Instruments drawn to the special attention of the House
Draft Immigration, Nationality and Asylum (EU Exit) Regulations 2019
Date laid: 11 February 2019
Parliamentary procedure: affirmative
The UK’s current legislation in relation to immigration, nationality and asylum reflects its membership of the EU. This Home Office instrument mainly makes technical amendments either to revoke provisions that will become redundant or to allow the legislation to operate effectively after Brexit and until Parliament has passed the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, currently before the House. However, the House may be interested to note plans for a UK Biometric Residence Permit and also that the Home Office anticipates that the loss of the provisions of the Dublin Regulation will have minimal impact on how those seeking asylum in the UK are handled.
These Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
1.The UK’s current legislation in relation to immigration, nationality and asylum reflects its membership of the EU and the European Economic Area. This instrument, laid by the Home Office and accompanied by an Explanatory Memorandum (EM), makes modifications to that legislation, necessitated by the United Kingdom’s withdrawal from the EU.
2.It also provides for the scenario in which free movement continues to operate beyond the UK’s exit from the EU, that is, until Parliament has passed the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, currently before the House, and its provisions have been implemented. Many of the elements of the legislation will therefore take effect “on the appointed day”.
3.The EM divides the provisions of this instrument into seven groups. The majority of these are simply technical amendments either to revoke redundant provisions or to allow the legislation to operate effectively after Brexit without altering its effect. However, the House may be interested in the third and fourth groups.
A new design for documents
4.The third group of provisions will revoke the retained EU legislation concerning the specifications for certain documents, notably the uniform format for Biometric Residence Permits for third-country nationals (such as the information and security features that they must contain). We asked the Home Office whether, if the UK deviates from the EU standard format, that will cause any difficulty at borders, and how immigration officials abroad will recognise that the individual has the correct (or incorrect) documentation to be allowed to return to the UK.
5.The Home Office replied that:
“The EU is in the process of switching from the current design of the Biometric Residence Permit (with a bull and stars above the photo) to a very different visual design. Some member states have started to issue the new design and all will do so later in 2019. The UK will not issue the new EU design and has developed a UK specific visual design, for use from a date to be confirmed.
Before the UK switches to that design, foreign border control agencies, airlines, ferry and international companies will be made aware of implementation plans. This will use channels established by the Home Office Carriers Liaison Section, which is the primary method by which the UK communicates to operators and agencies changes to its visa regime. The degree of information shared will vary. Operators will receive basic information on the design, while border control agencies will have access to more detailed forgery detection information.”
Dealing with asylum seekers
6.The fourth group of provisions comprise revocations of a number of EU instruments, including the Dublin Regulation, under which asylum seekers are required to make their claim in the first safe country they arrive in. The effect of this will be that the UK will have to deal with all asylum claims made here and will lose the ability to return the person to the ‘responsible’ Member State under the terms of the Dublin Regulation. The Home Office, however, states that asylum claims may still be deemed inadmissible to the UK if the claimants have already been recognised as a refugee or could have claimed asylum elsewhere.
7.The Home Office indicates that these changes will not make a considerable difference to the UK’s asylum process. In 2017, 26,350 asylum applications were made in the UK, and during that same period there were 461 transfers of asylum seekers into the UK and 314 transfers to the EU under the Dublin Regulation.
8.The Home Office also states that it is seeking a new agreement with the EU on returning illegal migrants, including asylum seekers:
“We are also mindful of the obligation in section 17 of the European Union (Withdrawal) Act 2018 (family unity for those seeking asylum or other protection in Europe). We currently work bilaterally on returns with France where for example the Sandhurst Treaty, and the subsequent Joint Action Plan, features a mutual commitment to return more migrants to France who have used boats to illegally cross the Channel.”
Amendments Relating to the Provision of Integrated Care Regulations 2019 (SI 2019/248)
Date laid: 13 February 2019
Parliamentary procedure: negative
Primary Medical Services (Prohibition on the Sale of Goodwill) Regulations 2019 (SI 2019/251)
Date laid: 13 February 2019
Parliamentary procedure: negative
The first of these two instruments supports the introduction of new contractual arrangements for the provision of integrated health and care services under an Integrated Care Provider (ICP) contract; the second sets out that the prohibition on the sale of goodwill in a medical practice should apply to those providing primary medical services under the new ICP Contract in the same way as it does for existing primary medical services contracts.
ICP contracts are seen by the Government as a potentially important element in the organisational changes needed to deliver greater integration of health and social care services. Responses to consultation on the instruments have shown, however, that there is a “climate of suspicion” around these proposals, which has not so far been dispelled. The House may be interested to see the way in which the Government are taking forward their proposals through these statutory instruments.
We draw these Regulations to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
9.The Department for Health and Social Care (DHSC) has laid both these instruments, each with a separate Explanatory Memorandum (EM).
10.SI 2019/248 is intended to support the introduction of new contractual arrangements for the provision of integrated health and care services under an Integrated Care Provider (ICP) contract - a single contract through which services from general practice, the wider NHS and, in some cases, local authorities can be commissioned from a “lead” provider organisation, responsible for integrating services. In the EM, DHSC says that ICPs are based on the premise that, by bringing providers together into a single organisation, “the historical partitions between primary, community, mental health and social care and acute services can be removed ... a single provider is intended to have the flexibility to utilise its resources to maximise the health of the population”.
11.In the EM to SI 2019/251, DHSC says that existing Regulations1 prevent the sale of goodwill in a medical practice; when such a practice is sold, it must be at a price which represents the fair market value of its tangible assets (including premises). A premium cannot be placed on the purchase price of the business because of the goodwill that has been built up in it over the years. In revoking and replacing the earlier Regulations, this instrument provides that the prohibition on the sale of goodwill should apply to those providing primary medical services under the new ICP contract in the same way as it does for existing primary medical services contracts.
Consultation
12.In the EMs, DHSC acknowledges public concern over the development of ICPs, in particular that the new contractual arrangements have been seen as potentially representing “a means of privatising NHS services”. DHSC refers to a public consultation on the proposed changes to regulations to support the ICP contract which it conducted between 11 September and 3 November 2017. The Department received over 45,000 responses, which highlighted three main concerns: lack of Parliamentary scrutiny; inadequate public consultation; and opposition to privatisation of the NHS. DHSC comments that its analysis found that 44,621 responses could be attributed to a campaign by the political activist group 38 Degrees;2 but also that 811 responses did not follow a campaign template, and expressed opposition to privatisation, gave examples from their personal experience and voiced general concerns over the future of the NHS. DHSC also says in the EM that it received nine responses which directly addressed the specific amendments to regulations and answered the consultation questions, including a response from the British Medical Association; and that these led to a number of post-consultation revisions to the regulations.
13.DHSC published the Government response to the consultation in April 2018.3 In acknowledging the many representations from the public, that document stated that “[i]t is misleading to suggest that [ICPs] are a step towards privatising the health system. The objective of the new care models programme is to deliver joined up, patient-centred care. [ICPs] will always offer free healthcare at the point of use.”
Report by Commons Select Committee
14.In the EM, DHSC notes that the House of Commons Health and Social Care Committee’s report on integrated care (published in June 2018)4 found that the prospect of a private provider holding an ICP contract was unlikely. The Department is correct in this reference. However, it does not mention another finding in that Committee’s report, that understanding of the changes being promoted by the Government to achieve more integrated healthcare had been “hampered by poor communication and a confusing acronym spaghetti of changing titles and terminology, poorly understood even by those working within the system”. The Committee commented that this had “fuelled a climate of suspicion about the underlying purpose of the proposals and missed opportunities to build goodwill ...” Responses to the autumn 2017 consultation process may be seen as evidence of this.
Legal challenges
15.In the EM, DHSC says that there have been two legal challenges to this policy which, it states, have been unsuccessful. The first judicial review, against the Department and NHS England (NHSE), argued that the contract constituted unlawful delegation by Clinical Commissioning Groups; the second, brought against NHSE, challenged the use of a whole population budget.5 In the case of the second of these judicial reviews, the Department told us that the Appellant is seeking permission to appeal from the Supreme Court, but that Court has not yet reached a decision about whether it will allow an appeal.
Conclusion
16.The Government and the NHS are seeking greater integration of health and social care services in order to meet the demands of a population where life expectancy has greatly increased and may continue to do so. Integrated Care Provider contracts, which these instruments support, are seen as a potentially important element in the organisational changes needed to deliver such integration. Responses to consultation on the instruments have shown that there is a “climate of suspicion” around these proposals, which has not so far been dispelled. The House may be interested to see the way in which the Government are taking forward their proposals through these statutory instruments.
1 Primary Medical Services (Sale of Goodwill and Restrictions on Sub-contracting) Regulations 2004 (SI 2004/906).
2 See, for example, 38 Degrees, No Americanisation of our NHS. Stop the ACOs. Full public scrutiny now: https://you.38degrees.org.uk/petitions/no-americanisation-of-our-nhs-stop-the-acos-full-public-scrutiny-now [accessed 5 March 2019].
3 Department for Health and Social Care, Accountable care models contract: proposed changes to regulations (11 September 2017): https://www.gov.uk/government/consultations/accountable-care-models-contract-proposed-changes-to-regulations [accessed 5 March 2019].
4 Health and Social Care Committee, Report: Integrated care: organisations, partnerships and systems (Seventh report, Session 2019-19, HC 650).
5 R (oao Hutchinson & others) v SSHSC and NHS England [2018] EWHC 1698 (Admin); (R (oao Jennifer Shepherd) v NHS England [2018] EWHC 1067 (Admin).