Healthcare (International Arrangements) Bill

Earl of Dundee Excerpts

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

[The Earl of Dundee (Con)]

My Lords, I join others in congratulating my noble friend the Minister on her very useful introduction of this debate and on an excellent maiden speech.

I welcome the Bill but I share concerns over a number of its defects. These include: inadequate parliamentary scrutiny; insufficient awareness of cost consequences; and, still left by it, the degree of uncertainty affecting United Kingdom citizens living abroad and foreign citizens living here. As my noble friend Lord O’Shaughnessy explained, it is sensible that the Secretary of State should be given wide powers. Since any particular Brexit outcome is as yet unknown, that is the best way to protect international healthcare arrangements in a Bill such as this. Thereafter, no doubt, the negative statutory instrument procedure might otherwise have been the right method for ongoing parliamentary supervision. For, as the Government already argue, by then, although not now, the focus of Parliament would be able to be on a specific post-Brexit healthcare agreement. Also, negative statutory instrument procedures are often the means of looking at regulations made under all Bills, including this one.

The alternative is to make use of the affirmative statutory instrument procedure. In this instance, does the Minister agree that we should do that instead? There are clear benefits. These are against a background of public anxiety over all post-Brexit plans and their detailed results, corresponding to a correct and increasing public desire for maximum transparency. The affirmative procedure responds to this demand. Its deployment instead of the negative procedure—against which the noble Lords, Lord Foulkes, Lord Marks of Henley-on-Thames and Lord Kakkar, among others, have warned—would therefore provide much greater reassurance that ongoing parliamentary scrutiny will be carried out in a proper and accurate manner.

As a number of your Lordships have cautioned, we might also harbour misgivings about excessive costs. So far, these may have been underestimated because meaningful budgeting has to depend upon the terms of a future withdrawal agreement—as yet a matter for speculation, not least on whether there will be one at all. In view of that, as my noble friend Lord Ribeiro emphasised, it is impossible just now to anticipate the financial burden on the NHS of British nationals who might return to the United Kingdom for treatment; equally unable to be calculated at present are the administrative costs of carrying out, as envisaged, all sorts of concordats with the European Union, with the EEA and with other countries across the world. Clearly, we hope for efficient reciprocal healthcare arrangements arising from a competent withdrawal agreement at the outset. However, although germane and even crucial to it, these still lie outside the Bill. Within its scope, conversely, is the opportunity for Parliament to monitor all expenditure and income to do with healthcare plans. Does the Minister therefore concur that reports with these details should be laid before Parliament annually?

On this issue in another place, the Government may have prevaricated slightly and hidden 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. Yet 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 relevant healthcare facts and figures at least once a year? Then, if the Government wish to report further through any other processes, they are free to do so.

Then there is the safeguarding of the reciprocal healthcare rights of United Kingdom citizens abroad and foreign citizens here. The aim is to avoid slippage and to maintain equivalence. This is the common theme of all post-Brexit challenges and obstacles, which many of us, including myself, while determined to meet and overcome them, are also regretful to have to confront at all, believing as we do that by far the best deal for the United Kingdom would be not to leave the European Union in the first place. Along with us, United Kingdom citizens living abroad will acknowledge the usefulness of the Bill. Nevertheless, at the same time, and as we do, they will recognise that for the proposed legislation to work efficiently, a robust and reciprocal deal for international arrangements has to be put together to begin with.

Meanwhile, the Bill should be improved in several respects, amended so that parliamentary affirmative procedures and annual reports can enhance supervision and transparency, and, as your Lordships have urged, with a stronger commitment of intentions to the people concerned, through a proper undertaking to those wishing to travel and who suffer long-term medical conditions. There must be a firm resolve not to short-change but to preserve reciprocal medical delivery as it is, and there must be greater clarity on the role of the European court to protect such standards as they are.

Healthcare (International Arrangements) Bill

Earl of Dundee Excerpts

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

[Baroness Thornton]

My Lords, I intend to speak to Amendment 10 in my name. I thank the noble Lord, Lord Marks, and the noble Baroness, Lady Finlay, for their remarks and questions. I agree with my noble friend Lord Foulkes—he of the suspicious mind. Do not worry, I will not break into song.

The amendment seeks to retain the current arrangements. It proposes a new clause to put the Government’s stated negotiating objective of remaining part of the EHIC scheme in the Bill. The reason for that is quite simple: 27 million of our citizens have EHICs, which cover pre-existing medical conditions as well as emergency care. Individuals with chronic illnesses—for example, those who require daily dialysis— can travel knowing that they will receive treatment on the same terms as the citizens of the country they are visiting or residing in. The Government have said that they want both UK and EU citizens to be able to continue using the EHIC scheme after Brexit. The amendment would put that beyond doubt.

Indeed, it reflects the 47th report of the Delegated Powers and Regulatory Reform Committee, which, as the Minister will be aware, has batted back to the Government and reaffirmed its view of the Bill. The report states:

“It is a skeleton Bill allowing the Secretary of State by regulations … to make provision in relation to the exercise of the power to make payments in respect of the cost of all forms of individual healthcare provided by anyone anywhere in the world … to make provision for and in connection with the provision of any such healthcare … and … to give effect to healthcare agreements”.


It goes on to say:

“We are concerned that the Brexit process has given rise to a series of Bills, of which this is the latest, containing unprecedented powers for Ministers to make law by statutory instrument”.


Neither the Minister nor her supporters have addressed why that is necessary and dangerous. They have not acknowledged the issue that this House is very concerned about.

I will mention two more things. In a recent briefing, the Association of British Insurers said that it is supportive of proposed amendments that would encourage detailed agreement with the EU to be sought in order to provide certainty for travellers with long-term medical conditions and reciprocal arrangements for pensioners in the UK and EU. Talking about the retention of current reciprocal arrangements, the BMA said in a recent briefing that it believes that,

“the UK Government should undertake every effort to retain the current model of reciprocal healthcare with the EU rather than seeking alternative mechanisms”.

I will end there but that is why we have tabled this amendment.

[The Earl of Dundee (Con)]

My Lords, within this grouping I support Amendment 10, spoken to just now by the noble Baroness, Lady Thornton.

As indicated, its objective is for current arrangements to be retained as they are. Certainly the Government would wish that in any case—and for the successful negotiation of a new healthcare arrangement to apply post Brexit.

But there are good reasons why this particular government intention should nevertheless now form part of the Bill, for its inclusion would give much comfort both to those directly affected and to all others concerned about their plight.

At the same time, its exhortation is a balanced one that is flexible without being at all restrictive. For example, the introductory words of the amendment are:

“It shall be the objective of Her Majesty’s Government”.


That does not compel the Government to achieve something which might prove to be impossible. Instead, as is only fitting within this Bill, these words properly encourage the Government to do everything they can to replicate what is already there.

--- Later in debate ---

[The Earl of Dundee]

My Lords, I will speak to Amendment 9 in this group, which, as the noble Baroness, Lady Wheeler, has indicated, differs from Amendment 6 in only one respect: through its reference to the European court. It is intended as a probing amendment.

It may have been implied that post Brexit we will not have recourse to the ECJ for arbitration or any other purpose. However, so far, that has not been clarified. Is my noble friend able to comment?

Could it be that we might come to use the ECJ for dispute resolution all the same, even if such were to be confined to reciprocal healthcare only? If not, how confident are we that, compared with the ECJ, an alternative system of arbitration will not be much more expensive—as the noble Baroness, Lady Wheeler, warns—and perhaps much less efficient? Who will the judges be? Where will adjudication take place? Will it be an open process?

If, as the Government have indicated in another place, the ECJ must keep a limited role in any case—this being for an accurate interpretation of EU law—might it then follow that it should therefore be retained more widely?

That would be the case not least if, as a result and compared with alternatives, this were to emerge as a cheaper and more convincing way for achieving competent arbitration in reciprocal healthcare disputes in the United Kingdom and the EU.

[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.

--- Later in debate ---

[Lord Foulkes of Cumnock]

My Lords, it is encouraging that on this occasion the noble Lord, Lord Lansley, and I are on the same page. We agree in relation to this. I declare my interest as chair of Age Scotland, which is concerned with the interests of older people in Scotland. Amendments 18 and 19 deal with travellers with long-term medical conditions, and pensioners. These are particularly vulnerable categories in the case of the noble Lord’s amendments. We are suggesting that the current provision in respect of healthcare for UK citizens with long-term medical conditions travelling to the EU, and for EU citizens with such conditions travelling to the United Kingdom, should remain the same. This would create an essential legal commitment for those travelling to the European Union, who would otherwise have to face astronomical insurance charges that could price them out of travelling altogether.

There may be one or two Members of this House over the age of 75. If they have tried to get travel insurance to a non-European country, I think they will have found that very difficult. The banks often give insurance as part of having your account with them up to the age of 75, but after that Age UK or Saga—I again declare my interests—may be the only two companies or organisations which can provide insurance for such older people, particularly those with long-term medical conditions, so we are in a difficult area.

The cost of overseas medical treatment varies according to the country and the type of treatment needed but the costs for those with long-term illnesses are inevitably much higher. If we do not put arrangements in place, often families will go away without some of their older relatives being able to go. The costs add up extremely quickly; as we know from countries where we do not currently have healthcare agreements, they can be thousands of pounds. As we heard in previous debates, we do not currently enjoy reciprocal health arrangements with most of the world. This means that, at the moment, the EU and EEA countries present the only realistic travel option for many people with health conditions. It is a tragedy for them that they may not have that option after 29 March.

Take those who have kidney dialysis, for example. There are 29,000 who get kidney dialysis, usually on about three days a week. At present when they travel to the EU, they need to book slots in units near where they stay. The EHIC allows them to do that, but in the event of no deal, UK citizens would be required to pay for those slots. That could cost anything between €250 and €350 for each session—something like €1,000 a week, which will be impossible for most people. The Law Society of Scotland has reported that more than a quarter of disabled adults already feel that they are being charged more for travel insurance, or simply denied it, because of their condition. That is at the moment but it would be as nothing compared with the post-Brexit scenario. The Association of British Insurers has written to all of us, I think. It is supportive of this amendment, stating that it,

“would encourage detailed agreement with the EU to be sought in order to provide certainty for travellers with long-term medical conditions”.

If the ABI supports it, I would hope that the Government will, too.

I turn to healthcare provision for pensioners. There are currently 180,000 UK state pensioners and their dependants living abroad, as mentioned earlier by the noble Lord, Lord Lansley. They are mostly in Ireland, Spain, France and Cyprus. Under the S1 scheme, the UK provides healthcare for all those British people abroad. The S1 covers not only pensioners but some others with exportable benefits, such as frontier workers and posted workers, for an initial period. It is estimated that UK state pensioners and their dependants made up about 75% of the total cost of £468 million in 2016-17.

The UK Government have said on their website that the S1 will be invalid with effect from 30 March. But the website offers no sensible advice—I hope that the Minister will—or alternatives to UK pensioners resident in the European Union, who are totally dependent now on the S1 for their medical care. British in Europe, which is the coalition of UK citizens in Europe, said:

“The maintenance of this scheme from March 30th in the event of No Deal is absolutely vital for those it covers. It is quite literally their only life-line. It is their NHS. They moved to the EU confident that they would be entitled to healthcare for life, based on this scheme”.


In fact, when I was in France last weekend, some people talked to me about it and they were deeply worried about their future. This is understandably causing alarm among all these citizens.

After Second Reading, I received an email from a British citizen living in Germany who had written to the Department of Health and Social Care. I hope that the Minister may have seen and even replied to his letter. He said:

“Any decision by the German authorities giving us a token right to stay after a No Deal Brexit would be pointless if we did not have the financial means to do so”.


I heard a pensioner in France say that she would be in difficulties in this way as well. This Brit in Germany went on to say that,

“most pensioners will have paid national insurance contributions and taxes into the UK system all their working lives. I continue to pay all my taxes into the UK. For what? Even if I could afford an extra €400-500 premium monthly for public health insurance … I should not have to”.

Of course he should not have to. He continued:

“If I am unlucky enough to require hospital or medical treatment after 29th March, the UK Department will be receiving the relevant invoices or will have to provide details of how they will be reimbursing me for my national insurance contributions”.


He has paid for it and is getting nothing in return. He said:

“Otherwise, it would just amount to the UK Government pocketing our contributions”,


and he is right on that. He also said:

“UK expat pensioners are innocent people caught in the middle of this debacle. We can’t just go out next month and top up our income if we are a bit low in funds. Please don’t play political games with people’s lives and livelihoods. If we must leave the EU”—


incidentally, as everyone knows here, I do not think that we should—

“then at the very least, please ensure Citizens’ Rights are properly protected”.

In cases where UK residents are not eligible for permanent residency, there will in some countries be potential for a voluntary opt-in to public health insurance schemes but that will vary from state to state and generally involve additional costs. In Spain, for example, there is a public health insurance policy if you have lived in that country for more than five years. However, it costs €1,900 for those 65 and over and €700 for those under 65. These are costs which British citizens in Europe do not currently incur. For them, it will be another Brexit tax. These innocent citizens will be caught out in this way because of Brexit. The Government must offer them some hope; otherwise it will be a really sorry situation.

[The Earl of Dundee]

My Lords, in this group, I support Amendments 18 and 19, which were addressed by the noble Lord, Lord Foulkes of Cumnock. As with a number of earlier amendments, here there are two specifications, each of which serves a clear and useful purpose: giving assurance without applying any onerous impositions.

In their forthcoming negotiations, the Government will clearly seek to protect current arrangements, in this case including those affecting travellers with long-term medical conditions as well as those for pensioners.

Be that as it may, incorporating these categories in the Bill would give much-needed comfort to direct participants as it would to others desirous of protecting them. If that is a positive effect, there is really no downside. That is avoided through Amendment 18, which states:

“It shall be the objective of Her Majesty’s Government”.


Post Brexit, those words will encourage the Government to replicate what already obtains without forcing that eventuality against insurmountable difficulties if any such should happen to intervene.

[Baroness Jolly]

My Lords, at Second Reading I spoke about Northern Ireland. All noble Lords will be aware that there is no Assembly in Northern Ireland, which makes for difficulties. Notwithstanding that, for the past 20 years there has been two-way traffic of patients across the Northern Ireland border. There is a raft of cross-border successes including radiotherapy, ENT, cardiology, ambulance services which operate north and south of the border and the common travel area. I do not need to underline to noble Lords that any barrier at the border would be detrimental to healthcare, especially to children and vulnerable patients.

While international agreements are for the UK Government to agree, healthcare is a devolved matter, so as powers become repatriated from the EU after Brexit, the potential for overlapping competences will increase as well as the possibility for disagreement about how health issues should be managed. The Constitution Committee recommended that the Government set out how they intend to manage overlapping competences in relation to the Bill and other policy areas. Will the Minister clarify this? The amendment also outlines that the UK Government must ensure they use as a negotiating strategy continued access to healthcare in Northern Ireland and the Republic. There is also a danger that the Secretary of State will be able to overturn any Act of Parliament in history, including Northern Ireland legislation. This is theoretical, but the Bill should be judged on what it can do, not on what the Government of the day anticipate it will do.

I have a few questions for the Minister. Within the EU, we have had peace of mind knowing that our health needs are safeguarded if medical attention is required. Does the Minister agree that if a withdrawal agreement has not been ratified by exit day it is essential that UK citizens living in Northern Ireland can continue to access medical treatment in the Republic under a healthcare agreement so that this amendment is necessary? How is that best managed? The noble Baroness, Lady Thornton, talked about a strategy. Can the Minister confirm that in negotiations with the EU the common travel area is treated as a priority for healthcare in the island of Ireland? Is it intended to create a strategy or does one exist? With whom was it negotiated? Can Parliament see it?

Healthcare (International Arrangements) Bill

Earl of Dundee Excerpts

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

[Baroness Wheeler (Lab)]

My Lords, we have pursued this matter in the Commons and this House because it is vital to be clear about how the Government will report annually to Parliament on the expenditure and income from each healthcare agreement implemented under the Act and what information will be provided. We are talking about potentially multiple and complex agreements, the costs and implications of which will not be known until the technical and operational provisions for the agreements are settled.

We have consistently been told by the Government that reporting processes are already in place. At Second Reading, the Minister assured the House that,

“all international healthcare agreements will be subject to the scrutiny route considered most appropriate by Parliament”.—[Official Report, 5/2/19; col. 1489.]

As the amendment sets out, our clear view is that a report should be produced,

“by the end of the period of 12 months beginning with the day on which this Act is passed and every year thereafter … setting out all expenditure and income”,

and the number of people treated under each healthcare agreement implemented under the Act by country. It should also detail the costs incurred by NHS trusts in administering these agreements and any outstanding payments owed to the UK.

Since it is not possible to know the detail of these healthcare agreements in advance, we cannot assess the likely costs and system implications. The detail of the impact assessment on costs is woefully inadequate. Its assessment of the annual cost of establishing reciprocal healthcare agreements of £630 million takes no account of inflation, future medical developments or fluctuations in exchange rates. Moreover, the impact assessment’s contention that the costs might even be less than the current costs is just not credible. Greater clarity on the cost of new healthcare agreements in the context of the presentation of a single report on the full range of schemes and arrangements is essential.

So far, the Government’s response has been to insist that existing reporting arrangements will provide sufficient scrutiny and detail, whether through the Public Accounts Committee, the National Audit Office, similar bodies or existing processes for reporting and scrutinising international treaties. However, none of those would provide the scrutiny and strategic overview required in the circumstances we face. The Minister has, however, provided a chink of light. In paragraph 41 of her letter to the Delegated Powers Committee, dated 30 January and published in its report of 14 February, she says that,

“the Government has heard the need for greater transparency in our administration and implementation of reciprocal healthcare arrangements”.

It also says that,

“the Government is committing to issue an annual written ministerial statement on the operation of reciprocal healthcare arrangements. This statement will be published as soon as is practicable after the end of each financial year to allow for accurate financial reporting”.

Can the Minister provide further details on this proposed statement?

For the sake of clarity and the record, the Minister commits in that letter that the statement will provide, first:

“Information on the expenditure and income of healthcare provision overseas as a whole. This would include aggregated expenditure/income for the annual year, as well as country by country sum of expenditure/ income”.


We are also promised:

“An update on the operation of arrangements. This statement could identify areas of successful operation or where arrangements are being improved to promote efficiency”.


Finally, we are promised that information will be included on:

“The strategic direction of reciprocal healthcare arrangements. This would be a statement on the future priorities for the current operation or a statement of where the UK is engaging with other countries to establish new arrangements”.


Certainly this is a step in the right direction towards the information and accountability needed, but can the noble Baroness answer some specific points concerning the Written Ministerial Statement that we have raised in our amendment?

Will it include full details of the payments made by the UK on healthcare arrangements for healthcare providers outside the UK to British citizens? Will payments received by the UK in respect of the investment costs of healthcare provided to all non-British citizens be recorded? Will the number of British and non-British citizens treated under healthcare agreements inside and outside the UK be included? Will any and all outstanding payments owed to or by the UK Government related to the provision of healthcare outside the UK be made before the passing of this Bill? Most important, as we heard in earlier amendments, can we be assured that any or all of the costs faced by NHS trusts in respect of implementing healthcare agreements will be shown, so that we can be clear not only on the costs but also that front-line staff are not having to spend additional time administering these schemes?

Our amendment would give Parliament its rightful role in scrutinising the schemes and, in particular, the Government’s delivery on collection and reimbursement. It is perfectly reasonable to expect healthcare agreements, once they have been reached, to be reported back to Parliament annually. Parliament cannot be expected to grant a blank cheque. An annual report on the costs and arrangements for the new healthcare agreements would considerably increase accountability within the systems, exploring changes in both the expenditure and the scope of healthcare provision arising from the loss of access to reciprocal arrangements after Brexit. I beg to move.

[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.

Healthcare (International Arrangements) Bill

Earl of Dundee Excerpts

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

[Lord Foulkes of Cumnock]

My Lords, I will make a couple of apologies. The first is to my noble friend Lady Thornton. She is absolutely right about our colleagues in the House of Commons anticipating this problem and the wide powers in this Bill. I accept her correction. Indeed, it was my noble friend who alerted me to the powers in the Bill and got me involved—she may be regretting it now, but I am grateful to her. I apologise also to the Minister for not being able to get to the meeting that she arranged with the noble Earl, Lord Dundee, and the noble Lord, Lord Marks. I was invited, but we had a very long Labour group meeting yesterday. I will not go into any of it in any detail whatever, because I am bound to total secrecy—but you can imagine what fun it was.

I want to deal with the distinction between negative and affirmative instruments. In my previous speech I expressed concern that statutory instruments are being used more and more, and inappropriately. Here, at least affirmative resolutions are better than negative instruments. As things stand, the Secretary of State has very extensive powers through this Bill. As the Delegated Powers and Regulatory Reform Committee said, they are of “breath-taking scope”. If all future legislation relating to the Bill were to be laid through a negative procedure, parliamentary accountability and scrutiny would be further—and substantially—undermined. Introducing the made affirmative, as per the amendment, would be in line with the majority of other legislation. Crucially, the Government could not legislate in the knowledge that they would not face parliamentary scrutiny. The Government argue that the absence of scrutiny will relate mostly to administrative actions. However, given the breadth of the Secretary of State’s powers, the negative procedure could easily be misused.

In her concluding remarks at Second Reading, the Minister, the noble Baroness, Lady Blackwood, said that she had heard,

“noble Lords’ preference for wider use of the ‘made affirmative’ procedure, which I will reflect on more as we head towards Committee”.—[Official Report, 5/2/19; col. 1487.]

We are in Committee now, so will she tell us the result of that reflection—or will we have to wait further to find out about it? The BMA echoed this stance and insisted that,

“any new powers granted to the Secretary of State are proportionate, subject to thorough scrutiny, and that all regulations are subject to the affirmative procedure in Parliament”.

I hope that we will get that assurance.

I return finally to that wonderful speech by the noble and learned Lord, Lord Judge, on Tuesday— I have quoted from it twice or three times already. He said:

“I will try not to bang on any longer”.


I will try not to bang on too long as well.

“If we had time and exit day was further away, I should propose that this Bill should be sent packing back to the Government to redraft it and produce a Bill that is constitutionally acceptable”.


“Hear, hear”, I say to that.

“That option is not open. The healthcare of our citizens in Europe, and EU citizens here, must continue and survive”.—[Official Report, 19/2/19; col. 2172.]


That is what we face. It is a gun pointed at our head: “If you do not agree to this, we are going to go out of the European Union with a bang and our people will suffer”. That gun is being put to our head. It is a pity that it is, otherwise I would support the noble and learned Lord, Lord Judge, in getting rid of Clause 5 altogether. In the meantime, all we can do is try to improve it a bit, and I hope that the Minister will give us an assurance that the statutory instruments will be of the affirmative nature rather than the negative one.

[The Earl of Dundee (Con)]

My Lords, I shall speak to Amendment 34. Reflecting concerns about the wide scope of regulations, it seeks for them to be subject to affirmative rather than negative procedures. That, in turn, would enable Parliament to exercise more scrutiny.

However, this aim should perhaps be viewed in three different contexts. The first context is reciprocal healthcare arrangements between the United Kingdom and the European Union. The second is arrangements between the United Kingdom and countries outside the European Union. The third is other possible ways and means, apart from affirmative or negative procedures, for redressing what so far may appear to be an imbalance, with too many powers given to the Secretary of State and too little influence assigned to Parliament.

On reciprocal healthcare plans between the United Kingdom and the European Union, the Minister will be right to caution that we should retain negative procedures. After a healthcare agreement is in place, those would be better able to avoid uncertainty and time delays in order to protect the interests of all direct participants within the new scheme.

Yet reciprocal healthcare arrangements between the United Kingdom and the European Union are a different matter. Does the Minister concur that in that regard there is a strong case for replacing the use of parliamentary negative procedures with affirmative ones, and that to do so would provide a more acceptable balance between the influence of Parliament, which becomes greater, and not putting people at risk within the new scheme?