Martin McKee: The infamous Brexit dinner party—health was a major issue, but only for the EU

Discussions on Brexit have not got off to a good start, with health at the centre of the disagreement, even if the UK does not seem to realise it

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The scale of the task facing the UK as it prepares to enter negotiations became apparent in a leaked account of a dinner in Downing Street attended by the Prime Minister of the UK, Theresa May, the Secretary of State for Exiting the EU, David Davis, the President of the European Commission, Jean-Claude Juncker, the Commission’s Chief Negotiator on Brexit, Michel Barnier, and a handful of other officials. This was simply an exploratory meeting as, unlike each of the three EU institutions (Commission, Council, and Parliament), which named their chief negotiators months ago, the UK has only just agreed that David Davis will lead its negotiating team. Indeed, as the account of the dinner reveals, the UK has yet to grasp what it is actually negotiating about.

We are able to know what happened at the dinner thanks to a report published in the German newspaper Frankfurter Allgemeine Zeitung. A few days later, news finally crossed the channel, and when it was eventually discovered by the British media, (largely as a result of The Economist’s Berlin Bureau Chief Jeremy Cliffe translating the key points for them) the response was mostly sensationalist and superficial, focussing on comments that the Prime Minister was “deluded” and living in another galaxy,” without any explanation as to why EU officials had reached this conclusion. This is hardly surprising. Most British newspapers and broadcasters simply reprint government press releases or private briefings, a situation that explains why the UK has now fallen to 40th place, out of 180 countries, in the Press Freedom Index, a measure of the ability to hold governments to account. The reaction from Downing Street stated that the Prime Minister did not recognise the account. Some wits have suggested that this reflects an inability to read German but, in fact, this is the standard response of British politicians to anything they find embarrassing. Crucially, Downing Street has failed to challenge any of the specific items reported.

If one leaves aside the more entertaining elements of the account, such as the reported three times that David Davis sought to regale the EU visitors with how he had successfully used European law to challenge Theresa May’s policy on data retention (leading the EU delegation to suspect that she was unlikely to put him in charge of negotiation after the election), the report is important because of what it tells us about the UK’s approach to Brexit. As the process unfolds, it seems likely that the only accounts will be emerging from the EU side. Unlike the UK, where the Prime Minister has pointedly refused to give a “running commentary,” the EU is committed to transparency, first as a means to ensure democratic accountability and, second, to avoid the risks of selective leaking. This is something that, as the former LibDem leader Nick Clegg has noted, the Prime Ministers’ current advisors, when she was Home Secretary, were extremely adept at. This means that those in the UK wishing to obtain any insights must look elsewhere.

The importance of health, for both EU citizens in the UK and UK citizens in the EU, became apparent in one of the key exchanges that prompted Juncker to conclude that the Prime Minister had no grasp of the issues. This was when she argued that the rights of EU citizens in the EU and vice versa could be resolved in a matter of weeks, with a final conclusion at the June European Summit. Citizens’ rights are one of the three top priorities of the EU, along with the UK’s financial settlement and the Irish border, as set out in its recently agreed negotiating guidelines. The Prime Minister has often indicated that it is a priority for her too, even if she has refused, at every opportunity, to do anything about it. Unsurprisingly, to anyone with more than a superficial understanding of European law, the idea that this could be resolved so quickly astonished Juncker. According to the German account, after explicitly citing the complexity of reciprocal healthcare, he replied “I think you underestimate that, Theresa.” To illustrate the problem, he placed two thick piles of paper on the table, the EU accession agreement with Croatia and the recent trade agreement with Canada. Both were several thousand pages long, weighing six kilograms in total. He then pointed out that any Brexit Treaty and subsequent Free Trade Agreement would be at least as long as the two documents combined.

Leaving aside how Theresa May has yet to appreciate that these are separate processes, it is the first of these where resolution of health issues is most urgent, although as became apparent in discussions about the now stalled Transatlantic Trade and Investment Partnership (TTIP), health will also be an extremely contentious issue in the latter. Over recent decades, a large body of European law has been developed enabling free movement of patients and health professionals, creating mechanisms for medicines regulation, regulations on public health, and much else. The practical implications for ordinary people are immense. Many of these arrangements involve EU structures, into which the UK pays and, when disputes arise, as they sometimes do, they are resolved by the European Court of Justice. Given that the UK has rejected both payment into the EU budget and oversight by the Court, a completely new system will have to be devised. This is likely to take years.

Could it really be that the Prime Minister was unaware of this? There are some cynics who have argued that, in reality, she understands the damage that Brexit will do to the UK and, while pretending to go along with the process, she is waiting for an opportunity to blame the EU when it all collapses. Certainly, a persuasive case can be made, explaining why she spent time creating two new government departments from scratch, one of which has no real role, and then embarked on a fruitless legal challenge and even more pointless appeal against giving Parliament a say on notifying Article 50, given that the actual parliamentary process took a few days, but the court cases took weeks. Her speech at the Conservative Party conference seemed designed to alienate any possible friends in other Member States who might support the UK’s position. Then she failed to undertake any detailed planning for Brexit, with the Commons Foreign Affairs Committee viewing the government’s confidence that such planning could be undertaken at a leisurely pace as “at best naïve and at worst negligent” while its failure to instruct key government departments to start planning was “gross negligence.” Finally, just as the clock started ticking, she called a general election whose sole purpose seems to be to waste two more months. Of course, many will feel that this interpretation is unlikely, and it is, but given her about turn on the need for a general election, nothing can completely be ruled out.

On the other hand, it could be that she and her advisors really don’t grasp the complexity of what lies ahead. This interpretation gains support from many of the details reported in the German story. For example, she proposed that negotiations should take place each month in four day blocks, with the content remaining secret, even though it has been clear from the beginning that the process had to be open, given the different parties involved on the EU side. She also claimed that the UK did not owe the EU any money, again totally at odds with reality. One interpretation is that these comments were purely for domestic purposes, seeking to attract support for, as she later said, being “bloody difficult”, a view advanced by the Political Editor of The Sun. Yet, if true, then surely it would have been Downing Street that would have leaked them?

There is considerable evidence that the Prime Minister really has failed to grasp the issues, especially with regard to health which, as we have seen, is right at the top of the EU’s concerns. Thus, the Commons Committee for exiting the EU elicited the revelation from David Davis that his Department had done no work on reciprocal access to care for UK and EU citizens. The Commons Health Committee expressed concern about the exclusion of the Department of Health from the negotiating process and that “to date little detail has been offered to explain the planning that will be in place for the broad range of issues under consideration.” On 2 May the Commons Business, Energy and Industrial Strategy Committee issued a damning report, summarised by its chair as “The impact of Brexit on Euratom has not been thought through. The Government has failed to consider the potentially disastrous ramifications of its Brexit objectives for the nuclear industry. Ministers must act as urgently as possible. The repercussions of failing to do so are huge.”  Although that report focussed on nuclear safety, there are also profound consequences for the supply of medical isotopes. In other words, Juncker seemed no more astonished than those parliamentary committees who have also sought evidence that the government is on top of things.

But how can this have happened. One factor could be Theresa May’s lack of experience of foreign policy. While she was happy to take the term “bloody difficult woman” from when words of two senior Conservative politicians, Ken Clarke and Malcolm Rifkind, were inadvertently broadcast during the party’s leadership campaign, she failed to repeat their observation that, “She doesn’t know much about foreign affairs”. However, most observers have attached significance to how she drew on her previous experience with EU policies on criminal justice when Home Secretary. In that case, she was able to use Protocol 36 of the Lisbon Treaty to opt out of a raft of measures and then selectively opt back in and she saw this as a template for Brexit. Yet, to the amazement of the EU delegation, and as described in detail by Labour Peer Stewart Wood, she had totally misunderstood how that Protocol expressly made provision for the UK (and Ireland) to do that, a measure inserted in response to British domestic concerns. As they knew all too well, Article 50 is completely different. The surprise was not confined to those from the continent. As the former head of the Government Legal Services noted, her view was “incomprehensible, risible and surely not something she was briefed to say”.

One thing is clear. The UK’s approach to Brexit is likely to provide a vast amount of material for scholars of politics, international relations, history, and much else. For example, the Exeter historian, Neville Morley, has noted how what is happening now is like reading the Melian dialogue, reported by the Greek historian Thucydides in his History of the Peloponnesian War. This is a standard text in the study of international relations. In brief, the inhabitants of Melos delude themselves into thinking they can stand up to the Athenians. As Morely argues, the UK talks as if it is Athens yet the reality is that it is more like Melos. Unfortunately for the Melians, their arrogance leads to their extermination. Maybe this is the time to be grateful to the EU for what many see as its major contribution, peace in Europe, rightly recognised in 2012 by the award of the Nobel Peace Prize.

Martin McKee is professor of European public health at the London School of Hygiene and Tropical Medicine.

  • Much have been said in the general media about forging new trading relationships after leaving the European Union. But the EU represents much more than trade and business – it also provides a mechanism in which member states work together tackling problems that cross our borders or that are simply too big and complex for one country to deal with on its own.

    One such problem is the availability of organs for transplant. British patients currently benefit from access to a larger pool of organs through organ exchange between EU countries. This also improves the match between the donor and recipient.[1,2] The organ exchange mechanism is possible because of the Organ Donation Directive, which set a common set of standards on the quality and safety of organs for transplant across the Union.[3,4] The qualifications of healthcare professionals involved in the process must also be mutually recognised for organ retrieval and implantation to take place across member states.[5] In this process, information about the medical history of both the donor and the recipient will also have to be transferred between member states. This is made possible by the Data Protection Directive, enacted as the Data Protection Act 1998 in this country.[6,7]

    Will it be possible to continue participating in the organ exchange mechanism after leaving the EU? A cross-border process requires cross-border laws and regulations to ensure common standards for organs, for professionals and for data transfer. If you have cross-border laws and regulations, there will be a cross-border court to enforce the relevant legislation.[8]

    The Prime Minister has suggested a “great repeal bill” to incorporate all current EU laws into domestic laws and to withdraw the UK from the European Court of Justice. In doing so, the legal basis for cross-border activities such as organ exchange may also be removed – which final arbiter will enforce the these laws? This could reduce British patients’ access to a wider pool of organs.[1]

    Although the chance of any individual needing an organ transplant is small, this is about how we wish to look after those who are less fortunate than many of us, and fundamentally the kind of society we want for ourselves.

    [1] Leahy P, Gottlieb G. What if… we left the EU? The Bulletin of the Royal College of Surgeons of England 2016 Jun; 98(6): 236–9. http://dx.doi.org/10.1308/rcsbull.2016.236
    [2] The Royal College of Surgeons of Edinburgh. Brexit Statement (9 Feb 2017). https://www.rcsed.ac.uk/news-public-affairs/news/2017/february/brexit-statement
    [3] European Commission. Public Health – Blood, tissues and organs. http://ec.europa.eu/health/blood_tissues_organs/organs_en
    [4] Directive 2010/45/EU of the European Parliament and of the Council of 7 July 2010 on standards of quality and safety of human organs intended for transplantation. http://data.europa.eu/eli/dir/2010/53/oj
    [5] Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (Text with EEA relevance). http://data.europa.eu/eli/dir/2005/36/oj
    [6] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. http://data.europa.eu/eli/dir/1995/46/oj
    [7] Data Protection Act 1998. http://www.legislation.gov.uk/ukpga/1998/29
    [8] Kennedy H. You can’t just cut and run from Europe, Theresa May – it’s illegal. The Guardian (3 May 2017). https://www.theguardian.com/commentisfree/2017/may/03/theresa-may-cut-and-run-europe-illegal-trade-deal-another-galaxy