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Health Services (Cross-Border Health Care and Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019

Volume 796: debated on Thursday 21 March 2019

Motion to Approve

Moved by

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

Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A). Instrument not yet reported by the Joint Committee on Statutory Instruments.

My Lords, I should make it clear that I will not move the second Motion in this group on the National Health Service (Cross-Border Healthcare and Miscellaneous Amendments etc.) (EU Exit) Regulations. The Joint Committee on Statutory Instruments has drawn it to the special attention of the House, and the House, rightly, will need time to consider its report. I shall speak to the two remaining Motions standing in my name on the Order Paper: the Health Services (Cross-Border Health Care and Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019 and the Social Security Coordination (Reciprocal Healthcare) (Amendment etc.) (EU Exit) Regulations 2019.

The Government are bringing forward these two statutory instruments under Section 8 of the European Union (Withdrawal) Act 2018, to correct deficiencies in retained EU law relating to reciprocal and cross-border healthcare, and to ensure that the law is operable on exit day. When the UK leaves the EU, that Act will automatically retain the relevant EU legislation and the domestic implementing legislation in UK law. However, in the event of no deal, and if we do not legislate further, the regulations would be incoherent or unworkable without reciprocity from member states. If we did nothing there might also be a lack of clarity regarding patients’ rights to UK-funded healthcare in the EU.

Current EU reciprocal healthcare arrangements enable people to access healthcare when they live, study, work, or travel in the EU/EEA and Switzerland, and vice versa in the UK. These arrangements give people retiring abroad more security. They support tourism and businesses, and facilitate healthcare co-operation. The UK funds healthcare abroad for a number of current or former UK residents. This includes 180,000 pensioners and their dependents in the EU. We also fund needs-arising healthcare in the EU/EEA and Switzerland for UK tourists and students. There are 27 million EHIC cards in circulation in the UK, which results in around 250,000 claims each year. We directly fund healthcare for 10,000 posted workers and their dependents in the EU/EEA and Switzerland. We also fund around 1,350 UK residents each year to travel overseas to receive planned treatment in the EU/EEA and Switzerland. Finally, around 1,100 people from England and Wales access healthcare through the cross-border healthcare directive route.

The Government’s intention is to continue these reciprocal healthcare arrangements with countries in any exit scenario—deal or no deal—as they exist now, until 31 December 2020. In a deal scenario, the in-principle agreement we have reached with the EU, the EEA and Switzerland is that during the implementation period—that is, until 31 December 2020—all reciprocal and cross-border healthcare entitlements will continue and there will be no changes to healthcare for UK pensioners, workers, students, tourists and other visitors, to the EHIC scheme, or regarding planned treatment.

The Government want to secure a wider reciprocal healthcare agreement with the EU/EEA and Switzerland following the end of the implementation period that will support a broad range of people when they move between the UK and the EU/EEA and Switzerland for leisure, study or work. In a no-deal scenario, our offer to all member states is to maintain the current reciprocal healthcare arrangements for at least a transitional period to ensure that people living in, working in or visiting our respective countries can continue to access affordable healthcare.

The statutory instruments we are considering will support us in maintaining current reciprocal healthcare arrangements for countries with which we have agreed reciprocity for a transitional period lasting until 31 December 2020, and to remove these arrangements in the longer term. The transitional arrangements would not apply to countries that do not agree to maintain the current reciprocal arrangements. Continuing the current arrangements is possible only with the agreement of other member states, and we are in advanced discussions on this issue. We have approached other member states and are prioritising the major pensioner, worker and tourist destinations.

The UK and Irish Governments are committed to continuing access to healthcare services within the common travel area, and both Governments are taking legislative steps to enable us to implement these arrangements by exit day. The two instruments that we are considering are our implementing mechanism. We also welcome the action by those EU member states that have prepared their own legislation for a no-deal scenario, including, but not limited to, Spain, France, Portugal, and Belgium. However, depending on decisions by member states, it is important to acknowledge that people’s access to healthcare could change. Naturally there is concern about what this will mean and what should be done. This is an uncertain situation and I appreciate that that may be difficult for people. I hope I can be reassuring.

All of the 27 EU member states are countries with universal healthcare coverage, and in general people have good options for obtaining healthcare, provided that they take the appropriate steps. After exit, should there be no bilateral arrangements in place, the majority of UK nationals who currently live or work in the EU will still have good options for accessing healthcare. Depending on the country, it will generally be possible for people to access healthcare through legal residency, current or previous employment, or joining a social insurance scheme and contributing a percentage of their income, as other residents need to do. Less frequently, people may need to purchase private insurance. When people travel overseas they should purchase travel insurance, as we already encourage everyone to do. However, I appreciate that this can be difficult for people with long-term conditions, and it is important that people make the best decisions for their circumstances when choosing to travel.

As is the case now, UK nationals who return to live permanently in the UK will be able to access NHS care. If these people return to live in the UK part-way through their treatment, they will be treated by the NHS fairly and equitably. UK nationals who have their healthcare funded by the UK under current EU arrangements and are resident in the EU on exit day can use NHS services in England without charge when they temporarily visit England.

We recognise that this means change, and in some circumstances additional expense, for UK nationals living abroad. It is to avoid this that we are bringing forward these statutory instruments. I would like to reassure noble Lords that the Government have issued advice, via government and NHS websites, to UK nationals living in the EU, to UK residents travelling to the EU/EEA and Switzerland, and to EU nationals living in the UK. This advice explains how the UK is working to maintain reciprocal healthcare arrangements, but that their continuation depends on decisions by member states. It also sets out what options people might have to access healthcare under local laws in the member state they live in if we do not have bilateral arrangements in place, and what people can do to prepare. However, in some circumstances, these instruments will protect individuals irrespective of reciprocity with other countries. That issue was raised by the noble Baroness, Lady Thornton, during the Third Reading of the Healthcare (International Arrangements) Bill. I take this opportunity to reassure her again.

Through these instruments, we can finish funding healthcare for people in a transitional situation. To be clear, this would cover people in the middle of treatment on exit day, those who have already had treatment 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 later. Of course, that assumes that the state is willing to provide treatment and accept reimbursement from the UK. Through these instruments, the Government are offering to continue to fund healthcare through the current reciprocal healthcare and cross-border healthcare arrangements until 31 December 2020 in the member states that agree to reciprocate. It is not feasible to fund directly healthcare for hundreds of thousands of people living in or visiting the EU without the co-operation of member states.

Noble Lords will know that the Government have also brought forward a Bill focused on reciprocal healthcare arrangements—the Healthcare (International Arrangements) Bill—which is an important means for implementing reciprocal healthcare arrangements. This Bill will ensure that the UK can respond to all possible exit scenarios, and complements the approach we are taking with these instruments. It provides powers to give effect to comprehensive healthcare arrangements that are bespoke or different in any way to the current arrangements provided by the EU regulations. It also provides a legislative framework to implement longer-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 fund further healthcare for limited numbers of people in exceptional circumstances where there would otherwise be a serious risk to their health. The Bill will give us the powers to do that and to respond to an unpredictable situation. Clearly, we need to prioritise support for individuals who need it most in countries where there are challenges in obtaining healthcare; it is our hope that it will not be necessary at all. We need to be clear on the outcome of bilateral arrangements and the needs of specific groups before setting out the policy. I recognise the difficulty of the current situation and want to assure people that we are doing all we can to minimise the changes in the way care is accessed.

I should clarify before I close that the instruments we are considering do not make changes to welfare benefits policy. The Department for Work and Pensions is bringing forward separate legislation on welfare benefits. I assure noble Lords that we have been working closely with our colleagues in the devolved Administrations, who have provided consent for these instruments. In the absence of a Northern Ireland Executive, we are also taking forward today, on behalf of Northern Ireland, amendments to the legislation that implemented the cross-border healthcare directive in Northern Ireland.

In conclusion, I want to make it clear that these instruments make miscellaneous amendments to EU references in retained EU law, such as removing references to EU concepts. Moreover, the Bill and these instruments are necessary legislative vehicles to ensure that the UK Government are ready to deal with reciprocal and cross-border healthcare in any EU exit scenario. These instruments provide us with an effective mechanism to ensure that there is no interruption to people’s healthcare in a no-deal situation. I know that I have spoken for a long time but I felt that it was important to set out this issue clearly for the House. I beg to move.

I thank the Minister for introducing the regulations and for clarifying the position on the National Health Service (Cross-Border Healthcare and Miscellaneous Amendments etc.) (EU Exit) Regulations—I have just taken about four pages out of my speech. I am sure that we will meet at the Dispatch Box to discuss them at some point next week.

The transitional elements allow for all ongoing treatment to continue for a maximum period of a year following exit and for pre-authorised treatments. Similarly, dedicated regulations deal with the special situation in Northern Ireland, where such arrangements are more frequent due to the land border with the Republic of Ireland.

I know that the Department of Health and Social Care regards these regulations as providing temporary provision until what is now no longer called the Healthcare (International Arrangements) Bill takes effect by allowing for the current system—including the European Health Insurance Card and S1—to continue until December 2020 with individual countries, but only if a memorandum of understanding is in place. I must say, taking at random an article that appeared yesterday, it seems that British nationals in Europe regard the healthcare plans for pensioners as uncaring. They feel that they are being thrown under and a bus and abandoned. They do not regard the one-year undertaking as at all adequate. The Minister and her colleagues will need to deal with the fact that this measure does not reassure many of our fellow citizens who are living and accessing healthcare abroad.

I will repeat what I have said on every occasion during debates on the many SIs we have had to deal with that prepare us for the “crashing out” scenario. It is quite dreadful. I found these regulations particularly depressing, because they affect many older people in many parts of Europe, and there is enormous anxiety. My questions for the Minister are not about the mechanisms being proposed here to deal with healthcare, but about how they are being communicated to UK citizens all over Europe for whom we are responsible.

I suspect that these regulations are needed now more than ever—perhaps even more than when they were first laid. It is a shame that they are needed at all. The Government are lurching in a disorganised fashion towards goodness knows what kind of exit from the European Union. “When?” also now seems to be an open question. These regulations, along with dozens of others, are necessary for a no-deal exit. They provide for a wind-down of UK reciprocal healthcare arrangements with the EU and European Economic Area in the case of a no-deal Brexit. I feel very sad when I say these words, because it feels like we are throwing away something precious—sharing what we have with our European friends and nations.

I think that the Minister can anticipate considerable anxiety about these regulations, which the Prime Minister’s actions and words yesterday have done nothing to alleviate. Entering a blame game when you are the Government and have the power to resolve the situation seems the height of irresponsibility, and I am not surprised that some Conservative MPs have expressed their dismay and shame.

Let us turn to the statutory instruments concerning Northern Ireland. I am very grateful to the British Medical Association for its briefing and for the attention it has drawn throughout our discussions to the benefits of cross border co-operation on health services. I will put on the record some of those benefits, as I have done in the past. I seek reassurance from the Minister that these benefits will remain safe in a “crashing out” scenario.

Health services in Northern Ireland and the Republic of Ireland work separately, but often they do not have sufficient demand to provide cost-effective and highly specialised medical services, so cross-border co-operation on health services with the Republic of Ireland over the past two decades has allowed a high quality of such services to be delivered on an all-island basis. Patients in Northern Ireland no longer have to travel to England to receive care. Between 2003 and 2015, more than €40 million euros was invested in cross-border health and social care initiatives via co-operation and working together, creating a partnership between health and social care services in Northern Ireland and in the Republic.

Additional project applications amounting to €53 million were submitted in relation to acute hospitals, prevention, early intervention, tackling health inequalities and other services. Examples of this include the paediatric cardiology service based at Our Lady’s Children’s Hospital in Dublin, which enables children from throughout the island of Ireland to receive treatment without having to travel to England. The radiotherapy unit at Altnagelvin Area Hospital provides access to radiotherapy treatment for more than 500,000 cancer patients living in both Northern Ireland and the Republic of Ireland. The creation of this unit has had the greatest impact on patients in the north-west and Donegal, removing the need for lengthy journeys to Galway, Dublin and Belfast for treatment.

The cross-border cardiology service at Altnagelvin Area Hospital has enabled patients from County Donegal with diagnosed heart attacks to receive lifesaving treatments. Other services include shared dermatology clinics over four sites along the border; out-of-hours GP services at Castleblayney, County Monaghan and Inishowen in County Donegal; ENT services at Monaghan Hospital and Northern Ireland’s Daisy Hill and Craigavon hospitals. Cross-border collaboration has enabled ENT waiting lists in the Health Service Executive Dublin North East area to be significantly reduced by facilitating ENT consultants from Northern Ireland’s Southern Trust to practise in Monaghan.

Cross-border service arrangements have been established and are providing high-quality, safe care for patients in a range of areas, including primary care, cancer services and paediatric cardiac services. These vital health services should not be destabilised during or after the Brexit process. It is also vital that patient access to these key health services is not jeopardised. How is the Minister able to reassure the House, and indeed thousands of patients in the Republic and in Northern Ireland, that our cross-border arrangements will indeed be unaffected and safe?

I turn now to what was the third instrument, the Social Security Coordination (Reciprocal Healthcare) (Amendment etc) (EU Exit) Regulations 2019. Current EU reciprocal healthcare arrangements enable people for whose state healthcare costs the UK has responsibility, known as “UK-insured”, to have access to healthcare where they live, study, work or travel in the European Union, the EEA and Switzerland—and vice versa for people whose state healthcare costs those states have responsibility for. The EU reciprocal healthcare arrangements give people more life options, and support tourism, businesses and healthcare co-operation, as the noble Baroness explained in introducing the regulations.

What we are talking about here is the European health insurance card. Some 27 million of our fellow citizens hold the EHIC and, as the noble Baroness said, some 190,000 UK pensioners living elsewhere in the EU are registered with the S1 scheme. I decided to go on to the NHSE website to see what, one week away from Brexit, we are being told we need to do. I have to say that it was not encouraging, because the website is still encouraging people to apply for the EHIC even though it may not be valid in one week’s time, and it is very difficult to see what other advice is available.

I tried to follow the route through various parts of the website, but I could not find advice on what kind of cover I would need if I were travelling somewhere in Europe in two or three weeks’ time, post Brexit, particularly if we had crashed out without a deal. I could not find the advice mentioned by the noble Baroness about taking out insurance, and I could not find advice that might be available if I had a long-term condition. That seems to be completely inadequate and it will not do at this stage, when we are so close to what might be an exit without a deal.

My questions to the Minister are very straightforward. How do people know what to do? How will they find out? When will the NHS website be updated? What is going to happen to those people I quoted at the beginning of my remarks, who already feel abandoned, if in just over a week’s time we leave the European Union without a deal and they find that they cannot access clear, unbureaucratic advice on how to keep themselves and their families safe?

My Lords, I am pleased that the second of the statutory instruments in this group is not being moved now, because the issues involved in that one require more consideration than we might have given them today. The Government should think rather more carefully about some of these issues because it is clear that a considerable number of UK citizens living in other EU countries are incredibly concerned about them. They would be even more concerned if they had heard the remarks of the noble Baroness at the beginning of this discussion on these SIs. The idea that they may have to apply for extra insurance policies, social insurance schemes and so on as soon as a week on Saturday illustrates why it is so important that we do not crash out of the EU on Friday of next week. People are also acutely aware of how the Government at the moment appear to be treating rather differently issues such as the voting rights of UK citizens living overseas and the healthcare rights of UK citizens currently living in EU countries.

Tomorrow the Government will support a Private Member’s Bill in the House of Commons to give permanent voting rights in UK elections to all UK citizens living overseas. However, many of them were denied votes in the EU referendum and now find themselves potential victims of that decision in terms of fundamental changes to their existing healthcare rights. The winding down of reciprocal healthcare arrangements was not really examined in the referendum campaign as a potential consequence of that vote.

On Tuesday the Minister of State for Health, Mr Stephen Hammond, sought to allay some of their fears. But the Guardian today reports on the furious reaction of UK nationals who have retired to EU countries. The offer by the Government to cover healthcare costs for up to one year, if they have applied for or are undergoing treatment before exit day, is a terrible one. One of the people quoted in the Guardian article today says that if a person,

“has paid into the system all their lives and retired to an EU country in good faith, with all the reciprocal arrangements in place, they could be left high and dry if they, say, get cancer after 29 March”—

next Friday. Tuesday’s Written Statement by the Minister said that pensioners will be eligible to return to the UK and get treatment on the NHS under the contingency plans. But another of the people quoted in the article today asks:

“How can pensioners with cancer, cardiac problems or other major issues be expected to make or even afford repeated visits to the UK for regular vital treatment?”

The present system works well and is cost effective, because healthcare is cheaper in many EU countries than in the UK, so the existing system helps save the NHS money. We are losing a benefit and incurring more expense.

Campaign groups such as Bremain in Spain, British in Italy and Expat Citizen Rights in EU have all raised practical problems with the Government’s plans. They are right to criticise the way in which people who have paid national insurance contributions for many years, and may continue to pay taxes to HMRC, may now be deprived of their rights to reciprocal healthcare arrangements where they now live. They may in practice be unable to return to the UK for treatment they need.

Those of us living here who travel to Europe have come to regard the EHIC as a major advantage, and it has helped to keep travel insurance costs within Europe far lower than for the USA, for example. It is welcome that the cards may remain valid to the end of 2020, as opposed to next Friday, but only where a separate memorandum of understanding is in place with the relevant country. From what we heard a few moments ago, I understand that this is not the case with many countries so far. The basis of the statutory instruments relies heavily on the Government’s ability to agree transitional reciprocal healthcare arrangements with EU member states. Few agreements have already been reached, eight days before some people want us to leave the EU. It is hard to see how the new arrangements proposed can be subject to proper scrutiny—particularly without the relative costs of the new arrangements being assessed—together with what appear to be major drawbacks for UK citizens living in or visiting EU countries in future.

Current EU reciprocal healthcare arrangements allow UK citizens to have access to healthcare when they live, study, work, or travel in the EU, EEA and Switzerland, and vice versa. What they get in future may not be nearly as good, and the costs of the new arrangements are not known. The Government have admitted in these SIs that,

“there is a high level of uncertainty around the precise value of the costs and benefits”.

It is also clear that the Government are relying on powers to be given to the Secretary of State via the Healthcare (International Arrangements) Bill to make any provisions for after 31 December 2020, but we do not know who that Secretary of State will be then, or what it will be possible for them to agree. Does the Minister accept that we cannot give proper scrutiny to legislation when so much is unknown and uncosted? Can she say something about what the costings really are? Does she accept that it is regrettable that the timeframe for consideration of these measures means that there has not really been any proper public consultation about them, particularly with UK citizens living across different EU states?

Like the noble Baroness, Lady Thornton, I also want to know what arrangements the Government will make for advising travellers and expats as to their healthcare coverage status if we leave without a deal next Friday. We have seen little preparation for that so far. How will the date of 31 December 2020, outlined in the SIs as the day when all current arrangements with other member states cease, be revised if the Government succeed next week in securing an extension to the Article 50 process?

My Lords, I thank the noble Baroness, Lady Thornton, and the noble Lord, Lord Rennard, for their valuable contributions to this debate. The effect of these two sets of regulations is to make miscellaneous amendments to EU references in retained EU law relating to reciprocal and cross-border healthcare. I understand the wider points that both noble Lords have made, but am not in a position to comment on those wider points in relation to exit. I am in a position to comment on these SIs. I reassure the House and both noble Lords who have spoken that we are doing everything we possibly can to ensure that we have arrangements in place for reciprocal healthcare with the EU. These regulations ensure continuity of reciprocal healthcare arrangements, where appropriate, for UK citizens living, working or travelling abroad, while removing these arrangements in the longer term, as the noble Lord, Lord Rennard, said.

I turn to specific points raised by noble Lords. The noble Baroness, Lady Thornton, referred to the common travel area. I reassure her that the UK and Ireland are both committed to continuing the reciprocal healthcare arrangements on a bilateral basis after the UK’s withdrawal from the EU. We recognise our unique relationship with Ireland and the importance of the common travel area, and in healthcare, as in other relevant policy areas, we have been working closely with Ireland to ensure that the rights associated with the common travel area continue to be protected, and we have made good progress. Discussions to continue reciprocal healthcare arrangements are under way between the UK and Ireland and, once concluded, these instruments will provide a mechanism to implement the agreement and thereby ensure that there is no interruption to healthcare arrangements between the UK and Ireland for a transition period.

The noble Baroness, Lady Thornton, asked about the impact the legislation arrangements that are in place will have on an all-Ireland basis. The north-south arrangements to provide healthcare services on the island of Ireland are not impacted by the UK’s withdrawal from the EU or by these SIs. These arrangements operate under MoUs, as she correctly identified, and service level agreements between Irish and Northern Irish health authorities will continue to operate after exit day. The UK Government have made a commitment to ensure that these arrangements continue and that new arrangements can be made. The noble Baroness is aware that healthcare is devolved to Northern Ireland, and this statutory instrument has been brought forward in the absence of a Northern Ireland Executive.

I share the concerns raised by the noble Baroness in relation to paediatric heart surgery and cancer. I reassure her that the north-south arrangements to provide services such as paediatric heart surgery are not impacted by the UK’s withdrawal from the EU and the UK Government have made a commitment to ensure that those arrangements continue and that no new arrangements in relation to those areas are put in place.

The noble Baroness, Lady Thornton, asked what guides are available. The website GOV.UK contains “Living in country guides”, which contain country-specific information on the steps that people can take in relation to healthcare, and is regularly updated. However, I take on board the comments the noble Baroness has made and I will feed them back to the department to ensure that any further information is put in these guides.

The noble Baroness, Lady Thornton, and the noble Lord, Lord Rennard, asked about bilateral agreements if there is no deal. I acknowledge that the timescales are challenging. The Secretary of State for Health has written to all Health Ministers in the EU to offer an agreement on a reciprocal basis with other member states that individuals continue to be covered for healthcare under the same terms as now if they retire in, work in or visit the other country. We are currently engaging with member states to see whether these arrangements can be put in place should we exit the EU without a deal. While it would not be appropriate to share details of the negotiations with member states at this stage, I reiterate that our clear focus is to protect healthcare access for people in the EU.

The noble Lord, Lord Rennard, raised the issue of how we inform individuals of their rights in a no-deal scenario. I refer him to the answer I have just given in relation to the website and the guidelines. If they need to be updated with new information, the department will certainly do that.

One of the final issues raised by the noble Lord, Lord Rennard, on which I can comment relates to the costs of spend-on arrangements with the EU. The longer-term costs of reciprocal healthcare arrangements are subject to negotiations between the UK and the EU, as the noble Lord will be aware. Expenditure under the current EU reciprocal healthcare arrangements was approximately £630 million in 2016-17, and we expect future expenditure on EU reciprocal healthcare arrangements to reflect current costs. Our intention is that Parliament will have clear and easy-to-access details of public spending on healthcare arrangements implemented under the Healthcare (International Arrangements) Bill. We have made a government amendment reflecting the suggestion by the noble Baroness, Lady Thornton, and others to provide Parliament with a regular report on payments made using the powers under the Bill. We anticipate that this report will be a baseline. We intend to go further than reporting on payments, but we cannot provide a statutory obligation to do so at the moment.

I think those are the key questions that I can answer.

I hope the Minister does not mind, but while she was speaking I went to GOV.UK to have a look. She is quite right that there is a lot of information there, but if I want to know about healthcare in France or wherever, I will go to the NHS website. That is the first place I would think of going. If I want to know about my passport or that sort of thing, I would go to GOV.UK or the Home Office. There is a really serious communication issue here that the Government must take seriously very quickly.

My Lords, I take the issue very seriously because communication is key, particularly in the healthcare industry where there are very vulnerable people. It is right that we make information available in an easy, clear format. I am grateful to the noble Baroness for checking that out. She makes a valid point. I will feed her comments back to the department and, if we are able to do so, we will put the information on the generic website because I suspect that I, or anyone else, would go to the NHS pages as well. It seems the most logical thing to do. She has seen the webpage, I have not, but I will take her comments back. I hope the noble Baroness is reassured—she is nodding.

These two instruments and the Healthcare (International Arrangements) Bill will give us the best possible chance of ensuring that there is no loss of reciprocal healthcare arrangements for UK citizens in the EU, the EEA and Switzerland.

Motion agreed.