Martin McKee: The Brexit withdrawal agreement has important implications for the NHS and public health

It is still possible that some version of Theresa May’s proposed deal may come to pass. And if it does, what are the implications for health?

mcKee_martinObserving the UK’s approach to Brexit has been like sitting around the Oracle at Delphi. First we heard that “Brexit means Brexit”. Then we were told of a series of “red lines”. Unfortunately, anyone who understood the EU Treaties, which seemed to exclude most of the British Cabinet, knew that these were incompatible with what the UK said it wanted to achieve. Opposition politicians didn’t help, simply generating endless, and fruitless debate on the difference between “the” Customs Union and “a” Customs Union.

The task of explaining these meaningless statements has fallen to a small army of commentators, essentially fulfilling the role of the priests that surrounded the Oracle. Unfortunately, most of those in the mainstream media, with a few honourable exceptions, were scarcely any better informed than the politicians they were reporting on. Indeed, they often seemed to amplify the confusion, seemingly unable to look up words such as “backstop” in a dictionary. If this appearance of confusion reflects the actual negotiations, how would anything ever be agreed? Yet as we now know, it has been. To widespread surprise, and at almost the last moment, the two negotiating teams produced a 585 page draft Withdrawal Agreement, containing a mass of detail that would allow the UK to leave the EU with a deal covering the Irish border, citizens’ rights, and the UK’s continuing payments to the EU budget.

But that was only the beginning. The prime minister first had to gain approval of her cabinet, which she did, but only at the price of several ministerial resignations. Among them was the brexit secretary, who claimed to have been unaware of what was in the agreement. Other cabinet ministers with concerns stayed, but made clear that they were only doing so to change it. They simply ignored the clearly stated position of the EU that negotiations would not be reopened, even if there was any time to do so, which there is not. An even greater challenge, so far unresolved, will be to get the agreement through Parliament. Given that it has already been rejected by all opposition parties and both Leave and Remain wings of the Conservative Party, this seems unlikely.

So where next? The obvious solution, in practical if not political terms, would be a further referendum with an option to remain, a view supported by this journal, the BMA, and the RCN. Although it is unwise to predict anything, polling data now shows a consistent majority for Remain and, hopefully, awareness of the many illegal actions that characterised the Leave campaign last time would make it more difficult to repeat them. There are still some politicians who advocate leaving with “no deal”, although there is even less support for this option in Parliament, with most MPs recognising that it really would be catastrophic. So even though the parliamentary arithmetic is against her, it is still possible that some version of Theresa May’s proposed deal may come to pass. And if it does, what are the implications for health?

To answer this question it helps to step back to see what the prime minister really meant when she said that “Brexit means Brexit”. The EU is based on four fundamental freedoms, of movement of goods, people, services, and capital, with the principles underlying them enshrined in the European Treaties and overseen by the Court of Justice of the European Union (CJEU). Accounts from contemporary observers indicate that, when home secretary, she rarely ventured outside her brief. As such, she was really only interested in movement of people, and even then only in those coming to the UK from the EU27 rather than the other way round, and in the jurisdiction of the CJEU, which she seemed to bracket with the European Court of Human Rights, a completely separate entity that she also expressed a desire to leave. She seems to have had little, if any, interest in the other areas of EU competence, and particularly the single market and Customs Union. As a consequence, while remaining resolute on migration and the court, the withdrawal agreement is essentially a fudge which retains many elements of the single market and customs union for at least a few more years. After that, who knows. In the long term the relationship between the EU and the UK will be set out in a future trade agreement, but the details will not be known for some time, perhaps several years. For now, all that will be available will be a political declaration, currently in draft, setting out proposals for the direction of travel, but which will have no legal status.

Given these considerations, there are three areas where those interested in health should have concerns. The first relates to money. The EU27 have made clear that whatever arrangements are agreed, the UK will have to be worse off than had it remained a member state. This is entirely logical. Why would any partnership agree that you could have just as good a deal without contributing to the common good? All credible economic forecasts predict that the economy will grow at a slower pace, or even contract, than it would have if the UK remained. Already, it lies at the bottom of the table for economic growth and an increasing number of companies are scaling back production or relocating. The idea that this damage will be compensated for by trade deals with the rest of the world is a fantasy. Firstly, it is likely to take years to agree them. Secondly, most of the potential major trading partners already have trade agreements with the EU and it is very unlikely that the UK could be included in them. Indeed, even if all countries involved agreed, the UK is unlikely to be willing to accept that it would have to surrender any influence in how any deals operate. Thirdly, it seems unlikely that the government or parliament would willingly concede the likely conditions, such as lower food standards in US imports or visa free travel from India. As a consequence, it is very difficult to see where the promised additional funds for the NHS would come from, not to mention the further threat to what remains of the UK’s social care sector.

The second relates to free movement of people. This is an obvious concern, with evidence of a massive reduction in nurses and others coming from EU27 countries. Already, hospitals are having to close services because of staff shortages, in some cases clearly linked to Brexit. The prime minister’s description of those on whom the NHS depends as “queue jumpers” can only exacerbate the perception created by her “hostile environment”. Even in the unlikely event that she could convince those EU27 citizens already here that their path to settled status will be straightforward, a major task given the failings that have already emerged in the system, those coming in the future will face additional regulatory barriers. And then there is the situation of British citizens who have retired to the EU27. The government now seems to have conceded that the existing reciprocal arrangements for health care cannot be retained for those planning to retire after Brexit and is seeking bilateral arrangements. However, these are likely to be complex and bureaucratic and it is difficult to see how they could replicate the existing package of rights in cross border care.

The third relates to the protections for health in the Lisbon Treaty. Article 168 requires that a high level of health protection be ensured in all EU policies. The UK rejected the argument that this provision be retained in UK domestic law, instead offering only a verbal commitment to “do no harm”. Fortunately, there is no threat in the short term. The protocol on Ireland/ Northern Ireland, which is integral to the withdrawal agreement, sometimes referred to as the “backstop”, creates a single customs territory, in effect maintaining the existing customs union, except for fisheries, where agreement has yet to be reached. Given the UK government’s desire to avoid a border in the Irish Sea, this will continue to include all the UK until replaced by a future agreement. Until then, relevant provisions of EU law, including Article 168 as it applies to interpretation of regulation of trade in goods, will still apply and be overseen by the CJEU, if the obvious meaning of the words of the protocol is correct. In passing, this questions the prime minister’s repeated assertions that the UK will be free from the CJEU.

The concern is thus about how a future agreement would work. What would happen if, for example, the UK decided to implement a trade policy that threatened health, such as a departure from the provisions of the Tobacco Products Directive, while seeking to maintain access to the EU market? Obviously, much is still uncertain as the future agreement could take years to reach. However, there are some concerns. Firstly, the wide-ranging powers granted to the government under the EU Withdrawal Act would severely restrict the potential for meaningful scrutiny by the UK parliament. Secondly, if the policy gave rise to a dispute with the EU, it is envisaged that the other mechanism in the Withdrawal Agreement would be carried forward into the future relationship. This involves a joint committee of the EU and UK. If they could not resolve it, they would refer it to an arbitration body. This will have 10 members appointed by each party separately and five appointed jointly. It will select, from among them, arbitration panels of five people, two each from the nominees of the two parties and one from the joint appointees. Decisions will be binding. The CJEU would have to retain a role as the sole interpreter of EU law, but may be quite limited.

The UK’s rejection of a court was inevitable, given the prime minister’s strong feelings about the CJEU. She also rejected a version of the EFTA court, which oversees the relationship between the EU and Iceland, Liechtenstein, and Norway, or approaches that retain some elements associated with courts, such as greater transparency, as included in the EU agreements with Canada and Vietnam. However, those with an interest in the health aspects of international trade have long had concerns about the use of arbitration panels rather than courts. Some of the arguments have been set out by both the House of Lords and the European Commission, noting in particular the lack of transparency of arbitration panels and the exclusion of others with an interest in the case, which could include public health NGOs. The withdrawal agreement repeatedly expresses the need for confidentiality of the arbitration process. Interestingly, some on the left invoked the US insistence on this approach in the now abandoned Transatlantic Trade and Investment Partnership (TTIP) as a rationale for supporting Brexit, even though the EU approach was much more transparent. Ironically, it now seems that the model preferred by the US will be used to resolve UK-EU disputes.

Of course, there are many other areas of concern, in particular those relating to movement of medicines, medical isotopes, and food, but here much will depend on how future customs arrangements and regulatory alignment work. But, as noted above, these are areas where the prime minister is likely to concede ground to preserve the status quo. After all, she was never really concerned about the free movement of goods, services, and capital. Her political problem is that these were exactly the issues that were high on the list of priorities of many of her MPs. Squaring that circle could make solving the Irish border question look like a piece of cake.

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

Competing interests: None declared.