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Y Pwyllgor Iechyd, Gofal Cymdeithasol a Chwaraeon

Health, Social Care and Sport Committee

09/01/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd AM Cadeirydd y Pwyllgor
Committee Chair
Darren Millar AM Yn dirprwyo ar ran Angela Burns
Substitute for Angela Burns
Dawn Bowden AM
Helen Mary Jones AM
Jayne Bryant AM
Lynne Neagle AM
Rhianon Passmore AM

Y rhai eraill a oedd yn bresennol

Others in Attendance

Lyn Summers Llywodraeth Cymru
Welsh Government
Mari Williams Llywodraeth Cymru
Welsh Government
Vaughan Gething AM Y Gweinidog Iechyd a Gwasanaethau Cymdeithasol
Minister for Health and Social Services

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Bethan Kelham Dirprwy Glerc
Deputy Clerk
Claire Morris Clerc
Clerk
Katie Wyatt Cynghorydd Cyfreithiol
Legal Adviser
Philippa Watkins Ymchwilydd
Researcher
Tanwen Summers Ail Glerc
Second Clerk

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Dechreuodd y cyfarfod am 09:31.

The meeting began at 09:31.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introductions, apologies, substitutions and declarations of interest

Croeso i bawb i gyfarfod cyntaf y Pwyllgor Iechyd, Gofal Cymdeithasol a Chwaraeon o’r flwyddyn newydd hon. Blwyddyn newydd dda i bawb.

O dan eitem 1, rydw i'n estyn croeso i’m cyd-Aelodau ar y pwyllgor iechyd y bore yma. Yn bellach, a gaf i egluro, yn naturiol, fod y cyfarfod yma’n ddwyieithog? Gellir defnyddio clustffonau i glywed cyfieithu ar y pryd o’r Gymraeg i’r Saesneg ar sianel 1, neu i glywed cyfraniadau yn yr iaith wreiddiol yn well ar sianel 2. Os bydd yna larwm tân, dylem ni i gyd ddilyn cyfarwyddiadau’r tywyswyr.

Rydym ni wedi derbyn ymddiheuriadau gan Julie Morgan, ac rydw i'n wir yn estyn llongyfarchiadau iddi ar ei dyrchafiad, achos ni fydd Julie’n aelod bellach o’r pwyllgor yma am resymau da iawn iddi hi. Bydd Jayne Bryant yn dirprwyo heddiw, felly croeso, Jayne, yn ôl i’r pwyllgor iechyd. Rydym ni hefyd wedi derbyn ymddiheuriadau oddi wrth Neil Hamilton, ac nid oes neb yn dirprwyo ar ei ran. Hefyd, rydym ni wedi derbyn ymddiheuriadau ar ran Angela Burns, ac mae Darren Millar yma yn dirprwyo ar ei rhan hi.

Welcome, everyone, to the first meeting of the Health, Social Care and Sport Committee of the new year. Happy new year to you all.

Under item 1, I extend a welcome to my fellow Members on the health committee this morning. May I also explain, naturally, that this meeting is bilingual? You can use the headsets to hear simultaneous translation from Welsh to English on channel 1, or to hear contributions in the original language amplified on channel 2. In the event of a fire, we should all follow the directions of the ushers.

We've received apologies from Julie Morgan today, and I'd like to congratulate her on her promotion because Julie will no longer be a member of this committee now for very good reasons for her. Jayne Bryant willl be substituting today, so welcome back, Jayne, to this committee. We've received apologies from Neil Hamilton, and nobody is substituting for him. Also, we've received apologies from Angela Burns, and Darren Millar is here to substitute on her behalf.

2. Cynnig Cydsyniad Deddfwriaethol ar Fil Gofal Iechyd (Trefniadau Rhyngwladol): Sesiwn dystiolaeth gyda'r Gweinidog Iechyd a Gwasanaethau Cymdeithasol
2. Legislative Consent Motion on Healthcare (International Arrangements) Bill: Evidence session with the Minister for Health and Social Services

Felly, fe wnawn ni symud ymlaen i eitem 2, a sesiwn dystiolaeth ynglŷn â chynnig cydsyniad deddfwriaethol ar Fil Gofal Iechyd (Trefniadau Rhyngwladol). Rydym ni yma gyda’r Gweinidog Iechyd a Gwasanaethau Cymdeithasol. Bydd Aelodau’n ymwybodol o’r cefndir—bod y Pwyllgor Busnes wedi cyfeirio’r cynnig cydsyniad deddfwriaethol at y pwyllgor yma i’w ystyried. Wrth gwrs, fe gafodd y Mesur yma ei ystyried hefyd yn y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol ddydd Llun. Y dyddiad cau inni ar gyfer adrodd ydy 22 Ionawr, felly mae amser ychydig bach yn gyfyng. Ac mae amser ychydig bach yn gyfyng y bore yma hefyd, ond, yn naturiol, yn wastadol, rwy'n falch iawn i groesawu Vaughan Gething, y Gweinidog Iechyd a Gwasanaethau Cymdeithasol i’r cyfarfod. Bore da. Hefyd, Lyn Summers, pennaeth tîm cefnogi deddfwriaeth canolog Llywodraeth Cymru, a hefyd Mari Williams, cyfreithiwr y Llywodraeth. Croeso i’r tri ohonoch chi. Yn naturiol, mae Aelodau wedi bod yn darllen pethau mewn manylder dwys, ac felly, yn ôl ein traddodiad, awn ni’n syth i mewn i’r cwestiynau, ac mae’r cwestiwn cyntaf gyda Rhiannon Passmore.

So, we move on now to item 2, an evidence session relating to the legislative consent motion on the Healthcare (International Arrangements) Bill. We're here with the Minister for Health and Social Services. Members will be aware of the background—that the Business Committee has referred the legislative consent motion to this committee for consideration. The Bill was also considered by the Constitutional and Legislative Affairs Committee on Monday. The deadline for reporting is 22 January, so time is a little restricted. And time is restricted today as well, but, naturally, I'm very happy to welcome Vaughan Gething, who is the Minister for Health and Social Services, to the meeting. Good morning. Also, Lyn Summers, head of health and social services group central legislation support team, Welsh Government, and also Mari Williams, Government lawyer. Welcome to all three of you. Naturally, Members have read the information in great detail, so, as is customary, we'll go straight into questions, and the first is from Rhianon Passmore.

Diolch, Chair. Can you outline how the current reciprocal arrangements benefit Welsh patients, and what is the impact on the NHS in Wales?

Yes. Current reciprocal healthcare arrangements provide for treatment for citizens of member states in the European Union and the wider economic area, whether as visitors—so, your typical visitor on holiday with an EHIC, a European health insurance card, to entitle you to treatment on the same basis as a resident of whichever country you're visiting. There is, then, the possibility of accessing planned care in a different country. So, a number of you would have had, probably, correspondence from people, or seen this—that you can actually—with pre-authorisation, normally—have a medical procedure undertaken in a different country within the union or the wider economic area. And the third main plank of it is what's called the S1 form, so if you're ordinarily resident in another country, say, for example, you have decided to retire to sunny southern Europe, then you can still access care, treatment and support. Of course, the United Kingdom exports more people into the rest of the European Union; largely, people have chosen to do just that, and so their health and care needs are covered in that way.

So, for the NHS in Wales, we treat those people who are European Union citizens and there is an average payment made to health boards. Previously, we went through a process of paying for actual returns, but obviously there's an administrative burden to doing that. We moved, I think three or four years ago now, to paying on an average. But there is also a direct incentive paid to health boards from the UK Government for making claims. So, that's to try and make sure that the actual numbers of citizens who have EHIC cards being treated is actually provided—

09:35

So, to interject, Chair, if I may, in regard to actual costs and numbers in regard to Welsh patients treated abroad—you've already referenced that—have we got any direct data?

No. The system works between member states, so the United Kingdom pays other member states, and other member states pay the United Kingdom, and it's difficult sometimes actually understanding who that is. For example, we have about 1.2 million people with EHIC cards who are resident in Wales. I couldn't go through for you and tell you whether those people are citizens of different EU countries and the proportion of them, but 1.2 million people in a country the size of Wales—that's quite a lot of people who have an EHIC card. And more than that, I couldn't tell you how many people who were previously ordinarily resident in Wales have chosen to become ordinarily resident in a different European Union country. So, actually, I couldn't tell you and, actually, I don't think the UK Government could tell you to the person who that is. What we do know is: there is a reciprocal arrangement, we know lots of our citizens travel abroad and have potential healthcare needs that are covered by our current arrangement, and lots of our citizens have chosen to live in other European Union and wider economic area countries, and this provides for their basic health and care needs to be met.

Diolch, Gadeirydd. I think you've probably answered part of my question already, but can you just expand a little bit on your views, which you've previously expressed, about the benefits of the consistent UK-wide reciprocal arrangements and why you think that this particular Bill might be the best vehicle to ensure that continues?

I definitely think that the reciprocal healthcare arrangement is something that we would and should want to maintain and, actually, I don't think any of the four Governments of the United Kingdom want to try and unpick the arrangements. The certainty and the consistency of knowing that if you travel abroad, your costs will be covered, just as a citizen of that country, is a real positive. Now, there are challenges about whether, actually, you take out your own travel insurance, because there are some aspects of that that will be more than actually the basic healthcare cover that you would have as a citizen, but, actually, to then say you want to undo that, not just for people who travel abroad, but for people who live abroad, I think that's a real burden for individual citizens. We're better off pooling all of our risk to make sure that's consistent, both for citizens who visit our country and also for Welsh residents who choose to go and visit other countries on a short or long-term basis.

The challenge with the Bill, though, is not about the desirability of maintaining the system, it's actually the way in which the Bill seeks to take powers to maintain those arrangements. And you'll have seen from the correspondence that we have differences of agreement with the Bill published by the United Kingdom about whether, in the terms it sets out at present, it's the appropriate vehicle—I think it needs amendments—but in broad terms, we agree with the purpose of the Bill and we want to see a way to maintain those arrangements. 

So, you're thinking, in the future, post-EU withdrawal, we may be looking at slightly different arrangements to what's set out in this Bill, or do you think that this will carry us forward through post Brexit as well? 

If the United Kingdom leaves the European Union, we will need to have a different legislative footing to maintain reciprocal healthcare arrangements because if we leave without a deal, then all of those arrangements fall away straight away. If the Prime Minister's deal, or a variant of it is agreed, we'll have an extended transition period with those rights being maintained, but we'll still then need to agree a deal after that. Now, my view is it would make sense to have an arrangement with the whole European Union and the wider economic area. The UK Government's view is it would want to negotiate bilateral agreements with individual countries, and start with those countries that have the largest number of UK residents—so, you know, typically, Spain, Portugal and others. My personal view is that it would be sensible to have a broad agreement, not individual ones, particularly as we have a period of weeks to be able to do that if we are to leave without a deal. Now that, I think, doesn't affect the law—or the proposed Bill, rather, that is before us, because actually that's about needing to have powers to be able to do so, because, otherwise, the legal base of our arrangements will fall away. So, it's partly about no deal, but it is also, in any event, if there is an agreement reached with a transition period; we still need to have powers to be able to do that.

09:40

I just wanted to ask about the measurement that you mentioned earlier on and the incentive that is given by the UK Government to try to track precisely what the individual burden is, I suppose, to each health board of caring for residents of other countries. You said that there's some sort of incentive. What is that incentive? How does it work? I'm not familiar with it, you see; I just want to understand it a little bit better.

The incentive is so health boards report the EHIC use, because, quite often, health boards—. I mean, doctors have a different view than the civil service; they're there to treat people, and they're not there to necessarily gate-keep where a person is from—we know that's an issue. So, the incentive is there. So, they ask for EHICs, they report that statistic to the UK Government, so the UK Government can then claim the money back off the particular member state. That's what it's there for, because if they don't report the use of an EHIC, the UK Government can't reclaim those costs, so the costs would be borne by the health boards and the UK Government instead of the correct member state.

But you said earlier on, Minister, about this—. So, there's an averaging system. So, that's an average—.

As well as [correction: As well as the incentive scheme]. We, Welsh Government, pay health boards an average amount each year to cover anticipated use of EHIC byEU citizens.

I see. And presumably you get some sort of compensation from the UK Government, or some resource from the UK Government, in order to pay that average.

No, we don't get that back, because we don't pay abroad. It's a quid pro quo, so the UK Government meets the full costs of any UK citizen that accesses treatment abroad, which it reimburses. So, it's just—. It's been decided that the administrative cost of trying to work all this out would be greater than just keeping a system like that.

The detail is interesting, of course, Chair, but it doesn't affect the Bill in front of us. If you want detail on this, I'm happy to write to you if you have questions about the detail of how that works, but—

But it's interesting if there's a financial implication of anything that outworks as a result of this, isn't it?

Except that because the costs are covered by the member state, actually, the cost from the Welsh Government point of view isn't there. The challenge, actually, is whether we want to maintain reciprocal arrangements, and if there is an additional cost to NHS Wales from any future arrangements, and that's part of the correspondence between the Welsh Government and the UK Government.

So, to turn to some of the concerns, then, Minister, that you've expressed in the past about the Bill, you all know, obviously, that the appropriate Lords committee has said that they think the regulation powers in the Bill as it stands are too wide. Do you still share those concerns?

I'll try and be as consistent as I can, given that the Chair was in the other committee as well. The powers drawn are very, very wide. Now, the purpose of the Bill, as originally drafted and discussed, although we'll probably get on to the timing of that, is because we're set to leave the European Union, and the immediacy of a 'no deal', which is just weeks away, but in any event, if there is a deal with a transition period, there is still a limited period of time to put different arrangements in place. What the Bill actually does is it takes powers that are much broader than that—and in your note in part of the correspondence, the UK Government talks about taking powers now, because it may want to conclude different arrangements with different countries. Well, actually, I don't think that's appropriate—that's my view. This Bill is about us leaving the European Union and wanting to safeguard reciprocal healthcare arrangements that we currently enjoy that will fall away. So, I don't think it's appropriate to have that additional aspect to the Bill, but, in any event, the powers drawn are so broad about the powers UK Ministers will be able to take, and that's why we've had correspondence about either consent or about consultation together with an appropriate memorandum of understanding, and my view remains—no pun intended—that, unless we have those appropriate safeguards provided, then I would not recommend to the Assembly that legislative consent is given.

09:45

And that—. My second question—and I think you've partly covered that—is this issue about that the Bill, as it stands, doesn't insist that UK Ministers come back to Welsh Ministers for consent when they're making regulations, does it? And that's one of your—. And that continues to be—

Yes, and I set that out really clearly in correspondence—not just in correspondence but in telephone conversations with two different UK Ministers, and indeed officials in their conversations have been clear that that's the view of the Government. Now, we agree on the purpose of the Bill, and, as I said in the Constitutional and Legislative Affairs Committee, I think it's not a smart fight to pick when we actually agree that we want to maintain these arrangements. And it shouldn't, I think, be that difficult to find a way through that all of the Governments of the UK could agree is the sensible way to maintain those arrangements for our citizens.

We've seen the correspondence, and certainly from my perspective your position seems entirely reasonable, Minister, but, obviously, you're having, as you say, other conversations other than what's down on paper—phone conversations and so on. Are you able, if it's appropriate, to give us an indication about how those negotiations are going? Do you feel they're beginning to understand your perspective about not wanting these powers to be so broad that it could include other countries other than the European ones where there are reciprocal arrangements, and now the issues around needing Welsh Government consent? Do you think they're listening, I suppose, would be the—?

Well, the tone of the conversation of the UK Ministers has been pretty pragmatic. They, in conversation, have said they want to get to a point where we can agree, and I have been upfront about saying that I want to find a way for us to agree rather than I want to find a way for us to have a public row for the sake of it. There's no point doing that because, if we're going to leave the European Union within a matter of weeks, then these are real issues for our citizens, and I do not want to be in a position where citizens from Wales or any other part of the UK find their current entitlements disappear because we haven't managed to agree on a way to try and maintain them. So, I think it's entirely in all of our interests, and it's entirely possible, but that can't then take place on the basis that powers are held centrally by the UK on such a broad basis.

Now, the tone of the conversation with UK Ministers has not been, 'Well, you're just wrong and this is what's going to happen.' But, actually, we still need to see that come through, not just in the mood music but in amendments that will be tabled to give us that comfort. Now, obviously, if amendments are tabled, then we may come back with a different view about whether we need either a different LCM or where there are advice changes on whether an LCM should be agreed or not. So, the sooner we see amendments, the sooner we see a draft memorandum of understanding, the better.

Thank you, Chair. I think you've covered my first point on the reciprocal healthcare arrangements in the future, and I think you're confident that you're doing all you can at the moment to feed into anything. The second point I wanted to raise is that we've seen the correspondence from the Minister to the UK Department of Health and Social Care in October, which described your surprise and disappointment at receiving late notice of the Bill's introduction. Have you had assurances from the UK Government that they will engage proactively on this in future? And are you also confident that Welsh Government is doing everything it can to be proactive on this?

Yes, we are definitely proactive, both Ministers and officials, and that's part of the reason for the surprise and disappointment, because officials do talk to each other. For a number of months, officials within the UK nations have been talking about potential consequences for health and care services. That's why it really was disappointing to have this Bill essentially sprung on us with hardly any notice. That's why the LCM process started slightly later than it would normally have done for this Assembly. So, that's a point that we've made. It's not a point that I've laboured in correspondence. Having made the point in initial correspondence, having made that point in conversation, I'm actually rather keener on trying to get on and deal with the issue, but making the point and making it very clear that this isn't the way this is supposed to work. And the problem is that it just provides a reason to have conflicts rather than to try and find a way through in very practical terms. So, it's in the UK Government's interest not to do this, and we've made the point. To be fair, it's been recognised. Both in telephone conversations and, indeed, in the correspondence, there's a recognition, I think, that it would have been preferable if it had not been done this way. It's about more than just the conversations between officials. I've written, and I know the Scottish Government's health Secretary has written as well, saying that health Ministers across the UK should actually meet to talk about the practical challenges that we will face. Regardless of our differing political perspectives, there are real practical challenges for us to resolve in a very short period of time. And I'll remake that offer in correspondence again, because I'll continue to have disagreements with Matt Hancock, and I'm sure I'll have disagreements from time to time with Jeane Freeman in Scotland as well, but this is an extraordinary period of time we're living through, and I'd much rather try and get this right to safeguard the interests of citizens across the UK. 

09:50

Can I just ask, in terms of engagement that you might have had with the wider health stakeholders and different organisations, has there been any discussion with them regarding this situation and the Welsh Government's position on it? 

We have a Brexit stakeholder group across health and social care, and I'm actually seeing them on Thursday. And I'm sure it'll come up in conversation there. We've mentioned that we are in this position. I've had no concerns raised with me by any stakeholder at all about our position. You wouldn't necessarily expect the NHS Confederation to say, 'We disagree with you on the drafting challenges around this Bill'. They actually, though, want to make sure that there are arrangements that are clear, and they understand what their role and responsibility is, and they're going to be able to continue to see and treat citizens. Obviously, as individuals, they'll also have concerns themselves about travelling with their own families too. So, I wouldn't expect the concerns we're discussing today about how the Bill's been presented, the timing of it, the conversation we've had on the drafting of it, to be something that those stakeholders themselves particularly reference; they're rather more concerned about some of the broader challenges, especially of no deal.  

But you're engaging with them, and you're going to have further discussions with them this week about the UK Government's approach, or the proposed approach, in terms of the consent.  

I'd be surprised if they had a particular view. If they do, I'll of course listen to it. I think they'd be rather more interested in whether the UK Government, for example, intends to try and have a future arrangement with all of the countries or to try and arrange bilateral negotiations. If you think about no deal, if that were to happen, to try and arrange to have bilateral arrangements in place with other EU or wider economic area countries within a matter of weeks is a huge challenge in itself, but it's also about the willingness of countries to negotiate individually as well. I struggle to see why the state of Spain would undertake an individual negotiation with the United Kingdom, as opposed to having a joint negotiation with its other European Union partners as to the deal and the terms that it would have available. I struggle to see the logic of that, but, even if they would, there's a period of just a few weeks to do so.  

Very briefly. In regard to the probability or otherwise of a 'no deal' scenario facing us, what is your biggest concern, then, in regard to that timescale for those that are living abroad? 

In terms of no deal on this particular issue of reciprocal healthcare, the biggest issue is those people who are living abroad and, actually, that all of the current rights and entitlements fall away. So, essentially, they're relying on the goodwill of whichever member state they're resident in, and that is a cause of real and understandable anxiety for those people who are living abroad. So, it is that real cliff edge of a no deal, and I think it is a bold but I think unrealistic assumption that there would be individual agreements with individual countries in place by the end of March this year. I just don't see how that's credible. And that isn't a party point of view—that's just a very practical point of view about how long it takes to actually make these arrangements work. And, you know, if you spoke to people in the House of Commons or the House of Lords in all parties, I think they'd probably share the sceptical view about the practical reality of doing this. 

So, can I ask, then—obviously we're all in a state of fluidity and flux around this—

—what information is actually going out to those of our citizens living abroad, or is it just a matter of that we're all in the same boat of waiting and seeing? Because it must be a huge concern.

09:55

Yes. And it's actually a responsibility of the UK Government, because it's member state to member state. Now, we're not aware that there's been any direct communication, and the challenge, of course, is, if you try and communicate with those people, (a) you need to know where they are, how to get to them, and what on earth are you going to say? Would you really say, 'We're in this position; we don't really know what we want, but we'll let you know in a few weeks' time', when, actually, I think that would probably promote more anxiety than not? So, getting an Act passed to have powers to maintain those arrangements I think is the right thing to do. But I think it does then require a more sensible approach to how to do that. To remind you, the Bill does give the UK Government the power to fund individuals abroad for healthcare, should no agreement be reached, but that in itself would be a significant undertaking, and just the administrative burden of doing so—. And, again, that comes back to that we currently have pooled our arrangements across a large number of European countries, providing certainty and ease of access for citizens, and, equally, for member states to understand their obligations. To exchange that for an individual system for individual citizens is practically hazardous and costly and not my preference. 

Yes. The UK Government has said that there are expected to be no additional costs to the devolved administrations as a result of this Bill, but the Welsh Government is seeking further assurances as to how that will be delivered on. Have you had any further assurances from the UK Government?

In the initial correspondence, having raised it, we had a simple reassurance that there would be no further costs. We then had a trimming back in the position on, I think, the last correspondence from James O'Shaughnessy, which suggested that, if there were additional costs, they would be for us to cover, depending on what the new arrangements are. Now, the challenge in all of this is that, actually, member state to member state, that's what happens, and there aren't costs for us in running that system. So, the challenge then is, if the UK agree different arrangements, either with a block of countries or an individual country, and there was a cost to the health service in Wales, I think they're now saying, 'You'd be responsible for that.' Now, that's exactly the assurance that I was looking for, to say that that wouldn't be the case. So, having thought that we'd had certainty, I think we're in a less certain position. And it's also why we've gone back and said, 'If we're going to have new arrangements, then we want to be able to be part of that conversation at an earlier point in time.' In exactly the same way that the Welsh Government, and other Governments within the UK, have a conversation about a negotiating mandate with pharmaceutical companies before the UK Government concludes and goes through those negotiations, we can have a similar arrangement here, where we understand what the negotiating mandate is, we understand what the impact is on our position, before any agreement is reached rather than being told afterwards, 'We've negotiated a deal; these are now your new obligations and here is the cost to you as well.'

So, what you're saying is the situation has deteriorated, then, rather than got better, in terms of assurances. 

Yes. The paragraph that referred to additional costs has raised a concern that we thought wouldn't be there. And there's a practical challenge, because, actually, I thought that James O'Shaughnessy had typically been very pragmatic and wanted to get things done—very much, 'Let's make it work'— and, unfortunately, he's left the Government. It's a personal matter, and that's unfortunate, because I actually think we'd have had more confidence about working with someone who I think really did understand where we we're coming from and wanted to get it done. I know Stephen Hammond is covering the brief at present, but I don't think he's going to be the permanent person with responsibility. So, as soon as that person is revealed, we can then continue to press our concerns and look for what I think is a straightforward assurance. 

Well, it's my job to be honest with you about these things. [Laughter.]

Well, okay, just to tie things up, and just to make sure that things are clear in my mind, as Chair, trying to draw up a report here, obviously, just to bring the comments together, the current reciprocal health arrangements are a matter for the UK, but, obviously, health is devolved. That's a statement of the obvious. Now, if this Bill was a simple transfer of functions—transfer of the current functions—you would be content to provide legislative consent for that, I take it from your comments. The area of your unease is the breadth of new powers as outlined in clause 2, I take it, which I agree with you, and also—. So, in terms of the fact that we're trying to move—or you're certainly trying to move—towards a situation where you can give legislative consent to this Bill, what amendments would you like to see, then, that would allow you to suggest to the Assembly here that we do provide legislative consent? Because, I personally—and probably my party—have issues about the breadth, and we would need a lot of convincing as regards the legislative consent required. So, what amendments would swap you over to agreeing legislative consent?

10:00

Well, I think resolving the territorial issue would be helpful, being clear about the basis on which regulation-making powers could be used. At present, it's proposed to be negative—I think that's problematic. We've also been clear in our correspondence that, on the face of the Bill, there either needs to be a consenting power to those areas that affect our devolved responsibilities, or a responsibility to consult Welsh Ministers, together with a satisfactory memorandum of understanding that makes clear that the Welsh Government will be involved in an early stage, before any agreements are concluded, so that we don't have new agreements concluded that provide different arrangements, with potentially different cost arrangements, that we are then essentially lumbered with after the event. Now, that shouldn't be difficult to achieve, because, actually, every Government within the United Kingdom wants to see these arrangements continue. So, it really is how we get into a can-do position. If we don't get a satisfactory memorandum of understanding, then I would go back to them saying, 'Then, you need consent.' And unless that consent of Welsh Ministers would be provided in those circumstances, then I don't think I could recommend to the Assembly to give its legislative consent. There are two potential formulations to do so, that are set out in correspondence, and that remains the position of the Welsh Government.

And can I just check a matter that we raised in the Constitutional and Legislative Affairs Committee the other day, as regards clause 5 of this Bill? That's the bit about clause 5 requiring Assembly consent. The UK Government's position is that it doesn't require the Assembly's consent. Your position as Welsh Government is that it does require the Assembly's consent. How is that going to be evened out, because there seems to be a difference of opinion on whether the Assembly's consent is required or not? Actually, I would favour that we do need the Assembly's consent, obviously.

Our current process, and the Standing Orders of this place are that if a UK Minister, by secondary legislation, is seeking to amend powers in primary legislation—whether that's legacy Acts like the National Health Service Act 2006, for example, or whether those are measures or Acts passed by the Assembly—then there is a statutory instrument consent motion required. That means that the Assembly itself has to agree to that. Now, the Welsh Government would make a recommendation, but the Assembly would have to decide whether to do so. As ever, though, it is possible for the UK Parliament to override a determination made in this place. But to give powers in primary legislation for that to take place, without the consent of this place being required, I think is not a step that we would encourage or recommend that you take, unless we have those satisfactory safeguards about what that actually means, and a system that we all want to maintain. So, we come back to a requirement for consent on the face of the Bill in clause 2, or consultation with a satisfactory memorandum.

Okay. Obviously, the report of this committee is going to reflect these discussions, and obviously the situation is still in a state of flux, then, really, as regards your telephone conversations back and forth with—

Well, look, we'll be writing again to the UK Government to set out our position and to make clear that we can't be in a position to recommend to the Assembly that consent be given, unless we're in a place to have more assurance than a telephone conversation or an exchange of correspondence. We need to see amendments that are due to be laid; we need to see the detail of those, otherwise we're not going to recommend that consent be given on the basis that, 'We trust you that everything will be okay.' Because what we have at present is the Bill in front of us, and the Bill in front of us is not something that I would recommend that the Assembly gives its consent to.

Can I just unpick a little bit more—that's really useful, but I want to unpick a little bit more the difference between consultation with a memorandum of understanding and the requirement for consent on the face of the Bill. Now, I think, from my perspective, you as a Government, and us as an Assembly, would be able to have more confidence if you've got a requirement for consent on the face of the Bill than a memorandum of understanding. Because memorandums of understanding can get renegotiated, can't they, and they're a little bit more dependent on goodwill and—? I suppose, what I'm saying is that it seems to me that we would all be in a better position if the Bill said that there had to be consent from Welsh Government, not that you had to be consulted. And what you've expressed to us is kind of an either/or, and I'm just trying to unpick whether you would have a preference—if you could choose, because obviously this is a matter of a negotiation, would you have a preference, and if so, which one would it be?

10:05

The consenting power provides a veto, of course, but the reality is that the UK Government has a responsibility in international matters, including international arrangements. We have responsibilities in this place to respect international arrangements. The challenge also with the consenting power is that you get told at the end, 'This is what we're about to agree', and that's it. Whereas, with the memorandum, what we've asked for is to be involved at an earlier stage, so that we don't just get told at the end of a process, 'Now, say "yes" or "no'' '—we'll actually have engagement at an earlier stage and an understanding at an earlier stage about what the potential of any agreement is.

Now, at present, we don't have any formalised arrangement for that to take place on these matters. I think it would be a step forward for us to have an earlier engagement, Government to Government, about potential new arrangements. I think that is worth doing. And the point about a memorandum is it would be publicly available, it would be certain, in the sense that it would be written down, as opposed to a conversation between Ministers—

Well, yes, and there's more certainty in that sense. It's the honest truth about the business of politics, in that if you have a memorandum that is public and one party wants to change it, and particularly if it wants to change it to make sure that, 'Actually, I don't need to be worried about you anymore', that's a practical issue. But, again, it's hard to make out that that's really about the best interests of citizens. Whereas, I think you can say that it's in the best interest of citizens in every nation of the UK that we maintain our current arrangements. So, it is about being practical and 'can do' in what are extraordinary circumstances. If we don't get that earlier engagement, then the consent power is where we'll end up being.

So, ideally, what you want is both: you want consultation and then a consent issue at the end. We're talking here about the moon on a stick, possibly, but—

Well, yes, and I think, moon on a stick and practical reality, and I think we'd get one not the other.

Yes. And, like I said, for all of the dancing around the issues about what's drafted, we shouldn't lose sight of the fact that we agree that these arrangements are ones we want to maintain, and it's about how we make those work, and how we maintain them without surrendering wider issues of principle, and that's the balance that we're engaged in.

Just a final quick point, because I notice from Lord O'Shaughnessy's letter of 19 December that he was delighted that you had consented to giving legislative consent. I take it that there's something in writing somewhere to reflect your opinion these days that we haven't quite got that far and that his delight was premature.

Yes, that's correspondence that we were sending to his predecessor. But it's odd that he's saying he's delighted to hear that we're prepared to recommend consent to the Bill. Well, I'm prepared to recommend consent if a number of other issues are resolved. He then goes on to talk about those issues, with regard to the memorandum of understanding:

'we are very happy to provide you with assurances that the Welsh Government'

will be meaningfully consulted. But, actually, we need to see those. Without a draft of that, we're not going to be able to make progress. I'm genuinely not trying to be difficult about this; I'm trying to be practical about it, but if they don't come forward with that, and if all we have is that correspondence, then, we're not in a position to agree. And, as I said earlier in this committee and in CLAC as well, I don't think that's a particularly smart fight for the UK Government to pick.

If I may very succinctly, then, try—. I'm very concerned, obviously, in terms of our citizens abroad, who may not be interested in what's on the face of the Bill but may be facing medical treatment as we go through the next couple of weeks and months ahead. So, in that regard, in your conversations with the UK Government, I do presume that you'll be having those conversations about what communications we're going to be having for our citizens abroad, who really don't care about what's on the face of the Bill but will be extremely concerned about this next period of time.

That's been part of the conversation between officials about the practical side of—whatever happens—how you make sure that citizens within the UK who are ordinarily resident in other countries have an idea about what this means. The ideal is that you don't need to tell them anything because you maintain their current arrangements. 

10:10

Right, thank you for that. That's the end of the questioning. Obviously, it's a developing scene, and we'd be grateful for a viewing of any correspondence, just to inform our report, really.

I'm happy to confirm, Chair, that if there is any material update, then I'll make sure that this committee and your colleague committee are informed. 

Great. Thank you very much. 

Diolch yn fawr am eich presenoldeb, a diolch yn fawr hefyd am ateb y cwestiynau mewn ffordd mor raenus y bore yma. Mi fyddwch chi'n derbyn trawsgrifiad o'r trafodaethau i wneud yn siŵr ein bod ni wedi cofnodi pethau yn iawn. Gyda hynny, diolch yn fawr iawn i chi.

Thank you very much for attending, and thank you also for answering the questions so well. You will receive a transcript of the proceedings to make sure that we have noted things correctly. With those few words, thank you very much.

3. Papurau i’w nodi
3. Paper(s) to note

Symudwn ymlaen at eitem 3 nawr, i'm cyd-Aelodau, a phapurau i'w nodi. Mi fyddwch wedi darllen mewn manylder y llythyr gan Lywodraeth Cymru ynghylch isafbris am alcohol; y llythyr gan Gadeirydd y Pwyllgor Materion Allanol a Deddfwriaeth Ychwanegol ar baratoi ar gyfer Brexit; y llythyr gan Lywodraeth Cymru at Gadeirydd y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol; llythyr arall gan Lywodraeth Cymru at y grŵp trawsbleidiol ar hosbisau a gofal lliniarol; y llythyr gan y grŵp trawsbleidiol ar hosbisau at Lywodraeth Cymru; a hefyd y llythyr gan Lywodraeth Cymru ynglŷn ag arolwg cyflwr y genedl Chwaraeon Cymru 2018. Rydym ni i gyd yn nodi hynny. A oes unrhyw fater sydd yn codi o'r llythyrau yna? A yw pawb yn hapus? Diolch yn fawr. 

Moving on to item 3, my fellow Members, and papers to note. You will have read in detail the letter from the Welsh Government regarding the minimum price for alcohol; a letter from the Chair of the External Affairs and Additional Legislation Committee on preparing for Brexit; a letter from the Welsh Government to the Chair of the Constitutional and Legislative Affairs Committee; another letter to the cross-party group on hospices and palliative care from Welsh Government; and a letter from the cross-party group on hospices and palliative care to Welsh Government; and also the letter from the Welsh Government regarding the Sport Wales state of the nation 2018 survey. Do we all note those? Any issues arising from those letters? Is everybody content? Thank you very much.

4. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod hwn
4. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of this meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

Symudwn ymlaen at eitem 4 a'r cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod. Pawb yn gytûn? Diolch yn fawr. Awn ni mewn i sesiwn breifat nawr.

Therefore, moving on to item 4 and a motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting. All content? All agreed? Thank you very much. We'll go into private session now. 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 10:11.

Motion agreed.

The public part of the meeting ended at 10:11.

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