Written evidence submitted by Dr Andrew Glencross (FRE0039)

I am a Senior Lecturer in the Department of Politics and International Relations, Aston University and Co-Director of the Aston Centre for Europe, as well as a Senior Fellow of the Foreign Policy Research Institute (USA). I have researched and published extensively on the subject of UK-EU relations. This evidence builds on a new research project that explores the impact of COVID-19 on the future UK-EU relationship.

Q. Which aspects of the future relationship could be negotiated after the transition period?

Summary

• this evidence focuses on the possibilities for negotiating the health security relationship between the UK and EU after the transition period
• health security has so far played a marginal role in the future relationship negotiations, but COVID-19 has greatly amplified this policy area’s significance
• the EU has announced significant legislative and financial measures to promote public health sovereignty, notably joint procurement and stockpiling of PPE
• UK participation in some EU health measures is possible on existing terms, but not joint procurement
• the UK faces an uncertain future after transition because of potential risks associated with non-participation in EU programmes, notably in terms of access to PPE supplies and possible market distortion resulting from new EU policies

1. Health security does not feature in the UK government’s Draft UK-EU Comprehensive Free Trade Agreement. However, a chapter of the EU’s Draft text of the Agreement on the New Partnership with the United Kingdom is devoted to this topic under the rubric of “thematic cooperation”. UK and EU negotiators have discussed thematic cooperation since March 2020, albeit with only one slot reserved for this topic in any given round of talks. The Political Declaration of October 2019 specifically mentions health security (para. 113), stating that:

“the Parties should cooperate in matters of health security in line with existing Union arrangements with third countries. The Parties will aim to cooperate in international fora on prevention, detection, preparation for and response to established and emerging threats to health security in a consistent manner.”

2. The EU traditionally had very limited involvement in public health policy. Legally speaking, the EU has only supporting competences in health policy, which it provides principally via the work of two bodies: the European Centre for Disease Prevention and Control (ECDC) and the European Medicines Agency. However, the EU’s response to COVID-19 includes significant legislative and financial measures to promote what has been dubbed public health sovereignty (souveraineté sanitaire in French). These measures include joint procurement for medical countermeasures, PPE stockpiling, a Pharmacological Strategy, and export controls on PPE. In May 2020 the European Commission prepared a programme called EU4Health with a proposed budget of €9.4 billion provisionally allocated between 2021-2027 to respond to the effect of the COVID-19 pandemic.

3. During the transition period, as per the Withdrawal Agreement, the UK benefited from a special status meaning it could participate in EU health security measures on the same terms as EU member states. Hence the UK retained full access (overseen by Public Health England) to the Early Warning and Response System (EWRS),[1] administered by the ECDC, for the prevention and control of communicable diseases, while UK representatives could also attend meetings of the Health Security Committee (HSC).[2] The latter helps governments to coordinate national responses to serious cross border threats to health. The UK also had the possibility to participate in joint procurement programmes launched by the Commission in March 2020 for ventilators, PPE, and COVID-19 testing kits. There was fairly extensive press coverage of the UK government’s decision not to participate in these bulk-buying initiatives. Less well known is the fact that, in May 2020, the UK received a delivery of PPE via the EU’s Emergency Support Instrument, for which the EU has allocated €2.7 billion to support member states’ health care systems. According to the British medical Association, “the UK requested access to the scheme and had been selected based on a formula which considered ‘epidemiological data, needs of the countries and the access to equipment’”.[3]

4. In the absence of a new UK-EU agreement covering  health security, the UK stands to lose the ability to participate in the above institutions and programmes. Currently, full access to the EWRS and other information-sharing systems of the ECDC is reserved for EU and EEA member states. EEA countries (Iceland, Liechtenstein, and Norway) provide approximately €1.5 million per annum to the ECDC budget, a sum calculated in proportion to their GDP. Other countries may be allowed temporary, ad hoc access to manage a health emergency (as foreseen in the EU’s draft of the UK-EU partnership agreement) that poses a cross-border threat in Europe, but third countries do not have routine access to the full range of ECDC health coordination systems. Switzerland, despite extensive bilateral treaties with the EU, is not a full member of the ECDC. In 2018, the Faculty of Public Health estimated that, if calculated according to the ratio of the UK’s EU then budgetary contributions, ECDC membership would cost €6 million.[4] EEA countries, plus Turkey and Serbia, have official observer status within the EU HSC. This status is available to EU candidate countries as well as other third countries “where it is in the interest of the Union that such country is involved in the works of the HSC, in particular based on an international agreement, an administrative arrangement or EU legislation”.[5]

5. Hence there is legal scope after the transition period to find an agreement over UK participation in part in the ECDC and to obtain observer status at the HSC. The same is not true of the EU’s Joint Procurement Agreement (JPA), which currently covers 37 countries including the UK. The JPA is a voluntary scheme that exists since 2014 and allows signatory states to pool resources when tendering for medical countermeasures (vaccines, antivirals, PPE and assorted equipment) and thus benefit from economies of scale and avoid competition for scarce resources among purchasing states. Each participating state has the option, on a case-by-case basis, to associate themselves with a particular joint procurement procedure until the publication of a call for tenders. The need to respond to the COVID-19 pandemic breathed new life into this initiative, resulting in four calls for tenders by the end of March 2020. The pandemic brought about a flurry of new signatories, with 12 countries joining since February 2020. For instance, Norway, which did not sign the JPA when it launched in 2014, rushed to join the scheme in March 2020 but was too late to participate in the first tender.[6] The JPA is open to EU, EEA and candidate countries thus the UK would need to negotiate a new arrangement to allow for continued participation. Switzerland, which does not fit existing categories for membership is not able to participate in the JPA. Moreover, the JPA is subject to EU law, which means the UK would have to accept involvement of the Court of Justice of the EU (CJEU) in the event of disputes over procurement processes.

6. Two other features of the EU response to Covid-19 stand out for their potential implications on the UK after transition. The first concerns EU-wide export restrictions as imposed by the European Commission on 14 March 2020.[7] This regulation placed binding restrictions on exports of certain types of PPE outside the EU, EFTA countries, and a host of micro-states/EU overseas territories. Under this regulation, exports of five types of PPE were subject to export authorisation by national authorities (spectacles and visors, face shields, mouth-nose-protection equipment, protective garments and gloves). The worry was that without such measures the EU might not have sufficient stocks of PPE for its own needs; the restrictions, which were legally binding on the UK, were lifted by the end of May 2020. During this time, 95% of export licence requests were approved by national authorities within the EU.[8] The second emergency measure undertaken by the EU is the development of an emergency medical stockpile, including PPE, under the RescEU programme nested within the EU’s Civil Protection Mechanism. The European Commission will fund up to 100% of the costs for the development and deployment of stockpiles designed to offer emergency supplies during the COVID-19 crisis and for future health crises.[9] €380 million was earmarked from the Emergency Support Initiative to pay for these stockpiles, which started with Romania and Germany ordering masks that were subsequently distributed to Italy, Spain and Croatia. The Civil Protection Mechanism is not exclusive to EU Member States: Iceland, Montenegro, North Macedonia, Norway, Serbia and Turkey all take part in it. The wording of the Civil Protection Mechanism’s rules for participation (Art. 28) specifies that, beyond EU and EEA countries “other European countries when agreements and procedures so provide” can participate in this arrangement.

7. During the transition period, therefore, the UK is shielded from any market distortions resulting from the two measures described above. Conversely, after transition, EU public health policies may affect the cost and availability of medical countermeasures, notably PPE, for the UK. Traditionally, the EU has been an important source of PPE for use in the UK, although the proportion of EU imports fell in March and April 2020.[10] Based on the March-May 2020 precedent, UK imports of PPE and medical products or equipment sourced from the EU could be subject to export controls in the event of a second wave of Corona or another pandemic. Even if such measures do not result in quantitative restrictions, export licensing adds a bureaucratic impediment that can delay the importation of EU-sourced supplies in an emergency situation. Reduced access to EU-sourced PPE will inevitably make the UK more dependent on China for these supplies, as occurred during March and April 2020. More significantly, EU-organized joint procurement and stockpiling could limit supplies to the UK – or at least increase the cost of bidding against the EU on the global market, which is dominated by Chinese producers, which supply 40% of the global PPE market. The greater the scale of the EU’s joint efforts in purchasing and stockpiling, the more market power it will have in comparison to the UK government. This fear of exclusion explains the rush of countries that joined the JPA in 2020 as the pandemic struck Europe and countries worldwide sought to block exports of essential medical supplies.[11] The European Commission’s intention to provide more funds for stockpiling and facilitate the development of EU-based PPE manufacturing[12] only amplifies the risk the UK faces as a third country.

8. Consequently, the UK faces an uncertain future after transition if it neglects to negotiate on the subject of health security with the EU. As a country dependent on PPE imports, the UK is at risk of supply disruption if it fails to negotiate a relationship that provides for some degree of participation in existing as well as new EU public health policies. The EU has suggested accessing the EWRS on an ad hoc basis, which should be the minimum level of participation sought by the UK, alongside obtaining observer status in the HSC, which current rules permit. The scramble for PPE brought about by the COVID-19 pandemic has shown the value of the JPA and stockpiling. However, based on existing EU arrangements with third countries, it would appear impossible for the UK to access the JPA without requiring the EU to change its rules of participation and accept an oversight role for the CJEU. Yet the rules governing the Civil Protection Mechanism suggest it would be possible for the UK to benefit from RescEU stockpiling as a participating state, albeit dependent upon a financial contribution.

June 2020