Article 50 one year on: Brexit, health and the NHS


A year after Article 50 was triggered, the promises on the Leave campaign’s big red bus live on in the public debate. Amidst sustained pressure on resources, some have taken to the streets demanding more funds for a struggling NHS. Challenges from Brexit threaten to further strain the NHS and the health and social care sector as a whole.

If the withdrawal agreement enters into force, an immediate staffing crisis for the NHS and social care is likely to be avoided. Future rights for EU27 citizens already working in the UK were agreed in principle in mid-March. But the NHS has never trained enough doctors for its own needs: NHS England alone depends on 10,000 doctors and 20,000 nurses from the EU27.

Even if these staff remain in the UK, there is currently insufficient capacity planning for the future. The end of free movement after the transition period may mean fewer NHS and social care staff from EU27 countries, and might have a deterrent effect on life sciences research.

Granted, the EU (Withdrawal) Bill provides some legal continuity. An Immigration Bill could recognise the needs of the health and social care sector. But the UK is committed to ending free movement. It envisages that EU27 citizens resident in the UK will be required to apply for a new residence status.

The original proposal of a two-year grace period has been cut significantly to just six months in the draft withdrawal agreement. And a promised white paper on immigration has been delayed. This lack of clarity is already affecting health professionals.

Depending on its design, a new immigration system could have deeply damaging effects on the NHS. Free movement between the UK and the EU27 has been highly advantageous to the health sector. The operation of the NHS and life sciences research are predicated on career-long fluidity of movement, protected by EU rights enforceable by law.

In other areas, potential problems seem to have been successfully avoided. The withdrawal agreement stipulates that the reciprocal healthcare arrangements covering the 190,000 British pensioners living in the EU27 are to be continued.

But other reciprocal healthcare arrangements – in particular, the European Health Insurance Card (EHIC) – will end at the end of transition. This is despite the UK’s avowed commitment to retain the current system of reciprocal healthcare, which has now been left to the next phase of the negotiations, where agreement will be procedurally much more difficult.

Regulatory change, and a loss of international regulatory sway, also promise to be problematic for the NHS.

While the government has recently conceded that shared regulatory standards are highly advantageous to market access, the combination of its ongoing commitment to ‘taking control of our own laws’ and the removal of legally automatic mutual recognition of standards unless divergence is justified means that this political position remains highly uncertain.

As the Health Secretary put it, ‘the right to choose to diverge’ from the EU post-Brexit remains. Divergence would raise significant problems in a host of areas relevant for the NHS, including medical devices; pharmaceuticals; blood, tissues and organs; clinical trials; and data protection.

Little wonder that stakeholder evidence to the House of Commons Health Committee gave a “consistent and repeated message” calling for as close regulatory alignment as possible.

The UK’s influence on future regulation is also at risk. The European Medicines Agency (EMA) is relocating to Amsterdam. As its seat is only currently secured as part of the EU delegation, the UK may lose its voice in the International Conference on Harmonisation (for pharmaceuticals) and the International Medical Device Regulators Forum (for medical devices).

These organisations work towards global regulation and hold significant weight in major markets such as the EU, the US and Japan. To retain a place in these international forums, the UK needs to start lobbying existing members now to secure membership post-Brexit.

UK trade policy will also pose questions for the future of the NHS. What happens in trade negotiations with the EU and other countries will indicate what to expect for the post-Brexit health sector. Negotiation of these agreements will be very telling in terms of what the UK government values.

For example, it will demonstrate the level of its commitment to preserving shared regulation, and the free movement of professional and research staff. More broadly, it will illustrate how much value the government places on the NHS as a public entity, still largely not open to private investors.

For some people, the ‘best possible deal for the United Kingdom’ in such trade agreements may include changes to NHS England to allow access for foreign investors. The need for explicit reservations to prevent this was recognised by the EU and member states during negotiations with the US over the Transatlantic Trade and Investment Partnership (TTIP), but it is unclear whether the UK will be able to or want to negotiate similar terms.

The ‘devolveds’ have not gone down this route for the NHS, but it remains unclear how ‘repatriated’ powers to Westminster to conclude trade deals will affect powers over health and social care policy in Scotland, Wales and Northern Ireland.

If the withdrawal agreement enters into effect, ‘cliff edge’ concerns about disruptions to medical supply chains will not arise. Post-transition, the question is whether the UK will remain sufficiently aligned in terms of product standards to be an attractive market for novel pharmaceuticals and the like.

The role of the UK within structures for medicines approvals, pharmacovigilance, and clinical trials all remains uncertain. The EU27 staff who currently work in the NHS will be able to stay, though will have to comply with new UK rules about immigration status.

Future capacity planning will have to take place within those as yet uncertain rules. UK trade deals with other countries may involve elements that affect the NHS, or the NHS may be explicitly excluded from their effects.

By Tamara Hervey, co-investigator at The UK in a Changing Europe and Jean Monnet Professor of EU Law at Sheffield University and Sarah McCloskey, Research Assistant at Sheffield University. Our Article 50: one year on report, in which this article originally appeared, can be found here.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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