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Tamara Hervey and John Middleton: Health in future UK trade deals

Health must be “at the table” in any future trade deals the UK makes after Brexit, say Tamara Hervey and John Middleton

It would be a mistake, given the political focus on agreeing withdrawal and avoiding a no deal Brexit, to forget that whether the UK leaves the EU with an agreement or not, the UK will then need to forge new trade agreements: with the EU and with other countries.

Public health matters for trade. The public’s health is a key driver of sustainable economic growth and productivity. This is well understood internationally, by business leaders and the health community alike.  

Trade agreements matter for public health. In the context of international trade, public health standards are seen as “non-tariff barriers”—inherent limitations on free trade. They have to be justified as a necessary regulation in the public interest.

The precise effects of trade agreements on public health are insufficiently understood. But meta-studies have found consistent evidence of trade agreements having correlations with higher incidence of cardiovascular disease and increased BMI following increased consumption of processed foods and sweetened drinks. Concerns have also been raised about increased nicotine and alcohol consumption. Much will depend on the specifics of a trade agreement and the extent to which it carves out public health protections in its text, as well as on the modalities of enforcement.

The EU balances those interests, both in its own internal “trade agreement” and in its trade agreements with the rest of the world. The duty to “do no harm” to health, found in Articles 9 and 168 of the Treaty on the Functioning of the EU, requires that in all its policies and activities (including external trade), the EU must take into account a high level of human health protection. That duty protects public health in the EU, and elsewhere, inter alia through the EU’s trade agreements.

When or if the UK leaves the EU, this “quasi constitutional” duty will no longer apply to the UK as a matter of EU law.  However, the government has offered reassurance that the duty will nonetheless still form part of UK law and policy making. As the UK develops its independent trade policy, and enshrines that in international agreements, there must be no rowing back on current levels of health protection in areas like air or water quality, food safety, trade in unhealthy commodities (for instance, tobacco), or in health products or services.

In order to hold the government to account on that principle, future UK trade deals need to be made in a transparent way, with appropriate access to all stakeholders: Parliament, business, the health sector, and the wider public—including “third sector” organisations. The UK’s future trade agreement(s) with the EU and with other countries need to be made in this way.

The Faculty of Public Health found that the vast majority of British business leaders do not want public health standards to be lowered. They want a predictable and level playing field with consistent standards: the same standards should apply to them as to companies in the countries or trade blocs with which the UK trades. This view in the current climate echoes the view of industry previously, when they rejected the responsibility deal, under the Health and Social Care Act 2012. Business leaders do not want to offer concessions that competitors do not agree to; they want certainty about how rules of trade apply.  

Countries elsewhere in the world, such as the USA or China, do not have the same approach to public health regulation and do not provide the protections that are enjoyed in Europe. “Removing red tape” so as to strike trade agreements with lower standards would not only jeopardise public health standards. It would also go against the views of British business. Some have argued that the removal of regulatory restrictions could enable us to compete along the same lines as India in world markets. However, the Faculty of Public Health argues that the UK could be a beacon and a global leader in advocating for better standards in public and environmental health protections, workplace health, and workers rights in agreeing new trade agreements.

At some point, when or if the UK leaves the EU, this will be either on the basis of the currently negotiated withdrawal agreement, or on a no deal basis. Whichever is the case, the UK must then agree its future trade relations with the rest of the world acting independently, rather than negotiating as part of the larger EU bloc. Protecting and improving public health has been said to be “part of our national DNA.” The UK’s independent trade agreements must prioritise health, and must be negotiated in a transparent way, so that health is demonstrably “at the table.”

Tamara Hervey is the Jean Monnet professor of EU law at the University of Sheffield. Twitter @TamaraHervey

Competing interests: Professor Hervey gratefully acknowledges the support of the ESRC’s UK in a Changing Europe and Governance after Brexit funding, ES/R002053/1 and ES/S00730X/1.

John Middleton is the president of the United Kingdom Faculty of Public Health. Twitter @doctorblooz

Competing interests: John Middleton, president of the United Kingdom Faculty of Public Health; an elected, voluntary post; no conflicts of interest declared.