Brexit and coronavirus: how can the NHS avoid a fight on two fronts?

With the NHS under such exceptional pressure during the coronavirus crisis, it’s easy to overlook the fact that the UK’s Brexit transition period ends on December 31. Mark Dayan takes a closer look at how these two challenges for the health service might collide, and says there is a case to err on the side of caution.

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Published: 30/03/2020

As the NHS and its staff begin extraordinary actions to deal with the spread of the new coronavirus throughout the UK, some believe we face a prolonged or cyclical struggle. The influential Imperial College London paper on interventions against the disease anticipated that, with measures similar to those now being taken, we could expect a second high peak in infections some months after they are relaxed.

This means that the health service may be under great pressure as the UK leaves the European Union’s single market and customs union. These wide-ranging changes are due to take place on December 31, when the Brexit “transition period” ends according to last year’s withdrawal agreement. As the government and NHS England anticipated ahead of the earlier possible departure last year, this will pose multiple issues for health service capacity. Some look likely to affect resources on which the response to the coronavirus rests.

Raising the barriers

December 31 will mean a battery of new regulatory and customs barriers to trade – especially if no trade agreement is reached, but to a large extent even under a basic free trade agreement.

For medicines, the previously largely combined regulatory systems of authorisation, release of batches, manufacturing inspections and “qualified people” providing oversight will need to be duplicated. If a company only complies with the EU side at first – and the larger market will tend to take priority – it would not be allowed to bring products to the UK. For medical devices like ventilators and gloves, our exit from the CE marking system would have a similar effect, though it may be possible to keep mutually recognising compliance if we have a deal.

The UK can unilaterally decide to keep following EU rules and accepting EU processes, as was the plan last year in preparation for a full ‘no deal’ Brexit. But this too creates anomalies. Under last year’s approach, a small UK firm starting to supply ventilators to the NHS trust down the road would need to get approval from an EU standards body – and they may not be its priority.

And importers would still face the cumulative effect of changes like these across every other sector, as well as the sudden multiplication of the amount of customs requirements for them and for the border authorities. When it looked as though we might leave the single market and customs union through a no deal last year, the government’s Border Delivery Group anticipated “significant disruption” for six months to key supply lines over the Channel afterwards, “with the most severe period being the first three months”. The Department of Health and Social Care estimated that the “vast majority” of the three-quarters of medicines and half of “clinical consumables” that we obtain from the EU came via these routes. Clinical consumables include masks, needles, and other essentials requiring a constant fresh supply.

The Freight Transport Association has said that its members will find it especially difficult to deal with the new requirements at the same time as the changes brought about by the pandemic.

Once it is no longer treated as a member state, the UK will be subject to any export bans the EU brings in on medicines, medical devices or other products. The European Commission has standing powers to quickly introduce such provisions under a 2015 Regulation, and has already put temporary restrictions on protective equipment.

The change in status would also make it harder to conduct clinical trials and share data. It would remove the UK from systems for monitoring the safety of medicines and from the European Centre for Disease Control that coordinates updates on pandemics. Whatever the possible advantages of Brexit in relation to regulatory autonomy, meanwhile, they do not obviously offer a short-term response.

What is the responsible course of action?

The UK previously planned to rely on stockpiles of several weeks’ worth of medicines and devices, but these have apparently now been partially released to meet our immediate needs. Building up a new stockpile of precisely those products that are in intense global demand would be no easy task. We might not know precisely what to stockpile, as new treatments, procedures and vaccines are developed throughout the course of the pandemic.

The opening of new routes to and from the continent was another mainstay of the UK’s planned response last year, and could be considered again. But it may now be made more difficult by the suspension of air and shipping routes, the need for disease control measures, and the heavy demands being placed on the logistics sector.

If officials believe that the pandemic is likely to be in full force at the time we leave the single market and customs union, and that our departure will create prolonged difficulty getting supplies into the UK, any responsible government would need to think again.

The withdrawal agreement signed last year means that any decision to extend the transition period must be made by July 1 – six months in advance. For the UK to commit to sticking to the original date so far in advance would represent a gamble on the future course of the negotiations and the disease. The government added a ban on an extension to the EU Withdrawal Act passed earlier this year, and would need parliament to repeal this.

If the UK does decide to press ahead but it later becomes clear that December will be a very difficult time, the only other safe alternative would be to reach an agreement later in the year that effectively allows more participation in the single market and customs union than current plans on either side anticipate, at least for a while. This would probably require a round of ratification across the continent. It would be a tall order for the EU and for member states busy fighting the virus – though they too would suffer to some extent from the disruption of the alternative. The UK would have to forget red lines such as avoiding the jurisdiction of the EU’s Court of Justice, at least for a time.

Taking the right decision will mean looking ahead in very uncertain times, and there is a case to err on the side of caution. The NHS and its suppliers went to extraordinary lengths to prepare for Brexit last year, and are going to extraordinary lengths now to prepare for the peak of the epidemic. But asking them to do both at the same time could be a step too far.

*If you would like to find out more about Covid-19, Coronavirus: The science explained from UK Research and Innovation includes evidence and facts about the virus.

Suggested citation

Dayan M (2020) “Brexit and coronavirus: how can the NHS avoid a fight on two fronts?”, Nuffield Trust comment.

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