My Lords, it is a great honour to speak to the Healthcare (International Arrangements) Bill, on behalf of the Government, as my maiden speech—as my noble friend the Leader of the House put it so encouragingly when we first met, “straight in at the deep end”.
Before addressing the Bill in earnest, however, I hope your Lordships will indulge me as I record my profound thanks to noble Lords from across the House for their warm welcome over the past few weeks. I thank particularly my noble friend Lord Younger, Black Rod and the parliamentary staff who have so patiently guided me through the processes and procedures of this place. I offer special thanks to our wonderful doorkeepers, who have on more than one occasion rescued me from complete disorientation. I must also pay tribute to my two distinguished supporters: my noble friend Lord O’Shaughnessy, who is, I am sure we all agree, a formidable act to follow, and my noble friend Lord Young of Cookham, one of our truly great parliamentarians, as well as a former Health Minister himself, of course. I am grateful for their continued advice and support. Last, but certainly not least, I put on record my sincere thanks, and those of my whole department, to my noble friend Lady Manzoor, who has so ably covered departmental business, responding tirelessly on topics ranging from tooth decay to sepsis to breast cancer, not to mention fielding a few lengthy SIs with grace and good humour.
I understand that it is a tradition to treat those of us who have come from the other place to a lesson or two in the nature of truly forensic scrutiny and expert debate. I humbly await my tutorial. However, I am sure the House will also appreciate that I remain very proud to have been elected by the constituents of Oxford West and Abingdon, and the outcome of the 2017 election was a great sadness for me. It was, of course, my home seat. My father was a cardiologist. He met my mother, then a scrub nurse, in an operating theatre in the Radcliffe Infirmary in north Oxford in 1973. On many a doorstep, constituents would tell me how fondly they remembered my father, who had treated or taught them, before proceeding to tell me in no uncertain terms that this did not mean that they would be voting for me.
It was a constant joy to represent such a research-intensive seat, where constituents were always so informed, engaged and unsparingly direct. I used to say that not only was I the only MP to get footnoted letters but I had to spend constituency days constantly at the ready for impromptu tutorials from world experts. Indeed, on one visit to the Rutherford Appleton Laboratory, a particularly keen particle physicist sequestered me in his office for a full 45-minute lecture on the nature of the muon—and, naturally, why STFC funding for his project should be maintained.
It is for this reason that when Garter Principal King of Arms asked me to choose a title, I had no hesitation in selecting north Oxford, the place where I have grown up physically and intellectually all these years. I have a suspicion that—although my previous roles as chair of the Commons Science and Technology Select Committee, Health Minister and chair of the Human Tissue Authority will of course prove valuable—my former constituents, who were so expert and so challenging, will actually have done the most to prepare me to serve your Lordships as a Minister in this Chamber.
I congratulate my noble friend on a truly outstanding maiden speech and say how delighted I am to see her in her place. Her speech has shown a glimpse of the many qualities that she will bring to this House: her intelligence, her humour and her commitment to public service. She did not mention that she is also a superb singer and flautist; perhaps today is not the day, but I hope she will give noble Lords the opportunity to hear and appreciate her musical skills at some point. I have dropped her in it now—not for the first time.
Not only did my noble friend give me the great honour of supporting her introduction yesterday but we had the opportunity to work together as Ministers for six months. During that time, she gave me one of the best pieces of advice I have ever had: watch your mailbag. It is an early warning signal when things are going wrong and problems need to be seen to. Because I was watching carefully under her very sage advice, I noticed more and more letters about problems with transvaginal mesh and sodium valproate. In many ways, they led to the review that my noble friend Lady Cumberlege is carrying out on medicine and medical device safety. That is the kind of impact that my noble friend has already had in her life as a Minister and she will go on to have an even more profound impact. She will know as well as I do that it is a huge privilege to hold the job that she does and I hope she enjoys it as much as I did. I would also like to join her in congratulating my noble friend Lady Manzoor on holding the fort so ably in the last month.
The Bill before us is an incredibly important piece of legislation, for two reasons. First, it will give the Government the powers they need to continue our mutually beneficial reciprocal health agreements with EU member states. The advantages of these are already enjoyed by many of our citizens: 250,000 British tourists make medical claims every year under the EHIC card, 180,000 British pensioners live in the EU and hundreds of people take planned treatments paid for by the NHS but delivered abroad.
My Lords, before I revert to my usual mode of careful scrutiny, I offer a sincere triple congratulations to the Minister: first, on her elevation to this place—she did a great job in the other place and we welcome her here—secondly, on her appointment as Minister; and thirdly, as the noble Lord, Lord O’Shaughnessy, said, on a really excellent maiden speech. She comes to us with a great reputation and, I understand, undoubted ability. Given this Bill, she is going to need a lot of that.
This is an astonishing piece of legislation. With respect, relatively few have understood the wide and serious implications—and the consequences—of this Bill. I am astonished that the Scottish Government have not seen the implications, and that some of my colleagues down in the other place have not yet seen them. Thankfully, our Delegated Powers and Regulatory Reform Committee has understood it and produced a very good report. I am particularly grateful to the noble Lord, Lord Blencathra, and his colleagues for it. It particularly refers to Clause 2. I have read a few reports in my time, but this is really quite devastating. I will quote from it:
“We draw attention to clause 2 of the Bill. If the reason for the Bill’s introduction is to protect British citizens if a ‘no deal’ scenario affects current reciprocal healthcare agreements with other EU countries”,
which it does,
“clause 2 of the Bill goes considerably wider. It allows the Secretary of State to make regulations”,
first,
“in relation to the payment by the Secretary of State of the cost of all forms of healthcare … provided by anyone anywhere in the world”—
astonishing—secondly,
“for and in connection with the provision of any such healthcare, provided by anyone anywhere in the world”,
—dangerous procedure, but also that there is very scant scrutiny in that procedure. The report states that the regulations are subject to the negative procedure,
“save where they amend primary legislation. If, without such amendment, 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 is really quite astonishing. That is a great report. I could not have done better myself.
Anywhere. That is just a random choice. It could be Texas or Alaska—it would be a bit more expensive in Alaska.
That is a really wide provision. Before we finally pass this Bill, Clause 2 needs drastic amendments. I say to my noble friends on the Labour Front Bench, to my friends—and they are my friends—on the Liberal Democrat Front Bench, to members of the committee and to Cross-Bench and Conservative Members that I hope that we will see those amendments in Committee. I hope that we will properly scrutinise this Bill because it has not yet been done.
The inevitable consequence of the Bill is to replace a system that works well and gives peace of mind to many thousands of British citizens with completely unnecessary worry and uncertainty. Whatever the Minister says, it will be about damage limitation. Of course, the worst of all options is no deal, which would immediately remove the guarantees which British citizens living in the European Union and European Union citizens in the UK currently take for granted. That the no-deal option is still on the table is an indictment of the Government and their failure to face up to the consequences of their attempts to appease the hard right of the Tory party. All we are offered by the Bill is uncertainty and “Trust the Minister; everything’ll be okay”. The Bill allows her or him to do just about anything, but instructs them to do absolutely nothing. That is a recipe for uncertainty.
Let us first take the S1 scheme, which is central to this debate. This allows individuals from one EEA member state to receive healthcare in another, with the cost of that care met by the state in which the patient would ordinarily reside. Some 190,000 UK pensioners living in the European Union or the EEA are currently registered for this scheme. What happens to their rights if we leave without a deal? Many would have to return to the United Kingdom in fear of facing astronomical health bills elsewhere. That would affect not only those currently benefiting from the S1 scheme but the NHS, which would have to take the strain of the increase in number of elderly returning citizens. A report by the Nuffield Trust estimated that if expats returned in large numbers, we would require 900 extra beds and over 1,000 more nurses. Where would they come from? It certainly would not be from European Union countries, since the Government are already busy telling them that they are not really welcome in the United Kingdom.
If we lose this right, the only ones celebrating will be the insurance industry. When I tweeted something about the EHIC no longer going to be available, lots of people tweeted back saying, “Ah, but we can get travel insurance”. That is all right if you are reasonably wealthy, but for ordinary people who have struggled just to get enough money to go abroad, it is an extra cost.
These arrangements are the cornerstones of the freedom of movement principle which the European Union rightly sees as its own but which the UK Government, sadly, are hell-bent on opting out of. There are those who point to the deal that the EU has with Switzerland at present. It is true that, under the Bill in the event of no deal, we would be able to implement new bilateral agreements with European Union states, Norway, Iceland and Switzerland. This would be lengthy and costly, ultimately leaving the European Union without reciprocal arrangements for an unknown period. I raised this with the Minister and her counterpart in the Commons when they kindly held a briefing on it. They would be scrabbling around the European Union—indeed around the world—negotiating bilateral agreements. If the Health Secretary is as successful in doing deals as the Trade Secretary, there are going to be an awful lot of sick Britons scattered around the world for years to come.
We need to approve the Bill—of course we do; the Minister said it; the noble Lord, Lord O’Shaughnessy, said it—but with some appropriate and significant amendments to Clause 2. Without it, the Secretary of State will not even be allowed to do the deals which will protect British citizens abroad. However, there should be no doubt at all that the very good arrangement which we have at present is being replaced by, at the very least, an inferior one. It remains to be seen if the operative word really is “inferior” or if, as I fear, “disastrous” is a better way to describe what we are facing if we go for no deal. I hope everyone in this House will do everything they can to ensure that that does not happen. For the health of British expatriates and of those of us who travel overseas, it is vital that we do so.
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.
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?
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.
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I am mindful that the Companion states that maiden speeches should be short and uncontroversial. Short, perhaps, is within my gift, but I fear that my subject matter may diverge from strict convention. EU exit raises the collective blood pressure so notably that I have often wondered whether public health language should be developed for just such occasions. However, during its passage through the other place, the purpose of this Bill attracted cross-party support, and for good reason. However varied our views may be on our future relationship with Europe, 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.
In addition, as we look to a future increasingly defined by global mobility and chronic illness, it is the responsibility of government to consider, with all appropriate care and scrutiny, a more comprehensive approach to reciprocal healthcare. Your Lordships will know that current reciprocal healthcare arrangements give people retiring abroad more security, support tourism and enable essential mobility in our economy. The UK is party to a number of reciprocal healthcare agreements, which range from light-touch arrangements with Australia and New Zealand to the more complex EU reciprocal healthcare system.
I will briefly outline the latter: the UK funds healthcare for 180,000 pensioners and their dependants in the EU, living principally in Spain, France, Cyprus and Ireland. We fund needs-arising healthcare in the EU for UK tourists and students. The scheme is hugely popular. There are 27 million EHIC cards in circulation in the UK, resulting in around 250,000 claims each year. We directly fund healthcare for 10,000 posted workers and their dependants in the EU, EEA and Switzerland, and we fund around 1,350 UK residents to travel overseas to receive planned treatment in the EU, primarily maternity care.
The cost of EU reciprocal healthcare is £630 million a year, and at present we recover £66 million each year. This amount is increasing as the NHS gets better at identifying EU visitors and ensuring that the UK is reimbursed for care provided, but it is likely to remain a net spend because many more British pensioners go to Europe than the other way round. Unless there is a dramatic change in the weather across the continent, our models do not forecast that changing much in the near future.
It is clearly in the interests of the British public to ensure that reciprocal healthcare arrangements similar to those currently in place continue when we leave the EU, whether that happens through an agreement with the EU itself, as we very much want, or through bilateral agreements with individual member states in the unlikely event of no deal. For this reason, although this is a short Bill of just six clauses, it is vital. The powers in it are designed to ensure that, no matter the outcome of the exit negotiations, British nationals living in European countries and EU citizens living in the UK, not to mention tourists and posted workers, can have certainty and continuity of care. Should we wish to, the Bill would also allow us to strengthen existing reciprocal healthcare agreements with non-EU countries and to explore new agreements in future.
The Government are determined that we will reach a deal with the EU. With a deal, the withdrawal agreement will enable the continuation of existing reciprocal healthcare rules during the implementation period, and afterwards for people covered by that withdrawal agreement. But it is not a long-term arrangement and does not provide for the unlikely event that the withdrawal agreement is not concluded. In the event of no deal, the powers in the Bill would enable the UK to act swiftly to protect existing healthcare cover for British nationals in the EU, EEA and Switzerland, whether deals are made with the EU or with individual member states. This is clearly undesirable but it is the job of a responsible Government to prepare for all scenarios.
In preliminary discussions with a number of your Lordships, I have been asked about the scope of the powers contained in the Bill. In this regard, I record my thanks to my noble friend Lord Blencathra and the DPRRC for the work that it has already done on this matter and for its characteristically robust report. I wrote last week to the committee in response to its report and have placed a copy of that letter in the Library.
So what, in detail, does the Bill do? There are three key elements. First, it seeks payment powers so that the Secretary of State can make payments for healthcare abroad. Expenditure by the Department of Health and Social Care relating to EU and other reciprocal healthcare arrangements is currently published in this place in the form of annual resource accounts in line with government reporting rules, and will continue to be so to ensure transparency. Secondly, it seeks discretionary powers to make regulations to give effect to healthcare agreements that are entered into. It is important to note at this point that any secondary legislation under this clause that amends primary legislation—Henry VIII powers—would be brought forward under the affirmative procedure, while other regulations that are expected to be technical and administrative in nature, such as replacing or updating the administrative forms, would take the negative procedure. Thirdly, the Bill seeks powers for authorised persons to lawfully share data to facilitate payments or treatments in a safe and effective way. Data would be shared in accordance with UK data protection legislation, including the Data Protection Act 2018.
It is important to note that the Bill does not affect the UK’s ability to negotiate or enter into international agreements; the power to negotiate and sign treaties is a prerogative power and always has been. It simply empowers the Secretary of State to implement agreements once they have been negotiated. The details of new reciprocal healthcare agreements will of course remain subject to negotiation and parliamentary scrutiny. I am aware that there has been some debate about whether CRaG powers are sufficient and that the Constitution Committee, so ably led by the noble Baroness, Lady Taylor, is currently conducting an inquiry into this very matter. I shall be interested to hear its conclusions.
I reassure the House that there can be no cause for concern that the Bill represents an attempt by the UK Executive to seize power from the devolved Administrations. The Department of Health and Social Care currently funds and arranges EU reciprocal healthcare for people from England, Scotland, Wales and Northern Ireland. We have been working with the devolved Administrations for some time now. I am delighted that we have received a legislative consent Motion from Scotland, and we will of course continue to ensure that we legislate for reciprocal healthcare in a way that fully respects the devolution settlements.
In particular, I note concerns raised in the EU Home Affairs Sub-Committee report debate in July, especially by my noble friend Lord Ribeiro, regarding the importance of protecting healthcare in the island of Ireland. I reassure the House that the UK and Ireland are committed to protecting reciprocal healthcare rights fully and appreciate how important it is that UK and Irish nationals can continue to access healthcare when they live in, work in or visit the other country. We also want to maintain co-operation between the UK, Northern Ireland and Ireland on a range of medical issues, including planned treatment, public health and workforce, in both a deal and no-deal scenario.
Having set out the general purpose of the Bill in broad terms, my priority today is to hear from the House so I can begin what I know will be a robust process of scrutiny and strengthening of the Bill. Reciprocal healthcare arrangements enjoy broad public support and the 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. It is designed to protect tourism and economic mobility. It is a Bill that looks to the future, giving us the ability to strengthen existing reciprocal healthcare agreements with non-EU countries and explore new agreements in the future.
I look forward to hearing the views of all noble Lords as we enter into the detail of the Bill. I will listen carefully and seek to engage as fully as I possibly can, whether with groups, by party or with individuals, so that we can ensure that proper scrutiny is given to the content and intent of the Bill. It is a necessary and pragmatic Bill. It is one that respects Parliament and the devolution settlements and looks to the future of reciprocal healthcare for generations to come. It is with that in mind that I commend this Bill to the House. I beg to move.
Secondly, as my noble friend said, as we become an independent trading nation once again, we want to be able to enter into similar arrangements with our trading partners. Lighter versions of our reciprocal healthcare arrangements already exist with Australia, New Zealand and some of the EU accession states. However, as we strike new trade and other agreements, it is absolutely right that the British Government make the most of the opportunities these present for our citizens to travel, work and retire abroad.
It is also a necessary Bill because the powers on which we base our current ability to strike reciprocal healthcare agreements derive from EU law, specifically EU Regulations 883 and 987. These will become inoperable once we leave the European Union, however that should happen. At the risk of disappointing the noble Lord, Lord Foulkes, who will speak directly after me, this legislation does not fit into his category of the no-deal planning which he believes to be a waste of time and money. It is quite the opposite: we need these powers for any deal that we strike with the EU, whether the one agreed by the PM, the one that is official Labour Party policy or any other that might emerge.
For these reasons I strongly support the Bill, which will not come as a surprise since I was the Minister responsible for it until the end of December. However, I also believe it is one that all noble Lords should support because of the benefits it will bring to British citizens. Critically, this point is recognised by the Scottish Government, not the greatest friend of either this Government or Brexit but who have exceptionally agreed to a legislative consent Motion for the Bill.
Nevertheless, as this debate will show, and as debates on the Bill in the other place and the report of the DPRRC have brought out, there are some significant questions about the legislation that must be dealt with. The first, which was the subject of Labour Front-Bench amendments in the Commons, is to do with creating specific reporting requirements on any spending involved in new reciprocal deals. I can understand the desire for such information but there is already a robust annual reporting process, which is used today and which covers reciprocal health and other departmental spending, that allows for scrutiny by both Houses of Parliament as well as by the Public Accounts Committee and the NAO. It is of course also covered in the DHSC’s annual report. If the current procedures are good enough while we are still a member of the EU, and if our intention is by and large to recreate the same kind of relationships, then I see no good reason to change this approach.
The second question is the criticism, made forcibly in the DPRRC report, that there are too few constraints on the powers that the Bill gives to the Secretary of State. I always take the opinion of the committee very seriously but in considering its view, it is essential to consider not only the intent of the Bill but its reach. On intent, as I have said, the overall aim is to agree reciprocal deals that are similar to those we currently enjoy with the EU and to strike new, more sophisticated deals with our trading partners. However, with our new-found freedoms it is likely that we will want to consider additional, yet to be anticipated approaches.
The Bill clearly ought to be flexible enough to accommodate this, because it is simply impossible to determine in advance what might be desirable as we agree new trade deals and other international agreements. On its own, I accept that this might be a cause of concern, until one realises that the reach of the Bill is in fact limited because the powers it confers on the Secretary of State can be used only within the scope of an international treaty, which will always be subjected to detailed scrutiny and approval in Parliament. In that sense, the Bill is essentially concerned with giving the Secretary of State implementation powers under the broader aegis of an international treaty, each of which will require parliamentary approval. I believe that this ought to give noble Lords reassurance that the powers in the Bill cannot be misused.
Thirdly, there is the issue of regulation-making powers and affirmative procedures, as already mentioned by my noble friend. It is somewhat ironic to find those who vehemently oppose the UK’s departure from the EU promoting this cause, given that our membership gives the UK Parliament no say whatever in whether EU law should be implemented, but let us not dwell on that inconsistency. The approach outlined in the Bill, using the affirmative procedure only for changes to primary legislation, is entirely reasonable and consistent with other legislation. Nevertheless, my noble friend the Minister will no doubt want to reflect on the findings of the committee and the views of the converts to the cause of taking back control as we move forward.
Finally, there is the issue of data security. The exchange of data is essential to any sophisticated reciprocal healthcare agreement, which is why it features so prominently in the Bill. But as my noble friend the Minister will know—she understands the data issue deeply—it is of great concern to the public, so I hope she will be able to reassure the House that we would enter into such data-sharing arrangements only if the highest standards of security can be met.
I will end by talking about what is at stake here. It is not just our citizens who support the continuation of reciprocal healthcare arrangements with our European neighbours; so do the citizens and Governments of those countries. During my time as a Minister, I went to several EU health ministerial meetings and met most of my European counterparts. As your Lordships might imagine, that involved some interesting and occasionally challenging conversations. But without exception, those countries want to continue the reciprocal healthcare agreements once we leave the EU. Indeed, while my job in those meetings was to present the case for a deep and special relationship with the EU on health and other issues post Brexit—sometimes receiving polite nods and the line “the Commission leads on negotiations”—on reciprocal healthcare, several Ministers initiated discussions with me about how we could continue our partnership in future. This is partially about financial self-interest—the UK is a net contributor to EU member states through the current arrangements—but it also reflects a profound and historical commitment, in some cases dating back pre-war, to partnership and co-operation.
What this Bill represents is not only the chance to do the right thing for British citizens and patients, but also to extend the hand of friendship to our European neighbours and our partners around the world as we leave the European Union. That is a laudable cause, which I hope will draw support from noble Lords across the House today.
and thirdly,
“to give effect to international healthcare agreements”.
It goes on to say:
“Clause 2 has a breath-taking scope. Indeed, the scope of the regulations could hardly be wider … 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 … powers and duties … on anyone anywhere … The regulations can delegate functions to anyone anywhere … the regulations can amend or repeal any Act of Parliament ever passed”—
astonishing powers—and that:
“The Government say that clause 2 ‘enables the Secretary of State to address essential matters relating to healthcare abroad’. But the powers in the Bill go much wider than essential matters”.
It continues:
“All regulations made under clause 2 are subject only to the negative procedure”.
My noble friend Lord Adonis knows that that is a very—
That brings me to the EHIC. I hope that everyone has it. I have mine. Every time I go abroad, I take it with me. We rely on it to make travel abroad a possibility. At present, 27 million active United Kingdom EHICs are in circulation. They are used to pay for around 250,000 medical treatments each year. Incidentally, I tried to find out how to apply for or to renew an EHIC. I put “European health insurance card” into the Google search. I pressed it and what did I get? “This page cannot be displayed”. We cannot find out. Can the Minister tell us why the Government are not allowing people access to the EHIC? Is it in anticipation of a decision relating to it? Is it in anticipation of a deal or no deal?
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—
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.