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

3. Edinburgh, March for Europe,

6. 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.

7. ‘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)

8. 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)

10. 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

11. 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

12. 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?

13. Source: Fahy et al, The Lancet, forthcoming

15. 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?