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

Motion to Approve

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

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.

Moved by

To move, as an amendment to the above motion, at the end insert “but this House regrets that Her Majesty’s Government’s failure to ensure that the legislation complies with proper legislative practice has led to the lack of clarity concerning the specific rights that will cease to be available in domestic law, as reported by the Joint Committee on Statutory Instruments on 22 March.”

I thank the noble Baroness for her detailed explanation, in which she named the new Act, which has now received Royal Assent. I thank her and her colleagues for, very sensibly, accepting the amendments which were agreed in this House, and thank all other noble Lords who participated. I think we did our job quite well there.

I am very grateful that consideration of this SI was postponed to allow consideration of the Joint Committee’s report, published on Friday. That consideration has prompted me to table the amendment regretting the SI, on the grounds highlighted in its report, and give the Minister the opportunity to explain to the House how she and the Government intend to remedy the issues. She has gone some way towards doing that, for which I am very grateful. Reading through the Official Report of the proceedings in the Commons on Monday, I must say that her honourable friend the Minister did not do so with such admirable clarity. This led my honourable friend, Barry Sheerman MP, to say:

“It is horrific news for our constituents—for people who live in Huddersfield and Dewsbury”,

which is the part of the world I come from,

“and all the constituents we represent. It is, in stark terms, the end of the assurance that people can travel around Europe—we all had our little card and we knew that we did not have to go out and get private health insurance; we would be covered. We had that peace of mind. What the Minister is saying today, in plain language, is that that peace of mind will end. He has just read that out. It will end unless by luck, some wing and a prayer policy that arrives from this incompetent Government actually delivers something that they cannot promise and cannot deliver”.—[Official Report, Commons, 25/3/19; col. 8]

My honourable friend Paula Sherriff MP expressed the serious and deep anxieties that many Members in both Houses have felt about this whole period of legislation and orders leading up to Brexit day, which is now of course not this week. This issue of people’s healthcare, as we have said several times in your Lordships’ House, is of immediate and personal importance to hundreds of thousands of our fellow citizens, so it is very important that we get it right. In this period, we have seen some power grabs and new policies being pushed into some of these instruments, despite the Government saying that would not happen. I fear that the lack of time to scrutinise sufficiently means that we will be discovering things that got away from us, and their implications, in the months and years to come.

As the Minister has explained, this directive concerns cross-border healthcare and allows EU and EEA citizens to purchase healthcare treatments in other EU and EEA countries, and to apply for reimbursement of their costs from their home nation. Before I turn to the concerns of the Joint Committee, can I have some clarification about that reimbursement? The Minister said that it would be advertised but the problem we will face is that if we crash out with no deal, we do not know how long it will take for the healthcare provisions to kick in. That is the period in which people may seek and need reimbursement because they may have to pay for ongoing healthcare. My question is: how will people be reimbursed if they have to pay before the new reciprocal arrangements kick in?

There was a Ministerial Statement from the Secretary of State last Tuesday to that effect. Can the noble Baroness explain how it will work? How will people know whether they are eligible to be reimbursed and how will they find out about the scheme? Posting it on websites may work; on the other hand, it may not work for some pensioners in Spain who depend on free oxygen supplies and so on. Whether or not they are going to get their oxygen supplies delivered that week will be an immediate issue for them, upon which their life and welfare will depend. These are the hard examples for which the Government have to have answers, I fear, in this process. People will need guidance to avert harm.

I turn to the concerns expressed by the Joint Committee, in what feels slightly like a not very good school report. It is as if the department was being reported for requiring elucidation and for failing to comply with proper legislative practices, but these things are actually very important. The Minister attempted to explain to us the issue about the date and the difference between the day on which exit day falls and the meaning of exit day. I have to tell your Lordships that I have read the committee’s report and the appendix and explanation that the department had given. I also listened carefully to what the Minister said and I still really do not understand what on earth she was talking about.

It is tempting to read some of this into the record. The report says:

“Section 20(1) of the European Union (Withdrawal) Act 2018 defines exit day as 29 March 2019 at 11pm and section 20(2) states that any reference to a time after exit day is a reference to a time after 11pm on 29 March 2019. Regulation 15(6) is intended to describe a period of time that will end at the end of a day and the reference to ‘the day after the day on which exit day falls’ is intended to preclude any argument that the period of a year is to start at 11pm on 30 March 2019”.

It is a mystery, and I am not surprised that the committee asked for elucidation or that it is difficult for the noble Baroness to give it to us; perhaps some wiser heads in the House will be able to do that.

The second issue—the noble Baroness referred to it—is reimbursement, and she explained how that will work. The third issue is failing to comply with proper legislative practice. The regulation provides that:

“Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which continue to be recognised and available in domestic law (a) by virtue of section 4 of the European Union (Withdrawal) Act 2018 … cease to be recognised and available in domestic law so far as they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, provision made by these Regulations”.

I did actually understand that bit, but I would like to know why, when the committee asked for examples the department was not able to give any. Even if it resisted giving a list—I can appreciate why it might do that—giving examples of what is meant by this is really important. It is not surprising that we are suspicious about it because we have now had before us a series of instruments and legislation by which the Government have sought to take powers that were not appropriate. These are serious matters and require explanation and mitigation.

I wondered whether the Government would consider withdrawing the SI and having another go, in light of recent developments and the extension of the time until Brexit day. The Government should consider that, because this is such an important issue. It is important that people understand it and that it works properly, so I look forward to the Minister’s explanation, which I hope will cast even more light than she has shed so far.

Finally, we need to ask what the implications are for this SI of the reduced scope of what was the Healthcare (International Arrangements) Bill. Given that that is on the statute book and has been prayed in aid several times in the Government’s answers to questions asked by the statutory instruments committee, is this SI fully compliant now, or does it need to be looked at again? I beg to move.

My Lords, I think there is agreement across the House that provision of healthcare for British nationals travelling, living and working abroad must be a priority for the Government. I apologise to noble Lords for having missed the first outing of this SI, before it was rumbled, and I thank my noble friend Lord Rennard for stepping into the breach on that occasion. This SI aims to preserve current arrangements for reciprocal healthcare with the EU until 31 December 2020—we will come to the dates later. Success appears to rely on the Government’s ability to agree this approach with individual EU member states. However, Minister Stephen Hammond seemed to suggest last week that several of these agreements have yet to be finalised. This represents an unacceptable level of uncertainty. As was noted by the Minister last week, at least 180,000 British nationals living abroad currently access their healthcare through EU systems. Many more visitors use the EHIC scheme when they are in need.

My first question is whether, since last week’s debate, any further progress has been made with EU member states regarding continuing current healthcare arrangements under a no-deal scenario? I know we are less clear than we were last week— although I am not sure how clear we were last week—about the end game of all this, but how is it being communicated to people? Which are the priority states and who determines the negotiation order? Is it alphabetical, by popularity with holidaymakers, or by the number of British residents living in those states?

This SI also makes reference to what was previously known as the Healthcare (International Arrangements) Bill. Through the diligence and hard work of noble Lords, some present today, necessary amendments—which I too am delighted the Government have accepted—have made this Bill more acceptable.

More generally, it worries me that we have seen plenty of substandard legislation brought to this House recently; the Government appear almost totally unprepared for a no-deal scenario. We are here today because this SI failed the scrutiny of the Joint Committee on Statutory Instruments. The committee drew the attention of both Houses to problems with this SI, on the grounds that it requires elucidation in two respects and fails to comply with proper legislative practice in one. I thank the Minister for her comments just now reacting to these concerns, but will emphasise a few points and ask her a few questions.