Healthcare (International Arrangements) Bill — House of Lords, 2019-02-05
Topic: Health
Jonathan Marks (Liberal Democrats, Centre to centre-left): My Lords, I join the noble Lords, Lord O’Shaughnessy and Lord Foulkes, in welcoming the noble Baroness, Lady Blackwood of North Oxford, to the House and to her post. I congratulate her on making an excellent maiden speech. I hope she will forgive me when I admit to spending a great deal of time in her erstwhile constituency and to having campaigned there in the last two general elections—so I may have played a very small part in her elevation to your Lordships’ House Although I thoroughly enjoyed the Minister’s speech, particularly the passages about Oxford, she did not—perforce, I accept, as did she—comply with the tradition that maiden speeches ought to be uncontroversial. I oppose the Bill in its present form. I am conscious of the fact that it has passed through the House of Commons unamended and that the report of the Delegated Powers and Regulatory Reform Committee was, unusually, produced on 15 November, before Committee in the other place. Nevertheless, regrettably, the Committee’s report was taken insufficiently seriously by the House of Commons. Sometimes the lack of scrutiny of departures from our constitutional arrangements is frankly unforgivable Of course, noble Lords across this House much want to see arrangements for reciprocal healthcare with member states of the EU, the EEA and EFTA continuing as closely as possible to their present form. Indeed, one of the great risks of the calamitous decision to leave the European Union is 27 million UK EHIC card holders, and 180,000-odd UK state pensioners living in the EU who benefit from the S1 scheme, risking the loss of their current rights to reciprocal healthcare The Explanatory Memorandum and the Minister say that the Bill has been introduced as a result of the decision to leave the EU and is intended to respond to all possible outcomes of EU exit with new reciprocal healthcare agreements. However, the Bill confers on the Secretary of State exceptional and untrammelled powers that are utterly objectionable. Furthermore, as I will argue, the breadth of these is entirely unnecessary to achieve what is needed to enable satisfactory reciprocal healthcare arrangements to be made on Brexit I shall start by turning to the proposed powers. Clause 1 states: "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" There is no limit on the amount of such payments. There is no limit on the type of healthcare to be provided. Indeed, Clause 3 says that, "‘healthcare’ means all forms of healthcare provided for individuals, whether relating to mental or physical health, and includes related ancillary care" There is no geographical limit on where it is to be provided: the power is worldwide. The additional definition of "healthcare agreement" covers providing to other countries healthcare without limit within the UK, and possibly at UK taxpayers’ expense. Clause 2(1) cures none of these deficiencies Worse still, Clause 2(2) is entirely unlimited. The regulations may do any of the things provided in subsections (a) to (i), "for example". So logically they may also do anything else. The Secretary of State may specify, in regulations, levels of payments and their calculation; classes of beneficiaries; types of healthcare to be provided; set-off arrangements; and reimbursement levels, which may include caps. I interpose that this is particularly important because the Secretary of State may decide who pays back what—whether citizens, international organisations, states or the UK Government. The list goes on with processes, appeals, discretion and an unlimited power to boot to delegate any functions under the clause Further, the Secretary of State may, in an exercise of absolute power under Clause 2(3), "give directions to a person", and under Clause 2(4), "may vary or revoke directions", in relation to any function. The Bill does further violence to our constitutional arrangements by providing, at Clause 5(3) and (4), that: "Regulations under section 2 may amend, repeal or revoke primary legislation—(a) for the purpose of conferring functions on the Secretary of State or on any other person (including conferring a discretion);— or— "(b) to give effect to a healthcare agreement … Regulations under this Act may amend, repeal or revoke retained EU law" These are Henry VIII powers in terms that would have made even that Tudor monarch blush. But we should remember that Henry VIII powers take their name from the Statute of Proclamations 1539, which enabled the King to govern by decree without regard to Parliament. In the context of a process whereby Parliament is supposed to be taking back control, these powers fly in the face of parliamentary sovereignty The House will by now be familiar, from speeches by the noble Lord, Lord Foulkes, and others, with the conclusion of the Delegated Powers and Regulatory Reform Committee: "Clause 2 has a breath-taking scope. Indeed the scope of the regulations could hardly be wider" I had the honour of serving on that committee under the distinguished chairmanship of my noble friend Lady Thomas of Winchester. Our discussions were entirely non-partisan and our reports generally—indeed, I think always—unanimous. They were carefully considered. We were extremely well staffed and our recommendations were almost always accepted and implemented by the Government The principles we applied were well known and well understood. First, we considered whether a delegation to a Minister was proper and appropriate. Only if it was would we move to the second stage of considering the proposed level of parliamentary scrutiny. Henry VIII powers were to be severely limited to those cases where the need for them was fully explained and justified. The passage of legislation around Brexit has seen many arguments about the use of Henry VIII powers, but I regret that the Bill persuades me that the Government have learned nothing. As we are forced into an unholy rush to get Bills through, our constitution takes second place to political expedience and face saving. An important passage in the committee report is at paragraph 11: "All regulations made under clause 2 are subject only to the negative procedure, save where they amend primary legislation. If, without such amendment, as quoted by the noble Lord Lord Foulkes, the Secretary of State wished to fund wholly or entirely the cost of all mental health provision in the state of Arizona, or the cost of all hip replacements in Australia, the regulations would only be subject to the negative procedure. Of course, these examples will not be priorities for any Secretary of State in this country. But we judge powers by how they are capable of being used not by how governments say they propose to use them. The fact that the powers could be used in this way suggests that they are too widely drawn" That last reference to the potential use of powers is an important quote from paragraph 20 of the committee’s guidance to departments, published in 2014: "If the government has in mind a particular proposed exercise, it is helpful for the Committee to be told of this. But the Committee will judge the power by reference to what could be done under it by the current or any future government and not only what the current government say they intend to use the power for" That principle is what makes the Government’s Explanatory Memorandum unhelpful and the caution of the committee essential. I am afraid that the Minister’s speech and that of the noble Lord, Lord O’Shaughnessy, failed to grapple with this issue. The Minister seeks to reassure the House while she urges the House to accept the possibility of what is unacceptable. I accept the committee’s view that its examples of Arizona and Australia are extreme. However, we have a Government who are, in their own words, "determined to make a success of Brexit",—[Official Report, Commons, 10/7/18; col. 929.] and resolutely opposed to our staying in a customs union with the EU, so as to be free to make trade deals across the world. May it not be that, in their zeal to reach such trade deals, given the difficulties of so doing, the Government could offer in exchange for trade deals health agreements to third countries on terms that Parliament might consider unsatisfactory were it allowed to consider them properly The EU’s new economic partnership agreement with Japan, mentioned earlier by the noble Lord, Lord Henley, demonstrates how difficult new trade deals may be. Nor should we forget either that the ill-fated TTIP attracted so much opposition in the United Kingdom precisely because it opened up our healthcare market to American competition, to the extent that the Conservative Government in 2016—