National Health Service (Cross-Border Healthcare and Miscellaneous Amendments etc.) (EU Exit) Regulations 2019 - Motion to Approve

– in the House of Lords at 3:42 pm on 27th March 2019.

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Moved by Baroness Manzoor

That the draft Regulations laid before the House on 11 February be approved.

Relevant documents: 18th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A) and 53rd Report from the Joint Committee on Statutory Instruments (Special attention drawn to the instrument)

Photo of Baroness Manzoor Baroness Manzoor Baroness in Waiting (HM Household) (Whip)

My Lords, the Government are bringing forward this statutory instrument under Section 8 of the European Union (Withdrawal) Act 2018 to correct deficiencies in retained EU law relating to the cross-border healthcare directive in England and Wales and to ensure that the law is operable on exit day. The instrument relates to two other statutory instruments on reciprocal healthcare, which we debated and passed on Thursday 21 March. However, at that time we had not yet seen the 53rd report from the Joint Committee on Statutory Instruments, so held it over until that report was made available. It was published on 22 March, and I will speak to its findings in a moment.

Like the two instruments that we considered last week, this instrument provides a mechanism for ensuring that there is no interruption to healthcare arrangements for people accessing healthcare through the cross-border healthcare directive route after exit day in those member states that agree to maintain the current arrangements in place with the UK for a transitional period lasting up to 31 December 2020.

Among other things, the cross-border healthcare directive facilitates patients’ rights to travel to another EEA country and receive qualifying healthcare, and to receive reimbursement from their home healthcare system. Around 1,100 people from England and Wales access healthcare through the cross-border healthcare directive route each year.

The rights are separate from the reciprocal healthcare rights under the social security co-ordination regulations. In contrast to those regulations, which relate to state-provided healthcare only, reimbursement under the directive can be for qualifying private or public healthcare. However, prior authorisation is needed for more complex and hospital-based treatments. The reimbursement under the directive route is made directly to individuals and is limited to the amount of the NHS tariff for the equivalent treatment, with individuals making up any cost difference. Under the social security co-ordination regulations, the full cost of the treatment is met by the UK, and the treating member state seeks the reimbursement directly from the UK, normally preventing the individual being charged at all.

Through this instrument, all these arrangements and processes would remain in place on a transitional basis until 31 December 2020 with those EEA member states which agree to do so with the UK. This instrument is aimed at preventing, so far as is possible without reciprocity, the sudden loss of overseas healthcare rights for our residents in England and Wales on exit day. The arrangements would not apply to member states which do not agree to maintain reciprocity with the UK.

This instrument also protects key groups in a transitional situation on exit day, irrespective of any reciprocity being in place. This would cover those who are in the middle of treatment on exit day, those who have already had treatment, those whose treatment has begun, and those who have applied for or been given authorisation for treatment before exit day. This would apply for a year or the period of authorisation, whichever is longer. The instrument also makes miscellaneous amendments to EU references and concepts. Further, it ceases recognition of remaining EU obligations to the extent that they are inconsistent with the instrument.

It is on this point that I would like to recognise the report on this instrument from the Joint Committee on Statutory Instruments. It is important to note that the committee did not find any drafting defects or issues with vires in the instrument which require redrafting. In its report, the Joint Committee on Statutory Instruments drew the attention of both Houses to this instrument on the grounds that it required elucidation in two respects and failed to comply with proper legislative practice in one respect.

In relation to the two points on which clarification was required, we welcome the fact that the committee is content with the explanations provided by the department. The committee asked my department to explain whether,

“the day on which exit day falls”,

is intended to have a different meaning from “exit day”. We confirmed that a different meaning is intended. Section 20(1) of the European Union (Withdrawal) Act 2018 defines exit day. The instrument the Government laid on Monday 25 March provides that exit day, as amended, would be 11 pm on 22 May 2019, if the withdrawal agreement was approved by the House before 11 pm on 29 March 2019; otherwise, it would be 11 pm on 12 April 2019. The reference to,

“the day after the day on which exit day falls”,

is intended to make it clear that the one-year period for which we will fund people in a transitional situation, such as those in the middle of treatment, will start on 13 April 2019, if exit day is 11 pm on 12 April.

The committee also asked us to explain what discretion the Secretary of State has in deciding whether to include or remove an EEA state from the list of countries we have reached agreement with. I confirm that the Secretary of State will include on the list those EEA states which agree to continue cross-border arrangements with the UK after exit day and his discretion is limited to extending the current regime, rather than creating any other regime. An EEA state may be removed from the list if we negotiate a new, longer-term arrangement with that country under the Healthcare (European Economic Area and Switzerland Arrangements) Act, which I am delighted received Royal Assent yesterday. The list will be published on GOV.UK.

On the committee’s concerns about proper legislative practice, the committee understands the policy intention of Regulation 18, but thinks that this approach does not give “sufficient clarity” and that,

“proper legislative practice would be to use a more detailed description of the rights being referred to, or even some kind of list”.

Although we agree with the committee that clarity in legislation is critical, in this case we do not agree that its approach would necessarily provide greater clarity than that of the department.

When we implemented the cross-border directive in 2013, it codified a body of case law on the free movement of patients, goods and services. The purpose of the provision in Regulation 18 is to create a definitive, clear legal framework for cross-border healthcare as we exit the EU. The provision deliberately mirrors Section 4 of the European Union (Withdrawal) Act which, similarly, takes a “sweeper” approach, preserving, with specific exceptions:

“Any rights, powers, liabilities, obligations, restrictions, remedies and procedures”,

available in domestic law “immediately before exit day”. Regulation 18 indicates to potential claimants that if they want to make a claim for cross-border healthcare which is inconsistent with this instrument, based on general EU rights and obligations retained under Section 4 of the European Union (Withdrawal) Act, they cannot. This is done in an effort to clarify our legislative intent, to avoid confusion of rights and uncertainty, and, as I have said, to create a definitive framework that cannot be subsequently subverted by arguments based on general retained EU law rights.

To draw up an exhaustive list of the rights and obligations preserved by Section 4 of the withdrawal Act that could be relevant in a cross-border healthcare context would be near-impossible. This is because of the general purposive approach adopted in European case law on this subject. Relevant provisions of European law could include Article 18 on non-discrimination, Articles 20 and 21 on EU citizenship, and Article 56 on free movement of services, of the Treaty on the Functioning of the European Union. However, depending on the facts of individual cases, we cannot rule out that other provisions of that EU law, such as Article 45 of the Treaty on the Functioning of the European Union, on free movement of workers, could also be relevant. In our view, it is far better and safer, therefore, to adopt the approach of a general and comprehensive exclusion, rather than a list approach.

I note that a number of other EU exit instruments contain provisions adopting the same approach as that set out in Regulation 18, such as our other reciprocal healthcare regulations—the Social Security Coordination (Reciprocal Healthcare) (Amendment etc) (EU Exit) Regulations 2019 and the Health Services (Cross-Border Health Care and Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019—which the committee scrutinised and cleared without comment.

This approach avoids confusion and will ensure that the courts, the authorities and—most importantly—patients are clear regarding our legislative intent and the scope of our cross-border healthcare provision after EU exit. As we said to the committee in our memorandum, we will ensure that this is clearly explained in the guidance to the public that we will publish on this instrument if there is a no deal.

Noting the committee’s preference for a detailed description of the rights being referred to, this would include clear, practical information on how to access reimbursement and the circumstances under which people may be eligible. As we assured the committee, that material will be published on the website of the department and, where appropriate, the websites of bodies such as the NHS Commissioning Board. In addition, the national contact points which may be appointed under the National Health Service (Cross-Border Healthcare) Regulations 2013 that are continued on a transitional basis under Regulations 15 to 17 would be able to provide information in accordance with those regulations.

I reassure noble Lords that we have been working closely with our colleagues in the devolved Administrations, who have provided consent for this instrument. I note the amendment to the Motion on this instrument tabled by the noble Baroness, Lady Thornton. I hope that my explanations, which I have spent some time on, offer some reassurance that this legislation complies with proper legislative practice and does not lead to a lack of clarity concerning the specific rights. This is important. The provisions in this instrument deliberately mirror Section 4 of the European Union (Withdrawal) Act.

We have done so in an effort to clarify our legislative intent, to avoid confusion of rights and uncertainty and—as I have said—to create a definitive framework, which cannot be subsequently subverted by arguments based on general retained EU law rights. This approach avoids confusion and will ensure that the courts, the authorities and—most importantly—patients are clear regarding our legislative intent and the scope of our cross-border healthcare provision after EU exit. I beg to move.