Eluned Morgan MS, Minister for Health and Social Services
Members of the Senedd will wish to be aware that the Secretary of State is exercising a subordinate legislation-making power to make regulations which include provision in a devolved area in relation to Wales.
Will Quince MP, Minister of State for Health and Secondary Care, is to make a UK wide Statutory Instrument (SI) titled the Healthcare (International Arrangements) (EU Exit) Regulations 2023 (“the HIA Regulations”).
The above titled SI will be made by the Secretary of State in exercise of powers conferred by the Healthcare (International Arrangements) Act 2019 (“the Act”) (formerly titled the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 but to be renamed by section 162 of the Health and Care Act 2022, once commenced).
The SI makes provision to give effect to International Healthcare Agreements between the UK Government and Rest of World Countries and other commitments concerning the provision of such healthcare and for related purposes. Aspects of the HIA Regulations are within devolved competence.
The regulations were laid before Parliament on 5 June 2023 and will come into force immediately after section 162 of the 2022 Act comes into force. UK Government officials have advised the Welsh Government that this is likely to be this summer.
Any impact the SI may have on the Senedd’s legislative competence and/or the Welsh Ministers’ executive competence
The Senedd Members will wish to note that the Regulations do not transfer any functions to the Secretary of State.
The purpose of the regulations
As stated, the HIA Regulations will be made in exercise of powers conferred on the Secretary of State by the Act. The main enabling power will be contained in section 2 of the Act. Under section 2A of the Act the Welsh Ministers may also make certain provision by regulations equivalent to that which the Secretary of State can make using section 2, although not all provision and only where the provision is within devolved competence.
The HIA Regulations will replace the UK legal framework for implementing healthcare arrangements provided for in existing regulations, the Healthcare (European Economic Area and Switzerland Arrangements) (EU Exit) Regulations 2019 (“HEEASA Regulations”), which are made in relation to the provision of reciprocal healthcare in EEA states and Switzerland, including the making of payments. The HEEASA Regulations also place duties on public authorities in Wales to give effect to reciprocal healthcare arrangements with the European Union (EU), European Economic Area Countries and Switzerland.
The HIA Regulations are to a large extent similar to the HEEASA Regulations, but broaden the scope of the legal framework to healthcare agreements between the UK Government and Rest of World countries. The HIA Regulations:
- enable payments to be made pursuant to a reciprocal healthcare agreement by the Secretary of State on a UK wide basis;
- enable payments to be made by the Secretary of State in exceptional circumstances on a UK wide basis;
- impose a requirement to give effect to obligations and commitments of the UK under relevant healthcare agreements, including the processing of maternity planned treatment functions, on UK NHS Business Services Authority (NHS BSA);
- impose information and advice functions on NHS BSA;
- list Rest of World Countries party to international healthcare agreements with the UK;
- impose S2 planned treatment functions on NHS England, Welsh Local Health Boards and Scottish health boards (i.e. to carry out clinical determination of applications and to establish and publish procedures for the determination of S2 applications, which include provision for a review process).
Some of aspects of the HIA Regulations could be made all or in part by provision contained in regulations made by the Welsh Ministers under section 2A of the Act.
The Regulations and accompanying Explanatory Memorandum, setting out the detail of the provisions, purpose and effect of the amendments is available here:
Why agreement has been given
I have agreed that the UK Government make provisions in the HIA Regulations on behalf of Wales in an area of devolved competence for reasons of pragmatism, efficiency and legal clarity.
Firstly, the SI has been considered fully, and our policy position in this regard is currently the same as the UK Government’s. I do not anticipate this changing and the provisions of the HIA Regulations thus align with our policy. Should our policies in this area diverge in the future we have the power under section 2A of the Healthcare (International Arrangements) Act 2019 to make our own regulations to implement certain changes in Wales, provided those changes are within devolved competence, the scope of which is prescribed by section 2A(2) and (4)(b) of the Act. Thus, having the UK Government make this provision for Wales is not detrimental to current or future Welsh policy in this area.
Secondly, this approach also ensures a coherent and consistent statute book with the regulations being accessible in a single instrument.
Thirdly, each time the UK Government enters into a new healthcare agreement with a country or territory, the HIA Regulations will need to be amended to add that country or territory to the Schedule on a UK wide basis, to give effect to and implement the agreement across the UK. Given that UK Government intends to seek agreements with a number of countries in the coming years, there could be a necessity for an ongoing series of amendments to be made to the Schedule. The UK Government will be required to amend the Schedule each time they enter into a new healthcare agreement, at least in relation to England. As the UK Government also has the competence to amend the Schedule on a UK wide basis, it is pragmatic and efficient for them to apply any such amendment to Wales, given that an equivalent amendment would be required in relation to Wales in any event.
Finally, the impact on the LHBs of listing such agreements in the HIA Regulations is likely to be extremely low and I thus consider legislating separately for Wales when a new agreement is required to be listed would be neither the most appropriate way to give effect to the necessary changes, nor a prudent use of Welsh Government resources given other important priorities.