A short legal overview on Brexit’s consequences for science in the event of a deal
By Sarah Glaser, PhD candidate at Sciences Po Law School
A “set”, we learn from theatre, is composed of people, things and places. They form constellations where action can unfold. Now, if we ask ourselves what a setting for scientific research looks like, we would find that innovative engineering, promising medical protocols, findings worth publishing generally come from bright committed minds working together in all sorts of research facilities (hosted by universities, institutions, and so on). Exchanging ideas with your peers (and sometimes withstanding them), gathering in universities, taking part in promising projects and, several times in your life, packing your things to move on to the next journey… Europe has learned this exciting type of cosmopolitism from Anglo-Saxon scholars. Moreover, British universities have been a place of gathering for researchers across Europe for centuries, demonstrating that academia is cosmopolitan at its very core. They have even served as places of refuge for Europe’s continental thinkers when they were persecuted during the Nazi terror. Such places still display an immense attraction on any young researcher who is seeking fellowships and on any experienced academic who aims at leadership in the very best of scientific environments. The UK host projects with immense impact, ranging from UK Biobank to ITER, Europe’s largest fusion experiment based near Oxford.
The purpose of this paper is to try to identify how dispositions in the Brexit Draft released by the European Commission on November 14th affects science and might impact the setting for scientific research in the UK.
I. The scientific community’s cosmopolitism on trial
Scientists are cosmopolitan people – their movement is crucial for progress in projects, coming up with new ideas and trying to find ways to implement them. Their work-related migration habits are, however, quite specific[i]. This is why we must ask ourselves how the current draft might impact this lifestyle.
Firstly, short trips for the sake of participating in seminars, going on tour with a publication, meeting supervisors/students & attending work defences are very frequent in the profession. It is therefore very fortunate that the Commission promised UK-citizens visa-free visits for up to 90 days (within a 180-day period of time) under the condition of reciprocity almost concomitantly with the draft release. This, however, will have to be voted in parliament and is not clearly stated in the draft, which merely focuses on residency.
Permanent residency too will be made rather easy should an agreement between the EU and the UK be found. Article 15 of the draft holds the promise that any EU-citizen who has resided in Britain for more than 5 years by the end of the transition period has the right to claim permanent residency by going through an administrative procedure exposed in article 18. It will be possible for him or her, who has integrated faculties and projects in Britain on the long term, to get sedentary.
Finally, and most importantly, teaching and taking part in projects, the very heart of scientific cosmopolitism, requires time that can range from a month-long field-trip to integrating a project for a period of less than 5 years. Residency within this scope is addressed by article 13 of the draft through reference to the Citizen’s Rights Directive (Directive 2004/38/EC). We can assume from the draft that scientists on the move « shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport« [ii]. The right of residency for a period of over three months is conditioned by the exercise of a professional activity (or sufficient resources) or the student-status (reference to article 7 of the directive). Moreover, a person retains this status if involuntarily unemployed after one year of activity, sick or unable to work. Consequently, academics and their students alike can go on with their exchange habits and benefit from a minimum level of social protection. The “unreasonable burden doctrine” continues to apply by reference to article 14 of the directive (including the fact that benefiting from local social security doesn’t automatically make someone fall into this category).
Cosmopolitan scientists might benefit from intermediate term residency however these provisions still make him lonely. Indeed in the directive 2004/38/EC, within an article, the family’s fate is always talked about in the subsequent paragraphs to the citizen’s rights. On the contrary, references to the directive’s provisions extending rights to the mobile citizen’s family are systematically cut out of the draft.
II. Isolation from an “integrated” Health Market
Obtaining market approvals for new drugs and health devices drive the allocation of funding for scientific research. Therefore, market integration for pharmaceuticals might prove an important factor for the future of biomedical research projects. Moreover, the Lancet’s « World Report » of September 1st explains what is at stake in remaining part of the European Medicine Agency (EMA): since the EU market is so much bigger than the UK’s, developers of cutting edge treatments, pharmaceuticals and innovative health products might make it their priority to seek market approval on the continent. This could mean that UK citizens would need to wait longer to be able to access those goods and services. The view saying that a national agency in the UK will work just as competitively « assumes that pharmaceutical companies will apply for drug licenses for the EU and the UK at the same time. This assumption might be optimistic. The EU market is five times larger than that of the UK. »[iii]
The current draft doesn’t address this problem (which is the equivalent of a no-deal situation).
However, Northern Ireland might continue to benefit from a health market integrated to the EU.
Article 6 of the Commission’s Draft (concerning single customs territory and movement of goods) organizes the application of EU law for the United Kingdom in respect of Northern Ireland. Indeed, Annex 5 includes legislation on medicinal products, medical devices and substances of human origins. Among others, Regulation (EC) No 726/2004 establishing a European Medicines Agency supervising market authorizations applies for Northern Ireland and so does the Regulation (EC) No 1394/2007 on advanced therapy medicinal products. Could this mean that the UK will organize a border within its own regions, with some integrated to EU health-law and some not? How is such a market going to function internally, one might wonder.
III. Insecurity about programs and funding
An evaluation report of Horizon 2020 drafted by the Commission in January 2018 states that « UK researchers and innovators directly received 15.2% of the overall funding available, as well as benefitting indirectly from funding allocated to their project partners from elsewhere. This was broadly consistent with previous performance and was second only to Germany whose researchers received 16.7% of the overall funding.« [iv] Not only was the UK’s share in EU-funding comparatively large, a study released by the Royal Society (« The role of EU funding in UK research and innovation« ) shows that the amounts received by Britain for research exceed by far their contribution to the EU research budget.
The draft contains the promise that on-going research and projects benefiting from Horizon 2020 do not have to fear funding cuts. Indeed, article 130 and 131 state implementation of Horizon 2020 shall continue in the UK as was decided, until the closure of the program, even after Brexit formally happens.
However, the longer-term future remains uncertain for laboratories and universities. EU Funding may be open to non-members (such as Switzerland and Israel), yet not in the same proportions which the UK currently enjoys.
Nature Magazine reacted immediately to the draft to express worries about what will become of pan-European projects. For example: is Britain still going to be able to cooperate on the largest fusion experiment, ITER? Switzerland is sometimes invoked as an example of an “associated State” but this country accesses ITER through its membership in EURATOM, which the UK explicitly wishes to leave as well. ITER’s test-bed remains stationed near Oxford. The current situation raises unprecedented issues about each party’s property, rights and contributions in projects designed for an integrated research area.
Freedom of movement, integrated markets and budget negotiations, which are key words of European policies, acquire a specific meaning when considering scientific research. The draft agreement is likely to impact people’s cosmopolitan habits and the life of their laboratories and facilities hugely. Most important scientific reviews reacted in the immediate aftermath of the draft release and voiced the same concerns[v]: Brexit makes European scientists anxious about their careers and freedom to remain on British projects while British scientists find it harder to attract talented young researchers, secure sufficient funds and maintain their leadership positions on international projects to the past extent. Yet, reaching a deal before the 29th of March would in any case be more securing for UK-EU relationships than a “no-deal scenario”. For the present, Theresa May has postponed the parliamentary vote on the draft-approval, since she faces a lot of opposition within her own ranks. Our next update – Brexit & Science (2) – will acknowledge the legal situation by March 29th.
[i] The Royal Society released a paper showing the quantitiative importance of scientist’s international movements: https://royalsociety.org/~/media/policy/projects/brexit-uk-science/uk-research-eu-people-june-2018.pdf
[ii] Art. 6 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.
[iii] Health in the UK in a no-deal Brexit, The Lancet, World Report, Vol 392, Issue 10149, 1st september 2018 p. 721.
[v] Elizabeth Gibney & Holly Else, « Brexit: what the draft deal means for science« , Nature, NEWS, 15/11/2018; Erik Stokstad, Looming Parliament vote boosts Brexit jitters for U.K. scientists, Science (online), 5 december 2018.