Estimated reading time: 3 Minutes
12 March 2019
A Supplementary Legislative Consent Motion in relation to the UK Government’s Healthcare (International Arrangements) Bill was laid by the Welsh Government on 1 March and will be debated by the Assembly in Plenary today.
Main elements of the Bill
The UK Government introduced its Healthcare (International Arrangements) Bill in the House of Commons on 26 October 2018. The purpose of the Bill is to enable it to make arrangements in relation to reciprocal healthcare after the UK leaves the EU. See our previous blog post for information about the current arrangements for reciprocal healthcare.
The Bill is currently at Report Stage in the House of Lords, with Third Reading scheduled for 19 March. The UK Government has said that legislative consent is required from the devolved administrations in respect of the Bill, as parts of it make provision in areas that are within the Assembly’s legislative competence.
The Bill does not propose any specific reciprocal healthcare arrangements, neither does it provide any detail about the operation of future reciprocal healthcare arrangements. Instead, it gives powers to the Secretary of State for Health and Social Care to make regulations in relation to providing healthcare outside the UK. These regulation making powers include power to:
- fund, arrange and make payments in relation to healthcare outside the UK;
- give effect to any healthcare arrangements between the UK and other countries, territories or international organisations;
- make provision in relation to data processing to facilitate reciprocal healthcare arrangements; and
- amend, repeal or revoke primary legislation, including legislation made by the Assembly, for the purpose of conferring functions on the Secretary of State or any other person, or to give effect to a healthcare agreement.
The exercise of the regulation making powers described above and the contents of the regulations will depend on the outcome of the Article 50 negotiations. In other words, the Bill enables the UK Government to implement reciprocal healthcare arrangements in various Brexit scenarios, including ‘no deal’.
Initial Welsh Government and Assembly positions on legislative consent
The original LCM (PDF, 124KB) in relation to the Bill was laid before the Assembly on 15 November. In the memorandum, the Welsh Government said that it agreed that the Bill is necessary to ensure UK residents can continue to benefit from reciprocal healthcare arrangements, and shares the preference for a consistent UK-wide approach. However, given the impact on the NHS in Wales, the LCM raised concerns about the extent to which the Welsh Government would be involved in shaping the healthcare arrangements to be delivered under the Bill:
given the significant impact on devolved areas it is crucial that Welsh interests are appropriately considered in the development of reciprocal health arrangements and that mechanisms are in place to ensure that the Welsh Government contributes to the making of decisions that affect Wales.
On 7 January the Minister for Health and Social Services gave evidence on the LCM to the Constitutional and Legislative Affairs Committee (CLAC), and two days later to the Health, Social Care and Sport Committee (the Health Committee). The Minister raised concerns that the Welsh Government was not informed about the Bill in good time and that the Bill:
- does not require the consent of Welsh Ministers to the making of regulations which will implement the detail of new healthcare agreements even though these would place obligations on the Welsh NHS;
- does not include provision for consultation with the Welsh Ministers in advance of making these regulations under this Clause; and
- enables regulations to be made which can amend, repeal or revoke a Measure or Act of the National Assembly for Wales.
The Health Committee supported the Minister’s position not to recommend consent until amendments were made to the Bill.
CLAC made seven recommendations to the Welsh Government including that “the Minister should pursue, with the UK Government, an amendment to the Bill that requires the UK Ministers to seek the consent of the Welsh Ministers before exercising the functions of the Welsh Ministers in devolved areas.”
Changes to the Bill
The supplementary LCM notes that the UK Government has committed to amend the Bill at Report Stage to address the Welsh Government’s concerns. It says:
The proposed amendment will place a requirement on the Secretary of State to consult with the Devolved Administrations, including the Welsh Ministers, before making regulations under Clause 2 that are within devolved competence. In addition to that requirement, a Memorandum of Understanding has been developed between the Devolved Administrations and the UK Government to underpin the amendment. The Memorandum of Understanding was agreed with the Minister of State for Health on 20 February 2019.
The Memorandum of Understanding provides, amongst other things, that the Welsh Government will be consulted on the following:
- the negotiation of new healthcare agreements;
- the development and drafting of regulations under the Bill to implement such agreements; and
- agreements which apply to or have implications for Wales, and on regulations giving effect to those agreements.
As a result of these changes to the Bill, the Welsh Government has recommended that the Assembly should give legislative consent.
Article by Manon George, Senedd Research, National Assembly for Wales