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

Baroness Manzoor Excerpts

Wednesday 27th March 2019 Lords Chamber

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)

[Baroness Manzoor (Con)]

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.

Amendment to the Motion

Moved by

--- Later in debate ---

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I take one minute to congratulate and thank my noble friend Lady Thornton and the noble Baroness, Lady Jolly, and others, first for their foresight that the original Bill went much further than a consolidation Bill and tried to bring in some very unacceptable things; secondly, their diligence in pursuing amendments; and, thirdly, their ability to get the Government to accept those amendments. I am very pleased that the Government are not opposing the amendments passed by this House. As well as pointing to the diligence of the opposition spokespersons on this, it shows that this House occasionally is of some use. It has some really useful functions in scrutinising legislation from elsewhere and making what was an unfortunately far too wide Bill into something that is relatively sensible.

[Baroness Manzoor]

My Lords, may I be so bold as to entirely agree with the noble Lord, Lord Foulkes? The House always plays a very important part in scrutiny and deliberation, and I am always in awe of the skill, expertise and experience right across the House that enables us to scrutinise legislation in the way it should be done. I am delighted that, as a result of that scrutiny, we have been able to take the healthcare Bill forward in the way that the House envisaged and that is has now received Royal Assent.

I take this opportunity to thank all noble Lords who took part in that debate; I did of course do so at Third Reading, and now it is an Act. There are too many people to mention, some of whom are not in their place, but I put on record my thanks and appreciation. I also take this opportunity to thank all noble Lords who have taken part in this debate today—the noble Baronesses, Lady Thornton and Lady Jolly, my noble friend Lord Lansley and the noble Lord, Lord Foulkes—for their valuable contributions.

I want to reassure the noble Baroness, Lady Thornton, and entirely agree with my noble friend Lord Lansley that the effect of the regulations is to ensure continuity of cross-border healthcare arrangements, where appropriate, for UK citizens, while removing them in the longer term if we exit the EU. This instrument, together with the Healthcare (European Economic Area and Switzerland Arrangements) Act, will give us the best possible chance to ensure that there is no loss of cross-border healthcare arrangements for UK citizens in the EU and EEA. This is critical, and I welcome the support from across the House, because noble Lords recognise its importance.

I am pleased also that the explanations I have offered today about the scrutiny committee’s report have been accepted. I reassure the noble Baroness, Lady Thornton, and others that this legislation complies with proper legislative practice and does not lead to lack of clarity concerning specific rights.

A number of questions were raised by noble Lords. I must admit to the noble Baronesses, Lady Thornton and Lady Jolly, that I had to think and think again when I read the notes on making exit day clear. I reassure them that in the guidance that we will issue on the instrument, we will provide clear, practical information for patients so that they can understand their rights. That is fundamental, because, if we do not do that, there is no point in moving forward. It is important to safeguard those rights, but it is just as important that patients understand their rights.

Meanwhile, I restate the fact that we provided the clarity sought by the committee and it accepted it. The instrument was not reported for defective drafting. I want to reassure the noble Baronesses, Lady Jolly and Lady Thornton, and my noble friend Lord Lansley on the issue of improving communications on this issue; they are very important, as I said. We issued advice via GOV.UK and NHS.UK to UK nationals living in the UK, UK residents travelling to the EU and EU nationals living in the UK so that they can easily see what we advocate.

I assure noble Lords that the Government listened to the concerns raised by the noble Baronesses, Lady Thornton and Lady Jolly; indeed, we had this discussion last week. Information on each country can be found in the living in country guides on GOV.UK and by researching healthcare abroad on NHS.UK. That advice sets out how local healthcare systems work in each country, people’s options in accessing healthcare under local laws in the member states they live in and what people can do to prepare if we do not have bilateral agreements in place. As I said, we are totally committed to ensuring that important information on healthcare is easily accessible. We will continue to provide up-to-date information to individuals as soon as it becomes available.

The noble Baroness, Lady Thornton, asked why reimbursement cannot continue. There is no process for reimbursing individuals living abroad and it would not be feasible to establish one for the hundreds of thousands of UK expats based throughout 30 member states. However, it is true that in limited cases, and following EU regulations, DHSC or the NHS reimburses healthcare charges for UK residents visiting the EU or EEA. That happens when individuals are charged for healthcare that should have been covered by a reciprocal agreement or such an agreement should have paid for equivalent private healthcare. There are a few thousand such cases each year; payments are generally of low value and made in arrears, usually several months after the person paid up front. The application process normally involves the presentation of invoices and validation with the member state that healthcare was provided. This scheme is manageable because the vast majority of healthcare use is dealt with through the EHIC scheme or travel insurance. However, it would not be feasible to continue it and scale up the current process for the hundreds of thousands of UK nationals who fall ill when visiting the EU.

[Lord Lansley]

To jump back, my noble friend’s point that the Government already provide information suggests, as I hope would be the case, that if needs be, the Government can publish the list referred to in regulation 16(4). Do the Government propose to publish such a list in the next few days?

[Baroness Manzoor]

Such guidance, or any list, is subject to our exit should there be no deal. Therefore, it depends on what happens in Parliament over the next week or two, so I cannot give my noble friend a definitive answer.

[Lord Lansley]

I suppose I am asking whether the Government would be ready to publish such a list on 12 April, were it necessary to do so.

[Baroness Manzoor]

As I understand it, it is not the Government’s intention to publish a list. The approach would be holistic, as I said in my opening remarks.

[Lord Lansley]

I am sorry; I hope my noble friend will forgive me. Regulation 16(4) states:

“The Secretary of State must maintain a list”.


From that list flows the structure of access to healthcare arrangements between the United Kingdom and other member states where continuity healthcare arrangements subsist. If you do not have a list, you do not know where it applies.

[Baroness Manzoor]

I am happy to write to my noble friend on that matter, but of course it would depend on the reciprocal arrangements with those different countries. We are still in discussions with some of them.

I have inspiration: we will publish the list of countries. Any bilateral arrangements or agreements will come from negotiations and, as I said, we are part of negotiations.