UK Health Law and Policy: where now after Brexit?

The phoney war of Brexit is finally coming to an end. After years, if not decades, of argument about the desirability of European Union membership, the UK is moving on to the question of what Brexit means, what Brexit can mean, and how to make that reality in negotiations and public policy.

Last week, the Health Select Committee published its Report on Brexit and Health and Social Care – People and Process. While the White Paper emphasised the need for clarity, the Select Committee Report highlighted that the current situation in relation to health law and policy is very far from clear. The extent to which the EU is involved in health law and health policy has grown exponentially over the last two decades. As the Committee highlighted in undertaking our ‘conscious uncoupling’ from the EU, the UK government has to identify what needs to be addressed and ensure that practical solutions are in place.

First, the question of people. The provision of emergency care for UK citizens abroad through the European Health Care with a hard Brexit will be lost without specific negotiation. UK retirees in other member states are potentially vulnerable as they will lose rights for obtaining health care. There could be a major NHS staffing crisis if EU citizens working as health professionals do not have their rights to remain guaranteed (or even find the atmosphere unwelcoming). For example, in London there are estimates that some 30 per cent of health and social care professionals are from other member states. It is very hard to see how they could be replaced in any reasonable time frame. These are not simple issues, for they touch on law concerning pensions, residence, professional qualifications, insurance and labour contracts. Managing them badly could have immediate, unexpected and negative consequences for the NHS, for UK citizens abroad and for EU citizens in the UK.

Secondly, the regulation of clinical trials and pharmaceuticals is underpinned by EU law. There is a major reform underway currently of clinical trials regulation and new EU regulations due to come into force in 2018. Currently the European Medicines Agency is located in London but there are now plans to relocate it to another member state. Areas such as pharmaceuticals involve interdependence between the EU itself and other member states eg, in relation to notification of suspected serious adverse reactions from drug trials. After Brexit D-Day, what exactly happens to such information? And in the longer run, how will the UK sustain the science and skill base that underpins its large and lucrative pharmaceutical industry without freedom of movement and EU research funds?

Thirdly, public health regulation is fundamentally impacted by EU law. For example, in relation to tobacco regulation successive EU Tobacco Directives has driven regulation on matters from tobacco advertising, the marketing of cigarettes and also the regulation of e-cigarettes. The UK has a good track record of work in the area of tobacco control including additional measures such as bans on smoking in public places. Nonetheless, there is a real concern that health law and policy in this area could be knocked back and possibly adversely impacted in an area which has notoriously been subject to lobbying by the tobacco Industry. There are also complex regulations governing areas such as food safety and communicable diseases which will affect major UK import and export industries from restaurants to innovative jams to tourists.

In all of these cases there are policy options and possible solutions which can be negotiated with the EU or even managed domestically. But none of them are obvious or simple or cheap. Few can be done in a rush at the last minute. That is why the real work of Brexit has to start now.

Professor Jean McHale, Director of the Centre for Health Law, Science and Policy, Birmingham Law School, University of Birmingham.

Scott L Greer PhD, Professor of Global Health Management and Policy, University of Michigan School of Public Health and Senior Expert Advisor on Health Governance, European Observatory on Health Systems and Policies.