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<\/figure>Tamara K. Hervey<\/strong>, Jean Monnet Professor of EU law ad personam, The City Law School, City University of London<\/em><\/p>\n<\/div><\/div>\n\n\n\n R\u00e9sum\u00e9 : <\/strong>Dans cet entretien, le Professeur Tamara K. Hervey, r\u00e9f\u00e9rence incontournable du droit de l\u2019Union europ\u00e9enne de la sant\u00e9, r\u00e9pond \u00e0 diverses questions sur son exp\u00e9rience personnelle concernant l\u2019enseignement et la recherche de cette branche du droit dans le seul pays ayant quitt\u00e9 l\u2019Union europ\u00e9enne : le Royaume-Uni. Quelles diff\u00e9rences y-a-t-il dans l\u2019enseignement et la recherche en droit de l\u2019Union europ\u00e9enne de la sant\u00e9 avant et apr\u00e8s le Brexit ? Est-ce que le droit compar\u00e9 et le droit international constituent un refuge intellectuel alternatif ? Qu\u2019en est-il du financement de ses recherches depuis le Brexit ? Que pense-t-elle des influences et interactions actuelles entre le droit de l\u2019Union europ\u00e9enne de la sant\u00e9 et le droit anglais de la sant\u00e9 ?<\/p>\n\n\n\n Abstract: <\/strong>In this interview, Professor Tamara K. Hervey, a leading academic scholar on European Union health law, answers a range of questions about her personal experience of teaching and researching this branch of law in the only country to have left the European Union: the United Kingdom. What differences are there in EU health law teaching and research before and after Brexit? Do comparative law and international law constitute an alternative intellectual home? What has happened to the funding of her research since Brexit? What does she think about the current influences and interactions between EU health law and English health law?<\/p>\n\n\n\n 1 | How did you first get interested in EU health law?<\/strong> Originally, I was interested in how EU law might be used to pursue progressive social aims. Most substantive EU law is economic law, focused on creating and sustaining an internal market in which factors of production move with less hindrance than in ordinary international trade law, and where firms and governments are constrained in their anti-competitive behaviours. But EU law always included small \u2018social\u2019 elements, including coordination of social security protection for migrant workers, and some aspects of employee protection law. My PhD was on one part of the latter: a comparative law study of sex discrimination in employment law, and the EU was one of my comparator jurisdictions. That was published in 1993. Then in 1998, I published a small book on European Social Law and Policy. It looked at what social policy scholars call \u2018the Big Five\u2019: social security, social assistance, education, housing, and health, and asked to what extent \u2013 if at all \u2013 the EU\u2019s law and\/or policy affected those areas. The chapter on health in that book was the first thing I wrote on EU health law. EU health law wasn\u2019t thought of as a discrete area of scholarship: if it was anything, it was a very small part of EU social law. 2 | The UK has always been, in some ways, a reluctant EU Member State: it was never a member of Schengen, it had special budget arrangements, it did not fully participate in many EU laws and policies. What difference did that make in researching and teaching EU health law before 2016?<\/strong><\/p>\n\n\n\n To be honest, the vast majority of the areas of EU law that I was interested in were areas where the UK was fully committed, and in many cases, the UK had been an important player in Council when EU legislation was adopted. The EU\u2019s clinical trials law, for example, is an area where the UK had a significant influence, partly because of the UK\u2019s significant experience in the field of biomedicine. So, of course, I was aware of the areas where the UK had formally opted out of EU law (Schengen, aspects of the EU Charter of Fundamental Rights). But I didn\u2019t tend to focus on those aspects where the UK had a \u2018special deal\u2019.<\/p>\n\n\n 3 | What did you feel on the day the referendum\u2019s result was announced?<\/strong> Although I work in London, I live in Sheffield, in the North of England. So I wasn\u2019t living in a \u2018London bubble\u2019 \u2013 I knew quite a lot of people who were planning to vote Leave \u2013 the security guard at my partner\u2019s work, the person who looks after our garden, several people who were parents of children in my children\u2019s school \u2013 and I\u2019d heard a lot of discussion about why people were thinking of voting that way. Often, it was nothing to do with the EU, and everything to do with domestic politics. It is Saturday 4 June 2016. [Shortly before the referendum date on 23 June.] I am strolling in the sunshine to the concourse outside Sheffield railway station. The concourse is sheltered from a four-lane road by a \u2018wall of steel\u2019 sculpture, fitting for a city with a proud history of steel-building. But the sculpture is also controversial, as the steel used to build this civic monument comes from China, not from Sheffield. I spot a \u2018Leave UK\u2019 campaigner: an earnest and acne-adorned young white man giving out leaflets and engaging passers-by in conversation. The leaflet includes the now infamous picture of the bus: \u2018We send the EU \u00a3350 million a week\u2019, it proclaims (falsely). \u2018Let\u2019s fund our NHS instead\u2019.<\/p>\n\n\n\n As I approach, I overhear a middle-aged man interacting with the young Leave campaigner. The middle-aged man is becoming increasingly frustrated and irate. He has worked in the NHS in Sheffield for over 30 years, and now he\u2019s a manager in a local hospital. \u2018I\u2019ve seen what the Tories [UK Conservative Party, in government at the time] have done to it. Do you really think they [in government] would give more money to the NHS? Do you really believe those lies? Those people [in London] don\u2019t care what happens to Sheffield or its NHS\u2019. I watch the interaction as I approach, and I think that I can help.<\/p>\n\n\n\n \u2018He\u2019s right\u2019, I interject, joining the conversation with the aim of seeking to defuse its increasingly heated nature. After all, everyone present agrees that Sheffield and its NHS are what is important here.<\/p>\n\n\n\n \u2018Being in the EU isn\u2019t harmful to the NHS. In fact, it\u2019s beneficial\u2019.<\/p>\n\n\n\n The information that I feel I need for this conversation comes easily to my mind. I\u2019ve been researching the effects of EU law on health for three decades. These effects are not always as good for health as they could be, but there is no doubt that they help, especially in the context of the UK, which is not in the Eurozone and has not experienced EU- or IMF [International Monetary Fund]-imposed austerity. I have just finished a live interview on BBC Radio 4\u2019s Moneybox. The BBC had finally woken up to some of the health-related aspects of Brexit, and the Moneybox production team wanted to know more from a legal expert. Technical legal questions such as \u2018how does the EHIC [European Health Insurance Card-] work?, what about UK pensioners who have retired to Spain and access clinics there?\u2019 segued into more esoteric interpretative questions such as \u2018Does being in the EU mean that we cannot renationalise the NHS?\u2019. All of these matters are topics in which I am a technical expert, and I have also been practising making my answers intelligible to a BBC audience.<\/p>\n\n\n\n My knowledge lands with the middle-aged hospital manager.<\/p>\n\n\n\n But it makes no sense at all to the young Leaver. As he struggles to parry our accounts \u2013 at least in my case, delivered as calmly and pleasantly as I can muster \u2013 a much older \u2018minder\u2019 from the Leave UK campaign comes to his rescue. I do not recall exactly what he said, but I do know that both the middle-aged NHS manager and I retreat almost immediately. I am not sure about the manager\u2019s views, but my sense is that there was no point whatsoever in civil engagement with this individual. He seemed quite simply impervious to fact-based or logical argument.<\/p>\n<\/blockquote>\n\n\n\n So the Referendum result in June 2016 was not a surprise to me. But it was a nonetheless a shock: I knew immediately that this would be a terrible act of national economic self-sabotage; and that it would unleash all sorts of damaging social responses, especially to anyone who seemed \u2018foreign\u2019. I also knew that my own life was going to change in a way that I hadn\u2019t planned, and that the professional future that I\u2019d imagined for myself would not come to pass. 4 | As a recognized expert in EU health law, were you consulted by various actors in England in order to prepare the country for the changes that were coming?<\/strong><\/p>\n\n\n\n The answer to this question is \u2018yes\u2019, but not all the actors who really needed to listen to this kind of advice. In particular, I was never able to advise anyone in any of the relevant governments. 5 | In terms of teaching of EU law in England, what has changed since 2016? Do colleagues or students now respond to you differently?<\/strong> This is an area that I began thinking about and working on almost immediately after the referendum result was announced. On a personal level, I knew my whole career was going to be forced in a different direction. Logically, I knew that while \u2013 on balance \u2013 most of the Leave vote was older people, a not-insignificant proportion of my (then) students must have voted Leave. I also knew that my then Dean had voted Leave. I was aware that the place of my subject \u2013 European Union Law \u2013 could no longer be assumed to be secure in every law school across the whole of the UK. In Scotland and Northern Ireland, there has been a firm commitment to continuing to teach and research EU law. In England, it\u2019s not so clear. 6 | In terms of research in EU law in England, what has changed since 2016? Does comparative law or international law provide an alternative intellectual home?<\/strong><\/p>\n\n\n\n It is quite difficult to answer this question, because no one is studying it methodically. I have an impression, especially from colleagues in the EU Academic Lawyers Assembly<\/em>. There seems to be a continued place for EU law as a subject, especially as I said in Northern Ireland (where much of EU law continues to apply under the Withdrawal Agreement\u2019s Protocol); Scotland; Cardiff in Wales; Oxford and Cambridge; and many \u2013 though not all \u2013 London law schools. My own law school, in City, University of London, has five full professors, and several other colleagues, who work in the field of EU law. But I have heard of several law schools where EU law is no longer a compulsory subject on the undergraduate curriculum, and it may already be the case that there are UK law schools without a single EU lawyer in them. 7 | What does the research funding landscape look like now?<\/strong> In the short term, there was a significant investment in EU law and policy research, both from the main funding council, the Economic and Social Research Council, and from smaller funding opportunities. I benefited hugely from that investment, securing a large inter-disciplinary grant which involved collaborating with two co-investigators (Mark Flear and Matthew Wood), a post-doc (Ivanka Antova), and eight student short-term research assistants. That was a big, and complex, project to run, and it would have been really fun, if the topic had not been so sad. I nearly didn\u2019t manage to finish the final deliverable \u2013 a book \u2013 because every time I sat down to write it, I was overwhelmed with the sadness of it all. I wrote a blog<\/a> about that, too, which seemed to help. 8 | After EU law stopped applying in England, how would you describe the interactions and influences between EU health law and English health law?<\/strong><\/p>\n\n\n\n As part of my work with the Nuffield Trust, colleagues and I wrote a paper<\/a> on this which is published in the 2023 Journal of European Public Policy<\/em>. We considered three broad approaches, all present in the context of contemporary health law in England. In the first approach, English health law and policy moves in parallel with the EU. Law and policy makers in England, perhaps quietly because of the ideology of \u2018freedom\u2019 that is associated with leaving the EU, deliberately make sure that English law and policy stays similar to EU law, or at least compatible with it, as EU health law changes. This is currently the dominant position, applying to data adequacy; clinical trials; medicines authorisations (where the UK tries to apply EU standards quicker and more efficiently \u2013 with success only in specific areas); good manufacturing practice; batch testing; and CE marking of medical devices. In several of these areas, there are small \u2018tweaks\u2019 to English law and policy, but the essence is to remain aligned. 9 | What do you feel now about the future of EU law in the UK?<\/strong> What do I feel<\/em> is an interesting question. I think my main and overall feeling is one of sadness, with a bit of exhaustion. I was never \u2013 and I still am not \u2013 uncritical of the EU. There are many aspects of EU (health) law and policy that could be better. The Eurozone austerity policies and the harm they did to healthcare systems is a major example. But in health, as in every other law and policy area, I feel that we are better together. The world has to face up to climate crisis; to ageing populations (in the global North); to ongoing extreme poverty (in the global South); to conflict leading to mass human migration and displacement: all have health dimensions. The scale of these, and other challenges, call for some involvement of a supranational organisation like the European Union. Propos recueillis par Aur\u00e9lie Mahalatchimy, Charg\u00e9e de recherche CNRS, Aix Marseille Univ, CNRS, DICE, CERIC, Aix-en-Provence, France.<\/em><\/p>\n\n\n\n![\"\"](\"http:\/\/confluencedesdroits-larevue.com\/wp-content\/uploads\/2019\/12\/logomini.jpg\")
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Several colleagues at the University of Manchester where I worked at that time, including Jean McHale, who later went on to be professor of health law at the University of Birmingham, were interested in medical and health law. We often talked about our work over lunch, and especially legal developments that were in the news. One such legal development was a case in which a woman, Diane Blood, was seeking to rely not on European human rights law (the usual \u2018European\u2019 aspect of medical or health law), but on European Union law, to receive a medical service (fertility treatment involving her deceased husband\u2019s sperm) in another EU Member State, which was not permitted in her home Member State. Jean and I began to brainstorm all the ways in which EU law affected or could potentially affect national health law. We shared our emerging research agenda with a senior colleague. \u2018European Union health law, there isn\u2019t any\u2019, he originally remarked. Then he paused, and said, \u2018Actually, it\u2019s enormous, isn\u2019t it?\u2019. Those conversations became first of all Health Law and the European Union<\/em> (the \u2018and\u2019 signifying that we were interested in the interface), published by Cambridge University Press in 2004; and then subsequently European Union Health Law: Themes and Implications<\/em>, published, also by Cambridge University Press, in 2015. By 2015, we were confident that EU health law is a subject in its own right, worthy of study, and that our thematic approach is the best way to study it.<\/p>\n\n\n<\/figure><\/div>\n\n\n<\/figure><\/div>\n\n\n
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There\u2019s a story I tell about this, in Not What The Bus Promised<\/em><\/a> (Bloomsbury, 2023). It goes like this:<\/p>\n\n\n\n\n
If people would like to know more about how I felt in the run-up to, and on the day after, the EU referendum, they could read my blog<\/a> about it.<\/p>\n\n\n<\/figure><\/div>\n\n\n
In some ways, the most interesting work I did was for the House of Commons and the House of Lords. I was the Specialist Adviser to the House of Lords EU Home Affairs Sub-Committee Inquiry into Brexit and Reciprocal Healthcare, August 2017-March 2018. Being Specialist Adviser means providing technical advice to the members of the Committee for when they ask questions of ministers (and others) in their Inquiries. This Inquiry was on the legally complex area of cross-border healthcare, covered by the Regulation on the coordination of social security systems and the Patients\u2019 Rights Directive, and a host of case law and implementing legislation. The UK was able to negotiate some ongoing reciprocal healthcare, and although we all lost our precious EHIC cards, we do now have UK Global Health Insurance Cards which do almost (but not quite) the same.
It was even more exciting (although always with underlying feelings of sadness) to be appointed one of two Specialist Advisers to the House of Commons Health Committee. I undertook that role twice, for two consecutive Parliaments: November 2016-May 2017 and then again from October 2017. I was working for Dr Sarah Wollaston<\/a>, a Conservative MP who famously changed from Leave to Remain during the referendum campaign. When the vote was announced, she realised that she herself, and the members of the Parliamentary Committee she chaired, didn\u2019t know enough about the effects of EU law on health and the NHS, to be able to effectively hold the government to account the way a Parliamentary Committee is supposed to do. So she recruited two Specialist Advisers to help with that. I was one of the two: the other was Dr Nick Fahy, who had been a UK Civil Servant, and worked for the European Commission, and was then at the University of Oxford. We assisted with first of all thinking through what the Committee should look into; and then a major enquiry on the Brexit process, people and NHS staffing; and one on healthcare products: medicines, devices and equipment. There were genuine concerns about what would happen if the UK left the EU without a Withdrawal Agreement: almost no planning had been done for this, which would have left patients in dangerous positions because supplies of certain products, such as radioisotopes, would have been severely disrupted. In February 2019, Dr Wollaston took the view that she could not remain in the Conservative party, because of the government\u2019s reckless approach to Brexit. There would have been a third Committee enquiry, on public health, but Dr Wollaston lost her seat in the 2019 election, and was replaced by Jeremy Hunt in the Chair. He did not undertake any Brexit inquiries.
In addition to this work, the major collaborative ESRC-funded project<\/a> I did on Brexit, with Mark Flear (QUB); Matthew Wood (Sheffield, Politics) and Ivanka Antova (now, Northern Ireland Human Rights Commission), involved working closely with several bodies in the health policy domain. The first work we did was with the Faculty of Public Health, helping them to define their own Brexit work and position; and with an attempt to embed a \u2018Brexit should do no harm to health\u2019 clause in a major piece of Brexit legislation. This was ultimately unsuccessful, but it raised the profile and awareness of the many problems Brexit raised for health in the public domain, especially the House of Lords of the UK Parliament.
We worked with a small and a large health-focused charity. With Kidney Care UK, a charity which helps dialysis patients to go abroad to see family or have a holiday, we helped determine the unfolding legal position so that they could give robust advice on their website \u2013 even if the advice was \u2018we don\u2019t know yet\u2019. Cancer Research UK was concerned not only about effects on patients of Brexit, but also effects on clinical research and access to new health technologies. We helped them understand the EU\u2019s external relations with non-EU countries in this field, looking at the EU\u2019s various international agreements, and showing how none gives anything like the easy access to collaboration that Single Market membership gives. We also helped them to understand what legal steps would be necessary for exchange of data in clinical trials, if the EU were not to decide that the UK is a safe country with which to share data post-Brexit. Fortunately the EU Commission has taken a data adequacy decision with respect to the UK. This is up for review in June 2025, and there is always the possibility that the UK will diverge from the EU such that the adequacy decision cannot be renewed in the future. This would be highly problematic in the health and biosciences domain.
One of the biggest areas of concern is \u2013 and remains \u2013 health and social care staffing across the UK. We worked with the NHS Confederation (an umbrella organisation for NHS employers) and also the British Medical Association on this aspect of Brexit. Fortunately, the Withdrawal Agreement secured quite a lot of continuity for people who were already in the UK, but the cultural and psychological damage of Brexit (and the concurrent \u2018hostile environment\u2019 immigration policies that followed) has been done. Our ongoing work<\/a>, with the Nuffield Trust and funded by the Health Foundation, shows that the UK is more reliant than ever on migration for its health and social care staffing, but that this is now mainly from countries outside of the EU, including, controversially, countries on the WHO \u2018red list\u2019 where the UK has agreed not to \u2018actively recruit\u2019.
Leaving the EU is particularly challenging for Northern Ireland. We worked with several organisations there, to help advise on the unfolding and complex legal position. Cooperation and Working Together, set up under the Good Friday Agreement, works on projects across the border on the island of Ireland. Many of these concern health: a shared children\u2019s heart hospital in Dublin; a cancer centre in Altnagelvin in the north of the island; young people\u2019s mental health services operating across the border. We also worked with the Royal College of Midwives in Northern Ireland and the Health and Social Care Professional Regulators in Dublin, who were concerned about mutual recognition of training and qualifications on an island which in many respects has one healthcare workforce working across two countries. People\u2019s lives work as if there is no border, and EU law helped to make that legally practical.<\/p>\n\n\n<\/figure><\/div>\n\n\n
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What has been wonderful is the response from my colleagues within the EU. Very shortly after the vote, I gave a talk on EU patient mobility in the Netherlands. I concluded by saying \u2018I will always be a European\u2019, and that elicited a spontaneous round of applause. I can feel myself becoming emotional thinking about it even now! Everyone with whom I was working then is still interested in future collaboration, and I\u2019ve met new people too, for example, through the EAHL interest group on supranational biolaw<\/a>; the I-Biolex project<\/a>; and, during the pandemic, through the regular online work-in-progress webinars that are now EUHealthGov<\/a>. It is so heartening that everyone has patiently waited while I did so much \u2018Brexit law\u2019. Now they are fully embracing me as an EU lawyer again: one who is employed outside the EU but nevertheless continues to be a scholar of the EU.
On a professional level, I have also been \u2013 and continue \u2013 working to sustain the network of EU academic lawyers in the UK. Many of my colleagues from across the UK have now left for the EU: Ireland in particular, but also many people went to their home Member State or that of their parents. I co-organised a project about Brexit and the Law School, which included a workshop with papers also from colleagues in Norway, Iceland and Switzerland, and culminated in a special issue of The Law Teacher<\/a>, an internationally-recognised legal pedagogy journal. And I am one of four co-leaders of the EU Academic Lawyers Assembly<\/em>, which runs workshops twice a year, aimed to provide support and collaborative encouragement, especially for early career EU academic lawyers who are based in the UK.<\/p>\n\n\n<\/figure><\/div>\n\n\n
In terms of alternative \u2018intellectual homes\u2019, some colleagues focused more on the substantive legal topic of their interest. So, for instance, EU environmental lawyers became environmental lawyers; EU labour lawyers became labour lawyers. I don\u2019t know of anyone who became a \u2018pure\u2019 public international lawyer, but some people now focus more on broader trade law rather than just EU trade law.<\/p>\n\n\n<\/figure><\/div>\n\n\n
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But now I have the impression that it is extremely difficult \u2013 though not impossible \u2013 to get national funding for EU law work. The one major project<\/a> I know of that has been successful in doing that recently is based in Edinburgh, and is led by Niamh Nic Shuibne. It is called \u2018Taming the Dark Energy of EU law\u2019 and is about \u2018the principles of EU law that are not written into the EU Treaties yet anchor and propel the Union\u2019s constitutional development in very significant ways.\u2019 I do currently have some very small funding as a co-investigator for a British Council Springboard project<\/a>, led by Professor Mark Flear in Belfast, Northern Ireland. This is for (re)building links with colleagues in France.
The UK has now \u2013 finally \u2013 rejoined Horizon Europe as a \u2018third country\u2019. My sense is that, for humanities, social science or law projects anyway, it will be very difficult for UK-based academics to lead projects, but we should be able to participate, going forward. I\u2019m hoping to be recruited to at least one such project in the future. And I\u2019m also still being co-opted into projects funded by national entities in the Member States, and indeed beyond. I\u2019m currently on the Scientific Advisory Group and very involved in the EU case-law analysis in the I-BioLex<\/a> project funded by the French National Agency for Research; on the Advisory Board for a project<\/a> funded by the independent Research Fund Denmark, on investigating how EU health legislation has accumulated over time and the implications; and a co-investigator on a small European-Commission funded project on EU pharmaceutical regulation, led from Canada.<\/p>\n\n\n<\/figure><\/div>\n\n\n
The second approach is active divergence, where English law and policy-makers deliberately make different regulatory choices to the EU\u2019s. The most obvious example of this is the UK\u2019s Innovative Licensing and Access Pathway (ILAP), introduced in March 2021. Aimed to speed up access to medicines, the pathway brings together the UK\u2019s Medicines and Healthcare products Regulatory Authority (MHRA) which licences\/authorises medicines, and its National Institute for Health and Care Excellence (NICE), which conducts health technology assessment on the cost-effectiveness of new medicines. The EU is pursuing a similar agenda, but rather more slowly. Some proposed areas of clinical trials regulation and some proposed aspects of medical devices regulation would also involve active divergence: we will have to see whether these are pursued under the next UK government after 4 July 2024. A new Procurement Act 2023 (enacted after we\u2019d submitted our journal article) will significantly change the landscape for health products and services purchasing in England: it\u2019s now an academic question whether the UK could have pursued this agenda as an EU Member State anyway. But this is probably the only major area where there are potentially discernible \u2018Brexit benefits\u2019 for health and the NHS in England; an outcome we predicted in our first major paper<\/a> on the effects of Brexit on health and the NHS, published in the Lancet in 2017. And of course, those \u2018benefits\u2019 have to be balanced against the very significant detriments, discussed in detail in several journal articles, and our book Not What the Bus Promised<\/em>.
Third, we found that in a lot of areas, health law and policy in England is actually drifting. No active decisions are being taken, resulting in initial alignment with the EU, because of the way the UK\u2019s EU Withdrawal Act 2018 operates, providing vital legal continuity for what is now called \u2018assimilated EU law\u2019. But then, when the EU updates or replaces its regulatory content or standards, its institutional structures, or its processes and practices, in practice English health law and policy drifts into divergence.<\/p>\n\n\n<\/figure><\/div>\n\n\n
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And there are of course many tangible benefits to health from EU membership: economic development from being part of a larger market engenders better health outcomes; infrastructure development, especially in roads, has a major positive effect on health; and so on. So I feel that all the energy that went into the Brexit process was a terrible waste: we have so many other problems we need to tackle, and responding to the EU referendum vote was a major distraction from them. I would like to see the EU continue to succeed as a place where differences can be overcome towards a greater good. In the health law and policy space, I would like the EU to undertake a greater role in developing solidarity and equality, and to develop the trust from its people that would be needed to do that.<\/p>\n\n\n\n
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