1. Setting the scene: What does Brexit mean for patients?
Tamara Hervey, Professor of EU Law
University of Sheffield
Introduction: Broad overview of the legal and political landscape in this period after the referendum vote, after the triggering of Article 50, but before Brexit has actually taken place. Sets the scene for deeper discussion of issues patients arising from the current situation.
Outline possible EU-UK relationships in April 2019 and into the medium term.
Introduce implications for patients – which speakers for the rest of the day will build on.
ESRC Brexit Priority Grant ES/R002053/1

2. Firstly – we know that at least some of the explanation for the Leave vote was the idea that leaving the EU would be good for the NHS and for health more generally.

3. Edinburgh, March for Europe,
And we know that The Bus Lied (Scott Greer Keynote, Birmingham 4 May 2017). (The figure of 140K is from the HC Health Committee Brexit Inquiry evidence).
But the lie is enduring – as we’ve seen this week in the exchanges between Boris Johnson and the Head of the UK Statistics Authority Sir David Norgrove.
The effect of Brexit on the NHS – on patients – is something that the public really care about.
In a paper soon to come out in the Lancet, we will argue that leaving the EU carries significant risks for every one of the building blocks of a health system. (N Fahy et al, ‘How will Brexit affect health and health services in the UK: Evaluating three possible scenarios’ Lancet, forthcoming)

4. 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’.
Whatever Brexit means for patients is bound to be affected by the broader political and legal contexts. And those contexts are – in essence – the position of the EU in the negotiations, and the position of the UK. It’s pretty easy to understand the EU’s negotiating position.
It’s almost impossible to understand the UK’s negotiating position, …

5. Its extremely difficult to read the UK’s position
Its extremely difficult to read the UK’s position. Mixed political messages: top left, clockwise: Lancaster House speech, January 2017; Article 50 letter, 29 March 2017; May-Juncker dinner, 1 May 2017; White Paper on Exiting the EU Cm 9417, February 2017 … upcoming Florence speech
Very interesting insights on the general difficulties of the UK and the EU negotiators to understand each other comes from regular reporting of the ways in which Theresa May’s government appears to misunderstand both the politics and the law of the situation. Eg the Frankfurter Allgemeine Zeitung’s reports of the May/Juncker dinner on 29 April 2017 suggest that Juncker thinks May is ‘in a different galaxy’ about what is possible – politically but also legally.
And, because of that, we don’t know what the EU/UK relationship will be in the future, or, more pressingly, whether there will be a withdrawal agreement at all.

6. First click – after all, there are many ‘shades of Brexit’
Second click and third click - a point not lost on the Twittersphere
Fourth click adds the paint colours.
But for the purposes of this talk, let’s just model three.

7. Soft brexit Hard brexit ‘Crash out’ brexit ‘EEA minus’?
Association Agreement?
Access to EU market for goods and services, and vice versa, as compliance with EU regulations continues
Could include people
If limits on people, what is quid pro quo? Services? Capital/FDI?
Could secure continued access to EU regulatory networks and systems
Could include access to EU research funding
No enforceability of individual rights
No supranational court
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
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
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.

8. Of course, there is a fourth option – that we don’t leave the EU.

9. Third part of talk: outline just some key implications for patients – these will be built on throughout the day.
There’s a significant risk to staffing:
Currently EU law gives R-EU citizens currently enjoy a suite of rights that are readily enforceable, and relatively administratively simple to secure. The entitlements endowed by EU law on migrant workers, and their families (irrespective of nationality), as defined by EU law, are extensive. Although they stop short of full UK citizens rights, they reach far beyond residence entitlements, or the rights associated with ‘normal’ immigration. They include the right not to be discriminated against on grounds of nationality in accessing a huge range of employment and social rights: access to employment; mutual recognition of qualifications from other EU countries (subject to linguistic competency tests); access to housing, education and other welfare benefits; right to access accrued pensions and healthcare on retirement in another EU country; right to access healthcare on a temporary basis in another EU country (which is often relied up by women giving birth in their original home country); and the right to vote in local and European parliamentary elections.
Some 140,000 R-EU nationals currently work in the NHS and social care across the UK (UK Government, Policy Paper: Safeguarding the Position of EU citizens in the UK and UK nationals in the EU
Looking at doctors alone, one tenth are graduates of non-UK European Economic Area countries. London, Scotland, and the south East of England are particularly reliant on R-EU nationals in their health and social care workforce. In Northern Ireland, many health professionals effectively work across the border with the Republic of Ireland throughout their working lives (House of Commons Health Committee, Oral Evidence: Brexit and health and social care, HC 640 ( ), House of Commons 2017.)
NHS England’s 2017 scheme, piloted in Lincolnshire, which seeks to plug the staffing gap by recruiting 500 GPs from overseas once it is rolled out, is reported to have recruited GPs from Poland, Lithuania, Croatia, Greece and Spain. (‘NHS to recruit hundreds of GPs from Poland, Lithuania and Greece’, The Telegraph (2017)
Eight percent of doctors in Wales are from R-EU, where reliance on R-EU workforce has increased in recent years. (‘Brexit: NHS “may struggle” without more non-UK staff’, BBC News (2017)
The Independent reported in June ( that ‘The number of European nurses registering to work in the UK has plummeted by 96 per cent since the EU referendum last June … Just 46 nurses from EU countries registered with the Nursing and Midwifery Council (NMC) in April 2017, compared with 1,304 in July 2016, according to figures obtained through a Freedom of Information request by the Health Foundation.’ 
A further 90,000 staff from other parts of the EU work in social care, alleviating pressure on the NHS. The inability of the government to guarantee their existing rights after Brexit, coupled with the falling value of their salaries in pounds, is making the UK a much less attractive place. (Martin McKee blog 18 September
The current negotiations on the terms of the Withdrawal Agreement, summarised in the latest Joint Technical Note on Citizens Rights (31 August 2017), compares the EU and the UK positions ( This shows some areas of agreement, but also significant areas of disagreement, particularly on scope (what about future family members for instance?), on enforcement where there appears to be deadlock, and on mutual recognition of professional qualifications.
It’s also really important to note that the Withdrawal Agreement – if it is agreed – only covers the posision of people in a ‘cross-border situation’ on Brexit day. It does not tell us anything about the future EU-UK relationships in terms of labour migration.

10. Research and teaching hospitals, especially those in London, are particularly reliant on R-EU nationals when recruiting the very best clinical/research staff: the UK is currently regarded as a top place globally to build such a career. (House of Commons Health Committee, Oral Evidence: Brexit and health and social care, HC 640 ( ), House of Commons 2017.)
One in six university researchers are non-UK European nationals – their position is equally insecure to that of the NHS workforce.
Cited in Frenk C, Hunt T, Partridge L, Thornton J, Wyatt T. UK research and the European Union: The role of the EU in international research collaboration and researcher mobility. London (UK): The Royal Society; (accessed 07 June 2017)
Yet the UK government’s position appears to be that overall immigration figures must be reduced – and it would also appear that every economic sector currently reliant in EU nationals is making its argument for a ‘special deal’.

11. Available data suggests some 1
Available data suggests some 1.2 million UK citizens live in other EU countries (R-EU) (House of Commons, 2017). Official figures from Eurostat and the UN suggest 309,000 of those are in Spain (House of Commons, 2017; UN, 2015; Migration Watch, 2016). Local estimates suggest it could be double that number, or more. Just over one third of UK citizens in Spain are aged over 65 (ONS, 2017:5). Retired UK citizens in Spain currently rely on EU law to secure residence, pensions, and, crucially, access to healthcare, with minimum administrative formality and no extra cost to themselves.
Under the Spanish legal framework explained above, it is extremely difficult for non-EU/EEA nationals to access the Spanish NHS, unless they are either working or have individually subscribed to an expensive special agreement with the Spanish social security authorities. That is why not many retired people from non EU/EEA countries live permanently in Spain.
Without a specific UK/R-EU agreement which deals with the entitlements to healthcare of retired UK citizens in Spain, this is the position in which at least 100,000 UK pensioners who have retired to a Spanish ‘place in the sun’ will find themselves. It is impossible to see anything other than negative effects of Brexit on those citizens. (J Cayon-De Las Cuevas and T Hervey, ‘A Place in the Sun? Healthcare rights of retired UK citizens in Spain post Brexit’12 Health Economics Policy and Law (2017) )
The Nuffield Trust calculated that 190,000 British pensioners currently live in other EU countries like France and Spain and receive healthcare under the EU reciprocal ‘S1’ scheme. If they decide to return to the UK in the event that this benefit is withdrawn after Brexit, then the cost to the NHS is likely to be around £979 million – around twice the amount that the UK government currently reimburses to other EU states for their care, i.e. around £500 million net.  This calculation is based on the age profile of the people involved, and their likelihood of using healthcare. 
Around 900 extra beds, enough to fill two new hospitals the size of St Mary’s Hospital, London (see note 3), would be likely to be required if this number of British pensioners returned – but the briefing argues that unlike funding, beds and staff cannot simply be brought on-stream at will. (Dayan M (2017) Getting a Brexit deal that works for the NHS. Nuffield Trust briefing, 31 May 2017. 
Michaela Benson at Goldsmith’s project shows the distress that many of these vulnerable individuals feel (UK in a Changing Europe, as well as their resourcefulness in tackling the predicament they are in.

12. A bewildering array of products are bought by UK-based health or social care providers from EU suppliers on a daily basis: ranging from simple tongue depressors to positron emission tomography (PET) scanners. These products, and their components, are currently governed by EU law that secures their safety and protects consumers/patients. Pharmaceuticals enjoy marketing authorisations that permit their sale anywhere in the EU (Directive 2001/83/EC [2001] OJ L311/67, Article 6 (1), as amended), and supply chains typically involve several EU countries (P. Kanavos, W. Schrurer and S. Vogler, 'The pharmaceutical distribution chain in the European Union: structure and impact on pharmaceutical prices', European Commission (2011), pp ). Clinical trials for pharmaceuticals are governed by EU law (Clinical Trials Directive . The UK currently purchases all of its plasma used for anyone born after 1996 from Austria (EU Commission, ‘An EU-wide overview of market of blood, blood components and plasma derivative focusing on their availability for patients’ (2015) Creative Ceutical Report, 61 (accessed 22 May 2017)). The safety of blood, human organs, and tissue is guaranteed by EU law and regulatory processes (Directive 2002/98/EC [2003] OJ L33/30; Directive 2010/53/EU [2010] OJ L243/68; Directive 2004/23/EC [2004] OJ L102/48).
The UK government intends to secure legal continuity in the aftermath of Brexit day through statutory means: a European Union (Withdrawal) Bill is currently before Parliament. On Brexit day, to secure continuity, existing EU law will become a new formal source of UK law. We might call it ‘EU derived law’, or ‘domesticated EU law’.
So provisions of health law such as the Advanced Therapy Medicinal Products Regulation 1394/2007; the Data Protection Regulation 2016/679; Regulation 883/2004, which includes the provisions on the European Health Insurance Card (EHIC); and a host of others, which are currently part of UK law because of the European Communities Act 1972, will become part of UK law via the provisions of the Withdrawal Act on Brexit day. However, provisions such as Regulation 536/2014 on clinical trials, which have yet to enter into effect although they have been agreed by the EU legislature, are not covered by the terms of the Withdrawal Bill as it currently stands.
The Withdrawal Bill as it currently stands would give power to ministers to alter ‘domesticated EU law’, if it is ‘deficient’, without Parliamentary scrutiny. Deficiency might mean a number of things in this context, ranging from ‘nonsensical inoperability’ through to ‘the minister does not like it’. This is potentially a significant threat to patients post-Brexit, again depending on the type of Brexit that we have. If we have a ‘soft Brexit’, with a Norway-like relationship with the EU, our product regulations will remain harmonised with those of the EU. But if we don’t, and if we are looking to compete globally on the basis of attracting capital to the UK as a ‘soft regulatory space’, then the implications are different – we could see lower standards, perhaps aligned with the US (so less precautionary). And we could also see effects on government revenue from corporate taxation.

13. “If you want to be a tax haven you would have to have some fairly big discussions with the public about how you are going to fund areas like health and the National Health Service.”
As the former Treasury Permanent Secretary Sir Nicholas Macpherson pointed out in January
Photograph: PA. Source:

14. Cross border collaborations
Cross border collaborations. EU law and policy (and money) currently supports a great deal of cross-border collaboration and cooperation between the UK and the R-EU. The ECDC is one example; the many health-related projects supported by the EU’s Horizon2020 funding, and previously Framework Programme funding is another. A particularly important one for a sub-group of patients is access to European reference networks for rare diseases (the UK participates in 22 of the existing 24 networks).

15. The implications of the financial settlement aspect of the withdrawal agreement will have an indirect effect on the NHS in terms of the UK’s liabilities and hence the available resources for public spending. The precise permutations of these depend of course primarily on other government policy, particularly taxation policy. But in the absence of a change of direction from the austerity politics of the current government, a call on the public purse in the form of the settlement means less available taxation for the NHS.
This is BMA’s own analysis of the resourcing that the NHS needs