Cross-Border Health Care
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 oftenthis went on throughout proceedings on the Lisbon treatythat 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 mattersindeed, this is the first time that I have spoken on the subject for a long timebut 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
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.
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.
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 NHSs 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
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 Governments 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 outcomesI would have thought that is common ground. Because the Minister has already said that health tourism is at the margin todayand 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 wordsI accept that it was not his meaning, but I know others will interpret it differentlyas 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
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.
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 oclock.
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