The Withdrawal Agreement Bill and “Do No Harm” to health

Brexit, in any form, poses a threat to health in the United Kingdom. A series of peer reviewed studies evaluate a range of post-Brexit scenarios, from minimal divergence from the single market and customs union through to leaving without a deal, either now or at the end of 2020. Put simply, these studies show that the further that the United Kingdom moves away from the European Union, the greater the threats to health. 

The change of language of the Johnson government, compared to that of the May government, has been interpreted as signifying a wish to diverge markedly from the EU27 in terms of the regulatory environment. This involves commensurately greater risks to health. 

These threats to health fall into at least four broad categories. The first is damage to the economy. Sajid Javid, the chancellor of the exchequer has refused to conduct an assessment of the economic impact of the Johnson October 2019 Withdrawal Agreement, stating that it is “self-evidently” in the interests of the British economy. This view is not supported by any of the serious economic assessments that have been conducted, including by the government. The most recent, by The UK in a Changing Europe research group, estimates that the public finances will be worse off by between £19 and £49 billion per year. The corresponding figures for May’s November 2018 Withdrawal Agreement are £13 and £39 billion. For comparison, spending on the NHS in 2020/21 is estimated at £128 billion.  

The second threat is to the workforce. Priti Patel, the home secretary, has made it clear that freedom of movement will stop when the UK leaves the EU. This will mean that the restrictions that currently apply to health professionals from the rest of the world will apply to those from the EU 27. However, a steady stream of stories of health professionals who have fallen foul of the hostile environment created by the government, for example by making a minor mistake on an application form or allowing their bank account to fall fleetingly below a certain threshold, has exposed an immigration system that is not fit for purpose. In these circumstances, the government’s claims to be welcoming skilled health professionals and scientists ring hollow. 

The shortage of workers has other implications for public health. The cost of food is one. British farmers have become dependent on seasonal agricultural labour, much of it from the new member states. The National Farmers Union reports that at least 16 million apples have been left to rot this year alone as a result of labour shortages. Meat production is also likely to be affected. British abattoirs are highly dependent on vets from other parts of the EU. Their workload will increase dramatically because of the additional paperwork involved in movements between Great Britain and both the EU 27 and Northern Ireland.

A third threat arises from shortages to essential goods, in particular food and medicines. Public statements by ministers that the supply of medicines and medical isotopes has been secured are contradicted by the government’s own assessments.

A fourth threat relates to the loss of the many safeguards to public health that derive from EU law. At present, a new Act of the UK Parliament cannot unilaterally remove this binding law. Post-Brexit, safeguards, including food safety, air and water quality, and medicines, devices, vaccines and blood safety, could be removed, especially under No Deal, or if the future EU-UK trade relationship does not secure regulatory alignment.

The existence of these threats led to the Faculty of Public Health and other health organisations to call upon the government to commit to introduce safeguards as it negotiated the UK’s new relationship with the EU. Based on the existing EU obligation to ensure a high level of health in all policies, it sought a commitment to “Do No Harm.” In response, ministers stated, in Parliament, that:

“there is now genuine recognition on all sides of the Brexit argument that public health must be at the epicentre of our engagement.”

The government also gave a series of other commitments:

  • An unequivocal guarantee that our public health protections and standards will be the same or higher when we’ve left the EU.
  • Public health protections and standards – and our National Health Service—will not be “traded away” with the US or any other trade partner.
  • The Government—or others—can be challenged and held to account in our domestic courts after Brexit should it fail to meet these commitments.
  • Our health partnerships with the EU will remain just as strong in the future.

Given these commitments, one would expect that safeguarding health would at least get a mention in the government’s Withdrawal Agreement Bill (WAB). It doesn’t. 

However, a related issue is covered in Clause 34 of the WAB on protection for workers’ rights. Trade unions and others have been particularly worried that existing protections could be removed, given the likely divergence from EU standards more generally. This is an area where those Labour MPs who support the Johnson Withdrawal Agreement have expressed concerns. Clause 34 suggests that the Prime Minister had to make concessions to gain their support. 

The content of the workers’ rights protections in the WAB needs careful scrutiny. Although it is termed “non-regression”, the detail in Schedule 5A of the Bill suggests that it guarantees only a ministerial statement on the question of the effect of new post-Brexit legislation on workers’ rights. Whether this type of legal obligation provides sufficient reassurance will be a matter for Members of Parliament to decide. 

The section of the WAB dealing with workers’ rights is likely to attract considerable attention over the next few days. This is entirely justified: workers’ rights are very important. 

But so is health. 

After all, many of those who voted to leave the EU did so because they wanted to believe the dishonest claims about the NHS made by the supporters of Brexit, painted prominently on the side of a bus.

If there is to be a workers’ protection provision in the WAB, there should also be a provision on the government’s commitment that Brexit should “Do No Harm” to health.  

And—whatever provisions are included in the WAB—it is one of the most important pieces of constitutional legislation that Parliament has had to consider in four decades. The idea that it can be scrutinised adequately in a few days is simply implausible. Ministers have already committed to “Do No Harm” to the health of the British public. It is essential that Parliamentarians hold them to that commitment, and have time to do so.

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

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