NHS Confederation - What the Brexit deal means for the NHS

29 Dec 2020 10:00 AM

On Christmas Eve, the UK and EU announced they had agreed a trade deal setting out the terms of their future relationship when the post-Brexit transition period ends on 31 December.

The NHS Confederation welcomed the news in a media statement, as the deal addresses many of the concerns we and the Brexit Health Alliance have expressed repeatedly over the last four years.

However, there are some significant gaps compared with the arrangements that applied until the end of the post-Brexit transition period on 31 December.

We have provided below a brief summary of the agreements within the deal that impact the NHS and the wider health sector. A more detailed summary will be available later this week.

The Brexit agreement and the NHS – a summary

Supply of goods

• No tariffs and quotas on imports and exports, including medicines, medical devices and medical/non-medical consumables.
• But, to qualify for tariff-free access, UK goods will need to meet ‘rules of origin’ requirements.
• There will be new customs checks at the border and paperwork to complete, so there is potential for delay and complications at least initially.
• The EU and UK have agreed some customs cooperation and simplified forms to minimise the burden for ‘trusted trader’ businesses.
• There will be non-tariff barriers such as regulatory requirements, now that the UK and EU will not be obliged to adhere to the same standards in future. The deal includes an agreement that the UK and EU will recognise each other’s inspections of manufacturing premises for medicinal products. But it does not include a mutual recognition agreement on conformity assessment, meaning that the UK and EU will both have to assess that products are safe to be authorised and marketed in their territories. They will not automatically accept each other’s assessment. 

Reciprocal healthcare for UK/EU citizens

• UK travellers to the EU, and EU travellers in the UK, will be able to get medically necessary treatment as they do now if they fall ill while abroad (EHIC or equivalent).
• Frontier workers (people who commute across borders to work) and their family members will also be covered for cross-border treatment. 
• People needing pre-planned treatment such as dialysis or chemotherapy while on either side of the UK/EU border will be able to arrange in advance to have it paid for by their own country, without paying upfront themselves.
• Retirement pensions can be exported, aggregated and paid abroad.

Medical research

• The UK will be able to take part in the EU’s scientific research and innovation programme, Horizon Europe, to collaborate on researching and developing cutting-edge treatments.
• UK and EU agree to facilitate movement of researchers with as few barriers as possible now that freedom of movement has ended.

Public health/health security

• UK and EU will collaborate/co-operate in warning each other and tackling health threats, though the UK will not normally have access to EU databases and will not retain membership of the European Centre for Disease Prevention and control (ECDC).
• The UK can request access to the EU’s Early Warning System (EWRS) on an ad hoc basis to tackle a specific threat.

Workforce

• Freedom of movement has ended, but there will be no visa requirements for short stays for holidays and business (up to 90 days).
• UK will implement new points-based immigration system for people wanting to come and work in the UK from 1 January. Most healthcare workers will meet the entry criteria but most care workers won’t.
• No regression for fundamental rights at work, occupational health and safety standards and fair working conditions. The rules may diverge in future and there is no requirement to align going forward, but it should not result in lower standards than at present.
• Mutual recognition of professional qualifications ends. UK has unilaterally decided to continue to recognise EEA qualifications for up to two years, but no reciprocity.
• The agreement sets up a mechanism to facilitate potential future mutual recognition between the UK and EU competent authorities, but will require further detailed agreements and procedures.

Data transfer

• The EU is still assessing the UK’s data adequacy so this is not included in the agreement.
• While awaiting the outcome of the assessment, the EU has agreed to allow continued EU-to-UK data transfers from 1 January, initially for four months (extendable to six), to prevent organisations having to rely on alternatives such as standard contractual clauses.
• Both sides say they are committed to facilitating cross-border data flows. The deal prohibits either side requiring that data be stored or processed in their territory, and specifies there should be high standards of protection for personal data and privacy.

Level playing field, competition and procurement 

• Both parties retain the right to adopt or maintain measures in respect of health services that receive public support or funding (e.g. the NHS) and privately funded healthcare services, not including private hospitals and residential care homes.
• Public procurement can include social, environmental and labour conditions as long as these apply equally to all.
• Non-regression’ from current standards, so no immediate undercutting, and nothing to prevent either party adopting higher standards – but no requirement to align in future. 
• ‘Level playing field’ – dispute settlement mechanism (not involving the European Court of Justice) in case of future disagreements about state aid or subsidies.

Next steps for the NHS 

While the deal itself is good news, the eleventh-hour timing means that NHS organisations and their suppliers have to move quickly to implement changes from 1 January onwards. There will be a lot of operational details to sort out so that implementation runs as smoothly as possible, but will inevitably be some delays and disruption at the UK/EU border resulting from new customs procedures and red tape, at a time when the NHS is already stretched by COVID-19 and annual winter pressures. 

The NHS Confederation will continue to support our members throughout the Brexit process, listening to feedback from frontline organisations, relaying their concerns directly to government and issuing information and practical guidance.

An overview summary of the deal is available from both the UK government and the EU, as well as the text of the entire deal