Professor Tamara
Hervey, University of Sheffield
What – if any – entitlements to healthcare are covered by
the EU-UK
Trade and Cooperation Agreement, agreed in principle on 24 December 2020?
(For an overview of the agreement as a whole, see Steve Peers’ Twitter
thread and the overview on this blog). (Update: later blog posts cover human rights, dispute settlement and environment and climate change in the Brexit deal). (This blog post was updated April 28 2021 to refer also to the final Article numbers of the TCA; it also retains references to the original numbering for convenience).
Introduction
If there are any, they will be
found in the provisions on social security coordination (Heading Four: Social
security coordination and visas for short-term visits). This is the equivalent
of – but, as we will see, in many respects a weak equivalent of – the provisions
of EU law on social security coordination. On the other hand, these are not
‘ordinary trade agreement’ provisions: there’s nothing like this in CETA
for instance.
Those provisions of EU law
include access to healthcare for EU citizens, and their families (irrespective
of citizenship), who are resident in a Member State other than the ‘competent
state’ for the purposes of social security coverage, and also access to
healthcare necessary during a ‘stay’ (a short-term visit, not establishing a
new place of residence) in another Member State. It is this latter provision
that is covered by the European Health Insurance Card (EHIC) scheme.
Many people want to know whether
the EHIC scheme or a version of it will continue. For many people, especially
elderly people, private health insurance for travel is unaffordable
(health insurance companies take
EHIC into account when calculating premiums) and in some cases not
available. For people who have been accustomed to regularly visiting family or
friends in the EU or UK, EHIC or not will make a significant difference to how
they live their lives after end December 2020.
But in order to answer that
question, I need to work through the legal text methodically, and that is what
this blog does. There are multiple parts of the legal text that apply to the
coordination of social security: a chapter in the main text, a Protocol, and
several Annexes. I am setting out my reasoning step by step so that others can
check it.
Interpretation and enforcement
The wording of the parts of the
Agreement on social security coordination is complex, hard to follow, and
likely to be subject to disagreement. The analysis that follows is my
best-attempt on a first take: I may be wrong. In some respects, the wording of
the Agreement is also opaque: in part this is because the relevant equivalent
provisions of EU law and of the Withdrawal Agreement, on which this part of the
Agreement draws, are also opaque. (Remember that the Withdrawal Agreement remains
in force separately, including its provisions on EU citizens in the UK and UK
citizens in the EU, discussed here).
That is why I’m starting this analysis
with some words on interpretation and enforcement of the parts of the Agreement
on social security coordination.
The Preamble to the Agreement
recognises that social security coordination is important to human beings, not
just those who are migrating as ‘economic entities’ (providing services, for
example), but also their families. The Preamble also recognises that social
security coordination applies not just to people who move between the UK and
the EU to reside, but also to stay:
Preamble: “RECOGNISING
the importance of the coordination of social security rights enjoyed by persons
moving between the Parties to work, to stay or to reside, as well as the rights
enjoyed by their family members and survivors,”
Provisions of the Preamble of an
international agreement are an important reference point when it comes to
interpretation of that agreement. Interpretation of the EU-UK Trade Agreement
(‘the Agreement’) is to be in accordance with international law (not EU or UK
law). This approach includes taking account of the context of the legal text,
and the ‘object and purpose’ of the Agreement as a whole. It is possible – and
perhaps in the context of the social security coordination rules, likely – that
the interpretation of the provisions of the Agreement on social security
coordination will differ between the UK and the EU Member States. In the
context of this Agreement, there is nothing like the Court of Justice of the EU,
or the EFTA Court, to seek to prevent such divergent interpretation:
TITLE II:
PRINCIPLES OF INTERPRETATION AND DEFINITIONS
Article 4 (originally COMPROV.13): Public international law
1. The
provisions of this Agreement and any supplementing agreement shall be
interpreted in good faith in accordance with their ordinary meaning in their
context and in light of the object and purpose of the agreement in accordance
with customary rules of interpretation of public international law, including
those codified in the Vienna Convention on the Law of Treaties, done at Vienna
on 23 May 1969.
2. For greater
certainty, neither this Agreement nor any supplementing agreement establishes
an obligation to interpret their provisions in accordance with the domestic law
of either Party.
3. For greater
certainty, an interpretation of this Agreement or any supplementing agreement
given by the courts of either Party shall not be binding on the courts of the other
Party.
The agreement will, however, be
interpreted by the courts in the UK and the EU separately, and is subject to
the treaty’s dispute settlement process (as noted below).
The EU Member States and the UK
are obliged to ‘coordinate’ their social security systems, in accordance with
the Protocol on Social Security Coordination. The object and purpose of this
coordination is ‘in order to secure the social security entitlements of the
persons covered therein’ (Article 488, previously Ch.SSC.1).
This is one of the few parts of
the Agreement that has individual human beings as its focus. In general, the
Agreement does not confer rights or impose obligations on human beings or legal
persons. There is no provision for directly invoking the Agreement in domestic
law. The Agreement is an instrument of international law, conferring
obligations on the Parties to the Agreement (the EU, its Member States and the
UK). It is totally different to EU law in this regard. It is also totally
different to the Withdrawal Agreement, which includes a significant number of
citizens’ rights provisions, and special measures for its enforcement.
Article 5 (originally COMPROV.16): Private rights
1. Without
prejudice to Article SSC.67 of the Protocol on social security coordination (originally MOBI.SSC.67) and with the
exception, with regard to the Union, of Part Three of this Agreement, nothing in this Agreement or any supplementing agreement
shall be construed as conferring rights or imposing obligations on persons
other than those created between the Parties under public international law,
nor as permitting this Agreement or any supplementing agreement to be directly
invoked in the domestic legal systems of the Parties.
2. A Party shall
not provide for a right of action under its law against the other Party on the
ground that the other Party has acted in breach of this Agreement or any
supplementing agreement.
The social security rights under
the Agreement must be protected by each Party’s domestic legal order. The
Parties have agreed that human beings (and companies) must be permitted, by
domestic law (not by the Agreement itself) to invoke the provisions of the
Agreement before domestic courts, tribunals and administrative authorities, and
thus to seek ‘adequate and timely’ remedies for any breach. The word ‘and’
suggests that courts and tribunals must be included in the arrangements made
for enforcing social security coordination rights under the Agreement, and that
only providing for an administrative process, such as Ombudsman or other
complaints process, would not be compliant with the Agreement.
TITLE V: FINAL
PROVISIONS
Article
SSC.67: Protection of individual rights
1. The Parties
shall ensure in accordance with their domestic legal orders that the provisions
of the Protocol on Social Security Coordination have the force of law, either
directly or through domestic legislation giving effect to these provisions, so
that legal or natural persons can invoke those provisions before domestic
courts, tribunals and administrative authorities.
2. The Parties
shall ensure the means for legal and natural persons to effectively protect
their rights under this Protocol, such as the possibility to address complaints
to administrative bodies or to bring legal action before a competent court or
tribunal in an appropriate judicial procedure, in order to seek an adequate and
timely remedy.
In the UK, such a process for
protection of individual rights is likely to be through the Social Security and
Child Support Tribunals, in the first instance, with appeal to the Upper
Tribunal (Administrative Appeals Chamber). Note that the draft
UK bill giving effect to the TCA simply copies its social security
provisions into domestic law (clause 26).
Who is covered?
The Protocol on Social Security
Coordination applies only to ‘situations arising between one or more Member
States of the Union and the United Kingdom’ (Article 490(1), previously Ch.SSC.3 (1)). People whose
situations are confined in all respects to either the UK or the EU Member
States fall outside the scope of the Protocol (Article 490(2), previously Ch.SSC.3 (2)). There is no
further definition of this scope rule. Do I fall within the scope of the
Protocol if I visit the EU from the UK? If I’m providing a service under the
Agreement’s provisions on services (eg Articles 140-143, previously SERVIN 4.1, 4.2, 4.3, 4.4, on performance
of economic activities through the entry and temporary stay in the territory of
the EU/UK of natural persons of the UK/EU, who are business visitors for
establishment purposes, contractual service suppliers, independent
professionals, intra-corporate transferees and short-term business visitors),
then it would seem obvious that I fall within the scope of the Protocol.
Equally, I would argue that if I am visiting the UK from the EU or the EU from
the UK, as a tourist, or for other non-economic reason (eg to visit family or
friends), on the basis of the visa-free travel provided for under the Agreement
(Article 492, previously VSTV.1), I also fall within its scope.
But this looks suspiciously like
a continuation of aspects of free movement of persons, an inseverable part of
the disciplines of the internal market, according to the EU’s negotiating
position. My counter-argument to that position is that the coordination of
social security, while linked to the internal market as it supports free
movement of persons in practice, is not an integral part of harmonised internal
market law in the way that the EU law provisions on entry, residence or
non-discrimination in employment or self-employment rights are. This
interpretation is supported by the fact that the Agreement includes provisions
on entitlement to social security benefits (healthcare under a national health
system) during a stay in the UK/an EU Member State (see further below).
The definition of who is covered
by the Protocol on Social Security Coordination is based on the EU law on
coordination of social security: people who are ‘subject to’ the social
security legislation of one or more States (the UK, EU Member States), their
families and their survivors (Article SSC.2 of the Protocol). Curiously,
‘subject to’ is not further defined, either in this Agreement, or in the
Withdrawal Agreement, or in EU Law. In many situations, being ‘subject to’
social security legislation will be obvious: if one is paying social security
contributions (eg for a pension), or receiving benefits (eg for invalidity or
unemployment), then one is obviously ‘subject to’ the legislation. But in other
situations, it is less obvious. Is someone who contends that they fall within
the scope of the relevant social security rules ‘subject to’ those rules? The
Agreement includes some provision on what happens if there is disagreement
about whether someone falls within its scope (see below).
The Agreement further specifies
that, in principle, the Protocol on Social Security Coordination applies only
to people who are lawful residents of the UK or an EU Member State (Article 489, previously Ch.SSC.2 in
the main Agreement). But this rule does not affect ‘entitlements to cash
benefits which relate to previous periods of legal residence of persons covered
by Article SSC.2’). So someone might no longer be lawfully resident in the EU
or UK, but still fall within the scope of who is covered by this part of the
Agreement, for example if they are entitled to pension benefits under the
Agreement, but live outside of the EU and UK.
What is covered?: General rules
The Protocol on Social Security
Coordination covers all the main branches of social security that are covered
by EU law and by the Withdrawal Agreement. These include ‘sickness benefits’
(Article SSC.3 (1) (a)) (in cash or in kind) – that is, medical treatment. Like
in EU law and the Withdrawal Agreement, medical assistance is not covered
(Article SSC.2 (4) (b)). Neither is voluntary social insurance, unless it is
the only social insurance scheme for the particular branch of social security
in the relevant State (Article SSC.13). Neither are ‘assisted conception
services’ (Article SSC.3 (4) (e)), defined as ‘any medical, surgical or
obstetric services provided for the purpose of assisting a person to carry a
child’ (Article SSC.1 (c)). Just to be clear, Article SSC.5 explicitly excludes
the matters listed in Article SSC.3 (4) from the general non-discrimination
principle (Article SSC.5).
EU Member States and the UK may
charge a health fee as part of an application to enter, stay, work or reside in
that State (Ch.SSC.4). But given that, at least until due notification is
given, and if possible at least 3 months before a requirement for visa for a a
short-term visit take effect, visa-free travel for short term visits applies between
the UK and EU Member States (Article VSTV.1), I think that this provision must
apply in practice, at least in the short term, only to applications for
residence or work permits, not for visitor entry or short-term visits.
The general rules (and there are
exceptions) for the Protocol are that (Article SSC.4) social security
coordination rules are on the basis of non-discrimination between Member States
of the EU. However, this rule is without prejudice to the Common Travel Area
arrangements between the United Kingdom and the Republic of Ireland. To access
Irish state healthcare, UK nationals need show either an EHIC, or proof of
their UK residence. This continuation of the existing rules from 1 January 2021
is confirmed in the UK government’s website.
In general (again there are
exceptions), the people who are covered by the Protocol enjoy the same benefits
(and are subject to the same obligations) as the nationals of the relevant
State (Article SSC.5). In general, the Protocol applies a principle of ‘equal
treatment of benefits, income, facts or events’ (Article SSC.6).
There are two key aspects to
this. First, if receipt of social security benefits (or income) has certain
legal effects in one State, that State must also recognise equivalent benefits
(or income) acquired under the legislation of another state. Second, where
legal effects flow from facts or events taking place in one State, that State
must take into account ‘like facts or events’ taking place in another State, as
if they had taken place on the territory of the first State (Article SSC.6 (a)
and (b)). In general, the Protocol requires the aggregation of periods of
social insurance, employment, self-employment or residence, completed in any of
the States Parties to the Agreement (Article SSC.7). There is a whole section
of ANNEX SSC-7: Implementing part on specifics of the aggregation rules
(Article SSCI.11 and 12). In general, receipt of cash benefits under the
Protocol must not be made conditional on residence (Article SSC.8). All of
these provisions are similar to those in the Withdrawal Agreement (Article 31
WA) and in EU law (Regulation 883/2004/EC, Articles 4,5,6,7).
Again, as in the Withdrawal
Agreement and in EU law, the ‘single state rule’ applies. In general, ‘persons
to whom this Protocol applies shall be subject to the legislation of a single
State only’ (Article SSC.10). The starting point here is employment or
self-employment, and only if neither applies does residence become relevant. If
someone is employed or self-employed in a State, that State is the State whose
social security legislation they are ‘subject to’ (Article SSC.10 (3) (a) (b)).
There are rules for people who normally are employed in both the UK and one or
more EU Member States (Article SSC.12): basically if someone is resident where
they perform a substantial part of their work, that is the relevant state; if
not, the place in which the employer is registered; or the ‘centre of interest’
of the activities of a self-employed person is the relevant state. There is,
obviously, lots of room for interpretation of these rules in specific
situations.
If someone is neither employed
nor self-employed, the general rule is that their residence (which means ‘where
the person habitually resides’ Article SCC.1 (aa)) determines the relevant
State. There is a whole section of the ANNEX SSC-7: Implementing part on the
elements for determining residence (Article SSCI.10). There are special rules
for people who work on ships and aircraft (Article SSC.10 (4) and (5)).
Like many international
agreements, the Protocol on Social Security Coordination allows for States
Parties to derogate from its general terms in some respects. The Protocol
allows Member States to derogate from the single state rule for ‘detached
workers’ (Article SSC.11). ‘Detached workers’ are either employed by an
employer in a State which normally carries out its activities there, and sent
by their employer to another State to work on the behalf of that employer; or
self-employed and normally pursuing a self-employed activity in one State, and
who go to another State to pursue a similar activity (Article SSC.11 (1) (a)
and (b)). There is no list of these Member States yet in the text (see p 1246).
Article SSC.11 obliges the European Union to notify the UK, by the time the
Agreement enters into force, whether each Member State falls into one of three
categories: A: the Member State wishes to derogate from the general rules of
the Protocol on which state is the state responsible for social security
(Article SSC.10); B: the Member State does not wish to so derogate; or C: the
Member State has not indicated either A or B. That list of three categories of
Member States will become Annex SSC-8, when the Agreement enters into force.
One month later, categories B and C will cease to exist. Member States in category
C will be deemed to be in category A for one month. After that, such a Member
State can join category A by the Union notifying the new Specialised Committee
on Social Security Coordination (see below) to that effect. A Member State can
leave category A in the future by the same mechanism. For Member States in
category A, transitional rules for ‘detached workers’ will apply for a 24 month
transitional period.
This is one of a myriad of
examples of Brexit not being ‘done’.
What is covered? ‘Sickness benefits’
Title III of the Protocol sets
out special provisions for each category of benefits (pensions, unemployment
benefit and so on). Chapter 1 concerns sickness benefits. Like in EU law, there
is a set of rules for ‘insured persons’ (people ‘subject to’ social security
legislation of the ‘competent state’, and members of their families) and a
separate set of rules for pensioners and members of their families.
‘Insured persons’ and their
families who are resident in a State other than the competent state, are
entitled to receive in the State of residence ‘sickness benefits in kind’
provided by the ‘institution of the place of residence’, as though those people
were insured under the legislation of the place of residence (Article SSC.15;
Article SSC.21 (pensioners)). People in this category include frontier workers
(who live in one state and work in another – special rules apply to them
(Article SSC.16)); posted workers (who are sent by their employer to work in
another state); and also people who return home for intervals longer than a
week (the frontier worker definition).
So, if someone is ‘subject to’ UK
social security legislation for the purposes of receiving healthcare in the UK,
because under the UK legislation they are deemed ‘resident’ in the UK (that
being the national rule determining access to the NHS), and they are employed
or self-employed in the UK (see the single state rules above), but they are
also deemed ‘resident’ in Spain by Spanish legislation, because they are in
Spain sufficiently to count as ‘resident’ under Spanish legislation, this
provision of the Protocol entitles them to access Spanish healthcare as if they
were insured under the Spanish legislation. These provisions are almost
identical to the equivalent provisions of EU law (Regulation 883/2004, Articles
17 and 18, 23-26).
Articles SSC.17 and SSC.25 (pensioners) cover ‘stay’
outside the competent State. This is the equivalent of the EHIC provision in EU
law. It entitles an insured person, and members of their family, who are
staying in a state other than the competent state, to healthcare which becomes
necessary on medical grounds during their stay. The determination of necessity
must take account of the nature of the healthcare or medical treatment and the
length of the stay. It is the healthcare provider in the state providing the
healthcare that determines necessity. The entitlement under Article SSC.17 or
SSC.25 does not cover someone who travelled with the purpose of receiving the
healthcare or medical treatment. (There is an exception for a passenger or
someone working on a ship or aircraft, who became ill during the voyage or
flight). These provisions are almost identical to the equivalent provisions of
EU law (Regulation 883/2004, Articles 19 and 20, 27).
Healthcare provided under these
provisions must be fully reimbursed by the competent State (Article SSC.30).
What is different from EU law is
that a person seeking to receive healthcare or medical treatment during a stay
outside the competent state must present a ‘valid entitlement document’. The
entitlement document is covered in Appendix SSCI-2. For EU Member States, the
valid document is essentially the EHIC: it has to comply with the technical
specifications of the relevant EU law determining EHIC cards (Decision No S2 of
12 June 2009 of the Administrative Commission concerning the technical
specifications of the European Health Insurance Card) (Appendix SSCI-2 1). For
the UK, the entitlement document has to contain the following information (Appendix
SSCI-2 2):
(a) surname
and forename of the document holder;
(b) personal
identification number of the document holder;
(c) date of
birth of the document holder;
(d) expiry
date of the document;
(e) the code
“UK” in lieu of the ISO code of the United Kingdom;
(f)
identification number and acronym of the United Kingdom institution issuing the
document;
(g) logical
number of the document;
(h) in the
case of a provisional document, the date of issue and date of delivery of the
document, and the signature and stamp of the United Kingdom institution.
The UK must notify the
Specialised Committee on Social Security Coordination ‘without delay’ of the
technical specifications of the UK document (Appendix SSCI-2 3).
The UK government’s website explains that people who have valid EHICs will
be able to continue to use them from 1 January 2021, to access necessary
healthcare on a visit to an EU country. For Norway, Iceland, Liechtenstein and
Switzerland, a new GHIC (UK Global Health Insurance Card) is available. When
someone’s EHIC expires, they will be able to apply for a GHIC for free.
Appendix SSCI-2 confirms that the
entitlements under Article SSC.17 of the Protocol on Social Security
Coordination include medical treatment for pre-existing illnesses and chronic
conditions, as well as medical treatment in conjunction with pregnancy and
childbirth, unless the purpose of the trip is to receive these treatments. But for vital medical treatment that is only available through a
specialised medical unit, authorisation in advance is required before the trip.
This includes (but is not limited to)
(a) kidney
dialysis;
(b) oxygen
therapy;
(c) special
asthma treatment;
(d)
echocardiography in case of chronic autoimmune diseases;
(e)
chemotherapy.
So some medical treatments that
used to be available under the EHIC scheme will after 31 December 2020 only be
available if the relevant State (the UK or EU Member State) gives prior
authorisation. This will be the case, for instance, for UK patients accessing
kidney dialysis in EU Member States. As far as I am aware, the UK has not yet
indicated whether it will authorise such treatments, or under what conditions.
As in EU law, there is scope for authorisation
of medical treatment in another State under the Agreement. The UK used this
provision infrequently when it was an EU Member State. Some Member States, eg
Malta, rely on it significantly. If authorised, there is an obligation on the
healthcare institution of the place to which the person authorised travels to
provide the medical treatment authorised as if the person was insured in that
State (Article SSC.18). There is also, as in EU law, in effect an obligation to
grant authorisation ‘where the treatment in question is among the benefits
provided for by the legislation in the State where the person concerned resides
and where that person cannot be given such treatment within a time limit which
is medically justifiable, taking into account their current state of health and
the probable course of their illness’ (Article SSC.18). This provision also
gives entitlements to family members of the ‘insured person’. There is
provision for if the family members and the insured person reside in different
States.
This provision (the ‘S2’ in EU
law, Regulation 883/2004, Article 20) is used relatively infrequently between
Great Britain and the EU, but several hundred people a year do rely on it to
receive health care across the border between Northern Ireland and the Republic
of Ireland. The question of whether a time limit before which someone receives
treatment is ‘medically justifiable’ is obviously contentious. When the UK was
an EU Member State, EU law was used to seek judicial review of this question,
and a number of English NHS Hospital Trusts reduced waiting times for elective
procedures such as hip replacements in response. Apparently there is ongoing
litigation in Northern Ireland which seeks judicial review of the NHS there for
breaching waiting time limits, in part relying on EU law. Given the COVID-19
context, we might see further attempts to use litigation before domestic courts
in a similar way in the future – reliant on the domestic legislation
implementing the Agreement, rather than the Agreement itself.
Article SSC.19 makes provision
for those States which provide cash benefits for healthcare, rather than
benefits in kind. This is the direct equivalent to the relevant provision of EU
law (Regulation 883/2004, Article 21).
Implementation, Administrative Arrangements and Dispute Settlement
Annex SSC-7: Implementing Part
sets out significant detail on the practicalities of implementing the parts of
the Agreement on Coordination of Social Security. There is an obligation on the
UK and the EU Member States to ‘provide or exchange all data necessary for
establishing and determining the rights and obligations of persons to whom the
Protocol applies’ and to do so ‘without delay’ (Article SSCI.2). A Specialised
Committee on Social Security Coordination is empowered to authorize – if it so
decides – the use of the EU’s Electronic Exchange of Social Security
Information for exchange of information. If this decision is taken, the rules
applying to that system (which are rules of EU law) will apply (Article SSCI.4
(2)).
There is an obligation to make sure
necessary information is made available, so that people concerned are able to
assert their rights under the Protocol and Annex (Article SSCI.3 (1).
Information must be forwarded, and documents issued, ‘without delay’ and in
accordance with any time limits specified in national legislation (Article
SSCI.3 (3)).
If a decision is made to refuse
benefits, reasons must be given, and information communicated about remedies
and time periods for appeals (Article SSCI.3 (3)).
Where there is a difference of
views between States on what is the applicable legislation or on which is the
competent state which is responsible for providing cash benefits or benefits in
kind (eg medical treatment), there is an obligation under the Agreement to
provisionally apply the legislation of one State (Article SSCI.6 (1) and (2)). For
determining applicable legislation, this State is the state where the person
actually pursues employment or self-employment, if there is such a state; or
the state of residence if the person concerned pursues employment or
self-employment in two or more States and performs part of their activity or
activities in the State of residence, or if the person concerned is neither
employed nor self-employed. In all other cases, it is the State to which a
claim was first made, if the person pursues an activity, or activities, in two
or more States. For determining the
competent state, the legislation of the person’s place of residence applies or,
if that person does not reside on the territory of one of the States concerned,
that person is provisionally entitled to the benefits provided for by the
legislation applied by the institution to which the request was first
submitted.
These provisions mean that people
should not be left in limbo while complex cases are decided.
There is provision for bilateral
procedures between States to depart from those in the Annex, provided that they
do not have an adverse effect on people’s rights (Article SSCI.8). The
bilateral procedures have to be notified to the Specialised Committee on Social
Security Coordination and listed in the Appendix SSCI-1, thus securing (at
least some) transparency. Any pre-existing bilaterals serving the same or
similar purposes to the social security provisions in the Agreement will
continue to apply, but they must also be listed in Appendix SSCI-1.
Finally, the Agreement includes
provisions for a Specialised Committee on Social Security Coordination, which
addresses matters covered by Heading Four of Part Two and the Protocol on
Social Security Coordination (Article 8(1)(p), previously INST.2 (p)); and for Parliamentary Cooperation
and participation of civil society (Articles 11-14, previously INST.5 to INST.7). These will be important sites for scrutiny of
compliance with the Agreement, any future divergence in interpretation of
obligations, and (given that the role for an over-seeing court is non-existent)
for legal contestation. It will be important to ensure that the UK Parliament,
and, where appropriate the Parliaments in Northern Ireland, Scotland and Wales
exercise oversight over executive powers; and to ensure that relevant NGOs are
represented in the civil society processes.
Article 8(4) (previously INST.2 (2)) provides that Specialised
Committees shall have the power to: (a) monitor and review the implementation
and ensure the proper functioning of this Agreement or any supplementing
agreement; … (c) adopt decisions, including amendments, and recommendations in
respect of all matters where this Agreement or any supplementing agreement so
provides or for which the Partnership Council has delegated its powers to a Specialised
Committee in accordance with point (f) of Article 7(4) (previously INST.1(4) [Partnership
Council]); (d) discuss technical issues arising from the implementation of this
Agreement or any supplementing agreement; (e) provide a forum for the Parties
to exchange information, discuss best practices and share implementation
experience; (f) establish, supervise, coordinate and dissolve Working Groups;
and (g) provide a forum for consultation pursuant to Article 738(7) (previously INST.13(7)
[Consultations], in the Dispute Settlement provisions of Part Six).
The Specialised Committee on
Social Security Coordination will have power to make recommendations (which
have no binding force) and decisions, by mutual consent: Article 10 (previously INST.4). Decisions
adopted by the Specialised Committee on Social Security Coordination will have
binding force on the Parties to the Agreement. The Committee will make
decisions, for instance, on ‘the structure, content and format of forms and
documents issued on behalf of the States for the purposes of implementing the
Protocol’ (Annex SSC-7, Article SSCI.4 (1)). The Committee is tasked with
reconciling differing points of view on ‘information provided by the persons
concerned, the validity of a document or supporting evidence or the accuracy of
the facts on which the particulars contained therein are based’ (Article SSCI.5
(4).
The Agreement’s general
provisions on dispute settlement also apply to the social security coordination
provisions (Article 735, previously INST.10: Scope), although not in individual cases (Article 735(5), previously INST.10(5)). Note that it's not possible, in the event of a successful complaint by one party about breach of the treaty, to retaliate by suspending the social security provisions (Article 749(3)(a), previously INST.24(3)(b)). This also applies to successful complaints about breaches of the withdrawal agreement (Article 749(4), previously INST.24(4)). Other people will already have written about this – but the basic
message here is that this is international law, not anything like EU law.
Conclusion
In summary, this is a
significantly better settlement than No Deal at the end of transition would
have been, from the point of view of people who relied on EU law to receive healthcare
and medical treatment in the UK or an EU Member State.
For UK/EU residents, in the EU/UK
access to healthcare continues on the same basis as national residents, as
before. For visitors, a form of EHIC entitlements are preserved going forward.
What is different is the legal
basis on which these rights are enjoyed, with corresponding implications for
how rights are enjoyed and enforced. All will be well so long as the parties to
the Agreement comply with their obligations under it.
* This post was amended on January 1, 2021, to add details about the absence of a power to suspend the social security provisions pursuant to the dispute settlement rules, on January 2, 2021 to add a link to the overview of the trade and cooperation agreement published on this blog, and on April 28, 2021 to refer to the revised Article numbers of the final TCA.
Barnard & Peers: chapter 27
Photo credit: Health Europa
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