The Welsh NHS Confederation welcomes the opportunity to respond to the Legislation, Justice and Constitution Committee’s consultation on the Retained EU Law (Revocation and Reform) Bill.
The Welsh NHS Confederation represents the seven Local Health Boards, three NHS Trusts, Digital Health and Care Wales and Health Education and Improvement Wales (our Members). We also host NHS Wales Employers.
The scope of the Bill is broad and could represent an enormous capacity challenge to UK and Welsh Government, due to the fact that they will have to repeal, amend or replace over 2400 pieces of retained EU law (REUL).
There are substantial grounds for concern over the potential level of resources it will take Welsh and UK Governments to achieve this task before the ‘sunset’ date at the end of 2023.
There is also a risk that important pieces of legislation which protect public health could be unintentionally lost due to the restrictive timescale set out in the Bill. This would be due to Welsh Government, the Senedd and other stakeholders being unable to properly consider each affected piece of legislation.
Of the over 2400 REUL, many intersect with areas which are important for protecting and improving public health. These include employment law, environmental law and food standards. Some specific examples are:
- Regulation (EC) No 1924/2006 - ensures that nutrition and health claims made about a food product are based on scientific evidence so that consumers are not misled.
- Regulation (EU) No 1169/2011 – regulates the information provided to consumers, including on allergens and nutritional content, as well as other labelling requirements.
- Regulation (EU) 2019/631 - sets CO2 emission performance standards for new cars and vans.
- Regulation (EU) 459/2011 – sets out vehicle requirements that improve the protection of pedestrians and other vulnerable road users involved in collisions.
- Regulation (EU) 2017/2177 - ensures fair and equitable access to stations, depots and other rail related services.
The Bill could also hinder efforts for the UK to go further and faster on legislation which protects public health. Clause 15(5) of the Bill outlines that Ministers in the UK or Welsh Governments can only use the powers in the Bill to replace existing EU law if it “does not increase the regulatory burden”. This includes anything that brings additional “financial cost”, “administrative inconvenience”, or “obstacle to trade or innovation… efficiency, productivity or profitability”. This indicates a strong preference towards deregulation, even where that may relate to areas of public health concern.
Without the ability or adequate time to properly ascertain which REUL needs to be preserved on the grounds of public health, we could see vital progress on the aims outlined in Welsh Government policy and legislation, such as A Healthier Wales and the Well-Being of Future Generations Act, impeded.
Trade and health are linked in many ways, affecting many wider determinants of public health, from the food we eat to our healthcare services, job market and ability to invest in public services. For example, the future ability of Welsh Government to introduce effective public health regulations may be hampered by new trade agreements and related legislation. Public Health Wales has explored the link between trade and health further in its report What could post-Brexit trade agreements mean for public health in Wales?
The Bill does include powers which can be used jointly or by a UK Minister, or by Ministers in the devolved administrations in areas of devolved competence. Ministers may wish to make different use of the powers in the Bill and consequently, consideration is needed around the Bill’s interaction with the existing post-Brexit legislative infrastructure, particularly the Internal Market Act. For example, how might it affect the standards that goods available in Wales must adhere to, such as food products?
Similarly, further clarity would be welcome on whether changes to public health relevant regulations could affect their status under international trade agreements. Departure from the current shared standards could trigger EU challenges and lead to disputes over alleged breaches of the UK’s Withdrawal Agreement/Trade and Co-operation Agreement.
Without a clear indication from the UK Government as to how the aims of the Bill will be accomplished, we believe it will be difficult to achieve within the timeframes it sets out, without comprising robust consideration of each REUL and its potential impacts on public health.
It is therefore imperative that there is engagement between UK and Welsh Government for concerns around public health to be properly considered when making decisions on REUL. Important pieces of legislation, such as those outlined in this response, cannot be allowed to be sunsetted due to a lack of oversight. Further provisions must therefore be made for the Welsh and UK Governments to effectively identify any regulations which fall under or impact devolved areas of competence.
Assurances will be needed that the Bill will retain and improve legislation which impacts on public health. Ministers who are seeking to use the powers within the Bill to replace existing EU law must ensure consideration is given to long-term implications for population health and wellbeing.