The government has been consulting on how it should engage with business and civil society groups on implementation of the Trade and Cooperation Agreement (TCA) through the Domestic Advisory Group (DAG) and the Civil Society Forum (CSF). Below is our response to the consultation.
Who we are
- The NHS Confederation is the membership body that brings together, supports and speaks for the whole healthcare system in England, Wales and Northern Ireland. We represent hospitals, community and mental health providers, ambulance trusts, primary care networks and federations, clinical commissioning groups and integrated care systems. The members we represent employ 1.5 million staff, care for more than 1 million patients a day and control £150 billion of public expenditure. We promote collaboration and partnership working as the key to improving population health, delivering high quality care and reducing health inequalities.
- We coordinate the Brexit Health Alliance, a coalition bringing together NHS providers and commissioners across the four UK countries, patient organisations, medical researchers and healthcare industry, to promote post-Brexit arrangements that minimise risk and maximise opportunity for the wider health sector. The Alliance continues to press for resolution of ongoing healthcare-related issues arising from the Trade and Co-operation Agreement and its implementation.
- We have been actively engaged since the Brexit referendum in assessing the implications of exiting the EU on the NHS, and in advocating for a UK/EU agreement that would prioritise the interests of patients and the healthcare systems on which they rely. We also work closely with the DHSC and NHS England/Improvement to support our members in planning for and implementing the necessary changes “on the ground”.
1. How should the UK Government engage formally on TCA implementation issues through a domestic advisory group? The Government is planning a meeting once or twice a year with one group and would welcome your comments on the format, scope, and other ways of consultation. How do you see this group operating effectively?
1.1 The range of issues covered in the TCA is very wide: the consultation document (page 2) lists some of them, several of which are highly relevant to the healthcare sector. To give some examples:
- Supply of medicines and medical devices (goods) and services – of especial relevance to patients/service delivery in Northern Ireland. Border controls, tariffs, regulatory requirements
- Impact of regulatory alignment/divergence especially on development, licensing and marketing of novel treatments and technologies
Social security coordination
- Citizens’ rights, including reciprocal healthcare, pensions and other benefits) (impact on healthcare workforce, especially EEA citizens and their dependents), visa requirements
Participation in Union programmes
- Participation in Horizon Europe programmes, including collaboration in healthcare research and multinational clinical trials
- Digital and data implications e.g. sharing of patient data for research or epidemiological purposes
- Collaboration in cross-border health security.
1.2 The committee structures set up under the TCA (specialised committees, trade specialised committees and working groups) do not envisage a specialised committee on Health (unlike other sectors such as aviation, fisheries etc). Given the size and critical nature of the health sector, and the numerous provisions in the TCA which touch the interests of patients and healthcare providers, a specialised committee on Health would enable the impact of these provisions to be considered “in the round” rather than in a fragmented and un-coordinated manner.
1.3 An annual meeting of the Domestic Advisory Group (DAG) seems inadequate for the enormous range of implementation issues to be covered. A lot can happen in a year. We would recommend the DAG meets at least twice a year in order to allow genuine, timely and relevant consultation. There may be a case for special more regular meetings to be considered around particular live processes, for example if dispute resolution measures were ever taken, the UK/EU data adequacy decision were revisited, or the UK role in an EU programme (Horizon Europe) were reconsidered.
1.4 We appreciate that the DAG is an advisory group and its role is not to dictate government policy. Inevitably meetings of this kind tend to be highly orchestrated “theatre”. There is a lot of ground to cover and a lot of high-level reporting to digest. The real work of providing insights to inform and support implementation goes on in the detailed committees that takes place between the plenary sessions. However, if the DAG is to be more than just window-dressing, its scope should cover not only the passive receipt of information/reporting back from government on the implementation of the TCA and the operation of the Partnership Council, but the opportunity for members to proactively input into ongoing and upcoming matters of concern that come within the remit of the PC and its various committees. The scope for members to proactively input to ongoing policy development should be clearly outlined in the terms of reference.
1.5 The real value of advisory groups of this kind is that they bring the view from the “coalface” into government policy and strategy. Our members in the NHS tell us what is really happening on the frontline in hospitals, community and primary healthcare settings and on the practical impact of the TCA’s provisions, and how implementation might be improved. This feedback and experience is an invaluable resource when harnessed constructively. It is important that the advisory group is seen and used by government as a means to gather crucial information that demonstrably shapes policy. We must avoid the establishment of the advisory group becoming simply a tick box exercise to comply with TCA obligations.
1.6 We do not see the role of the DAG as scrutinising implementation of the TCA and holding government to account. There are other mechanisms for this, notably Parliamentary committees for which this is their specific remit. That does not mean that the DAG should not challenge, but that its advice should be focused on the future and on improving the smooth and effective operation of the TCA at operational level
1.7 We suggest therefore that the scope of the DAG should include the opportunity to shape the format of the reports from government by stipulating that they should contain certain kinds of information (for example, saying what NGOs or other groups were involved in/consulted; and what are the upcoming “hot topics” for the months/year ahead on which the DAG might wish to express an opinion). The reports should be circulated sufficiently far in advance of the meeting for DAG members to respond, ask questions and suggest topics for debate at the plenary session. The terms of reference should stipulate a timeframe before the meetings within which these procedures should take place. In other words, the meetings should not just be top-down occasions in which members are passive recipients, but offer the opportunity for members to raise “bottom-up” issues of importance.
1.8 The risk with this approach is that the meetings become hopelessly overloaded as all participants want their “pet topics” on the agenda, resulting in insufficient time for meaningful discussions. We suggest therefore that the DAG should have a established secretariat function to help to ensure that the agenda is well considered/ built collaboratively. This secretariat could also serve as a contact point for more detailed discussions in the margins and enable as much business as possible to be conducted outside the meeting. The focus of the agenda should be on selecting upcoming topics on which there is a realistic possibility of members inputting views that can help to shape or modify the PC’s activities, for example on proposed memoranda of understanding or supplementary agreements on topics not covered or only sketchily covered in the TCA. In the health arena this could for example include agreements on batch testing of medicinal products, facilitating clinical trials by making sponsorship easier across the UK/EU borders, or more effective cross-border health security co-operation.
1.9 The outcome of each DAG meeting should be that members should be satisfied that, on the issues on which they have expressed concern, there is an assurance and a practical mechanism to involve them and engage them meaningfully in taking these concerns forward before the next meeting. Not just “we hear your views” without feedback on actions and outcomes. Clear mechanisms for relaying this feedback should be outlined and communicated in the terms of reference. From the government point of view, this means that DAG members have a responsibility to engage constructively and to work towards positive outcomes rather than merely complaining.
2. If a selection had to be made, what further criteria, additional to those set out in Article 14 of the TCA, could be prioritised to decide the members of the UK delegation to the Civil Society Forum, e.g. the size of the economic or public interest, geographical interest, trade knowledge and experience or ability to protect and represent the UK’s interest effectively?
2.1 The size and reach of organisations will be critical, not only in terms of size of membership, economic importance (annual turnover/contribution to the UK’s GDP) but also their political “clout” and influence, especially in the European Union. On all of these criteria we believe the NHS Confederation is the only organisation that can speak on behalf of the whole NHS and represent the interests of both providers and commissioners of services, for the benefit of the patients we exist to serve.
2.2 Certain areas of the TCA, in particular those arising from the Northern Ireland Protocol, are of critical importance to patient and public health. For example, the authorisation, marketing and transportation of medicinal products and medical devices into Northern Ireland, and the ability of the UK to participate in pan-European clinical research and trials. The NHS is the largest employer in the UK and is therefore important not only because of the services our members provide but also as a major economic player and catalyst for employment, economic growth and regeneration across the UK’s regions. The NHS is a major consumer of products and supports local businesses that thrive on the income from staff and patients, as well as from formal commercial contracts.
2.3 We suggest that in determining the membership of the DAG and CSF, to keep these bodies to a manageable size and avoid duplication, priority is given to “umbrella” organisations that bring together the major players in their sector and whose coverage and representativeness are not in doubt.
2.4 Ideally DAG and CSF member organisations should have UK-wide coverage, or if from one of the four UK nations should not cover the same ground as another member. The NHS Confederation is a “family” of organisations across England, Northern Ireland and Wales.
2.5 An additional criterion could be that the members have strong and demonstrable links with their counterparts in the European Union. So, for example, the NHS Confederation is a member of the European Hospital and Healthcare Federation, the European Hospital and Healthcare Employers Association and the European Health Management Association. Through these influencing channels we can indirectly reach the European Commission, members of the European Parliament and politicians in EU member states who cannot be reached through the formal EU structures now that the UK has exited the EU. We maintain a small European office based in Brussels and embedded in EU-wide networks, so that we can lobby and influence on the ground to maximum effect.
2.6 We also convene a European health stakeholder group which has a wide range of member organisations from across the EU and which has supported us by lobbying for mutually beneficial outcomes for patients and providers across the UK/EU border. For example, campaigning for UK/EU data adequacy agreement, for continued collaboration in medical research, and for the correct implementation of the reciprocal healthcare/social security provisions set out in the WA/TCA.
3. What role should the UK Government play in supporting interactions between UK and EU stakeholders on TCA implementation, in addition to the sharing of contact information under the terms of the TCA and facilitating the CSF meetings?
As we have indicated above, the NHS Confederation has strong links with health stakeholders in the European Union and this is no doubt the case with many other prospective TCA/CSF members. However, the Government could amplify this reach through working with and through trade membership organisations - another post-EU exit leverage route that reaches influencers beyond Government scope - as well as through the UK Mission to the EU (UKMis).