Draft Social Security Coordination (Reciprocal Healthcare) (Amendment etc) (EU Exit) Regulations 2019 Draft National Health Service (Cross-Border Healthcare and Miscellaneous Amendments etc.) (EU Exit) Regulations 2019 Draft Health Services (Cross-Border Health Care and Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019

Stella Creasy Excerpts

Monday 25th March 2019 General Committees

[Stephen Hammond]

The hon. Gentleman has been in the House much longer than I have. He will know that it is not unusual to have statutory instruments grouped together. In fact, last week a number of SIs from the Department for Environment, Food and Rural Affairs were grouped together and discussed on the Floor of the House, and then voted on individually.

The rationale for this evening’s grouping is simple: they are all to do with reciprocal healthcare, ensuring that our citizens—in either a deal or, particularly, a no-deal situation—have the potential to have the rights that they currently enjoy, which is the Government’s aim. That is why I have asked for them to be grouped together. I am grateful to the Committee for allowing that. Had the hon. Gentleman chosen to do so, we could have discussed them individually. If he allows me the time to progress with my speech, I hope he will see the logic of why we have grouped them this evening.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

I have a slightly different question for the Minister. He just spoke about his gratitude to the Scottish Parliament and the Welsh Assembly Government for their work on the legislative consent motions that these statutory instruments require. I note that in the explanatory memorandum it says that consent has also been sought from Northern Ireland. For the record, I would like the process by which consent has been sought from Northern Ireland on the measures to be set out.

[Stephen Hammond]

If the hon. Lady will allow me, I will tackle that in my speech. I will set out the arrangements that are in place with the Northern Ireland Executive, and if she is then not happy I will try to answer any questions at the end.

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[Stephen Hammond]

Exasperation is something that many of us feel, Sir David. However, in some circumstances these instruments enable the Government to protect individuals irrespective of reciprocity with other countries. The issue was raised during the Lords’ consideration of the Healthcare (International Arrangements) Bill and has been misreported in the press.

I want to be absolutely clear, or at least I will try to be absolutely clear, and hopefully the hon. Member for Huddersfield will accept what I say. Through these instruments, we can finish funding healthcare for people in a transitional situation. That would cover those who are in the middle of a treatment on exit day, those who have already had treatment and are receiving post-treatment care, and those who have applied for or been given authorisation for the treatment before exit day. That will apply for a year, or for the period of authorisation, whichever is later. That, of course, assumes that the member state is willing to provide the treatment and accept reimbursement from the United Kingdom. The offer that the Government are making through these instruments is to continue to fund healthcare through the current reciprocal and cross-border healthcare arrangements until 31 December 2020 in those member states that agree to reciprocate. It is not feasible to directly fund healthcare for hundreds of thousands of people living in, or visiting, the EU without the cooperation of the member states.

Many hon. Members will know that the Government have also brought forward a Bill focused on reciprocal healthcare arrangements, the Healthcare (International Arrangements) Bill. That Bill will ensure that the UK can respond to all exit scenarios, and complements the approach we are taking in these instruments. It provides powers to give effect to comprehensive healthcare arrangements that are bespoke, or are different in any way from the current arrangements provided by the EU regulations. That Bill will also provide the legislative framework to implement long-term, complex reciprocal healthcare arrangements with the EU or bilateral agreements with individual member states.

We are also exploring whether there is a need to further fund healthcare for limited numbers of people in exceptional circumstances in which there would otherwise be a very serious risk to their health. The Healthcare (International Arrangements) Bill will give us the powers to do that, and to respond to an unpredictable situation. Clearly, we need to prioritise support for those individuals who most need it, and those in countries where there are actual challenges in obtaining healthcare. It is our hope that that will not be necessary at all. I recognise the difficulty of the current situation, and assure the Committee that we are doing all we can to minimise changes in the way that care is accessed. Of course, if the withdrawal agreement is passed, there will be certainty.

I will try to pre-empt a number of questions about why these instruments are subject to the affirmative procedure and regulations under the Healthcare (International Arrangements) Bill are subject to the negative procedure, although I am sure there will be other questions. As has been explained during the course of debates on that Bill, regulations that are made under it will give effect to healthcare agreements and are most likely to focus on procedural, administrative and technical details, such as the types of documents or forms used to administer the reciprocal healthcare arrangements. The Government therefore believe that the negative procedure offers parliamentary scrutiny and proper checks on the use of delegated powers, and balances those against the appropriate use of parliamentary time. The withdrawal Act statutory instruments that we are debating prevent, remedy or mitigate deficiencies in the retained EU law relating to reciprocal healthcare, and in doing so amend powers to legislate, which is one of the triggers for the affirmative procedure under that Act.

I clarify that the instruments we are considering do not make any changes to welfare benefits policy; the Department for Work and Pensions is bringing forward separate legislation on welfare benefits. I also reassure hon. Members that, as I said at the outset, we have been working closely with our colleagues in the devolved Administrations, who have provided consent for these instruments. I am pleased to acknowledge those Administrations’ co-operation on securing the legislative consent motions, and thank them for it. I also thank colleagues in the Northern Ireland Department of Health and in the Northern Ireland Office for the productive engagement we have had with them. We have amended the Bill to reflect the outcome of those discussions: the Secretary of State must now consult the relevant devolved Authority before making regulations under clause 2(1) containing provisions that are within the legislative competence of a devolved legislature.

[Stella Creasy]

For the avoidance of doubt, could the Minister set out what he believes to be the relevant devolved Authority for giving consent? He has said that in addition to the legislative consent motion, the Northern Ireland Department of Health and the Northern Ireland Office had been consulted, and had given consent. I do not want to get this wrong, so could the Minister clarify which bits which Departments have given consent to, and which relevant devolved Authority he believes will give consent to this motion at this point in time?

[Stephen Hammond]

What I actually said was that we have had productive and positive engagement with colleagues in the Northern Ireland Department of Health and the Northern Ireland Office, and Northern Ireland officials have agreed that they are content for the Department of Health and Social Care to lay the draft Health Services (Cross-Border Health Care and Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019. That follows a decision by UK Ministers that, in the interest of securing legal certainty in Northern Ireland, the UK Government will progress the necessary secondary legislation for Northern Ireland at Westminster, in close consultation with Northern Ireland officials and the relevant Northern Ireland Departments. I hope that satisfies the hon. Lady.

[Stella Creasy]

I beg the Minister’s indulgence. For the avoidance of doubt, is he saying that consent to the orders will be given in Westminster for the specific Northern Ireland elements of the statutory instrument? Can he confirm that that is what he is telling us about the legislation?

[Stephen Hammond]

What I am telling the hon. Lady about the specific statutory instrument, the Health Services (Cross-Border Health Care and Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019, is that consent was sought from the Northern Ireland civil service, and was provided by the permanent secretary for the Department of Health for Northern Ireland. The Northern Ireland civil service may make decisions in the public interest under the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018. Again, following decisions by UK Government Ministers, in the interest of securing legal certainty in Northern Ireland, the UK Government will progress the necessary secondary legislation in close consultation. As I have said, consent was sought from the Northern Ireland civil service, and was granted.

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[Stella Creasy]

It is always a pleasure to serve under your august chairmanship, Sir David. I rise simply to put on record a concern that many of us have, having heard what the Minister has said about this matter. We recognise that we are hampered by the fact that many SIs are being bundled together. With many of these SIs, as the hon. Member for Linlithgow and East Falkirk pointed out, we do not want to be in this situation at all, because many of us have such concerns about Brexit. However, we understand that the necessary legislation needs to be there should the worst happen, and therefore we cannot unbundle these SIs to express our concerns in particular about the SI relating to Northern Ireland.

I want to put on record that the Minister has essentially admitted that, by the process he has set out, we are facing direct rule in Northern Ireland. He talked about the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 and laying an SI, and he said clearly that consent has been given for this legislation not by elected representatives of the people of Northern Ireland, as the legislation sought to do under traditional legislative consent motions, but in fact by bureaucrats and by people here in Westminster.

The Minister will know that healthcare is a devolved issue; that is why I asked him all those questions about how the Government are using the 2018 Act. It is clear from this SI that their concept of the national interest is being stretched to cover bureaucrats and people in this place making decisions on behalf of the people of Northern Ireland. He may say to me, “Well, there isn’t a functioning Assembly in Northern Ireland”—many of us know that all too well—but he owes the people of Northern Ireland the honesty and decency to admit that, since the Government are using that piece of legislation on measures such as this and claiming a very broad interpretation of the national interest, we now have direct rule in this place for the people of Northern Ireland.

If the motions were unbundled, it might be a different matter, because those of us who believe in democracy believe that the people of Northern Ireland have a right to that truth. Because they are not unbundled, we cannot do that, so I am putting on record the Labour party’s concerns about the way in which the people of Northern Ireland have been treated in this statutory instrument.

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[Stephen Hammond]

If the hon. Gentleman and the hon. Member for Walthamstow did not want the statutory instruments to be bundled, they could have said so at the beginning of the Committee. The Government did nothing other than seek the permission of the Committee to bundle them. Should the Committee have wished, I would have been perfectly happy to unbundle them.

[Stella Creasy]

Will the Minister give way?

[The Chair]

Order. We cannot have interventions on interventions. The Minister is intervening on Mr Sheerman.

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[Stephen Hammond]

I made it very clear that it is the intention—the expectation—of both the UK Government and the EU and EFTA states that there will be an agreement about reciprocal healthcare.

The hon. Member for Walthamstow raised a number issues about Northern Ireland. As she rightly pointed out, healthcare is fully devolved to Northern Ireland. These statutory instruments would normally be dealt with by the Northern Ireland Assembly. In the absence of the Northern Ireland Assembly, and in the absence of a Northern Ireland Executive, statutory instruments under the European Union (Withdrawal) Act 2018 have to be laid in Westminster to allow for debate and scrutiny. She has heard that that Act was consented to by the Secretary of State for Northern Ireland. The Northern Ireland consent for social security regulations was provided by the permanent secretary for the Northern Ireland Department of Health, which is the appropriate place in the absence of the Northern Ireland Assembly. Her characterisation of direct rule is incorrect.

[Stella Creasy]

Will the Minister give way?

[Stephen Hammond]

For the very last time.

[Stella Creasy]

The Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 explicitly sets out that Ministers must also have regard to representations made by Members of the Northern Ireland Assembly. What efforts has the Minister made to seek the views of Members of the Northern Ireland Assembly on these particular statutory instruments? Even if the Assembly is not sitting, it is written into that Act that its Members should be able to make representations. Can he clarify what he has done in that respect, please?

[Stephen Hammond]

I can clarify that the permanent secretary for the Northern Ireland Department of Health was consulted, as I said.

The hon. Member for Dewsbury asked about arrangements for cancer and paediatric heart surgery. The north-south arrangements provide that services such as paediatric heart surgery on the island of Ireland are not impacted by the UK’s withdrawal from the EU or these statutory instruments. Those arrangements operate under memorandums of understanding and service level agreements between the Irish and Northern Irish health authorities, which will continue to operate after exit day. The UK and Irish Governments are committed to continuing access to healthcare services within the common travel area, and both Governments are taking steps to enable us to implement these arrangements in time for exit day.

The hon. Member for Southwark and Old Bermondsey asked me about—sorry, Old Bermondsey and Southwark—