Healthcare (International Arrangements) Bill

Lord Marks of Henley-on-Thames Excerpts

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

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I join the noble Lords, Lord O’Shaughnessy and Lord Foulkes, in welcoming the noble Baroness, Lady Blackwood of North Oxford, to the House and to her post. I congratulate her on making an excellent maiden speech. I hope she will forgive me when I admit to spending a great deal of time in her erstwhile constituency and to having campaigned there in the last two general elections—so I may have played a very small part in her elevation to your Lordships’ House.

Although I thoroughly enjoyed the Minister’s speech, particularly the passages about Oxford, she did not—perforce, I accept, as did she—comply with the tradition that maiden speeches ought to be uncontroversial. I oppose the Bill in its present form. I am conscious of the fact that it has passed through the House of Commons unamended and that the report of the Delegated Powers and Regulatory Reform Committee was, unusually, produced on 15 November, before Committee in the other place. Nevertheless, regrettably, the Committee’s report was taken insufficiently seriously by the House of Commons. Sometimes the lack of scrutiny of departures from our constitutional arrangements is frankly unforgivable.

Of course, noble Lords across this House much want to see arrangements for reciprocal healthcare with member states of the EU, the EEA and EFTA continuing as closely as possible to their present form. Indeed, one of the great risks of the calamitous decision to leave the European Union is 27 million UK EHIC card holders, and 180,000-odd UK state pensioners living in the EU who benefit from the S1 scheme, risking the loss of their current rights to reciprocal healthcare.

The Explanatory Memorandum and the Minister say that the Bill has been introduced as a result of the decision to leave the EU and is intended to respond to all possible outcomes of EU exit with new reciprocal healthcare agreements. However, the Bill confers on the Secretary of State exceptional and untrammelled powers that are utterly objectionable. Furthermore, as I will argue, the breadth of these is entirely unnecessary to achieve what is needed to enable satisfactory reciprocal healthcare arrangements to be made on Brexit.

I shall start by turning to the proposed powers. Clause 1 states:

“The Secretary of State may make payments, and arrange for payments to be made, in respect of the cost of healthcare provided outside the United Kingdom”.


There is no limit on the amount of such payments. There is no limit on the type of healthcare to be provided. Indeed, Clause 3 says that,

“‘healthcare’ means all forms of healthcare provided for individuals, whether relating to mental or physical health, and includes related ancillary care”.

There is no geographical limit on where it is to be provided: the power is worldwide. The additional definition of “healthcare agreement” covers providing to other countries healthcare without limit within the UK, and possibly at UK taxpayers’ expense. Clause 2(1) cures none of these deficiencies.

Worse still, Clause 2(2) is entirely unlimited. The regulations may do any of the things provided in subsections (a) to (i), “for example”. So logically they may also do anything else. The Secretary of State may specify, in regulations, levels of payments and their calculation; classes of beneficiaries; types of healthcare to be provided; set-off arrangements; and reimbursement levels, which may include caps. I interpose that this is particularly important because the Secretary of State may decide who pays back what—whether citizens, international organisations, states or the UK Government. The list goes on with processes, appeals, discretion and an unlimited power to boot to delegate any functions under the clause.

Further, the Secretary of State may, in an exercise of absolute power under Clause 2(3),

“give directions to a person”,

and under Clause 2(4),

“may vary or revoke directions”,

in relation to any function. The Bill does further violence to our constitutional arrangements by providing, at Clause 5(3) and (4), that:

“Regulations under section 2 may amend, repeal or revoke primary legislation—(a) for the purpose of conferring functions on the Secretary of State or on any other person (including conferring a discretion);—


or—

“(b) to give effect to a healthcare agreement … Regulations under this Act may amend, repeal or revoke retained EU law”.

These are Henry VIII powers in terms that would have made even that Tudor monarch blush. But we should remember that Henry VIII powers take their name from the Statute of Proclamations 1539, which enabled the King to govern by decree without regard to Parliament. In the context of a process whereby Parliament is supposed to be taking back control, these powers fly in the face of parliamentary sovereignty.

The House will by now be familiar, from speeches by the noble Lord, Lord Foulkes, and others, with the conclusion of the Delegated Powers and Regulatory Reform Committee:

“Clause 2 has a breath-taking scope. Indeed the scope of the regulations could hardly be wider”.


I had the honour of serving on that committee under the distinguished chairmanship of my noble friend Lady Thomas of Winchester. Our discussions were entirely non-partisan and our reports generally—indeed, I think always—unanimous. They were carefully considered. We were extremely well staffed and our recommendations were almost always accepted and implemented by the Government.

The principles we applied were well known and well understood. First, we considered whether a delegation to a Minister was proper and appropriate. Only if it was would we move to the second stage of considering the proposed level of parliamentary scrutiny. Henry VIII powers were to be severely limited to those cases where the need for them was fully explained and justified.

The passage of legislation around Brexit has seen many arguments about the use of Henry VIII powers, but I regret that the Bill persuades me that the Government have learned nothing. As we are forced into an unholy rush to get Bills through, our constitution takes second place to political expedience and face saving. An important passage in the committee report is at paragraph 11:

“All regulations made under clause 2 are subject only to the negative procedure, save where they amend primary legislation. If, without such amendment, as quoted by the noble Lord Lord Foulkes, the Secretary of State wished to fund wholly or entirely the cost of all mental health provision in the state of Arizona, or the cost of all hip replacements in Australia, the regulations would only be subject to the negative procedure. Of course, these examples will not be priorities for any Secretary of State in this country. But we judge powers by how they are capable of being used not by how governments say they propose to use them. The fact that the powers could be used in this way suggests that they are too widely drawn”.


That last reference to the potential use of powers is an important quote from paragraph 20 of the committee’s guidance to departments, published in 2014:

“If the government has in mind a particular proposed exercise, it is helpful for the Committee to be told of this. But the Committee will judge the power by reference to what could be done under it by the current or any future government and not only what the current government say they intend to use the power for”.


That principle is what makes the Government’s Explanatory Memorandum unhelpful and the caution of the committee essential. I am afraid that the Minister’s speech and that of the noble Lord, Lord O’Shaughnessy, failed to grapple with this issue. The Minister seeks to reassure the House while she urges the House to accept the possibility of what is unacceptable. I accept the committee’s view that its examples of Arizona and Australia are extreme. However, we have a Government who are, in their own words,

“determined to make a success of Brexit”,—[Official Report, Commons, 10/7/18; col. 929.]

and resolutely opposed to our staying in a customs union with the EU, so as to be free to make trade deals across the world. May it not be that, in their zeal to reach such trade deals, given the difficulties of so doing, the Government could offer in exchange for trade deals health agreements to third countries on terms that Parliament might consider unsatisfactory were it allowed to consider them properly?

The EU’s new economic partnership agreement with Japan, mentioned earlier by the noble Lord, Lord Henley, demonstrates how difficult new trade deals may be. Nor should we forget either that the ill-fated TTIP attracted so much opposition in the United Kingdom precisely because it opened up our healthcare market to American competition, to the extent that the Conservative Government in 2016—

[Lord Framlingham (Con)]

The noble Lord is putting a most peculiar slant on some aspects of this legislation. I am following this very carefully. Is there not a good case for being perhaps overgenerous and having a wide scope in this area to ensure that nobody misses out, rather than being too precise and risking the chance that people will suffer as a result?

[Lord Marks of Henley-on-Thames]

No, and I regard that view as profoundly dangerous. The reason is that when we need arrangements that justify legislation, we can specify what legislation we need. As I will seek to go on to show, I believe that the arrangements that could be put in place by the Bill, were it tightly drawn and properly amended, could enable all outcomes from our exit from the European Union to be catered for by reciprocal healthcare arrangements in a way that is constitutionally acceptable—as I do not believe this is. As for giving too much ground and being too generous, that is a slippery slope indeed to allowing the Executive to take undue and unacceptable power from Parliament.

I suggest that it is not unrealistic to foresee a Government seeking to enter into healthcare agreements that would be unfair to the UK and unwelcome to many. The Bill would make that possible by unamendable regulation, possibly passable by the negative procedure.

So what should happen? If we secured a withdrawal agreement, an implementation period to the end of December 2020 and any extension of such a period would ensure that we continued reciprocal healthcare arrangements substantially as at present. That is what the Minister wants; I accept that she wants it, and that many in the Government want it as well. But we cannot guarantee that we are going to get it, and the Government have resolutely set their face against ruling out a no-deal agreement.

There is presently no reason whatever to make fresh statutory provision for any extra healthcare agreements outside the EU, the EEA and Switzerland. Such arrangements can be made if relevant, when necessary and authorised by a proper and detailed statute—nothing to do with Brexit—just as they could have been made at any stage over the past few years.

The need now is for provision in the event of no deal. I suggest that in that ruinous event, the only arrangements that we could practically make for continuing reciprocal healthcare would be the same as, or broadly comparable to, the existing arrangements. The noble Lord, Lord O’Shaughnessy, explained that, from his discussion with other European Health Ministers, he regards it as likely that they would want similar arrangements. Similar arrangements might be possible. Something completely different would, I suggest, be entirely impractical.

It might be necessary to agree such arrangements on a bilateral basis with individual states. It might be possible to make such arrangements on a multilateral basis. For such purposes, I accept that legislation is necessary. An appropriate Bill could be drafted without undue difficulty. Indeed, as the Bill is here and has passed through the House of Commons, I accept that amendment of it, while demanding, might be possible. The powers of the Secretary of State to introduce a new scheme and make equivalent agreement arrangements with other member states, whether on a bilateral or multilateral basis, could be carefully drafted in a fashion that was appropriately limited and would command the confidence and respect of this House.

However, I have no hesitation in saying to the House that the Government must come back in Committee with amendments that limit this Bill to that achievable and justifiable purpose. To press ahead with it in its present form for fear of a no-deal Brexit would be unconstitutional and improper. The Government must think again.

--- Later in debate ---

[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.

--- Later in debate ---

[Baroness Blackwood of North Oxford]

The noble Lord, Lord Foulkes, raises a very important point, and he is absolutely right that the Government do not seek to have no deal. The best way to avoid no deal is to have a deal. Under the withdrawal agreement there is protection of reciprocal healthcare arrangements for EU citizens in the UK and for UK citizens abroad, and that is what the Government seek to deliver. We have set out a number of steps to ensure that individuals who currently receive reciprocal healthcare can be protected as much as possible under a no-deal scenario. One of them is to put in place the powers in this Bill so that we can go very quickly to seeking bilateral arrangements. That is why I hope we will receive the support of the noble Lord as we go forward with this legislation.

[Lord Marks of Henley-on-Thames]

I think the point made by the noble Lord, Lord Foulkes, was that it is very dangerous to give the reassurance that the Minister was giving and to tell the public that all will be well in the event of no deal. The public need to know that all will not be well in the event of no deal. Even if this Bill and the regulations go through as quickly as they can, there will be a very serious hiatus. It is important that, rather than reassuring the public, the Government—which want a deal, as I know the Minister does—should say how dangerous it will be to leave without a deal on 29 March.

[Baroness Blackwood of North Oxford]

The noble Lord, Lord Marks, has made an important point. The Government have not in any way avoided the consequences of no deal. They have been very clear in outlining some of the risks associated with no deal and exactly why they are seeking a deal, with strength and authority. Those currently using reciprocal healthcare arrangements abroad can find advice on the GOV.UK and nhs.uk websites. Any of your Lordships who would like more specific advice are very welcome to write to me or to seek a meeting with me on that.

I would like to make a little more progress, as there are only two more minutes before I must close and I have not dealt with a number of issues your Lordships raised with me. On Ireland, which was raised by a number of important Members—the noble Baronesses, Lady Barker, Lady Brinton and Lady Jolly—I reassure noble Lords that the UK is firmly committed to maintaining the common travel area and to protecting the rights enjoyed by UK and Irish nationals in each other’s states, whatever the terms of the UK’s withdrawal from the EU. The common travel area facilitates the principle of free movement for British and Irish citizens between the UK and Ireland and the reciprocal enjoyment of rights and entitlements to public services of citizens in each other’s states.

In addition, on negotiations with the devolved Administrations, we are very pleased to have received a legislative consent Motion from Scotland and are continuing to negotiate.

To conclude, I hope that I have been able to summarise the main issues and topics. There are clearly still some important questions that need to be answered, and I will write on the further points. It is clear from this debate that there is much work still to be done on the Bill, and I am sure that we will have adequate time in what my noble friend Lord Bridgeman predicts—I suspect rightly—will be a lively Committee to make sure that the Bill is in the best possible shape. However varied our views may be on the future relationship with Europe, I think that we can all agree that access to healthcare is essential both for British nationals living in European countries and for EU citizens living in the UK. We have heard that reciprocal healthcare arrangements enjoy broad public support. This Bill is designed to ensure that we can give British nationals living in European countries and EU citizens living in the UK certainty and continuity of care. With that in mind, I beg to move that this Bill be committed to a Committee of the whole House.