1. Legal aspects of Brexit and implications for healthcare
Tamara Hervey, Professor of EU Law
University of Sheffield
Given the time frame, what I will do is explain some things about what is legally possible and legally meaningful, to put into context the other presentations, and give us some structure in terms of thinking about what is politically or socially possible.
ESRC Brexit Priority Grant ES/R002053/1

2. Brexit: very difficult to see how it could realistically be an opportunity for UK healthcare (and believe me, I really have been trying)
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Hopefully, I can explain why I think this should actually be the title of your event.

3. The EU is a rules-based organisation
The EU is a rules-based organisation. It may look as if it is just a bunch of political compromises, but, if you only see it that way, you miss a really important aspect of how the EU works.

4. All collaboration, all contracts, need law behind them
All collaboration, all contracts, need law behind them. Often, the legal aspect is pretty invisible. But it is sitting there in the background. That’s all fine when everything is taking place within one country, one legal system. But where there is any international element (be that citizen of one country coming to work in another country, international research collaboration, agreement on public health standards because air and water don’t stop at borders and neither do communicable diseases), we need some kind of legal framework or system that works across borders.
All of these things are going to be affected by Brexit: the NHS’s staff, the patients we have to care for (if 190K pensioners choose to come home), public health standards, medicines regulation, workers rights and so on.
EU law is the most advanced, the most dense, the most reliable (in terms of enforcement) legal system that works across borders. Because of those things arguably the most effective. And EU law is a system – it is more than a bunch of disparate, disorganised agreements between states, which is what most international law looks like.

5. EU negotiating position
agreed by all 27 Member States in April 2017 (
legally binds the EU Commission
includes the principles of:
‘integrity of the Single Market’ (no sector by sector deals); and
‘a non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member’.
The EU side of the EU/UK Brexit negotiations is rule-bound. And the rules include aspects of the EU’s legal system – particularly the integrity of the single European market, and the ‘no cake and eat it’ principle.

6. Soft brexit Hard brexit ‘Crash out’ brexit EEA/’Norway’?
Access to EU market for goods and services, and vice versa, as compliance with EU regulations continues
Would include people
Could secure continued access to EU regulatory networks and systems
Could include access to EU research funding
No enforceability of individual rights
EEA has court oversight
Hard brexit
FTA (DCFTA?)
EU-CETA model?
Detailed sector by sector negotiation
Requires transitional arrangements
May not cover people at all
Services?
FDI?
May involve harmonised regulation or may not
Possibly involves continued access to EU regulatory networks, systems and other resources
‘Crash out’ brexit
No agreement
EU-UK trade relationships based on WTO law only
Maximum uncertainty
People are covered only by UK immigration law
Products from UK access to EU market only if EU law compliant
Products from EU access UK market if UK law compliant
On the UK side, it’s very difficult to discern the negotiating position, from a legal point of view. Mixed political messages mean difficult to read into legal outcomes.
Here are some possibilities. And each of these have different implications for what will be legally possible in the future.

7. All the different aspects of the NHS and health in the UK are going to be affected by Brexit. But different types of Brexit have different consequences for health. In our Lancet piece, published today, we explain why a ‘crash out’ or ‘failed’ Brexit is by far the most risky for health and the NHS.

8. All the different aspects of the NHS and health in the UK are going to be affected by Brexit. But different types of Brexit have different consequences for health. In our Lancet piece, published today, we explain why a ‘crash out’ or ‘failed’ Brexit is by far the most risky for health and the NHS.

9. ‘Cake and eat it Brexit’ ‘Legal unicorn Brexit’ Hard brexit
Soft brexit ‘
‘Cake and eat it Brexit’ ‘Legal unicorn Brexit’
“imaginative” new relationship
shared commitment to high regulatory standards (but only where within trade and economic relations)
“domestic democratic control”
“we will not accept any physical infrastructure at the RoI/NI border”
“We will no longer be members of its single market or its customs union”
On citizens rights “I doubt anyone with real experience of the UK would doubt the independence of our courts or of the rigour with which they will uphold people’s legal rights”
Hard brexit
‘Crash out’ brexit
PM May speech, Florence, September 2017
Explicitly rejects both ‘soft brexit’ (Norway/EEA) and ‘hard brexit’ (Canada). The “imaginative new relationship” is to be based on “domestic democratic control”. So already we see a disconnect between this position and the principles that sit behind the way in which the EU interacts with its closest partners, those countries in the EEA. But May also rejects hard Brexit (Canada), recognising that “it would nevertheless represent such a restriction on our mutual market access that it would benefit neither of our economies.”
Confirms shared commitment to high regulatory standards, which may come as a relief after the idea that we might become a low-tax, low-regulation economy, which was in PM May’s Lancaster House speech.
May wants to have an economic relationship with the EU which is based on a “set of rules” – so that’s good. And then she goes on to posit three areas: (1) “areas of policy and regulation which are outside the scope of our trade and economic relations”; (2) “areas which do affect our economic relations where we and our European friends may have different goals; or where we share the same goals but want to achieve them through different means”; and (3) “areas where we want to achieve the same goals in the same ways, because it makes sense for our economies”. That sounds positive.
But once we start to think of this in terms of actual practicalities, we can see that it breaks down and myriad problems emerge. Take the first area. May says that “this should be straightforward”. A national health system would seem to be a very obvious example of an area “outside the scope of trade and economic relations”. It’s built on social solidarity. It’s funded (largely) through taxation. It doesn’t involve trade, or private contracts in the normal sense. It owes no obligation to private investors of capital. Its staff are essentially hired by the state. But think about the way our NHS is now. It involves many private contracts, it draws on staff from outside the state, it relies on private capital, and so on. Because of the way our NHS has developed over recent decades, it isn’t possible to say that it is “outside the scope of trade and economic relations”. And we cannot magically make it so, certainly not in the short time frame we are talking about here, even with a transitional period of a couple of years.
And then think about the EU’s position – its legal position – on the ‘integrity of the single market’. The way single market law works is that it does apply regulatory standards even to matters that don’t obviously involve a cross-border element. That’s because it uses law to create a level playing field, to benefit from the economies of scale associated with a large market of 28 countries. So to say that we would have a relationship based on those three areas of policy is to ignore the way that the EU’s position constrains the EU Commission in terms of what it can legally agree. It can legally agree Canada. Or Norway. But at the moment at least, I cannot see what the EU could legally agree to that sits between those two things.
[“The strength of feeling that the British people have about this need for control and the direct accountability of their politicians is one reason why, throughout its membership, the United Kingdom has never totally felt at home being in the European Union. …
It is a matter of choices. The profound pooling of sovereignty that is a crucial feature of the European Union permits unprecedentedly deep cooperation, which brings benefits.
But it also means that when countries are in the minority they must sometimes accept decisions they do not want, even affecting domestic matters with no market implications beyond their borders. And when such decisions are taken, they can be very hard to change.
So the British electorate made a choice. They chose the power of domestic democratic control over pooling that control…”]
Example 2: “we will not accept any physical infrastructure at the RoI/NI border” – but legally that will be an external EU border after Brexit, so unless we accept the rules of the EU’s customs union in terms of its external trade, that is a legally meaningless statement. And a few paragraphs later, May says we will not be members of the EU’s single market or its customs union.
Example 3: On citizens rights “I doubt anyone with real experience of the UK would doubt the independence of our courts or of the rigour with which they will uphold people’s legal rights” – but what about control of executive power? Home Secretary Amber Rudd recently held in contempt of court for failing to respect a court ruling on the rights of an individual human being. And the integrity of EU law is based on its oversight by a court – and that’s also true for the law of the EEA – so it doesn’t legally make sense to imagine that the EU will grant a non-EU state the sorts of rights and entitlements that EEA states have, without some kind of judicial oversight. That’s one of the key features of the EU’s legal system as opposed to other international legal relationships.
So – taking all of this logically – legally speaking, because the place that May wants to occupy (somewhere in the ocean between Canada and Norway) is a land of pink sparkly unicorns, legally speaking, that to my mind takes us closer to the ‘crash out brexit’ scenario as the clock keeps ticking on Article 50 – with all of the bad things that means for health.

10. Of course, there is another option – that we don’t leave the EU.

11. And then there’s the domestic side.
The European Communities Act – how EU law constitutionally has effect in the UK – will be repealed. That involves removing a more than 40 year old part of the UK’s constitution.
To secure legal certainty, provides that EU law that currently applies automatically will become part of UK law. So, for instance, significant areas of UK employment law, currently governed by EU law, including health and safety at work legislation, equality legislation, will continue to be part of UK law on Brexit day.
To prevent ossification – there will be amendment of this ‘domesticated EU law’ (1) by statute (eg an immigration bill) but also crucially (2) by delegated legislation – ie by ministerial act. At the moment, this executive power is to “prevent remedy or mitigate” any “deficiency in retained EU law”. (clause 7) There’s a big difference between “deficiency” meaning “inoperability once we have left the EU” and “the minister does not like it”.
The grant of executive power proposed under the EU (Withdrawal) Bill is nothing short of the UK’s greatest peace-time constitutional challenge. It would mean great swathes of UK law – including much that affects the NHS, its staff, and its patients, as well as public health standards, being able to be amended without proper Parliamentary scrutiny and without stakeholder input.