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By Mark Weiss, Senior Policy Officer, Faculty of Public Health, markweiss@fph.org.uk

Last week, cross-Party Peers debated the ‘Do No Harm’ amendment to the EU (Withdrawal) Bill in the House of Lords, and FPH’s Senior Policy Officer was there to watch. A ministerial assurance that there will be no rollback of public health standards is welcome. We now call on the Government to put that assurance on the face of the Bill.

Responding at the despatch box on behalf of the Government, Lord Duncan made a ministerial commitment to the spirit of the amendment, assuring the House that “there will be no rollback of [public health] standards”. The Government’s “intention to secure the highest possible engagement on matters of wider public health” will, he set out, be a “cornerstone” of the Brexit negotiations, and the UK’s leadership role in public health will continue to be a “beacon” to the EU.

Yet this ministerial reassurance stops one step short of a simple, necessary, and, as Baroness Jolly asserted, “Brexit-neutral”, commitment to put on the face of the Bill the “high level of human health protection” that would guarantee its practical effect – to protect against a gradual erosion of our vital public health legislation, policy and practice. As former Coalition health minister Baroness Northover observed, if it is the Government’s intention to not roll back on public health standards, then it should “enshrine that in the Bill”.

In calling on Lord Warner to withdraw the ‘do no harm’ amendment, the Minister reasoned that such a commitment is unnecessary, since it is already Government policy, simply replicating the Secretary of State’s existing duty to protect the public’s health. In fact, the amendment is broader than this duty in a number of important ways supportive of the Government’s intention. And, at committee stage, a large number of cross-party peers united to outline how.

Lead Peer Lord Warner outlined that the duty to ‘do no harm’ is placed on the whole of government, including a wide range of public authorities – a very important distinction that is far broader than the Secretary of State’s existing duty. It further covers, as Baroness Jolly set out, the whole of the UK, “irrespective of whether legislation is made or adopted in Westminster, Belfast, Cardiff or Edinburgh”. It reminds a wide range of interests that they must continue to protect and ‘do no harm’ to public health.

The public need, peers stressed, an “effective legislative provision to challenge in court the Government, devolved administrations and public bodies when they fall down on the job of protecting public health”. Landmark cases, such as the failed challenge by the tobacco industry to the Standardised Packaging of Tobacco Products Regulations 2015 show that the amendment, which is based on the high level of protection under Article 168 the Treaty of Lisbon, is such an effective legislative provision.

In that example, Article 168 was used to interpret EU tobacco products law as well as the powers to implement it. Article 168, the High Court emphasised in its judgment, places the protection of public health “at the epicentre of policy making”. In this way UK courts would be under no misapprehension about what Parliament expects them to continue doing after Brexit.

While the Minister offered assurance that the Government will be addressing existing protections for public health as part of the negotiations, Conservative Peer and Chair of the Committee on Climate Change, Lord Deben, cautioned that whether or not the UK upholds the highest standards of public health “will not be part of the negotiation at all”. We cannot, he made clear, have a system whereby law is “affected by the whims—or sensible policies—of Ministers”.

The EU (Withdrawal) Bill, Baroness Jolly made clear, “is where our constitutional stability and certainty will be secured within the UK legal system”, and is where the amendment should sit. It would not be sufficient, as Lord Hunt asserted, for the duty to be placed within a “theoretical health and social care Bill which may be introduced” at some future point. Peers further agreed that health, alongside the security of the nation and our economy, are surely the most important duties of any Government.

The duty would also be supportive of the Department of Health and Social Care in ensuring that the public’s health is a key part of the Brexit negotiations. Baroness Jolly noted regret among Peers that the Secretary of State for Health and Social Care “is not a member of the Cabinet committee for EU exit and trade”.

An issue of particular concern, the negotiation of future free trade agreements, was raised by Peers. While the Minister offered reassurance that our “values and principles [will not be] traded away”, Lord Brooke focused attention on the 760 treaties with 168 countries that the Government will need to negotiate – many of which will affect the public’s health and our national health service. Baroness Northover warned that public health standards “could be out of the window” should the UK decide to lower them “in an effort to increase competitiveness”.

Baroness Finlay noted the unprecedented and co-ordinated effort by transatlantic think tanks to secure the “ideal” trade arrangements “which would involve the UK diluting, for example, its existing standards on food safety”. The precautionary principle, she said, may be under serious risk. In turn, Lord Warner asserted that the duty to ‘do no harm’ has already been used in the High Court to determine the standard according to which freedom to trade versus public health is balanced.

Ultimately, while a ministerial reassurance is welcome, the Minister cannot offer reassurances that we have nothing to worry about while at the same time making clear that future Governments might decide on a different path, one perhaps that didn’t put the health of the people of this nation at its heart.

This amendment does not seek to preserve EU law and regulation. It simply ensures we have some legal precedent and interpretative guidance on which to draw when protecting the public’s health in the future. British courts, on the basis of our doctrines of parliamentary sovereignty, will decide the future interpretation of the law. This, as Baroness Jolly put it, “should give remainers a rosy glow [while] Brexiteers will be grateful that the amendment puts a marker down: British law for British people.”

In closing her speech, Baroness Neuberger – former CEO of the King’s Fund and Fellow of FPH – said that she could not “remember the public health community coming so strongly together on anything since tobacco packaging”. As we approach the report stage of the Bill in mid-April (when peers get a chance to vote on amendments), we need your support more than ever and ask again for your help. There are a number of ways in which you can get involved:

1. Tweeting your support for the amendment using #DoNoHarm and following @FPH
2. Talking to your professional networks about the amendment and encouraging their support
3. Speaking about the amendment at any conferences or events you’re attending
4. Talking to Parliamentarians you are in contact with and, if possible, introducing them to FPH
5. Sharing intelligence on grant funding opportunities enabling us to do bigger and better things.

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