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72 N. Ir. Legal Q. 62 (2021)
Towards a Welsh Health Law: Devolution Divergence and Values

handle is hein.journals/nilq72 and id is 494 raw text is: Northern Ireland Legal Quarterly COVID-19 Supplement Vol. 72 No. Sl (2021) 62-90 w Article DOI: 10.53386/nilq.v72iS1.940 Towards a Welsh health law: devolution, divergence and values John Harrington, Barbara Hughes Moore and Erin Thomas1 Cardiff University Correspondence email: harringtonj3@cardiff.ac.uk ABSTRACT COVID-19 and Brexit have given political impetus to re-examine Wales's place within the United Kingdom's devolution settlement. Health has been a key site for divergence in law and policy as between the administrations in Cardiff and London. In light of these contests, and the longer-running trends in devolution, this article considers whether a distinct 'Welsh' health law has now emerged. We examine the constitutional context and the range of sources for this new legal field. We argue that a set of values can be identified through an attentive reading of the legislative output of the Welsh Parliament, through reflection on the policy development of health in Wales, through the devolution process. While accepting that these are varied and heterogeneous, these values are as much an expression of universal ethical goals as they are of any delineable Welsh essence. No mere summation of positive law, these values allow one to define a distinctive realm of Welsh health law, have the potential to act as an interpretative lens for analysing law and policy flowing from Westminster, and could potentially act as a value structure for further Welsh legislation. Keywords: devolution; divergence; values; Welsh jurisdiction; COVID-19; health law; healthcare; Coronavirus Act 2020; NHS; Brexit. INTRODUCTION The health landscape of Wales and the United Kingdom (UK) is changing. Pre-existing tensions and divisions over Brexit and wider constitutional issues of devolution and governance have been illuminated and exacerbated by COVID-19.2 At the onset of the pandemic, the Welsh, Scottish and Northern Irish administrations and the UK Government, for England, committed to respond in a closely 1 Respectively Professor of Global Health Law, Lecturer in Law and ESRC Doctoral Researcher, School of Law and Politics, Cardiff University. We are indebted to Matt Watkins for detailed comments on earlier drafts. Thanks also to Abbie-Rose Hampton, Huw Pritchard and Charlie Sinden. The usual disclaimer applies. Research for this article was made possible by a Welsh Government Ser Cymru award. 2 J Bradbury, 'Welsh devolution and the union: reform debates after Brexit' (2021) 92 Political Quarterly 125; G Evans 'Devolution and Covid-19: towards a new normal in the Territorial Constitution?' (2021) (1) Public Law 19-27.