Debate over a short enabling Bill in Parliament to give ministers legal powers to fund and implement healthcare deals after Brexit has highlighted a number of major concerns.
And with even optimistic estimates of a possible influx of at least 190,000 British migrants looking to the NHS for their treatment in the event of a no deal Brexit, the stakes are high.
The official line is that the Healthcare (International Arrangements) Bill “seeks to safeguard healthcare for expats and 50 million people who travel abroad every year, through agreements with the EU or member states.”
The Department of Health and Social Care argues the Bill “will establish the legal basis to fund and implement reciprocal healthcare schemes and share necessary data after we leave the EU.”
But questions have been raised by Labour on the actual numbers of people involved: according to Shadow Health Minister Justin Madders, DWP statistics show more than twice as many – up to 469,000 UK pensioners – might be living in the other 27 EU countries. In debate on the second reading he said:
“Some clarity from the Minister would be appreciated, because the impact assessment appears completely to underestimate the complexity and cost of implementing what might end up being a diverse array of agreements.
“When they gave evidence to the House of Lords European Union Committee, the British Medical Association and the Royal College of Paediatrics and Child Health were clear that should no EU-wide reciprocal agreement be achieved, the significant costs of establishing bilateral reciprocal arrangements with EU and EEA countries would fall on the NHS.”
Justin Madders went on to underline the extent to which care of ageing British migrants is currently undertaken by health services in the EU:
“Expenditure on UK state pensioners and their dependants accounts for approximately 75% of the total amount that we spend on reciprocal healthcare and supports UK state pensioners and their dependants living in Europe. In 2016-17, that equated to an estimated £468 million.
“The Department for Health and Social Care has accepted that the system is extremely cost-effective for the UK, not least because treatment overseas is often cheaper than it is in the UK. For example, Spain’s latest average pensioner cost is €4,173, compared with £4,396 in the UK.”
Back in 2017 the Commons Health Committee was warned that if after a no-deal Brexit the UK ceased paying for the health cover for ex-pat pensioners with pre-existing health problems, many of them would be unable to afford private insurance. Their host country would not have any obligation to support them, since they have not contributed to their health and social security system.
Many British retirees living abroad have low incomes, and with a likely collapse in prices for many properties in Andalusia and similar areas if many are forced to return to Britain, they would arrive back “in poverty”.
The Nuffield Trust has estimated that the returning pensioners would require around 900 extra NHS beds, and cost in excess of £1 billion – more than double the current UK payments.
Figures in the Commons Library Briefing Paper on the Bill show that the UK paid out £630m to cover costs of UK patients treated in the European Economic Area, 75% of them pensioners, and almost 90% in the main centres of UK migration, Spain, Ireland, and France. By comparison the UK claimed back just £66m for the health care of EEA citizens. The ten-fold disparity, as Sarah Wollaston pointed out, is largely down to the much larger numbers of British pensioners and citizens choosing to live in EU countries than EU residents seeking to live in Britain.
In the event of a no deal scenario, the UK Government may need to rely on the powers of the Healthcare (International Arrangements) Bill to implement new bilateral agreements with individual Member States from 29 March 2019: given the extremely limited success on negotiating other aspects of British withdrawal and the weak negotiating position of a no-deal situation, there are reasons for concern. The Library Briefing notes that what has so far been agreed centres on protecting the entitlements of people who are already living, working or travelling in the EU on exit day: this does not address many of the longer term questions once freedom of movement has been repudiated.
“The Health Committee’s 2017 report on Brexit and health and social care reported that, if no deal is agreed, in some cases British insured people in other member states will retain entitlement to some aspects of healthcare via the domestic legislation of the countries in which they are resident. However, the Committee noted that such rights would ‘be by no means universal and enforcement of entitlements is likely to be problematic’.”
It goes on:
“The UK hope that member states will be willing to support UK nationals to access healthcare and the Bill will support us to implement bilateral agreements that would help do this. However, in the absence of any agreements a reasonable working assumption is that member states will apply the same rules to UK nationals that they apply to 3rd country nationals.”
The report flags up the uninspiring collection of 16 countries with whom the UK has an established bilateral healthcare agreement: with the exception of Australia and New Zealand these are mainly small, often island countries with small numbers of British visitors:
Anguilla; Australia; Bosnia and Herzegovina; British Virgin Islands; Falkland Islands; Gibraltar; Isle of Man; Jersey; Kosovo; FYRO Macedonia; Montenegro; Monserrat; New Zealand; St. Helena; Serbia; Turks and Caicos Islands
This looks like a restrictive list of potential holiday destinations and retirement spots: we are yet to see any compensating benefits from the chaotic Brexit process.
Bill gives ministers sweeping powers
There are also concerns over the scope of the Bill, which was first moved in the Commons last autumn and will reach its Report Stage in the Lords on March 12. The Briefing Paper on it produced by the House of Commons Library points out that the Bill
“does not propose any specific healthcare arrangements, it simply gives the Government the power to bring in a new reciprocal arrangement or make payments.”
Parliamentary debates on the Bill have centred on ministers’ increased use of ‘statutory instruments’ to introduce legislation without adequate scrutiny. In the Lords, for Labour Lord Foulkes complained that:
“this kind of Bill is getting through without proper scrutiny and that many people, in both Houses, do not realise the importance and far-reaching implications of what we are considering.
“What happens? The statutory instrument is drawn up by civil servants and put forward to Parliament by the Government. What is Parliament asked to do? You have to agree it or not—and if you do not agree it, you get threats. … A trickle of SIs has become a flood. More and more issues that ought to be dealt with by primary legislation are being dealt with by secondary legislation. The more that happens, the bigger the transfer of power from the legislature to the Executive.”
From the cross benches, Lord Judge made the telling point that it is “exactly 40 years” since the Commons rejected a statutory instrument – suggesting a commemorative stamp might be printed.
Another cross bencher, Lord Hope gave an example of the vagueness of the Bill, which has just six clauses:
“On page 3 of the Bill at line 40, we are asked to approve Clause 5(3), which allows regulations to be made amending, repealing or revoking, ‘primary legislation … for the purpose of conferring functions on the Secretary of State or on any other person’.”
He asked: “I can understand conferring powers on the Secretary of State, but why “on any other person”?
Lord Patel quoted the criticisms of the Delegated Powers and Regulatory Reform Committee, which said in its report: “The Minister does not give any indication of what primary legislation might in future need to be amended”.
Baroness Thornton, Labour’s leader in the Lords argued that “the Bill as drafted breaks all the rules of our constitutional understanding.”
In the Commons Shadow Health Minister Justin Madders also quoted the Delegated Powers and Regulatory Reform Committee, and its description of the powers in Clause 2 as “breathtaking”.
In another Commons debate he pointed out that:
“The Bill gives the Secretary of State wide-ranging powers, including the power to amend primary legislation through a Henry VIII-style clause, but it places no obligation on the Secretary of State to report back to Parliament, even in the event that a reciprocal deal cannot be reached.”
He went on:
“Where are the checks and balances if the NHS ends up having to police 27-plus different sets of arrangements? What if the deals reached end up costing far more? What if our cost recovery continues to lag well behind what it should be? There needs to be greater parliamentary oversight of all these issues.”
Unfortunately the debate on the Bill has also highlighted a worrying apparent parliamentary consensus in favour of NHS trusts being more aggressive in levying charges for treatment on people from overseas. Labour’s Justin Madders is quoted In the Commons Library Briefing complaining that:
“irrespective of Brexit, it is deeply concerning that millions of pounds that should be spent on UK patients by the NHS is going to waste because of a failure to get a grip on cost recovery”.
As a result of Tory legislation in 2015 and 2017 accompanying the “hostile environment” for migrants (and linked with hugely inflated claims on the scale of so-called “health tourism,”) a new legal duty was placed on NHS staff to charge people not resident in Britain for treatment, despite concerns raised by the medical profession and health workers.
In debate on the Bill’s second reading Mr Madders called for more charges to be collected:
“In 2012-13, the NHS charged only about 65% of what it could have done to visitors from outside the EEA and Switzerland, and only 16% of what it could have done to visitors from within that area.
“I accept that things have improved since then, and that the Department set itself a recovery target of £500 million overall and £200 million for EEA and Switzerland patients, which it hoped to achieve by 2017-18, but it still appears to be well behind on those targets. I would therefore be grateful if the Minister could advise us on the latest projections for that.”
However the impact this could have on the ethos of the NHS as a system that prides itself on providing care free at point of use was illustrated in the same debate by Poole Tory MP Robert Syms, eager to compel hard-pressed and dedicated staff in A&E to focus more on cost recovery than patient care:
“We have to emphasise to trusts the requirement to recoup money, because that means more money for British people using the service and for other services, but sometimes it falls down the priority list. I am not sure there is a magic bullet. It probably requires drilling lots of people in A&Es up and down the land to focus on whether people should be paying or getting free treatment.”
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