enormous scope of the Bill and of the underlying arrangements it sets in place. The noble Lord, Lord O’Shaughnessy, responded to the DPRRC saying that there were “too few constraints” on power by saying that there needed to be flexibility because of future trade deals. He will know of my concerns in this area, because I raised questions with him about the protection of the NHS when he was the Minister. One of the lesser-known pillars currently protecting our NHS is the EU directive on public health procurement. It governs the way in which public bodies purchase goods, services and works and seeks to guarantee equal access and fair competition for public contracts in EU markets.

I was concerned by the noble Lord’s mention of future trade deals. We know that the United States of America wanted, through TTIP, to use trade deals to get a foot in the door of larger contracts within the UK. In the past I have said to colleagues on the Labour Benches that we have the protection of the EU directive. I now worry that that will disappear in a puff of smoke if we have a no-deal Brexit on 29 March. I am grateful to the noble Lord, Lord Livingston of Parkhead, who answered my question on this issue in November 2014 by saying:

“Commissioner de Gucht”—


from the EU—

“has been very clear: ‘Public services are always exempted ... The argument is abused in your country’”—

the UK—

“‘for political reasons’”.—[Official Report, 18/11/14; col.274.]

Can we count on the Prime Minister’s statement that all EU law will be enacted fully in the UK and that if changes are to happen they will follow later? Can I take it from that that this EU directive will be enacted and in force on 29 March to protect the NHS from unscrupulous trade deals that we were promised would not happen?

I am particularly concerned. When I asked these questions in the past, Barack Obama was President of the United States. Under President Trump I remain even more concerned about the protection of the NHS. The Minister may say that this should not be affected, because this is about arrangements, but I worry that the scope which sits behind it might actually allow it to happen—so I look forward to hearing from the Minister.

Healthcare (International Arrangements) Bill

Baroness Brinton Excerpts

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

[Lord Lansley]

The noble Lord invites me to go on about a subject that I anticipate Report stage of the Trade Bill will discuss in considerable detail. I do not propose to discuss it now, if he will forgive me, because this is a wide debate that raises broader issues that will have to be addressed. Quite properly, they might be better addressed in the Trade Bill, which is actually about large-scale international treaties that we are likely to enter into in short order. I am not aware of any proposals for an international healthcare agreement that will be presented in the form of a treaty that we will have to ratify in any immediate timescale. I would rather think about it under those circumstances.

I will say one more thing about sunset clauses. Because of their nature, I am rather sympathetic to the idea that, if we know legislation has a limited shelf life, we should put one into the legislation, otherwise the temptation to go on and on will be irresistible to Ministers. But I do not understand that this Bill has such a limited shelf life. We want to enter into healthcare agreements that might or might not be agreed by December 2020; they might be agreed in 2021 or 2022. In so far as they relate to non-European Economic Area countries, they might arise at any time. There is no immediate prospect of them doing so. To have a sunset clause of this kind would be potentially unduly restrictive, especially expressed as a two-year limit, as it is.

For all those reasons, the debate has been useful. I absolutely understand its importance, because I have future amendments, as the noble and learned Lord, Lord Judge, said, about the ability to amend retained EU law and the question of whether there should be different arrangements relating to agreements that replicate an EU agreement or do something different. As my noble friend Lord O’Shaughnessy rightly said, I raised that at Second Reading and I have amendments that will allow us to debate it later. Those are practical steps where we can question the structure of scrutiny and control that Parliament will exercise in relation to these regulations. A future group that I hope we will get to this evening questions the extent of the Secretary of State’s power to pay money—to whom and how much. That is important. All of us want to set down in legislation how we think Ministers’ use of this power should be structured in the agreements they might consider with other countries. Those debates will be useful, not least in terms of the Minister’s response—which I very much look forward to.

[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.

Healthcare (International Arrangements) Bill

Baroness Brinton Excerpts

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

[The Earl of Dundee (Con)]

My Lords, I support Amendment 15, which proposes a new clause and has been moved by the noble Baroness, Lady Wheeler, on behalf of her noble friend Lady Thornton. As I indicated at Second Reading, in another place the Government may have slightly prevaricated on this issue by hiding behind the skirts of obvious current circumstances. While they say that the Bill should not prescribe a particular timetable for reporting back until new healthcare plans have come to light, they also claim that a number of reporting processes can anyway be deployed instead.

However, is there not a simple and necessary corollary to this? If we really want to increase confidence and transparency, why not just make sure that Parliament is given the relevant healthcare facts and figures at least once a year? If the Government should then wish to report additionally through other means, they are always free to do so.

[Baroness Brinton (LD)]

My Lords, I echo the points made by the two previous speakers and will just point to one further reason why having an annual report with this level of detail is important for the future of monitoring any reciprocal agreements. In 2016-17 the National Audit Office published its report on the recovery of the costs of NHS treatment for overseas visitors, which makes fascinating reading. It includes how the amounts recouped, whether by reciprocal agreement or direct payment by the patient, had increased and by which type of trust. It is clear that unless that sort of detail is monitored regularly, we will not understand the consequences of changes to reciprocal agreements. I propose to talk more about this report in the next group of amendments, but that transparency means that we need an understanding of exactly how having these agreements will work and if, as was apparent when the report was written, more than 22 trusts never reported any cases under the EHIC scheme. It shows that there is an enormous differential between trusts in how they collect money owed to the Government in one form or another.

[Baroness Finlay of Llandaff (CB)]

My Lords, perhaps I may add briefly to the very important comments made by the noble Baroness, Lady Brinton. I am concerned about not only how the data is collected in this country but how we can verify costs that may be charged to this country by other countries with which we have reciprocal arrangements. One of the difficulties with healthcare costs is the way they are calculated. There may be individual costs of bits of equipment and staff time, but then there will be overall management costs, which may simply be divided up among the number of patients or even in a more arbitrary way. I am concerned, and seek assurance from the Government, that verification procedures will be put in place to make sure that bills received by the UK fairly represent the terms of an agreement.

--- Later in debate ---

[Baroness Manzoor]

My Lords, no one can ever be 100% confident, but we are putting in place robust charging mechanisms. Each trust has an accountable person to look at how charging is working. We are working very closely with NHS organisations to ensure that, where charging needs to take place, it is done effectively and efficiently.

[Baroness Brinton]

I want to go back to the issue of the report. The noble Baroness read out a litany of different places where different items would be reported. Is there some benefit to having it all in one place? I do not know about other noble Lords, but I would be quite content if the annual ministerial Statement incorporated what is set out in the proposed new clause in the amendment—the information that parliamentarians think they want. But I wonder whether all parliamentarians, or anybody outside, would know all the different places to look for the odd sentence here and there in reports once a year.

[Baroness Manzoor]

I fully understand the point made by the noble Baroness, Lady Brinton. I always believe in a simplified place, but those are the accounting rules that we have for government and therefore they remain. We have gone the additional mile by saying that we will place on record a ministerial Statement at the end of each financial year and that this will include the areas I have indicated.

--- Later in debate ---

Moved by

[Baroness Brinton]

16: After Clause 3, insert the following new Clause—
“Cost recovery
The Secretary of State must grant funding to NHS Trusts sufficient to meet the costs associated with administering healthcare agreements under this Act.”

[Baroness Brinton]

My Lords, I am moving this amendment on behalf of the noble Baroness, Lady Thornton, and myself.

Amendment 16 seeks to tackle the difficult issue of cost recovery—which we started to debate in the previous group of amendments—and states simply:

“The Secretary of State must grant funding to NHS Trusts sufficient to meet the costs associated with administering healthcare agreements under this Act”.


I refer again to the excellent National Audit Office report, Recovering the Cost of NHS Treatment for Overseas Visitors, which looks back over the preceding five or so years. It becomes apparent on reading the report the point at which Governments and then the NHS started to seriously recover the costs which are due.

However, within that, it is very noticeable that different trusts have different abilities and resources available to collect these costs. London has 44% of EEA visitors and records 35% of the value of all EHIC cases in this country. Even within that, only 10 of the 150 acute and specialist trusts accrued half of all charges made to visitors from the EEA. So we have a very small number of very large hospitals which are expert in collecting and recovering these costs. Ten trusts were responsible for more than a quarter of the amounts, just under the EHIC scheme. As I said, 22 trusts did not report any cases under the EHIC scheme at all.

The NAO report refers to the capacity of trusts to administer these schemes. In the debate this afternoon we discussed “usually resident” and how it is defined. After further digging it transpired that in the NHS there are 32 identifiers that clerks need to go through to establish whether somebody is normally resident in the UK. So already a large bureaucracy is being added on to an A&E department or any other part of a hospital.

The NAO report has a helpful flow chart to show where the pressures come within each NHS trust in working out cost recovery. While one could wish it were otherwise, one can understand how small, hard-pressed district hospital trusts struggle to cover the administrative costs to make those decisions and then to charge.

--- Later in debate ---

[Baroness Manzoor]

My Lords, I am grateful to the noble Baronesses, Lady Thornton, Lady Brinton and Lady Finlay, for tabling Amendment 16 and providing the opportunity to address two important issues: the processes we have in place to recover costs from overseas visitors and how we support the NHS to deliver services to people covered by reciprocal healthcare agreements. As the noble Baroness, Lady Finlay, noted, there is complexity in the system, but this amendment proposes a new obligation upon the Secretary of State for Health to provide sufficient funding to the NHS to administer reciprocal healthcare agreements implemented using the powers in the Bill.

I reassure all noble Lords that the Government are committed to ensuring that the NHS is funded and fit for the future. Through the NHS long-term plan and the historic commitment of an extra £20.5 billion a year, we are working to make sure the NHS is fit for future patients, their families and NHS staff.

The noble Baronesses, Lady Brinton and Lady Finlay, raised two issues. They asked whether there will be 27 different agreements that require implementation. Our intention is to reach agreement with the EU so that there will be one agreement to implement. If agreements are negotiated with individual countries, it will depend on the content of the agreement being implemented, but I stress that we do not need new systems to implement them. We are not expecting costs to be much greater than at present. Every hard-working taxpayer plays a part in supporting our much-loved NHS, so it is only right that overseas visitors also make a contribution to the health service, whether that be individually, through the immigration health surcharge or through their Government reimbursing the treatment costs incurred.

The NHS has been responsible for delivering the current reciprocal healthcare arrangements for as long as they have been in operation and it has been sufficiently resourced to do so. Funding is distributed to NHS providers as part of general allocations. These support all the administrative costs associated with patient care, not just any costs associated with administering reciprocal healthcare agreements. That applies to clinical commissioning groups, which then apply funding to GPs.

We have robust administrative processes in place to recover costs from overseas visitors. These are managed by overseas visitor managers and their teams, who identify whether visitors are chargeable or are directly covered by an existing reciprocal healthcare arrangement.

Perhaps I may further reassure noble Lords that there are benefits for NHS providers who deliver services to those currently covered by EU reciprocal healthcare agreements. NHS providers receive an EHIC incentive payment of 25% of the tariff for the treatment provided to an overseas visitor covered by an EHIC. Trusts can reinvest these incentives in front-line services, meaning that we can continue to protect the most vulnerable in society and ensure that everyone receives urgent care when they need it. This is a scheme that we would certainly want to continue.

The Government have also made significant progress on charging overseas visitors and recouping funds where appropriate. However, as I indicated on the previous amendment, we want to go further—we are not quite there yet. Since 2015, we have increased identified income for the NHS with reciprocal arrangements by 40% and directly charged income has increased by 86% over the same period. Although we are satisfied that we are moving in the right direction, as I said, there is more to be done. That is why we are working with NHS Improvement to drive further improvements in the practice of cost recovery. A bespoke improvement team is working with over 50 NHS trusts to provide on-the-ground support and to share best practice.

I understand and commend the spirit behind this proposed new clause—we all want to ensure the best for our NHS—but it seems that it would replicate existing duties on the Secretary of State for Health. As the noble Baroness is aware, the Secretary of State is under an existing duty to promote a comprehensive health service, available to all who need the support that it provides. This duty encompasses ensuring that the NHS is funded for the services that it provides. Funding to provide treatment for overseas visitors is, and will continue to be, distributed to NHS providers as part of general allocations.

Further, I reassure noble Lords that any future reciprocal healthcare agreements that the UK implements through this Bill will be subject to thorough consideration and will need to take into account the existing duties on the Secretary of State to promote a comprehensive health service available to all who need the support that it provides.

I hope that my explanation has provided further reassurance to noble Lords that the Government are absolutely committed to protecting the NHS, and that the noble Baroness, Lady Brinton, will feel able to withdraw the amendment.

[Baroness Brinton]

I am grateful to the noble Baronesses, Lady Finlay and Lady Thornton, for their contributions to this brief debate, and indeed to the Minister for her response, even though I am somewhat disappointed by it. The point that all three of us were trying to make is that we are asking not for new processes but for reassurance that the costs will be reimbursed to trusts. As the Minister said, there is a general allocation, and one thing that we have discussed repeatedly since Second Reading is that there is a strong likelihood of substantially more non-EEA-type payments if there is a no-deal Brexit or if there are loads of different reciprocal arrangements that will make life very complex for hospital trusts and primary care providers.

As a brief illustration, currently when a non-EEA patient pays, half of it goes to the commissioner and half goes to the trust. The commissioner then pays half of it back to the trust and so it goes on. It is a complex arrangement. If we suddenly have 27 different arrangements just to cope with life after the EEA or with a no-deal Brexit, I can see that it will be very complex. It would be easy for NHS England—and, indeed, the Government—to miss trusts being unable to cope with the deluge of different arrangements they have to support.

At this stage, this is very much a probing amendment. I am happy to withdraw it this evening but I reserve the right to bring it back in the future. I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

--- Later in debate ---

[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 Brinton Excerpts

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

[Lord Ribeiro (Con)]

My Lords, this is an enabling Bill and no more. In a letter to the chairman of the Delegated Powers and Regulatory Reform Committee on 8 March, the Minister confirmed that these powers would be used only in the exceptional circumstances of EU exit. We will discover the outcome of that tonight.

In these circumstances, the regulations’ implementing powers would be subject to parliamentary scrutiny. The assurances and clear message from our debates in Committee—when the Minister was very clear, in answer to a question from the noble Lord, Lord Brooke of Alverthorpe, that reciprocal healthcare arrangements with the United States would present significant challenges because of the different payment systems and such an arrangement was unlikely—should surely be enough to satisfy those who believe that the Government still have a cunning plan to sell the NHS to Donald Trump and others.

As I said in Committee, I believe that the implementation of our international arrangements should be phased, giving priority to our overseas territories, as has been noted; our Commonwealth partners, of which Australia and New Zealand have already been mentioned; and our important international partners, perhaps excluding Venezuela and the Galapagos Islands from that list, as suggested by the noble and learned Lord, Lord Judge.

Anything enabling this to happen should be considered seriously, given the risks of what I believe is likely to be a no-deal Brexit. I do not support these amendments and I hope that the Minister will be able to come up with suggestions for how this can be implemented to overcome some of the concerns expressed from the other side.

[Baroness Brinton (LD)]

My Lords, both the noble Lord, Lord Ribeiro, and the noble Baroness, Lady Chisholm of Owlpen, are missing the point of these amendments. While this is only an enabling Bill, it increases the scope of reciprocal health agreements with countries outside the EEA and Switzerland to include trade agreements. The noble Lords, Lord Lansley, and Lord O’Shaughnessy, at earlier stages of the Bill, raised exactly this point about setting up trade agreements. We are extremely concerned, for all the reasons given by the noble Baroness, Lady Thornton; this is the sort of large change that requires considerable consultation with the public prior to Green Papers, White Papers and bringing it through the House. We should not try to rush it through as one of the Brexit Bills, which it is, regardless of what happens over the next few days. This is one of the Bills that we were told must be passed by 29 March. Increasing the scope of the Bill means that we are moving into another area that the country, let alone this House, has not had a chance to consider.

I do not believe that reducing the scope would prevent some of the agreements already made; in fact, as the Minister has said when summing up previously, a number are already available. What it does is protect the NHS from being a bargaining tool, particularly—although not only—with the United States. Until the country has a chance to have that debate, it is important that we reduce the scope.

I endorse entirely the comments made by the noble Baronesses, Lady Thornton, and Lady Jolly, the noble and learned Lord, Lord Judge, and the noble Lords, Lord Marks and Lord Foulkes. Our task is solely to replicate the arrangements that may become out of date on 1 April; it is important that we remain focused on that.

[Lord Judd (Lab)]

My Lords, I too find this amendment imperative. The Bill as it stands has some exciting prospects, which are worth looking at, but if we are to go down that road we must recognise that the implications are highly complex and potentially demanding economically. It is quite unthinkable that we should move along that road without primary legislation that has been properly considered by a wide cross-section of Britain, including the professions. It is extraordinary to bring in exciting, challenging ideas of this kind on the back of a Bill concerned with making sure that the excellent arrangements that exist within the European Union are protected.

The most imperative words that we have heard in the remarks so far—apart from the, as usual, exemplary speech by my noble friend Lady Thornton—came from the noble and learned Lord, Lord Judge, who, with all his experience, said that this is just wrong and that we cannot pass major legislation on this basis. That is exactly how I feel. To dilute our commitment to those in the European Union and, indeed, to people from the European Union living in this country—arrangements will be reciprocal—would be very unfortunate. I hope the House will warmly endorse the amendments.

[Lord O’Shaughnessy (Con)]

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

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

[Baroness Brinton]

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

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

--- Later in debate ---

[Baroness Thornton]

My Lords, this is a probing amendment to Amendment 16. I am seeking reassurance about the contents of the annual report. I very much welcome the amendment moved by the noble Baroness, Lady Manzoor, which we shall be supporting.

I realise that lists are a dangerous thing to put in a Bill. In proposing her amendment, the noble Baroness covered some of these points. However, it is very important, given the powers that the Bill contains, that information—for example under Clause 2(2)(a) and (b)—must be listed in every annual report by individual countries. We feel that proposed new paragraphs (a) to (f) in our amendment need to be contained within the annual report.

This amendment seeks reassurance that the contents of this report will be consistent with the powers that the Government are seeking in the Bill.

[Baroness Brinton]

My Lords, I support the amendment moved by the noble Baroness, Lady Thornton. Without repeating our debates at previous stages of the Bill, it would be helpful to have reassurance from the Minister that the content of the list in the noble Baroness’s amendment is exactly the sort of detail we need. It is important to reassure people on exactly how any financial arrangements for healthcare will be made.

[Lord Lansley]

Further to that point, I think following the list exactly may be the most difficult thing for the Government to do. Amendment 16 sets out to commit to a report on payments. We have healthcare agreements with, for example, Australia and New Zealand where no money changes hands. As I understand the way in which these agreements work, it would be very difficult for numbers of British citizens in Australia or Australian citizens here to be collected to be reported. The noble Baroness, Lady Brinton, asked for the list to contain exactly the sort of information we need. While the list may indicate the sort of information we are looking for, if it is not available, it is not available.

[Baroness Brinton]

Under current arrangements, the National Audit Office is able to tell us exactly the costs of the reciprocal arrangements with Europe. I am therefore struggling to understand why we might not be able to do this elsewhere in future.

[Lord Lansley]

The costs are exactly what the Government are proposing to report on. The Australian agreement, for example, does not involve payments to and fro. So costs do not arise. We have mutual, reciprocal agreements about treating each other’s citizens in our domestic healthcare system.

[Baroness Brinton]

I am sorry to prolong the point but, surely, we would be clocking up those costs in the NHS, even if they were not reclaimed.

[Lord Lansley]

The Minister may wish to advise on this. I understand that we probably do not—because there is no requirement to recover the money—whereas, under an EU agreement, we collect the data because we are required to charge the Governments who are the competent authorities for those patients.

[Baroness Brinton]

I am really sorry to prolong this point but, if we are trying to make sure that new reciprocal arrangements are effective, this is exactly the sort of data collection that we should be seeking. Even if it is not used initially, the whole point is that we want to understand the costs of each arrangement.

[Lord Lansley]

I am making a simpler point: it is no good asking for information that is not collected. There is a good reason why it is not collected. Although, this might happen in future, at the moment I do not think anybody is proposing to switch the Australian and New Zealand agreements to ones where there is reciprocal reimbursement. In this case, I do not think the information is being collected.