Healthcare (International Arrangements) Bill

Lord Kakkar Excerpts

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

[Lord Kakkar (CB)]

My Lords, I join other noble Lords in congratulating the Minister on her excellent maiden speech and the very thoughtful way in which she introduced this important Bill at Second Reading. In so doing, I declare my interest as Professor of Surgery at University College London and chairman of UCL Partners. I should add that my noble friend Lord Patel, who regrettably cannot be in the Chamber at the moment because he is chairing a meeting of your Lordships’ Science and Technology Committee, very much wanted to participate, shares many of the views that I shall put to your Lordships and has committed to participate actively in further consideration of the Bill by your Lordships.

As we have heard, the Bill is vital. The current reciprocal healthcare arrangements that exist as part of our treaty obligations with the European Union provide for 180,000 UK pensioners living in other EU nations to be secure in the knowledge that they have access to all their healthcare needs. This is a very important consideration, because we know that, with advancing age, there is a greater demand on healthcare resource. The anxiety that attends any uncertainty about access to healthcare, particularly for those with chronic, long-standing conditions, through arrangements that have been well tried and tested, is clearly unacceptable and something with which no United Kingdom Government would ever wish to be associated.

Equally, we have heard about the 27 million European health insurance cards that have been issued and the important opportunities the scheme provides for students and tourists to be able to travel through the European Union and have their immediate healthcare needs addressed at times of emergency—again, avoiding uncertainty. Then there is the small number of our citizens—the figure of 1,300 was mentioned by the Minister—who are able to avail themselves of treatments and interventions on mainland Europe as part of their healthcare needs as a result of the reciprocal healthcare arrangement. That should not be underestimated.

The question is: with the proposed departure from the European Union, how can Her Majesty’s Government best achieve continuity and certainty in an area that affects the lives of so many of our fellow citizens? Clearly, of course, the best opportunity would be to ensure that the current arrangements of reciprocal healthcare are continued in any agreement that is finally settled with our European partners. If that is not entirely possible at the moment, how should Her Majesty’s Government make arrangements to deal with what the consequences may be? Both in the other place and so far in this debate, we have heard that some form of Bill, accurately and purposefully drafted to achieve those objectives, is essential. In the other place, it was agreed by consensus that impediment should not be put in place of achieving something, by way of the Bill’s purpose, prior to 29 March; that should be the guiding principle in your Lordships’ House.

Having said that, your Lordships must address the important issues raised both in the debate so far and in the Bill’s consideration in the other place. The first concerns data sharing—a hugely sensitive matter when it comes to healthcare data. At the moment, we are confident that, through the Data Protection Act 2018, the position on data protection adopted in the United Kingdom is consistent with that adopted across other European community/EEA nations. Of course, that is reassuring because this framework ensures that we share healthcare data on the same basis, with the same security and with the same confidence.

However, moving forward, it is important for Her Majesty’s Government to be clear that, if at the time of our EU departure there is any divergence away from the recognised data protection standards, there will be an opportunity for this House and the other place to understand what it will be, and that the protection of our citizens and their sensitive healthcare data is maintained. Indeed, as the Bill proposes the opportunity to negotiate broader reciprocal healthcare agreements beyond the current European Economic Area, it is important for your Lordships’ House to understand how those data protections will be maintained if Her Majesty’s Government decide to avail the Bill—eventually to be an Act of Parliament—to negotiate those agreements. How will data security and data protection be ensured across a range of jurisdictions that do not currently sign up to the protections we enjoy as part of the European Union?

Clause 4(6) outlines the authorities that might benefit from data sharing, including HMRC, Treasury Commissioners and so on. It must be clear about on what basis sensitive healthcare data will be shared and the purpose of that sharing with other elements of the state beyond those directly concerned with the delivery of healthcare. I can imagine that the reasons are very good in terms of understanding, for instance, the status of a pensioner living elsewhere in the European Union by reference back to their time as a resident in the United Kingdom. As part of scrutinising the Bill, it will be essential to understand the basis for that.

Noble Lords have asked important questions about the scrutiny associated with the powers in the Bill and, indeed, the resultant statutory instruments and secondary legislation that will be generated by necessity. In this regard, there are important constitutional questions, as well as important practical and clinical ones, about how your Lordships and Parliament in general can satisfy themselves that the regulations to deal with the procedures and practical implications of the powers that the Secretary of State will need to exercise will be scrutinised. I will give an example, if I may. Let us say, for instance, that a settled UK pensioner living somewhere else in the European Union currently receives healthcare and treatment of some form for a chronic condition. As I understand it, under the provisions of the Bill, the Secretary of State will have to make provision for the continued payment of that care. But what happens if that individual receives a therapeutic intervention that is standard and part of a carefully considered and accepted protocol for treatment—let us say cancer therapy with a biological agent—in the other European country, but, in our own healthcare system, NHS England through to the National Institute for Health and Care Excellence has taken the view that it should not be supported? How will the administrative and procedural arrangements that flow from this legislation be crafted to deal with that situation? There might indeed be considerable unhappiness after the Bill passes if our fellow citizens living in the European Union will have an intervention available to them that we do not believe is necessarily appropriate and should not be available in our own country.

How will the development of that administrative tool be scrutinised by Parliament? It would be seen by convention as a procedural and administrative matter. Under those circumstances it would be subject to the negative resolution procedure, but it has severe and important implications and the benefit of active and thorough scrutiny would help all parties. That is an important issue.

I have one final point. We have heard discussion about the Secretary of State’s powers to make new international agreements beyond the European Union and the European Economic Area and how those might attend future trade agreements. How do Her Majesty’s Government propose to extend the potential opportunities that will flow from the Bill to other jurisdictions beyond those where we have reciprocal healthcare agreements? How will that choice be made? The delivery of healthcare in our country through the National Health Service is a matter of social equity. How can we reassure ourselves that all individuals in our country will have access to the same standard of healthcare and the same opportunities to achieve that access? It cannot be argued that providing reciprocal healthcare for our fellow citizens living in the European Union is anything other than an obligation under a broad treaty, but in the future, when there might be bilateral agreement between certain countries and not others, how will we be able to argue that pensioners living in one jurisdiction and not the other should benefit from the Bill’s opportunities? There might be a simple answer, but as we take forward this legislation and decide to broaden it beyond the current European Economic Area, that might be something that your Lordships need to pay attention to.