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Healthcare (International Arrangements) Bill (Third sitting)

Debated on Thursday 29 November 2018

The Committee consisted of the following Members:

Chairs: † Mr Gary Streeter, Graham Stringer

† Burghart, Alex (Brentwood and Ongar) (Con)

† Cadbury, Ruth (Brentford and Isleworth) (Lab)

† Cooper, Julie (Burnley) (Lab)

† Costa, Alberto (South Leicestershire) (Con)

† Day, Martyn (Linlithgow and East Falkirk) (SNP)

† Debbonaire, Thangam (Bristol West) (Lab)

† Hammond, Stephen (Minister for Health)

† Hughes, Eddie (Walsall North) (Con)

† Madders, Justin (Ellesmere Port and Neston) (Lab)

† Masterton, Paul (East Renfrewshire) (Con)

† Matheson, Christian (City of Chester) (Lab)

† Morton, Wendy (Aldridge-Brownhills) (Con)

† Norris, Alex (Nottingham North) (Lab/Co-op)

Quince, Will (Colchester) (Con)

† Robinson, Mary (Cheadle) (Con)

† Throup, Maggie (Erewash) (Con)

Western, Matt (Warwick and Leamington) (Lab)

Mike Everett, Committee Clerk

† attended the Committee

Public Bill Committee

Thursday 29 November 2018


[Mr Gary Streeter in the Chair]

Healthcare (International Arrangements) Bill

New Clause 1

Annual report on the cost of healthcare arrangements

(1) The Secretary of State must lay before Parliament an annual report setting out all expenditure and income arising from each healthcare arrangement made under this Act.

(2) The annual report laid under subsection 1 must include, but is not limited to—

(a) all payments made by the government of the United Kingdom in respect of healthcare arrangements for healthcare provided outside the United Kingdom to British citizens;

(b) all payments received by the government of the United Kingdom in reimbursement of healthcare provided by the United Kingdom to all non-British citizens;

(c) the number of British citizens treated under healthcare arrangements outside the United Kingdom;

(d) the number of non-British citizens treated under healthcare arrangements within the United Kingdom;

(e) any and all outstanding payments owed to or by the government of the United Kingdom in respect of healthcare arrangements made before this Act receives Royal Assent; and

(f) any and all administrative costs faced by NHS Trusts in respect of healthcare arrangements.

(3) The information required under section 2(a) and 2(b) above must be listed by individual country in every annual report.—(Julie Cooper.)

Brought up, read the First time, and Question proposed (this day), That the clause be read a Second time.

Question again proposed.

Mr Streeter, it is a pleasure to see you in the Chair this afternoon and to serve under your chairmanship. The hon. Member for Burnley has moved the motion, and in responding, I will take the opportunity to deal with the important issues of financial reporting and facilitating parliamentary scrutiny.

I will say at the outset that there can be no suggestion, nor is it the Government’s intention, that we should have anything other than a commitment to transparency and transparent use of public money. We are also committed to appropriate parliamentary scrutiny: we have taken several significant steps to ensure that central Government data is published in a transparent way, including spending control. However, that needs to be done in an efficient and effective manner, and we need to know what data is available and is not available. I have problems with the hon. Lady’s new clause because such a detailed reporting requirement is premature, and risks the very thing that she seeks to avoid. She seeks to avoid placing an administrative burden on the public bodies, but that is exactly what the new clause might do.

We believe that the frequency and detailed content of a financial report should be determined once the reciprocal healthcare arrangements have been made and the technical and operational details of those agreements are known. At the moment, the collection of administrative data is facilitated by the registration and exchange of e-forms through the processes provided for in the relevant EU regulations. As a result, the UK and other EU member states are able to collect data and report both nationally and at an EU level, based on known processes. Current spending on EEA healthcare is reported as part of the Department of Health and Social Care’s annual report—which the hon. Member for Burnley may wish to look at, or may well already know about—as well as the accounts that are presented to this place. The Department also provides information to the European Commission for its triennial report on cross-border healthcare, as well as providing an annual statement of financial accounts to the Commission.

The Department is currently negotiating with the EU and individual states therein with a view to providing UK citizens with continued access to healthcare in the EEA, either through an agreement or through bilaterals. In that case, we will have to agree how eligibility is evidenced; how, and how often, that information is exchanged; and, of course, the reimbursement mechanisms that will govern the new arrangements. Those agreements will have to take into account the operational possibilities and limitations of each contracting party. That should include how NHS trusts in the UK can evidence eligibility for treatment, and how that can be done in the most efficient and least burdensome manner. I therefore say to the hon. Lady that much of the data she requests is already published. There is no suggestion that the new healthcare reciprocal arrangements will change the administrative burden; in certain cases, it is a simple matter of looking at coding within systems. However, only once the technical details are known will the Government be able to formally commit to any additional reporting, if necessary.

I am bound to say to the hon. Member for Burnley that when I saw that the new clause had been tabled, I remembered that 10 years ago, I was in the place she is in now. It is the traditional role of Oppositions to table these new clauses for almost every Bill; it is also the traditional role of Governments to reject them when they see them, as I remember only too clearly from when I was sat in the hon. Lady’s place. I therefore hope I have gone some way towards making clear to her that we are not trying to avoid any reporting requirement, or to shy away from any parliamentary scrutiny. There are already a number of reporting processes in place, and we want to make sure that any future reporting processes operate in a proportionate and considered manner. I hope that the hon. Lady will accept the spirit of my remarks, and that she will therefore choose not to press the new clause to a Division.

It is a pleasure to serve under your chairmanship, Mr Streeter, and to respond to the Minister’s points. I appreciate some of his arguments, but we are in unprecedented times. As the Bill will facilitate the arrangement of a diverse range of agreements, it must cover every eventuality. It is therefore perfectly reasonable to expect the technical agreements, once they have been reached, to be reported back to Parliament annually. Parliament cannot be expected to grant a blank cheque. I accept that I do not have the Minister’s experience in this place, but large amounts of money will be spent on as yet unknown agreements, so it seems reasonable to request that, when the negotiations result in an agreement, it is reported back to Parliament once a year. That is the first thing that concerns me.

I should have thought that the Government would want to take the opportunity to report on the improved performance and collection of charges due to the UK in respect of all non-UK citizens seeking to access care in the UK.

Indeed, and of course we are doing so. We have made that clear. As the hon. Lady knows, over the past four years we have quadrupled the amount of income we are recovering.

I am grateful to the Minister for that clarification, but my understanding is, as the Public Accounts Committee reported, that the Government have still not met their own targets on improved collection, and there will potentially be greater barriers to protection if several agreements are negotiated. I therefore want Parliament to have the opportunity to scrutinise the Government’s delivery on collection.

I am concerned that the Minister does not think it fitting for Parliament to have sight of an impact assessment of the additional burdens that the collection resulting from the as yet unknown agreements would have on NHS hospital trusts’ general financial wellbeing. I will press this new clause to a Division. I think it is sensible and reasonable, so there can be no cause to object to it.

Question put, That the clause be read a Second time.

New Clause 2

Strategy to ensure continued access to medical care in Northern Ireland and the Republic of Ireland

(1) Before this Act receives Royal Assent, the Secretary of State must lay before Parliament a strategy containing a defined process that will ensure that—

(a) British citizens living in Northern Ireland can continue to access medical treatment under a healthcare agreement in the Republic of Ireland; and

(b) citizens of the Republic of Ireland can continue to access medical treatment under a health agreement in Northern Ireland

if a withdrawal agreement between the United Kingdom and the European Union has not been ratified by exit day.

(2) In this section, “exit day” has the meaning given in Section 20 (1) of the European Union (Withdrawal) Act 2018.” —(Justin Madders.)

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

It is a pleasure to serve under your chairmanship, Mr Streeter. I recall that the first Westminster Hall debate that I secured was under your chairmanship. Indeed, you were also in the Chair the first time I was the Opposition Front-Bench spokesman in a Bill Committee. In these turbulent times, you are a consistent and familiar face—certainly to me and, hopefully, to many other hon. Members.

Reciprocal healthcare is of most importance for those countries where it is accessed most—none more so than on the island of Ireland. When the British Medical Association gave evidence on Tuesday, it was clear about the success story that has been achieved, particularly in the border area, particularly with a dispersed population of around 2 million. It said:

“Given the population demands on the whole island of Ireland, both in the Republic of Ireland and Northern Ireland, there have been some fantastic examples of where clinicians have either co-located services in a particular trust or facility where there is not the demand from the local population to warrant it, or travelled across the border to work on different sites.”––[Official Report, Healthcare (International Arrangements) Public Bill Committee, 27 November 2018; c. 4, Q10.]

Fiona Loud from Kidney Care UK raised the example of patients who currently cross the border daily for their care and treatments. She also mentioned organ donation and organ sharing, and the need to ensure that the existing and very successful arrangements that we have are preserved.

It is easy to talk about scaremongering when we raise the spectre of patients being turned away at the border, and I am sure that we will all do our utmost to ensure that such circumstances do not arise, but we are talking about really important issues here. The healthcare arrangements on the island date back to before the UK and the Republic of Ireland joined the EU, but they are now underpinned by EU law, so we cannot simply revert back to the old arrangements, should a full EU-wide deal not be reached.

I was concerned about the lack of consideration given to the issue in the supporting documents and in the contribution from the previous Minister, the right hon. Member for North East Cambridgeshire (Stephen Barclay), on Second Reading. If we do not get this issue right, the Bill will be a failure. The amendment would ensure that the provisions do not reach the statute book until clarity on this hugely important issue is provided. I appreciate that article 13 of the Northern Ireland protocol in the withdrawal agreement indicates a desire to continue north/south co-operation in a range of areas, including healthcare, but that does not help us if Parliament does not support the withdrawal agreement. That is why the amendment asks for a strategy to be provided as a matter of urgency.

The new clause deals with the crucial question of healthcare on the island of Ireland. It focuses on reciprocal access to healthcare between Northern Ireland and Ireland, if there is no UK and EU deal, and would require the Secretary of State to set out plans for an agreement to protect medical access for British and Irish citizens moving between Ireland and Northern Ireland.

We agree that it is absolutely our intention to do two things. First, there should be a deal for reciprocal arrangements between the UK and the EU, and secondly, it is absolutely essential, in the unlikely scenario of no deal, that essential access continues. The UK and Ireland are committed to protecting reciprocal healthcare rights, so that UK and Irish nationals can continue to access healthcare when they live in, work in or visit the other country. We also want to maintain the co-operation between the UK and Ireland on a range of medical issues, including planned treatment, public healthcare and workforce. It is absolutely the intention of the Government that people should be able to live their lives as they do now, and that our healthcare systems support one another.

If there is no deal—in that unlikely scenario—the UK and Ireland will want to set out how we both agree to protect reciprocal healthcare arrangements, but it is also true, and the hon. Gentleman will know, that the UK Government are firmly committed to maintaining the common travel area and to protecting the rights currently enjoyed by UK and Irish nationals when in each other’s states. The hon. Gentleman’s issue about the border is mitigated by the fact that the UK Government are committed to maintaining the common travel arrangements, which allow full protection and maintenance of the status quo for all journeys for individuals between the UK and Ireland. It is currently estimated that there are something like 110 million crossings.

As I said earlier, as with other member states, we would expect to have a healthcare agreement between the two countries in the unlikely situation that there were no deal—an agreement that could be implemented into legislation that would provide the reassurances that the hon. Gentleman seeks. The NHS charging regulations can already exempt individuals that are covered by reciprocal healthcare arrangements. We can also use the powers in the Bill to maintain aspects of our current co-operation, such as reimbursement for healthcare costs and the sharing of data to support entitlements. I therefore say to the hon. Gentleman that I do not think the new clause is necessary, given the clear commitment by both sides. I hope he recognises that commitment and does not feel that he needs to press the new clause to a vote.

I am minded not to press the new clause to a vote if the Minister assures us that he will endeavour to keep us updated on the contingency plans, if it looks like we are approaching a cliff-edge scenario. That is really what we are trying to achieve.

Let me make the hon. Gentleman the same offer that I made to the hon. Member for Burnley. In that unlikely scenario, I guarantee that I will make my officials available to give a briefing to the hon. Gentleman and any member of the Committee who wishes to understand what our proposals are.

I am content with the Minister’s comments. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 3

Strategy for settling disputes concerning healthcare agreements

(1) The Secretary of State must, within one month of this Act receiving Royal Assent, lay before Parliament a strategy containing a defined process for settling disputes concerning healthcare agreements between the government of the United Kingdom and either the government of a country or territory outside the United Kingdom or an international organisation.

(2) The strategy under section 1 above must include information on—

(a) the body, bodies or jurisdiction that will be responsible for settling disputes;

(b) the process which will be followed by that body, bodies or jurisdiction when settling a dispute, including details of any further appeal mechanisms; and

(c) anything else the Secretary of State thinks is relevant to such a strategy.—(Justin Madders.)

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

On Second Reading, I spoke about the importance of dispute resolution, and asked the then Minister for Health, the right hon. Member for North East Cambridgeshire (Stephen Barclay), to set out how he envisaged it operating in both a deal and a no deal scenario. Despite some prompting from me and my hon. Friend the Member for Weaver Vale (Mike Amesbury), the Minister was not able to set out how dispute resolutions will be handled under the terms of any new agreement or even if the European Court of Justice will continue to represent a red line for the Government. The latter point is particularly interesting, given the new role of the right hon. Member for North East Cambridgeshire. It appears that he did not provide detail on that point because, at that stage, the Government were simply not in a position to confirm what was in the draft withdrawal agreement.

The Prime Minister categorically ruled out any jurisdiction of the European Court of Justice very early in the process, but I have yet to hear any serious suggestion about how disputes can be resolved, if we manage to reach a full reciprocal healthcare agreement with the EU27 beyond the transition period, without some reference back to the ECJ. The same concerns would apply if bilateral agreements were necessary in a no deal scenario.

Given the importance that the Prime Minister and members of her Cabinet have placed on the ECJ following our exit from the European Union, it is curious to say the least that we do not have a clear statement of intent from the Government while we debate this Bill. If their position continues to be that we will not have truly left the European Union if we are not in control of our own laws, as the Prime Minister put it in January 2017, it is vital that we have clarity about the arrangement that will be used in place of the ECJ. If a new arrangement is established, what will the cost be? Who will the judges be? Where will it be based? Will it be an open process?

If, on the other hand, we look to the ECJ for dispute resolution after all, even if only in the limited area of reciprocal healthcare, would that not represent a significant political U-turn? This issue is fundamental to the Government’s approach to Brexit. For example, they decided that we could not continue to host the European Medicines Agency, causing it to go to Amsterdam at the cost of 900 jobs in this country, and potentially hundreds of millions of pounds of investment. The Health Secretary’s sole justification for that was that the Government were not prepared to accept the European Court of Justice’s jurisdiction. Our purpose in tabling this new clause is to get clarity from the Minister about whether the European Court of Justice remains a red line for the Government.

The new clause would place a duty on the Secretary of State to lay before Parliament a detailed strategy defining the process for settling disputes concerning healthcare agreements after we leave the European Union. No one in the room would dispute the spirit behind the new clause. As I have stated throughout our examination of the Bill, it is right that there should be transparency regarding the UK’s future relationship with the EU and other countries after exit. It is right that that transparency should apply to the arrangement of future healthcare agreements, and the processes that underpin them, such as dispute resolution, but, although I agree with the spirit of the new clause, I am not entirely sure that it would achieve its intended aim. I will give a number of reasons why.

The new clause would confer a duty on the Secretary of State to lay a strategy on the process for dispute resolution before Parliament. Both in a deal and a no deal scenario, such a strategy would be unlikely to provide information on the process for settling disputes concerning healthcare agreements that is not already available in the public domain. That is not due to a lack of endeavour; it is an issue of timing and consideration of what is already publicly available. In the expected scenario that the UK agrees a deal with the EU, the proposed process for settling disputes has already been confirmed in the White Paper on the future relationship, the draft withdrawal Bill that governs the implementation period and, most recently, the political declaration on the future relationship between the UK and EU. The processes have already been confirmed. They are outlined in those documents and would apply not only to disputes, but clearly therefore to disputes in any reciprocal healthcare agreement.

The hon. Gentleman asks what the dispute mechanism is. I am sure that the Committee will be pleased that I am not going to quote extensively from the withdrawal agreement, but it is worth putting on the record that the mechanism for resolving disputes will be through consultation at the Joint Committee, with the aim of reaching a mutually agreeable resolution. If the parties are not able to resolve the dispute in the Joint Committee, either party can request the establishment of an independent arbitration panel to resolve it. The panel will be made up of five members, with one person being the chairperson. The UK and the EU will nominate two members to sit on the panel and then mutually agree the fifth member, who will be the chairperson. The panel members will act independently and do not represent the party that nominated them. It is binding that the panel members be independent and impartial and they must possess specialised knowledge or experience of EU law and international law.

The hon. Gentleman challenges me on the role of the ECJ. He is right that the ECJ has a role here, but its role is very clear and very limited. The role of the ECJ after the implementation period will be restricted to ensuring the correct interpretation of EU law. There is no suggestion that the ECJ will determine the dispute, or that we would ever agree to the ECJ determining the dispute.

That is the likely scenario and the processes that are already formally set out via the documents that I described earlier. In the unlikely scenario that the UK leaves the European Union without a deal, the United Kingdom will arrange reciprocal healthcare agreements, and in those agreements, there will have to be bilateral dispute resolution. That would clearly have to be determined on a case-by-case basis as part of the negotiations to put those bilateral healthcare agreements in place, and, therefore, there is unlikely to be a single dispute resolution process, which is what the new clause suggests, so while I accept the spirit of it, the wording would restrict the ability for future reciprocal healthcare arrangements.

More importantly, the requirement for such a strategy to be laid before the House one month after the Bill receives Royal Assent does not align with the aim of the Bill to provide future reciprocal healthcare agreements with countries both inside and outside the EU. Clearly, those agreements are likely to be negotiated over a period of time and, as I have just mentioned, the dispute resolution mechanisms within them are likely to be different and may vary. It would therefore be arbitrary and unhelpful to produce a general strategy immediately after Royal Assent.

I understand the intention behind the new clause, but it would place an unnecessary burden and duty on the Secretary of State. In a deal scenario, the procedures are already there. In the unlikely no deal scenario, it would be likely to frustrate the ability to put in place future reciprocal healthcare agreements.

I hope that, having heard that, the hon. Gentleman will accept that, although we understand the spirit of his new clause, its wording would be likely to frustrate the purpose of the Bill. I therefore ask him not to press it to a vote.

I am grateful to the Minister for setting that out in more detail than we were able to elicit on Second Reading. Given that the withdrawal agreement had not been published at the time, I understand why the then Minister was not able to do that. The present Minister has been very helpful in setting out the process for leaving with a deal. He is right that, if we leave without a deal, we are in uncharted territory. I do not think I heard any confirmation that there are red lines, in terms of the European Court of Justice, in that scenario. That is really what the new clause was meant to establish. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 4

Duty to consult with devolved administrations

Before issuing any regulations under this Act, the Secretary of State must consult the Scottish Government, the Welsh Government and the Northern Ireland Government and have regard for their views on the regulations.—(Justin Madders.)

Brought up, and read the First time.

I beg to move, that the clause be read a Second time.

I hope this is a straightforward and uncontroversial new clause. We have already spoken about the importance of reciprocal healthcare arrangement to citizens in Northern Ireland, and of course there will also be an impact on patients in Wales and Scotland. The Scottish and Welsh Governments have clearly and robustly articulated their support for a continuation of reciprocal healthcare agreements, and why would they not?

The Delegated Powers and Regulatory Reform Committee was clear in its recommendation that there should be active participation of the devolved Administrations in setting out the UK’s position in future arrangements, but I am not aware that there have been any discussions. I would be grateful if the Minister could set out what conversations have taken place, because we did not get clarity on that on Second Reading.

The new clause repeats some of the issues that we raised this morning, which you did not have the pleasure of hearing, Mr Streeter. It is about the scope and power of the Bill and the wide range of duties given to the Secretary of State, which will be subject to the negative procedure. We think it is important that, as part of the Bill, when those wide powers are given to the Secretary of State, there must be a clear duty to consult with the devolved Administrations before those regulations are enacted.

The Fisheries Bill and the Agriculture Bill have dealt extensively with the need to involve the devolved Administrations. I think this is the bare minimum that we need. It would represent a consistent and equitable approach across the devolved nations, in terms of our future relationship with the EU.

It is a pleasure to respond to this new clause, which addresses the extraordinarily important issue of engaging and working with the devolved Administrations. We completely agree that regulations made under the Bill may relate to devolved matters, by which I mean domestic healthcare. The Government will engage and meaningfully consult with the devolved Administrations in line with our existing arrangements, as found in the 2012 memorandum of understanding between the UK Government and the devolved Administrations, and the principles that underlie relations between us. That reinforces the positive work that the UK Government continue to do with the devolved Administrations daily for the benefit of the whole of the UK on this matter.

I am forced to reflect that, though the hon. Gentleman’s new clause is not necessary, the sentiment behind it is shared by everyone in Committee, I suspect. The regulation-making powers in the Bill provide us with a legal mechanism to implement international agreements domestically. The Bill will ensure that we can broadly continue reciprocal healthcare arrangements, where agreed with the EU, to the benefit of the residents of England, Wales, Scotland and Northern Ireland. The powers offer flexibility and can be used to implement comprehensive healthcare agreements with third countries in the future for the benefit of all UK nationals.

The reciprocal arrangements, as governed by EU regulations, predate the devolution settlements. International affairs is a reserved matter, but domestic healthcare is devolved. As we take the Bill forward, it will be important that we do so in a way that is collaborative and respects the devolution settlement and the conventions for working together. To that effect, to answer the hon. Gentleman directly, significant and ongoing constructive discussions are taking place with the devolved Administrations, at ministerial and official levels, on the Bill and the underlying policy.

The UK Government are committed to working closely with the devolved Administrations now and in the future to deliver an approach that works for the whole of the United Kingdom. The Bill has a strong international focus and is predominantly concerned, as we discussed at length, with the welfare of UK nationals outside the UK, including the making of payments and data sharing to support that. We recognise that in some parts of the Bill, however, powers may be used in ways that relate to domestic healthcare. We are therefore seeking legislative consent motions to that extent only.

We will of course engage with and consult the devolved Administrations where regulations may relate directly to devolved matters, but it would be inappropriate to do so where regulations do not relate to devolved matters. Furthermore, as a measure of how important we consider this issue, we can and will only consider amendments to the Bill that concern the devolved Administrations where we have discussed those fully with the appropriate officials.

In keeping with the spirit of the new clause, therefore, I tell the hon. Gentleman that not only are discussions ongoing, with constructive engagement with the devolved Administration, but we intend that to continue through the Bill. We will continue to support in every way our collaborative working arrangements. As a point of principle, we guarantee to undertake meaningful consultation with the devolved Administrations on regulations under clause 2, which I suspect that the hon. Gentleman is concerned about, where they relate directly to devolved matters. The hon. Gentleman’s concern is to ensure appropriate consultation with the devolved Administrations, but that has happened, is happening and will continue to happen.

I believe that the Committee is drawing to a close, so I will take the opportunity to thank all my colleagues, and all hon. Members in the Opposition, for giving this small but important Bill the line-by-line scrutiny that it deserves. I thank you, Mr Streeter, for chairing this afternoon’s proceedings.

The Minister has put on record pretty clearly his intention in respect of ongoing and continued engagement with the devolved institutions. He is right that we are concerned that the powers under the Bill are wide. Those concerns remain, but in so far as they involve the new clause, his comments have done enough to assure us that it will not be necessary for us to press it to a vote.

I echo the Minister’s sentiments, given that we are now making the closing remarks of this Bill Committee. I thank you for chairing, Mr Streeter, and hon. Members for participating in Committee today.

I look forward to Report. We need to continue to explore some important issues, but we must move forward with this legislation, as is necessary in this uncertain time. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Bill to be reported, without amendment.

Committee rose.