European Union (Withdrawal Agreement) Bill

Baroness Jolly Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

Moved by

[Baroness Jolly]

21: Clause 41, page 40, line 5, at end insert—
“( ) Subsection (2) does not apply to the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, nor to any regulations made under that Act.”

[Baroness Jolly (LD)]

My Lords, I will be brief. Clause 41 allows Ministers to make regulations that could alter any primary legislation that has been passed prior to the Bill. Such regulations will be made by the negative procedure, effectively giving Ministers carte blanche to do what they will to legislation that is already in statute. Many of us in the health community in your Lordships’ House were recently involved with the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which, noble Lords will remember, started life as the Healthcare (International Arrangements) Bill. A number of significant changes were made to that Bill by this House and then approved by the Commons. However, this clause could allow Ministers to revert the Bill to the original, thereby thwarting the will of Parliament, or they could at any time change any component of it, or any other Bill, with the minimum amount of scrutiny. When you think about it, its scope is really quite breathtaking.

In Committee, my noble friend Lady Brinton asked the Minister about a letter that she had left with the Government Whips’ Office and which the Minister had not seen and so was unable to answer in as much detail as usual. Since then the Minister has sent noble Lords a letter outlining the situation, for which we were all very grateful. As well as responding to the amendment, I am sure that other noble Lords will want to press the Minister on the detail of the letter, so that the Government’s intentions are on the record about any proposed changes to legislation relating to healthcare and the EU. I do not intend to press this amendment. I beg to move.

[Baroness Brinton (LD)]

My Lords, the European Union Committee report on Brexit, referring to the revised withdrawal agreement and political agreement, notes the lack of any mention of reciprocal health arrangements and says, in a section on mobility on pages 56 and 57, in paragraphs 252 to 257, that clarity was needed on how this would work. This is one of the reasons that I questioned the Minister in Committee. I am sorry, on both our parts, that the message with that question did not get through, and I thank her for the letter that she sent over the weekend. This is important because the European Union Committee says:

“There is no reference in this section of the Declaration to reciprocal healthcare, including the European Health Insurance Card (EHIC), as a means of facilitating mobility.”


It was that “means of facilitating mobility” that was absolutely critical for the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019. With your Lordships’ permission I will shorten that to “healthcare arrangements Act” rather than repeating the whole thing every time. Can the Minister explain why there was no mention of this reciprocal healthcare, and say explicitly to the House that these arrangements will stand?

Parts of the Minister’s letter were very helpful on specific points relating to those EU citizens living and working in the UK at the moment and UK citizens living and working in the EU. But that is not as broad as the provisions of the healthcare arrangements Act. That is why the committee raised its concerns, specifically using the phrase “means of facilitating mobility”.

The Minister’s letter made a rather odd assertion: that healthcare arrangements are protected by Clause 13 of the European Union (Withdrawal Agreement) Bill, which covers social security systems. Nowhere in Clause 13 is there any reference to healthcare, nor is there any such reference in the healthcare arrangements Act. More worryingly, if she is right and I am wrong, the decision to change arrangements under Clause 13 is at complete odds with the decision arrangements in the healthcare arrangements Act. Clause 13 reinserts the Henry VIII powers that were in the original healthcare arrangements Bill, and both your Lordships’ House and then the Government decided that this was inappropriate. That is why that Bill was changed. It became an Act in April.

Sections 6 and 7 of the healthcare arrangements Act set out clear routes for changes via statutory instruments and reports to Parliament. That Act is transparent and accountable, unlike Clause 13, where responsibility for such decisions is given to the Minister of the Crown and/or a devolved authority. Can the Minister confirm that any arrangements relating to healthcare would fall under Sections 6 and 7 of the healthcare arrangements Act given that they do not relate to social security? This amendment tries to make sure that we have that protection for reciprocal healthcare. I beg to move.

--- Later in debate ---

I know that the noble Baroness tabled the amendment with some of these concerns in mind. I hope that I have answered the questions that have come forward, but this is a routine power to make regulations that are appropriate in consequence of the Bill. I hope that I have answered the way the consequential amendment would be used to respond to the complexity of provisions and the legislative landscape, which we would need to respond to. On that basis, I hope she feels sufficiently reassured to withdraw her amendment.

[Baroness Jolly]

My Lords, we have had an interesting debate that has not, for the most part, been about Clause 41 or the legislation itself, but about health. I guess that that was always what would happen. I am quite happy to withdraw the amendment.

Amendment 21 withdrawn.