15.The European Union (Withdrawal) Act 2018 (EUWA) makes explicit provision that “on or after exit day, there is no right in domestic law to challenge a retained EU law on the basis that, immediately before exit day, an EU instrument was invalid”. These Regulations provide clarity for cases that are in progress on exit day. Currently only the European Court of Justice (CJEU) can rule on the validity of EU law; where a domestic court is awaiting a response for the CJEU on exit day, these draft Regulations permit the domestic court to make its own ruling, so that the case does not founder. The CJEU website shows that there are only two cases pending relating to questions of validity. The Department for Exiting the European Union (DExEU) states that judges will retain the flexibility to wait for a judgment from the CJEU if they wish but that that judgment will not be binding. The Explanatory Memorandum (EM) provided by DExEU explains the detailed provisions quite clearly. Paragraph 10.5 of the EM also mentions that the Lords Constitution Committee raised issues about future declarations of invalidity from the CJEU.7 In response, DExEU took the view that “EUWA should take a snapshot of EU law as it stands on exit day, and that afterwards it will be for Parliament to decide whether and how to diverge”.
16.These three instruments set out provisions for an orderly wind-down of UK reciprocal healthcare arrangements with the EU and European Economic Area in case of a ‘no deal’ Brexit. They allow for treatment in progress or authorised before exit day to be completed on either side of the Channel and allow (so far as possible acting unilaterally) for reimbursement for those treatments. The transitional elements allow for all ongoing treatment to continue for a maximum period of a year following exit, or (for pre-authorised treatments) the end of the period specified in the authorisation, whichever is the latest. Dedicated regulations deal similarly with the special situation in Northern Ireland where such arrangements are more frequent due to the land border with the Republic of Ireland.
17.The Department of Health and Social Care regards these regulations as providing temporary provision until the Healthcare (International Arrangements) Bill takes effect by allowing for the current system (including European Health Insurance Card and S1) to be continued until 31 December 2020 with individual countries, but only if a separate Memorandum of Understanding is in place with the relevant country. The Bill will also provide a legislative framework to implement any future longer-term reciprocal healthcare arrangements with the EU, individual Member States or countries outside the EU.
7 See Letter from the Chairman of the Constitution Committee to Lord Callanan, Minister of State at the Department for Exiting the European Union, on Validity Challenges and the European Union (Withdrawal) Act 2018 (23 November 2018): hhttps://www.parliament.uk/documents/lords-committees/constitution/Correswithministers/Chairman to Lord Callanan on post Brexit validity challenges.pdf [accessed 25 February 2019].