That brings us to the next legislative consent motion on the Healthcare (International Arrangements) Bill, and I call on the Minister for health to move the motion—Vaughan Gething

Motion NDM6987 Vaughan Gething

To propose that the National Assembly for Wales, in accordance with Standing Order 29.6 agrees that provisions in the Healthcare (International Arrangements) Bill in so far as they fall within the legislative competence of the National Assembly for Wales, should be considered by the UK Parliament.

Motion moved.

Thank you, Presiding Officer. I am recommending that the Assembly consent to the legislative consent motion on the Healthcare (International Arrangements) Bill. As Members will be aware, I did not recommend that the Assembly should consent to the original legislative consent memorandum, laid on 15 November last year. This has been a prolonged and now positive engagement with the UK Government to bring this Bill to a position where I am able to recommend consent. Crucially, the UK Government has tabled an amendment to create a statutory requirement for consultation with devolved national Governments, and agreed a memorandum of understanding underpinning that amendment. The memorandum sets out how devolved national Governments will be involved in the development of future international healthcare agreements and regulations giving effect to them, and that memorandum has been shared with scrutiny committees.

The Welsh Government was the only devolved national Government to refuse consent early in the process as we wanted to see changes to the legislation. Because of our intervention and the changes we have led, I believe that this legislation is improved and the position of the devolved national Governments is better respected and reflected. That is why I am now recommending consent to the Bill be given.

I'm grateful to both the Constitutional and Legislative Affairs Committee and the Health, Social Care and Sport Committee for their robust scrutiny of the Bill and the original legislative consent memorandum. This scrutiny has helped to inform the Government's position in our negotiations with the UK Government. I've written to both committees in response to their recommendations, and I shared with them the outcome of the negotiations. While I regret the time that has been taken to secure the hard-won concessions from the UK Government, it has meant that there was no time available to refer the supplementary legislative consent memorandum. I hope that, despite that, members of both committees and Members generally will share my judgment that what we have achieved is a significant step forward.

This Bill forms part of the UK Government's response to the potential exit from the European Union. However, the Bill could also be used to give effect to international healthcare agreements with other third countries, albeit there has been an amendment passed in the Lords on that this afternoon.

Current reciprocal healthcare arrangements with the European Union benefit Welsh patients and citizens in a number of ways. These include the use of the European Health Insurance Card system for individuals travelling overseas in the EU and access to healthcare for pensioners living within those countries. Welsh residents also are currently able to access planned medical treatment in another EU country via the S2 route, and, of course, patients can purchase healthcare in other countries and apply for reimbursement using the cross-border healthcare directive. These arrangements provide a great deal of security for a number of individuals. I think all of us, regardless of our party, would agree that we should look to continue reciprocal healthcare arrangements wherever possible.

Inevitably, however, in a 'no deal' Brexit, these rights will not be universally preserved—another argument why, as this Chamber has said repeatedly, a 'no deal' Brexit should be ruled out. The Bill seeks to provide the domestic legislation to give effect to these healthcare arrangements in the future, whether the UK leaves the EU with a deal or not. It can be considered as part of a suite of legislation that includes secondary legislation that would make transitional provision in the event of a 'no deal' exit.

This Bill provides powers to fund and arrange healthcare outside of the UK, to give effect to international healthcare arrangements, and to make provision for data sharing to enable a new reciprocal healthcare system to take place. These powers will be used to give effect to the new reciprocal agreements beyond any transitional arrangements. The powers can also be used to pay for overseas healthcare for individuals for humanitarian reasons where reciprocal agreements are not in place.

There are a number of complexities when considering the devolved aspects of reciprocal healthcare agreements. Whilst it is for the UK to negotiate international agreements, it is clear that the provision of healthcare is devolved. The UK Government has recognised this, and acknowledges the provisions within the Bill require the consent of this Assembly. As I've said, there has now been considerable progress over the course of our discussions with the UK Government, and I'm pleased that the UK Government tabled amendments to the Bill last week. These amendments address the concerns that I raised upon the introduction of the legislation. In particular, we pressed for the requirement that the UK Government would gain our consent to regulations made under section 2, as recommended by CLAC. However, as I explained when I appeared before the two committees, we concluded it would be equally if not more valuable to press for upstream engagement in the negotiations themselves, to ensure that agreements did not result in demands for unpalatable demands for change to legislation within devolved competence and unsighted implications for NHS Wales.

I am, therefore, pleased that in the memorandum of understanding, which underpins the Government amendments to the Bill, we have secured commitments that the UK Government will consult the Welsh Government on the negotiation of healthcare agreements, with a role in the initial scoping, through to the concluding of a draft agreement; be consulted on initial development and subsequent drafting of regulations under the Bill, which implement these agreements with the UK Government making every effort to proceed by consensus with devolved national Governments, but to not normally make regulations without securing agreement from Welsh Ministers beforehand. And if agreement is not possible, then an exchange of ministerial letters will be made available to both Houses of Parliament, setting out the position.

The Chair of the Constitutional and Legislative Affairs Committee—Mick Antoniw.

Thank you, Llywydd. We reported on the Welsh Government's legislative consent memorandum on the UK Government's Healthcare (International Arrangements) Bill in January 2019, making seven recommendations, and we are grateful to the Minister for his subsequent response to that report. And whilst we had no time to report on the supplementary memorandum, my remarks will reflect on its contents and the related correspondence from the Minister, including the Minister's letter that was received yesterday. But before I discuss the legislation itself, it is important to highlight our concerns that the Welsh Government was only made aware of the Bill just before its introduction to the UK Parliament. At a time of such constitutional upheaval, the need for Governments to work together in the spirit of trust and co-operation is, indeed, paramount.

The UK Government's initial approach on this Bill has not been as helpful as it could have been and reinforces the concerns that we raised in our 2018 report 'UK governance post-Brexit'. That being said, the letter from the Minister yesterday highlighted amendments tabled to the Bill by the UK Government, which sunset regulation-making powers in clause 2(1)(a) and 2(1)(b), and to remove the consequential Henry VIII power in clause 5(3). This is, indeed, a very positive development, and I welcome the proposed changes. And as the Minister has said, they do represent a very significant step forwards.

Turning now to our report on the LCM, our first recommendation sought a requirement on the face of the Bill for the Welsh Ministers' consent to be sought where UK Ministers exercise the functions of the Welsh Ministers in devolved areas. It's disappointing that the Welsh Government rejected our recommendation. It did so because it felt it would have greater influence over healthcare arrangements by being involved at an early stage of UK policy development. What the Bill will include is a duty to consult the Welsh Ministers, backed up by a memorandum of understanding. That memorandum of understanding provides that the UK Government will make every effort to proceed by consensus and with the devolved administrations, and that the UK Government will not normally make regulations without securing agreement from the devolved administrations. Ministerial letters should be exchanged where agreement cannot be reached and placed in both Houses of the UK Parliament, although it would appear not in the National Assembly.

We would therefore ask whether the Minister could confirm that the approach adopted could potentially allow the UK Ministers to act in devolved areas without agreement from the Welsh Government. If that is the case, and it were to happen, I would ask if the Minister could explain the implications for both policy and the Assembly's legislative competence in this area. It would also be helpful if the Minister could explain why it was not possible to secure an early engagement in the policy development and a statutory duty of consent. It would seem an appropriate safeguard to have both and be more in tune with the need for Governments to work together constructively as we leave the EU.

I also note there is no commitment, either in the memorandum of understanding or in the correspondence to us from the Minister, to provide the National Assembly with the exchange of correspondence, where agreement is not reached.

We also note that the Minister rejected the third recommendation in our report. It sought to ensure that the Welsh Ministers notify the National Assembly when they give consent to UK Ministers, exercising the functions of the Welsh Ministers in devolved areas. This is important to ensure that the National Assembly is in a position to undertake its scrutiny function, including the exercise of the relevant functions by UK Ministers in devolved areas. This recommendation was intended to reflect existing practice as regards consenting to regulations made under the European Union (Withdrawal) Act 2018. The recommendation was not dependent on that consent being a statutory obligation in the Act. It also applied where consent is provided through a non-statutory agreement. I'd ask the Minister, in his closing remarks, to confirm that it is the Welsh Government's intention to provide consent, in some form, to the UK Ministers acting in devolved areas and to commit to notifying the National Assembly when it provides that consent, as it currently does now under the 2018 Act; to commit to making available to the Assembly correspondence where agreement cannot be reached by the Welsh and UK Ministers; and to clarify over what time period he expects the arrangements to last. Our report also dealt with some important constitutional principles, namely the statutory instrument consent memorandum process. We also raised our concerns in our progress report on scrutinising Brexit regulations, and having received a response to that report yesterday, we will be considering this issue further over the coming weeks.

I rise to advise this Chamber to oppose this legislative consent motion, and I do not do that lightly. We do appreciate the urgency of the situation, and I think it's absolutely appropriate to acknowledge that the Minister has made some real progress in improving what was initially, but we believe still continues to be, a bad and dangerous piece of legislation.

I want to turn briefly, to start my contribution, to why we don't feel that the amendments set out in the Minister's letter yesterday fully address the concerns, though they do address some important concerns. They don't go far enough. The Government amendment to remove the power of the UK Government to repeal or revoke primary Welsh legislation is welcome, and so is the sunset clause, but the sunset clause in itself does not address the very wide scope of the power in clause 2, and a UK Government that was disposed to do so could do a considerable amount of damage in five years if they put their minds to it.

The Minister will be aware of the views of the House of Lords's Delegated Powers and Regulatory Reform Committee that the powers given to Ministers in this legislation—UK Ministers, that is—are excessive and out of proportion with the stated outcomes. I'll just remind the Chamber of some of the examples of that: there is no limit to the amount of payments that can be made; there is no limit on who can be funded worldwide; there is no limit on the type of healthcare that can be funded; regulations can confer functions to anyone anywhere—and I could continue. The Minister will be very well aware of these concerns.

We've raised concerns about the breadth of these powers and the powers that this Bill could give to UK Ministers to, for example, provide full market access to healthcare service companies from all over the world. Again, I'll quote from the House of Lords debate, where a Member raises concerns that the Minister's assurances missed the point that was made, and then asked again for clarification that the Minister needs to address.

'The scope and powers of this Bill enable the Secretary of State to arrange contracts with providers to our NHS from anywhere.'

Now, we cannot see what is in the new set of amendments that would protect Wales automatically from those potential uses of powers by the UK Government.

We welcome the amendments that the Minister has secured, but I want to specifically ask him if he's prepared to look at some of the other amendments that I understand have been tabled as backbench amendments. I'm advised that there are some backbench amendments tabled that could deal with this issue of that very broad scope of powers, effectively granting UK Ministers just the power to replicate existing EU arrangements. Surely that would be preferable to this very wide-ranging scope of powers, which the House of Lords's committee has stated, and we believe, goes beyond the stated aim of the Bill. I would urge the Minister to take a look at these and see if there's any capacity, even at this late stage, to further negotiate with the UK Government to get them to accept some of those amendments, so we bring this Bill back within the scope for which it was originally intended.

I briefly want to turn, before I close my remarks, to the issue of memorandums of understanding. So, for example, the memorandum of understanding shared with the health committee on 28 February—and, again, I'm grateful to the Minister for doing that—and annex 2, section c, paragraph 19:

'UK Government will make every effort'— who defines what 'every effort' might be?—

'in the making of regulations to which Section 5 of HIA Act applies to proceed on the basis of consensus'— well, I should jolly well hope so, too—

'and will not normally make regulations that have not been agreed with Ministers from the devolved administrations.'

Now, the Minister may be able to reassure me today that the amendments proposed will deal with that. I don't think that they fully do. I just would like us, Llywydd, to look at the word 'normal'. I mean, whatever these are, they are not normal times. Ministers in this place frequently tell us how shocking and dreadful the Conservative Government is, how they can't be relied on to do anything very much, and yet, in the next breath, they're saying that they believe on a case-by-case basis that they have achieved agreements with these shocking individuals that they feel they can rely on. Both things cannot be true. It cannot be possible that these people are badly disposed and are likely to behave improperly and that their memorandums of understanding can be trusted. I sincerely hope that I am wrong, and perhaps the Minister can provide us with further assurance about that process. [Interruption.] I'd be very happy to take an intervention if the Minister wishes to make one. Or, indeed, if anybody on her backbenches would like to make that in her place. 

But I do think we have to ask about what 'normally' means. Can we rely on memorandums of understanding that can be changed? I appreciate what the Minister said in the previous debate about the normal procedures around what is said in the Chamber of the House of Commons needing to stand, but I think we all know, as I say, that these times are not normal.

Now, obviously, most of us wish that we weren't in this position. Most of us wish that the Minister wasn't in the position of having to proceed as quickly with what is an important matter, and I would agree with him, of course, that we don't want to find ourselves in a situation where those reciprocal arrangements are not available. We do appreciate the urgency, and we also appreciate that there has been some movement in the right direction. I, for one, don't put much faith in memorandums of understanding. I prefer to put my faith in legally binding laws. These are very difficult circumstances, but difficult circumstances are not an excuse for making potentially bad law, and I urge the Chamber to reject.

The Minister to reply to the debate. Vaughan Gething. 

Thank you, Presiding Officer. I thank both Members for their contributions to the debate. The Chair of the Constitutional and Legislative Affairs Committee asked a series of highly detailed questions that I won't be able to properly answer at this point in time. I don't think I'd be able to do them justice. I will, however, write to the committee to pick up the points that are on the record to make sure that they are properly dealt with.

But it's worth reflecting that, alongside the memorandum of understanding, the amendment laid on 5 March puts on the face of the Bill that requirement for the Secretary of State to consult Welsh Ministers before making regulations under section 2 that contain provisions that are within the legislative competence of this place. The Bill has been amended to remove the power to amend, repeal or revoke primary legislation, including Acts or Measures of the National Assembly.

It is worth reminding ourselves that the Bill as originally laid secured the consent of Scottish Ministers. The reason why we're in a different position is because this Government took a different view, and we negotiated and secured real and material change that does better safeguard the position of not just this Government, but of every devolved national government within the United Kingdom. As Mick Antoniw referred to, the recently tabled amendments to introduce a sunset clause limit the power to make unilateral provision to five years after exit day, so the UK Government won't continue to be able to make regulations to give effect to healthcare agreements beyond this date.

I do need to try and address the tone and the tenor and some of the content of the remarks made by Helen Mary Jones, because I don't agree with her assessment that this Bill should be described as a bad and dangerous piece of legislation. It is a necessary piece of legislation for international reciprocal healthcare agreements to continue—those that Welsh citizens and others benefit from as we are today. The risk is that, if we are not in a position to do this, and the Bill is not passed, then if we leave without a deal at the end of March, our citizens that we're responsible for in other parts of Europe will not have their entitlement to reciprocal healthcare. It is a necessary piece of legislation, and the purpose of the Bill simply does not stretch—

Will the Minister take an intervention?

Let me finish this point. It does not stretch to all the scenarios of concern that were raised in the contribution by Helen Mary Jones. I don't want to return to being a lawyer again, but you do need to look at the purpose of the Bill while understanding its provisions and any action taken under it, especially when that counts as secondary legislation. I'll happily take the intervention.

So, do you dispute the view of the House of Lords committee that said that this clearly goes beyond—the drafting of the legislation, even with the amendments that you've mentioned—clearly goes beyond the stated intention of the legislation when it was first tabled? And do you not have any concerns about that?

Look, I'm not here to try and say this is a piece of perfect legislation. The choice we make is whether to give our consent for the legislation to go ahead given the impact that it will have on our citizens if we do consent, or do not. If I were drafting this piece of legislation it would look differently, and I know the House of Lords has had concerns about the scope of the legislation, and one of the amendments passed by the House of Lords today limits the scope to the wider European Economic Area rather than our wider international agreements. I would prefer that to be the end shape of the Bill, but even if it isn't, I still believe the right judgment is for the Assembly to consent to the Bill as it has been presented, because it does provide further safeguards for this place and our powers, and actually, much more importantly, it safeguards the positions of our citizens that we have responsibility for. I've previously made clear that the Welsh Government does not wish to block reciprocal healthcare arrangements. But we do need to be appropriately involved in the development of any future reciprocal healthcare agreements, and that has not happened up to this point in time. So, we have an agreement on enhancing our role in the future agreement and positing of reciprocal healthcare arrangements. And the legislative and the non-legislative assurance provided by the UK Government bring this Bill to a position where I can and do recommend that consent is given.

So, we've maintained a strong negotiating position with the UK Government that has resulted in positive amendments to the Bill and a memorandum of understanding that makes clear how we will be involved in the development of future healthcare agreements, and I do note for the Chamber that Scottish Ministers have indicated their support for the approach negotiated by this Government. Reciprocal healthcare agreements provide assurances to many individuals and it is right that the Welsh Government should play a positive and active role in ensuring that appropriate provision is in place for Welsh residents in the future, and I therefore ask Members to support the motion.

The proposal is to agree the motion. Does any Member object? [Objection.] I will defer voting until voting time. 

Voting deferred until voting time.