Healthcare and healthcare agreements

Healthcare (International Arrangements) Bill – in a Public Bill Committee at 11:30 am on 29th November 2018.

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Question proposed, That the clause stand part of the Bill.

Photo of Stephen Hammond Stephen Hammond Minister of State (Department of Health and Social Care)

This clause goes to the heart of the purpose of the Bill. It will ensure that the Government have the discretionary powers they need to respond flexibly to all possible outcomes of EU exit; to make regulations in relation to making or arranging payments in respect of healthcare provided abroad; to make regulations to support the provision of healthcare outside the United Kingdom; and to make regulations to give effect to complex international healthcare agreements. The Government can use such regulations to confer or delegate functions. The clause also provides that the Government can issue directions to a person about exercising functions as circumstances require. The powers in the clause are needed to provide the Government with both the flexibility and capability to implement detailed and complex arrangements concerning healthcare abroad. These powers ensure that we are taking the appropriate measures to be able to respond to the multiple EU exit scenarios.

As I remarked earlier regarding the powers in clause 1, as a responsible Government we believe that it is important to take forward appropriate measures. The Bill, and the clause, will ensure that we can broadly continue reciprocal arrangements with the EU where agreed, or, if necessary, with individual EU states on a bilateral basis. The Bill will support the potential strengthening of existing reciprocal healthcare agreements with countries abroad and around the world, and will potentially add to their number as part of future health and trade policy. I am grateful to my hon. Friend the Member for East Renfrewshire, who supported this facet of the Bill on Second Reading.

Facilitating the provision of healthcare for UK nationals abroad can be incredibly complex, and the scope of these powers necessarily reflects that. For example, the EHIC system is a broad and generous scheme for all UK and EU nationals. It covers a variety of different types of care, including emergency care, ongoing routine maternity care or a trip to a GP while abroad for someone with a chronic condition.

As I mentioned, it is our intention to negotiate a future arrangement with the EU that provides broad continuation of the current reciprocal healthcare system, including our participation in the EHIC scheme. That is a complex arrangement to provide for, and requires suitable domestic implementation to ensure that it operates effectively. It is therefore necessary and appropriate for the Government to seek suitably flexible powers to make regulations and directions that will allow us to implement such a scheme. It is also appropriate that these powers should afford us the capacity to implement and make provision for similar arrangements with other countries all over the world where this would be cost-effective and would support wider health and foreign policy objectives. The powers in the clause ensure that we are taking the appropriate measures to be able to respond to multiple EU exit scenarios, including the making of regulations for, or in connection with, the funding of provision for healthcare abroad and for implementing healthcare agreements.

The regulations made under clause 2(1)(a) can be used to make provisions relating to the exercise of the payment power in clause 1. Such regulations will be by their very nature technical, operational and detailed, and so suited to secondary legislation. Regulations made under the clause may make provisions for bodies such as the NHS Business Services Authority to process and administer payments to other countries as appropriate and in accordance with any international reciprocal healthcare agreements, as it does now.

The regulations made under clause 2(1)(b) can be used to set out arrangements in connection with providing healthcare outside the UK, such as setting out administrative requirements for individuals who access healthcare services outside the United Kingdom. It may involve setting out what documents an individual might need to present, such as a valid UK driver’s licence or passport, to enable access to healthcare services outside the United Kingdom. For example, under the current system individuals need to present the EHIC card when accessing healthcare in the EU. Such details would be better suited to secondary legislation, as they are likely to be technical and detailed. They may set out different requirements for different countries, to account for variations in different healthcare systems.

Clause 2(1)(c) provides the power to give effect to an international healthcare agreement. This power can be used to implement a future reciprocal healthcare agreement with the EU, or with individual member states. It may also be used to implement future reciprocal healthcare agreements with other countries around the world as part of any future health and trade policy.

The powers in clause 2(1)(a), (b) and (c) can be used on their own or in combination with each other. They will enable the Government to provide for multiple EU exit scenarios, different types of agreements that could be implemented and variations in healthcare systems. The subject matter to which regulation powers relate is focused. They can be used only to give effect to healthcare agreements or in connection with the provision of funding for healthcare abroad.

Clause 2(2) sets out examples of the types of provision that may be included in the regulations made under clause 2(1). This list is reflective of the kind of provision that is already included in our current more comprehensive reciprocal healthcare arrangements with the EU. It has been included to give Parliament clarity about how the Government may exercise the regulating powers. Clause 2(2) is illustrative, as the Government must retain the flexibility to implement international healthcare agreements through the regulations created in clause 2(1), where details of those agreements are subject to negotiation.

Clause 2(3) provides that the Secretary of State may give directions about the exercise of functions delegated or conferred in the regulations under clause 2(1). The Secretary of State can set out to relevant bodies how their functions should be carried out by using directions. They may use directions to ensure that any conferred or delegated functions are discharged effectively and in accordance with the relevant healthcare arrangements; they may also direct bodies that administer reciprocal healthcare agreements, such as the NHS Business Services Authority, which currently administers the EHIC arrangements. Once healthcare agreements and arrangements are negotiated, we will be in the best position to decide on the appropriate bodies to administer the arrangements, which may need to be directed as a result.

Clause 2(4) gives the Secretary of State the power to vary or revoke the directions given under clause 2(3). Clearly, over time, directions may need to be updated or replaced. This is the standard power that provides for that. The delegated powers enable the Secretary of State to legislate for whatever negotiated outcome is reached with the EU, including the possibility of maintaining full policy coverage of EC regulation 883/2004, and the associated rights concerning access to healthcare.

It is essential that the Government take appropriate measures to ensure that we can respond flexibly to facilitate healthcare for UK nationals abroad, and that is ultimately what the clause is about. In my closing remarks on the clause, I stress to members of the Committee exactly how vital it is for the Government to retain sufficient flexibility to facilitate the access to healthcare abroad across a range of potential EU exit outcomes. The powers in the clause will ensure that the Government can make regulations to provide for complex and varied schemes, such as EHIC, should they be part of future reciprocal arrangements. I recommend that the clause stand part of the bill.

Photo of Justin Madders Justin Madders Shadow Minister (Health and Social Care), Shadow Minister (Business, Energy and Industrial Strategy) (Labour) 11:45 am, 29th November 2018

It is a pleasure to serve under your chairmanship, Mr Stringer. First of all, I join the Minister in thanking those witnesses who came and gave evidence on Tuesday. There were certainly some helpful comments that we will no doubt return to in Committee.

As was made clear on Second Reading, this is a very important piece of legislation. More than 190,000 UK expats live in the EU and of course there are 50 million British visits within the EEA countries each year: all those people want clarity about what the arrangements are in the event that they will need healthcare. So we do not oppose the principle of the Bill. We absolutely agree that it is important that there are arrangements in place after 29 March 2019 and into the future. However, we are concerned about a number of issues, some of which I referred to on Second Reading and some of which we will discuss today.

It is fair to say that there are concerns about the breadth of powers that the Secretary of State is requesting in clause 2; I do not believe they would be countenanced at all under normal circumstances. I appreciate that we are not in normal circumstances and I am grateful to the Minister for setting out how he envisages those powers will be used in practice. We are not here to judge things just on what the situation is at the moment, but on how the powers could be used at some point in the future. With regard to that, the Minister referred to this Bill being used possibly to further foreign policy and trade objectives. When he responds, I would be grateful if he expanded on what he has in mind.

To compound our issues about the scope of the regulations, we are also concerned about our lack of opportunity to scrutinise them; we will return to those concerns when I move amendment 2 to clause 5 later on. Of course, we are not alone in having concerns about the scope of this clause and the lack of clarity about how the powers might be used. In the evidence session, Raj Jethwa, Director of Policy at the British Medical Association, said:

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

We will certainly push for that today.

The Delegated Powers and Regulatory Reform Committee in the other place went further than that, describing the scope of clause 2 as “breath-taking”. As that Committee correctly pointed out, there is no limit to the amount of any payments, to who can be funded or to the types of healthcare being funded. The regulations can confer or delegate functions to anyone, anywhere, and primary legislation can be amended for these purposes.

It is also worth noting that although this legislation has been presented as a Bill to enable us, as far as possible, to retain the arrangements that we already have—who would disagree with that?—the powers conferred by the clause, as I think has been conceded by the Minister, can go far beyond the current EU and EEA countries that we are primarily concerned about.

We consider the powers in the clause to be inappropriately wide, if they are not going to be subject to the correct levels of scrutiny. At this eleventh hour, we understand why a certain level of flexibility is being sought by the Government, but with that request comes a responsibility to ensure that proper parliamentary scrutiny is exercised.

Rather than oppose the clause in its entirety, we believe that the appropriate remedy would be to ensure that any regulations introduced under the Bill will be subject to the affirmative procedure. We will return to that point when we consider amendment 2 to clause 5.

Photo of Stephen Hammond Stephen Hammond Minister of State (Department of Health and Social Care)

The hon. Gentleman is right to say that these powers are flexible. Part of the reason for that is that there may well be a need to anticipate the sort of bilateral arrangements that we put in place in the future—notwithstanding our hopes that we will secure a continuation of the current reciprocal healthcare arrangements, which is our ambition. When we come to debate not only the hon. Gentleman’s amendment, but clause 5—when the discussion on scrutiny of these arrangements should take place—I will seek to reassure him that the procedures in place will allow for the usual and appropriate parliamentary scrutiny of the Bill.

The hon. Gentleman talked about the powers being too broad. The Bill has a very focused purpose: to ensure that the reciprocal healthcare arrangements, which benefit UK nationals abroad and also EU and non-EU nationals in the UK, are continued. He also challenged me on the issue of potential future trade or foreign policy objectives. As he will know, we already have arrangements with a number of countries outside the EU, and the Bill must have the flexibility for the continuation and updating of those arrangements. The matter will clearly be of operational importance—potentially, it will be a policy decision after exiting the EU. Were a UK holidaymaker going abroad to a non-EU country, they would clearly expect the Government to have in place—or to have the potential to put in place—the reciprocal healthcare arrangements that would allow them to be treated should that be necessary.

I hope those words will satisfy the hon. Gentleman that the clause needs to stand part of the Bill. We can have the appropriate discussion about scrutiny in somewhat more depth when we debate clause 5.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3