Motion to Approve
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)
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
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.
Given that there has already been some uncertainty about the extent of powers afforded to the Secretary of State under what was originally known as the Healthcare (International Arrangements) Bill, it is worrying to see similar uncertainty in this SI regarding Regulation 16.
The committee highlighted that greater clarity was needed under Regulation 18 to comply with proper legislative practice. In the SI as it stands, there remain areas of ambiguity over how this regulation interacts with other areas of legislation. For those trying to determine their health rights in the future, this ambiguity is potentially damaging and certainly confusing.
I thank the noble Baroness, Lady Thornton, for highlighting last week the difficulties of finding information about post-Brexit healthcare abroad on the Government’s web pages. In light of this, in addition to further clarity in the legislative text, will the Government confirm that they will additionally produce explanatory material that will be user-friendly? That final word is important; the material must be for the average families who holiday once or twice a year and use their EHICs for that, because clearly that will no longer be possible and they need to understand what the options are and what the alternatives should be. I note that the Minister said that the Government would do something like this; this would fulfil exactly what she suggested.
Does the Minister agree that the use of a narrative impact assessment, and hence the decision not fully to quantify or monetise the relative costs and benefits of the options under consideration, has made it harder for Parliament to offer this legislation proper scrutiny? Also, the impact assessment used for this SI, and the others considered last week, referred repeatedly and explicitly to the,
“Cost Recovery Regulations (EU Exit) SI”.
Can the Minister confirm which of the SIs this in fact referred to? It appears to be a mistake.
Can the Government explain why they believed that a public consultation was not necessary for these SIs? My noble friend Lord Rennard noted last week that the reaction to them from expat groups abroad has been one of unhappiness and confusion, particularly regarding the 12-month guarantee for treatments agreed or begun before or on exit day. I am particularly concerned about those elderly people who will not be fit to travel back to the UK for treatment should they require it after we have left. I take it from the Minister’s remarks just now that this matter has now been clarified and resolved.
Given the uncertainty of the Brexit timetable, how do the Government intend quickly and effectively to alert travellers and expats to their healthcare coverage status in the event that we exit without a deal? In particular, how will they keep citizens updated on which countries have agreed to continue current reciprocal healthcare arrangements until 31 December next year? Dates are confusing to us all; will the date of 31 December 2020, outlined in this SI as the day on which transitional continuation of current arrangements with other member states will cease, be revised given that we will no longer exit on 29 March?
My Lords, I did not have an opportunity to contribute to this statutory instrument earlier last week on the related SIs, for which I apologise, but I certainly contributed to the discussion on the then Healthcare (International Arrangements) Bill. This instrument relates directly to that. I am quite pleased to follow the noble Baroness, Lady Jolly, who asked some good questions. I shall not repeat what she said but I just say that, good questions though they are, none of this adds up to a criticism of the statutory instrument and its drafting, as such. Rather, these are matters of elucidation and practice in bringing the instrument in, so an amendment expressing regret would be slightly excessive under the circumstances.
However, it is important for us to be clear about what we are trying to achieve with the SI. First, on the inconsistency between these regulations and directly effective treaty rights, a useful question was asked by the Joint Committee and it received an important answer. Effectively, this concerns any route by which people might try to sustain, using the continuation of directly effective treaty rights after withdrawal, things such as their ability to access services in other member states. Obviously, this relates to cross-border healthcare services, not the reciprocal agreements or cross-border healthcare arrangements. Many Members of your Lordships’ House will recall the debate about the cross-border healthcare directive. Effectively, this means that we are extinguishing the cross-border healthcare directive in the circumstances where we leave without an agreement. The Government’s intention is to do that; it is not to allow any vestige of it to remain.
The point made by the JCSI is that people need to know when their rights disappear, and should not be left in a situation where they think those rights have gone but might be retained by some other route. To that extent, the clarity given by the answer is helpful but it is important for people to understand that there used to be such a thing as cross-border healthcare services, whereby people could access a service in another member state for planned treatment, and that right will go. We need to know that that has happened.
The other point, which I think the noble Baroness made, concerns the lack of quantification in the impact assessments. The narrative is useful but it was not impossible to attach some numbers—even indicative ones—in relation to one or two member states where we know that such an agreement exists. For example, the noble Baroness, Lady Thornton, talked about Spain. We now know that there is an agreement with Spain for the continuation of cross-border healthcare arrangements and it would, even in the latter days, have been possible to look at that. Spain is not unimportant; there are a large number of British pensioners there. So it might have been possible to look at that, for example, and ask: what is the quantification of the extent to which we are providing this service to support pensioners’ healthcare arrangements in Spain? In the process, we could have provided a bit of reassurance that oxygen supplies to pensioners in Spain should not stop. These things should be retained and supported through the regulations, rather than disappear. That would have been quite helpful.
My final point is that the two things being together could lead to confusion. The regulations are designed to reassure pensioners and those accessing cross-border healthcare arrangements at the point at which we leave—if we leave without an agreement—that support will continue. They are not designed to give people new access to healthcare arrangements; they are designed to reassure those with existing arrangements. We cannot possibly tell people what situation they are in until we know at what point we will leave and under what circumstances. It continues to be our wish to leave with a transitional or implementation period, as set out in the withdrawal agreement. If that is the case, telling people all the things that would be implied by leaving without a deal would be unhelpful. So let us not do that, but let us be absolutely certain that, if need be, we are in a position to tell them and provide reassurance very quickly about the continuation of healthcare arrangements for those who presently access them.
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.
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.
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?
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.
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.
The basis of the noble Lord’s question was the safety net in this SI. I clarify again that in most cases people will have straightforward and affordable options for accessing healthcare services, whether through local entitlement routes or travel insurance. However, we are exploring whether there is a further need to fund healthcare for limited numbers of people in exceptional cases if there would otherwise be a serious risk to their health. As things become clearer over the next few weeks, we will make the situation much clearer.
The noble Baroness, Lady Thornton, raised the issue of this SI working alongside the Healthcare (European Economic Area and Switzerland Arrangements) Act. I reassure her that this instrument is needed because it is a mechanism for ensuring that there is no interruption to healthcare arrangements for UK-insured persons after exit day in those member states that agree to maintain the current arrangements with the UK for a transitional period. The healthcare Act allows us to respond to all possible scenarios and complements the approach we are taking with this SI. The Act will ensure that the UK can implement a longer-term relationship with the EU or individual member states. It also provides broader powers to give effect to healthcare arrangements that are bespoke or different in any way to the current arrangements provided by the EU regulations.
Along with the noble Baroness, Lady Jolly, the noble Baroness, Lady Thornton, asked for an example of a right or obligation being discontinued in Regulation 18. Regulation 18 disapplies the rights saved by Section 4 of the withdrawal Act where they are inconsistent with the instrument. Regulation 18 ensures that those free movement provisions cannot be relied on to resurrect the cross-border healthcare provisions being discontinued by the instrument in the longer term. But there could be other treaty provisions potentially relevant to cross-border healthcare, such as Article 45 of the Treaty on the Functioning of the European Union, on the free movement of workers. As I said in my opening remarks, to draw up an exhaustive list would be near impossible, as different provisions of EU law may be relevant depending on the facts of each case.
The noble Baroness, Lady Jolly, raised the issue of signing agreements and which member states are ready. We have made a generous offer to all member states to maintain reciprocal healthcare arrangements bilaterally under no deal, so that no one faces sudden changes to how they access healthcare. We are prioritising countries with the highest pensioner populations. Spain has issued a royal decree that sets out its plan to provide healthcare both to British nationals residing in Spain and to those who are temporarily displaced. Other countries that have brought forward their own no-deal legislation include France, Germany, Belgium, Portugal, Greece, Slovakia, Latvia, Bulgaria, Hungary and Slovenia. This legislation will of course be subject to parliamentary processes in each of those countries. The Government will implement a bilateral continuation of the current arrangements through the reciprocal healthcare Act and this statutory instrument. Where any bilateral agreements with member states differ from the current arrangements, we will use the powers in the Act to provide for this.
Issues were raised around how we carried out the impact assessment. I reassure noble Lords that there is no significant impact on business, charities, voluntary bodies or the public sector. The instrument provides a mechanism for the continuation of reciprocal and cross-border healthcare arrangements with EEA states, and will, as far as appropriate, maintain the status quo during the period until 31 December 2020.
The noble Baroness, Lady Jolly, asked about the cost recovery SI. It is not a mistake in the impact assessment; that SI is subject to the negative procedure. She also asked whether the date of 31 December 2020 will be revisited. We feel it remains appropriate at this time.
I want to conclude on one important point concerning the safety net and why it is important to have this SI, as was touched on by the noble Baronesses, Lady Thornton and Lady Jolly, my noble friend Lord Lansley, and the noble Lord, Lord Foulkes. The Government have already taken steps to inform individuals of their rights in both a deal and a no-deal scenario. This SI explains how the UK is working to maintain reciprocal healthcare arrangements, but this will depend on decisions by member states. It sets out the options by which people might have to access healthcare under local laws in the member state they live in, if bilateral agreements are in place, and what people can do to prepare. As a matter of course, we will continue to provide up-to-date information to individuals as soon as it becomes available.
I hope I have sufficiently reassured noble Lords on this very important SI, and explained that we as a Government take seriously communicating effectively with patients about their rights to healthcare. With that, I commend the regulations to the House.
I thank the noble Baroness for that extensive explanation, her answers to questions, and the detail and attention she has given this statutory instrument.
I was struck by a couple of things the noble Baroness said. The fact that all those countries have had to pass no-deal legislation is perhaps not the best way to make friends and influence people as we move forward in our new relationships. That is just a comment on the uncertain world we are now entering.
Dozens of the SIs before us have not been criticised by the Joint Committee on Statutory Instruments, but this one was. That is why it merited particular attention in your Lordships’ House. A regret amendment will not stop its progress; it is actually just that: it regrets that the Government needed that criticism and attention from the statutory instrument committee.
I thank the noble Baroness, Lady Jolly, and the noble Lord, Lord Lansley, who asked some extremely pertinent questions. Indeed, through his persistence, the noble Lord got the right answer to the question—I was sitting here waiting to hear the Minister say that, yes, the list would have to be issued on that date. I agree with the noble Lord that the need for speed if we crash out will be absolutely paramount. I thank my noble friend Lord Foulkes for his commendation and for the support he has given during the course of the recent Act.
I thank the Minister for her reassurance and of course I accept that we need this statutory instrument on the statute book. It underlines the fact that we are going yet one more step further down the road of uncertainty. The people who need our National Health Service have been badly served by the Brexiteers in this whole argument. That lie on the side of the bus was such a big lie—and here we are discussing the welfare of millions of our fellow citizens. We should really not be here having to do that based on those lies. However, I beg leave to withdraw the amendment.
Amendment to the Motion withdrawn.