Healthcare (International Arrangements) Bill

Lord Marks of Henley-on-Thames Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 19th February 2019 Lords Chamber

I wanted to speak on this because there is a misconception that the purpose of this Bill ought to be to limit itself to provide continuity of the arrangements we have. That is a purpose of the Bill and the Government have been very clear about it. They were clear when I was a Minister and they are clear now my noble friend is the Minister. However it also gives us the opportunity—and why should it not?—to strike similar arrangements reciprocally with countries with which we want to deepen partnerships. It falls to this Committee to debate appropriate ways in which scrutiny and accountability are provided to look at those arrangements. It may be that the Committee believes it is necessary to put in different kinds of arrangements for different kinds of deals, a point my noble friend Lord Lansley made at Second Reading. However, it does not seem to me that because of a need for a more sophisticated approach to scrutiny based on what kind of agreements are being put forward it follows that this Bill should limit itself to repeating and continuing the deals we currently have as a result of our EU membership.

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

My Lords, this is a compendious group of amendments to a Bill that may appear simple but is made complex by the fact that it is, for all the reasons developed by the noble and learned Lord, Lord Judge, the noble Lord, Lord Lisvane, the noble Baroness, Lady Andrews, and others, frankly a constitutional affront. I of course join other noble Lords in welcoming the Minister to her first Committee stage. We tangled on some of these issues at Second Reading, but I am afraid I look forward to tangling with her a great deal during the rest of the passage of the Bill.

Most of what I will say about the powers in the Bill and its geographical scope I will address in the context of the amendments I and others have tabled to Clause 2, which are in the next group. I will also address much of what the noble Lord, Lord O’Shaughnessy, said, but I agree with what the noble Baronesses, Lady Thornton and Lady Andrews, said when they intervened during the speech of the noble Lord, Lord O’Shaughnessy. It seems that he was trying to justify international arrangements outside of our existing arrangements with the EU, the EEA and Switzerland, within the same Bill and subject to the same time constraints and breadth of powers that the existing arrangements might justify for their extension, in a way that would enable international arrangements to be made within a legislative framework that is frankly unacceptable. The whole point of our amendment in the next group is that the Bill should be drawn in tight terms to replace our existing arrangements, and that other arrangements can then be made for future international agreements.

It is always a great pleasure to hear from the noble Lord, Lord Cormack, but I have to say that whereas I have agreed with almost everything everybody else has said, on this occasion I thought his ambition was limited when he said, “I suppose we must pass this Bill and it is to be hoped that in future Bills like this will become much rarer”.

On the amendments already tabled for today and Thursday, it would be possible, certainly when they are refined on Report, to produce a Bill on this restricted aim of replicating our arrangements with the EU, the EEA and Switzerland that was not a constitutional affront. It will be our aim to enable the Government to tailor this Bill to an acceptable, laudable and desirable aim without it being the constitutional outrage that it presently is. To that end, Amendment 3 is in my name.

I completely agree with the view expressed so far in this debate that Clause 1 is wildly inappropriate as it stands. On the face of it, it gives the Secretary of State an unrestricted blanket power to organise and make payments from the pocket of the British taxpayer for healthcare outside the UK—that is, anywhere in the world. In one sense, I suppose that it could be described as a general political statement but it really is not; it confers a power on the Secretary of State that is simply far too wide.

I agree with the straightforward position taken by the noble Lords, Lord Patel and Lord Kakkar, and the noble and learned Lord, Lord Judge, that Clause 1 should simply not stand part of the Bill, and I agree with every word that the noble and learned Lord uttered. If his grandchildren say that he is banging on, I join with the noble Lord, Lord Lisvane, in saying, “Long may it continue. May he bang on unrestrained by his grandchildren, certainly on this issue, for as long as he wishes to contribute in this House”. These are important points that deserve constant repetition until they are finally listened to and we get back to a semblance of parliamentary democracy that allows proper scrutiny by this House, and the other House—where scrutiny is, frankly, often lacking.

If striking down Clause 1 is not accepted by the Committee, my amendment would at least address the fundamental point that the power proposed in the clause is not limited by any provision setting out how that power should be exercised. It would simply limit Clause 1 by insisting that the exercise of the power to make and arrange payments for healthcare abroad may be exercised only in accordance with regulations.

Clause 2(1) confers on the Secretary of State the power to make regulations, on which we have heard much already and much more will be heard later from me and others. My amendment would, however, add a limitation to the effect that the Secretary of State may not exercise the power under Clause 1 other than in accordance with the legitimate regulations. The need for such an amendment, if Clause 1 survives and stands part of the Bill, is, I suggest, self-evident. The power of the Secretary of State must be governed, defined and limited by clauses in the statute and by regulations made under the statute. That is how law-making in a parliamentary democracy must work if parliamentary democracy is to mean anything at all. If the Bill remains as drawn, I expect the Minister will say that it is the Government’s intention that regulations under Clause 2 will be constrained. However, that is not the point; the point is the potential of such regulations. My amendment would ensure that regulations constrained Clause 1 as well.

[Lord Wilson of Dinton (CB)]

My Lords, I assure the Minister that my comments, which are very much in support of the noble and learned Lord, Lord Judge, the noble Lords, Lord Lisvane and Lord Cormack, and in fact all noble Lords except the noble Lord, Lord O’Shaughnessy, are in no way a criticism of her. I heard her maiden speech, which was memorable. I think we will all remember it, and we all know that she is not responsible for the problem that she has today.

To the noble Lord, Lord O’Shaughnessy, whom I do not follow, I simply say that I think that accidentally he made a really powerful case for splitting the Bill so that we can deal immediately with the immediate problem and the Government can think more carefully about the legal framework within which new arrangements are brought forward. I thought that he made a very persuasive case; it just happened to be in the opposite direction from the one he intended.

I support the arguments made, which we have heard before. We heard them on Clause 7 of the EU withdrawal Bill, as the noble Lord, Lord Lisvane, reminded us. I still regard the word “appropriate” as objectionable, but we did our best there. We must not let only the noble and learned Lord, Lord Judge, bang on; we must not leave it to him alone. We all have to bang on about this issue because it is of fundamental constitutional importance.

I say to the Minister that this Bill is worse than the EU withdrawal Bill because, as the noble Lord, Lord O’Shaughnessy, admirably demonstrated, it is not confined to Brexit. Let us look at the use of words. The language in Clause 5 is like a red rag to a bull:

“Regulations … may amend, repeal, or revoke primary legislation”.


We cannot accept this practice creeping in general into our legislation. I believe that there is such a thing as good and bad government. I have thought about my career and the years when we were governed well, and when we were governed badly—the years when the machinery worked well, and when it worked badly. Sometimes—in the 1970s, for example—it was really dreadful, and we are in a period of really bad government now.

I remember my first Bill 50 years ago, the Trade Descriptions Bill, which I connect with this Chamber. I was a junior official. We went to see parliamentary counsel who, in those days, were venerable people. You were allowed to see them only with a solicitor present. My assistant secretary was asked why we needed a particular power, and he rather flippantly replied, “Because I thought it might be useful”. Parliamentary counsel gave him a withering look and said, “I am not going to draft a clause for you simply because it might be useful. You have to know what you want it for”. He did not know, and we did not get that power. I read this Bill today and thought, “It has all been thrown in just in case it is useful”. The Government do not know what they want; they are putting it in simply in case it might be useful later on. My goodness, the job of this House is to stand up and say no to that. In Mrs Thatcher’s words: “No, no, no”.

I hope the Minister will accept the amendment of the noble Baroness, Lady Thornton, or that she will at least pause, consider it and come back on Report. I hope that she will also consider the option of a sunset clause, which I believe will be overwhelmingly important. The Bill as drafted breaks all the rules of our constitutional understanding. We have no written constitution. The machinery of government works only because we know where the constraints are and what the rules and behaviours are. We have understandings between ourselves—Governments and Oppositions—about how we run and manage legislation. This Bill tramples on that understanding. It does so in the name of Brexit, but it goes far too wide.

I hope that parliamentary counsel will say no to the Government, in private, and that the machine will say no. I hope the Government will have the wisdom—this is about wisdom—to think again, because the precedent being set here is wholly unacceptable. We have to make a stand.

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There is a benefit to participating in the debates on the Trade Bill at the same time. We will have to think in a broader context about whether the Constitutional Reform and Governance Act 2010 provides sufficient basis for the scrutiny and ratification of treaties. We will inevitably agree some form of ratification process for such international agreements in future, and they will apply to any international healthcare agreements as well. To that extent, we should rest on that. The regulations that flow from it will be implementing legislation in relation to those agreements which, strictly speaking, under CRaG, the House of Commons can choose not to ratify—we cannot, but it can.

[Lord Marks of Henley-on-Thames]

Does the noble Lord accept that all Parliament can do to treaties is withhold agreement in the House of Commons? Is he seriously arguing that that is sufficient scrutiny of potential healthcare treaties and that this House should not persist in its objection?

[Lord Lansley]

The noble Lord invites me to go on about a subject that I anticipate Report stage of the Trade Bill will discuss in considerable detail. I do not propose to discuss it now, if he will forgive me, because this is a wide debate that raises broader issues that will have to be addressed. Quite properly, they might be better addressed in the Trade Bill, which is actually about large-scale international treaties that we are likely to enter into in short order. I am not aware of any proposals for an international healthcare agreement that will be presented in the form of a treaty that we will have to ratify in any immediate timescale. I would rather think about it under those circumstances.

I will say one more thing about sunset clauses. Because of their nature, I am rather sympathetic to the idea that, if we know legislation has a limited shelf life, we should put one into the legislation, otherwise the temptation to go on and on will be irresistible to Ministers. But I do not understand that this Bill has such a limited shelf life. We want to enter into healthcare agreements that might or might not be agreed by December 2020; they might be agreed in 2021 or 2022. In so far as they relate to non-European Economic Area countries, they might arise at any time. There is no immediate prospect of them doing so. To have a sunset clause of this kind would be potentially unduly restrictive, especially expressed as a two-year limit, as it is.

For all those reasons, the debate has been useful. I absolutely understand its importance, because I have future amendments, as the noble and learned Lord, Lord Judge, said, about the ability to amend retained EU law and the question of whether there should be different arrangements relating to agreements that replicate an EU agreement or do something different. As my noble friend Lord O’Shaughnessy rightly said, I raised that at Second Reading and I have amendments that will allow us to debate it later. Those are practical steps where we can question the structure of scrutiny and control that Parliament will exercise in relation to these regulations. A future group that I hope we will get to this evening questions the extent of the Secretary of State’s power to pay money—to whom and how much. That is important. All of us want to set down in legislation how we think Ministers’ use of this power should be structured in the agreements they might consider with other countries. Those debates will be useful, not least in terms of the Minister’s response—which I very much look forward to.

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Moved by

[Lord Marks of Henley-on-Thames]

4: Clause 2, page 1, line 11, leave out subsections (2) to (4) and insert—
“(2) Regulations under subsection (1) may be used only to the extent necessary to replicate so far as possible the model of reciprocal healthcare for the European Union, the European Economic Area and Switzerland in place before the withdrawal of the United Kingdom from the European Union.”

[Lord Marks of Henley-on-Thames]

My Lords, this group contains two amendments. Amendment 4 is in my name and the names of the noble Baronesses, Lady Finlay of Llandaff and Lady Watkins of Tavistock. Amendment 10 is in the names of the noble Baroness, Lady Thornton, and the noble Earl, Lord Dundee.

Amendment 4 addresses two fundamental faults, as we see them, with the Bill. The first is that the Bill is a global Bill, when it does not need to be. The second is that the powers proposed for the Secretary of State in the Bill are, in effect, unlimited and so thoroughly dangerous. The first point, the international scope of the Bill, has been considered in part and defended by noble Lords opposite—the Minister and the noble Lords, Lord Lansley and Lord O’Shaughnessy—in the previous group. Notwithstanding the position taken by the Government and those noble Lords, my position is firmly that the noble Lord, Lord Wilson of Dinton, and the noble Baroness, Lady Thornton, were right to say that the Bill ought to be directed solely at ensuring the continuation of the reciprocal healthcare arrangements we currently enjoy with the EU, the EEA and Switzerland, and that international healthcare arrangements outside that context should be left for another day when they can be more carefully considered, with a consideration that I raised with the noble Lord, Lord Lansley, about the effect of CRaG in the picture at that time.

That immediate EU/EEA/Switzerland Bill is what British travellers in Europe need; what EU visitors to the UK need; and, perhaps most important from a UK point of view, what 190,000 desperately worried British pensioners living in other states of the EU need to ensure that their existing healthcare will continue. The Explanatory Memorandum makes it clear that the Bill is being introduced because we are leaving the EU. Whatever our views of that decision, we all share the aim of ensuring that our current reciprocal healthcare arrangements continue.

The Bill is necessary if—but only if—we leave without a deal that secures a transitional period as envisaged by the current version of the withdrawal agreement. If we do secure the withdrawal agreement, or something like it, our reciprocal healthcare arrangements will continue, and one would hope that they would be replicated on a permanent basis before the transitional period ended. However, the Bill goes far further than is needed to achieve that limited and legitimate aim. The Government are seeking—unashamedly—to use the Bill to go global in healthcare by making arrangements with other countries across the world. That is simply not necessary because arrangements with third countries can be made at any time, and they should be negotiated and brought before Parliament properly, subject to the CRaG procedure and extra procedures. There is no urgency about that. We already have agreements with Australia, New Zealand and some others. So far as I know—and the noble Lord, Lord Lansley, knows—there are no others in the pipeline, but any which are in prospect can be dealt with individually in their own time.

The Constitution Committee, as has been said, reported on the Bill yesterday. While it acknowledged that Brexit legislation might justify,

“broader powers than would otherwise be constitutionally acceptable”,

it was absolutely clear that such powers should be used only for the limited purpose of passing that Brexit legislation. It reported in clear terms that:

“The Bill should be limited to the making of arrangements for future reciprocal healthcare arrangements with countries that participate in the existing European Health Insurance Card scheme”.

[Lord Foulkes of Cumnock]

The noble Lord has quite rightly referred to the existing countries—Australia, Bosnia-Herzegovina, North Macedonia, Montenegro, New Zealand and Serbia, as well as our independent territories—with which we have reciprocal agreements. They are being dealt with at the moment without the need for this Bill, so is my noble friend Lady Thornton not right to be suspicious, irrespective of the Minister’s assurances? We know that 24 Tory MPs and Peers have links to 15 private healthcare companies which have £1.5 billion worth of NHS contracts. We are right to be suspicious about what they are up to; indeed, there is one of them sitting opposite.

[Lord Marks of Henley-on-Thames]

My Lords, I am grateful for that intervention: I did not know the facts about the involvement of certain members of our political establishment in healthcare arrangements. I agree that we are right to be suspicious and I shall come to that later in my contribution, but for now I will go on to the second fundamental fault with the Bill, which is that the proposed powers would enable the Secretary of State not only to make healthcare arrangements with countries across the world but to make such arrangements on whatever terms he or she chooses. That is a dangerous concept.

Many noble Lords, including me, quoted the Delegated Powers Committee’s powerful first report on the Bill at Second Reading. We have now had its second report, published on 14 February. It is in similarly strong terms, speaking, for example, of,

“unprecedented powers for Ministers to make law by statutory instrument”.

The powers are described as far too wide and,

“drafted in far wider terms than are necessary to give effect to the Department’s limited aims”.

I agree with the noble Baroness, Lady Andrews, that the Government ought to be listening more carefully to that committee and to the Constitution Committee. I agree that it is frankly outrageous that, on receipt of the first report of a committee that, when I was a member of it, generally expected its reports to be accepted by the Government, instead of that report being accepted, the Government came back with a response that stuck by every word in the Bill, made no real amendments to it, and provoked the second, outraged report of the committee. That, in my experience, is unprecedented. The committee chose, on this occasion, to deal with the Bill before the Commons had finished dealing it, rather than between Second Reading and Committee in the House of Lords, and the Government, frankly, took no notice.

The Constitution Committee said:

“We agree with the Delegated Powers and Regulatory Reform Committee that the powers in clause 2 are ‘inappropriately wide and have not been adequately justified’”.


I went through the powers in outline at Second Reading. The committees have been through the powers in detail, but the Bill puts absolutely no limit on the Government’s power to enter such deals. The Secretary of State would be empowered to authorise payments and claim reimbursement at any level he or she chooses and for any kinds of healthcare arrangements. Parliament would have no effective scrutiny or control. I urge the Committee to remember the Delegated Powers Committee’s central point, which it repeated in its second report, that,

“we assess powers by how they are capable of being used, not by how governments say that they propose to use them”.

The Government now profess entirely innocuous motivations for taking the powers contained in the Bill to make international healthcare arrangements outside the European context. Indeed, the noble Lords, Lord O’Shaughnessy and Lord Lansley, almost suggested that this was an exciting prospect. In closing the Second Reading debate, the Minister spoke of,

“a natural opportunity to consider how we can best support Britons in an increasingly global world … 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”.—[Official Report, 5/2/19; col. 1488.]

She may be right. She repeats all those points in her long and detailed letter—a well-drafted, well-written and impressive letter that she sent to all of us yesterday or the day before. However, I am afraid that what she envisages as the use of the powers misses the point, as her answer to the noble Lord, Lord Brooke, on the possibility of a healthcare arrangement with the United States, illustrated. It is the powers that count, not what Ministers of the day might envisage for their use. The powers are not limited to such benign purposes.

I am not generally a cynic, but if we leave without a deal, then the day after Brexit one can foresee this Government, battered by the failure to reach an agreement, being desperately keen to make all kinds of trade deals with third countries across the world, in an effort to protect a vision of our future as “global Britain”, and no doubt to give the Department for International Trade a purpose to fulfil at the same time. There is a serious risk, in such a climate, of the Government offering third countries health deals in return for trade deals. The terms of such health deals could be seriously detrimental to the United Kingdom. Access to the NHS could be sold cheaply, and across wide and populous markets. UK taxpayers could be committed to unreasonable payments to foreign countries for offering treatment to UK citizens, and all as sweeteners to secure free trade deals. This is why I share the suspicions of the noble Lord, Lord Foulkes, and all this in an attempt to rescue an economy in difficulties—

[Lord Lansley]

I am sorry, but I am getting a bit confused here. By what mechanism does the Bill, which provides a power to make payments in respect of healthcare outside the United Kingdom, give power to access the NHS? It simply does not, does it?

[Lord Marks of Henley-on-Thames]

It simply does: you can make a healthcare arrangement with countries outside the United Kingdom in return for access to healthcare within the United Kingdom, on the same basis as the EU reciprocal arrangements do at the moment.

[Lord Lansley]

I do not mean to badger the noble Lord, but this is simply not true. The power in the Bill relates to payments for healthcare outside the United Kingdom. Governments make agreements with other Governments all the time, including trade agreements, but this Bill does not provide for what is in a trade agreement. It provides for the power to make payments outside the United Kingdom. That has no bearing on access to the NHS inside the United Kingdom.

[Lord Marks of Henley-on-Thames]

That does not, as I understand it, prevent the Government offering other countries access to the NHS on terms that are sweet for them.

[Lord Foulkes of Cumnock]

Clause 3(b) concerns,

“healthcare provided in the United Kingdom, payments in respect of which may be made by a country or territory outside the United Kingdom”.

So it is reciprocal and the noble Lord, Lord Lansley, who is one of the people involved with private healthcare, is trying to mislead the House by intervening.

[Lord Lansley]

I object to what the noble Lord has said: I am not involved in private healthcare in any sense. Not now nor at any time in the past have I acted in any way as a representative of the private healthcare sector. I think the noble Lord should simply withdraw that.

[Lord Marks of Henley-on-Thames]

My Lords, I make no aspersions on either the motivation or the interests of the noble Lord, Lord Lansley, but I think the noble Lord, Lord Foulkes, was right to draw attention to the definition of “healthcare agreement” in Clause 3, which provides that,

“‘healthcare agreement’ means an agreement made between the government of the United Kingdom and either the government of a country or territory outside the United Kingdom or an international organisation, concerning either or both of the following— (a) healthcare provided outside the United Kingdom, payments in respect of which may be made by the government of the United Kingdom; (b) healthcare provided in the United Kingdom, payments in respect of which may be made by a country or territory outside the United Kingdom”.

That makes the point I am trying to make about the danger. If the noble Lord, Lord Lansley, disagrees with me about that, perhaps we could discuss it outside the Chamber, but for the moment I regard it as a serious danger.

[Lord Lansley]

With respect to the noble Lord, we are having the debate now. I have read the Bill, and reading it out does not make his point. The Bill simply defines what a healthcare agreement is. The Government have the power to make healthcare agreements now. He is objecting to the Bill. The only power it gives the Government that they do not presently have is to make payments in respect of healthcare outside the United Kingdom.

[Lord Marks of Henley-on-Thames]

It is right that Clause 1 allows the Secretary of State to make payments out, but the point is that the regulations in Clause 2 provide for giving effect to a healthcare agreement. A healthcare agreement, as defined, allows reciprocity. My concern is that if we enter into healthcare agreements giving reciprocity on terms that are disadvantageous to the United Kingdom, that could involve our giving cheap access to the NHS.

[Lord O'Shaughnessy]

This is a reciprocal healthcare Bill, after all. Let us separate out the point that the noble Lord is making about non-EEA countries for a moment. First, why would a Government—any Government—want to make such an agreement? It is meant to be reciprocal; it is not reciprocal if it is heavily one-sided. Secondly, why on earth would the House of Commons, which has the power to reject such a Bill, accept it? It is like saying that we would trade one thing for something entirely different because it is logically possible. Well, possibly, but that does not mean that anyone in their right mind would do it.

My noble friend could not have been clearer in everything she said: this Government, whose motives the noble Lord is impugning, would not act in such a way. The insinuation he is making simply does not follow from the Bill.

[Lord Marks of Henley-on-Thames]

The noble Lord makes the point that whatever innocuous motivations may be expressed by Ministers at this stage, the powers in the Bill go far further. If there comes a stage where a Government are not so benign and have motivations that are political and unhelpful to the NHS—those could be, as I suggest, trade motivations—that presents a real risk. If easy access is given to the NHS in return, for example, for trade deals—

[Baroness Blackwood of North Oxford]

The noble Lord, Lord Marks, is very kind in giving way. It may be helpful if I clarify. The Bill is an implementing Bill, and that power can implement only an international agreement which has been entered into; it would be laid before Parliament for scrutiny under the CRaG process. That reciprocity would have to be scrutinised by Parliament.

[Lord Marks of Henley-on-Thames]

That is a helpful intervention. It brings me back to the point that all that Parliament can do under CRaG is for the House of Commons to reject the entire treaty. If there is a stage at which a Government are interested in securing a trade Bill that even a majority in Parliament may regard as deleterious to the NHS, they may decide not to throw out the treaty because that is a very strong thing to do. Although I take the view that I suspect the noble Lord, Lord Lansley, takes—that the CRaG procedures are insufficient—that merely makes the point in favour of my amendment.

We ought to be looking to the question of international healthcare agreements outside the context of the very important aim we now have of replicating EU arrangements. Taken at their worst—obviously, not if the noble Lord, Lord O’Shaughnessy, and the noble Baroness are right that these agreements will be used for wholly benign purposes for the benefit of the NHS—they could do serious damage to the NHS, which is already cash strapped. They could encourage visitors coming here to seek treatment from the NHS in competition with UK residents. They could put added pressure on a service that is already suffering from staff shortages, which will be compounded after Brexit by the additional loss of large numbers of EU doctors, nurses and vital support staff.

What the Bill needs to do, and all it needs to do, is to ensure that in the appalling event of no deal, we can attempt to salvage our reciprocal healthcare arrangements by coming to replacement healthcare agreements with our present partners. That can be simply assured by our amendment, which would leave out all the offensive unrestricted powers in Clauses 2(2) to 2(4) and substitute a requirement that regulations may be used only to the extent necessary to replicate, as far as possible, our existing arrangements.

Agreements with the rest of the world can be left for another day under clearer, more carefully constructed and constitutionally appropriate legislation, for which we will need a great deal of time to consider. I beg to move.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My Lords, I point out that if Amendment 4 is agreed, I cannot call Amendment 5 by reason of pre-emption.

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I hope that, on consideration of these points, the noble Lord will withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I propose to withdraw the amendment at this stage. We have had a lively debate, and I am grateful to everybody who has taken part in it and extremely grateful to the Minister for her comprehensive reply. In begging leave to withdraw the amendment, however, I urge the Government to consider very seriously the points made in this group and the last on the two issues that our amendment raises. The first is the global scope of the Bill and the second is the extent of the powers, particularly in Clause 2.

On the global scope, of course we wish the Government the very best of fortune in negotiating reciprocal arrangements against the horrible possibility of leaving the EU without a deal. If that can be done and reciprocal healthcare with as many countries as possible can be safeguarded in that way, that is all to the good. The Minister made technical points about the need to change our amendments to cover difficulties that might arise if they were passed in their present form. If she is attracted by the idea of restricting this Bill to EU, EEA and Switzerland arrangements, we would be very keen to discuss with her ways in which the amendment can be altered and for her to come back on Report with a different type of Bill.

On the powers, everything that needed to be said was said in the first group. Our amendment would replace the unacceptable powers with the aim of replicating the arrangements we have with the EU. If I may say so, it is a very important aim. I do not believe this House will let powers of the nature of those included in Clause 2 at present pass Report without dividing—and I have a fairly clear idea what the outcome of any such Division will be. So we will come back to this on Report—probably, in any event. It is an important issue that we raise.

On the dangers I saw in future healthcare agreements with third countries outside the EU, EEA and Switzerland, I was pressed—in a number of interventions that I can only describe as vigorous—by a former Health Secretary, a former Health Minister and an existing Health Minister, and I stood up to those interventions as best I could. But after I sat down, as one always does, I remembered something I probably ought to have said. To be fair, the noble Baroness, Lady Brinton, passed me her iPad with a mention of something I ought to have said. It was a quote from a document, and I will read it:

“The Bill will provide a legislative framework to implement any future longer-term reciprocal healthcare arrangements with the EU, individual Member States or countries outside the EU. The Bill is also a key piece of legislation to ensure that the UK can respond to all possible scenarios”.


As the Minister probably recognises, that document originated with the lady who signed it “Yours, Nicola”—the Minister. That is the danger. We are concerned; it is a concern that needs addressing. With those words, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

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[Baroness Wheeler (Lab)]

My Lords, I am moving Amendment 6 in the name of my noble friend Lady Thornton. The amendment would prevent regulations being made unless they specify the process for settling disputes concerning healthcare agreements, including the name of the responsible body or bodies, their jurisdiction, the procedure that must be followed and any further appeals mechanisms.

Amendment 9 in the names of the noble Earl, Lord Dundee, and my noble friend Lord Foulkes has similar intent but includes a specific reference to the need for information on the involvement, if any, of the European Court of Justice in the resolution of disputes relating to healthcare agreements made in the EU. My honourable friend Justin Madders doggedly pursued this matter in the Commons, particularly the lack of clarity and information about how disputes would be resolved and whether the Government would oppose the European Court of Justice having any jurisdiction where there are disputes over agreements with European countries.

Agreements between countries must be applied, interpreted and enforced if they are to be worth making. Any and every healthcare agreement made under this Act will need to stipulate a dispute resolution process that must be followed in the event of a dispute between the UK and another country. The Government have repeatedly stated that they intend to end the jurisdiction of the European Court of Justice in the UK. However, it is hard to see how leaving the EU will not still involve some sort of continuing role for the ECJ in cross-border disputes. I understand that in the event of a deal under the terms of the draft Brexit withdrawal agreement, mechanisms for resolving disputes would be through consultation at the Joint Committee and, if that is unsuccessful, an independent arbitration panel. However, if any dispute rests on the interpretation of EU law, the arbitration panel refers the case to the ECJ for a binding decision. We have yet to receive any clarity on how disputes will be adjudicated in a no-deal scenario which, following the Government’s historic defeat in the meaningful vote and failure to renegotiate the backstop, looks increasingly likely.

In dispute resolution, would the ECJ also be the final tier and ultimate arbitrator? The European Commission’s negotiating guidelines say that the ECJ should be able to decide any disputes that involve the interpretation of EU law that still applies to the UK, rights of citizens or the financial settlement between the UK and the EU. While the draft EU withdrawal agreement does contain the bare bones of a disputes process through consultation at the Joint Committee level and, if that is unsuccessful, independent arbitration if requested, the response from the Government to a no-deal scenario is so far just to refer to having case-by-case bilateral dispute resolutions included in negotiations, with no single dispute resolution process. What further work has been undertaken by the Government on how this process will operate? What kind of dispute resolution procedure does the Minister envisage in the case of bilateral agreements with individual states?

The Minister’s response in the Commons did not appear to contain any confirmation that there were red lines on ECJ involvement in the case of the uncharted territory and chaos we would have in respect of disputes over reciprocal health agreements if there is no deal. Is the Minister able to clarify today the position of the Government? It is difficult to see what incentive there will be for other countries to agree a brand new architecture for dispute resolution, let alone pay for one. Is it not only desirable but inevitable that the ECJ will need to play a continued role in dispute resolution on these matters?

The Minister has previously advised that the Government are in “advanced negotiations” for bilateral healthcare agreements with at least five EEA countries as part of the Department of Health’s no-deal planning. Can the Minister advise what dispute-resolution mechanisms have been discussed in each case and whether the Government’s position is still that the ECJ will have no jurisdiction over such issues? Can she also tell the House what alternative institutional mechanisms have been discussed?

[Lord Marks of Henley-on-Thames]

My Lords, I will speak to the amendment in my name and that of the noble Baroness, Lady Thornton.

As the noble Baroness, Lady Wheeler, pointed out in moving the amendment, our existing arrangements are the result of European law. The EHIC scheme is provided by EU regulation 883 of 2004. As was mentioned at Second Reading, there are 27 million active EHICs in circulation. Most importantly from our point of view, the S1 scheme entitles 190,000 UK pensioners living elsewhere in the EU to healthcare provision on the basis that they are in receipt of a UK pension. The scheme also entitles anyone enjoying an income from a particular member state but living elsewhere within the EU and EEA countries to reciprocal healthcare. The S2 scheme authorises pre-authorised elected health and maternity care abroad for those away from their country of residence or those who choose to go away to receive that care. The S1 and S2 schemes are established under the same EU regulation. The patients’ rights directive enables patients from one EU or EEA country to access specialist or high-quality healthcare available in different member states of their choice and to claim reimbursement from the member state of which they are resident. The common feature of all these beneficial arrangements is that they are established under European law.

I repeat all the questions that the noble Baroness, Lady Wheeler, has asked. My concern is that there seems to be an aversion, which I would accurately describe as pathological, among members of the Government, and many advocates of Brexit in the Conservative Party’s ranks, to dispute resolution that depends on the European Court of Justice having a role that ultimately monitors the development of the law. It is important to ensure that, whatever arrangements we have for reciprocal healthcare, we have a sensible and practical dispute-resolution system, and one that develops in accordance with EU law under the regulations and the directive that are being replicated.

No one has come up with any suggestion at all that there is anything wrong with or unworkable about the arrangement whereby our legal rights to reciprocal healthcare are embodied in domestic law but are subject to an appellate arrangement that ensures consistency across the EU and the EEA under the aegis of the Court of Justice of the European Union. But if political dogma is to drive us to adopt an alternative, the Government need to start thinking now about what that alternative will be and how it will ensure the important objective of securing a body of healthcare law, consonant with the law of the European Union, that will apply to future arrangements with our partners as developments continue. I support this amendment.