The Law, the “Great Repeal Bill”, Health and Brexit Tamara Hervey, Professor of EU Law University of Sheffield

Edinburgh, March for Europe,

Soft brexit Hard brexit Failed brexit ‘EEA minus’? Association Agreement? Access to EU market for goods and services, and vice versa, as compliance with EU regulations continues Could include people If limits on people, what is quid pro quo? Services? Capital/FDI? Could secure continued access to EU regulatory networks and systems Could include access to EU research funding No enforceability of individual rights No supranational court Hard brexit FTA (DCFTA?) EU-CETA model? Detailed sector by sector negotiation Requires transitional arrangements May not cover people at all Services? FDI? May involve harmonised regulation or may not Possibly involves continued access to EU regulatory networks, systems and other resources Failed brexit No agreement EU-UK trade relationships based on WTO law Maximum uncertainty People are covered only by UK immigration law Products from UK access to EU market only if EU law compliant Products from EU access UK market if UK law compliant Mixed political messages mean difficult to read into legal outcomes.

‘Traditional EU Law’ EU Constitutional Law EU Administrative Law Competence; law of institutions; law making; sovereignty, federalism, subsidiarity; fundamental rights; external relations law EU Administrative Law Accountability; enforcement of EU law; judicial review EU Social and Economic Law Single market; EMU; EU citizenship; free movement of goods; freedom of establishment; freedom to provide/receive services; consumer protection; environmental protection; public health; cohesion of fiscal regimes; non-discrimination law EU Competition Law Restrictive practices; abuse of a dominant position; mergers; state monopolies and services of general interest; state aids Headings adapted from Chalmers et al, European Union Law (Cambridge: CUP 2014)

EU Health Law EU Constitutional Law EU Administrative Law Competence; law of institutions; law making; sovereignty, federalism, subsidiarity; fundamental rights; external relations law EU Administrative Law Accountability; enforcement of EU law; judicial review EU Social and Economic Law Single market; EMU; EU citizenship; free movement of goods; freedom of establishment; freedom to provide/receive services; consumer protection; environmental protection; public health; cohesion of fiscal regimes; non-discrimination law EU Competition Law Restrictive practices; abuse of a dominant position; mergers; state monopolies and services of general interest; state aids Headings adapted from Chalmers et al, European Union Law (Cambridge: CUP 2014)

How will the Gerbil work? ‘40 years in, 40 years out’ Repeals European Communities Act 1972 But avoids ‘legal vacuums’ by ‘rolling over’ EU law that would otherwise ‘disappear’ into UK law And at the same time prevents ossification by providing for amendment of that law ‘when the time is right’ Crucially, that amendment could be by executive action, without Parliamentary and other stakeholder scrutiny

The legal position with Gerbil: sources of UK law include ‘ex-EU law’ Regulations and Treaty provisions necessary to maintain to avoid legal vacuum) Secondary UK legislation implementing Directives, formerly based on the ECA Not the EU CFR (which the UK government believes does not apply now anyway) Rulings of the CJEU Before Brexit day, with same status as Supreme Court decisions After Brexit day, only if UK courts wish to refer to them in order to interpret ex-EU law by reference to its enabling Treaty provisions Many aspects of UK health law Eg Advanced Therapy Medicinal Products Regulation 1394/2007, the Data Protection Regulation 2016/679; or Regulation 536/2014 on clinical trials, or Regulation 883/2004, which includes the provisions on the EHIC card Eg Human Tissue Act 2004, the Human Tissue (Scotland) Act 2004, and the Human Fertilisation and Embryology Act 2004; some 65 provisions of UK law and soft law, including the NHS (Cross-Border Healthcare) Regulations 2013 and the Cross Border Healthcare and Patient Mobility – Guidance for the NHS

The legal position with Gerbil: sources of UK law include ‘Amended ‘ex-EU law’ By statute or by delegated legislation Essentially becomes the same as ordinary statute or delegated legislation? Or not? Throughout, the doctrine of UK parliamentary sovereignty, with all that implies for the behaviour of the UK courts, is reasserted Little clarity a customs bill and an immigration bill ‘technical’ choices? devolved powers? Interpretations of CJEU?

Source: Fahy et al, The Lancet, forthcoming

Opportunities (and dangers) from Gerbil Time of ‘critical juncture’ – uncertainty, openness, change … More or less legal ‘space’/constraint depending on type of Brexit Need for ‘Brexit success’ Devolved nations? Executive action – spaces and places for stakeholders?