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The Law, the “Great Repeal Bill”, Health and Brexit

This article discusses the impact of Brexit and the Great Repeal Bill on health and EU law, highlighting opportunities and challenges in the transition. It explores the sources of UK law, the role of executive action, and potential implications for devolved nations and stakeholders.

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The Law, the “Great Repeal Bill”, Health and Brexit

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

  2. Edinburgh, March for Europe, 25 March 2017

  3. ‘Traditional EU Law’ Headings adapted from Chalmers et al, European Union Law (Cambridge: CUP 2014)

  4. EU Health Law Headings adapted from Chalmers et al, European Union Law (Cambridge: CUP 2014)

  5. 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

  6. 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

  7. 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?

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

  9. 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?

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