Fiftieth Report Contents

Appendix 1: Healthcare (International Arrangements) Bill (changed to Healthcare (European Economic Area and Switzerland Arrangements) Bill): Government Response

Letter from Baroness Blackwood of North Oxford, Parliamentary Under Secretary of State for Innovation at the Department of Health and Social Care, to the Rt Hon. Lord Blencathra, Chairman of the Delegated Powers and Regulatory Reform Committee

Thank you for the report from the Delegated Powers and Regulatory Reform Committee dated 14 February 2018, on the Healthcare (International Arrangements) Bill.

The Government takes the concerns raised by this Committee seriously and I have reviewed these carefully alongside the views of the House. The Government has tabled a number of amendments to the Bill ahead of Report stage on the 12 March:

1.Firstly, there has been much debate since its introduction on the scope of the delegated powers in the Bill and their application on a global scale. The Government has listened very carefully to these legitimate concerns and has concluded that the regulation making powers used to implement unilateral healthcare schemes (ie arrangements outside of an international healthcare agreement) should be time-limited. The amendment tabled by the Government is to sunset the regulation-making powers in clause 2(1)(a) and clause 2(1)(b) so that they are only exercisable for a five-year period after the UK leaves the EU.

2.The purpose of this amendment is to significantly curtail the scope of the delegated powers in the Bill and make it clear that the wider regulation making powers to deal with EU exit are for immediate rather than long-term use. The effect of this amendment is to limit the delegated powers, and therefore limit the scope of what can be done under the Bill around the world.

3.It is important to note that current reciprocal healthcare agreements are not limited to the EU. These agreements are less complex, and post Exit we may want to strengthen these to ensure that we are delivering important opportunities for UK nationals abroad. This is key to delivering greater security and certainty for UK nationals post-exit, and the powers in the Bill enable us to do that.

4.For example, regulations under clause 2(1)(c), would allow us to give effect to future complex healthcare agreements with other countries - a purely implementing mechanism. The statutory framework for ratification of such binding agreements or treaties is provided for via the Constitutional Reform and Governance Act 2010 (CRaG). The Bill does not change this, and implementing regulations would be subject to their own Parliamentary scrutiny process.

5.This amendment constrains the delegated powers under the Bill in a direct response to the issues that the House has raised both on the breadth and scope of the Bill and confirms that these powers would only be used in exceptional circumstance of EU Exit.

6.In addition, the Government has tabled an amendment to limit the operation of regulations made under clause 2(1), so that if exercised to confer functions, they can only do so to a public authority.

7.I have noted the concerns raised by the Committee on the nature of conferring or delegating functions through the regulation-making powers in clause 2. Indeed, the body which we envisage needing to confer functions to in the future and whom we already work closely with to deliver current reciprocal healthcare agreements is the NHS Business Services Authority. I hope that this amendment puts beyond doubt the Government’s position that there is not and never has been any intention to confer functions on private bodies.

8.The Government is committed to financial transparency and opportunities for Parliament to scrutinise spending. We have therefore decided to go beyond the commitment that I made in my letter to you on 30 January to issue an annual written ministerial statement on the operation of reciprocal healthcare arrangements, to insert a statutory duty to issue a report on payments made under the Bill, in each financial year after exit day.

9.This would enable Parliament to have clear and readily accessible details of the public spending on healthcare overseas that is funded under the Bill and the opportunity to scrutinise.

10.The Government has listened very carefully to the Committee’s concerns on the inclusion of a consequential Henry VIII power, which has also been the subject of robust debate. We considered it was appropriate to have flexibility to amend different types of legislation, including primary legislation on a limited basis, so that we can operate reciprocal healthcare arrangements domestically in the most coherent way. Looking at past experience, we are aware that when we have implemented international healthcare arrangements we have made consequential amendments to primary legislation. For example, when we implemented the EU Cross-Border Healthcare Directive in 2013, we inserted discrete new sections into the National Health Service Act 2006. Given the general uncertainty of EU exit scenarios we are not able to categorically rule out the possibility of needing to make consequential changes to primary legislation.

11.I appreciate, however, the views of the House and the Committees and I support their recommendation that it would be appropriate to remove the powers in the Bill to make regulations containing consequential amendments to primary legislation. I hope that this alleviates any fears that we are taking powers which are not necessary in this Bill.

12.The Government has tabled an amendment in relation to data processing. Clause 4(6) sets out a list of persons who are authorised to process data for the purposes set out in the Bill, namely to facilitate reciprocal healthcare, whether as part of an agreement with the EU or with, individual countries, or in connection with independent arrangements.

13.The delegated power at clause 4(6)(e) enables the Secretary of State to make regulations to add to the list of persons who can process data for the purposes of the Bill. The list can only be extended via regulations. The tabled amendment provides that regulations which add to the list of who is an “authorised person” are made subject to the affirmative procedure.

14.Parliamentarians have rightly demonstrated that data protection is a critical issue and the Government shares this important concern. This amendment therefore facilitates greater parliamentary scrutiny on those persons authorised to process data, while equally ensuring that the Government has the necessary flexibility to guarantee that future agreements are administered in the most efficient way possible.

15.I am also pleased to confirm to you and your Committee that the Welsh Government has begun its legislative consent process; demonstrating the close working relationship between the Department and the Devolved Administrations (DAs) throughout passage of the Bill. The Scottish Parliament granted a legislative consent motion to the Bill on 16 January and we have had positive and productive engagement with colleagues in the Northern Ireland Department of Health and in the Northern Ireland Office.

16.I would also like to note to the Committee that the Government committed to bring forward a Government amendment placing a statutory duty to consult the Devolved Administrations where regulations under clause 2 of the Bill make provision that would be within the legislative competence of the Devolved Administrations during Committee Stage. This has thus been tabled for Report, demonstrating the Government’s intent to continue deep collaboration with the DAs to deliver reciprocal healthcare agreements that support the whole of the UK.

17.May I reiterate my gratitude to you and the Committee for your continued engagement on the Bill and for the important issues that it has raised. I hope that the Committee is reassured by the Government’s intentions in relation to the powers to the Bill and I look forward to continuing to work with the Committee constructively during the remaining stages of the Bill’s passage.

8 March 2019

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