House of Lords
Tuesday 12 March 2019
Prayers—read by the Lord Bishop of Southwark.
Children: Oral Health
My Lords, Starting Well Core allows commissioners, where they identify local need, to establish schemes similar to the National Starting Well scheme, which runs in 13 high-need areas. Starting Well Core has a particular focus on children up to two years old; practices engage with a wide range of partners to promote the importance of early preventive care. Areas that have so far introduced the approach include London, the West Midlands, Shropshire and Staffordshire, Cheshire and Merseyside, and Greater Manchester.
My Lords, too many five to 10 year-olds in deprived areas undergo general anaesthetic in hospitals to have their decayed teeth removed. Starting Well Core is therefore a welcome first step towards ensuring that children are seen by a dentist, preventing them from developing decay at a young age. Unfortunately, this scheme contains no educational element, only posters and leaflets available at dental practices, seen by those already attending. There are no measures to get the hard-to-reach children through the dentist’s doors. How do the Government plan to encourage all carers to take their children to the dentist, even before their first birthday? Will they please introduce supervised tooth brushing in nurseries and primary schools to combat this epidemic?
The noble Baroness asks some very important questions. I am pleased to say that 77% of five year-olds now have no visible decay, compared to 69% in 2008, which is a welcome reduction. We accept, however, that while these figures represent a significant improvement, there are unacceptable inequalities in children’s oral health. She is right that the Starting Well Core scheme is operating in areas of high need and the crucial issue is how children are sign-posted to these practices. Practices are using a mix of advertising, linking with other health professionals and actively engaging with local communities in schools and shopping centres and at local events. I hope that she is reassured by this answer.
My Lords, there are greater unmet oral health needs for people with learning disabilities. These are issues that start in childhood and continue into adulthood. Does the Minister agree that the educational methods proposed for children should be adjusted to be suitable for children with learning disabilities and extended into adult life, as suggested by the Faculty of Dental Surgery? I welcome the new government guidance that was published last week on the oral health needs of children and adults with learning disabilities.
The noble Baroness makes a very important point about ensuring that dental care is available and accessible to all. Dental commissioning responsibilities are for NHS England, which is responsible for ensuring that dental services meet local needs and helping individuals who are unable to access a dentist. She has raised a very important point about access for those with learning disabilities and I shall ensure that this is raised within the department.
My Lords, we will not reduce oral health inequalities if we do not ensure that every child is able to get their free NHS dental check-up. Dentists’ morale is so low that every week NHS dental practices are closing, leaving some patients facing a 90-mile round trip to find a dentist. A recent survey showed that three in five of all NHS dentists are planning to scale down or leave the NHS in the next five years. Government funding has fallen in real terms and we are waiting for the rollout of the new dental contract, work on which started eight years ago. Will my noble friend comment on these important changes? Programmes such as Starting Well Core will not able to help any children if there are no NHS dentists left to deliver them. I declare my usual interests, which include vice-presidency of the British Fluoridation Society.
I thank my noble friend for his question; he is of course very expert in this area. We want NHS dental services to be attractive for the profession and we remain committed to reforming the dental contract, which should help, but we recognise that there are a range of reasons for contracts being handed back, whether it is retirement, a decision to concentrate on private work or, in some cases, reorganisation of the companies providing the service. It is important that NHS England works with other local dentists to ensure that patients can continue to access dental care. There is a level of concern about recruitment and retention of dentists, and those difficulties need to be addressed by NHS England in its role as the commissioner. It is continuing to ensure that it works collaboratively with the profession and the department is keeping a close eye on this.
My Lords, tooth decay is a major source of health inequalities, as the noble Baroness has acknowledged, with 33% of the most deprived five year-olds having tooth decay, compared with 13.6% of the least deprived. In some parts of the country—the north-west, the West Midlands and Yorkshire—tooth decay rose for the first time in the last 10 years. How much investment will the Starting Well Core scheme have and for how long? When will we learn from the Government whether this has provided the right kind of remedial action for the most deprived children?
I thank the noble Baroness for her question. I shall write to her on the exact amount of investment, but there are some reassuring figures coming forward: 77% of all five year-olds now have no visible decay, compared to 69% in 2008; there has been a fall in the number of extractions per 100,000 finished consultant episodes for the first time in the last decade; and more children accessed dentistry over the last year. All this is reassuring and we are committed to improving access and equality of access to dental care—that is what the Children’s Oral Health Improvement Programme Board, led by PHE, is intended to do. It brings together 20 stakeholder organisations specifically focused on oral health. There is a significant amount of activity targeting exactly the issue the noble Baroness raises.
My Lords, children get tooth decay because they eat too much sugar and too many sweets. How far are the Government getting with the commitments they made in chapter 2 of the obesity plan to restrict advertising of high-sugar products on TV before the watershed, and price and location promotions in supermarkets?
The noble Baroness is exactly right, in that improving children’s oral health is a wider picture: it is about not just access to dentistry but a preventive approach, which is a core government priority. This is exactly why we introduced the children’s obesity plan, one aspect of which is a consultation on advertising. Proposals on that will be brought forward shortly.
My Lords, what is the Government’s assessment of the number of children receiving dental care from Dentaid, a peripatetic charity that provides emergency care in third-world countries? Does she consider this an acceptable way of safeguarding children’s oral health, and what will she do about children’s lack of access to NHS dentists in many parts of the country?
I thank the noble Baroness for her question. I shall have to write to her about access via Dentaid, which I was not aware of; it is a very important point. We are committed to driving down inequality of access and are pleased that the number of young people accessing dentists has increased. One of the key measures in reducing inequality is the Starting Well Core programme, which has targeted areas of highest need, and its performance is encouraging. However, she is absolutely right: we must drive out inequality of access to children’s dentistry and the Government are committed to doing that.
My Lords, the Government are committed to ensuring that prisons are places of rehabilitation, which ultimately reduces reoffending. Evidence suggests that former prisoners who have undertaken learning in prison are materially less likely to reoffend. We are making ambitious reforms to the prison education system to ensure increased offender attendance, routine performance measures, and greater governor responsibility over the commissioning of education.
My Lords, I thank my noble and learned friend for that response. When an offender is released from prison, they are much less likely to continue committing crime if they have a job, yet only 17% of ex-offenders are in work a year after coming out of prison. Education, training and work are essential to prisoners turning their lives around. What more can the Government do to support our prisons in delivering these vital skills and opportunities?
My Lords, we absolutely agree that education, training and work are central to prisoners turning their lives around and we believe it is right and sensible for ex-prisoner employment to come from a number of different sources. The corporate social responsibility agenda has an important place here. We have also launched the New Futures Network to engage and persuade employers to take on ex-prisoners and are developing a new policy of release on temporary licence to increase the opportunities available to prisoners to gain experience in the real workplace.
My Lords, next week I am going to a wonderful literary festival in Erlestoke prison. It is a brilliant idea and, even though there are problems of money, it shows that, if you have leadership in prison among governors, you can turn things around. It is called Penned Up, it is next week and I would love all noble Lords to come.
My Lords, I might prefer to be there next week—I might even be available. Be that as it may, the noble Lord makes an extremely good point. That is why, from 1 April, one change we are bringing in is the delegation of responsibility in these areas to individual governors so that they can take this sort of initiative forward for the benefit of all prisoners.
My Lords, does the Minister agree that the drug problem—and prisoners going in and going on to drugs—is one of the most difficult that we have in prisons? Is not getting prisoners off drugs the best help we can give with rehabilitation? Does he know the organisation Narcotics Anonymous? Some of its members are ex-prisoners who have recovered from drug addiction and go—or endeavour to go—back to prisons to help prisoners get off drugs. Is he aware that many governors will not permit them to go in and do this voluntary work? Will he explore this and invite representatives of that organisation to discuss with him how, voluntarily and free of charge, they can help prisoners to get off drugs?
The noble Lord makes a very good point: the scourge of drugs in prisons is one that we must meet if we are to improve conditions for all prisoners across the prison estate. It undermines other efforts made in regard to education and rehabilitation—there is no question whatever of that. I am not familiar with the work of the particular body that the noble Lord referred to, but I will make inquiries about what the position is with regard to its initiative. Ultimately, it will be for individual governors to determine how this matter is taken forward, but, as I indicated to the noble Lord, I will look into how we respond to those initiatives.
My Lords, given the recent publication by the Ministry of Justice of figures showing a record level of the incidence of self-harm by prisoners, a record level of prisoner-on-prisoner assaults and a 29% rise in assaults on prison staff, will the Minister acknowledge that we need not only a major reduction in the size of the prison population but increases per capita in resources on a scale not yet contemplated by Her Majesty’s Government? This would give rehabilitation the priority that many now see as an absolute imperative.
The right reverend Prelate is quite right: safe and decent prisons are the foundation of any initiative that we wish to take in rehabilitation and the reduction of reoffending. There are very real challenges there, particularly in the context of prisoners who are inclined to violent behaviour. However, it has to be understood that we are dealing with a very difficult cohort of people and that control over that cohort can be demanding. We have increased the number of prison officers over the past two years by more than 4,700. It would be fair to say that more can always be done in the face of such challenges, but we are seeking to do what we feel is appropriate to improve matters and, as I said, we believe that the delegation of more direct responsibility to individual governors will also be a step in the right direction.
My Lords, the evidence that one can find shows that short-term prison sentences, rather than tough community sentences, lead to far more reoffending. Our prisons are overcrowded and prisoners are often moved from one prison to another, thereby breaking the training programmes that they may be engaging in. Meanwhile, the third sector is being locked out of the vast amounts of money that have been made available to it by the Government. Given these issues—I know that the Government are thinking about them—could the Minister tell us when the Government will bring forward the proposals on sentencing and reducing overcrowding in our prisons, so that we can have a new programme that will reduce reoffending and save the public some money?
My Lords, the noble Lord is quite right that sentencing policy clearly has an impact on the numbers in prison. He is also right that we are looking at short-term sentencing in that context. I cannot say by what date we will have concluded our consideration of the matter but, clearly, it is important. However, it is also important that we should give confidence to the judiciary and to the public in general about the effectiveness of non-custodial sentences, so this cannot be looked at in isolation. It is necessary to look at the wider picture to arrive at a workable solution.
My Lords, the Government are working to stop illegal unpaid internships. The law is clear that anyone performing work for an employer must be paid. HM Revenue & Customs has written to almost 13,000 employers in industries which often offer internships to draw their attention to the national minimum wage rules and help them avoid being non-compliant.
My Lords, last year the Government spent £1.48 million on raising awareness of NMW legislation, and £25.3 million on enforcement. Can my noble friend therefore say what reduction there has been in unpaid internships, and how many prosecutions?
My Lords, I am not aware of any prosecutions, but I can confirm that we have spent considerable sums on enforcement in this area, as well as on other areas relating to the national minimum wage. As I made clear in my original Answer, it is important that we continue to try to enforce these matters but also to offer advice to employers to make sure that they are aware that it is illegal to offer internships that amount to work and not to pay for them.
My Lords, it is extremely important that legal careers be open to all talents and to students from all social backgrounds. Knowing that pupillages at the Bar are the gateway to the profession of barrister, are the Government satisfied with progress in ensuring that pupillages are now paid?
My Lords, pupillages at the Bar have changed considerably since the noble Lord’s day and even since my day—which is also a very long time ago. In those days they were unpaid. I will take advice from my noble and learned friend sitting beside me, but I think the noble Lord will find that most pupils are paid now.
My Lords, in 2016 the Social Mobility Commission said that any work placements lasting more than four weeks should be classified as internships and that those doing them should receive at least the minimum wage. The Bill of the noble Lord, Lord Holmes, has progressed through the Lords unamended, so it is clearly the will of this House that it should pass. Will the Minister have a word with the usual channels in the Commons to get the Bill tabled there as soon as possible?
My Lords, we will leave the last point to the authorities in another place. I appreciate that my noble friend’s Bill went through this House unamended. The Government set out their views on it. As they explained at that time, the problem with the four-week rule was that it might risk giving employers the impression that all shorter unpaid internships are legal. We want to make it clear that this is not the case. The length of the internship is not an indication as to whether it is or is not work. It is the nature of the internship that matters.
My Lords, unpaid internships are one of the factors contributing to the lack of socioeconomic diversity in the creative industries, many of which are clustered in London. The Sutton Trust estimates that it costs £1,019 a month to carry out an internship in London. This limits unpaid opportunities to people who can draw on the bank of mum and dad. Does the Minister agree that ending unpaid internships would level the playing field in the creative industries for people without the cushion of parental resource?
The noble Baroness is right to draw attention to the creative industries as an area where unpaid internships are particularly prevalent. My honourable friend Kelly Tolhurst and colleagues in the Department for Digital, Culture, Media and Sport will hold a round-table meeting shortly with representatives of employers in the creative sectors. This meeting will be used to underline our policy on eliminating unpaid internships to sector leaders and to encourage them to take practical measures to stop their use in this sector.
My Lords, on this side of the House our preference would be a ban on the use of illegal unpaid internships. The 2017 Taylor review said:
“The Government should ensure that exploitative unpaid internships, which damage social mobility in the UK, are stamped out”.
I will try a different tack. If the Government are not going to ban them completely, will they undertake an analysis of the social class and background of those who get internships? I am sure it will further highlight the inequality which leads to those who have both the opportunity, as well as the means, being able to work for nothing.
I note that the noble Lord says that his policy is to legislate in this area. He quoted Matthew Taylor, who made it quite clear that:
“There have been calls for a separate ‘intern’ status in employment law but we believe this is unnecessary. We believe that the law is clear as it currently stands. If a person is obtaining something of value from an internship, they are most likely to be a worker and entitled to the National Minimum or Living Wage”.
We do not believe it is necessary to legislate. I will certainly look at whatever research we are doing in this area and let the noble Lord know.
My Lords, in any action my noble friend takes, will he bear in mind the impact on the charity and voluntary sector? A lot of charity and voluntary groups like to take on interns, and do so to the mutual benefit of both sides, but not all charities—especially smaller ones—can afford to pay.
Fracking: Planning Guidance
My Lords, the Government note the judgment and are considering their next steps.
My Lords, I am pleased to hear that. Is this not yet another case where the Government seem to be lacking basic procedural competence? More widely, it seems rather strange that the Government want widespread extraction of methane from rocks in this country at a time when the climate crisis affecting the world is getting worse. Perhaps more pertinently to the Conservative Party, do the Government really think it is politically sustainable for them to cover large areas of the English countryside, which are often Conservative strongholds, with hundreds and thousands of fracking wells?
My Lords, in case people are misled into thinking that there are hundreds of such wells at the moment, there are not. Once again, this was a policy introduced under the coalition Government. We believe that the technology is worth looking at, because methane presents a bridge between fossil fuels and renewables, and is the best of the hydrocarbons in terms of pollution. But we are committed to ensuring that it is also safe and environmentally sound and that there is a strong regulatory system.
My Lords, I draw the attention of the House to my relevant registered interest as a vice-president of the Local Government Association. How does the Minister respond to the suggestion that the Government have behaved irresponsibly and recklessly in these matters and that the consultation was a complete farce?
My Lords, I am not sure whether that is an accusation made by the noble Lord or somebody else: I do not recognise it as being from a neutral source, I have to say. Consultations are ongoing. There is a consultation on permitted development and on nationally significant infrastructure projects, as well as on compulsory community pre-application. The judgment itself came less than a week ago and, as I said, we are considering our position and will respond.
My Lords, I was a Minister in the department at the time, so I well recollect that and believe that it is still the current policy. That is important, but what is also clearly important is that we have safe, secure supplies of clean energy at affordable prices in this country. Those are the three guiding principles: they were then and they are now.
My Lords, I draw the House’s attention to my interest in the register as I am also a vice-president of the LGA. I know that the Government find it difficult to change their mind on things such as this, but the High Court ruling is clear that fracking is not a low-carbon energy source. Why do the Government persist in giving subsidies to that source while cutting all subsidies to solar power, which is truly clean?
My Lords, what is important to grasp is that this has a lower carbon footprint than coal or liquefied natural gas. It enables us to transition to renewables. I will just let noble Lords know that there is no use of this commercially at the moment, but it is something that should be investigated, bearing in mind the need for security, safety and caution.
My Lords, I am glad that the Minister mentioned the coalition, because, as the Government remind us, the energy world has moved on hugely since that time. The challenge now is the decarbonisation of heating and transport, so should we not forsake fracking at last, take the moral leadership on climate change back as a country and make sure that the world sees that climate change is an urgent problem and that this is part of the equation?
My Lords, broadening out the discussion, I welcome that. It is indeed the case that we need to address energy in relation to transport and the home. I believe that we have strong moral leadership on this, with our Climate Change Act and our records. That was true under the coalition and is true now.
My Lords, does the Minister not agree that the joy of fracking is that we can become self-sufficient in that type of energy, which means that we do not have to bring some 28% of our supplies by sea, as we do at the moment? Does he not agree that the risk there is that, unless we get more frigates, we will not be able to protect that supply in times of tension or war?
My Lords, as always the noble Lord makes a very powerful point about the Navy. He is absolutely right about domestic security, which also leads to security in relation to price, as it is much more likely to be consistent. We need diversity of supply, which is why we are looking to see if this can be delivered in a way that is environmentally sound and that transitions us to renewables, which of course is where ultimately we will need to be.
My Lords, given the reply the Minister has just given to the noble Baroness opposite and the contestability of mineral extraction in national parks, which has often been quite complex—for example, with the revival of defunct licences—can he reassure the House that, while he may believe that fracking will not be allowed in national parks, he will present to the House, in the Library, a determined statement of the actual situation?
My Lords, I am always grateful to the noble Baroness for bidding up my stock. I will certainly write a position paper on the current situation to the noble Baroness, copied to other noble Lords, and put a copy in the Library. I reassure noble Lords that the essence is to ensure that we have diversity, that it is environmentally sound and that there is a strong regulatory system. The noble Baroness will be aware that licences are needed for all of this, in addition to planning permission.
My Lords, given that the Government are committed to producing more energy at home, can they explain why they have removed the subsidies for micro hydropower? After all, the Industrial Revolution was driven by water power in the 18th century. In the last few years we have had one or two useful hydro schemes in Yorkshire, with small subsidies that have now been withdrawn. Could not harnessing the rivers across the north of England provide a useful additional source of natural power that would be much less damaging than fracking?
My Lords, I refer the noble Lord to the point made by the noble Lord, Lord Teverson, about the changes in energy over time. Of course, we do not need to provide subsidies in many areas, and to do so where it is not needed would not make sense.
Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2018
Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019
Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019
National Minimum Wage (Amendment) Regulations 2019
Motions to Approve
That the draft Regulations laid before the House on 19 December 2018, 28 and 31 January 2019 and 7 February 2019 be approved.
Relevant documents: 12th, 16th and 17th Reports from the Secondary Legislation Scrutiny Committee (Sub-Committee B). Considered in Grand Committee on 4 March.
General Food Law (Amendment etc.) (EU Exit) Regulations 2019
Contaminants in Food (Amendment) (EU Exit) Regulations 2019
General Food Hygiene (Amendment) (EU Exit) Regulations 2019
Specific Food Hygiene (Amendment etc.) (EU Exit) Regulations 2019
Motions to Approve
Business of the House
My Lords, I thought it might be convenient for me to say a word about today’s business. We will repeat the Attorney-General’s Statement after the Report stage of the Healthcare (International Arrangements) Bill. We will then have two important Northern Ireland Bills to consider this afternoon. A small number of amendments have been tabled to the regional rates and energy Bill. While both Bills are urgent, as my noble friend the Leader of the House made clear last Thursday, we will ensure that proper time is made available for the consideration of any amendments. The usual channels have therefore agreed to make time available next Tuesday, 19 March, for the Committee stage of the regional rates and energy Bill and its remaining stages. The anticipation and adjustments Bill is a money Bill, so we intend to complete the remaining stages formally and without amendment, in the normal way, following Second Reading today.
My Lords, I am grateful to the Government Chief Whip for making a business announcement. Will he deal with a point that I put to a Minister the other day—who said that it was not for his pay grade but up to the Chief Whip? When does he expect this Session to end, the House to be prorogued and the Queen’s Speech to take place?
Healthcare (International Arrangements) Bill
Clause 1: Power to make healthcare payments
1: Clause 1, page 1, line 3, leave out “outside the United Kingdom” and insert “in a European Economic Area country or Switzerland”
My Lords, I rise to move Amendment 1 and speak to consequential Amendments 2, 12, 13, 14, 45, 46 and 47. The House will realise that these are the same amendments that we discussed in Committee. I am grateful for the support for them that I have received from across the House: from the noble and learned Lord, Lord Judge, the noble Earl, Lord Dundee —who, we learned yesterday, cannot be with us today—and the noble Baroness, Lady Jolly. I like to think that the reason for their support, and that of other noble Lords in Committee, is the amendments’ simplicity in revising the scope of the Bill to deal with the healthcare arrangements for the EU/EEA and not the whole world.
Like other noble Lords, I am very grateful to the Minister for the time and effort she and her team have put into discussing the Bill with noble Lords. We can see from today’s amendments that the Government have listened to concerns expressed during the Bill’s stages. That is to be welcomed. I am afraid, however, that on this issue—the scope of the Bill—we find ourselves some distance apart.
We need to remember that the DPRR Committee noted the Bill’s breathtaking scope and commented that the scope of the regulations could hardly be wider. The committee said that it was one thing to introduce skeletal legislation needed in the event of no EU withdrawal agreement, but that this Bill was as much to do with implementing future reciprocal healthcare arrangements with non-EU countries—indeed, that it went much further than merely giving effect to healthcare agreements and covered the provision of any healthcare by anyone anywhere in the world. It concluded that the powers of the Bill were inappropriately wide and had not been adequately justified by the department.
This view was expanded in many ways by the Constitution Committee, which said that while the exceptional circumstances of the UK’s departure from the European Union might justify legislation containing broader powers than would otherwise be constitutionally acceptable, this did not extend to giving effect to new policy unrelated to Brexit. It concluded that the Bill should be limited to future reciprocal healthcare arrangements with countries that participate in the existing European health insurance card scheme. We agree. These are the tests that need to be brought to bear on the Bill, as was so eloquently expressed by the noble and learned Lord, Lord Judge, in Committee.
During our discussions with the noble Baroness, it was suggested that it would be in some way inappropriate for this House to reduce the scope of the Bill. If the Constitution Committee and the DPRR Committee think that this revision is appropriate, we are bound to give the matter serious consideration. Surely it our job to offer the elected Chamber the opportunity to reconsider the breathtaking scope and powers of this Bill.
Then there are the issues of practicality and policy. On the practicality test, in this pre-Brexit period—and, my goodness, we are now at possibly the most exciting bit, with the discussions that are taking place in the Commons—surely it should be the Government’s priority to ensure that the millions of British citizens currently benefiting from reciprocal healthcare agreements with the EEA and Switzerland, by virtue of our membership of the European Union, continue to do so. The same should be true for European citizens in the UK. A significant proportion of the many UK citizens living in the EU are pensioners, and they will be personally liable for healthcare costs after exit day unless a new agreement with the EU, or new bilateral agreements with individual member states, are in place. It would cost the UK taxpayer more to treat British nationals who have to return home for healthcare.
We completely accept the need for a Bill to deal with these important issues, and we wish to support the Government in getting the appropriate Bill and powers to achieve the right protections and the transfer of access to healthcare. Furthermore, as this is an enabling Bill, the impact assessment cannot and does not indicate the potential costs of administering all sorts of new arrangements with the European Union, the EEA and the rest of the world. We suggest the administration of international healthcare agreements, but this is a herculean task, and we do not think this Bill is the appropriate way to do it.
In addition, surely we need to focus on the finances of the EU reciprocal healthcare arrangements. Many trusts struggle to recoup the money owed under current EU arrangements, and some costs are never recovered. The UK is getting back less than £50 million a year for the cost of treating European patients, while paying out £675 million for the care of Britons in Europe. It seems to me that the priority is to get on top of recouping EEA healthcare costs before we start thinking of making non-EEA agreements.
The policy issue is very serious. The scope of the Bill introduces new policy into the Brexit considerations. Last year, during the passage of the European Union (Withdrawal) Bill, the Government gave an undertaking not to introduce new policy. We do not believe the Minister has argued a compelling case for the urgency of global scope, and the global scale of the Bill flies in the face of that undertaking. The policy agenda that leads to a Bill with global scope, as this one does, does not, to my knowledge, even have the cover of having been in a Conservative manifesto. There has been no consultation and we have seen no compelling evidence of the urgency, need and demand, unlike that for European healthcare arrangements.
As I have said to the Minister, a global healthcare arrangements Bill may be a legitimate aspiration. Therefore, it should be included in the upcoming Queen’s Speech. It would then have the necessary wide consultation with the many stakeholders involved that such a proposal deserves; there could be pre-legislative scrutiny; and it could be brought forward as a fully fledged Bill. That is what the global healthcare issue deserves. Trying to shoehorn an important issue such as this into a Bill that needs urgently to address EU matters, and to do so by giving the Secretary of State huge powers, is not the way to proceed. It leads to bad legislation and outcomes, as the noble Lord, Lord Wilson, told us in Committee.
I am aware that the UK currently has reciprocal agreements with several non-EEA countries, including New Zealand and Australia. The Minister has explained that these agreements are less complex, and that post exit the Government,
“may want to strengthen these to ensure that we are delivering important opportunities for UK nationals abroad”.
In her letter to all Peers dated 8 March, she states:
“This is key to delivering greater security and certainty for UK nationals post-exit, and the powers of the Bill enable us to do that”.
I agree with that aim, but this is absolutely the wrong way to go about achieving it. The Minister’s colleague in the other place put it more bluntly. He said it was the Government’s ambition to implement such agreements where it would be,
“cost-effective and support wider health and foreign policy objectives after the EU exit”.—[Official Report, Commons, Public Bill Committee, 29/11/18; col. 22.]
We suggest that this aspiration for global healthcare arrangements needs to be left until post Brexit. Nothing in the statements by the Minister justifies the sweeping powers and the blank cheque from the taxpayer which this Bill as drafted contains. I beg to move.
My Lords, I thank the Minister for her efforts to improve the Bill and her courtesy in accommodating my concerns, meeting me and discussing various amendments. I am particularly grateful to her—I emphasise this—for her amendment, which we will consider later, that delivers us from the tyrannous shackles of King Henry VIII. Perhaps this might be the start of a new understanding that the ghost of that monstrous ogre should no longer walk about the corridors of power in this country. Chance would be a fine thing but I commend a little touch of Blackwood to the House.
However, although the Bill has been significantly improved, it is still not good enough. We are faced with nine major regulatory powers, which are put before us as examples of regulations that the Bill might have in mind, or extend to. It works on the basis that we must—as we must—recognise the need of our citizens living in the EU to have their healthcare properly attended to. That puts great pressure on all of us. If it were not for that pressure, I would not accept that the scope of the Bill should be allowed to extend as far as the EU and Switzerland but I understand why it must be so. We are brought, in effect, to face up to the creation of unacceptable powers, and we have no choice, so far as the EU and Switzerland are concerned.
However, we have a choice in relation to international places other than those in the EU. There are many countries to which these powers could be extended, payments made and so on. Last time I said I was being modest. My real worry is about the creation of legislation for such places as Guadeloupe and the Galapagos; and these powers would extend to Venezuela, where the present Government may not be in power indefinitely. We therefore need to think carefully. Introducing out of the blue nine regulations, which are only examples of the powers that would be given to Ministers, goes too far. It is not the way in which we should legislate.
My objection to the Bill, and the reason why I support the amendment, is simple. We must not legislate in this way. We need time to think, reflect and ponder on what limitations and constraints should be put on the power of Ministers. We are therefore being asked to go too far under the pressure of events surrounding Brexit.
My Lords, I have in my name Amendment 4, which has a great deal in common with the other amendments in the group. It is intended to achieve two objects, the second of which is to restrict the operation of the Bill to the EU, the EEA and Switzerland—as do other amendments of the group—by ensuring that the object of any regulations under the Bill would be limited to replicating existing arrangements. The first sentence of my amendment would delete subsections (2) to (4) and thereby drastically narrow the regulation-making power to replicating the reciprocal healthcare arrangements we have now. That part of my amendment fits more sensibly with the amendments in the second group, and I shall address it then. I will be brief in speaking about this group because I agree with every word that the noble Baroness, Lady Thornton, and the noble and learned Lord, Lord Judge, said.
This House has shown conclusively that it supports ensuring that we can continue to provide EHIC cards to the 27 million British citizens who enjoy them and guarantee continuing healthcare to British pensioners living elsewhere in the EU along with the other arrangements for reciprocal healthcare that we enjoy as members of the European Union. Those arrangements are in place. They work extremely well in providing guaranteed healthcare across the countries that they cover. They enjoy very wide public support and are clear. Millions of our countrymen and countrywomen would be very unhappy to lose them as a result of Brexit, but there is absolutely no urgency for introducing legislation now for healthcare deals around the world.
Throughout the debates on this Bill, the Government have not come up with a single reason why we should not now pass this legislation limited to agreeing the continuation of our existing reciprocal healthcare arrangements while deferring legislation for new healthcare agreements with third countries to another time, and then considering the Secretary of State’s powers in the context of those arrangements in another Bill. Before we legislate for new international healthcare agreements, we should be able to consider in detail the criteria for making them, what should be their objects and limitations, what they should contain, who should be in charge of monitoring them and how we might seek to improve them. We should also have clear arrangements in place for their parliamentary scrutiny better than exists under the existing CRaG rules for consideration of treaties by the House of Commons.
It may be, as the noble Baroness, Lady Thornton, said, that international healthcare agreements could be beneficial to Britain and British citizens, but they could also be detrimental, with unacceptable increases in pressure on the NHS and with the potential for healthcare agreements being offered without proper scrutiny in exchange for trade deals on terms that many would find offensive. All we are asking on this side of the House and, as we have heard, from some of the Cross-Benchers, is to give this Bill a fair wind and pass it quickly only to enable the reciprocal arrangements that we have to be continued but giving Parliament a chance to consider carefully the far wider and more difficult issues involved in agreeing new healthcare agreements across the world. This Bill does not do that.
My Lords, I support my noble friend Lady Thornton who has done a splendid job in dealing with this Bill, in analysing it and bringing forward amendments for consideration by the House. According to the Delegated Powers Committee, this Bill has “a breath-taking scope”. I have not heard that said about any other Bill coming before the House. All the other Bills and statutory instruments that we have considered deal with providing exactly the same arrangements that we have at present in the event of no deal. They have been precautionary for that. This is the only one, as I understand it, and this is the only department that is trying to include something completely new, very wide and extensive, as the noble Lord, Lord Marks, and my noble friend Lady Thornton said.
If the Government want to do that, as my noble friend said, they can wait until the Queen’s Speech. We know that the Government Chief Whip does not know when that will be, but there has to be one eventually and that is the right time for us to consider it. We can then look at the proposals in detail and, as the noble Lord, Lord Marks, said, examine them then. These additional powers are opposed by the trade unions, the BMA and a whole range of people. Indeed, I have not found anyone except Conservative Members and Ministers in favour of this wide extension, this “breath-taking scope”, of the Bill. I hope that the House today will support my noble friend’s amendment and reject the proposal put forward by Her Majesty’s Government.
My Lords, I too support the amendments in the names of the noble Baroness, Lady Thornton, and my noble friend Lord Marks. I repeat the view that he and the noble and learned Lord, Lord Judge, expressed: we should be producing only legislation resulting from the decision to leave the EU. I thank the Minister very much for meeting us and for the government amendments—particularly to those Henry VIII clauses, which have absolutely no part in modern legislation.
I agree with previous noble Lords, but any Bill dealing with healthcare agreements outside the EU is different. I would be happy to look at these issues in another Bill at another time. As has just been said, the expansion in scope of the Bill looks opportunistic and is completely inappropriate at the moment.
My Lords, I cannot agree with these amendments. As we pointed out during the progression of the Bill, we live in a global world, with more people travelling internationally for all kinds of reasons. There is obviously a huge demand for healthcare systems between countries, giving the traveller peace of mind that the foreign country they are in can respond to healthcare needs.
As was also mentioned, we already have simple reciprocal agreements with non-EU countries. The domestic implications are limited, and our current powers to charge domestic overseas visitors, and the regulations under such powers, provide for domestic implementation. Importantly—
No, let me finish. The Bill will not replace or limit the prerogative power to enter into international healthcare agreements. My understanding is that agreements will still be subject to appropriate parliamentary scrutiny.
It is surely right for us to take advantage of the Bill and look at the opportunities it can offer us. We are not trying to shoehorn something dastardly into it. It could offer all kinds of things. It seems to me that planning ahead is a refreshing thing to do. Many of the arguments raised have nothing to do with protecting or giving peace of mind to travellers. As a nurse, my main priority will always be those needing care. The Bill allows them reciprocal healthcare outside the EU and just that. Should there be a Division, I hope that noble Lords will keep in mind those people who, under the Bill, will be able to travel globally with renewed peace of mind about their healthcare.
My Lords, this is an enabling Bill and no more. In a letter to the chairman of the Delegated Powers and Regulatory Reform Committee on 8 March, the Minister confirmed that these powers would be used only in the exceptional circumstances of EU exit. We will discover the outcome of that tonight.
In these circumstances, the regulations’ implementing powers would be subject to parliamentary scrutiny. The assurances and clear message from our debates in Committee—when the Minister was very clear, in answer to a question from the noble Lord, Lord Brooke of Alverthorpe, that reciprocal healthcare arrangements with the United States would present significant challenges because of the different payment systems and such an arrangement was unlikely—should surely be enough to satisfy those who believe that the Government still have a cunning plan to sell the NHS to Donald Trump and others.
As I said in Committee, I believe that the implementation of our international arrangements should be phased, giving priority to our overseas territories, as has been noted; our Commonwealth partners, of which Australia and New Zealand have already been mentioned; and our important international partners, perhaps excluding Venezuela and the Galapagos Islands from that list, as suggested by the noble and learned Lord, Lord Judge.
Anything enabling this to happen should be considered seriously, given the risks of what I believe is likely to be a no-deal Brexit. I do not support these amendments and I hope that the Minister will be able to come up with suggestions for how this can be implemented to overcome some of the concerns expressed from the other side.
My Lords, both the noble Lord, Lord Ribeiro, and the noble Baroness, Lady Chisholm of Owlpen, are missing the point of these amendments. While this is only an enabling Bill, it increases the scope of reciprocal health agreements with countries outside the EEA and Switzerland to include trade agreements. The noble Lords, Lord Lansley, and Lord O’Shaughnessy, at earlier stages of the Bill, raised exactly this point about setting up trade agreements. We are extremely concerned, for all the reasons given by the noble Baroness, Lady Thornton; this is the sort of large change that requires considerable consultation with the public prior to Green Papers, White Papers and bringing it through the House. We should not try to rush it through as one of the Brexit Bills, which it is, regardless of what happens over the next few days. This is one of the Bills that we were told must be passed by 29 March. Increasing the scope of the Bill means that we are moving into another area that the country, let alone this House, has not had a chance to consider.
I do not believe that reducing the scope would prevent some of the agreements already made; in fact, as the Minister has said when summing up previously, a number are already available. What it does is protect the NHS from being a bargaining tool, particularly—although not only—with the United States. Until the country has a chance to have that debate, it is important that we reduce the scope.
I endorse entirely the comments made by the noble Baronesses, Lady Thornton, and Lady Jolly, the noble and learned Lord, Lord Judge, and the noble Lords, Lord Marks and Lord Foulkes. Our task is solely to replicate the arrangements that may become out of date on 1 April; it is important that we remain focused on that.
My Lords, I too find this amendment imperative. The Bill as it stands has some exciting prospects, which are worth looking at, but if we are to go down that road we must recognise that the implications are highly complex and potentially demanding economically. It is quite unthinkable that we should move along that road without primary legislation that has been properly considered by a wide cross-section of Britain, including the professions. It is extraordinary to bring in exciting, challenging ideas of this kind on the back of a Bill concerned with making sure that the excellent arrangements that exist within the European Union are protected.
The most imperative words that we have heard in the remarks so far—apart from the, as usual, exemplary speech by my noble friend Lady Thornton—came from the noble and learned Lord, Lord Judge, who, with all his experience, said that this is just wrong and that we cannot pass major legislation on this basis. That is exactly how I feel. To dilute our commitment to those in the European Union and, indeed, to people from the European Union living in this country—arrangements will be reciprocal—would be very unfortunate. I hope the House will warmly endorse the amendments.
My Lords, I am glad to follow the last two speakers; they have eloquently made the case for supporting the noble Baroness’s amendment, as I do. This is not about supporting Brexit or wanting to remain; it is about the tension that exists between the Executive and Parliament, and the duty of this House, and of Parliament, to scrutinise the proposals of the Government to ensure that good government, as far as possible, is provided in this country.
I am very glad that the Minister has tabled the amendments that will follow later. However, I agree with the noble and learned Lord, Lord Judge: they are a step in the right direction, but that is not enough. The sweeping nature of the powers proposed in the Bill are in many ways offensive to the proper conduct of legislation. I accept that they are needed in the current situation in relation to the EU and Switzerland, but to go wider than that is wrong, I think. We have to insist on legislation being properly prepared, properly debated, properly scrutinised and properly consulted on. If, in the middle of the current turmoil, we let go of some basics of legislation, we will do ourselves harm and set a bad precedent. I shall support the noble Baroness’s amendments.
My Lords, although I do not agree with it, a lot of scepticism about the scope of the Bill has been eloquently expressed at every stage of the debate on this group of amendments so far. However, I remind noble Lords of the human consequences of restricting the Bill in the way proposed by these amendments. I think we all agree in general on the benefits of reciprocal healthcare agreements—many noble Lords have paid testament to those—and we all want to see continuity of arrangements with the EEA and Switzerland. So far, so good. However, we have also debated and agreed in principle—in Committee, at Second Reading and in this group—on the desirability of having such arrangements with more countries. Indeed, the noble Lord, Lord Foulkes, talked in Committee about the opportunities of travelling to the USA, which people with long-term conditions can no longer do because they are now uninsured.
Let us be very clear what is at stake. Accepting the amendments in this group would mean that we miss out on a golden opportunity to achieve a shared goal. What are the reasons for that? I do not agree with them, but very good reasons have been given about the kind of procedure and scrutiny that ought to be applied to the new reciprocal healthcare arrangements that we may strike with countries outside the EEA and Switzerland. This is not a disagreement about the principle of having such arrangements; it is a disagreement about the process of agreeing such arrangements. However, the consequence of these amendments is not to deal with these issues by changing procedure, scrutiny and process, but instead to strike them out on principle. That does not seem to me the right approach to very well substantiated and perfectly reasonable, but ultimately procedural, concerns. By changing the Bill in this way, we will lose the opportunity to deepen relationships with key partners such as New Zealand and Australia, as my noble friend Lord Ribeiro said. We will miss out on the opportunity to give people with long-term medical conditions the chance to travel outside the EEA to visit family or to work, and for young people to broaden their experiences. We will miss out on the opportunity to deepen—
I think the noble Baroness knows that that is not what I am saying. We will miss out on the opportunity to turn the fairly shallow arrangements that we have at present into the kind of deep arrangements that we enjoy with the EEA and Switzerland. We would also miss out on the opportunity to deepen relationships with EU accession countries and to provide reciprocal healthcare arrangements that would underpin any other international arrangements that we may want to strike in the future. All this would be lost if we were to accept these amendments.
There are other factors that we must also take into account. Amendment 9 provides greater opportunities for scrutiny and restrains the Government’s powers. The noble and learned Lord, Lord Judge, spoke of the untrammelled ability to organise agreements with countries such as Venezuela and others, but there are natural limitations—not simply the scrutiny available through the processes my noble friend Lord Ribeiro talked about, but also the need for data adequacy. We will not be able to strike such arrangements with any country we want, and they would have to be under the aegis of an international agreement scrutinised and passed in the other place and this House.
It was suggested by the noble Lord, Lord Wilson, in Committee that I had unwittingly made the case for another Bill, and the noble Baroness, Lady Thornton, talked about that. Another Bill is easier said than done, and anyone who has been in Government knows that you cannot just pitch up with a Bill. There is a complicated and often painful process of going through the PBL Committee and other committees to get such Bills. This Government are constantly accused of doing nothing other than Brexit, and here they are doing something other than Brexit. Surely this is a welcome opportunity to do something beyond the thing that, frankly, we are all a bit tired of talking about.
If not now to extend the scope of our powers to strike these arrangements on a global basis, then when? We cannot assume that another opportunity will come this way soon, and what will the human consequences of that be?
My Lords, I am privileged to follow my noble friend Lord O’Shaughnessy, and I am sure that Peers from all sides of the House will have been impressed by the thoughtful letter which the Minister has sent to us all. In it, there are a number of concessions, which will be subject to later amendments in this debate. The insertion of a sunset clause is a valuable safeguard, as are the requirements that arrangements are limited to a public authority, and the statutory duty to report to Parliament on an annual basis. All of these are important concessions. Finally, on the Henry VIII clause, the Minister’s letter refers to removing the powers in the Bill to make regulations containing consequential amendments to primary legislation. Individual healthcare waits for nobody.
My Lords, I am grateful to the noble Baronesses, Lady Thornton and Lady Jolly, and to the noble and learned Lord, Lord Judge, the noble Lord, Lord Marks, and the noble Earl, Lord Dundee, who I am sorry could not be with us today, for giving me the opportunity to deal with the important matter of the global nature of the Bill. We have already had a good deal of debate about this during our progress on the Bill, but it is a pleasure to return to it today yet again.
It is important that the Government explain why we believe it appropriate to seek powers which are global in nature. As I mentioned in my response in Committee, the EU Home Affairs Sub-Committee of this House, which is very wise, remarked that:
“Reciprocal healthcare oils the wheel of the day-to-day lives of millions of citizens”,
and brings the,
“greatest benefit to some of the most vulnerable members of our society”.
I am grateful to noble Lords from across the House, not only in the debate today but during the progress of this Bill, who have been clear that there is widespread cross-party support for the current EU arrangements, and for providing the people who rely on these arrangements with the assurance that the Government are taking all the necessary steps to support them in these uncertain times.
We clearly all support the arrangements we have with the EU. It therefore does not seem logical to preclude the possibility of seeking new arrangements or strengthening existing ones outside the EU. Where the Government have a good policy in one place, it seems logical that we should want to extend it to others. Reciprocal healthcare agreements promote tourism and facilitate economic exchange and growth by enabling people to study, travel and work abroad without worrying about their ability to access healthcare, or the cost of doing so. As we have discussed in our debates on this issue, reciprocal healthcare arrangements are particularly important for older people, people such as me with chronic conditions, or people with disabilities, for whom access or costs can be a genuine barrier to travelling.
Reciprocal healthcare agreements enable people to travel overseas for planned treatment, which enables patient choice. One of the genuine benefits of the current EU arrangements is to enable mothers to travel to a home country to give birth close to their families and support networks. That is available only to EU citizens at the moment, not to those from other countries who live here. Our existing arrangements with the EU enable around 1,350 UK residents to receive planned treatment or maternity care in another EU member state. We do not want to be forced to limit choices only to EU countries in the future.
Reciprocal healthcare agreements can also help to support international healthcare co-operation through fostering closer working relationships between countries and states. We can be proud that the UK is a prominent voice in the global healthcare community and is a key driver in global attempts to raise standards of patient safety. We could help to further drive that agenda through developing even stronger relationships with our close partners. I have heard the concerns raised by noble Lords about the costs of these arrangements. Reciprocal healthcare agreements enable countries to reimburse one another on a fair and transparent basis. Noble Lords, particularly the noble Lord, Lord Foulkes, have queried why we cannot simply rely on waiver agreements. Fair reimbursement is the key reason why. Without this Bill, we would be restricted to waiver agreements outside the EU without a way to establish fair and transparent payment and cost-recovery mechanisms.
Agreements with other countries predate the EU and have never been limited to Europe. This is one reason why the concept of restricting the Bill to the EU does not make sense. We have agreements outside the EU now and will continue to have them in the future. The noble and learned Lord, Lord Judge, and my noble friend Lord Ribeiro raised the matter of scope—the countries which the Bill would apply to. As Clause 4 sets out, data can be shared only in accordance with the GDPR and our data protection regulations. This means that no reciprocal healthcare agreement could be reached with a country that does not meet data adequacy standards. Over and above that, as my noble friend rightly noted, this scope would be further narrowed by the need to agree reciprocal healthcare arrangements only with countries that have a compatible healthcare system. This would mean that countries such as Venezuela, raised by the noble and learned Lord, Lord Judge, would simply be out of scope for an international healthcare agreement. Safeguards built into the Bill would be in place.
I make it clear that I have heard the concerns raised at Second Reading and in Committee about the global scope of the Bill and the breadth of the delegated powers. We have taken considerable steps to address the concerns about the breadth of the powers—the root cause of the concern about the global scope. As has already been referred to, we have tabled a large package of concessions, which I worked hard to try to deliver. The first was to remove the consequential Henry VIII powers; I am taken by the terminology for this now being a “Blackwood amendment”. We have limited the ability to confer functions to public bodies. We have provided greater parliamentary scrutiny over regulations relating to data processing and greater transparency over the financial aspects of future reciprocal healthcare policy in the form of an annual report. I hope that this reassures the noble and learned Lord, Lord Judge. We have placed a statutory duty to consult the devolved Administrations where regulations make provision within devolved competence. Finally, and very significantly, we will sunset two of the three regulation-making powers at Clause 2, so that they can be exercised only for a period of five years after exit day. This final amendment means that it is not possible for the Secretary of State to set up any kind of long-term scheme to unilaterally fund mental health treatment in Arizona or hip replacements in Australia, as the DPRRC proposed. In tabling these amendments, we have limited the delegated powers and therefore the scope of what can be done under the Bill around the world. We have also provided additional parliamentary scrutiny mechanisms and greater transparency.
During the debate on Amendments 1, 2, 11, 12, 13, 27, 28 and 29, from the noble Baronesses, Lady Thornton and Lady Jolly, the noble and learned Lord, Lord Judge, and my noble friend Lord Dundee—who cannot be in his place—I have not heard any concerns raised on the fundamental principle of reciprocal healthcare in countries outside the EU. Rather, I have heard the need for reassurance that in implementing agreements with other countries we seek to appropriately cost such arrangements, protect the NHS, and ensure that those countries which we strengthen or make new agreements with have appropriate healthcare systems and are able to process data appropriately. We are firmly committed to all these principles.
When the Bill was debated in the other place, questions were raised concerning the possibility of a reciprocal agreement with Guernsey, which is something we will need to look into following EU exit. This was seen as a positive possibility of the Bill; it is just one example of how our relationships might evolve and how the Bill can offer people new opportunities which they are currently denied under our legislative framework. If the scope of the Bill is limited to matters relating only to EEA countries and Switzerland, the Government would be unable to implement a reciprocal healthcare agreement with countries such as Guernsey where we are able to reimburse one another fairly. We would also be giving up the opportunity to support people, to bring them confidence and comfort outside the EU.
As the UK considers its relationship with the rest of the world, it is appropriate to take this opportunity to consider strengthening our existing agreements while exploring possible agreements with other countries. The powers under this Bill allow us to fund healthcare overseas to support UK nationals who live in, work in, study in, want to visit or give birth in other countries, while ensuring that we also have appropriate scrutiny powers within this Bill. They also allow us to extend similar opportunities to overseas nationals to use the NHS funded by their own country, making the NHS more sustainable and fit for the future. This is what we would be giving up with these proposed amendments.
There has been much debate in this House and outside it about whether there should, in fact, be two separate Bills: one to provide for implementing agreements with EU, EEA countries and Switzerland, and the other at a later date to provide for countries outside that group. I believe that this is the intent of Amendment 4, in the name of the noble Lord, Lord Marks. That would not be an effective use of parliamentary time; it would prove a barrier to the development and implementation of policy in this area that is clearly in the interests of the people whom I have already discussed. I am also not clear how different a different implementing Bill would look, as it would simply be for the implementation of international healthcare agreements and would be rather similar, whether they are for the EU country or for a country in another part of the globe. It seems to be doing the same work twice.
With the Bill, we seek to ensure that we have an implementing mechanism for reciprocal healthcare now and into the future. While it may be appropriate in other policy areas for the Government to seek new primary powers to implement specific, individual international agreements, it is simply not the case with reciprocal healthcare agreements. These agreements are not far-reaching in nature and are very limited in subject matter: they are about reciprocal healthcare. As has already been discussed, the Government already rely on the royal prerogative to enter into these agreements with other countries. This Bill is simply a smarter implementing mechanism for these agreements.
I also have concerns that Amendment 4 risks our ability to effectively implement a future relationship with the EU. Recognising the broader benefits of reciprocal healthcare, we want a long-term relationship with the EU but, as with any area of policy, we must have flexibility as to how we negotiate with the EU and how we arrange our broader relationship with it. EU law evolves and, as we discussed in Committee, there are proposals currently before the European Parliament that would mean that elements of that model might change in the near future. This amendment would prevent the UK from implementing that evolved arrangement even if that was the desired negotiating position of the UK. If we put this on the face of the Bill, we would have no flexibility on how we would do that, including agreements already concluded with Switzerland and the EEA and EFTA states. The noble Lord himself acknowledges in his amendment that flexibility is needed, but through this amendment that flexibility would be difficult to apply in practice.
In relation to all the amendments in this group I firmly believe that, in pursuing future reciprocal healthcare policy with close partners outside the EEA and Switzerland, the Government are providing hope and opportunity to people. Our colleagues and friends in the other place overwhelmingly supported this endeavour. We have introduced significant restrictions on what this Bill can do globally. However, I regret that these amendments would prevent us from being able to look to the future and embrace an opportunity for EU exit. It would be a great shame to miss that opportunity.
I recognise the valuable contributions from many Members of the House on enhancing and improving many elements of this Bill; I thank them for the time that they have given me, but I am unable to accept these amendments. I hope noble Lords will feel able not to press their amendments on that basis.
I thank the Minister for her remarks and for the attention that she has paid to this matter all the way through. Everybody appreciates that enormously. In a way, she has made my argument for me, as has the noble Lord, Lord O’Shaughnessy, because nothing in the Bill says that healthcare agreements have to be reciprocal. In a way, that proves that we do not need an international healthcare arrangements Bill: we need a European Union-EEA healthcare Bill to deal with reciprocal arrangements and do the job that we have in front of us.
I do not accept the argument put by the noble Lord, Lord O’Shaughnessy, tugging at our heartstrings, about the human consequences of this. Actually, there is nothing to stop the Government bringing forward a global healthcare Bill. I am absolutely sure that the Minister and her colleagues, with the help of the noble Lord and others, could get this into the Queen’s Speech in two months’ time, when we could have all these discussions about how it might work. He said that we do not have any disagreements in principle about this. Actually, we do not know whether we have any disagreements in principle about international healthcare because we have not had that discussion: that is the discussion we would have if we were dealing with a Bill that was being consulted upon, going through pre-legislative scrutiny and all those other things that we have been arguing need to happen if we are to have a Bill of the scope that the Minister and her party wish to have.
I thank the noble and learned Lord, Lord Judge, the noble Lord, Lord Marks, the noble Baronesses, Lady Brinton and Lady Jolly, and my noble friends Lord Foulkes and Lord Judd for their support. In particular, I thank the noble Lord, Lord Wilson, who, in his brief remarks got the argument absolutely right yet again. As I was preparing for this, I looked at the agreements we have with Australia and New Zealand, for example. These things are complicated—of course they are— and in a way that is why they deserve and need further consideration. I fear that we are not convinced by the Minister’s arguments and I would like to test the opinion of the House.
Clause 2: Healthcare and healthcare agreements
2: Clause 2, page 1, line 8, leave out “outside the United Kingdom” and insert “in a European Economic Area country or Switzerland”
Amendment 2 agreed.
3: Clause 2, page 1, line 10, at end insert—
“and may not exercise the power conferred by section 1 otherwise than in accordance with such regulations.”
My Lords, as I should have done at the beginning of the first group, I thank the Minister for her help and courtesy in discussing this Bill and in engaging with Peers across the House to see how we should proceed with it. I echo the words of the noble and learned Lord, Lord Judge, including his tribute to the Blackwood amendment in respect of Henry VIII powers. As the Minister will have appreciated and has recognised by her actions, there is a real concern about the use of delegated legislation to amend or revoke primary legislation and EU legislation.
Amendment 3 is intended to bring a constitutionally acceptable structure to the Bill. It will ensure that the powers of the Secretary of State can be exercised only within the context of regulations. I will start with a word or two about the other amendments in this group: Amendment 5, on the words “for example”, and government Amendments 6, 7 and 8, which limit the delegation of powers to public authorities.
As we have heard, Clause 2 contains the principal regulation-making powers. We had considerable debate, both at Second Reading and in Committee, about how unacceptably wide those powers are. The use of “for example” at the beginning of Clause 2(2) speaks volumes as to the disrespect shown in the Bill for the proper restriction of ministerial powers. The Delegated Powers Committee and the Constitution Committee have exposed how outrageously broad these powers are.
My amendment is directed at the absence of anything in the Bill that would limit the Secretary of State to exercising his Clause 1 powers only in accordance with regulations. One does not have to read far into the Bill to appreciate that, under Clause 1:
“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”.
This is wholly without restriction. It is this glaring deficiency—the failure to tie the Secretary of State to the exercise of powers in accordance with limitations either in the statute or contained in regulations—that my amendment is intended to cure.
The Minister frankly and commendably, if I may say so, recognised on our first day in Committee that the effect of Clause 1, if not amended in the way I suggest, would be to enable the Secretary of State to make or arrange payments without any regulatory limitation. She justified this untrammelled power—which, frankly, I find frightening—on the basis of urgency. She said that the Bill was unlikely to secure Royal Assent before March, so regulations would not be laid before the summer. If there were no deal, she explained, Ministers might need to use the powers before then. She mentioned—again, frighteningly—sharing data as well as making healthcare payments before the Government had a chance to get regulations passed to deal with these matters “more transparently”, as she put it.
This clause alone, unamended, would justify this country ruling out a no-deal exit and ensuring that our leaving date is delayed. It is an extraordinary travesty of the notion of the United Kingdom Parliament taking back control that we are asked to pass a Bill which involves ceding to Ministers an entirely unconstrained power to pay money out across the world on the sole professed ground that the Government failed to introduce legislation in a timely way, and to permit Ministers to spend public money and make arrangements of great public importance without any parliamentary scrutiny or authorisation.
I turn briefly to the other amendments in the group. Many of us still take the view that their scope is breathtakingly and unacceptably wide. The Government’s proposal to limit possible delegation of the Secretary of State’s powers so that such powers may be conferred only on a public authority is of course welcome; so is the limited five-year sunsetting provision, to which we shall return later, but, taken together, they barely scratch the surface of the massive transfer of unrestrained power from the legislature to the Executive set out in Clause 2. Of course, the sunsetting clause should be more restrictive—at least as restrictive as proposed by the noble and learned Lord, Lord Judge. Again, we will come to that later.
It goes without saying that the ridiculous and offensive restriction-busting words “for example” should be removed, as proposed in Amendment 5. However, the only satisfactory way to restrict the Government’s power to what is necessary and acceptable is for the House of Commons to now accept the amendment we just passed restricting the use of the Bill to replicating the arrangements we have with the EU, the EEA and Switzerland. We hope that it does that.
This Government and future Governments must show more restraint and respect for the proper limits to the scope of delegated legislation. In the Bill, as in others to do with Brexit, they have not done that. It is to be hoped that they return to a wiser path in future.
I thank the noble Lord, Lord Marks, for his exposition, which saves me from exploring yet again the powers in the Bill. I shall speak to Amendment 5, which is a simple amendment but one that we think might be quite clever in its intent. It states that regulations under the Bill can be made only for specific purposes.
When the clause was debated in Committee, noble Lords discussed the nine regulation-making powers mentioned by the noble and learned Lord, Lord Judge, which brought comment from the DPPRC, about the widest possible scope. However, as drafted, Clause 2(2) appears to bestow infinite powers on the Secretary of State to make regulations by virtue of the seemingly innocuous phrase “for example”, which effectively grants the Secretary of State carte blanche to bring regulation forward outside the listed examples in relation to pretty much anything and everything. Just deleting those words will assist with the accountability that needs to be built into the Bill.
Amendment 5, which has the support of the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Jolly, would ensure that regulations can be brought forward under the Act only for the purposes specified. We will, of course, support the Minister in the amendments she has tabled in this group—Amendments 6, 7 and 8 —and I think the combination of our amendment and hers significantly improves the Bill, so I hope she will accept it. I probably need to say that, unless there is a very good reason why she does not want it and why it should not be there, we will seek support from the House for this amendment.
My Lords, we have here a new example of constitution-making. We have now got rid of Henry VIII in this Bill and we have something rather more subtle—not something that that great, mighty ogre could have conceived of for himself.
The new example is:
“Regulations under subsection (1) may, for example”.
Those of your Lordships who were in the House when we discussed the Trade Bill last week will remember another regulation-making power—another blockbuster like this one—only the words used were not “for example” but “among other things”, in relation to regulations under whichever subsection it was. What kind of primary legislation is this? It is really rather alarming. The primary legislation provides:
“The Secretary of State may by regulations”,
do this, that and the other: (a), (b) and (c). Well, fine. The regulations “may” do nine things—there is an amendment to one of them to come later, but this is not relevant to present purposes—specifying just about anything you can think of.
Why do we not say, even in relation to the EU, that the regulation-making power should be defined as widely as it is in Clause 2(2) but not extend further? The reality is that, with these words, in truth there is no limit to the regulation-making power. I find that astonishing, and I suspect that many Members of your Lordships’ House will find that astonishing. So we now have within the terms of the Bill—subject to the Henry VIII point, which is going—in effect an undefined, unconstrained power given to the Secretary of State to make regulations. It will not do.
My Lords, I am delighted to follow the noble and learned Lord, Lord Judge; he has been totally consistent in this field, and I very much sympathise with the point he has just made.
I serve on the Delegated Powers and Regulatory Reform Committee and, although I cannot speak on its behalf, I think it would share with me the view that the way in which the Minister has responded to our concerns and corresponded with us has been exemplary. We thank her, I am sure, for that; it is very valuable. However—she probably anticipated a “however”—in our report of 14 February there were two critical paragraphs to which she has not responded in the various exchanges we have had with her. I hope your Lordships’ House will not mind if I read them, because they are extremely important, not just for this Bill but for a whole series of Bills that have been coming before us in recent weeks. The paragraphs refer to some of the correspondence we had with the Minister, and go as follows:
“The Minister repeatedly refers to the need for ‘flexibility’, given that reciprocal healthcare arrangements remain subject to negotiation. She says that there must be flexibility as to the meaning of healthcare, as to the persons who can be funded and as to the persons to whom functions can be delegated. The Minister says, at paragraph 19: ‘This is a forward-looking Bill and so flexibility is key’”.
We then put in our report, in heavy type:
“Powers that are too wide are not the more attractive for being part of a ‘forward-facing’ and ‘forward-looking’ Bill”.
“At paragraph 29, the Minister says again that the Bill is a ‘forward-facing Bill’, this time to justify taking powers to go beyond replacing current EU arrangements”.
Again, in heavy type the report continued:
“Given that post-Brexit reciprocal healthcare arrangements are the Bill’s principal target, the powers in clause 2 to make law governing the provision of healthcare by anyone anywhere in the world could have been more effectively circumscribed”.
Those two paragraphs are not just appropriate to this Bill but demonstrate how, on many occasions in recent weeks, we have been effectively offered a skeletal Bill, with very considerable primary legislation made subject to largely unspecified future executive powers. Very often, it would seem, there is good reason, because of urgency or expediency. We are, however, establishing precedents for the post-Brexit situation. At the moment this can be used as an excuse—perhaps only for a few more days before the other place decides that the timescale is ludicrous—but it is not acceptable that we are constantly given legislation for a particular purpose and told that Ministers must have very wide-ranging, unspecified future powers simply for reasons of urgency. As the noble and learned Lord, Lord Judge, and the noble Lord, Lord Marks, have said, if we are not very careful we will establish precedents in this way.
I hope that when the Minister responds—having not previously done so in her exchanges with the Delegated Powers and Regulatory Reform Committee—she will comment on the particular points that were made in the report’s recommendations.
My Lords, I think that the noble Lord is right in saying that we are establishing a precedent, but I have been looking at the word “example”, and wonder whether the Minister has examples of this kind of legislation being used elsewhere. I cannot think of any. I examined the withdrawal Bill, which was very wide-ranging, and as far as I can recall this phrase does not appear in it even though it contains many provisions about delegated legislation. It would, therefore, be helpful to me if it was demonstrated that this is not the kind of precedent that has been described. In general, however, I congratulate the Minister and her Bill team on going a very long way to meet our objections in later parts of the Bill. I am, however, worried about this bit of it and would like to be reassured.
My Lords, I thank the noble Lord, Lord Marks, for tabling Amendment 3 and the noble Baroness, Lady Thornton, for Amendment 5, both of which seek to place limits on the powers in the Bill.
I will first address the noble Baroness, Lady Thornton, the noble Baroness, Lady Jolly, and the noble and learned Lord, Lord Judge, on Amendment 5, and clarify the purpose of Clause 2(2). We have had some debate about this already but this will be helpful. Clause 2(2) is intended to be an illustrative list of examples of the type of provision that may be included in regulations made under Clause 2(1). It is not itself intended to be a delegated power. The intention has always been to be prudent and transparent in the use of the delegated legislation, and the list was included to be helpful, by demonstrating the types of provision that the regulation-making powers at Clause 2(1) could enable, in order to effectively implement international healthcare regulations in the same way as under reciprocal healthcare regulations. This is not uncommon in primary legislation.
The list is reflective of the kind of provision already included in our current, more comprehensive, reciprocal healthcare arrangements with the EU, and it is intended as a guide to how the powers in Clause 2(1) can be exercised. Regulations under this clause need to be able to do everything that they might need to do to provide healthcare outside the UK, or to give effective agreement. I described in some detail during our debate on this clause in Committee why each of the descriptive lists were included and what they would be used for.
This amendment could mean that future Administrations would be unable to effectively implement reciprocal healthcare agreements with the EU, individual member states or other countries. The reason for this, which has already been alluded to in the debate, is that we have not yet concluded those negotiations and so it is not possible to rule out what we may need to provide for in regulations to give effect to an agreement. In addition, it would not be appropriate to circumscribe in the Bill the Government’s negotiating mandate with the EU, EU member states or countries outside the EEA and Switzerland.
The examples in Clause 2(2) are not exhaustive, but they are useful pointers to aid understanding of how Clause 2(1) is capable of being exercised. I think they have served their purpose, given that we have had such robust debate about them. They offer additional transparency and assistance in understanding how the regulation-making powers in Clause 2(1) would work for the purpose of implementing reciprocal healthcare agreements. This is not an unusual statutory construction; there are examples of where regulation-making powers are accompanied by illustrative lists of what may be included in regulations in order to provide assistance in the understanding of what the powers are capable of doing. As to whether those illustrative lists include the words “for example”, I have an example from Clause 11(2) of the Automated and Electric Vehicles Act 2018, which states:
“Regulations under subsection (1) may, for example—”,
include paragraphs (a), (b) and (c). That is perhaps a helpful example for the noble and learned Lord, Lord Hope.
As this important policy area continues to develop and progress both in the EU and outside the EU, it is appropriate for the Government to be able to respond to protect the continuity of care of those already in receipt of reciprocal healthcare, as well as to explore whether we would like to extend it to others. Were we to accept this amendment, it would, as I said on the previous group, restrict the implementation of reciprocal healthcare arrangements to current processes. That is clearly inappropriate when implementing dynamic agreements in which there are two parties.
Regulations under Clause 2(1) need to be able to do everything they might need to do to provide for healthcare outside the UK or give effect to a healthcare agreement. One small example of why it is right that the Government retain the ability to do this is developments in IT or new technology. As technological change continues to gather pace, it is right that the Government should be able to make the best use of those changes and ensure the most effective and efficient systems for the people accessing these arrangements. That is why we might need to bring in another regulation-making power. I hope the noble Baroness, Lady Thornton, as a former Health Minister, would agree that technology has the power to change the way people access healthcare and can make a real difference in people’s lives, especially perhaps those who are restricted from accessing healthcare because of long-term conditions or distance from services.
While the illustrative list at Clause 2(2) does not expressly make reference to this matter, it may well be necessary to make arrangements to ensure that the most effective and efficient technological processes and systems are incorporated into the implementation of future reciprocal healthcare agreements. The Government are working, through this Bill, to ensure that we have the necessary ability to implement future international healthcare agreements with both EU and non-EU countries.
Amendment 3 in the name of the noble Lord, Lord Marks, speaks to concerns about the breadth of the powers in the Bill. Clause 1 follows a long line of general payment powers found in primary legislation, further to the Public Accounts Committee’s concordant that government expenditure should flow from a specific Act of Parliament. It is a free-standing payment power and needs to be so. Notwithstanding that, we have deliberately chosen to include a power in Clause 2(1) that can be used to support the exercise of the payment power. Therefore, it is not possible for the Government to accept this amendment. Indeed, the DPRRC recognises that general payment powers are not delegated powers.
As I said in my response to this amendment in Committee, the Bill is making good progress through Parliament but clearly will not have Royal Assent until later this month. So, with the best will in the world, we will not be able to lay regulations until the summer. However, in the undesirable, unprecedented situation of no deal, we may need to use these powers before then. That would be specifically for a scenario concerning citizens’ rights agreements with the EFTA states and with Switzerland, which will protect reciprocal healthcare for people living in those countries on exit day, or in other specified cross-border situations.
It is good news that we have operative agreements in the context of no deal, as they will guarantee healthcare for those covered by them. It is likely, though, that we will need to use the power in Clause 1, together with Clause 4, to temporarily implement those agreements. We cannot therefore accept the amendment because we would not be able to protect the healthcare arrangements of people in those countries. We will bring forward further detail in coming weeks when we can be clearer about bilateral agreements, and on the need for any further arrangements. I hope that noble Lords will agree that the Government must have the ability to provide for people at this unprecedented time. I emphasise that stand-alone funding powers such as those in Clause 1 that operate without the need for delegated legislation are not unusual—so this is not being brought in simply because of a no-deal situation.
I have listened carefully and considered the comments of noble Lords about concerns about the scope and breadth of the power. That is why we have sought to address concerns about it, with a large package of amendments to which I have already referred. We have specifically limited the delegated powers and the scope of what can be done under the Bill, and provided additional parliamentary scrutiny mechanisms and greater transparency.
Finally, I will speak to government Amendments 6, 7 and 8. They are in direct response to the concerns raised that regulations under the Bill could be used to confer functions on anyone, anywhere. It is understandable that noble Lords raised the possibility that the regulation-making powers in Clause 2 could be extended to confer functions on private bodies. There is not and has never been an intention to confer functions on private bodies in order to implement reciprocal healthcare arrangements. This was always the case but, given the concerns raised, we are taking action to make this clear.
The proposed government amendments limit Clause 2 to the operation of Clause 2(1) to ensure that any conferral or delegation of functions may only be to a “public authority”. The definition of “public authority” is a person who exercises a function of a public nature. This ensures that public bodies maintain autonomy over how services are procured, contracted and delivered. When making regulations to implement such healthcare agreements, we wish to confer relevant functions on appropriate public bodies according to their part, giving them clear legal responsibility and an operating mandate. Our amendment does not prohibit us from doing this.
I therefore hope that noble Lords will withdraw or not move their amendments.
My Lords, I shall seek leave to withdraw my amendment, because I feel very much under pressure from what the Minister has just said. It is the case that the free-standing power is needed, as she said, because of the delay that there has been in order to ensure that the payment power can be used before regulations can be laid. My amendment would therefore imperil the continuation of our current European arrangements. I feel under pressure because it the wrong way to do this. It is a great shame that this legislation was not introduced timeously, but I do not wish to divide the House on my amendment and I beg leave to withdraw it.
Amendment 3 withdrawn.
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.”
Amendment 4 is, I think, consequential on Amendment 1.
Amendment 4 not moved.
5: Clause 2, page 1, line 11, leave out “, for example”
I listened very carefully to the Minister and I am not convinced, partly because the regulations under Clause 2(2) are very helpful. They give the Government everything they need to take forward the negotiations on reciprocal healthcare, and as the Minister herself said, we have put the regulations in place to help with a no-deal situation, which I hope will not occur. But the noble and learned Lords, Lord Hope and Lord Judge, made the point that those words are, while dangerous might be an exaggeration, certainly not appropriate.
Does the noble Baroness agree that, with “for example”, you may not be extending the jurisdiction of the regulations but actually limiting their range? That is what the Minister was seeking to tell us in her eloquent description of her case. If you say “for example, cows”, you have the example of animals that fall within the range of cows. Without that phrase, some cases would not apply to cows.
I hate to disagree with the noble and learned Lord, Lord Woolf, but the words “for example” expand the list rather than decrease it. That is the point of this amendment. Given the huge weight of regulations that we are dealing with in this House, if something is not included in that list, I am sure that that can be remedied. We are getting very good at remedying those situations. We on these Benches think—and other noble Lords have certainly agreed—that “for example” expands the range and that is not necessary or appropriate, so I beg to move and wish to test the opinion of the House.
Amendments 6 to 8
6: Clause 2, page 2, line 1, leave out “on the Secretary of State or on any other person”
7: Clause 2, page 2, line 3, at end insert—
“(2A) But regulations under subsection (1) may not confer functions on, or provide for the delegation of functions to, a person who is not a public authority.”
8: Clause 2, page 2, line 8, at end insert—
“(5) In this section “public authority” means a person who exercises functions of a public nature (but does not include a person who does so only because of exercising functions on behalf of another).”
Amendments 6 to 8 agreed.
9: Clause 2, page 2, line 8, at end insert—
“(6) No regulations may be made under subsection (1)(a) or (b) after the end of the period of five years beginning with exit day.”
My Lords, the Bill’s delegated powers and their global application have been a source of spirited debate since this Bill’s introduction, and noble Lords have rightly given considerable scrutiny to this matter. A number of amendments were tabled in Committee, including those by the noble Baronesses, Lady Thornton and Lady Jolly, the noble Lords, Lord Patel, Lord Kakkar and Lord Marks, and the noble and learned Lord, Lord Judge. This issue has concerned Peers across the House. I am pleased to say that the Government have listened carefully and tabled an amendment that significantly curtails the scope of the delegated powers in the Bill.
Amendment 9 directly addresses the concerns raised by restricting the exercise of the delegated powers, and, as we have already discussed, limits the global scope. The Bill is intended to support the implementation of comprehensive reciprocal healthcare arrangements with countries within and outside the EU, and to implement possible future partnerships. It was drafted to fulfil this purpose in a number of different scenarios, and that remains the Government’s intention, but we have listened closely to the points raised by Peers both inside and outside of this Chamber, as well as to the views of the DPRRC and the Constitution Committee, and concluded that the regulation-making powers that can be used to set up schemes for unilateral healthcare overseas should be time-limited.
The powers in Clause 2(1)(a) and Clause 2(1)(b) would primarily be needed, in the event of a no deal, to mitigate any detrimental effects of a sudden change in healthcare access for UK nationals living in the EU. These powers would be required in the event that reciprocal arrangements are not in place. Our aim remains to reach an agreement on reciprocal arrangements, but as a sensible Government, we need to plan for all eventualities.
In the unprecedented event of leaving the European Union with no deal, we would need to have the option of establishing support mechanisms for people in exceptional circumstances where there would be a serious risk to their health should any member state not agree to maintain reciprocal healthcare. However, we have listened, and want to ensure that while the Government have the ability to provide for people in this unprecedented time, we are still respectful of the constitutional roles of Parliament and the Executive. In response, we feel that the delegated powers that implement healthcare arrangements outside of reciprocal healthcare agreements with other countries should be sunsetted.
During the five years before the sunset, we will retain the flexibility to deal with exit scenarios using regulations under Clause 2(1) as appropriate. These powers can be used to offer UK nationals reassurance and certainty, which we intend through this Bill. After the sunset, making use of the regulation-making powers under Clause 2(1) would be limited to Clause 2(1)(c) only, which provides the Government with a mechanism to give effect to future complex global healthcare agreements. However, it is important to state that this amendment will mean that it is not possible for the Secretary of State to set up any long-term scheme to unilaterally fund mental health treatment in Arizona or hip replacements in Australia, as has been suggested. Of course, this is not something a reasonable Government would intend to do, but I am happy to provide that reassurance. However, we would want to remove any perceived risk regarding this power, and that is the intention of this amendment.
In tabling the amendment, the Government have sought to clarify the intended use of the important powers in Clause 2(1)(a) and (b). This represents a significant restriction of the Government’s use of delegated powers, in direct response to concerns raised by parliamentarians across this House. It also represents a significant check on the global scope of the Bill. On that basis, I beg to move.
My Lords, my noble friend will forgive me if I ask for a point of clarification. If Amendment 9 is passed, after the sunset clause is implemented, powers could only be made in relation to a healthcare agreement. However, Clause 3 says that a healthcare agreement can concern either healthcare provided outside the United Kingdom and paid for by the United Kingdom, or healthcare provided in the United Kingdom with another country paying. It does not require reciprocity. Is that quite the restriction my noble friend was suggesting, since it could still be unilateral, not reciprocal?
I thank my noble friend Lord Lansley for his question. This power enables a unilateral scheme, so it does not require reciprocity and is intended to be used only in an emergency scenario where a group of individuals are in difficulty. That is why it is appropriate to sunset it in this way.
I thank the House for its support for the amendment and hope that the noble and learned Lord, Lord Judge, will withdraw his amendment on that basis. I beg to move.
Amendment 9 agreed.
10: Clause 2, page 2, line 8, at end insert—
“( ) No regulations may be made under subsection 1(a) or (b) in relation to countries outside the European Economic Area or Switzerland after the end of a period of two years beginning with exit day.”
Amendment 10 not moved.
Clause 3: Meaning of “healthcare” and “healthcare agreement”
Amendments 11 to 13
11: Clause 3, page 2, line 16, leave out “outside the United Kingdom” and insert “in the European Economic Area or Switzerland”
12: Clause 3, page 2, line 18, leave out “outside the United Kingdom” and insert “in a European Economic Area country or Switzerland”
13: Clause 3, page 2, line 22, leave out “outside the United Kingdom” and insert “with which the agreement has been made”
Amendments 11 to 13 agreed.
Clause 4: Data processing
14: Clause 4, page 2, line 38, at end insert—
“( ) The processing of personal data in accordance with subsection (1) must comply with—(a) the seven Caldicott principles outlined in the Caldicott Committee’s Report on the Review of Patient-Identifiable Information and subsequent reports;(b) the Government’s Data Ethics Framework.”
My Lords, I beg to move Amendment 14, and your Lordships will be pleased to hear that I will be brief.
During the passage of the Bill, considerable concerns have been raised by a number of noble Lords about the use and sharing of data within the NHS. It is a hotly contested subject, and one of the best briefings on it is from our Library, prior to a debate on 6 September initiated by the noble Lord, Lord Freyberg. It unpacks a number of the concerns and issues about data within the NHS, and I am sorry that I have been unable to be at Second Reading or in Committee to expand on some of those issues.
During our Select Committee inquiry into artificial intelligence, there were a number of witnesses who talked about the use of data in the NHS, and we drew a number of conclusions, namely that the data was not in good shape to be utilised for beneficial purposes such as research, diagnosis and screening. That is another issue, however; what concerns noble Lords is the question of sharing. Now that we have seen Amendment 1 pass, maybe we will deal only with countries where there is a level of data adequacy which gives us an assurance about the use of NHS data. As the King’s Fund said last year in its report, Using Data in the NHS:
“National policy has to keep a balance between responding to legitimate public concern about the security and confidentiality of data and enabling data to be shared and used by NHS organisations and third parties. It is also essential that NHS national bodies are transparent with the public about how patient data is used”.
It went on to suggest that the level of opt-outs for patients would be key to the quality and validity of future research, and that NHS England and NHS Digital should keep this under review. One of the issues in the NHS is that there are several organisations responsible for NHS data. It is not just NHS England, NHS Digital, the National Information Board and Public Health England. The Caldicott Guardian—the national guardian for health and care—has a responsibility as well. It is quite a disparate, rather balkanised issue.
I was reassured on reading what the noble Baroness, Lady Manzoor, had to say when she responded, as the Minister, to this set of amendments in Committee:
“Under the Bill, personal data can be processed only in accordance with UK data protection law, namely the Data Protection Act 2018 and the general data protection regulation, which will form part of UK domestic law under the EU withdrawal Act 2018 from exit day”.
I am not going to go into all the questions about data adequacy and so on. I take what she said as quite reassuring, but it was less so when she later responded to what was then Amendment 23—this amendment is identical. She said:
“I assure the Committee that the Government are committed to the safe, lawful and responsible processing of people’s data”.
However, she then said:
“As the noble Baroness, Lady Jolly, and my noble friend Lord O’Shaughnessy noted, the Caldicott principles and the Government’s Data Ethics Framework are admirable standards to apply to the handling of patient data. Both of these non-legislative frameworks are in line with the Data Protection Act and the GDPR, which are enshrined in the Bill”.—[Official Report, 19/2/19; cols. 2261-63.]
That is not unequivocal in terms of those standards applying. As the Minister knows, we discussed this between Committee and Report. I had hoped to receive correspondence from her, but sadly I have not done so. She may need to repeat whatever text of the letter she may be able to find in her outbox. I hope she can give the House reassurance that the national data ethics framework and the Caldicott principles will apply to any sharing of data. The data ethics framework is a cross-government standard, of course, but the Caldicott principles are specific to the NHS. It is important to make sure they apply both domestically and internationally.
My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for giving the House the opportunity to talk about this issue again. He has been deeply involved in this topic and, as he said, I spoke on it in Committee. Compliance with this country’s very robust data protection rules is critical in general and particularly important in healthcare. This was discussed in the debate instigated by the noble Lord, Lord Freyberg; it has been a topic of conversation in this House, both in and out of the Chamber, on many occasions.
The noble Lord talked about the number of bodies that have some responsibility: he called it balkanised. It is important that we do not create a balkanisation in the law, even if a small one is in operation. One set of law should take precedence over all data protection, security and connected issues. That is, and should be, the Data Protection Act 2018. This means that there are operational guidelines, frameworks, principles and so on about how these ought to operate within individual contexts. That is precisely where the Caldicott principles come in. They take a general piece of legislation and translate what good practice in interpreting it ought to mean in a health setting. In that sense, it is important to say that we should not put those principles in a legislative setting. They are interpretive of the core, primary legislation and may need to change over time. They may need to adapt; there may be an eighth principle as we get into interesting questions about the value of data and so on.
It is important to recognise that the Caldicott principles bring to life what the Data Protection Act ought to mean in health settings. It would be a mistake to create competing law. Of course the Government agree with the noble Lord about the importance of giving force to the principles. That is one reason why we supported the Private Member’s Bill brought into this House by my noble friend Lady Chisholm to put the national data guardian on a statutory basis. I hope that that gives him the strength of reassurance about the way that the framework is constructed, which is not to create an opportunity to do funny stuff at the edges, but rather to make sure that there is primacy of one set of legislation.
My Lords, the noble Lord used the expression, “giving force”. If those principles are given force, it means that the Government treat themselves and put on the record that they are bound by those principles. That is what giving force would mean in those circumstances, because these are novel circumstances set out in the Bill. That kind of reassurance is needed with the data ethics framework.
My Lords, I had amendments that the Minister responded to at the Dispatch Box and I accepted her explanation at the time. Now I take the point that the noble Lord, Lord Clement-Jones, is trying to raise, that those principles that she enunciated about data protection included the Caldicott principles. As that reassurance was given at the Dispatch Box, I think it will cover the issue.
My Lords, I added my name to the amendment in the name of the noble Lord, Lord Clement-Jones, and I am grateful that he has made the argument so I do not need to repeat it. Of course, I spoke about this in Committee and, like other noble Lords, I was reassured at the time by the explanation given by the noble Baroness, Lady Manzoor. Since then, however, the Bill team has actually made available the Bill data processing factsheet, which is very useful. It explains things in great detail, so I wondered whether it might be a good idea if this was given to everybody involved with this Bill. I do not know whether the noble Lord has seen this, but it is a very useful piece of information. Otherwise, I was satisfied in Committee, and if the Minister answers the questions, I am sure that I will remain satisfied.
My Lords, I thank the noble Lord, Lord Clement-Jones, and the noble Baronesses, Lady Jolly and Lady Thornton, for tabling Amendment 14 and raising the issue of the lawful and responsible processing of data. I start with an apology to the noble Lord, Lord Clement-Jones. My noble friend Lady Blackwood did write to the noble Lord, and I am sorry that he has not yet received the letter. We will endeavour to send him another copy as soon as possible.
As my noble friend Lord O’Shaughnessy said—and I reassure the noble Lord, Lord Patel, that—data sharing is a necessary and crucial aspect of maintaining effective complex reciprocal healthcare arrangements, and the Government are committed to the safe, lawful processing of people’s personal data. There are, as the noble Lord said, safeguards in place in respect of processing personal data for the purposes set out under the Bill, for which the Bill makes express provision. The Bill makes it absolutely clear that it does not authorise the processing of data that contravenes UK data protection legislation.
Data processing will be permitted only for the limited purposes set out in the Bill. Personal data will be processed in accordance with UK data protection law—as the noble Baroness, Lady Thornton, observed—namely, the Data Protection Act 2018 and the general data protection regulation, which will form part of UK domestic law under the European Union (Withdrawal) Act 2018 from exit day.
I assure the noble Lords, Lord Patel and Lord Clement- Jones, and the noble Baroness, Lady Thornton, that the Caldicott principles are an important part of the governance of confidential patient information in the NHS and a guiding mechanism for organisations in how they should handle confidential patient information on a practical level. The NHS is expected to adhere to these principles.
Since 1999, NHS bodies have been mandated to appoint a Caldicott Guardian. These principles are therefore ingrained in the current operation of the NHS and confidential patient data handled by the NHS for purposes in relation to reciprocal healthcare will be subject to these principles. The principles are consistent with the requirements of the GDPR and a breach of the Caldicott principles would most likely amount to a breach of the GDPR and the Data Protection Act 2018. The principles are not intended for statute but are of real practical and operational importance when confidential patient information is processed. This will be the case when confidential patient information needed for reciprocal healthcare arrangements is processed.
It is also worth noting that reciprocal healthcare arrangements will not normally involve the processing of confidential patient information, except in particular circumstances, such as facilitating planned treatment. However, where this information is processed through reciprocal healthcare arrangements under the NHS, it must comply with UK data protection legislation. NHS organisations, as they do now, will be required to adhere to the Caldicott principles. The data ethics framework that the noble Lord, Lord Clement-Jones, mentioned sets out collective standards and ethical frameworks for how data should be used across the whole public sector, as well as the standards for transparency and accountability when building or buying new data technology. Where the framework refers to personal data, it consistently cross-refers to the principles in the GDPR, which is the relevant legislation that policymakers must consider when processing personal data.
Personal data processed for the purposes of reciprocal healthcare arrangements would therefore also take into account the data ethics framework. In addition, from 1 April 2019, the National Data Guardian will be put on a statutory footing and will therefore be able to issue formal guidance and informal advice to organisations and individuals about the processing of health and adult social care data in England. This will provide patients statutory independent oversight of the use of health data, with health bodies being required by law to have regard to the guidance issued by the National Data Guardian. This is another way in which NHS organisations in England which are processing data in respect of reciprocal healthcare will be monitored and personal data can be further protected as necessary.
It is important to note that express reference to these principles in the Bill would not provide any additional protections for personal data or confidential patient information, as the standard of protections required is the same as the existing data protection legislation already provided for in the Bill. I am grateful to the noble Baroness, Lady Thornton, and others for their support in observing this. Furthermore, as I have said, these principles already apply to NHS organisations and will continue to do so in respect of reciprocal healthcare. As a result, it would be inappropriate to put these in the Bill and I am therefore unable to accept the amendment. However, the Government have listened carefully to concerns surrounding the list of persons who can lawfully process data as a part of implementing new reciprocal healthcare arrangements under the Bill and have tabled an amendment on this issue.
Currently, the list of authorised persons under the Bill includes the Secretary of State, Scottish Ministers, Welsh Ministers and a Northern Ireland department, NHS bodies and providers of healthcare. Of course, over time, public bodies change, are reformed and refashioned, and functions are transferred between them in consequence. Clause 4(6)(e) gives the Secretary of State the ability to respond to such changes so that systems can operate efficiently and data can follow in an appropriate and lawful way to enable such operation. We propose, however, subjecting any regulations that add to the list of persons authorised to process data for the purposes of the Bill to the draft affirmative procedure. This would allow Parliament the opportunity to scrutinise authorised persons handling personal data while ensuring that the Government have the ability to guarantee that future agreements are administered in the most efficient way possible.
The Government are firmly committed to the safe, lawful processing of personal data, and to ensuring that patients have enforceable protections under data protection legislation. I hope, given my assurances that any data processing under the Bill would comply with the Caldicott principles and the data ethics framework as appropriate, that the noble Lord will feel able to withdraw the amendment.
The noble Baroness, Lady Thornton, kindly mentioned the factsheet. Of course, if it is useful, we would be very happy to put this in the Library. Officials do a tremendous job and I am very grateful to them. I hope, with the assurance I have given noble Lords, and the fact we are providing greater scrutiny, that the noble Lord feels able to withdraw the amendment.
My Lords, that was exactly the kind of robust response from the Minister that I was hoping for. It is very rare that I listen to a government response and nod all the way through, so I thank her for that very careful response, both on the Caldicott principles and the framework for data ethics, and for going into the accountabilities, and the affirmative procedure guarantee at the end—that was a bouquet. It is not that we on these and other Benches do not understand the value of NHS data and the real importance of that balance. This is not designed as a negative approach to the use of NHS data; it has huge potential benefits, but we have to make sure that it is kept within that ethical framework. The Minister has demonstrated that that kind of culture is ingrained—or is certainly expected to be ingrained—in the NHS and that Caldicott Guardians, post 1 April, will be very much on the case. In those circumstances, with pleasure, I beg leave to withdraw my amendment.
Amendment 14 withdrawn.
15: After Clause 4, insert the following new Clause—
“Requirement for consultation with devolved authorities
(1) Before making regulations under section 2 that contain provision which is within the legislative competence of a devolved legislature, the Secretary of State must consult the relevant devolved authority on that provision.(2) In this section—“devolved authority” means the Scottish Ministers, the Welsh Ministers or a Northern Ireland department;“devolved legislature” means the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly.(3) A provision is within the legislative competence of a devolved legislature if—(a) it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of the Scottish Parliament;(b) it would be within the legislative competence of the National Assembly for Wales if it were contained in an Act of the Assembly (including any provision that could only be made with the consent of a Minister of the Crown); or(c) the provision, if it were contained in an Act of the Northern Ireland Assembly—(i) would be within the legislative competence of the Assembly, and(ii) would not require the consent of the Secretary of State.”
My Lords, in Committee, the noble Baronesses, Lady Thornton, Lady Jolly, and Lady Humphreys, tabled amendments on devolution and specifically sought to place an obligation on the Government to consult with the devolved Administrations when making regulations under this Bill. We listened very carefully to that debate and were committed to bringing forward a government amendment which set out, on the face of the Bill, a duty to consult the devolved Administrations where regulations under Clause 2 would make provisions that would be within the legislative competence of a devolved legislature. Government Amendment 15 fulfils this commitment.
I am delighted that the Scottish Parliament has granted a legislative consent Motion to the Bill and that the Welsh Government have tabled a consent motion in the Welsh Assembly recommending that the Assembly, which is debating the Motion today, grants consent to the Bill. We have also had positive and productive engagement with colleagues in the Northern Ireland Department of Health and in the Northern Ireland Office. We are grateful for their support and agreement to ensure that this Bill applies and extends to Northern Ireland.
The regulation-making powers in the Bill provide us with a legal mechanism to implement comprehensive international healthcare agreements into domestic law and provide for healthcare outside the UK for the benefit of all UK nationals. It is, however, recognised that these powers may be used in ways which relate to devolved matters, by which I mean domestic healthcare. In light of this, the amendment provides:
“Before making regulations under Section 2 that contain provision which is within the legislative competence of a devolved legislature, the Secretary of State must consult the relevant devolved authority”.
To underpin and facilitate this consultation, we have developed and agreed a memorandum of understanding with the devolved Administrations. This MoU sets out a pragmatic and mutually beneficial working relationship which will ensure that the devolved Administrations will continue to have a vital role to play in delivering reciprocal healthcare for the benefit of all UK nationals. In addition, it will enable devolved Ministers to set out their views at an early stage of reciprocal healthcare policy formation, where their officials will have been involved in helping to develop the proposals. We believe that this agreement, which is both practical and pragmatic, allows us to move forward in a collaborative way with all our colleagues in the devolved Administrations, and we believe that it demonstrates how the UK Government and the DAs can work well together. I hope that noble Lords will be able to give their support to this important amendment.
My Lords, I support this important amendment, to which I have added my name on behalf of these Benches, and I thank the Minister for the proposed new clause.
Our original amendment proposing a duty to consult the devolved Administrations before making regulations under Clause 2 highlighted a glaring omission from the original Bill which has now thankfully been remedied by this amendment. Although we were very grateful for the assurances the Government gave that there was active involvement and discussion on the Bill with the devolved Administrations on matters affecting them, the requirement as a statutory duty was crucial, as many noble Lords stressed in Committee. We underlined that a statutory commitment to consult and seek the views of the devolved Administrations on matters affecting them would enable future discussions on reciprocal healthcare arrangements to take place on a collaborative and constructive basis.
I thank the Minister for updating us on Scotland and Northern Ireland, as also happened in Committee. I note too that a supplementary legislative consent Motion with regard to the Welsh Assembly is being discussed today. I was going to ask the Minister for further news, but obviously she has not had any, and I am sure that she will let us know as soon as there is some.
As the Minister also mentioned, in addition to the requirements contained in the amendment, the memorandum of understanding that has been developed between the devolved Administrations and the UK Government to underpin the amendment provides for devolved Administrations to be consulted on: the negotiation of new healthcare agreements; the development and drafting of regulations under the Bill to implement such agreements; and agreements which apply to or have implications for devolved Administrations, and on regulations giving effect to those agreements. We very much welcome that.
Finally, I ask the Minister for a formal response to the question I raised in Committee on the Constitution Committee’s report on the Bill in February in respect of the devolved Administrations. Paragraph 15 stressed the need for the Government to set out how they intend to manage the overlapping competencies in relation to the Bill and other policy areas. The committee pointed out that the potential for overlapping competencies will increase as all powers are repatriated from the EU, as does the scope for disagreement about such issues, and this will need to be managed. If the Minister prefers to write to me on this matter, that would be acceptable and much appreciated.
My Lords, I am grateful to the noble Baroness for introducing the amendment and for the implicit acceptance that the recognition of the powers of the devolved Administrations was a serious omission from the Bill. I must admit that I find the ineptitude—I think that is the right word—of Ministers and officials who produce Bills such as this without “devolution proofing” them deeply frustrating. Surely it would have been possible someone to take a few seconds at the early stages of the Bill’s production to ask, “Does this Bill have an impact on the powers of the devolved Administrations?” That would have saved so much time, and prevented my blood pressure skyrocketing.
While I am pleased that the amendment calls on the Secretary of State to consult with devolved Administrations on matters that are within their devolved competence, may I press the Minister to explain the implications—and perhaps the limitations—of the word “consult”? My amendment in Committee called for an assurance that the Bill would not allow the Secretary of State to amend, repeal or revoke Welsh primary legislation—which is rather different from mere consultation. I would therefore be grateful if the Minister could clarify this for me so that we have on record a full recognition of the powers of the devolved Administrations.
My Lords, I signed the amendment in the name of the noble Baroness, Lady Thornton, in Committee. Indeed, as I indicated in the speech I made then, when evidence was given to the Scottish Parliament committee that was looking at the legislative consent Motion memorandum issue, there was an expectation that there would be a consent provision in the Bill. The noble Baroness, Lady Blackwood of North Oxford, clearly indicated an intention to do so when she replied to the debate; I put on record an appreciation of the fact that we now have this delivered in letter and in spirit.
My Lords, I thank the noble Baronesses, Lady Wheeler and Lady Humphreys, for their support for this amendment.
I point out to the noble Baroness, Lady Humphreys, that of course consent means exactly that. We have gone a long way to set out a memorandum of understanding that is mutually beneficial; it will be a beneficial working relationship to ensure that the devolved Administrations will continue to play a vital role in delivering reciprocal healthcare. We will continue to consult and to work closely with them, both at ministerial and official level. I therefore reassure her on that point.
I will write to clarify the issue that the noble Baroness, Lady Wheeler, raised. As I said, the MoU that we have agreed sets out our future working relationship, which will include consideration of where compliances overlap.
This amendment represents our close working relationship; I give an assurance from the Government that we are committed to ensuring that arrangements will be conducive to the development of a reciprocal healthcare system that operates effectively across the whole of the UK in a way that fully respects the devolution settlements. I hope that, with the assurances I have given, noble Lords will feel able to support the amendment.
Amendment 15 agreed.
16: After Clause 4, insert the following new Clause—
“Report on payments made under this Act
(1) The Secretary of State must, in relation to each relevant period—(a) prepare a report in accordance with this section, and(b) lay the report before Parliament as soon as practicable after the end of the period.(2) Each report must give details of payments made under the powers conferred by or under this Act.(3) “Relevant period” means—(a) the period beginning with the day on which this Act is passed and ending with the end of the first financial year to begin after exit day;(b) each subsequent period of 12 months.(4) “Financial year” means the period of 12 months beginning with 1 April.”
My Lords, financial reporting in the context of the Bill has already been the subject of debate in Committee. The noble Baroness, Lady Thornton, and my noble friend Lord Dundee, who, sadly, is not here today, tabled an amendment on this matter, and the noble Baronesses, Lady Brinton, Lady Wheeler, Lady Jolly and Lady Finlay, also spoke on this important matter.
While we were unable to support the amendment tabled in Committee, the Government supported its spirit, in line with our ongoing commitment to transparency, particularly when it comes to the use of public money. We made this clear in our letter to the Delegated Powers and Regulatory Reform Committee earlier this year, and I am pleased now to introduce this government amendment, which provides a statutory duty to publish an annual report. Government Amendment 16 places a duty on the Secretary of State to lay a report before Parliament each year. This report will outline all payments made during the preceding financial year in respect of healthcare arrangements implemented by the Bill. I believe this amendment directly addresses many of the concerns raised by noble Lords in Committee, and the clear request for increased scrutiny of the use of public money.
The nature and implementation of future reciprocal healthcare agreements is, of course, a matter for future negotiations. However, we envisage that, through this reporting mechanism, we would also be able to provide Parliament with further information on the operation of future agreements. For example, we anticipate that this report would include details of both expenditure and income to reflect the reciprocal nature of agreements.
The amendment provides for annual reports, which will be published as soon as is practicable after the end of each financial year. Expenditure by the Department of Health and Social Care relating to EU reciprocal healthcare arrangements is currently published to Parliament in the form of annual resource accounts. Reporting on future reciprocal healthcare arrangements will continue in this way. Indeed, as now, the department’s future expenditure on reciprocal healthcare will be subject to the existing government reporting requirements. For example, DHSC income and expenditure accounts, relating to current EU reciprocal healthcare arrangements, are already audited by the Comptroller and Auditor-General and published by the Treasury as part of the annual report presented to Parliament.
However, the Government have heard the need for greater transparency in our administration and implementation of reciprocal healthcare arrangements. Moreover, we understand the importance of presenting this information in a clear and accessible document, which is why we propose to go beyond the current reporting requirements with this amendment. Our intention is that Parliament should have clear and easy-to-access details of the public spending on healthcare arrangements implemented under the Bill.
Noble Lords have also expressed concern over the scope of the powers in the Bill. This proposal works alongside the Government’s other amendments in providing clarity. It allows for increased parliamentary scrutiny in respect of costs incurred in relation to future healthcare arrangements.
We remain committed to financial transparency. The amendment ensures that we are able to continue providing Parliament with further opportunities for scrutiny. I hope that your Lordships will be able to offer their support to this amendment. I beg to move.
Amendment 17 (to Amendment 16)
17: After Clause 4, leave out subsection (2) and insert—
“(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 costs of healthcare provided by the United Kingdom to all non-British citizens;(c) the number of British citizens treated under healthcare agreements outside the United Kingdom;(d) the number of non-British citizens treated under healthcare agreements within the United Kingdom;(e) any and all outstanding payments owed to or by the government of the United Kingdom in respect of the provision of healthcare outside the United Kingdom made before the passing of this Act; and(f) any and all administrative costs faced by NHS Trusts in respect of implementing healthcare agreements.(2A) The information required under subsection (2)(a) and (b) must be listed by individual country in every annual report.”
My Lords, this is a probing amendment to Amendment 16. I am seeking reassurance about the contents of the annual report. I very much welcome the amendment moved by the noble Baroness, Lady Manzoor, which we shall be supporting.
I realise that lists are a dangerous thing to put in a Bill. In proposing her amendment, the noble Baroness covered some of these points. However, it is very important, given the powers that the Bill contains, that information—for example under Clause 2(2)(a) and (b)—must be listed in every annual report by individual countries. We feel that proposed new paragraphs (a) to (f) in our amendment need to be contained within the annual report.
This amendment seeks reassurance that the contents of this report will be consistent with the powers that the Government are seeking in the Bill.
My Lords, I support the amendment moved by the noble Baroness, Lady Thornton. Without repeating our debates at previous stages of the Bill, it would be helpful to have reassurance from the Minister that the content of the list in the noble Baroness’s amendment is exactly the sort of detail we need. It is important to reassure people on exactly how any financial arrangements for healthcare will be made.
Further to that point, I think following the list exactly may be the most difficult thing for the Government to do. Amendment 16 sets out to commit to a report on payments. We have healthcare agreements with, for example, Australia and New Zealand where no money changes hands. As I understand the way in which these agreements work, it would be very difficult for numbers of British citizens in Australia or Australian citizens here to be collected to be reported. The noble Baroness, Lady Brinton, asked for the list to contain exactly the sort of information we need. While the list may indicate the sort of information we are looking for, if it is not available, it is not available.
The costs are exactly what the Government are proposing to report on. The Australian agreement, for example, does not involve payments to and fro. So costs do not arise. We have mutual, reciprocal agreements about treating each other’s citizens in our domestic healthcare system.
The Minister may wish to advise on this. I understand that we probably do not—because there is no requirement to recover the money—whereas, under an EU agreement, we collect the data because we are required to charge the Governments who are the competent authorities for those patients.
I am really sorry to prolong this point but, if we are trying to make sure that new reciprocal arrangements are effective, this is exactly the sort of data collection that we should be seeking. Even if it is not used initially, the whole point is that we want to understand the costs of each arrangement.
I am making a simpler point: it is no good asking for information that is not collected. There is a good reason why it is not collected. Although, this might happen in future, at the moment I do not think anybody is proposing to switch the Australian and New Zealand agreements to ones where there is reciprocal reimbursement. In this case, I do not think the information is being collected.
My Lords, I am grateful to the noble Baroness, Lady Thornton, for her amendment and to the noble Baroness, Lady Brinton, and my noble friend Lord Lansley for their contributions. I am not sure I want to go down this route. However, if the noble Baroness, Lady Brinton, wants me to write to her to clarify the point she raised, I will certainly do so. From what I have seen, my noble friend Lord Lansley is correct in saying that we have a reciprocal agreement with the countries he mentioned, where money does not exchange hands.
I can reassure the noble Baronesses, Lady Thornton and Lady Brinton, that—as I indicate—the Government have listened to the need for greater transparency in the administration and implementation of reciprocal healthcare arrangements. I welcome the support around the House for our intentions. We understand the importance of presenting this information in a clear and accessible document, which is why we propose to go beyond the current reporting requirements. Our initial commitment to the DPRRC is contained in the amendment that the Government have tabled on this matter.
As I said, the government amendment directly addresses concerns raised by noble Lords. I hope it reassures noble Lords and demonstrates that we have listened to the clear request for increased scrutiny of the use of public money.
The amendment of the noble Baroness, Lady Thornton, would ensure that specific requirements are reported on. The detailed content of the financial report should—and could only—be determined, once reciprocal healthcare agreements have been made and technical and operational details are known. We do not know what these agreements may be in future. If we accepted the amendment, we would be placing a statutory duty on future Administrations to collect and report on data we have not yet agreed to exchange with other countries. This is not appropriate.
Our amendment is a more feasible way of reporting on future healthcare arrangements that does not pre-empt their nature or how they may be implemented, but still allows for transparency and accountability, which the noble Baroness, Lady Thornton, and other noble Lords seek. It is a baseline, and we intend to go further than just reporting on payments, but we cannot provide a statutory obligation to do so.
The Department for Health and Social Care is currently working to ensure that UK nationals can continue to access healthcare in the EU in the same way they do now, either through an agreement at EU level or through agreements with relevant member states. In either case, we will have to agree how eligibility is evidenced, how—and how frequently—that information is exchanged and the reimbursement mechanisms that will govern those new agreements. 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.
Once those administrative details are known, the Government will be able to speak confidently to the specific measures that can be reported on for each country. There is an annual reporting mechanism in the government amendment to provide such detail. I acknowledge that the amendment of the noble Baroness, Lady Thornton, is well meaning and agree with its spirit, but the level of detail proposed in it could constrain or create unnecessary burden when administering future healthcare arrangements that have not yet been negotiated.
It is in the interest of neither the Government nor Parliament to force unnecessary administrative burdens on the NHS, which the amendment could inadvertently cause. The level of detail required in the amendment may create new reporting requirements on front-line NHS services.
As always, should the noble Baroness wish, the Minister or others from the department would be very happy to meet her to talk further about the issues, once we have a clear understanding of future negotiations and how they progress. I hope I have reiterated the Government’s commitment to accountable financial reporting, and that the noble Baroness and other noble Lords feel reassured on our commitment to ensuring that sufficient and appropriate checks and balances are in place on reciprocal health agreements. I hope she will agree that her amendment, which places a statutory duty on future Administrations to collect and report on data we have not yet agreed to exchange with other countries, is inappropriate. I hope I have reassured her and other noble Lords and she feels able to withdraw her amendment.
Amendment 17 (to Amendment 16) withdrawn.
Amendment 16 agreed.
Clause 5: Regulations and directions
18: Clause 5, page 3, line 38, leave out subsection (3)
My Lords, I now turn directly to the Henry VIII powers of the Bill. As noble Lords know well, the inclusion of the consequential Henry VIII power in the Bill has been the subject of animated debate both inside and outside this Chamber. The Government have been listening closely to these concerns in the Chamber but also in the reports from the DPRRC and the Constitution Committee. In response, we have tabled Amendments 18, 19, 20, 24 and 25, which is a significant step and addresses these concerns directly.
This group of amendments removes Clause 5(3) and amends Clause 5(4). As a result, it will now not be possible to make consequential amendments to primary legislation using regulations made under the Bill.
I want to be clear that the consequential Henry VIII powers were initially included as a future-proofing mechanism. They were never free-standing and we had envisaged using them in only a limited set of circumstances. As negotiations have not yet concluded and the terms of any agreements are not yet settled, there may be situations where it would be appropriate to amend primary legislation. This is why the power was included. We cannot rule out that we may want to amend primary legislation to give effect to a reciprocal healthcare agreement in future, and the lack of such a future-proofing mechanism limits our ability to ensure that the statute book in future is as coherent as it can be.
However, we want to alleviate any fears that we are taking powers which are not absolutely necessary in this Bill. As such we are prepared to take the significant step of removing the entire Henry VIII consequential powers in Clauses 5(3) and (4).
In addition, the Government have listened carefully to the concerns about the list of persons who can lawfully process data as a part of implementing new reciprocal healthcare arrangements under the Bill. To facilitate greater parliamentary scrutiny on this issue, the Government have tabled Amendment 20, which subjects any regulations that add to the list of persons authorised to process data for the purposes of the Bill to the draft affirmative procedure, which we have already debated. This would allow Parliament the opportunity to scrutinise authorised persons handling sensitive patient data, while equally ensuring that the Government can guarantee that future agreements are administered in the most efficient and effective way possible.
I hope that your Lordships will view these amendments, together with the other government amendments, as a genuine and significant effort to reduce the scope of powers in this Bill and respond to the concerns raised by this House concerning the use of Henry VIII powers. On that basis, I commend the amendments to the House.
Perhaps I may add a few words to those of the noble and learned Lord, Lord Judge. I was particularly concerned by Clause 5(3), as the noble Baroness may remember, and am delighted to see it removed because, as worded, it gave rise to a lot of problems. Together with the other amendments proposed, there is considerable improvement and I am most grateful.
I tabled an amendment in this group. First, I join the noble and learned Lords and all noble Lords in saying thank you very much to the Government and the noble Baroness for removing these Henry VIII powers, which cause so much heartache in this House—we really do not like them at all. I tabled Amendment 21 because I should like an explanation. Given that our Constitution Committee and the Delegated Powers Committee have several times said that they find the negative procedure rampant in the Bill, and that the British Medical Association has also voiced its concern about legislation being subject to the negative resolution procedure, in the interests of accountability, I need to ask the Minister to explain to the House the justification for negative procedure throughout the Bill. Should it not be subject to the same level of scrutiny as in the European Union (Withdrawal) Act, for example?
I thank the noble and learned Lords for their support for our amendments to Clause 5 and the removal of the Henry VIII operation within the Bill. I shall do my best to continue in the way I have started in this House.
I thank the noble Baroness, Lady Thornton, for her Amendments 21 and 23. The Government recognise that appropriate levels of scrutiny are the hallmark of an effective and responsible parliamentary system and that the processes by which we draft, consider and test legislation must be robust. It is necessary that we look at the nature of the subordinate legislation in the Bill and balance the need for scrutiny against the appropriate use of parliamentary time.
The draft affirmative resolution offers a greater level of parliamentary scrutiny and may be appropriate for particularly significant or sensitive regulations. For example, that is why the Government have agreed that that is appropriate when amending the list of authorised persons able to process data for the purposes of reciprocal healthcare. It is important to understand that, where the UK negotiates a new comprehensive international healthcare agreement, most of the important elements setting out its terms would be included in the agreement itself rather than in the regulations, made under the Bill, that implement it. The regulations giving effect to such an agreement would be much more likely to focus on the procedural, administrative or technical details, such as the types of documents or forms to be used to administer reciprocal healthcare arrangements. Evidence tabled during the course of the Bill’s passage from the Academy of Medical Royal Colleges and the British Medical Association demonstrates that the administration for current arrangements works well. The regulations made under this Bill would be likely to simply provide for the effective and efficient administration of these arrangements.
We anticipate that, were we to accept this amendment, in future Parliament would likely find itself debating technical updates to operational issues, such as whether forms required to process reciprocal healthcare arrangements should be changed. I do not think that would be an appropriate use of parliamentary time. For that reason, we feel that the negative procedure is appropriate to use for the regulations. With the additional amendments we have tabled today, the Bill allows for effective governance while providing for an improved level of parliamentary oversight. Noble Lords will recognise that it is vital that the Government can make regulations quickly and react to varied possible scenarios arising from the UK’s exit from the EU.
The House is also absolutely right to hold the Executive to the highest possible constitutional standards. We understand that ensuring sufficient scrutiny is a legitimate and ongoing concern. That is why we have worked hard in bringing forward a considerable package of government amendments to increase scrutiny and transparency and to alleviate any fears that we are taking powers that are not absolutely necessary. We took a significant step in removing the entire Henry VIII powers for this reason. We have also placed a statutory duty on the Government to publish the annual report, which has just been debated, to give Parliament greater reassurance on how the Bill will be implemented and scrutinised. Finally, we have proposed subjecting any regulations that add to the list of persons authorised to be subject to the affirmative procedure. We think parliamentarians have rightly demonstrated that data protection is a critical issue, and we have decided that it is appropriate that these regulations be subject to the draft affirmative procedure.
Having explained that and gone through our thinking, I hope the noble Baroness, Lady Thornton, will agree that it is not appropriate to impose scrutiny processes on all the regulations made under this Bill, as that could see us in future debating technical changes to administrative systems that implement healthcare regulations. That would not be appropriate. On this basis, I hope she will feel free to withdraw her amendment.
Amendment 18 agreed.
19: Clause 5, page 3, line 43, after “law” insert “that is not primary legislation”
Amendment 19 agreed.
20: Clause 5, page 3, line 45, leave out “this Act which amend, repeal or revoke primary legislation” and insert “section 4(6)”
21: Clause 5, leave out ““this Act which amend, repeal or revoke primary legislation” and insert “section 4(6)”” and insert ““which amend, repeal or revoke primary legislation””
Amendment 21 (to Amendment 20) not moved.
Amendment 20 agreed.
Amendments 22 and 23 not moved.
Amendments 24 and 25
24: Clause 5, page 4, line 3, leave out “A” and insert “Any other”
25: Clause 5, page 4, line 3, leave out from “Act” to “is” in line 4
Amendments 24 and 25 agreed.
Amendment 26 not moved.
Clause 6: Extent, commencement and short title
27: Clause 6, page 4, line 15, leave out “International” and insert “European Economic Area and Switzerland”
Amendment 27 agreed.
In the Title
Amendments 28 and 29
28: In the Title, line 1, leave out “outside the United Kingdom” and insert “in a European Economic Area country or Switzerland”
29: In the Title, line 2, after “agreements” insert “with such countries”
Amendments 28 and 29 agreed.
Withdrawal Agreement: Attorney General’s legal opinion on the Joint Instrument and Unilateral Declaration
My Lords, with the leave of the House, I will repeat a Statement made in the other place by my right honourable and learned friend the Attorney-General:
“I would like to make a Statement about my legal opinion on the joint instrument and unilateral declaration concerning the withdrawal agreement published last night.
Last week, I confirmed I would publish my,
“legal opinion on any document that is produced and negotiated with the Union”.—[Official Report, Commons, 7/3/19; col. 1112.]
This has now been laid before the House. This Statement summarises the instruments and my opinion of their legal effect.
Last night in Strasbourg, the Prime Minister secured legally binding changes that strengthen and improve the withdrawal agreement and the political declaration. The Government laid three new documents reflecting these changes in the House: a joint legally binding instrument on the withdrawal agreement and the protocol on Northern Ireland; a unilateral declaration by the United Kingdom in relation to the operation of the Northern Ireland protocol; and a joint statement to supplement the political declaration. The legal opinion I have provided to the House today focuses on the first two of these documents, which relate to the functioning of the backstop and the efforts of the parties that will be required to supersede it.
Let me first tell you what, in my opinion, these documents are not about. They are not about a situation where, despite the parties using good faith and their best endeavours, they cannot reach an agreement on a future relationship. In my opinion such a scenario is, in any case, highly unlikely to occur. It is in the interests of both the United Kingdom and the European Union to agree a future relationship as quickly as possible. Were such a situation to occur, however, the legal risk, as I set it out in my letter of 13 November, remains unchanged.
Let me now move on to what these documents do achieve. As I set out in my opinion, the joint instrument puts the commitments in the letter from Presidents Tusk and Juncker of 14 January 2019 into a legally binding form and provides, in addition, useful clarifications, amplifications of existing obligations and some new obligations. The joint instrument confirms that the European Union cannot pursue an objective of trying to trap the United Kingdom in the backstop indefinitely. The instrument makes explicit that this would constitute bad faith, which would be the basis of a formal dispute before an arbitrator. This means, ultimately, that the protocol could be suspended if the EU continued to breach its obligations.
The joint instrument also reflects the United Kingdom’s and European Union’s commitment to work to replace the backstop with alternative arrangements by December 2020, including as set out in the withdrawal agreement. These commitments include establishing,
“immediately following the ratification of the Withdrawal Agreement, a negotiating track for replacing the customs and regulatory alignment in goods elements of the Protocol with alternative arrangements”.
If an agreement has not been concluded within one year of the UK’s withdrawal, efforts must be redoubled. In my view, the provisions of the joint instrument extend beyond mere interpretation of the withdrawal agreement and represent materially new legal obligations and commitments which enhance its existing terms.
The unilateral declaration records the United Kingdom’s position that, if it were not possible to conclude a subsequent agreement to replace the protocol because of a breach by the European Union of its duty of good faith, it would be entitled to take measures to disapply the provisions of the protocol in accordance with the withdrawal agreement’s dispute resolution procedures and Article 20, to which I have referred.
There is no doubt, in my view, that the clarifications and amplified obligations contained in the joint statement and the unilateral declaration provide a substantive and binding reinforcement of the legal rights available to the United Kingdom in the event that the European Union were to fail in its duties of good faith and best endeavours.
I have in this Statement and in the letter I published today set out my view of the legal effect of the new instruments the Government have agreed with the European Union. However, the matters of law affecting withdrawal can only inform what is essentially a political decision that each of us must make. This is a question not of the lawfulness of the Government’s action but of the prudence, as a matter of policy and political judgment, of entering into an international agreement on the terms proposed. I commend this Statement to the House”.
My Lords, I am grateful to the noble and learned Lord for repeating the Statement made by the right honourable Attorney-General in another place. The purpose of the Statement was to provide the Attorney-General’s opinion on the implications of the three documents produced following the Prime Minister’s dash to Strasbourg yesterday. The purpose was, of course, what the Prime Minister had promised to negotiate, referring to,
“not a further exchange of letters, but a significant and legally binding change to the withdrawal agreement”.
According to the Mail on Sunday—not a newspaper that I necessarily follow in any respect—the Attorney-General is reported to have said:
“I will not change my opinion unless I’m sure there is no legal risk of us being indefinitely detained in the backstop. I am putting my hand on my heart. I will not change my opinion unless we have a text that shows the risk has been eliminated. I would not put my name to anything less”.
Before considering the merits of what the Prime Minister has obtained it is worth considering what has not been achieved. As I predicted in the debate yesterday—was it only yesterday?—there is no change to the withdrawal agreement. Its 597 pages remain unchanged. That is not entirely true, because they have been reduced to a smaller volume. The text, however, is completely unchanged. So too are the 26 pages—I think now 28 pages—of the political declaration.
The result is that the legal risk remains unchanged. As the Attorney-General states in paragraph 19 of his latest opinion:
“The legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise”—
that is, the situation in which no new agreement is reached—
“the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol’s arrangements, save by agreement.”
I had the opportunity to hear the Attorney-General’s Statement in another place this morning, and I understood him to be reconfirming that position in his answers.
It is also worth restating that—despite rumours to the contrary—there are no changes to the arbitration provisions and no new system of arbitration: it will still be lawyers who make this decision. It also follows that the statement in paragraph 16 of the Attorney-General’s opinion of 13 November 2018 still stands. That statement was as follows:
“It is difficult to conclude otherwise than that the Protocol is intended to subsist even when negotiations have clearly broken down. The ordinary meaning of the provisions set out above and considered in their context allows no obvious room for the termination of the Protocol, save by the achievement of an agreement fulfilling the same objectives. Therefore, despite statements in the Protocol that it is not intended to be permanent, and the clear intention of the parties that it should be replaced by alternative, permanent arrangements, in international law the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part, as set out therein”.
I understand that still to be the position and invite the noble and learned Lord to confirm it.
In his Statement, the Attorney-General focused particularly on other available remedies in the event that the European Union can be proved guilty of bad faith in not reaching an agreement. He says—this is important, and the noble and learned Lord repeated these words earlier—that the new documents are,
“not about a situation where, despite the parties properly fulfilling the duties of good faith and their best endeavours, they cannot reach an agreement on a future relationship”.
Again, therefore, I ask the noble and learned Lord to confirm that the Government accept that if, while acting in good faith, both parties cannot reach an agreement, the backstop would endure with no predetermined end date. I underline the phrase “can be proved to be” acting in bad faith, because that would have to be demonstrated—would it not? —and it would be for the United Kingdom, if it was asserting that position, to prove it. Can the noble and learned Lord confirm that? The burden of proof, as we lawyers say, would be on us.
I also question the likelihood that that could be proved. I have made this point before in the House. It would be a very strong thing—a virtually impossible thing—for this arbitral panel to find on proof that senior statesmen and politicians were acting in bad faith, rather than simply being unable to agree on what are important matters for them—for their constituents, as for ours. As a practising lawyer —at least when he is not fulfilling governmental responsibilities—would the noble and learned Lord agree that the prospects of proving that, when the EU negotiators are saying, “No, we did not regard these proposals as being in the interests of the EU”, are vanishingly small? If he were advising a client, he would tell him so now.
In his previous advice, the Attorney-General referred to the difficulties of proof and the egregious nature of the conduct that would be required to establish a breach of those obligations by the EU. These are very strong things to have to prove. I respectfully suggest that, in reaching a view on how much comfort these arrangements give, that must be borne very much in mind.
The Attorney-General says that he believes the risks of an indefinite stay are reduced. He does not—it seems to me—explain in his advice why they are reduced. I understood that, in short, he sees a greater political will to reach an agreement. That is a political judgement. It is of course open to him and to others to take the same or a different view on the political will. I cannot, however, agree that anything in any of the three documents changes the legal reality.
In paragraph 4 of his opinion, the Attorney-General referred to a,
“systematic refusal to take into consideration adverse proposals or interests”.
A systematic, contumacious or deliberate refusal even to consider proposals would, I suppose, be evidence of bad faith—but that is as far as it goes. A sincere disagreement about the terms, however, is not bad faith.
As for the third document, the unilateral statement, it is that and nothing more. It is what the United Kingdom says that it thinks, but that does not make it so. I do not, therefore, share the view that there is anything in these legal documents that shifts the legal risk.
I am loath to go back to the codpiece that I referred to yesterday. However, I said then that I did not really understand how that soubriquet had come into being. From what I have read since, it is apparently code for figleaf. I regret to say that despite the energy and good faith of both the Prime Minister and the Attorney-General—which I respect—these are no more than a figleaf, and Members of the other place are left to make their political judgments on the basis of the Prime Minister’s deal.
My Lords, I do not propose to repeat the speech I made yesterday, in which I suggested that it was inappropriate for lawyers to determine an issue as important as whether the backstop had run its course. I am very pleased that in the conclusion to his Statement today, the Attorney-General emphasised that matters of law affecting withdrawal can only inform what is essentially a political decision that each of us must make. As it is a political decision, it is really not right to ask lawyers to determine whether a state is acting in bad faith, as the noble and learned Lord said a moment ago. I commend the Attorney-General for sticking firmly to the opinion that he first gave and not being shifted, despite the enormous pressure I have no doubt he is under.
An aggrieved party under this instrument would have to persuade the arbitrators to prove—as the noble and learned Lord, Lord Goldsmith, said—that the other party had failed the best endeavours test with the objective of applying the backstop indefinitely. Further, he would have to prove that there had been a persistent failure or a systematic refusal to consider the other side’s proposals. Only if the arbitrators found in the aggrieved party’s favour would they be able to use temporary measures to suspend the backstop—and I emphasise the word “temporary”. The other party could cure the problem at will at any time by taking the necessary measures to comply with the ruling.
My first question to the Minister, therefore, is this: what does he envisage to be temporary measures? What does that mean? Clearly, it would not be a permanent unilateral withdrawal from the backstop. What would happen at the Northern Ireland border to the free passage of goods if temporary measures were taken? Would it be a smuggler’s free for all or a clamping down?
The Attorney-General originally advised that it would be highly unlikely that the United Kingdom could take advantage of the remedies available to it for a breach of good faith and best endeavours because of the difficulties of proof and the egregious nature of the conduct, which would have to be established. I remind your Lordships that according to the Oxford English Dictionary, the word “egregious”, which the Attorney-General in typical fashion rolled off his tongue, means “shocking”. Is it now then all about timetables? That is all that the instrument appears to lay down. I listened to the Attorney-General talking in the other place about time being of the essence. To every lawyer, that phrase means that if the timetable is not adhered to, the whole agreement is defunct. The United Kingdom negotiators have not shown themselves to be particularly conscious of time over the past two and a half years. Will a breach of the timetable on either side now amount to egregious, shocking conduct, sufficient to trigger the dispute settlement arbitration procedures?
My Lords, I am obliged to noble Lords for their contributions. Referring to the observations of the noble and learned Lord, Lord Goldsmith, I will perhaps begin where he finished. If the noble and learned Lord was to revisit his study of early Italian Renaissance sculpture, he might be reminded that the fig leaf can cover some very important bits. Therefore, one must bear in mind that the use of analogies is not always entirely helpful.
In paragraph 19 of his opinion, the Attorney-General set out his view that the legal remains unchanged. But that was not the question that was being addressed. The issue that exercised people was one of an extreme nature, which one would, frankly, never anticipate arising where parties have entered into an international treaty in good faith and intend to discharge their obligations under that treaty in good faith. As I observed in a previous debate, if you simply do not trust the person with whom you are contracting or entering into a treaty, there is little point in doing so—you would not proceed in the belief that they would ever finally discharge their obligations. Here, however, we proceed in the confident belief that their obligations will be addressed and met.
It is therefore important that, in the context of the further agreement, the parties have fixed a date of December 2020 by which to use their best endeavours to arrive at an alternative to the backstop. It is in these circumstances that it is considered appropriate, as the Attorney-General observed in paragraph 7 of his opinion, to note that the provisions now represent materially new legal obligations and commitments which mean that unconscionable behaviour on the part of the EU, and failure to fulfil its obligation to seek suitable and alternative practical means of dealing with the backstop, would have to be properly addressed in the context of the arbitration provisions.
It is in that context that I come to address the questions posed by the noble and learned Lord, which touch upon each other. He began by asking how, if there is bad faith by the European Union, we would prove it. There are circumstances in which it would become apparent that the European Union was intent upon seeking to trap the United Kingdom in the backstop, notwithstanding the provision of alternative arrangements. But let us be clear: one does not anticipate or foresee that that would ever occur.
On that point, I note that the backstop has significant drawbacks for the European Union, just as it has significant drawbacks for the United Kingdom. If it were ever to emerge, the backstop would result in Great Britain enjoying the benefits of a customs union and paying nothing for that. The relevant payment in respect of the customs union would come from trade in Northern Ireland, not in Great Britain. Let us remember that there is very little in this that benefits the European Union, let alone the United Kingdom.
If we were, however, to find ourselves in a situation in which there was shocking or egregious conduct on the part of the European Union, the arbitration measure would be available. In finding that there was a breach, the arbitrators would be entitled to grant temporary measures. That would include a temporary suspension of the operation of the relevant backstop provisions with regard to the border.
The noble Lord, Lord Thomas, asked, quite rightly, what would happen at the border. One answer is that we would find ourselves in that situation only where the European Union had not been prepared to engage with coherent, sensible proposals put forward by the United Kingdom to deal with the border and ensure that it could remain entirely open. If a suspension was ordered by the arbitrators, it would then be open to the United Kingdom to implement those proposals unilaterally at the border in order to deal with the issue. If thereafter—in utterly extreme circumstances—the European Union was to persist in refusing to engage with the temporary suspension of the protocol, the arbitrators would eventually come to the conclusion, quite rightly, that the protocol was simply not required; that it was no longer “necessary” because the alternative arrangements during the suspension had clearly worked to the satisfaction of the European Union, which had done nothing in the meantime. Again, I stress that we are talking about the most extreme of circumstances. I do not contemplate that, politically, anyone will go there.
The noble and learned Lord has given us extreme examples such as unconscionable behaviour and all the rest of it, but does he not agree that the most likely circumstance in which we fail to agree is because we fail to agree? We have seen it over a period of time already, and know that it does not have to be unconscionable or as a result of bad faith. In those circumstances, none of these arguments would avail.
I do not accept the noble and learned Lord’s suggestion that that is the most likely or probable outcome. We have already seen circumstances in which parties have laid out the suitability of alternative arrangements for the border between Northern Ireland and the Republic of Ireland. Work will go on with regard to that. There is going to be a track of work carried out as soon as the withdrawal agreement is concluded in order to bring that to fruition by December 2020. There is therefore no reason to suppose that such a thing is impossible. If we have a situation in which the EU simply refuses and turns its face away from a workable proposal, then there will be an issue of good faith and best endeavours to be addressed and disposed of. But the political reality is different. This is very much a situation in which we are dealing with an extreme. Equally extreme is the idea that somehow, over a period of almost two years, the parties would not be able to conceive of a means of dealing with the border except by means of the backstop.
My Lords, I have had the opportunity to study the earlier and most recent legal opinions of the Attorney-General. I agree with him that as a matter of law there is a risk. But I was a mathematician before I became a lawyer. One has to find out the size of the risk. Every one of us who crossed the street today to come here had to take a risk, did we not? I came yesterday by aeroplane, which also has a risk. The question is: what is the risk? A good deal of the discussion that has just taken place is about what happens in the event of extremes, but the most important way to annihilate the risk is by reaching an agreement that supersedes the protocol altogether. If we want to see how probable an agreement is, we have only to listen to Mr Johnson, who said: “They are keen to sell us their prosecco”. The European Union is as keen to have a free trade agreement with us as we are to have one with it. In fact, its trade is greater towards us than our trade is to the EU. Therefore, the chances are high, to be judged on the facts as they are now, that there will be an agreement to supersede the protocol. That is what one has to measure. So far as I am concerned, the risk is negligible—a very unlikely event. I would feel sorry if the future of our United Kingdom, in this connection, were determined by an appreciation of a so-called risk that is practically negligible.
I will welcome the noble Lord’s comments. His reference to Latin will no doubt enhance this debate. However, for the moment, I entirely concur with the observations of the noble and learned Lord, Lord Mackay of Clashfern. It would be foolish in the extreme to make an important—indeed, significant—political decision on the basis of a risk that can genuinely be regarded as negligible.
My Lords, I apologise for my slip. The word “egregious” derives from the Latin “e grege”—outside the flock; in other words, it means abnormal, out of the ordinary. “Shocking” is the wrong translation.
The elaborate piece of theatre that the Government staged last night in Strasbourg and the opinion of the Attorney-General have been designed to ensure that we do not stay in the customs union. As the Minister himself acknowledged, staying in a customs union would be greatly in the national interest. The Government’s policy in this matter is 180 degrees in the wrong direction. Industry and commerce are crying out for the opportunity to stay in the customs union. If we did find that opportunity, I hope we would grasp it. It is much more likely to come to us not from bad faith on the part of the Commission or the Irish but simply because the whole idea of establishing a frontier that is not a frontier proves to be hocus-pocus, as my noble friend Lord Bassam has shown. No such technology is even under study at present. Anyone who knows anything about venture capital knows that the chance of a blue-sky idea becoming viable and generating money is, at best, one in 20.
I am obliged to the noble Lord for his address on “egregious”, and I do not disagree with the derivation of the term. It would be an abnormal situation to find ourselves in, and that is why I reiterate that it would be exceptional, unusual and unfortunate for us to proceed to make a political decision based on such an abnormality. The point I sought to make on the customs union is that in so far as we remain within it as a consequence of the backstop, if we ever did, it has clear deleterious impacts upon the European Union. We would, in a sense, be getting a free ride on the customs union so far as Great Britain is concerned, but not so far as Northern Ireland is concerned. But I do not anticipate that we are ever going to find ourselves within that backstop and, therefore, within that customs union.
My Lords, I have had the chance to study the Attorney-General’s comments and I agree with the noble and learned Lord, Lord Mackay, that the Attorney-General is right. There will always be a legal risk and he would be wrong not to tell us that it remains. But that is the nature of risk. I am told that in Chinese the word “risk” is made up of two pictures—opportunity and danger. We have to look at the opportunities and then the danger, but not always concentrate on the danger.
For the likes of me, the pint is always half-full. For some, it is always half-empty. I thought that the worry about the backstop was that there was no timetable in which this matter might be resolved. December 2020 has been put into the agreement. There was also a worry that the United Kingdom might not be able to unilaterally withdraw from arrangements that did not help the rest of us. That has changed and is now reflected in the protocol. I agree with the noble Lord, Lord Thomas, that it is not lawyers who will resolve this but political will, which is the way in which we should proceed.
Having read the legal opinion, I am of the view that although what has been achieved by the Prime Minister does not take away the legal risk, the issue is more about what will happen in terms of agreements. In the end, do we believe as a nation that we are capable of achieving the best agreement in our interests and those of Europe? We have been good at negotiating protocols that have helped democratic institutions all over the world. This is a time to start believing that we should create a good agreement by 2020 and show good faith. If others do not do so, then the arbitration would come into being.
I want us to take the Chinese view; there is always danger in risk but this is the time for me to say to everybody: let us seize the opportunity and be reconciled on an issue that looks difficult. A time may come, friends, when although lawyers talk and talk—I am one of them—this issue should not be resolved by them but by politicians.
I am obliged to the most reverend Primate the Archbishop of York. I agree with his observation that ultimately we are concerned with a political, not legal, decision. We have to remind ourselves that the withdrawal agreement is the means to an end, not the end in itself. Either we leave on 29 March without any deal in place, because the law has already determined that that is our exit date, or we can leave sensibly, with a withdrawal agreement that takes us into the realms of further negotiation for our future relationship. There is no reason to suppose that as a consequence of that further move we are ever going to find ourselves in the backstop, let alone considering how to come out of it.
There are two other options. We could of course change the law and we could take an extension under Article 50. I think there are new elements in the new texts. I do not think they remedy what is, for me, a humiliatingly bad deal, but I see two new elements. First, there is a greater urgency—or an impression of urgency—in the treatment of the search for alternative arrangements to the backstop. The impression created is that the philosopher’s stone will be more actively sought. That does not guarantee that the philosopher’s stone will be found, and that is the risk that the noble and learned Lord, Lord Mackay of Clashfern, might want to bear in mind as well.
The second point is more legal than political. I see a change in the treatment of the risk of being trapped in the backstop because the European Union breaks the commitment in Article 5 of the withdrawal agreement to exercise good faith. As the Minister said, however, that is a vanishingly small risk. As the noble and learned Lord, Lord Goldsmith, said, the real risk is that the search for a mutually acceptable solution—a workable alternative arrangement—continues for some considerable time to prove fruitless. That is the real risk. Alchemy is like that. Does the Minister agree? Does he also agree with Mr Varadkar that the texts are perfectly acceptable because the withdrawal agreement has not been reopened and the backstop not been undermined?
My Lords, I do not agree with the noble Lord, Lord Kerr, on the matter of alchemy. Nevertheless, I agree with much of what he had to say. These further agreements inject a greater element of urgency into the whole process that is to be carried on and underline that this process will be carried on in good faith. That being so, there remains the outlier risk that a solution will not be found by December 2020. We remain confident that it will be. But in the event that it is not, the backstop will continue for a period. Wherein lies the disaster?
Does my noble and learned friend agree that, if at the end of this week the House of Commons discusses a delay to the Brexit date, a short delay would be entirely useless? Does he agree that what is required is a substantial delay of the kind advocated by the noble Lords, Lord Kerr and Lord Hannay, or the noble Lord, Lord Armstrong yesterday? As existing members of the European Union, we could discuss and negotiate our future relations with the European Union either within or without. Does he agree that that does not necessarily involve Brexit or, necessarily, a further referendum? Indeed, it might involve a Government of national unity to negotiate.
My Lords, does my noble friend agree that nobody would ever take any medicines if they read the leaflet in the packet in detail? That is the sort of risk we are talking about. Does he further agree that the deal on offer should be accepted tonight in another place and we should then move on?
My Lords, the noble and learned Lord emphasised the importance in the joint instrument of urgency. Indeed, paragraph 7 of the Attorney-General’s opinion today states:
“Therefore, provided the United Kingdom can clearly demonstrate in practice that it is effectively organised and prepared to maintain the urgent pace of negotiations that they imply, the EU could not fail to match it without being at risk of breaching the best endeavours obligation”.
As the Minister has emphasised that this is political, perhaps rather more than legal, I ask him a political question. Can he give the House three examples of when, since March 2017, the United Kingdom Government, in dealing with Brexit, have clearly demonstrated in practice that it is effectively organised?
My Lords, can we return to the legal advice, which is the subject of this Statement? Does the noble and learned Lord agree that the legal advice has not changed at all—yes or no?
Further, if we adopt his attractive metaphor about Italianate sculpture, does the Minister agree that if yesterday’s breathless Statement from the Prime Minister, anticipated in the House of Commons, is a fig leaf, if we lift that fig leaf, we will find that behind it are no parts whatever? To proceed towards an impossible, extreme scenario, as suggested by the noble and learned Lord himself, is something that a skilled lawyer in private practice, as the noble and learned Lord has been, would say to every client, “You can’t do it”.
My Lords, as regards the legal advice, I refer back to paragraph 7 of the Attorney-General’s letter, in which he said that the,
“Joint Instrument extend beyond mere interpretation of the Withdrawal Agreement and represent materially new legal obligations and commitments”.
To that extent, we have moved on. But of course, he also made absolutely clear that the legal risk that had been addressed in the context of whether there was a unilateral right to leave the backstop had not changed and that there was no internationally lawful means of exiting the protocol’s arrangements except by agreement. But context is everything.
On the second point, there appear ample grounds for supposing that, in taking this forward, we will arrive at a resolution of an issue that troubles lawyers but I suspect does not trouble politicians quite as much: whether or not the backstop is somehow a black or white outcome. It is not an outcome that is anticipated nor one that we believe we will have to address, and if we have to address it, we do not believe it will ever be permanent, and that for political reasons alone.
My Lords, I wanted to ask the noble and learned Lord to name an alchemist who ever succeeded in his determination to turn lead into gold, but perhaps that is for another occasion. Since we are talking about risk, it is important to remember that one risk that featured very strongly in noble Lords’ consideration of these matters is the possibility that anything that seemed to have the effect of recreating a border between the north and south of Ireland was a risk we were not willing to take. One reason for that was the fragility, albeit that it is still in existence, of the Belfast agreement. I say with due respect to the noble and learned Lord, Lord Mackay of Clashfern, that when one is considering risk, this is not crossing the road: it is a risk that could have the effect of bringing to an end many years of fragile peace. In those circumstances, it is hardly surprisingly that people want to be pretty certain, before that risk is taken, that to do so is not likely to lead to an adverse outcome.
With respect to the noble Lord, Lord Campbell of Pittenweem, I must say that I entirely disagree with his analysis. The whole point of the present withdrawal agreement and the Northern Ireland protocol is to ensure that we adhere not only to the terms but to the spirit of the Belfast agreement. That is why the backstop has been formulated in the manner in which it has. We will leave the backstop only when, or if, there is a need to put in place alternative structures that do not require a hard border between Northern Ireland and the Republic of Ireland. I reiterate my belief that we will never actually enter the backstop in the first place. We have that period up to December 2020 in which to address this issue and it is not beyond the wit of man or alchemist to resolve such an issue.
My Lords, the Attorney-General stated:
“A unilateral declaration by one party to a bilateral agreement constitutes an authentic interpretation of the treaty if it is accepted by the other party”.
Does he not find that a little odd? It would not then be a unilateral statement at all but a joint statement. On what authority did the Attorney-General say that the EU has agreed to the UK unilateral but it will not object to the UK unilateral statement? I see no trace of that in any of the documents.
Secondly, the use of the arbitration procedure remains shrouded in mystery as a result of the provision in the withdrawal treaty that any dispute involving the interpretation of EU law has to go to the European Court of Justice and not the arbitration panel. It that likely to be the case in most of the disputes?
My Lords, with respect to the two points raised, a unilateral declaration by one party can have legal status as an interpretive document in the context of international law. In circumstances where the other party does not object to the unilateral statement, it will be seen to have legal status with regard to that party’s interpretation of the relevant treaty. In that context, I therefore see no difficulty with the opinion expressed by the Attorney-General on that point.
On the suggestion that the arbitration will be shrouded in mystery because of the need to refer a point of law to the European Court of Justice, I remind the noble Lord of my response to a question from him some time ago, when I pointed out that the real issue will be of fact, not law. It is therefore difficult to envisage the European Court of Justice having any material role in the context of a dispute over good faith or best endeavours.
Northern Ireland (Regional Rates and Energy) (No. 2) Bill
My Lords, I will speak to both Motions standing in my name on the Order Paper. When I last brought forward a budget Bill for Northern Ireland, I stated that it would be the last time. Events have made a liar of me. I apologise for that.
In the absence of devolved government in Northern Ireland, the UK Government have a responsibility to ensure good governance and to safeguard public services and public finances. I therefore ask your Lordships to give a Second Reading to two pieces of necessary legislation.
The Northern Ireland Budget (Anticipation and Adjustments) (No. 2) Bill will have all its stages in your Lordships’ House today. However, following engagement with a number of noble Lords, the regional rates and energy Bill will have only its Second Reading here today. All further stages will take place on 19 March, primarily to allow time for further discussion and reflection.
With your Lordships’ permission, I will discuss each Bill in turn, The Northern Ireland Budget (Anticipation and Adjustments) (No. 2) Bill would put Northern Ireland finances for the 2018-19 financial year on a legal footing and enable Northern Ireland’s departments to continue to deliver public services into the first half of 2019-20. Your Lordships will recall that the UK Government legislated for the 2018-19 budget for Northern Ireland last year. This legislation was necessary to provide a clear legal basis to Northern Ireland departments, enabling them to manage their resources. The resulting Northern Ireland Budget Act 2018, which passed in July, did not direct any spending but rather allocated funds to departments to be spent by the Permanent Secretaries according to departmental commitments. As we approach the end of the financial year, those spends need to be placed on to a legal footing, as is standard practice in any budgetary process. That is what this Bill does.
In addition, the Bill provides for a vote on account for the first half of next year, which will give legal authority for managing the day-to-day spending in the run-up to the main estimates process. This year, following discussion with the Northern Ireland Civil Service, the Bill provides a higher than normal level of vote on account, some 70%. This is in recognition of the known increased spending pressures and the lack of Ministers in place to react and respond to emerging or escalating pressures. It also recognises the uncertainty of the political situation in Northern Ireland in the coming months. A higher level of vote on account funding is prudent, providing the practical and legal certainties to protect public services in any and all circumstances up until the point that legislation on the Northern Ireland budget for 2019-20 is taken forward.
Your Lordships will recall that my right honourable friend the Secretary of State for Northern Ireland published a draft budget for 2019-20 in February. It is important to recognise that this budget Bill does not legislate for that budget position. Those allocations will require their own legislation later this year. The vote on account in this Bill and the draft Northern Ireland budget position for 2019-20 provide the necessary clarity and certainty to Northern Ireland departments to enable them to plan and take decisions in the coming year.
I will briefly turn to the Bill’s contents. In short, it authorises Northern Ireland departments and certain other bodies to incur expenditure and use resources for the financial year ending 31 March 2019. Clause 1 authorises the issue of £16.8 billion out of the Northern Ireland Consolidated Fund. The allocation levels for each Northern Ireland department and the other bodies in receipt of these funds are set out in Schedule 1, which also states the purposes for which these funds are to be used. Clause 2 authorises the use of resources amounting to some £20 billion in the year ending 31 March 2019 by the Northern Ireland departments and other bodies listed in Clause 2(3). Clause 3 sets revised limits on the accruing resources, including both operating and non-operating accruing resources, in the current financial year. Clause 4 sets out the power for the Northern Ireland Civil Service to spend from the Northern Ireland Consolidated Fund some £11.8 billion for the forthcoming financial year. This is the vote on account provision I outlined earlier. It is linked to Clause 6, which does the same in terms of resources. The value is set at around 70% of the sums available in both regards in the previous financial year. Schedules 3 and 4 operate on the same basis, with each departmental allocation simply set at 70% of the previous year. Clause 5 permits certain temporary borrowing powers for cash management purposes.
The Bill would ordinarily have been taken through the Assembly. As such, at Clause 7, there are a series of adaptations that ensure that the Bill will be treated as an Assembly Budget Act once approved by this Parliament, enabling Northern Ireland public finances to continue to function notwithstanding the absence of an Executive.
Alongside the Bill is a set of supplementary estimates for the departments and bodies covered by the budget Bill, which was laid as a Command Paper in the Library of the House on 28 February. These estimates, prepared by the Northern Ireland Department of Finance, break down the resource allocation in greater detail. For those who wish to delve in, they are thoroughly set out in the document of which I have a copy here. As your Lordships will recall, this process is different from estimates procedure at Westminster, where the estimates document precedes the formal Budget legislation, and is separately approved. However, this would also be the case were the Assembly in session.
I also ask the House to give a Second Reading to the Northern Ireland (Regional Rates and Energy) (No. 2) Bill. This Bill would deliver two essential measures: it will enable the collection of regional rates in Northern Ireland, and will ensure fair and appropriate tariffs and cost-capping measures are in place for the renewable heat incentive scheme in Northern Ireland. The bills are not without their controversies, as noble Lords will be aware. However, the measures are necessary.
The first clause of the Bill addresses the issue of regional rates. In the absence of an Executive, the UK Government have set this rate for the past two years. My right honourable friend the Secretary of State for Northern Ireland intimated the rate—an increase of 3% plus inflation on the domestic rate and an inflation-only increase on the non-domestic rate—in her budget Statement of 28 February.
The second section of the Bill, specifically Clauses 2 to 5, concerns the administration of Northern Ireland’s renewable heat incentive scheme. I need to be clear that this is a devolved matter. We are taking forward legislation at the behest of the Northern Ireland Department for the Economy. Without legislation, there will be no legal basis to maintain the payments to participants in the scheme.
The tariff levels set out in this legislation are based upon analyses of the additional costs and savings of operating a biomass boiler in Northern Ireland following extensive consultation, assessment and analysis under- taken by the devolved Department for the Economy and through detailed discussions with the European Commission. These rates are significantly lower than previous tariffs. The European Commission is clear: the tariff rate cannot deliver a return higher than 12% per annum. For participants with lower usage needs or higher capital costs who have returns below 12%, the Bill introduces a voluntary buy-out scheme.
As I have said, these tariffs, and indeed this scheme, are not without controversy; I appreciate the desire of noble Lords to consider this significant and complex subject in more detail. There will be a Committee stage, on Tuesday of next week, where these proposed RHI measures and the amendments that noble Lords have tabled can be addressed separately. I will ensure in the intervening period that my officials, together with officials from the Northern Ireland Civil Service, are available to engage directly with issues that your Lordships may wish to raise on this matter. In addition, my officials will issue a detailed question-and-answer script addressing commonly asked questions; this note will be distributed to interested Peers shortly.
In conclusion, I hope your Lordships will recognise the necessity of the actions that I have presented today. On that basis, I beg to move.
My Lords, noble Lords will of course understand why, as he said, the Minister has made a liar of himself and had to come back to the House. It is fair to say that it is not the Minister who has made a liar of himself but the circumstances in which we find ourselves. But to be asked to pass these two Bills—and certainly the budget Bill—at Second Reading, through all their stages, only a week or so after the documentation became available and where the detailed publication, as he says, is very hefty indeed, falls way below what I would regard as any acceptable level of scrutiny. It starts to cause real concern as to who is checking what is going on with respect to the money allocated to Northern Ireland.
Will the Minister consider whether steps could be taken to provide some comfort—and more than that, oversight? For example, the Public Accounts Committee could have a specific role to look at the follow-through from what we have voted. I do not believe that the Select Committee in the Commons has the resources to do that. It was not set up for those purposes; indeed, the second Bill may in any case be the subject of an inquiry being conducted by the House of Commons committee. It will probably have its hands full. I say that to the Minister in all seriousness; many of us are concerned that £20 billion is being voted on for Northern Ireland. We understand that it is necessary, but we have no clear, detailed oversight as to how that will be spent and whether it will be spent properly. Given the problem of the renewable heating scandal, we have every reason to be concerned about scrutiny.
That is my first point. The second concerns more specific questions on issues that do not appear in the budget, which people might have hoped to see: for example, the Hart inquiry into historical institutional abuse, which has cross-party support, and which people had hoped would make progress. I would be grateful if the Minister could say something about that. There is also the issue of pensions for severely disabled victims. The last time this was raised, the Minister said that he had asked for a report from the Victims Commissioner. Can he give us some feedback on whether that report has been received? Let us bear in mind that these are elderly and sick people who, sadly, are dying, and need early action rather than considered delay.
A broader point is that there are issues not in the budget for which there appear to be all-party consensus. Might it be possible in the circumstances to see whether other decisions could be taken? When I raised this matter with officials they said that they could in principle but, before committing to something, one has to identify where the money is coming from or what else is being cut. I raise as an example—as it has been raised with me—the medical school at the McGill campus in Derry, which people had hoped would be progressing by now. The site and buildings are available, but students are leaving Northern Ireland to go to other universities, mostly in Scotland. As the Minister will know, the problem when students go outside of Northern Ireland for training, is that very often they do not come back. There is a need for places within the Province.
On the rates Bill, we accept that a simple decision has been taken to increase the business rates by inflation and the domestic rates by 3% plus inflation. Most of us recognise that as a fairly understandable formula and I suspect most people will accept it. Regarding the RHI, it is clear that, since the scheme was set up, the tariff has been set on two separate occasions at a value well outside either value for money or state aid criteria. This has led to the situation in which we now find ourselves. I am sure that all Members engaged in this debate will have received similar emails to the ones that I am receiving, from people who fear they will be substantially damaged and, indeed, distressed by the proposed cap. We will debate that in detail next week; I just make the point that it needs to be determined.
The fact nevertheless is that the Minister and officials encouraged people to take up high borrowing. The banks participated in that encouragement, relying on a comfort letter from the Minister and the support of officials. Understandably, people are saying, “We took decisions in good faith on the basis of 20-year guarantees from government Ministers, which are now being reversed”. Naturally they feel angry. Having said that, I suspect some people were quite fly at the beginning, saw a good deal coming down the track and took advantage of it. This raises a second question: why were these deals not cross-checked in any way? Why were there not investigations to ensure that they were compliant with both the spirit and the letter of the scheme? That seems a legitimate concern.