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‘(1) The Secretary of State must lay before Parliament an annual report setting out all expenditure and income arising from each healthcare arrangement made under this Act.
(2) The annual report laid under subsection (1) must include, but is not limited to—
(a) all payments made by the government of the United Kingdom in respect of healthcare arrangements for healthcare provided outside the United Kingdom to British citizens;
(b) all payments received by the government of the United Kingdom in reimbursement of healthcare provided by the United Kingdom to all non-British citizens;
(c) the number of British citizens treated under healthcare arrangements outside of the United Kingdom;
(d) the number of non-British citizens treated under healthcare arrangements within the United Kingdom;
(e) any and all outstanding payments owed to or by the government of the United Kingdom in respect of healthcare arrangements made before this Act receives Royal Assent; and
(f) any and all administrative costs faced by NHS Trusts in respect of healthcare arrangements.
(3) The information required under section 2(a) and 2(b) above must be listed by individual country in every annual report.”—(Justin Madders.)
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
‘(5) Any statutory instrument which contains regulations issued under this Act may not be made unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House.”
This amendment would make all regulations issued under this Act subject to the affirmative procedure and require approval from Parliament before they become law.
We want to ensure that there are appropriate safeguards with regard to costs, not least because the Bill currently gives the Secretary of State authority not only to facilitate a continuation of existing arrangements, but to enter into any number of bilateral agreements with individual member states, with very little opportunity for parliamentary scrutiny. It also provides the authority to strengthen existing reciprocal healthcare agreements with countries outside the EU, or to implement new ones across the globe, in line with the Government’s aspiration to develop trading arrangements with countries beyond the EU. There is therefore a potential for the establishment of multiple complex agreements.
New clause 1 addresses the important point that the Bill before us is rightly intended to provide for all reciprocal healthcare arrangements in the future, and to provide for all eventualities. As we know, a no-deal Brexit could lead to a multitude of new bilateral agreements within the EU27, let alone the rest of the world. At this stage, none of us can be clear about how many of those agreements will come into being. We cannot assess their likely cost or impact, and, indeed, the Government’s own impact assessment is inadequate in that regard. It suggests that the cost will be similar to, or lower than, the current £630 million per year.
My hon. Friend has mentioned potential bilateral agreements with different countries. Does he agree that there could be a problem if our citizens are not covered when travelling to those countries for a variety of purposes, and insurance companies send premiums through the roof? That is always a big factor, even with the current arrangements in Europe.
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.”
“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,
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,
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.
“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,
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
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?
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.”
In evidence to the House of Lords European Union Committee, a representative from the Association of British Insurers gave the rough estimate that in a no-deal scenario travel insurance premiums for EU travel could increase by between 10% and 20%. In Committee, we heard from Alisa Dolgova from the ABI, who informed us:
“Firms are currently pricing in the assumption that there will be a withdrawal agreement in place with a transitional period that will allow more time for the Government to enter into a reciprocal healthcare arrangement.”
There will therefore be a significant price to pay if there is no deal. There is real concern that the cost of health and travel insurance could become prohibitively high for many with underlying health conditions, and thus restrict travel arrangements. This concern was well illustrated in Committee by Fiona Loud, the policy director of Kidney Care UK, who advised us about people who undergo ongoing dialysis treatments while travelling abroad. She said:
“We have people who are taking the option to travel now because they have no idea what will happen after
She went on to advise that dialysis could cost about €1,000 a week.
Of course it is not just a no-deal scenario that we should be concerned about. The Prime Minister’s deal would have hugely damaging implications for our NHS and care services, depriving us of EEA doctors and nurses. The care sector is particularly reliant on EU citizens. The UK Migration Advisory Committee concluded that EEA migrants contribute more to health and social care in financial resources and through work than they consume in services. A November 2018 British Medical Association survey of 1,527 EEA-trained doctors across the UK found that 78% were unconvinced by promises that their rights would be protected in the event of a no-deal Brexit, 37% were unaware of the Westminster Government’s settled status scheme and 35% were considering moving abroad. Last year alone, we witnessed the loss of almost 2,500 experienced EEA nurses and midwives across the UK. In exit surveys, many EEA registrants gave continuing uncertainty about their future lives and careers as a significant factor in deciding to leave the register and the UK.
All these concerns would be compounded, should the reciprocal schemes cease and UK citizens return home to receive treatment. The British Medical Association and the Nuffield Trust have estimated that if all those people—mostly pensioners—were to return to the UK, the NHS would need some 900 additional beds and 1,600 nurses to ensure sufficient capacity. All in all, providing this additional healthcare would cost around £1 billion. It would be fair to say that I have a number of concerns. Current progress appears to prioritise pensioners and, welcome though that is, it does not give enough consideration to children and adults with long-term illnesses. The effect of having no reciprocal agreement in place on sick and/or disabled children of UK citizens living abroad implies that parents and carers will have to either pay for treatment or return to the UK. Those with long-term conditions will be disproportionately adversely affected, in terms of their ability to travel, by the cost of health and travel insurance. Under existing reciprocal arrangements, the average cost of care received by UK citizens in other EEA nations is frequently cheaper than the equivalent care would be if provided by the NHS, meaning that the UK spends less on care funded through existing reciprocal arrangements than it would if that care had to be provided domestically. In conclusion, we will not get better reciprocal arrangements than we already have. Ensuring that all current reciprocal health agreements remain intact and in place must be the bottom line, regardless of what form Brexit takes.
It is a great pleasure to bring the Bill to its Report stage tonight. Before I address new clause 1 and amendment 1, it might help the House if I set out with clarity what the Bill actually does. It provides the powers to fund and arrange payments for healthcare for UK residents, or indeed former residents, outside the UK as well as to share the necessary data to facilitate this. In a deal scenario, the Bill’s powers would support the Government’s attempts and motivation to implement a future relationship with the EU from 2021 and bilateral arrangements with individual member states, should the EU agreement fall short. In a no-deal scenario, the powers would ensure that the UK was prepared for any outcome. This could include implementing any negotiated reciprocal healthcare arrangements, which might differ from the current EU arrangements, or making unilateral arrangements for UK nationals in order to assist with accessing healthcare abroad in exceptional circumstances.
I am grateful to Justin Madders for tabling new clause 1, because it gives me the opportunity to reiterate what I said in Committee about the important issue of financial reporting and facilitating parliamentary scrutiny. I note that, in Committee, Julie Cooper tabled exactly the same provision as new clause 1, and that it was defeated. I said at the time that I recognised the new clause as a device that Oppositions always used. That does not make it any less relevant, but I explained that the Government were committed to openness when it came to the managing of public money. Expenditure by the Department of Health and Social Care relating to EU reciprocal healthcare arrangements is currently published in this place in the form of annual resource accounts, and will continue to be so. However, given that we do not know the provisions and administrative processes of future reciprocal agreements, the Government are once again unable to accept the proposal. As now, the Department’s future expenditure on reciprocal healthcare would be subject to the existing Government reporting requirements.
However, the hon. Gentleman’s new clause asks the Government to place a statutory duty on future Administrations to collect and report on data, which we have not yet agreed to exchange with other countries. This cannot be appropriate. The frequency and detailed content of a financial report should and could be determined only when reciprocal healthcare agreements have been reached. Currently, the UK and other EU member states are able to collect data and report both nationally and at EU level, as provided for in the relevant EU regulations. Spending on EU healthcare is reported as part of the Department of Health and Social Care annual report and accounts laid before this place.
My Department is currently working to ensure that UK nationals can continue to access healthcare in the EU in exactly the same way as they do now, either through an agreement at EU level or through agreements with the relevant member states. In either case, we will have to agree how eligibility is evidenced, the way in which and frequency with which that information is exchanged and, of course, the reimbursement mechanisms that will govern the new agreements.
I have listened closely to what the Minister has said. It would be helpful if he could offer some reassurance to Irish citizens living in Northern Ireland who, under the terms of the Good Friday/Belfast agreement, are entitled to regard themselves as Irish citizens, British citizens or indeed both. I presume that their rights will continue unchanged in Northern Ireland after Brexit. Am I right?
The hon. Lady is completely correct. We explored that in Committee, and discussed the purposes of the common travel area. Indeed, there was an explicit debate in Committee on the arrangements for Northern Ireland. I am happy to confirm that to her.
Each of the agreements that we are seeking to strike could differ from country to country. Such agreements will have to take into account the operational possibilities and limitations of each contracting party, to ensure the smooth operation of reciprocal healthcare arrangements. This should include how NHS trusts in the UK can evidence eligibility for the treatment of non-UK citizens in the most efficient and least burdensome manner. Only when these technical details are known will the Government be able to speak confidently to the specific measures that we can report on for each country. Regardless of the specifics of any arrangements entered into, and as with all departmental expenditure, reciprocal healthcare costs are and will continue to be authorised by the Treasury supply process and to be included in the Department’s annual estimates, as well as being included in the annual resource accounts, which are audited by the Comptroller and Auditor General. I said in Committee that I hoped that the hon. Member for Ellesmere Port and Neston would be satisfied by that commitment to transparency, and I give that commitment again tonight. With that, I hope that he will feel able to withdraw new clause 1.
Turning to amendment 1, the hon. Member for Ellesmere Port and Neston again raised the important issue of appropriate levels of parliamentary scrutiny. The Government clearly recognise the importance of such scrutiny for this Bill and for secondary legislation made under it. The hallmarks of an effective and responsible parliamentary system are the processes by which we draft, consider and test legislation, and the appropriate parliamentary procedure for the scrutiny of regulations made under this Bill is the negative resolution procedure. The exception to that is where provision within regulations is needed to make consequential changes to amend, repeal or revoke primary legislation. Consequently, the Government are once again resisting that amendment.
As I have said previously, the powers in this Bill provide the Government with both the flexibility and the capacity to implement detailed and complex arrangements concerning healthcare access abroad. The remit of our regulation-making powers is tightly focused. They can be used only to give effect to healthcare agreements or arrange, provide for or fund healthcare abroad. Therefore, the subject matter to which the regulations relate is narrow. I say again that when regulations amend, repeal or revoke primary legislation, they will of course be subject to the affirmative resolution procedure, which is the appropriate level of scrutiny for such powers. However, where statutory instruments do not make changes to primary legislation, and deal with procedural, administrative or technical provisions, they should be subject to the negative resolution procedure, and that is reflected in our approach to this Bill.
We have been clear about our intentions for reciprocal healthcare in the context of exiting the EU. In the short term, our policy is to maintain the current system of reciprocal healthcare with the EU on a transitional basis until the end of 2020. That would happen automatically if there is an implementation period, and it is something that we are seeking to agree individually with member states in the event of no deal.
I welcome the Minister’s confirmation of the Government’s intentions behind this Bill. Will he confirm that the nonsense we heard from the shadow Minister about funding hip operations in Arizona is absolute tosh? While the shadow Minister may be enthusiastic about the healthcare system in the United States, will the Minister confirm that we are not?
My hon. Friend is right. I said continually in Committee and I say it again now that this Bill is tightly focused in terms of the regulations that can be made under it. We want long-term reciprocal healthcare arrangements with the EU or relevant member states, and that is the Bill’s focus.
When the UK negotiates an international healthcare agreement in the future, the most important elements setting out the terms of that agreement would, as Members should expect, be included in the agreement itself. Such agreements are likely to contain all the detail of which Parliament should have due consideration, such as who is covered under the terms of that agreement. In contrast, the regulations implementing the agreement would not include anything fundamentally new. They would contain the procedural, administrative and technical details, such as the types of documents or forms to be used. It is therefore right that regulations issued under this Bill be subject to the negative procedure. That is an appropriate use of parliamentary time. Were we to accept amendment 1, it is likely that this Parliament would find itself debating whether the forms required to process reciprocal healthcare arrangements should be changed. That would clearly be a misuse of Parliamentary time.
I once again reassure the House that Parliament will have the opportunity to undertake appropriate scrutiny of future binding healthcare arrangements. Where we strike a comprehensive healthcare agreement with the EU or with individual member states, that agreement would be subject to the appropriate parliamentary scrutiny. Part 2 of the Constitutional Reform and Governance Act 2010 sets out the process under which Parliament can review what are intended to be legally binding healthcare agreements. That provides an opportunity for parliamentary scrutiny in respect of the substance of healthcare agreements. Implementation of such an agreement, if that is by way of regulations under the Bill, will then be subject to its own scrutiny before ratification of the healthcare agreement.
Everyone in this House wants reciprocal healthcare arrangements. Overwhelming support for reciprocal healthcare has been shown throughout the passage of this Bill, including in Committee during the evidence sessions with the expert witnesses. We heard directly from several Members and evidence was presented, and there is a clear desire for current arrangements to continue.
As future agreements are subject to negotiation or yet to exist, the House will understand why it is not possible to provide draft regulations at this stage. However, I assure Members that, when implementation regulations are needed, we will publish any draft regulations during the passage of this Bill if possible. I thank the Member for Ellesmere Port and Neston for raising this vital issue and for the opportunity to put it clearly on the record that this Government are committed to proper parliamentary scrutiny of reciprocal arrangements. With that assurance, I hope that the hon. Gentleman will not press new clause 1 or amendment 1 to a vote.
Question put, That the clause be read a Second time.
The House divided:
Ayes 260, Noes 295.