Mr.
O'Brien: My hon. Friend unquestionably raises a serious
issue, which I am sure the Minister will be anxious to address. Can he
help me? If, during the course of negotiations, the Minister were
unpersuaded that the negotiations were leading to a likely out-turn
that she and the Government could support, and we were not therefore
prepared to proceed, is there a way in which the law of the land could
rely simply upon the judgments that are already in place, which the
directive is intended to codify? Does that leave us an option for a
negotiating position, or is it likely to go through and therefore carry
a risk with it? If the risk is real, is there an ability to withdraw
from the risk, or does one have to accept the risk in one way or
another?
Mr.
Cash: That is a very important question. I have noticed
quite often—this went on throughout proceedings on the Lisbon
treaty—that there are certain things that the Government would
rather were not being done, but that are done notwithstanding that, in
the interests of the European Union as a whole, so it is said. I rather
suspect, given the way in which the Minister has addressed this
question, in a measured fashion, that the Government have severe
reservations about the measure and know where it could go. I suspect
that they do not want to make too many admissions, certainly not in a
Committee and in public, but that, behind the scenes, they are deeply
concerned. The up-front point that I made earlier is one such issue.
The Minister has acknowledged that there are serious and practical
problems. I do not claim to be an expert in health
matters—indeed, this is the first time that I have spoken on the
subject for a long time—but this issue is a serious
difficulty.
The document
goes
on: “Article
16 of the EC Treaty requires the Community and the Member States to
ensure that services of general economic interest operate on the basis
of principles and conditions which enable them to fulfil their
missions.” The
European treaties are full missions and objectives with which we have
to comply. It
continues: “In
addition, Article 86(2) of the EC Treaty allows reconciling the rules
of Community law, including rules on competition and internal market,
with the fulfilment of the mission of general
economic interest by making undertakings entrusted with the operation of
services of general economic interest subject to the rules contained in
the EC Treaty in so far as the application of such rules does not
obstruct the performance, in law or in fact, of the particular tasks
assigned to
them.” Mr.
O'Brien: Sir Humphrey lives
on.
Mr.
Cash: Indeed. I shall explain what all that really means,
in a nutshell. Although we have heard some cautionary words from the
Minister and although, as my hon. Friend the Member for Eddisbury has
said, the Opposition are generally thought to be in favour of the idea
behind the directive, I issue my reservation in respect of the points
that I have just made. It is my conclusion, in line with all the
evidence that has been accumulated in the 25 years that I have been in
this House and the years that I have been a member of the European
Scrutiny Committee, that we are being taken into a field of
integration, despite what the Minister and the Government want, knowing
that this is really another process of intrusion into the ability of
this House to legislate on its own account. This is not a Euro-rant; I
am simply illustrating, from the documents and the evidence before us,
that what I am saying, and what I have said over a number of years, is
alive and kicking.
It is for the
Government to decide whether, in line with what we heard in the
European Scrutiny Committee the other day, when we had meetings with
the Council Secretariat, they are effectively required, like a
ventriloquist, to go along with what the European Union in its
institutional form prescribes. A great deal of discussion goes on, but
the process is inexorable and continues to provide for a European
dimension irrespective of whether that is in the interests of the
people of this country, who elect us. The responsible view that I take
is that we must be very aware of that overarching process. We also have
to be aware that whereas we should co-operate in the European Union or
Community, or whatever one likes to call it, that should not be an
automatic passport to a European-wide solution achieved through the
aegis of the European Court of Justice. I would not go down that route.
In the matter under consideration, we are being taken towards
arrangements that will not be in the interests of the economy of this
country or its
citizens. I
do not deny that it is useful for us to have access to medical services
in other countries. However, the way that that is constructed in this
proposal is not how I would do it. That is why I will vote for the
amendment that my hon. Friend the Member for Eddisbury has tabled. My
reservation is that I would not go the whole
hog. 6.21
pm
Dawn
Primarolo: This has been a helpful debate on an important
issue. This cannot be the last word on the matter and I am sure that
hon. Members will want to return to this discussion. The draft
directive is in its early days, and we expect it to change over the
coming months or perhaps years. I have attempted to concentrate
carefully on what I think are helpful principles that protect the NHS
and on issues on which we require further clarification and must
continue to negotiate.
We have all
returned repeatedly to the recognition that case law exists on this
matter and that patients have rights. We must ensure that patients are
able to access those rights and, at the same time, try to understand
the risks that face them. The hon. Member for Romsey rightly raised the
question in her closing remarks about where the responsibility lies for
ensuring that a patient is properly informed of those risks. I think
that that responsibility will fall on the
NHS. The
hon. Member for Stone said, and I agree, that we must ensure that this
matter is properly codified in the directive so that it is not affected
by further case law. The draft directive must not contain legal
uncertainties or anything imported into it beyond that which is
provided by the current case
law.
Mr.
Cash: Will the right hon. Lady give
way?
Dawn
Primarolo: I will give way once I have finished this
point. The draft directive is about the movement of individuals, not
health providers. I will return to that point when responding to the
amendment.
Mr.
Cash: The Minister is hopelessly optimistic in believing
that the European Court of Justice will simply accept the line that she
has just taken. The Court has never been, and never will be,
constrained by the views of a Minister of one Government of the 27
member states, however forceful and well-articulated those views
are.
Dawn
Primarolo: I know that the hon. Gentleman takes a very dim
view of the ECJ and the EU more generally. I have heard him make this
point repeatedly on other subjects when I was a Minister in other
Departments. I am sure he accepts that it would be foolhardy not to try
to codify current law. Taking no action would mean that case law upon
case law will determine such matters, because there are uncertainties
now. The Government believe that it is important to ensure that the
directive builds only on case law, that member states decide what
treatment they pay for and keep control of their own health systems,
that patients know their rights and the risks, that the directive
closes any further case load, and that it does nothing to open up the
NHS to the possibility of its being
undermined. The
hon. Member for Romsey raised a number of important points, including
equity of access, which needs further discussion. She asked who would
convey the risk to the patient, and I hope that I have answered that.
She is absolutely right to say that we must ensure that the
NHS’s capacity is protected, because the service is for UK
residents and citizens. We must ensure that we do nothing to open up or
to breach that principle. The hon. Lady also made an important point
about prescriptions, and I agree with her. We are trying to start
discussions to clarify and to develop the template to which she
referred, and to clarify the scope that the Commission
envisages. I
fear that in responding to the amendment and asking the Committee to
reject it, I am in danger of ruining the reputation of the hon. Member
for Stone. He made an excellent case in explaining why, whatever the
criticisms of the Government motion, the amendment opens up areas for
debate that are not provided for in
the directive. Article 1 states specifically that it must be about
cross-border health care and case law. The whole debate has, rightly,
been about the Government being careful to ensure that there is no
“spillover” into other areas. That is why it is
extraordinary that the Opposition have tabled an amendment that would
ensure that we use best access for patients in other member states as
justification for the directive and, more worryingly, which would open
up the NHS to competition. The directive is not about the movement of
services, and we should say nothing in our discussions that leads
anyone, inside or outside the House, to believe that it is somehow
about creating a Europe-wide health service whereby we bring all the
health services together to deploy them on a European basis on capacity
and competition, using as a focus, as the amendment would do, not only
our citizens, but citizens of other member
states. I
am sure that the hon. Member for Eddisbury was not trying to pave the
way for the breaking up of the NHS, and that that is not a policy
statement. I hear what he says about wishing that the
Government’s original motion was slightly stronger but, as we
have all acknowledged, at this point in the debate and given that so
much still needs to be said and clarified, it is difficult to go beyond
that. I hope that the hon. Gentleman will not press an amendment to
open up the NHS to European
competition. The
issues to which the hon. Gentleman referred are important. We should
offer the highest standards and the very best health care that we can
in Europe, but that can be achieved only by respecting the principle
that member states and their Ministers set the standards and criteria
that need to be achieved. To breach that principle at this stage would
be foolhardy.
Mr.
O'Brien: I am very grateful to the Minister for addressing
seriously the intention behind the amendment. She is quite right, of
course, that there is no suggestion or intent on my part that we should
introduce competition to the NHS in the way that she
describes. The
objective of the amendment is clear, and I hope that its phraseology
reflects that. We should ensure that we measure what we mean by the
benefit to UK citizens and UK patients on better health
outcomes—I would have thought that is common ground. Because the
Minister has already said that health tourism is at the margin
today—and I accept her numbers that there is some, albeit
limited, health tourism— what we need to do is to continue to
maintain the standards of our NHS, to make sure that that health
tourism is kept to a minimum. That is why we used the word
“competition” in the amendment: far from seeking to
convey the message that the health service should be competed out, it
should be so competitive that it does not encourage people to shop
elsewhere for better health outcomes.
Dawn
Primarolo: I understand what the hon. Gentleman was trying
to do. I am just saying to him that that is not what his amendment
does. His amendment refers to
a “final
Directive to secure better health outcomes first for UK
patients”— I
am grateful for that, because that is what we are supposed to be
doing— “and
for patients from other member States through the capacity and
competition such a move offers.”
I regret to say that I
interpret those words—I accept that it was not his meaning, but
I know others will interpret it differently—as saying is that it
is in the best interest of UK patients and all European patients to
open up the health care system on competition through capacity and
improvement to that
capacity. I
would like to find another way through this. If the hon. Gentleman
wants to press his amendment today, I will have to ask my hon. Friends
to vote against it. However, I think that he has put his points on the
record. The debate is very important, and it will continue to inform
our negotiations, but I think that those words in the amendment will be
interpreted in such a way that they would expand the risks for us,
rather than contracting them. I therefore urge the hon. Gentleman not
to move the amendment, but if he does so and it is put to a vote, I
will ask my hon. Friends to oppose it.
In
conclusion, it is not in the gift of a Minister to facilitate these
debates. I entirely accept, because we are in the early stages and we
do not have the results of the consultation or the negotiations, that
this is something
that Members wish to follow in detail. I certainly give a commitment as
a Minister to do all I can to ensure that Members are properly informed
of the developments on this
dossier. Mr.
O'Brien: In the light of the debate, and in
particular the points that have been made on the record, I shall not
move the amendment or press it to a
vote. Resolved, That
the Committee takes note of European Union Documents No. 11327/08 and
Addendum 1, Commission Communication, a Community framework on the
application of patients’ rights in cross-border healthcare and
No. 11307/08 and Addenda 1 to 3, draft Directive on the application of
patients’ rights in cross-border healthcare; agrees with the
Government on the desirability of EU legislation to clarify the
operation of cross-border healthcare to provide certainty for patients;
and supports the Government's belief that the UK should continue to
pro-actively engage in this area in order to achieve the maximum
influence over the shape of the debate and final
Directive. The
Committee rose at twenty-six minutes to seven
o’clock.
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