Healthcare (International Arrangements) Bill

Lord Lansley Excerpts

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

[Lord Lansley (Con)]

My Lords, I join colleagues across the House in welcoming my noble friend to this House and to her new position. I had the privilege to serve in the other place with her. I know how highly regarded she was for her work there and in her constituency. As a former Member for South Cambridgeshire, I think it is very like north Oxford as a place. I had the pleasure of campaigning with my noble friend in Abingdon and had something to do, in a very small way, with getting her elected in the first place. The Commons’ loss is our gain. We are delighted to have her with us. I know that the Department of Health and Social Care is delighted to have its former Minister back.

I very much share the view of my noble friend Lord O’Shaughnessy, who was instrumental in the Bill’s composition, that it is very important and necessary. It is important that we do not alarm people about the circumstances of their healthcare. We should make it clear, if we can, that we are all setting out to try to ensure that there is continuity in the existing arrangements for reciprocal healthcare across the European Economic Area. We might not be in a position to guarantee that because the withdrawal agreement might not be implemented. If it is, that will be all well and good, but if not, we have to put something in its place. As a consequence, there may be some urgency associated with securing bilateral agreements to deliver that continuity. That is at the heart of what needs to be in the Bill: an ability for the existing healthcare arrangements to be replicated through bilateral agreements in short order, not necessarily waiting on the approval of the two Houses of Parliament in a logjam.

I know that noble Lords will immediately say, “Hang on a minute, we have to be able to approve this thing”. I bring to the discussion of this Bill the benefit of having just been involved in Committee on the Trade Bill. Because there was a lack of powers, on the Trade Bill we were asked to provide the necessary powers to secure continuity and the rollover of existing agreements. In legal terms, this is not the same. We are not rolling over agreements—we may be implementing agreements —but the substantive purpose is the same: to enable healthcare provision across Europe to be provided for UK residents in the future in the same way as in the past. As we go through the legislation we need to make a distinction between what is a continuity provision and what is a new provision for new agreements. Where the Trade Bill was concerned, we did not need to do that; it was not about new agreements.

The noble Lord, Lord Marks, must be careful with the point he made about Clause 5 and regulations that,

“may amend, repeal or revoke primary legislation”.

Yes, it can be,

“(a) for the purpose of conferring functions on the Secretary of State or on any other person”,

but he added an “or” before paragraph (b). He said,

“or to give effect to a healthcare agreement”,

but it is not this; it is,

“to give effect to a healthcare agreement”.

As my noble friend Lord O’Shaughnessy said, this is all in order to implement international treaties.

[Lord Foulkes of Cumnock]

The noble Lord is absolutely right to distinguish between continuity legislation and totally new provisions in legislation. Does he not agree that it is bad enough to push to get a number of Bills and other legislation through quickly by the end of next month when it is continuity legislation—but that if it is totally new legislation, there is absolutely no justification at all?

[Lord Lansley]

We spent four days in Committee on the Trade Bill. I do not know how much time is planned for this Bill but it is perfectly possible for us to consider this legislation and to put in place the necessary powers for future agreements, as long as it is done with the necessary scrutiny and approval provisions. I will come on to make one or two points about that, and I am sure we will go on to debate that robustly—as my noble friend on the Front Bench said—in the days ahead.

[Lord Marks of Henley-on-Thames]

I accept the noble Lord’s point that I should not have said “or”. My point is that outside the context of the withdrawal agreement, which would have been fully debated, any new agreement is a new healthcare agreement, so the limitation of the lack of an “or” does not make a great deal of difference.

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[Lord Lansley]

I will come on to precisely that point about new agreements and the extent to which we need to amend existing legislation to give effect to such agreements.

I will say a word about what we are trying to achieve here. I do not think we should underestimate that the Government have committed to the significant, continuing—effectively permanent—cost of providing healthcare across the European Union for those who have been resident in the United Kingdom. As we have heard, this is £630 million-plus per year. There is not a corresponding expenditure in this country by other countries because it is only a fraction of that for other EU citizens and residents coming to the United Kingdom. This is quite a generous provision. It is not the case that every beneficiary of this would be eligible for healthcare in the United Kingdom. For example, a pensioner who goes to live in Spain might ordinarily cease to be resident in the United Kingdom and hence to be eligible for NHS care. So this is not simply to provide NHS care to people wherever they happen to be, nor should it be interpreted as such. It is a very specific provision.

Equally, there might be people who are in exactly the same position as a pensioner going to live in Spain but who go to live in Florida. We do not, and are not proposing to, provide such healthcare there. That is not simply because the American Government do not provide a reciprocal benefit for Americans in the United Kingdom, because the legislation does not require reciprocal healthcare. It enables the Secretary of State to provide healthcare for UK residents in other countries. The reason is straightforward and rather ironic. We propose to legislate to give continuing healthcare provision across Europe as a consequence of the freedom of movement provisions, while at the same time proposing to get rid of those freedom of movement provisions.

If we were to follow through the logic of ending freedom of movement, which allows people to live and work in other European countries and pensioners to have access to the social security regulations in other countries, we would scrap all this. But that would not be popular. It would feel very unfair and, as my noble friend Lord Kakkar—if he will forgive me for calling him that—said, this matters a great deal to people. They would be extremely anxious and distressed by the removal of something that they had been accustomed to receiving in the past.

But it may not be available in the future. We cannot say that the European health insurance card will be offered to people and available for travel and work in the future as it has been in the past, although I say to the noble Lord, Lord Foulkes, that I have just looked it up. The website is there. The bit where the Department of Health and Social Care tells you about the European health insurance card is still online, but it unfortunately has to tell people that, because we do not know where we will be after 29 March, they might be advised to take out travel insurance.

The point I come back to is this: we are making a provision and we should recognise that we are doing that so as not to take away something of considerable importance for many people who have come to rely on it. We do not want to create that distress. It is a long-term commitment and I hope that people will recognise the value of that. We cannot go around extending it easily. I am not aware of any proposals for bilateral agreements with other countries to extend this healthcare benefit elsewhere. If there are any I would be very interested to hear of them.

I hope that we will be able to replicate the current structures as far as we can in the way in which this is managed in the future, but it is important that we give proper scrutiny. I will say three things. First, we must be able to have continuity delivered rapidly if necessary. Secondly, like treaties, new agreements must be subject to prior agreement within Parliament about the basis on which the Government should conclude them, rather than Parliament simply being given the opportunity to renege on them or not. Thirdly, when it comes to the amendment of legislation, we should be very clear that not only must any Henry VIII provision that amends primary legislation be subject to the affirmative procedure, but regulations that seek to amend, repeal or revoke direct EU legislation—retained EU law of a significant character—should, equally, be subject to affirmative resolution. The drafting here does not recognise the sources of law with which we have to deal and the way in which we should deal with them in the future.

Subject to all of that, I hope that we will not spread alarm. I hope that noble Lords on the Liberal Democrat Benches will at least recognise that there is a purpose to this legislation and that in our further consideration we will ensure that it is entrenched and the Bill passes with that purpose firmly in place.

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[Baroness Blackwood of North Oxford]

My Lords, I thank the House for a most robust and incisive debate. It is great for me to be welcomed into a very balanced House, with the noble Lord, Lord Marks, admitting that he campaigned against me and my noble friend Lord Lansley having campaigned for me. I feel as though I have been welcomed into a warm embrace. The debate has been strong and, as anticipated, a great lesson for a former Member of the other place. I will attempt to answer as many questions as I can and address the major issues raised. If I cannot, I will write to noble Lords.

First, I am grateful for the widespread support for the intent of the Bill, which, as the noble Baroness, Lady Thornton, said, is essential. As the noble Lord, Lord Bethell, reminded us, it has strong public support. There is a desire to maintain robust reciprocal healthcare arrangements, which benefit many people across the country when working, living, studying and travelling abroad. Every day, the lives of people across the country are improved by these arrangements. Examples range from a young British student with severe asthma, able to study for a year abroad at a European university, to a British grandmother with multi-morbidities, able to visit her newly born grandchild—or, in my case, a young bride with a rare disease honeymooning in perhaps one of the most romantic cities in the world: Venice. On the value of this scheme, it is notable that many noble Lords have their own stories to tell about the importance of us maintaining reciprocal healthcare. I will write to the noble Baroness, Lady Thornton, about her mother’s case when I have found out the details for her.

All these journeys are made easier by a reciprocal healthcare system ensuring that if you require healthcare in another EU member state, you will be looked after. The British Government want such arrangements to continue; the Bill provides a legislative framework for that. I recognise that a number of noble Lords have raised important and substantive issues concerning the Bill. I will address as many of them as possible in the time available but I look forward to debating them further in the coming weeks.

The noble Lords, Lord Foulkes, Lord Marks and Lord Thurlow, the noble Baronesses, Lady Barker, Lady Brinton and Lady Jolly, and my noble friend Lord Dundee mentioned the DPRRC report. It was characteristically robust, as I said in my opening remarks. The Government responded to it; I placed a copy of that letter in the Library for your Lordships’ consideration. The committee will consider that response on 13 February, which I will take into account and reflect on very carefully. On the Bill’s powers, we must find a balance between the flexibility and agility we need as we go forward into our EU exit, and appropriate scrutiny, as my noble friend Lord Bridgeman said so eloquently.

It may be helpful for me to outline the five delegated powers in the Bill in a little more detail. Four of those powers come under Clause 2, and one under Clause 4. The first, in Clause 2(1)(a), would be used to set out in detail complex payment arrangements under reciprocal healthcare deals. The second, in Clause 2(1)(b), is needed to provide healthcare abroad outside reciprocal healthcare arrangements. The third, in Clause 2(1)(c), is needed to give effect to comprehensive healthcare agreements entered into in another country or international organisation, such as the EU. The fourth, in Clause 2(3), is needed to allow the Secretary of State to give directions to a person to whom they have delegated functions under the Bill. The fifth, in Clause 4(6)(e), enables the Secretary of State to make regulations to add to the list of people who can process data for the purposes of the Bill, for example a future arm’s-length body that does not currently exist. I know that data issues have been raised by a number of your Lordships, which I will return to later.

I know of a lot of legitimate concern over the inclusion of Henry VIII powers in EU exit legislation. The only Henry VIII power in the Bill comes under Clause 5. It is not a standalone power: it is a tidying power to ensure that the statute book is coherent when implementing future arrangements under the Bill. In particular, I have heard noble Lords’ preference for wider use of the “made affirmative” procedure, which I will reflect on more as we head towards Committee.

The noble Lords, Lord Marks and Lord Foulkes, and my noble friend Lord Dundee asked about financial reporting procedures in future reciprocal healthcare. In the letter to the DPRRC, we committed to issuing an annual ministerial Statement on the operation of reciprocal healthcare arrangements, which will be published as soon as is practicable after the end of each financial year to allow for accurate financial reporting. The Statement would include, but not be limited to: information on the expenditure and income of healthcare provisions overseas as a whole, which would include aggregated expenditure, income from the financial year and a country-by-country summary of expenditure and income; an update on the operation of arrangements, which could identify areas of successful operation or where arrangements are being improved to promote efficiency; and the strategic direction of reciprocal healthcare arrangements, which could be a statement either on future priorities for the current operation or on where the UK is engaging with other countries to establish new arrangements. I hope that that is helpful.

The noble Lord, Lord Foulkes, was absolutely right to identify the importance of EU workers to the NHS. I want to put on record again both my and the Government’s appreciation of the work of EU staff in the NHS. Let me be very clear: we want those staff to stay. I am very pleased to report that more than 4,300 more EU workers are now working in the NHS than before the referendum. We wish to continue with that positive trend.

My noble friend Lord O’Shaughnessy has already clarified the point regarding right of access to NHS services for those ordinarily resident in the UK, but the noble Lord, Lord Thurlow, and the noble Baronesses, Lady Brinton and Lady Jolly, raised the issues of the impact of these changes on the NHS and charging. Let me be clear that we do not need to have any new front-line NHS services to charge visitors or tourists from the EU, either directly or via reciprocal healthcare arrangements. We already have these processes in place as part of our current EU reciprocal healthcare arrangements. EHIC claims and EU visitors are identified for the purposes of whether they are chargeable or directly covered through the current system. This is done by overseas visitor managers in the NHS trusts, who manage charging. The Government have been the first to make significant progress regarding charging overseas visitors and recouping funds. To reassure the noble Lord, Lord Thurlow, since 2015 we have increased identified income for the NHS with reciprocal arrangements by 40%. Directly charged income has increased by 86% over the same period. We are not satisfied with that progress, but it is certainly moving in the right direction.

I also reassure the noble Baroness, Lady Brinton, that we have work ongoing with NHS Improvement, which is now working with 50 NHS trusts, to improve further its practices in this regard, with a bespoke improvement team in place providing on-the-ground support and challenge, and identifying and sharing best practice. That should be of great assistance as we move into this next period.

A number of noble Lords raised the global scope of the powers, in particular the noble Lord, Lord Bethell, and the noble Baronesses, Lady Jolly and Lady Thornton. As I have noted, the Government’s immediate priority with the Bill is our reciprocal healthcare arrangements with the EU. That is absolutely right, but we already have a number of existing reciprocal healthcare arrangements with countries outside the EU, such as Australia and New Zealand, as my noble friend Lord Bridgeman noted. The passage of the Bill through Parliament presents us with a natural opportunity to consider how we can best support Britons in an increasingly global world. International travel is under- taken by increasing numbers of people for professional, social, recreational and humanitarian purposes. More people travel greater distances and at greater speed than ever before. Global reciprocal healthcare agreements have the potential to protect public health by supporting international visitors to access emergency and needs-arising treatment when they need it.

In addition, international collaboration through reciprocal healthcare agreements can also make it much easier for people to receive treatment, including specialised treatments, such as those mentioned by the noble Baroness, Lady Thornton, which may be more clinically effective or better for a person to access abroad. For example, as I mentioned in my opening speech, in 2017, 1,352 UK patients received pre-planned treatments in the EU, while 1,241 EU patients received pre-planned treatment in the UK. Some of those treatments would not have been possible if we did not have that scheme in place. We do not want to prevent ourselves being able to strengthen our agreements with non-EU countries by curtailing the Bill’s scope, but we must obviously ensure that appropriate scrutiny and parliamentary oversight is in place as we do that.

I move on to the questions raised by the noble Lord, Lord Marks, and the noble Baronesses, Lady Brinton, Lady Thornton and Lady Jolly, regarding trade. The Government are completely committed to the guiding principles of the NHS—that it is universal and free at the point of need. Our position is definitive: the NHS is not and never will be for sale. The Bill’s powers are to allow the department to enter into reciprocal healthcare agreements, either bilaterally or with international organisations, entirely independently of any other international organisations or agreement. I hope that that statement is clear enough.

To reassure noble Lords even further, I will briefly set out the scrutiny powers available to the House for the international treaties under which these agreements would be agreed. It is obviously the Executive’s responsibility to negotiate these treaties under the royal prerogative. The Bill does not replace or limit the prerogative power to enter into international agreements, in the healthcare sphere or more generally. We already have international healthcare agreements, as I have stated, with non-EU countries such as Australia and New Zealand, and Crown dependencies, allowing them certain free access to NHS services.

Parliamentary scrutiny of international treaties is of great importance. Ministers are accountable to Parliament for the exercise of those functions. The principal statutory framework providing scrutiny of these treaties is the Constitutional Reform and Governance Act 2010—CRaG—established by Parliament under its own powers. CRaG has enshrined in statute the long-standing convention known as the Ponsonby rule that was the product of lengthy consultation and dialogue. The Act enables either House to object to the ratification of a treaty and the House of Commons can block ratification of a treaty indefinitely.

I understand that the House of Lords Constitution Committee has an ongoing inquiry into future scrutiny of international treaties. The Committee will look into all aspects of treaty scrutiny, which is obviously apposite at this moment, including what, if any, new committees need to be set up to deliver scrutiny of treaties post exit. I obviously look forward to the review’s findings, but noble Lords can be reassured that this Bill’s purpose is the implementation of international treaties that can be scrutinised under the CRaG process. Noble Lords can also be reassured that all international healthcare agreements will be subject to the scrutiny route considered most appropriate by Parliament.

[Lord Lansley]

At the commencement of the Committee stage of the Trade Bill the House voted for a Motion whose effect was that the Government should bring forward their proposals for the future scrutiny of further treaties before the Report stage. The expectation from the debate on the Trade Bill was that we would go beyond the CRaG legislation. It would be helpful for my noble friend to make it clear that Ministers will be doing that for the Trade Bill and that that bears directly on this Bill. It would be very useful for the Bill to proceed in the light of that same response from Ministers.

[Baroness Blackwood of North Oxford]

I thank my noble friend Lord Lansley for that intervention. One of the reasons why I raise that process is because I am aware that there are ongoing discussions in other parts of the House. We will reflect on that as we progress the Bill.

My noble friend Lord O’Shaughnessy spoke of positive engagement with his EU counterparts on bilateral arrangements in the event of no deal. A number of noble Lords raised what would happen should the withdrawal agreement not go forward. My noble friends Lord Ribeiro and Lord Lansley both raised the question of no deal. My noble friend Lord Lansley is right that we should be careful and seek to reassure those who currently rely on reciprocal healthcare that they will be able to rely on these arrangements going forward. Great interest has been expressed by our counterparts in the European Union, where we are seeking bilateral arrangements with relevant member states in the event that we reach 29 March without a deal with the EU.