Healthcare (International Arrangements) Bill
1.The Healthcare (International Arrangements) Bill had its Second Reading on 5 February 2019. We published an initial report on 15 November 2018 to facilitate consideration of the Bill by Members of Parliament during its passage in the House of Commons.1 The Parliamentary Under Secretary of State for Innovation at the Department of Health and Social Care, Baroness Blackwood of North Oxford, wrote to us on 30 January 2019 in response to our earlier report. We discuss the Minister’s response, which is published as an Appendix to this report, below.
2.The Government have said 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 widest range of possible outcomes of EU Exit in relation to reciprocal healthcare including the implementation of new reciprocal healthcare agreements”.2 However, the Bill goes much wider than reciprocal healthcare in relation to EU exit. It is a skeleton Bill allowing the Secretary of State by regulations:
(a)to make provision in relation to the exercise of the power to make payments in respect of the cost of all forms of individual healthcare provided by anyone anywhere in the world;3
(b)to make provision for and in connection with the provision of any such healthcare;4 and
(c)to give effect to healthcare agreements.5
3.We are concerned that the Brexit process has given rise to a series of Bills, of which this is the latest, containing unprecedented powers for Ministers to make law by statutory instrument. Our concern goes to the heart of the relationship between Parliament and Ministers of the Crown. In our earlier report on this Bill we commented on the extraordinary width of the delegated powers in clause 2.
- There is no limit to the amount of the payments, who can be funded world-wide or the types of individual healthcare being funded.6
- The regulations made under the Bill can confer functions on, and delegate functions to, anyone anywhere.7
- 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.8
- Although the Bill is being introduced as a result of the decision to leave the EU,9 the Bill also relates to implementing future healthcare agreements entered with non-EU countries.
- Under the powers in clause 2(1)(a) and (b) of the Bill, the Secretary of State could fund the entire cost of mental health provision in, say, the state of Arizona as well as the cost of all hip replacements in, say, Australia. If this might appear fanciful, we assess 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 these ways suggests that they are too widely drawn.
- These powers are subject only to the negative procedure, save where they amend primary legislation.10
4.In our earlier report we took the view that the powers in clause 2(1) had not been adequately justified by the Department and, in the absence of a convincing justification, were inappropriately wide. We thought it particularly unsatisfactory that such powers were subject only to the negative procedure save only where used to amend primary legislation.
5.Our conclusions were supported by the Constitutional and Legislative Affairs Committee of the National Assembly for Wales at paragraph 45 of its report, of 22 January 2019, on the Welsh Government’s Legislative Consent Memorandum on the Healthcare (International Arrangements) Bill.11
6.We have considered the Minister’s letter of 30 January 2019 with care and appreciate the thoroughness with which she has responded. We remain, however, unpersuaded by her arguments.
7.We agree with the Minister that funding powers such as in clause 1 of the Bill are commonly seen in primary legislation. At paragraph 12 of her letter, the Minister says that, having carefully considered our arguments and having looked at the point again, she nonetheless remains of the view that “the payment power at clause 1 is not drafted more widely than is necessary”. It is beyond our remit to comment on clauses not involving delegated powers but we understand the Minister’s point to relate to the delegated power in clause 2(1)(a). Our concern remains that, as shown in paragraph 3 above, clause 2 read with clause 1 is drafted in far wider terms than are necessary to give effect to the Department’s limited aims.
8.At paragraph 5 of her letter, the Minister argues that the delegated power in clause 2 is included “to provide further clarity”, given the current uncertainty as to the exact nature of future arrangements that will be put in place in respect of healthcare abroad. This will be welcome when it comes but it is unacceptable to see nothing on the face of this very short Bill to provide any clarity at all in the current climate of uncertainty. As it is, the devil will be entirely in the detail. The detail will not be disclosed until the regulations are made, which will be after the Bill has been enacted.
9.At paragraphs 8 to 10 of her letter, the Minister refers to funding powers in other contexts (section 153 of the Environmental Protection Act 1990 and sections 12A and 12B of the NHS Act 2006) suggesting, at paragraph 11, that the payment power in the Bill is not unusual in its breadth. She cites the 2006 Act as an example of a regulation-making power (section 12B) supporting a broad payment power (section 12A–direct payments for healthcare), and the 1990 Act as an example of a broad payment power with no such support. The Minister says in paragraph 6 of her letter that the supporting power in clause 2(1)(a) gives the Secretary of State the option, where necessary, to make regulations “to assist Parliament and the general public and give opportunity for more scrutiny in relation to payment arrangements.” The House may consider that its value in this regard is limited by its breadth and that further constraints and controls are called for. If a power is too wide, it is little reassurance that similarly wide powers exist elsewhere.
10.The Minister repeatedly refers to the need for “flexibility”,12 given that reciprocal healthcare arrangements remain subject to negotiation. She says that there must be flexibility as to the meaning of healthcare, as to the persons who can be funded and as to the persons to whom functions can be delegated. The Minister says, at paragraph 19: “This is a forward-looking Bill and so flexibility is key”. Powers that are too wide are not the more attractive for being part of a “forward-facing” and “forward-looking” Bill.
11.At paragraph 29, the Minister says again that the Bill is a “forward-facing Bill”, this time to justify taking powers to go beyond replacing current EU arrangements. Given that post-Brexit reciprocal healthcare arrangements are the Bill’s principal target, the powers in clause 2 to make law governing the provision of healthcare by anyone anywhere in the world could have been more effectively circumscribed.
12.The Bill contains a Henry VIII power to amend or repeal any Act of Parliament ever passed, for the purposes mentioned in clause 5(3). The Minister does not give any indication of what primary legislation might in future need to be amended. At paragraph 20 of her letter, the Minister mentions that the Bill allows for the conferral of functions on healthcare bodies that may be set up in the future. The Minister adds that conferring functions on what are currently non-existent bodies “could involve amending primary legislation”. The time for conferring functions on new statutory bodies is when the statute creating those bodies is enacted.
13.The Minister has concerns that, without this Henry VIII power, the Department might not be able to “effectively implement and give effect to detailed healthcare arrangements in the future” (paragraph 22 of her letter). That may turn out to be so but the power is too broad and the concession of affirmative resolution procedure does not remedy this.
14.At paragraph 33 of her letter, the Minister says that “the Government does not want to seek powers which are too wide”. There must be considerable doubt as to how effective this self-denying ordinance has been, given that the delegated powers in clause 2 could hardly have been wider.
15.Accordingly, our conclusions remain those in our earlier report:
(a)the law-making powers conferred on Ministers in clause 2(1) are inappropriately wide;
(b)it is particularly unsatisfactory that such powers should be subject only to the negative procedure, save where amending primary legislation.
Healthcare (International Arrangements) Bill: Government Response
16.We considered this Bill in our 39th Report of this Session.13 The Government have now responded by way of a letter from Baroness Blackwood of North Oxford, Parliamentary Under Secretary of State for Innovation at the Department of Health and Social Care, printed at Appendix 1.
Financial Services (Implementation of Legislation) Bill [HL]: Govenment Response
17.We considered this Bill in our 42nd Report of this Session.14 The Government have now responded by way of a letter from the Rt Hon. Lord Bates, Lords Spokesperson for HM Treasury, printed at Appendix 2.
Legislative Reform (Horserace Betting Levy) Order 2018
18.We considered this draft Legislative Reform Order in our 38th15 and 41st16 Reports of this Session. The Government have now responded by way of a letter from Mims Davies MP, Minister for Sport and Civil Society at the Department for Digital, Culture, Media and Sport, printed at Appendix 3.
1 Delegated Powers and Regulatory Reform Committee, Thirty Ninth Report (39th Report, Session 2017–19, HL Paper 226)
2 Explanatory Notes to the Healthcare (International Arrangement) Bill [HL Bill 155 (2017–19)-EN], para 2
3 Healthcare (International Arrangements) Bill, clause 2(1)(a) [HL Bill 155 (2017–19)]
4 Healthcare (International Arrangements) Bill, clause 2(1)(b)
5 Healthcare (International Arrangements) Bill, clause 2(1)(c). “Healthcare agreement” is defined in clause 3 to mean agreements between the UK government and foreign governments or international organisations concerning healthcare (a) provided outside the UK and funded by the UK government, or (b) provided in the UK and funded by a country or territory outside the UK.
6 Healthcare (International Arrangements) Bill, clause 2(2)(a), (b) and (c)
7 Healthcare (International Arrangements) Bill, clause 2(2)(h) and (i)
8 Healthcare (International Arrangements) Bill, clause 5(3)
9 Explanatory Notes to the Healthcare (International Arrangement) Bill [HL Bill 155 (2017–19)-EN], para 2
10 In which case they must be affirmative: clause 5(5) and (6).
11 National Assembly for Wales Constitutional and Legislative Affairs Committee, The Welsh Government’s Legislative Consent Memorandum on the Healthcare (International Arrangements) Bill, 22 January 2019 [accessed 14 February 2019]
12 For example, at paras 13, 14 and 19 of the letter of 30 January 2019.
13 Delegated Powers and Regulatory Reform Committee, Thirty Ninth Report (39th Report, Session 2017–19, HL Paper 226)
14 Delegated Powers and Regulatory Reform Committee, Forty Second Report (42nd Report, Session 2017–19, HL Paper 255)
15 Delegated Powers and Regulatory Reform Committee, Draft Legislative Reform (Horserace Betting Levy) Order 2018 (38th Report, Session 2017–19, HL Paper 219)