Healthcare (International Arrangements) Bill

Martyn Day Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Monday 21st January 2019 Commons Chamber

[Justin Madders]

It is true that there is some concern in the insurance industry about our potential failure to secure bilateral agreements. I think it inevitable that unless those agreements are secured, premiums will rise. That is why the Opposition support the thrust of the Bill.

It is impossible to provide reliable estimates of the costs of the new agreements in advance without knowing who they would be with or what they would cover. The British Medical Association has said that any prediction of costs is likely to be unreliable, and we cannot afford to give the Government carte blanche.

New clause 1 proposes a sensible and very reasonable requirement for the Government to report back to Parliament annually. It would require the Government to provide details of all payments made by the UK Government for all healthcare provided outside the UK to British citizens. It would also stipulate a requirement to provide details of all payments received by the UK Government as reimbursement for healthcare provided by the UK to all non-British citizens. It would also write into law a requirement for the Government to set out any outstanding payments owed to, or by, the UK Government. This would provide an important opportunity to monitor efficiency in this area and may provide an incentive to address some of the concerns raised by the Public Accounts Committee in its 2017 report, “NHS treatment for overseas patients”, which stated that

“the NHS has been recovering much less than it should”,

and

“The systems for cost recovery appear chaotic.”

Even with the Government’s recent funding announcements, the NHS continues to struggle. I am sure that the Minister would not want to see funds destined for patient care swallowed up by the additional administrative burden created by the introduction of a range of complex charging arrangements and a failure to recover the costs that have been incurred. It is imperative that hospital trusts are not required to shoulder additional financial burdens because of the costs of administering the collection of charges. That is why if the Government are, as the Minister said in Committee, committed to transparency and parliamentary scrutiny, new clause 1 should be supported.

Turning briefly to the amendment that I tabled, we have discussed previously widely held concerns about the scope of this Bill that are exacerbated by the fact that the powers contained within it to create regulations will, in many cases, be subject only to the negative procedure. The Delegated Powers and Regulatory Reform Committee in the other place set out very clearly the potential impact of this Bill should my amendment not be accepted today. It said:

“If…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.”

It added:

“Of course, these examples will not be priorities for any Secretary of State in this country”.

I am sure that is the case, but we must consider how the powers could be used, not just how we would expect and hope them to be used.

There is always merit when examining legislation in considering all potential scenarios as well as the stated intentions of the Government at the time, and in such an unprecedented period of uncertainty it is prudent to consider all eventualities. As the Government have included these powers in the legislation we cannot simply consider the world as it is now, nor how it might be in a year or two—indeed, if anyone knows what the world will be like in two or three weeks’ time I will be very impressed. We need to look at what the world might be like in many years’ time and how the powers in the Bill can be used.

If we require further persuasion about the need for caution, the Committee set out in its report a devastating list of reasons why the negative procedure is inappropriate. It said:

“There is no limit to the amount of the payments. There is no limit to who can be funded world-wide. There is no limit to the types of healthcare being funded. The regulations can confer functions (that is, powers and duties, including discretions) on anyone anywhere. The regulations can delegate functions to anyone anywhere.”

The Committee concluded:

“In our view, the powers in clause 2(1) are inappropriately wide and have not been adequately justified by the Department. It is particularly unsatisfactory that exceedingly wide powers should be subject only to the negative procedure.”

Just for good measure, it went on to describe the powers sought in the Bill as “breath-taking”.

Parliament is not alone in having concerns about the scope of the clause and the lack of clarity about how the powers might be used. In the Committee evidence session, Raj Jethwa, director of policy at the British Medical Association said:

“We would like to see much more emphasis on scrutiny of all the discussions in the arrangements going forward.”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 27 November 2018; c. 6, Q14.]

Picking up on the Committee’s comments, despite the Government having ample opportunity both on Second Reading and in Committee to justify the need for these exceedingly wide powers, I believe that the arguments that they advanced during the passage of the Bill have not only failed to do so, but have strengthened the case for greater scrutiny. The Minister conceded in Committee:

“The Bill also provides flexibility to fund healthcare even where there is no bilateral agreement, which we might explore using in exceptional circumstances to secure healthcare for certain groups of people.”

That is the nub of it: we know the well-rehearsed and necessary reasons why the Bill is required to secure the continuation of arrangements as we leave the EU, but it is on the record that the Bill can potentially do far more than that. We do not know what those exceptional circumstances are, and we do not know who those groups of people might be, and even if the Minister were able to set out here and now what he was referring to in that statement, he cannot bind a successor to that. The Bill gives the Secretary of State what I might describe as Martini powers: any time, any place, anywhere. If he is to have such wide powers they must at the very least be subject to the affirmative procedure.

The Minister also said in Committee that not only would the Bill encapsulate existing healthcare agreements but that it

“will potentially add to their number as part of future health and trade policy.”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 29 November 2018; c. 23-24.]

That is also a concern. I do not know whether the Minister intended it to come across as it did, but it sounded very much to me as if the Government were intending to couple trade negotiations with access to healthcare. I hope that that is not the case.

Many people have expressed concern over a number of years that the Government appear willing to open up the NHS to American private healthcare companies as part of trade negotiations, but I am not sure that many people imagined that the Government also had designs on opening up the NHS to patients around the world as part of a strategy to secure trade deals with other nations. Perhaps I am wrong about that, but it is clear that the Bill can be used in that way, which is why any arrangements ratified under it need proper scrutiny.

We also to consider the impact of new arrangements on the NHS. Alastair Henderson, chief executive of the Academy of Medical Royal Colleges, said in the Committee evidence session:

“Both clinicians and health organisations are concerned that we could end up with a system that is both administration-intensive and time-intensive.”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 27 November 2018; c. 3, Q4.]

We went through some of the implications of that when discussing new clause 1.

Finally, there is a practical element to this. As we know, under the negative procedure, once an instrument is laid in draft it cannot be made law if the draft is disapproved within 40 days. This would be done via a prayer against, usually by way of an early-day motion. If that is not invoked then the legislation is passed. Under the negative procedure, that is still a 40-day process in the best-case scenario, and if we leave without a deal the Secretary of State in the next three weeks will have to reach agreement with each of the 30-plus other countries, sign those agreements, draft statutory instruments and lay them before Parliament so they are with us no later than Friday 15 February, the last date on which they could be laid in order for them to be passed by 29 March—and that is assuming they are not prayed against.

If we assume this Bill completes Third Reading today, that gives the Lords about three weeks to complete their consideration—and the Minister will no doubt be crossing his fingers that they do not table any amendments. That seems to be a tall order, and given the Committee’s comments on this amendment the Lords may well be minded to send the measure back to us, but in either case it all seems rather a tight, if not unrealistic, timetable. I therefore urge the Minister to think through the practicalities of this; the affirmative procedure could be significantly quicker than the negative one, and it has the advantage of being far more transparent.

The Minister tried to reassure me in Committee that there would be adequate scrutiny by virtue of the Constitutional Reform and Governance Act 2010, but I am afraid that that just does not cut the mustard. Under that Act, there is a specified process enabling Parliament to object to a treaty being ratified within 21 days, but that does not automatically lead to a debate and a thorough examination of the issues of concern. The Act simply says that in the event of an objection the Government must issue a statement setting out why they still want to ratify; this process could apparently be repeated ad infinitum, and crucially under the Act there is no requirement for a debate. It would be open to either Government or Opposition to set aside some of their allotted time to facilitate a debate, but there is no requirement to do so. In addition, there are exceptions that enable the Government to ratify treaties outside the Act—for example, if there are “exceptional circumstances”, which of course is a judgment that is within Government’s gift. The measure does not cover memorandums of understanding either, and some of the older reciprocal healthcare arrangements fall within that description.

Putting new agreements into force in these extraordinary circumstances is necessary, but we simply cannot accept the clause as it stands. No matter how well-intentioned everyone might be now, once that power has been given away it is not easily taken back. Do Members want us to fund hip replacements in Arizona? Are Members comfortable with access to the NHS being used as a bargaining chip in trade deals? Of course they are not, so why do they not vote for the amendment tonight?

[Martyn Day (Linlithgow and East Falkirk) (SNP)]

I suspect this debate will be slightly less contentious than the earlier statements, and probably a lot quicker.

The Bill basically gives powers to the Secretary of State to agree reciprocal deals. However, I believe that we will not get a better reciprocal arrangements than those we currently have. We recognise the need for all these arrangements to continue, and the Scottish Government will do all they can to work with the UK Government to ensure that they do, and of course we note the legislative consent motion that has been granted. Through the Joint Ministerial Committee we believe a common framework system can be achieved that ensures these specific health arrangements can be administered through common agreement between the UK and Scottish Governments. Clearly, Brexit threatens the loss of reciprocal healthcare arrangements for millions in Scotland and across the UK. The Bill’s impact assessment makes this conclusion in relation to a no-deal scenario:

“If UK citizens in the EU are treated as 3rd country nationals (i.e. they cease to have rights of movement and access to services in EU Member States, and are treated like citizens coming from non-EU countries) some may face additional financial costs or difficulties accessing healthcare services, with potential implications for their health and wellbeing.”