Implications for Wales of leaving the EU: Assembly Committee published its first report

16 March 2017

Article by Nia Moss, National Assembly for Wales Research Service

This article was originally published on 30 January 2017. It is being reposted ahead of the Plenary debate on 28 March 2017.

View this post in Welsh | Darllenwch yr erthygl yma yn Gymraeg

EU flagsThe Assembly’s External Affairs and Additional Legislation Committee (@SeneddEAAL) has published its first report on the Implications for Wales of leaving the EU. The report is divided into two parts.

Part 1 of the report sets out the Committee’s conclusions on the key implications for Wales of leaving the EU. These conclusions are based on a range of seminars and evidence sessions the Committee held with leading experts on a range of key topics including trade, public services, EU funding, higher education and the environment.

Key conclusions include:

  • Given the importance of manufacturing to Wales, the imposition of any tariffs poses a significant risk for this sector, especially for manufacturers that exist within global value chains;
  • There are significant risk to the trade in agricultural products;
  • Without careful consideration, restricting the ability of EU citizens to work in the UK after Brexit will have adverse consequences for many public services, some businesses and future infrastructure projects in Wales.
  • The most urgent issue for the higher education sector in Wales is clarification on the status of EU Citizens working and studying in Wales;
  • The Welsh Government should take a lead in preparing public services for the challenges ahead.

Part 2 of the report focusses on the Welsh Government’s response to the referendum, Wales’ voice in the negotiations and the future of inter-governmental relations in the UK. On this subject the Committee makes six recommendations in addition to drawing a number of key conclusions.

Key recommendations include:

  • That the Welsh Government publishes all the evidence on which it has based its White Paper including details of the scenario modelling that has been done across all sectors.
  • That the Welsh Government provides the Committee with a register of risks across all areas where Brexit will impact upon its activity.
  • That the Welsh Government sets-out the steps it has taken since 24 June 2016 to ensure that the maximum amount of European funding is secured and utilised before Wales exits the EU.
  • That the Welsh Government presses the UK Government for full involvement in shaping its negotiating position and direct participation in those negotiations which involve devolved powers, or issues that affect devolved powers.
  • The Committee also concludes that ‘constitutional appropriateness’ requires the Assembly’s consent through Legislative Consent Motions for key potential Brexit-related Acts of the UK Parliament.
  • The Committee notes that if the Great Repeal Bill encroaches on the devolution settlement it would support the principle of protecting the devolution settlement through the introduction of a Welsh Continuation Bill.

A Continuation Bill would restate the existence in the law of Wales of:

  • all domestic law applicable to Wales made for the purposes of implementing any EU-law obligation/discretion, and
  • all directly applicable/directly effective rights and obligations deriving from EU law

that fall within the Assembly’s competence.

The Committee sets out its hope that the report will act as a point of reference to inform the broader debate in Wales, and beyond, about the UK’s exit from the EU and will be used by other organisations as they begin to consider the implications for Wales.

You can find out more about the work of the Committee and its up-coming work on the Committee website.

Cross-border healthcare – overseas patients

16 March 2017

Article by Philippa Watkins, National Assembly for Wales Research Service

Darllenwch yr erthygl yma yn Gymraeg | View this post in Welsh

Image of a health professional holding a clipboard The UK Government recently announced that NHS hospitals in England will be required to charge patients from overseas upfront for non-urgent, planned care unless they are eligible for free treatment.

How does this apply to the devolved administrations? What are the arrangements for non-UK residents to access NHS healthcare, and for Welsh (and UK) patients to receive treatment abroad? Is this likely to change following the UK’s withdrawal from the EU?

Access to NHS services in the UK – ordinary residence

Entitlement to free NHS healthcare is based on being ‘ordinarily-resident’ in the UK. Ordinary residence is not dependent on nationality, paying UK taxes/national insurance, having an NHS number or being registered with a GP, or owning property in the UK. It has become accepted to mean that a person is living here lawfully, voluntarily, and for settled purposes. Under the Immigration Act 2014, a person must have indefinite leave to remain in the UK in order to be regarded as ordinarily resident.

Across the UK, some types of healthcare, including GP services and treatment in an accident and emergency department, are currently free to all patients whether they are ordinarily resident or not. For non-UK residents, most hospital treatment is subject to charge, although some groups of people are exempt, for example refugees, asylum seekers and looked after children. Additionally, patients who have rights to healthcare under EU legislation or other reciprocal healthcare agreements may also be exempt from charges. More detail about these arrangements – which also apply to UK residents receiving treatment abroad – is provided below.

As of April 2015, non-EEA nationals coming to the UK for longer than six months may be liable to pay an immigration health surcharge as part of their visa application. This entitles them to NHS treatment on the same basis as permanent UK residents.

Charging regulations

NHS organisations across the UK are required by regulations to establish whether someone is liable to pay for NHS services and to charge them accordingly.

The UK Department of Health has said that the new requirement for hospitals to charge overseas patients upfront will come into effect in April 2017. This applies to England only – separate regulations govern the charging arrangements in the devolved administrations. In Wales, the Welsh Government is reviewing the existing charging regulations and guidance, and is expected to publish updated versions in draft form for consultation in spring 2017.

Residents of EEA countries (including UK residents)

Unplanned treatment

Residents of European Economic Area (EEA) countries and Switzerland can apply for a European Health Insurance Card (EHIC), which will allow them to access state-provided healthcare during a temporary stay in another EEA country/Switzerland. The EHIC covers any necessary medical treatment that cannot be postponed until you’ve returned home. This includes treatment for chronic or pre-existing medical conditions and also routine maternity care (this includes unplanned childbirth, but would not provide cover for someone planning to give birth abroad).

Treatment should be provided on the same basis as it would to a resident of that country. In many cases this will be free, however in some countries patients are expected to contribute towards the cost of their state-provided treatment, and this will also apply to EHIC holders receiving treatment in those countries.

It’s emphasised that the EHIC is not an alternative to travel insurance – it will not, for example, cover someone for rescue and repatriation following an accident.

Planned treatment

There are two potential routes under which EEA residents can travel to another EEA country for planned healthcare:

  • the EU Directive route;
  • the S2 scheme.

Under the EU Directive on patients’ rights in cross-border healthcare, patients are able to purchase state or private healthcare in another EEA country and seek reimbursement from their home country (up to the cost of that treatment at home). The EU Directive route does not apply to Switzerland.

Prior authorisation is not necessarily needed, although this will be a requirement for some types of healthcare, generally inpatient care and highly-specialised, cost-intensive treatment. Under the Directive, patients are not able to obtain reimbursement for treatment that they would not be entitled to at home.

Further information about arrangements under the EU Directive can be found in the Welsh Government’s guidance for the NHS on cross-border healthcare and patient mobility.

Under the S2 route, EEA and Swiss residents are able to seek planned treatment in other EEA countries/Switzerland, but must obtain prior authorisation from their own Member State, which bears the cost. The S2 route applies only to state-provided (not private) treatment.

The S2 form acts as a form of payment guarantee – in the majority of cases, the patient is not required to pay anything themselves (other than any relevant statutory charges that would also apply to those ordinarily resident, for example prescription and dental charges in the UK).

Pensioners living abroad

Under the S1 scheme, pensioners settling in another EEA country or Switzerland are able to access healthcare services in that country on the same terms as ordinary residents. The S1 form is issued by the country that pays your pension, and must be registered in the country in which you now live.

The S1 scheme is mostly used for pensioners but may also apply to other groups such as posted workers and cross-border workers.

The UK Government acts on behalf of the UK as a whole to reclaim costs from other EEA member states under the S1, S2 and EHIC schemes.

Impact of Brexit

The UK is a net ‘exporter’ under the EU’s reciprocal healthcare arrangements, paying out more to other EEA countries than it receives. This is largely due to the greater number of UK pensioners living abroad. In February 2017, the UK Department of Health told the House of C0mmons’ Health Committee:

on an annual basis, we pay out roughly £650 million a year to cover the costs of UK‑insured pensioners in other EEA countries and UK visitors to those countries.


Of that, about £500 million is on pensioners, so that is UK‑insured pensioners, of which there are about 190,000 in other EEA countries. I think the figures there are 70,000 in Spain, 44,000 in Ireland, 43,000 in France and about 12,000 in Cyprus. Those are the main countries.

The above arrangements remain in place while the UK is still a member of the EU, but it’s not yet clear how things might change following the UK’s withdrawal. In evidence to the Assembly’s External Affairs and Additional Legislation Committee, the Welsh NHS Confederation said:

If the UK were to leave the EU single market, these systems would in principle no longer apply in the future, unless bilateral agreements were negotiated. Consideration should be given by negotiators to possible implications for patients and how to ensure that a fair alternative system is put in place, either with the EU as a whole, or with those EU countries, such as Spain, which have high numbers of UK nationals living there.

Non-EEA countries

The UK has reciprocal healthcare agreements with a number of individual countries outside the EEA. These agreements may provide for immediately necessary treatment for conditions which arise, or existing conditions which become acutely worse, during a temporary visit. The level of care which may be provided free of charge varies. As with the EHIC, it’s recommended that those travelling in other countries take out adequate travel insurance to cover their stay abroad.

Some reciprocal agreements may also provide for a limited number of referrals specifically for the treatment of pre-existing conditions (this would normally only apply where the referring country does not have adequate facilities to provide the treatment needed).

Further information

  • National Contact Points in each EEA country can advise patients on their rights under the EU arrangements.
  • Information about accessing planned or unplanned treatment in another European country can be found on the EU’s Your Europe website.
  • Further information and advice for people visiting or moving abroad, and for those seeking treatment in Wales, is provided by NHS Direct Wales.

See our June 2016 briefing for information on the cross-border healthcare arrangements between Wales and England.


Devolution of energy and environmental powers: is the new settlement a lasting one in the face of Brexit?

14 March 2017

Article by Katy Orford, National Assembly for Wales Research Service 

Darllenwch yr erthygl yma yn Gymraeg | View this post in Welsh

The devolution settlement is changing under the Wales Act 2017 which received royal assent on 31 January 2017. This article explores what this means for energy and environmental powers in Wales, and also highlights the different attitudes to the devolution of powers following withdrawal from the EU.

Devolution – the current ‘conferred powers’ model

The current devolution settlement is based on a ‘conferred powers’ model. Schedule 7 of the Government of Wales Act 2006 sets out the 21 devolved areas for which the Assembly can legislate. Everything else falls to the UK or European Parliaments. Areas devolved to Wales include, amongst other things, the environment, agriculture, fisheries, planning and energy. For example, the Assembly has recently passed three key pieces of legislation in relation to the environment in Wales; the Environment (Wales) Act 2016, the Well-being of Future Generations (Wales) Act 2015 and the Planning (Wales) Act 2015. At present all laws passed by the Assembly must comply with EU law which is of particular relevance for the environment as many policy areas are shared with the EU including agriculture, through the Common Agricultural Policy, and nature conservation, via the Birds and Habitats Directives.

Devolution – the ‘reserved powers’ model

The Wales Act 2017 introduces a ‘reserved powers’ model of devolution. This turns the situation on its head; it sets out the areas outside the Assembly’s legislative competence, leaving everything else devolved to Wales. This is more similar to the situation in Scotland. The reserved powers model is due to come into force in April 2018 and the model in Schedule 7 of the Government of Wales Act 2006 will apply up until that date.

New powers in the field of energy and the environment brought to Wales

In addition to introducing the reserved powers model, the Wales Act 2017 brings new powers to Wales in the field of energy and the environment. Most of these changes will not come into effect until next year, with many requiring additional legislation. The Wales Act 2017 will give Wales:

  • Responsibility for marine licensing in the Welsh ‘offshore region’– 12 nautical miles out to the median line (currently limited to the ‘inshore region’ – 0-12 nautical miles);
  • Power to designate areas in the Welsh offshore region as Marine Conservation Zones (MCZs) (limited to the inshore region currently- Skomer is the only existing Welsh MCZ);
  • Power to consent energy projects with a generating capacity of up to 350MW for both onshore and inshore energy extending the current 50MW limit for the onshore and 1MW limit for the inshore. This would include the planned tidal lagoon in Swansea Bay. Onshore wind projects will continue to have no upper limit;
  • Responsibility for licensing onshore oil and gas, including the extraction of shale gas, and for new coal mines;
  • Power of consent for ‘associated development’ for energy projects, for example transport links and overhead power lines to the same body that is responsible for the main project;
  • Power to make building regulations in respect of ‘excepted energy buildings’ – buildings that form part of energy infrastructure; and
  • Additional power to legislate over water supply and sewerage.

Implications of Brexit on the devolution settlement

The Wales Act 2017 has come at an interesting time as the UK Government prepares to trigger Article 50 and start the formal process for the UK’s withdrawal from the EU. As Wales shares powers with the EU, especially in environmental fields, there are questions around whether the settlement will change as a result of Brexit.

The Welsh and UK Government have expressed different interpretations on where powers currently shared between Wales and the EU will lie. The UK Government has made reference in its Brexit white paper to the ‘repatriation’ to the UK of existing EU powers to set common regulatory frameworks:

[…] even in areas where the devolved legislatures and administrations currently have some competence, such as agriculture, environment and some transport issues, most rules are set through common EU legal and regulatory frameworks, devised and agreed in Brussels. When the UK leaves the EU, these rules will be set here in the UK by democratically elected representatives.

As the powers to make these rules are repatriated to the UK from the EU, we have an opportunity to determine the level best placed to make new laws and policies on these issues, ensuring power sits closer to the people of the UK than ever before.

The view set out in the Welsh Government / Plaid Cymru white paper on Brexit is quite different in that powers returning from the EU, in devolved areas, will land in Wales rather than Westminster:

Currently a range of powers already devolved to the National Assembly for Wales and the Welsh Government are operated within an EU regulatory framework. These include agriculture, fisheries, environment and economic development. At the point of UK exit from the EU, when EU regulatory and administrative frameworks cease to apply, these powers will continue to be devolved in Wales.

The Welsh Government / Plaid Cymru white paper highlights the constitutional implications and challenges of EU withdrawal are particularly acute in the field of environment and rural affairs:

These policy areas are all significantly devolved and over the 17 years since devolution began there has been significant divergence of policy direction between the different parts of the UK.

On Saint David’s Day the Prime Minister addressed devolution and the importance of UK frameworks and an internal single market:

… we are discussing with the devolved Administrations the whole question of the UK framework and devolution of issues as they come back from Brussels. The overriding aim for everything that we do when we make those decisions is to ensure that we do not damage the important single market of the United Kingdom, a market which I remind the right hon.

A key question facing Wales today is whether the ethos of the UK Government’s Command Paper, Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales will be challenged on the UK’s withdrawal from the EU.

Brexit: Views from Wales and Westminster

28 February 2017

Article by Nia Moss, National Assembly for Wales Research Service

Darllenwch yr erthygl yma yn Gymraeg | View this post in Welsh

This is a picture of an Assembly Committee room.

On 6 and 13 February 2017 the First Minister for Wales, Carwyn Jones AM, and the Minister of State for Exiting the EU, Rt Hon David Jones MP gave evidence to the Assembly’s External Affairs Committee (@SeneddEAAL) on their governments’ respective white papers and their priorities for the negotiations on the UK’s withdrawal from the EU.

What was the view from Wales?

The First Minister for Wales told the Committee that his priority for the negotiations was ensuring that Welsh businesses are able to export to the European market in the same way as they do now. The First Minister outlined his view that this goal should be pursued even if it means a compromise on immigration but also highlighted the Welsh Government’s proposal to link the freedom of movement of people to employment.

In relation to the border between Ireland and Norther Ireland, the First Minister stated that he wouldn’t want to see a deal on the issue that would make it easier for companies to move goods through Northern Ireland than through Welsh ports.

In relation to future funding the First Minister stated that he expected Wales to be compensated for the loss of European funding. He outlined his view that this should be in the form of an increase in the block grant and that this funding should not be subject to the Barnett formula.

The First Minister said that the UK Government’s engagement with the Welsh Government had been good and he welcomed the quarterly meetings of the Joint Ministerial Council. However, the First Minister emphasised that he expects not only for the voice of the Welsh Government to be heard but also to play an active role in the negotiations with the EU. The First Minister set out his view that the Welsh Government had not yet received a coherent view from the UK Ministers on the UK Government’s negotiation position.

The First Minister argued that current structures for inter-governmental relations in the UK are not fit for purpose. He called for new structures for making policy decisions and resolving disputes between the four governments of the UK. He was clear in his view that following the UK’s withdrawal from the EU the default position on powers would be that all powers currently exercised by the EU in areas of devolved policy like agriculture would come back to Wales. He stated that this was not the current view in Whitehall where he said there is a belief that the UK Government will decide where powers currently held by the EU will go in the UK.

What was the view from Westminster?

The Minister of State for Exiting the EU, Rt Hon David Jones MP, told the External Affairs Committee that the UK Government had not yet decided when it would trigger Article 50. He stated that the UK Government had also not yet decided whether it would send a simple letter of notification or would send a more detailed letter outlining some of its negotiation objectives.

The Minister offered his reassurance to the Committee that the UK Government’s negotiation position would fully reflect the views of the devolved governments and legislatures. He stated that the UK Government would need to weigh conflicting concerns and priorities within the UK to come up with a solution in the best interests of the whole of the UK.

The Minister stated that he wanted ‘to be absolutely clear that we (the UK) will be leaving the single market’ but that he believed there would be every incentive for the EU to agree a comprehensive free trade agreement with the UK. He outlined that the UK Government is undertaking an analysis of over 50 sectors in the UK economy to consider the implications and opportunities for them post UK withdrawal.

The Minister stated that the Home Office is currently working on a policy in relation to free movement between Northern Ireland and the Republic of Ireland following the UK’s withdrawal from the EU.

On inter-governmental relations the Minister stated that the UK Government was not currently looking at the development of new constitutional structures to replace the JMC though they may consider this ‘in the fullness of time’. In relation to the repatriation of powers following the UK’s withdrawal from the EU the Minister stated that (PDF 432KB):

It will be necessary for the United Kingdom to make a decision as to where various competences lie. We have been absolutely clear in indicating that any devolved competences that are currently exercised at devolved level will not be, so to speak, clawed back. It will be necessary to decide where powers best lie. It may be that there will be scope for further devolution, but, it may well be there will be an advantage, and in fact an imperative to look at UK-wide structures to replace the competences that previously resided at Brussels level.

These two evidence sessions formed part of the External Affairs Committee’s work on the implications for Wales of the UK’s withdrawal from the EU. Find out more about the Committee’s work on its webpage or on twitter @SeneddEAAL. You can watch the evidence sessions in full on 

The “Article 50” Bill: Latest developments

06 February 2017

Article by Dr Alys Thomas National Assembly for Wales Research Service

Darllenwch yr erthygl yma yn Gymraeg | View this post in Welsh


Image from Wikimedia by Rwendland. Licensed under Creative Commons.

Since the Supreme Court Ruling developments around Brexit have been rapid.

The UK Government argued that it could invoke Article 50 of the TEU without Parliament passing legislation. It said that the prerogative powers of the Crown to enter into and to withdraw from treaties meant Ministers were entitled to exercise this power in relation to the EU Treaties, and therefore to give Notice of the UK’s intention to leave without the need for any prior legislation.

The claimants, however, argued that withdrawal from the EU Treaties would change domestic law. Owing to the rule that prerogative powers cannot be used to change UK domestic law, they said this meant that the UK Government could not serve a Notice unless first authorised to do so by an Act of Parliament.

The Supreme Court dismissed the Secretary of State’s appeal by a majority of 8 to 3. The Supreme Court considered that the terms of the European Communities Act 1972, which gave effect to the UK’s membership of the EU, were inconsistent with the exercise by UK Ministers of any power to withdraw from the EU Treaties without authorisation by a prior Act of Parliament.

The UK Government reacted by publishing the European Union (Notification of Withdrawal) Bill 2016-17. The Bill has just two clauses which state:

1 Power to notify withdrawal from the EU

(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

(2) This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.

2 Short title

This Act may be cited as the European Union (Notification of Withdrawal) Act 2017.

The Bill received its Second Reading on 31 January and 1 February. 498 MPs voted in favour and 114 voted against. It goes to a Committee of the Whole House for three days starting on 6 February. It is due to have its Third Reading and Report Stage on the 8 February. It will then go the House of Lords.

Amendments have been tabled to the Bill. A number of these add new clauses which establish powers through which the UK Parliament can scrutinise the UK Government throughout the negotiations. Other amendments seek to place the role of the Joint Ministerial Committee on a statutory footing during negotiations to leave the EU and/or to require the Prime Minister to secure the agreement of the First Ministers of Wales, Scotland and Northern Ireland before agreeing the terms of withdrawal. A group of amendments would also require Ministers to seek the approval of Parliament of the terms of any proposed withdrawal agreement with the EU.

The clauses that aim to formalise the role of the Joint Ministerial Committee are linked to the Supreme Court Article 50 ruling, which held that the convention according to which the UK Parliament will not legislate in matters that are devolved (known as the “Sewel Convention”) is not a matter for the courts. The Court stated:

In reaching this conclusion we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law.

The day after the Second Reading of the Bill the UK Government published a White Paper: The United Kingdom’s exit from and new partnership with the European Union. With regard to devolution, it stated:

The devolved administrations will continue to be engaged through the Joint Ministerial Committee (JMC), chaired in plenary by the Prime Minister and attended by the First Ministers of Scotland and Wales and the First and deputy First Ministers of Northern Ireland, and the JMC sub-committee on EU Negotiations (JMC(EN)), chaired by the Secretary of State for Exiting the European Union, with members from each of the UK devolved administrations.