Healthcare (International Arrangements) Bill
7.The Healthcare (International Arrangements) Bill was introduced in the House of Commons on 26 October 2018 and was read a second time on 14 November. As with the Fisheries Bill, we have reported on it in time for Members of the House of Commons to consider it at committee stage in their House.
8.The Government say that the Bill is being introduced “as a result of the decision to leave the EU and is intended to enable the Government to respond to the wider range of possible outcomes of EU Exit in relation to reciprocal healthcare including the implementation of new reciprocal healthcare agreements.”13 Such agreements typically involve the mutual waiving of healthcare charges for migrants, workers or visitors.
Clause 2—Healthcare and healthcare agreements
9.We draw attention to clause 2 of the Bill. If the reason for the Bill’s introduction is to protect British citizens if a ‘no deal’ scenario affects current reciprocal healthcare agreements with other EU countries, clause 2 of the Bill goes considerably wider. It allows the Secretary of State to make regulations:
(a)in relation to the payment by the Secretary of State of the cost of all forms of healthcare (whether relating to mental or physical health, including related ancillary care14) provided by anyone anywhere in the world;15
(b)for and in connection with the provision of any such healthcare, provided by anyone anywhere in the world;16 or
(c)to give effect to international healthcare agreements.17
10.Clause 2 has a breath-taking scope. Indeed, the scope of the regulations could hardly be wider.
- There is no limit to the amount of the payments.18
- There is no limit to who can be funded world-wide.19
- There is no limit to the types of healthcare being funded.20
- The regulations can confer functions (that is, powers and duties, including discretions) on anyone anywhere.21
- The regulations can delegate functions to anyone anywhere.22
- The regulations can amend or repeal any Act of Parliament ever passed, for the purpose of conferring functions on people or for giving effect to a healthcare agreement.23
- The Government say that clause 2 “enables the Secretary of State to address essential matters relating to healthcare abroad”.24 But the powers in the Bill go much wider than essential matters.
- The Government say that the clause 2 powers “are necessary to enable the Secretary of State to respond appropriately after EU exit, when the EU reciprocal healthcare arrangements will no longer apply in the UK in their current form”.25 But the Bill applies to countries throughout the world, not just to the EU.
- The Government acknowledge that the powers in the Bill are broad, but they argue that the subject matter is narrow: “they can only be used to arrange for provision of and payments relating to healthcare abroad and to give effect to healthcare agreements. This remit is small and contained”.26 Actually, the scope of regulations made under clause 2—relating to the provision and funding of healthcare throughout the world—is exceedingly wide.
11.All regulations made under clause 2 are subject only to the negative procedure, save where they amend primary legislation.27 If, without such amendment, 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 that they propose to use them. The fact that the powers could be used in this way suggests that they are too widely drawn.
12.At paragraph 5 of the Delegated Powers Memorandum, the Department of Health and Social Care has indicated its desire to respond “flexibly and swiftly to changing and at present unknown circumstances as a result of the UK exiting the EU”. But regulations under clause 2 could apply to the funding of all types of healthcare worldwide.
13.At paragraph 11 of the Delegated Powers Memorandum, the Department says that the delegated powers in the Bill will be needed regardless of the outcome of negotiations with the EU. It is one thing to introduce skeletal legislation needed in the event of no EU withdrawal agreement. But this Bill is as much to do with implementing future reciprocal healthcare agreements entered with non-EU countries.28 Indeed, it goes much wider than merely giving effect to healthcare agreements and covers the provision of any healthcare provided by anyone anywhere in the world.29 In our view, the powers in clause 2(1) are inappropriately wide and have not been adequately justified by the Department. It is particularly unsatisfactory that exceedingly wide powers should be subject only to the negative procedure.30
12 As in the case of clause 29(7), for example.
13 Explanatory Notes to the Healthcare (International Arrangements) Bill [Bill 279 (2017–19)-EN], para 2
14 See the definition of healthcare in clause 3. Para 34 of the Explanatory Notes says that the additional element of ancillary care is included to enable the Secretary of State to provide, where necessary, for ancillary costs such as travel costs. Ancillary healthcare does not naturally include the concept of travel costs.
15 Clauses 1 and 2(1)(a).
16 Clause 2(1)(b).
17 Clause 2(1)(c). “Healthcare agreement” is defined in clause 3 to mean agreements between the UK and foreign governments or international organisations concerning healthcare provide outside the UK funded by the UK government or healthcare provided in the UK funded by foreign governments.
18 Clause 2(2)(a).
19 Clause 2(2)(b).
20 Clause 2(2)(c).
21 Clause 2(2)(h).
22 Clause 2(2)(i).
23 Clause 5(3).
24 Department for Health and Social Care, Healthcare (International Arrangements) Bill Delegated Powers Memorandum, para 15
25 Ibid., para 18
26 Ibid.
27 In which case they must be affirmative: clause 5(5) and (6).
28 Department for Health and Social Care, Healthcare (International Arrangements) Bill Delegated Powers Memorandum, para 12
29 See clause 2(1)(a) and (b).
30 Save only where they amend primary legislation.