Lord Warner: Peers can unite around our Brexit public health amendment

Posted On: 
16th April 2018

The duty to ‘Do No Harm’ will set the standard by which freedom to trade versus public health is balanced after we leave the EU, argues Lord Warner

The EU (Withdrawal) Bill will return to the Lords this week
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As we approach Report Stage of the EU (Withdrawal) Bill, a small but important amendment to protect the public’s health has united the medical and public health sectors, and Peers from across the political divide, many of whom spoke in support at Committee Stage.

While the government has assured the House that “there will be no rollback of [public health] standards”, this stops short of a simple commitment to put on the face of the Bill the “high level of health protection” that would guard against an erosion of public health policy and practice. Rather than reassuring the public, not enshrining it in the Bill will have the opposite effect.

The government has reasoned that the powers in the amendment are equal to the Secretary of State’s existing duty to protect the public’s health and so is unnecessary. In fact, the duty to ‘Do No Harm’ is broader and more protective of the public’s health, placing the duty on the whole of government, including public authorities and the devolved nations – a very important distinction.

The amendment has parallels with an amendment agreed by the House giving mental health parity with physical health. Then, as now, the government reasoned that equal powers existed and it was therefore unnecessary. Yet the Secretary of State is today “proud this government legislated for parity of esteem”. Far from unnecessary, parity of esteem has delivered key achievements on mental health and is supported by all political parties.

At Committee stage, Lord Deben cautioned that whether or not the UK upholds the highest standards of public health “will not be part of the [Brexit] negotiations”. Yet only an effective legislative provision can ensure future governments won’t rollback public health standards. This amendment, based on the “high level of human health protection” under Article 168 of the Lisbon Treaty, is such an effective provision, and could be upheld in a court where governments and public bodies fall down on protecting public health.

The government has offered an assurance that our “values and principles [won’t be] traded away”. Yet, Trade Agreements have been associated with adverse health impacts. Public health standards would be at risk were a future government to lower them in an effort to increase competitiveness. In this context it is alarming that the recent US Foreign Trade Barriers report signals that the US is keen to roll back our food safety and environmental standards: 82% of the public would oppose a trade deal negotiated on this basis. The duty to ‘Do No Harm’ will be essential in determining, and interpreting, the standard by which freedom to trade versus public health is balanced post-Brexit.

The duty doesn’t seek to preserve EU law but simply ensures we have some legal precedent and interpretative guidance to draw on when protecting the public’s health in the future. British courts, on the basis of our doctrines of parliamentary sovereignty, will decide interpretation of the law. In this way, the duty to ‘Do No Harm’ is, as Baroness Jolly has emphasised, ‘Brexit-neutral’. It “should give Remainers a rosy glow [while] Brexiteers will be grateful that [it] puts a marker down: British law for British people”.

Health, security and the economy are the most important duties of any government. This Bill is where our constitutional stability and legal certainty will be determined and the duty offers clarity on the guiding principles for our Brexit negotiations. And, it is an opportunity to reassure business that this government is committed to a post-Brexit economy based on maintaining the high levels of health and productivity within our workforce.

As we approach Report stage, I hope Peers can unite around the ‘Do No Harm’ amendment and:

  1. Vote in favour of the amendment at Report stage
  2. Tweet your support with #DoNoHarm
  3. Encourage fellow Peers to support the amendment
  4. Discuss the amendment in Ministerial/departmental meetings
  5. Encourage your professional networks to support the amendment 

 

Lord Warner is Crossbench peer and former health minister