Health and hard Brexit: the impact of the new deal

Last week, the Prime Minister and the leaders of the European Union unveiled a new Brexit deal. Most of the binding part, the Withdrawal Agreement, is identical to the agreement Theresa May reached more than six months ago. But the Northern Irish “backstop” section has been replaced, and a revised non-binding “Political Declaration” lays the course for a more distant overall future relationship with the EU.

Earlier this year I warned that from the point of view of health and health care, there were drawbacks to “binning” the backstop. Now that we have new documents, we can go through the issues it raised one by one and see what has happened.

New rules

Northern Irish and Irish health services, including critical ambulance transfers, rely on staff, patients and supplies moving over an open border. Securing this was the point of the backstop: losing it was the most obvious downside of its excision.

The good news is that the revised Northern Irish protocol should still prevent a hard border. Rules for customs and for physical products will stay the same on both sides of the border, although a complicated system allows the UK to give rebates so that Northern Irish imports ultimately incur UK rather than EU tariffs. Keeping an open border removes some of the possible obstructions to the staff, patients and supplies that services on the island benefit from moving back and forth.

However, the new version of the protocol does away with the customs union between the whole UK and the EU laid out in the old one. This would have meant no tariffs or limits, and fewer checks on trade. Although the original protocol was designed only to come into effect as a last resort, it served as both a default fall-back option and a baseline for future options, pointing the way towards an EU-UK customs arrangement into the future. The direction of travel was reinforced by the old political declaration, which promised to “build and improve” on this arrangement. 

The NHS is reliant on imported supplies – some types of which are overwhelmingly from the EU – and has relatively little interest in reworking trade deals, so this was broadly positive. But the new Irish protocol leaves us somewhere very different and the new declaration does not repeat this language. The Withdrawal Agreement Bill designed to implement the deal would actually set into law that goals for the future relationship should be in line with the looser arrangement in the declaration – although amendments in the House of Commons will aim to change this.

These shifts are likely to mean higher costs to the NHS to some extent, potentially to the tune of several hundred million pounds each year. Continued access to EU arrangements like EHIC cards and the new clinical trials portal would have been a stretch even under the previous deal: they now seem remote possibilities. The loss of the old backstop means that if the UK does not reach a trade deal with the EU by the end of the standstill period for negotiations – which may be as soon as the end of 2020 – the spectre of no deal for supplies will return unabated, bringing potentially serious implications for the delivery of care.

An emptier exchequer

A similar impact in other sectors would also likely mean an economy that grows more slowly, and so less tax revenue to support health and social care. Given the uncertainty in the trade arrangement, precision is difficult, but the UK in a Changing Europe estimates anywhere between £16 billion and £49 billion less to spend annually compared to staying in the EU. 

Within the health and care sector, strong cases have been made for several billion pounds in extra annual funding for both NHS capital and an overhaul of the failing social care sector. But in such a straitened situation, finding that money would require some very tough decisions on tax or cuts to other public services.

This is not an inevitable consequence of the deal. There is nothing in the legally binding agreement to prevent a softer Brexit, even a “Norway plus” agreement so soft that the NHS and the wider economy would barely notice it. But that is certainly not the direction of policy.

Leaving the level playing field

The end of the backstop also means the end of the “level playing field” provisions that obliged the whole UK to keep to EU standards in areas such as competition law, environmental regulation and workers’ rights. The agreement itself does not change the law – but it means changes in future would be within the power of the UK Parliament (or the Welsh and Scottish parliaments for some environmental rules).

Some of these rules are not universally considered beneficial to health. There has been a longstanding and heated debate about whether the Working Time Directive (which limits staff hours) has protected junior doctors from dangerous overwork, ruined their opportunities for training, or partially both. NHS England has faced the shadow of EU competition law in their proposals to stop the enforcement of rules that might prevent NHS trusts merging or collaborating.

But others are less contentious. We are increasingly aware that air pollution may lead to tens of thousands of deaths each year, yet the UK’s progress reducing it while EU members has been significant. A change of course carries obvious risks. From the EU’s point of view, meanwhile, rejecting these brings the trade-off of a less close future relationship overall, as the new Political Declaration hints – bringing the disadvantages discussed above.

A long road ahead

This deal would still be much better for the NHS, social care and patients than leaving without an agreement at all. It would avoid an immediate cliff edge, give certainty to migrant staff already here, keep the Irish border open, and enable a trade deal to limit the burden of extra regulation on medicines and medical devices.

But there is a danger that in sinking back with relief after months of apparently teetering on the brink of no deal, we disengage from the question of how arrangements with the EU and the wider world will reshape everything from access to medicines to access to staff. With the new Prime Minister’s more stripped back exit deal, the real questions of Brexit for health and care in the UK will only be asked when we leave.