Coronavirus (COVID-19): the case for extending the Brexit transition period

Annex C - Government Readiness for 1 January 2021

Example: Pharmaceuticals

It was always the case that Brexit would create a risk of disruption to trade and delays at the border with the potential to cause medicine shortages in the UK. The COVID-19 situation has already resulted in difficulties in this area; it has created global shortages in areas like protective equipment and has disrupted supply chains.

The default position within the UK at the end of the transition period is that 'no deal' legislation covering a number of processes involved in the licensing of medicines should come into force. But given the very short time until the end of 2020, and the global focus on COVID-19, if there is no extension to the transition period then the timetable is very tight for ensuring that future requirements and processes are in place. For example, the Medicines and Medical Devices Bill, which seeks to create targeted and delegated powers that enable updates to regulatory systems for human medicines, clinical trials, medical devices and veterinary medicines, is currently paused.

The UK Government's Approach to Negotiations document did mention medicinal products, and proposed that there should continue to be cooperation and information sharing with the EU. It did not include alignment with the European Medicines Agency (EMA).

One of the consequences of a more distant relationship between the Medicines and Healthcare products Regulatory Agency (MHRA) and the EMA could be the loss of access to the single marketing authorisation (licence) offered by the EMA. This would mean that in order for a pharmaceutical company to market a new medicine in the UK they would have to undergo a separate approval process by the MHRA. This extra regulatory hurdle for the pharmaceutical industry, and the additional costs involved in the process, could make the UK a less attractive market for pharmaceutical and biotechnology companies' innovative new medicines. Emerging from a pandemic, and searching for a vaccine, is the worst possible moment to disrupt these approval processes.

It is far from clear what outcome this UK government approach might deliver - making it impossible at this stage to prepare with certainty the new regulatory arrangements within the UK which will be needed.

Example: New UK immigration system

Immigration is a matter currently reserved to the UK government, but one which has huge implications for the wellbeing of Scotland's economy and society. The Scottish Government has made clear that the approach to immigration being taken by the UK government will not meet Scotland's needs. The independent Expert Advisory Group on Population and Migration anticipate that, even after the UK government reduced its proposed salary threshold from £30,000 to £26,500, this would lead to a reduction of net migration to Scotland of 30-50%, and this would be particularly felt in rural and remote areas. 2017-18 data shows that there were 143,000 EU nationals (aged 16-64) employed in Scotland.

Implementing a whole new system by 1 January 2021 always presented a huge challenge for the Home Office which was also responding to the recommendations of the Windrush enquiry and implementing the EU Settlement Scheme. The Home Office has acknowledged this but has signalled no intention to review the timescale, despite the huge amount of work that would be needed between now and the end of 2020.

For example, the Home Office has tasked the Migration Advisory Committee with consulting employers on a new Shortage Occupation List and making recommendations by the Autumn. This task seems extremely challenging at a time when companies are focussed on coping with the impact of COVID-19, and when it is highly unlikely that they will know with any certainty what their international staffing needs for 2021 will be.

Moreover, the pandemic has confirmed the Scottish Government's view that the UK government's approach was never fit for purpose. In that approach there would be no general route for what the UK Government term 'lower-skilled migrants', who have traditionally come from the EU via free movement of persons. Yet the COVID-19 crisis has exposed the fact that individuals in these so-called 'low skilled' sectors play an essential role in our economy, and indeed many have been classified for COVID-19 purposes as 'key-workers': food processors and supermarket workers; delivery drivers; nurses and care workers. With the exception of NHS and higher-skilled health workers, none of these roles would be eligible for a visa from 1st January 2021. By their own admission the UK Government has no plans to revise or change their plans, despite the reliance on these individuals as highlighted by the current situation.

Workforce shortages arising from COVID-19 will be exacerbated by the end of the transition period. Clearly the UK government must rethink its approach to future immigration. But this is simply not possible within the timeframe the UK government has imposed upon itself with no extension to the transition period.

Example: Security and law enforcement cooperation

Ending the transition period at the end of 2020 creates serious risks to the security aspects of the EU-UK future relationship. Where new arrangements cannot be in place for 1 January, bearing in mind that they still remain to be negotiated, the inevitable consequence is at best a hiatus and at worst a permanent loss of the security cooperation from which we have benefited for so long.

EU exit means fundamental changes to the legislative and technical frameworks through which the fight against international and extraterritorial criminality takes place. The legislative requirements to deliver future co-operation with the EU need to be considered, drafted, scrutinised and passed in order to ensure continued and effective future cooperation with EU institutions and Member States, and the technical solutions which give effect to that legislation, if necessary, must be able to operate effectively with respect for data security and data protection standards. For example, technical changes to the way that Scotland can access information in the European Criminal Records Information System (ECRIS), if something akin to ECRIS access is negotiated, may take months to design and implement.

Similar challenges exist with regards to the Schengen Information System and Prüm Convention capabilities. Whatever the eventual outcome of the EU-UK negotiations for these instruments, it will be a significant institutional and finance challenge to implement and operationalise our future law enforcement and cooperation arrangements before 31 December 2020. The pandemic adds to the pressure on those resources, and dramatically increases the risk that even no-deal contingency plans may not be fully delivered come 2021.

Loss of access to cooperation platforms such as Europol and Eurojust, without any alternative from 1 January 2021, would be seriously detrimental to the work of our police and prosecutors. Without an extension, the EU will treat the UK as a 'third country' from that date. While cooperation between the EU and third countries without a specific agreement in place is possible in certain circumstances, the volume of cases and information that is shared between Scottish and EU partners means that such ad-hoc procedures are not a sustainable solution if the level of protection of the public we have enjoyed as a Member State is to be preserved.

As of May 2020, COPFS estimate that there are over 600 High Court and 1600 Sheriff and Jury pre-conviction cases which are indicted awaiting trial and cannot progress at this stage due to the pandemic and suspension of jury trials. In addition, there are 21,000 summary cases at pre-conviction stage. For as long as the pandemic affects the capacity of justice system to process cases, the backlog will increase. It is accordingly expected that the total number of outstanding trials at all levels of the Scottish criminal justice system will number in the tens of thousands by the end of the year and transition period. Although some jury trials will run from July 2020, the number of trials which can run simultaneously is likely to be less than would normally be the case. This backlog will require to be dealt with at the same time as the transition period ends, adding yet another challenge.