Senedd Cymru

Bae Caerdydd, Caerdydd, CF99 1SN

SeneddDCC@senedd.cymru senedd.cymru/SeneddDCC

0300 200 6565

—

Welsh Parliament

Cardiff Bay, Cardiff, CF99 1SN

SeneddLJC@senedd.wales senedd.wales/ SeneddLJC

0300 200 6565

HSC(6)-12-23 PTN 11

Y Pwyllgor Deddfwriaeth,

Cyfiawnder a’r Cyfansoddiad

—

Legislation, Justice and Constitution Committee

Russell George MS

Chair, Health and Social Care Committee

14 December 2022

Dear Russell

Legislative Consent: Retained EU Law (Revocation and Reform) Bill

You will be aware that the UK Government has introduced to the UK Parliament the Retained EU Law (Revocation and Reform) Bill (the Bill). If passed, the Bill would set in motion the UK Government’s plan to retain, revoke or reform thousands of pieces of retained EU law (REUL). It would also begin a countdown to 31 December 2023, when the majority of REUL will automatically expire unless Ministers take action to save or reform it. Of concern to us, as legislators, is the fact that the Bill would enable

Ministers, rather than parliaments, to significantly alter the UK’s regulatory and legal landscape.

My Committee has, for some time, been keeping a watching eye on the UK Government’s plan for

REUL, and we began asking questions of the Welsh Government some months ago.

With the laying of the Bill before the UK Parliament, and in anticipation of the Welsh Government bringing forward the likely necessary consent memorandum, my Committee agreed to seek the views of stakeholders both in Wales and across the UK. We sought views on a number of matters including to what extent the Bill might impact Wales’ regulatory landscape; what role should the Senedd have in the revocation and reform of REUL in devolved areas; the Welsh Government’s decision not to carry out its own assessment of REUL, including not forming its own view on what is devolved and what is reserved; and whether the Bill might introduce new limitations for the Welsh Government,

which wants to improve pre-Brexit standards, where possible.

Enclosed are the submissions we received from the Food Standards Agency, the Wales Governance Centre and Wales Council for Voluntary Action, and the Welsh NHS Confederation. We believe this

evidence may be of interest to your Committee.

You will also be aware that the Welsh Government has now laid before the Senedd a legislative

consent memorandum in respect of the Bill, and that my Committee has lead responsibility for scrutinising the memorandum.

At our meeting on Monday 5 December, we took evidence from Mick Antoniw MS, the Counsel General and Minister for the Constitution, in respect of the Bill and the Welsh Government’s legislative consent memorandum. You may wish to note that the Counsel General repeated his concerns that the implementation of the Bill, should it be passed and enacted, has the potential to overwhelm the governments of the UK. You may also wish to note that concerns about implications for Senedd

Business and for the Welsh Government’s own legislative programme were also discussed.

I am writing to other Senedd Committees to draw attention to the evidence we received which falls

within the remit and interests of their Committees.

Yours sincerely,

Huw Irranca-Davies

Chair

Oddi wrth / From Professor Susan Jebb

Cadeirydd yr ASB / FSA Chair

E-bost / E-mail

By email: seneddLJC@senedd.wales

18 November 2022

Ref: MC2022/00298

Annwyl Weinidog / Dear Mr Irranca-Davies

I am writing in response to your request for stakeholder comment on the provisions in the REUL bill to inform scrutiny of the Bill and subsequent Welsh Government legislative consent memoranda.

Devolution transferred responsibility for food and feed safety and hygiene from the UK government to Wales, Northern Ireland and Scotland. This means that the FSA has the function of developing policies and advising Welsh Ministers on these areas. Our commitment to four-country working ensures that we can effectively protect public health and consumer interests across England, Wales and Northern Ireland, working with Food Standards Scotland.

As you will be aware, the Bill intends to automatically sunset Retained EU Law (REUL) at the end of 2023, unless Ministers agree to extend, preserve, reform or restate them. The Bill also includes the option to extend REUL to allow reform in the period until 2026.

In the FSA, we are clear that we cannot simply sunset the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health. While I’m sure this is not the Government’s intention with these plans, the current timeframe does cause me some concern. We will need to work through more than 150 pieces of retained EU law, 39 of which are specific to Wales very quickly and to advise ministers on how best to incorporate important rules that safeguard food safety and public health within our domestic legislation.

Ensuring that people have food they can trust remains our number one priority. We also recognise this is an opportunity to review and reform these laws so that businesses have the right regulation to enable them to provide safe and trusted food, to trade internationally and to grow.

Floors 6 & 7, Clive House

70 Petty France, London SW1H 9EX

E-bost/ E-mail:

I gael gwybodaeth am bolisi preifatrwydd yr Asiantaeth Safonau Bwyd, cliciwch yma / For information on the FSA’s Privacy Policy, click here.

I gael rhagor o wybodaeth am y ffordd rydym ni’n trin eich data personol, cliciwch yma neu ewch i https //www.food.gov.uk/cy/about-us/rhybudd-preifatrwydd-gohebiaeth-y-swyddfa- breifat yn eich porwr

For further information on how we handle your personal data please click here or enter: https //www.food.gov.uk/about-us/privacy-notice-private-office-correspondence into your web browser.

In due course, we think a new UK Food and Feed Bill would provide the best opportunity for a comprehensive rethink, tailored to the needs of the UK. Our experience tells us that developing policy in an evidence-based, open and transparent way is better for consumers and for businesses, but this takes time to get it right.

Food law is devolved and we support devolved decision making on food and feed safety and standards. We will continue to work with Welsh Government officials on the bill's impacts in Wales and will consider any reforms in line with commitments in the common framework agreements for Food and Feed Hygiene and Safety and Food Compositional Standards and Labelling.

Yn gywir

Yr Athro / Professor Susan Jebb OBE, PhD, FRCP (Hon), FMedSci

Floors 6 & 7, Clive House

70 Petty France, London SW1H 9EX

T:

Email:

[ FOOD HYGIENERATING )

food.gov.uk/ratings

For information on the FSA's Privacy Policy, dick lleil:-

For further information on how we handle your personal data please dick browser.

or enter: https://www.foodgov.uk/about-uslprivacy-ootice-private-otfice-correspondence into your web

Response to the Senedd Legislation, Justice and Constitution

Committee Call for Views

Charles Whitmore, Research Associate, Cardiff University – Wales Governance Centre & Wales Council

for Voluntary Action.

November 2022

About this evidence

This evidence has been written by Charles Whitmore as a part of the Wales Civil Society Forum project

(Forum). This is a partnership between Wales Council for Voluntary Action (WCVA) and Cardiff University’s Wales Governance Centre (WGC) funded by The Legal Education Foundation. Its aim is to provide a civic society space for information sharing, informed discussion and coordination in areas subject to legal, administrative and constitutional change stemming from the UK’s withdrawal from the European Union.

WCVA is the national membership organisation for the voluntary sector in Wales.

The WGCis a research unit sponsored and supported in the School of Law and Politics, Cardiff

University.

1. Introduction

1.1 Many thanks to the Committee for the invitation to submit views on the Retained EU Law

(Revocation and Reform) Bill. I am doing so in my capacity as coordinator of the Forum project as civil society organisations we have engaged with in Wales and at the UK level have expressed serious concerns about many aspects of the legislation. The Bill’s core function – to automatically repeal or to amend without parliamentary or public scrutiny a massive body of law, while transferring vast law-making powers to ministers, with little to no consideration of the devolved implications reflected in the drafting - is constitutionally extremely worrying. The bill will:

a. Transfer significant legislative powers to ministers at both the devolved and central levels.

Even going so far as to allow Ministers to use the broad powers in clause 15 to amend provisions of primary law (by virtue of clause 12(2)b).

b. Create significant legal uncertainty.

c.

Likely lead to legislative errors and omission – potentially creating holes in the statute book

which will require further legislative time to fix at a later date.

Drain capacity from the Senedd, Welsh Government and civil society in Wales – an issue that is likely to be felt even more acutely at the devolved level.

Empower the executives to enact policy change, either intentionally or by omission as a result of inaction - this is an entirely inappropriate means of reforming such a huge body of law. It is unclear how such a decision would be communicated, impact assessed, consulted on or challenged.

Risk sunsetting key rights and standards. The equality impact assessment¹ and the human rights memorandum² both note that in theory (UK Government reassurances notwithstanding) there is a risk of anti-discrimination protections and retained EU law (REUL) relevant to Convention Rights being caught by the sunset mechanism. The former explains that there are equality risks created by the Bill’s provisions on departing from Retained EU case law, but that these are mitigated by the Human Rights Act section 3 duty on the courts to interpret domestic legislation in line with the European Convention on Human Rights (ECHR). This ignores that the Bill of Rights Bill is also being considered by the House of Commons which will repeal this duty.

Undermine ordinary legislative procedures, parliamentary oversight, and civil society’s role in scrutinising significant policy change by providing no time or mechanism by which the impact of the potential sunset, preservation, restatement, update, repeal or replacement of REUL might be assessed, scrutinised or consulted on.

d.

e.

f.

g.

1.2 In addition to the above, there are further concerns that relate specifically to the non-

consideration and complexity of interactions with devolution which I will now focus on.

2. Impact on Wales’ regulatory landscape and Interactions with the UK Internal Market

Act (UKIMA)

2.1     There has clearly been very little consideration and consistency in the drafting of the Bill around

its interaction with the institutions of devolution. Devolution is mainly considered at only two points across the Bill’s various documents – less than half a page in the explanatory notes,³ and paragraph 36 of the Equality Impact Assessment.⁴

a. The former notes that the bill’s approach is consistent with other EU related legislation, that

the devolved ‘administrations’ have been appropriately and proactively engaged with, that the Bill reflects a commitment to respecting the devolution settlements and the Sewel Convention and ‘will not create greater intra-UK divergence’ (my emphasis).

b. In contrast, the latter document recognises that the Bill is likely to lead to regulatory

divergence but that this will be managed by the UK Internal Market Act and Common Frameworks. There is a vague reference to conversations having taken place in Whitehall (presumably without the Welsh Government) to ensure that the Bill does not ‘change the

¹ Retained EU Law (Revocation and Reform) Bill, Equality Impact Assessment, para. 27.

² Retained EU Law (Revocation and Reform) Bill, ECHR Memorandum, para. 8.

³ Retained EU Law (Revocation and Reform) Bill, Explanatory Notes, Paragraphs 58-61.

⁴ Retained EU Law (Revocation and Reform) Bill, Equality Impact Assessment, para. 36.

impact of the UKIM Act’. The impact assessment ends this argument noting that where

divergence occurs, the UKIMA market access principles (MAPs) will apply in many areas.

This assessment is worrying and even misleading in several ways - I will take each in turn.

The potential for and impact of regulatory divergence

As evidenced by the Equality Impact Assessment,⁵ it is extremely misleading for the explanatory notes to state with certainty that the Bill will not increase intra-UK divergence. On the contrary, the mechanisms in the Bill provide significant scope for divergence, including in many areas that could trigger the market access principles - for example, around food composition, labelling and environmental policy. In theory it is conceivable that different parts of the UK may choose to allow different pieces of REUL to sunset and/or make different uses of the restatement, update, repeal and replacement powers in clauses 12-16 across a large body of law. There may even be different approaches to re-instating the principle of supremacy and the general principles of EU Law, particularly considering Scotland’s Continuity legislation.

2.2

2.3

The brief explanation provided on this in the impact assessment is extremely limited and one-

sided. It notes only that the UKIMA will protect consumers and businesses from the resulting divergences. However, it fails to acknowledge that there could be significant and unforeseen extra-territorial policy impacts arising from different uses of the vast delegated powers in the Bill in different parts of the UK by virtue of the UKIMA MAPs. As was explored at the time of

the UKIMA’s passage through Parliament, this is likely to work against Welsh policy autonomy as decisions to sunset or amend REUL / assimilated law in England will have disproportionately more impact on the other parts of the UK due to England’s economic weighting and the constitutional imbalances between the central and devolved levels. As a result, it should not be the case that the UKIMA is the default mechanism to manage the effects of any piece of legislation. There is an acknowledgement of the overriding and problematic nature of the MAPs in the choice to provide a limited role for Common Frameworks in the operation of the UKIMA. This provides a statutory role for intergovernmental relations in helping to manage potential regulatory divergences that may otherwise result in tensions.⁶

2.4

Yet, depending on the policy directions taken by the different governments in the use of the

delegated powers in the REUL Bill, the legislation risks triggering the MAPs on a scale far beyond what was initially conceived. In practice this means that governments and legislatures will need to be hyper aware of the policy intentions behind the use of these powers in different parts of the UK as this may well result in de facto limitations of competence.

2.5

In one hypothetical example, EU Regulation 1169/2011 on the provision of food information to

consumers establishes essential requirements on nutrition, allergens and country of origin information on food labelling. There are relevant pieces of REUL at the devolved and UK levels implementing these requirements (the Food Information (Wales) Regulations 2014). Using

⁵ There is a significant question as to why this Bill does not have a wider impact assessment. It is odd to see the equality impact assessment being used to consider wider regulatory impacts like potential interactions with UKIMA.

⁶ As experienced recently with the expansion of exceptions to the MAPs in relation to single use plastics using the procedure in section 10 of the UKIMA, which provides a role for common frameworks in the discussion of further exceptions.

clause 15, the UK Government could decide to lessen these labelling requirements – indeed

these powers are clearly drafted with deregulation in mind. It would also be within the scope of the powers in the Bill for the Welsh Government to preserve the requirements without amending them at the devolved level. It should be noted, that it would not be possible to introduce any changes that might fall within the Bill’s extremely broad definition of an ‘increased regulatory burden’. However, even if maintained, labelling requirements are likely to fall within the mutual recognition principle of the UKIMA and, as a result, products originating in England

would not be required to comply with the ‘preserved’ standards in Wales. They would need only comply with the amended ‘assimilated’ lower standard in England. This would invariably place significant pressure on policy makers in Wales to match the standard introduced by the UK Government to ensure a level playing field for producers in Wales.

2.6

Given the amount of reserved and devolved REUL that would need to be considered in such a

short amount of time, its extraordinary breadth, the limited capacity available, and the lack of an effective system of intergovernmental relations to support such an in-depth joint analysis in so many areas, it is likely to be impossible to consider the impact of all such potential divergences on Wales’ regulatory landscape while no policy direction is provided on how these powers might be used. This is legal uncertainty on a constitutional scale.

The potential role of the Common Frameworks

2.7

The equality impact assessment (and questions provided to me by the UK Parliament Public Bill

Committee) suggest that it is the UK Government’s view that if significant policy divergence

were to arise from different uses of the Bill’s delegated powers, the Common Frameworks would

be sufficient to manage this outcome.

2.8

It is the case that if there were no sunset date, a significant body of intergovernmental work

should take place around the replacement of reserved and devolved REUL because there is scope for interaction with the UKIMA and there is a need to identify potential interactions and interdependencies between UK and devolved acts. This is very much in the spirit of what the Common Frameworks were intended to provide – intergovernmental cooperation based on trust and consensus in a shared space to facilitate meaningful policy differentiation. As a result, they have seen a measure of success,⁷ but are unlikely to be an adequate mechanism to manage the level of disruption that could arise from the REUL Bill:

a. They were designed with a level of cooperation in mind necessary to facilitate the

repatriation of competencies from the EU as examined in the framework analysis.⁸ The potential scale of divergence and tension that could arise from different uses of the

⁷ J. Hunt, T.Horsley, ‘In Praise of Cooperation and Consensus under the Territorial Constitution: The Second Report of the House of Lords Common Frameworks Scrutiny Committee’, 16 July 2022. Available at: https://ukconstitutionallaw.org/2022/07/26/thomas-horsley-and-jo-hunt-in-praise-of-cooperation-and- consensus-under-the-territorial-constitution-the-second-report-of-the-house-of-lords-common-frameworks- scrutiny-committee/

⁸ Cabinet Office, ‘Revised Frameworks Analysis: Breakdown of areas of EU law that intersect with devolved competence in Scotland, Wales and Northern Ireland’, April 2019. Available at:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/792738/ 20190404-FrameworksAnalysis.pdf

delegated powers in the Bill and of the sunset mechanism, from potentially asymmetrical

instances of omission and from different approaches taken to supremacy and the general principles – would likely be far beyond what the common frameworks are capable of managing. A higher-level commitment to intergovernmental work on the basis of consensus would be required.

b.

There are gaps – some policy areas do not have common frameworks but do have REUL.

Indeed the framework analysis identified only a minority of policy areas as requiring a common framework and left many others to rely on other mechanisms. If the common frameworks are expected to provide a formal role in managing divergence arising from the REUL Bill, it is unclear how policy areas without a framework would be managed.

c.

It is likely that different teams in the civil service at the devolved and central levels work on

the common frameworks and REUL. Given the already significant capacity challenges, there are likely to be further practical issues around ensuring communication between relevant teams.

d.

Despite their successes, the Common Frameworks lack transparency and consistency.

Furthermore, the timeline of the UK’s withdrawal from the EU required them to enter force despite many being incomplete and provisional.

The Bill is out of keeping with the devolution, the spirit of the Sewell Convention and other pieces

of EU withdrawal related legislation

2.9

Contrary to the claim in the explanatory notes, the Bill does not respect the devolution

settlements or the Sewell Convention. Insufficient a priori engagement took place as evidenced by communications from the Welsh (and Scottish) governments. Even a posteriori, it is striking that the Welsh Government was not invited to give oral evidence alongside the Scottish Government to the Public Bill Committee. Indeed at his evidence session on 8 November 2022, Angus Robertson MSP, Cabinet Secretary for the Constitution, External Affairs and Culture at the Scottish Government, seemed to be placed in a position by the Committee to also present the views of the Welsh Government.⁹

2.10

The Welsh and Scottish Governments have both recommended against legislative consent yet

given recent practice it seems likely that the legislation will be passed anyway. Furthermore, it grants law-making powers to the UK Government in areas of Welsh devolved competence that can be exercised without seeking the consent of the Senedd or the Welsh Government. The clause 16 power to update assimilated law, which does not appear to be time limited up to 2026, would give an indefinite power to the UK Government to update Welsh law where there is a ‘development in scientific understanding’. This makes the bill asymmetrical in how it addresses devolution, as Schedule 2 places restrictions on devolved competence, preventing the use of powers by the devolved authorities, but it creates no parallel restriction or consent mechanism on the exercise of the ministerial powers by the UK Government in devolved areas.

⁹ Transcript available at: https://www.theyworkforyou.com/pbc/2022- 23/Retained_EU_Law_%28Revocation_and_Reform%29_Bill/02-0_2022-11-08a.76.2

2.11

Also contrary to the statement in the explanatory notes, the absence of a consent mechanism

makes the Bill out of keeping with other EU Withdrawal related legislation.

e.

For example, sections 6(7), 8(9), 10(9) of the UKIMA require the UK Government to seek the

consent of Welsh Ministers when exercising relevant delegated powers.

f.

The Withdrawal Act and its associated intergovernmental agreement provide a

constitutionally sounder example of a consent mechanism. In the event of the powers to freeze devolved competence being exercised by the UK Government, the system required that the Llywydd be notified and that the relevant regulations be provided to the Welsh Government. The Senedd was to then be given an opportunity to consent. If the UK Government wished to proceed without consent, both devolved and central governments were to provide a written statement to the UK Parliament explaining why consent was denied. The UK Parliament could then decide whether to approve the regulations or not. It is constitutionally egregious that no consideration is given on the face of the REUL Bill to seeking the consent of devolved authorities in the exercise of concurrent powers, which in the case of this Bill, are vast.

2.12

Similarly, there are several issues with the power to extend the sunset as it is unclear why this is

granted exclusively to the UK Government. While the government has noted that this is intended as a ‘fail-safe’, given the tightness of the deadline it is likely to be essential. It is equally worrying that directly effective rights derived from EU case law, EU treaties and EU directives will sunset in 2023 by virtue of clause 3 without the possibility of extension when it is entirely uncertain what the effects of this will ultimately be.

2.13

The mechanism in clause 1(2) to preserve from sunset does provide an option that is open to the

Welsh Government, but it too requires that all devolved REUL be identified prior to the deadline. It is also far from ideal that it is subject to the negative procedure. The articulation and differences between the clause 1(2) and clause 2 mechanisms are not entirely clear, though it seems the latter may be usable in relation categories of legislation making it potentially broader. In either case, it is possible that the sunset deadline will lead to a rush to extend or preserve devolved REUL from the sunset and will be conducive to omissions and legislative mistakes, with potentially serious ramifications for the statute book and legal certainty.

2.14

Furthermore, the process is entirely inappropriate from the perspective of parliamentary

scrutiny, as the Senedd will have no meaningful decision to make if presented en masse with a body of devolved REUL to preserve. The decision not to preserve would simply be too problematic. The Senedd should have an ordinary legislative role in scrutinising the changes to REUL over a much more protracted timeline, wherein the merits of specific legislative reforms can be subject to considered debate, impact assessment and consultation. The sunset mechanism should be removed or changed so that instruments must be specified to be included within its scope such the decision to do so can be scrutinised. A mechanism akin to that in the Withdrawal Act should also be considered so that the Senedd has a scrutiny role where concurrent powers are being exercised by the UK Government in areas of devolved competence.

3    Capacity concerns

3.1 The deadline created by the sunset in clause 1 will place enormous pressure on the Welsh

Government and the Senedd as the timeline for identifying all devolved REUL is impossibly tight. This is tantamount to the UK Government asking that Welsh legislative and executive priorities be put on pause while an entirely unnecessary exercise takes place that can only lead to significant legal uncertainty and tension between central and devolved authorities.

These capacity concerns extend to Welsh third sector organisations, who will struggle if any meaningful civic society scrutiny is to take place on the use of the sunset and ministerial powers. That such a large and unnecessary re-direction of capacity should take place while the country is grappling with the cost of living crisis, an energy crisis and the fallout from the war in Ukraine, is astonishing.

3.2 The Welsh Government has stated that mapping devolved REUL for the purpose of this Bill

should not be placed as a burden on devolved authorities. While understandable on a political level, in practice if the Bill passes largely unamended, it will be crucial that devolved REUL be identified as comprehensively as possible, as the consequences of being caught by the sunset are severe.

3.3 The capacity pressures the Bill will create are not limited to the identification of devolved REUL

however. Significant intergovernmental coordination is needed to ensure that cross-border policy implications are identified and considered jointly prior to any decisions to sunset, restate, amend or repeal specific instruments. Dialogue should also take place where changes to reserved policy areas using these powers would have significant implications in Wales (for example around potential changes to labour rights).

3.4 It is unhelpful that the dashboard does not identify relevant devolved REUL as this means that

devolved authorities are likely further behind in this process than the UK Government. They are likely also subject to even more acute capacity constraints. However, even if the Dashboard were to distinguish between devolved and reserved REUL, this would be of limited help as it does not go into the level of detail necessary to support a policy exercise of this nature and scale. Indeed recent work by the National Archives has highlighted just how incomplete it is as a database – noting that it has identified a further 1,400 pieces of REUL.¹⁰ Meanwhile, little to no consideration has been given in debates in the UK Parliament to the absence of devolved REUL from the database.

4

The scope of the new regulation-making powers and their scrutiny

4.1 The bill will transfer vast amounts of law-making powers from the legislatures to the executives

with no meaningful scrutiny, consultation or impact assessment process – this is constitutionally inappropriate regardless of the level of governance at which it takes place. It undermines both the role of the Senedd and the democratic scrutiny role provided by wider civic society. Clause 12 (2) (b) would even allow Ministers to amend provisions of primary legislation using the already extreme powers in clause 15. Furthermore, it will enable, either by intention or

¹⁰ See the Financial Times report on 7 November 2022. Available here: https://www.ft.com/content/0c0593a3- 19f1-45fe-aad1-2ed25e30b5f8

omission, Ministers to enact policy reform by inaction. It is unclear how, or even whether given

the tight deadline, the intention to allow a piece of REUL to sunset would be communicated, let alone challenged.

4.2 Clause 15 is particularly egregious in two regards. Firstly, it is striking in the breadth of powers

given to ministers who would be able to revoke and replace REUL with any alternative they consider ‘appropriate’. Secondly, despite political reassurances, the tone and mechanisms of clauses 15(5) and 15(10) are clearly deregulatory.

a.

Clause 15(5) would place a limitation on the Welsh Government’s ability to use the

delegated powers in Clause 15 to make any changes that could be interpreted as increasing

the ‘regulatory burden’.

b.

Meanwhile, clause 15(10) establishes an incredibly broad (and open ended) definition of

what can amount to a regulatory burden. This includes for example ‘obstacles to efficiency, productivity, or profitability’, ‘financial cost’ or even an ‘administrative inconvenience’. It is unclear how differences in interpretation might be discussed and addressed around these definitions. What one authority considers a burden, another might consider a higher regulatory standard. This would effectively prevent regulatory standards being raised using these powers which, it is important to remember, are exercisable by the UK Government unilaterally in areas of devolved competence. Ordinary legislative processes could be used to re-establish or raise standards, however, there are concerns around legislative time, capacity, and the potential risk of entrenchment of any changes that might be introduced using these ministerial powers.

()

Welsh NHS Confederation Conffederasiwn GIG Cymru

1. 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.

2. 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.

Introduction

3.

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).

4.

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.

5.

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.

Public Health

6.

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.

•

•

•

•

7.

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

Welsh NHS Confederation response to the Legislation, Justice and Constitution Committee on the Retained EU Law (Revocation and Reform) Bill

Contact for further info

Date:

7 November 2022

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.

8. 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

9. 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?

10. 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?

11. 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.

Conclusion

12. 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.

13. 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 sunseted 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.

14. 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

2