Interview with Tamara K. Hervey – EU health law in the UK: From the past to the present, and towards the future

In this interview, Professor Tamara K. Hervey, a leading academic scholar on European Union health law, answers a range of questions about her personal experience of teaching and researching this branch of law in the only country to have left the European Union: the United Kingdom. What differences are there in EU health law teaching and research before and after Brexit? Do comparative law and international law constitute an alternative intellectual home? What has happened to the funding of her research since Brexit? What does she think about the current influences and interactions between EU health law and English health law?

 

Propos recueillis par Aurélie Mahalatchimy, parus dans la revue Confluence des droits_La revue , le 6 juin 2024.

 

1 | How did you first get interested in EU health law?

Originally, I was interested in how EU law might be used to pursue progressive social aims. Most substantive EU law is economic law, focused on creating and sustaining an internal market in which factors of production move with less hindrance than in ordinary international trade law, and where firms and governments are constrained in their anti-competitive behaviours. But EU law always included small ‘social’ elements, including coordination of social security protection for migrant workers, and some aspects of employee protection law. My PhD was on one part of the latter: a comparative law study of sex discrimination in employment law, and the EU was one of my comparator jurisdictions. That was published in 1993. Then in 1998, I published a small book on European Social Law and Policy. It looked at what social policy scholars call ‘the Big Five’: social security, social assistance, education, housing, and health, and asked to what extent – if at all – the EU’s law and/or policy affected those areas. The chapter on health in that book was the first thing I wrote on EU health law. EU health law wasn’t thought of as a discrete area of scholarship: if it was anything, it was a very small part of EU social law.

Several colleagues at the University of Manchester where I worked at that time, including Jean McHale, who later went on to be professor of health law at the University of Birmingham, were interested in medical and health law. We often talked about our work over lunch, and especially legal developments that were in the news. One such legal development was a case in which a woman, Diane Blood, was seeking to rely not on European human rights law (the usual ‘European’ aspect of medical or health law), but on European Union law, to receive a medical service (fertility treatment involving her deceased husband’s sperm) in another EU Member State, which was not permitted in her home Member State. Jean and I began to brainstorm all the ways in which EU law affected or could potentially affect national health law. We shared our emerging research agenda with a senior colleague. ‘European Union health law, there isn’t any’, he originally remarked. Then he paused, and said, ‘Actually, it’s enormous, isn’t it?’. Those conversations became first of all Health Law and the European Union (the ‘and’ signifying that we were interested in the interface), published by Cambridge University Press in 2004; and then subsequently European Union Health Law: Themes and Implications, published, also by Cambridge University Press, in 2015. By 2015, we were confident that EU health law is a subject in its own right, worthy of study, and that our thematic approach is the best way to study it.

 

2 | The UK has always been, in some ways, a reluctant EU Member State: it was never a member of Schengen, it had special budget arrangements, it did not fully participate in many EU laws and policies. What difference did that make in researching and teaching EU health law before 2016?

To be honest, the vast majority of the areas of EU law that I was interested in were areas where the UK was fully committed, and in many cases, the UK had been an important player in Council when EU legislation was adopted. The EU’s clinical trials law, for example, is an area where the UK had a…

 

 

 

 

Confluence des droits_La revue est une revue entièrement numérique pilotée par le laboratoire Droits International, Comparé et Européen (UMR DICE 7318, CNRS, Aix-Marseille Université, Sciences Po Aix, Université de Toulon, Université de Pau et des pays de l’Adour) ayant vocation à accueillir des contenus variés en français et en anglais. 

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