The UK-EU negotiations
The UK government’s legislation to allow ministers to unilaterally replace the Northern Ireland Protocol and remove the jurisdiction of the Court of Justice of the EU (CJEU) in enforcing EU rules, has now cleared the House of Commons (20 July 2022). The Bill will now pass to the House of Lords in the Autumn where it is expected to face opposition and be amended.
For its part, the European Commission has re-opened legal proceedings against the UK which had been put on hold, arguing that the UK cannot unilaterally redesign an international agreement.
Furthermore, the Commission announced it was also launching two new infringement proceedings against the UK in relation to the Protocol (though not specifically related to the government’s Protocol Bill). These were for 1) failing to carry out its obligations under the EU’s sanitary and phytosanitary (SPS) rules; 2) failing to provide the EU with trade statistics data for Northern Ireland, as required under the Protocol.
The EU is unlikely to take further action until the Northern Ireland Protocol bill becomes law, which may not happen before the end of the year.
The UK Government has written to the European Commission (16 August 2022) to request consultations on finalising the UK’s participation in EU science and research programmes. The UK’s participation was agreed with the EU under the TCA in 2020, but it has now been over 18 months since the TCA was agreed and the UK’s association to these programmes has not progressed.
Meanwhile, the Government announced a package of transitional measures to support the research and innovation sector affected by delays to the UK's association to Horizon Europe. While acknowledging that its preference remains association and that it continues to do everything to achieve this, the government believes it wise to prepare for all scenarios to ensure the stability and continuity of funding for researchers and businesses.
The transitional measures, which will come into force if the UK is not able to associate to Horizon Europe, include: an extension to the Horizon Europe guarantee; a commitment to assess any 'in-flight' applications; and a commitment to fund all eligible UK entities participating as part of consortia in calls open to 'third countries' where the Grant Agreement is signed before 31 March 2025.
In December 2021, the European Health Stakeholder Group of EU-wide health organisations warned against delays to the UK’s association to Horizon Europe, stating this was having a mutually detrimental effect on patients and clinical research in both the UK and the EU. Read their statement here.
The EU’s formal decision to grant data adequacy to the UK June means that data can continue to flow unimpeded between the EU and the UK. However there is no room for complacency as the UK Government’s recent consultation “Data: a new direction” on proposals for changes to the UK’s data regime could result in the EU reviewing whether the UK’s data protection rules continue to be “equivalent” to those of the EU, should these changes be enacted in future. The data sharing agreement is due to be reviewed after four years but could be reviewed earlier.
Data transfers underpin our entire NHS and European health sector, and the agreement is instrumental to addressing cross-border health threats such as COVID-19, enabling the movement of professionals and facilitating crucial research, development, and cooperation. If the EU revokes the UK data sharing agreement, costly and burdensome alternative transfer mechanisms will need to be put in place for personal data to continue to flow.
The NHS Confederation is playing a leading role in the EU Joint Action on the EU Health Data space, allowing us to help shape and improve the way in which cross-border health data is used in future for the benefit of citizens’ health, public health, research and innovation.
The UK Health Security Agency (UKHSA) and the European Centre for Disease Prevention and Control (ECDC) recently signed an MoU on health security collaboration. It is intended to strengthen collaboration between the two agencies and will create an overarching framework and principles that govern future cooperation between ECDC and the UKHSA. It will also identify a number of key topics where technical collaboration is considered important, such as on COVID19, influenza and vaccination/immunisation. This will cover exchange of information, mutual consultation in the event of an emerging health threat, and possible exchange of personnel and liaison officers.
The Brexit deal
The trade and cooperation agreement was concluded between the UK and EU on Christmas Eve and addresses many of the concerns repeatedly expressed by the NHS Confederation and Brexit Health Alliance over the last four years. Inevitably the new relationship between the UK and EU has resulted in more complex and time-consuming procedures compared with the rules that applied when the UK was a member of the EU.
This letter to the health and care sector on 30 December 2020 from the Department of Health and Social Care provides an update on the UK-EU Trade and Cooperation Agreement and the government's preparations for the end of the transition period. For a detailed assessment of the impact of the deal, you can read the European Office’s briefing.
The NHS Confederation also hosted an online event ‘What does the new Brexit trade deal mean for the NHS?’, looking at the impact of the Brexit deal on the NHS and wider health sector that supports it. The session detailed where we are in the process, shared a full run down of the agreements that have implications for health, and discussed what changes can be expected and where members can find the latest advice and guidance on Brexit issues. Visit the event page for the recording and presentation from the session.
The Withdrawal Agreement: Implementation
The EU-UK Joint Committee
The Joint Committee has the overall responsibility to oversee and monitor the application of the UK-EU Withdrawal Agreement, including the Northern Ireland (NI) Protocol, which entered into force on 1 February 2020. It is co-chaired by the UK and the EU – the UK co-chair is Chancellor of the Duchy of Lancaster, Rt Hon Michael Gove MP and the EU co-chair is European Commission Vice-President, Maroš Šefčovič.
The Cabinet Office has consulted on Government engagement with business and civil society groups on implementation of the TCA, which will include setting up a Domestic Advisory Group and Civil Society Forum. The NHS Confederation and other Brexit Health Alliance members responded, highlighting the importance of the health sector having a “seat at the table” and a genuine opportunity to influence the work of the Partnership Council.
Citizens rights and reciprocal healthcare
A new body, the Independent Monitoring Authority for the Citizens’ Rights Agreements, has been set up to ensure that the rights of EU and EFTA citizens enshrined in the WA and TCA are implemented in the UK.
Neither the TCA nor the recent trade deals between the UK and EFTA countries include reciprocal healthcare provisions, but the UK Government is hoping to conclude such agreements shortly. Agreement on reciprocal healthcare has been reached for Gibraltar and Switzerland which are similarly outside the scope of the TCA.
Accessing healthcare in the EU from 1 January 2021
The Government has launched its new Global Health Insurance Card (GHIC), which will gradually replace the existing European Health Insurance Card (EHIC) and which will continue to guarantee the rights of UK citizens to receive emergency and medically necessary healthcare when travelling in the EU - this includes medically necessary treatment for a pre-existing or chronic condition. Current EHICs will remain valid for as long as they are in date and people can continue to use them when travelling in the EU and application for the replacement GHIC will only be necessary when a current EHIC expires. The new GHIC is free and can be obtained via the official website.