Healthcare (International Arrangements) Bill (Third sitting)

Justin Madders Excerpts

Committee Debate: 3rd sitting: House of Commons
Thursday 29th November 2018 Public Bill Committees

Brought up, and read the First time.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

I beg to move, That the clause be read a Second time.

It is a pleasure to serve under your chairmanship, Mr Streeter. I recall that the first Westminster Hall debate that I secured was under your chairmanship. Indeed, you were also in the Chair the first time I was the Opposition Front-Bench spokesman in a Bill Committee. In these turbulent times, you are a consistent and familiar face—certainly to me and, hopefully, to many other hon. Members.

Reciprocal healthcare is of most importance for those countries where it is accessed most—none more so than on the island of Ireland. When the British Medical Association gave evidence on Tuesday, it was clear about the success story that has been achieved, particularly in the border area, particularly with a dispersed population of around 2 million. It said:

“Given the population demands on the whole island of Ireland, both in the Republic of Ireland and Northern Ireland, there have been some fantastic examples of where clinicians have either co-located services in a particular trust or facility where there is not the demand from the local population to warrant it, or travelled across the border to work on different sites.”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 27 November 2018; c. 4, Q10.]

Fiona Loud from Kidney Care UK raised the example of patients who currently cross the border daily for their care and treatments. She also mentioned organ donation and organ sharing, and the need to ensure that the existing and very successful arrangements that we have are preserved.

It is easy to talk about scaremongering when we raise the spectre of patients being turned away at the border, and I am sure that we will all do our utmost to ensure that such circumstances do not arise, but we are talking about really important issues here. The healthcare arrangements on the island date back to before the UK and the Republic of Ireland joined the EU, but they are now underpinned by EU law, so we cannot simply revert back to the old arrangements, should a full EU-wide deal not be reached.

I was concerned about the lack of consideration given to the issue in the supporting documents and in the contribution from the previous Minister, the right hon. Member for North East Cambridgeshire (Stephen Barclay), on Second Reading. If we do not get this issue right, the Bill will be a failure. The amendment would ensure that the provisions do not reach the statute book until clarity on this hugely important issue is provided. I appreciate that article 13 of the Northern Ireland protocol in the withdrawal agreement indicates a desire to continue north/south co-operation in a range of areas, including healthcare, but that does not help us if Parliament does not support the withdrawal agreement. That is why the amendment asks for a strategy to be provided as a matter of urgency.

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[Justin Madders]

I am minded not to press the new clause to a vote if the Minister assures us that he will endeavour to keep us updated on the contingency plans, if it looks like we are approaching a cliff-edge scenario. That is really what we are trying to achieve.

[Stephen Hammond]

Let me make the hon. Gentleman the same offer that I made to the hon. Member for Burnley. In that unlikely scenario, I guarantee that I will make my officials available to give a briefing to the hon. Gentleman and any member of the Committee who wishes to understand what our proposals are.

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[Justin Madders]

I am content with the Minister’s comments. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 3

Strategy for settling disputes concerning healthcare agreements

(1) The Secretary of State must, within one month of this Act receiving Royal Assent, lay before Parliament a strategy containing a defined process for settling disputes concerning healthcare agreements between the government of the United Kingdom and either the government of a country or territory outside the United Kingdom or an international organisation.

(2) The strategy under section 1 above must include information on—

(a) the body, bodies or jurisdiction that will be responsible for settling disputes;

(b) the process which will be followed by that body, bodies or jurisdiction when settling a dispute, including details of any further appeal mechanisms; and

(c) anything else the Secretary of State thinks is relevant to such a strategy.—(Justin Madders.)

Brought up, and read the First time.

[Justin Madders]

I beg to move, That the clause be read a Second time.

On Second Reading, I spoke about the importance of dispute resolution, and asked the then Minister for Health, the right hon. Member for North East Cambridgeshire (Stephen Barclay), to set out how he envisaged it operating in both a deal and a no deal scenario. Despite some prompting from me and my hon. Friend the Member for Weaver Vale (Mike Amesbury), the Minister was not able to set out how dispute resolutions will be handled under the terms of any new agreement or even if the European Court of Justice will continue to represent a red line for the Government. The latter point is particularly interesting, given the new role of the right hon. Member for North East Cambridgeshire. It appears that he did not provide detail on that point because, at that stage, the Government were simply not in a position to confirm what was in the draft withdrawal agreement.

The Prime Minister categorically ruled out any jurisdiction of the European Court of Justice very early in the process, but I have yet to hear any serious suggestion about how disputes can be resolved, if we manage to reach a full reciprocal healthcare agreement with the EU27 beyond the transition period, without some reference back to the ECJ. The same concerns would apply if bilateral agreements were necessary in a no deal scenario.

Given the importance that the Prime Minister and members of her Cabinet have placed on the ECJ following our exit from the European Union, it is curious to say the least that we do not have a clear statement of intent from the Government while we debate this Bill. If their position continues to be that we will not have truly left the European Union if we are not in control of our own laws, as the Prime Minister put it in January 2017, it is vital that we have clarity about the arrangement that will be used in place of the ECJ. If a new arrangement is established, what will the cost be? Who will the judges be? Where will it be based? Will it be an open process?

If, on the other hand, we look to the ECJ for dispute resolution after all, even if only in the limited area of reciprocal healthcare, would that not represent a significant political U-turn? This issue is fundamental to the Government’s approach to Brexit. For example, they decided that we could not continue to host the European Medicines Agency, causing it to go to Amsterdam at the cost of 900 jobs in this country, and potentially hundreds of millions of pounds of investment. The Health Secretary’s sole justification for that was that the Government were not prepared to accept the European Court of Justice’s jurisdiction. Our purpose in tabling this new clause is to get clarity from the Minister about whether the European Court of Justice remains a red line for the Government.

[Stephen Hammond]

The new clause would place a duty on the Secretary of State to lay before Parliament a detailed strategy defining the process for settling disputes concerning healthcare agreements after we leave the European Union. No one in the room would dispute the spirit behind the new clause. As I have stated throughout our examination of the Bill, it is right that there should be transparency regarding the UK’s future relationship with the EU and other countries after exit. It is right that that transparency should apply to the arrangement of future healthcare agreements, and the processes that underpin them, such as dispute resolution, but, although I agree with the spirit of the new clause, I am not entirely sure that it would achieve its intended aim. I will give a number of reasons why.

The new clause would confer a duty on the Secretary of State to lay a strategy on the process for dispute resolution before Parliament. Both in a deal and a no deal scenario, such a strategy would be unlikely to provide information on the process for settling disputes concerning healthcare agreements that is not already available in the public domain. That is not due to a lack of endeavour; it is an issue of timing and consideration of what is already publicly available. In the expected scenario that the UK agrees a deal with the EU, the proposed process for settling disputes has already been confirmed in the White Paper on the future relationship, the draft withdrawal Bill that governs the implementation period and, most recently, the political declaration on the future relationship between the UK and EU. The processes have already been confirmed. They are outlined in those documents and would apply not only to disputes, but clearly therefore to disputes in any reciprocal healthcare agreement.

The hon. Gentleman asks what the dispute mechanism is. I am sure that the Committee will be pleased that I am not going to quote extensively from the withdrawal agreement, but it is worth putting on the record that the mechanism for resolving disputes will be through consultation at the Joint Committee, with the aim of reaching a mutually agreeable resolution. If the parties are not able to resolve the dispute in the Joint Committee, either party can request the establishment of an independent arbitration panel to resolve it. The panel will be made up of five members, with one person being the chairperson. The UK and the EU will nominate two members to sit on the panel and then mutually agree the fifth member, who will be the chairperson. The panel members will act independently and do not represent the party that nominated them. It is binding that the panel members be independent and impartial and they must possess specialised knowledge or experience of EU law and international law.

The hon. Gentleman challenges me on the role of the ECJ. He is right that the ECJ has a role here, but its role is very clear and very limited. The role of the ECJ after the implementation period will be restricted to ensuring the correct interpretation of EU law. There is no suggestion that the ECJ will determine the dispute, or that we would ever agree to the ECJ determining the dispute.

That is the likely scenario and the processes that are already formally set out via the documents that I described earlier. In the unlikely scenario that the UK leaves the European Union without a deal, the United Kingdom will arrange reciprocal healthcare agreements, and in those agreements, there will have to be bilateral dispute resolution. That would clearly have to be determined on a case-by-case basis as part of the negotiations to put those bilateral healthcare agreements in place, and, therefore, there is unlikely to be a single dispute resolution process, which is what the new clause suggests, so while I accept the spirit of it, the wording would restrict the ability for future reciprocal healthcare arrangements.

More importantly, the requirement for such a strategy to be laid before the House one month after the Bill receives Royal Assent does not align with the aim of the Bill to provide future reciprocal healthcare agreements with countries both inside and outside the EU. Clearly, those agreements are likely to be negotiated over a period of time and, as I have just mentioned, the dispute resolution mechanisms within them are likely to be different and may vary. It would therefore be arbitrary and unhelpful to produce a general strategy immediately after Royal Assent.

I understand the intention behind the new clause, but it would place an unnecessary burden and duty on the Secretary of State. In a deal scenario, the procedures are already there. In the unlikely no deal scenario, it would be likely to frustrate the ability to put in place future reciprocal healthcare agreements.

I hope that, having heard that, the hon. Gentleman will accept that, although we understand the spirit of his new clause, its wording would be likely to frustrate the purpose of the Bill. I therefore ask him not to press it to a vote.

[Justin Madders]

I am grateful to the Minister for setting that out in more detail than we were able to elicit on Second Reading. Given that the withdrawal agreement had not been published at the time, I understand why the then Minister was not able to do that. The present Minister has been very helpful in setting out the process for leaving with a deal. He is right that, if we leave without a deal, we are in uncharted territory. I do not think I heard any confirmation that there are red lines, in terms of the European Court of Justice, in that scenario. That is really what the new clause was meant to establish. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 4

Duty to consult with devolved administrations

Before issuing any regulations under this Act, the Secretary of State must consult the Scottish Government, the Welsh Government and the Northern Ireland Government and have regard for their views on the regulations.—(Justin Madders.)

Brought up, and read the First time.

[Justin Madders]

I beg to move, that the clause be read a Second time.

I hope this is a straightforward and uncontroversial new clause. We have already spoken about the importance of reciprocal healthcare arrangement to citizens in Northern Ireland, and of course there will also be an impact on patients in Wales and Scotland. The Scottish and Welsh Governments have clearly and robustly articulated their support for a continuation of reciprocal healthcare agreements, and why would they not?

The Delegated Powers and Regulatory Reform Committee was clear in its recommendation that there should be active participation of the devolved Administrations in setting out the UK’s position in future arrangements, but I am not aware that there have been any discussions. I would be grateful if the Minister could set out what conversations have taken place, because we did not get clarity on that on Second Reading.

The new clause repeats some of the issues that we raised this morning, which you did not have the pleasure of hearing, Mr Streeter. It is about the scope and power of the Bill and the wide range of duties given to the Secretary of State, which will be subject to the negative procedure. We think it is important that, as part of the Bill, when those wide powers are given to the Secretary of State, there must be a clear duty to consult with the devolved Administrations before those regulations are enacted.

The Fisheries Bill and the Agriculture Bill have dealt extensively with the need to involve the devolved Administrations. I think this is the bare minimum that we need. It would represent a consistent and equitable approach across the devolved nations, in terms of our future relationship with the EU.

[Stephen Hammond]

It is a pleasure to respond to this new clause, which addresses the extraordinarily important issue of engaging and working with the devolved Administrations. We completely agree that regulations made under the Bill may relate to devolved matters, by which I mean domestic healthcare. The Government will engage and meaningfully consult with the devolved Administrations in line with our existing arrangements, as found in the 2012 memorandum of understanding between the UK Government and the devolved Administrations, and the principles that underlie relations between us. That reinforces the positive work that the UK Government continue to do with the devolved Administrations daily for the benefit of the whole of the UK on this matter.

I am forced to reflect that, though the hon. Gentleman’s new clause is not necessary, the sentiment behind it is shared by everyone in Committee, I suspect. The regulation-making powers in the Bill provide us with a legal mechanism to implement international agreements domestically. The Bill will ensure that we can broadly continue reciprocal healthcare arrangements, where agreed with the EU, to the benefit of the residents of England, Wales, Scotland and Northern Ireland. The powers offer flexibility and can be used to implement comprehensive healthcare agreements with third countries in the future for the benefit of all UK nationals.

--- Later in debate ---

I believe that the Committee is drawing to a close, so I will take the opportunity to thank all my colleagues, and all hon. Members in the Opposition, for giving this small but important Bill the line-by-line scrutiny that it deserves. I thank you, Mr Streeter, for chairing this afternoon’s proceedings.

[Justin Madders]

The Minister has put on record pretty clearly his intention in respect of ongoing and continued engagement with the devolved institutions. He is right that we are concerned that the powers under the Bill are wide. Those concerns remain, but in so far as they involve the new clause, his comments have done enough to assure us that it will not be necessary for us to press it to a vote.

I echo the Minister’s sentiments, given that we are now making the closing remarks of this Bill Committee. I thank you for chairing, Mr Streeter, and hon. Members for participating in Committee today.

I look forward to Report. We need to continue to explore some important issues, but we must move forward with this legislation, as is necessary in this uncertain time. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Bill to be reported, without amendment.