Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

23/04/2018

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd AC
David Melding AC
Mandy Jones AC
Mick Antoniw AC Cadeirydd y Pwyllgor
Committee Chair

Y rhai eraill a oedd yn bresennol

Others in Attendance

Mark Drakeford AC Ysgrifennydd y Cabinet dros Gyllid
Cabinet Secretary for Finance
Owen Davies Llywodraeth Cymru
Welsh Government
Simon Brindle Llywodraeth Cymru
Welsh Government

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Alys Thomas Ymchwilydd
Researcher
Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Gareth Williams Clerc
Clerk
Ruth Hatton Dirprwy Glerc
Deputy Clerk
Sarah Sargent Ail Glerc
Second Clerk

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Dechreuodd y cyfarfod am 14:00.

The meeting began at 14:00.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datganiadau o fuddiant
1. Introduction, apologies, substitutions and declarations of interest

Good afternoon, Cabinet Secretary and everyone. This is the meeting of the Constitutional and Legislative Affairs Committee, Monday 23 April 2018. There are no apologies. I'll just check whether there are any declarations of interest. There are none, so I will just do a few housekeeping matters before we get going. In the event of a fire alarm, Members should leave the room by the marked fire exits and follow instructions from the ushers and staff. There is no test forecast for today. All mobile devices should be switched to silent mode. 

The National Assembly for Wales operates through the medium of both Welsh and English languages. Headphones are provided through which instantaneous translations may be received. For any who are hard of hearing, these may also be used to amplify sound. Do not touch any of the buttons on the microphones as this can disable the system, and ensure that the red light is showing before speaking. Interpretation is available on channel 1 and verbatim on channel 2. 

2. Bil yr Undeb Ewopeaidd (Ymadael): Sesiwn dystiolaeth - Ysgrifennydd y Cabinet dros Gyllid
2. The European Union (Withdrawal) Bill: Evidence session - the Cabinet Secretary for Finance

Welcome to the Cabinet Secretary for the European Union (Withdrawal) Bill evidence session. I wonder if you could introduce your officials for the Record.

Thank you, Chair. So, I'm accompanied this afternoon by Owen Davies and by Simon Brindle.

Thank you for attending this session and, as you will know, Cabinet Secretary, last week, we had the Secretary of State for Wales who gave evidence in terms of the state of the withdrawal Bill at the moment and the implications that we are concerned with in terms of that Bill for the National Assembly for Wales. I wonder perhaps whether you could update us on how negotiations have progressed in conjunction with the Scottish Government and the Welsh Government since the Committee Stage in the Lords.

Thank you, Chair. So, Members here will know that the United Kingdom Government tabled an amendment at Report Stage in the House of Lords. It represented a genuinely significant step forward in that it inverted clause 11. So, the original clause 11, as you will remember, said that everything should stay at Westminster and that things would be returned to the devolved administrations bit by bit, according to a process that it couldn't explain, to a timetable that wasn't set out and with no end point to that process either.

What the inversion of clause 11 does is to bring clause 11 into line with the settlement Scotland has always had and that we now have, which is that everything is devolved unless some things are reserved. That was a genuine step forward. There was a series of questions—very important questions—still unresolved in that amendment. The First Minister said that very clearly at the Joint Ministerial Council plenary session involving the Prime Minister and the Scottish First Minister, and the UK Government did not press its amendment to a vote. Again, I take some comfort from that—that they didn't try to press that amendment through the system at a point when discussions were still going on with Scotland and with Wales, and they gave an undertaking to come forward in the House of Lords with revised amendments at the Report Stage.

So, since then, very intensive discussions have gone on. An enormous effort has been made at official level to try to find a solution to the remaining outstanding issues. A meeting took place on Monday last week. It was outside the formal structure of the JMC. It was a trilateral meeting between David Lidington, me and the Scottish Minister Mike Russell to review where we had got to with the work of officials, and I came away encouraged by that meeting that we were getting genuinely closer now to a set of amendments that we would regard as having resolved the outstanding issues. So, there was a further remit of work for officials to do as a result of that meeting, and this process goes on all the time between meetings as well. I had conversations with the Scottish Minister subsequently last week. I had a conversation with David Lidington yesterday afternoon. I go to London again tomorrow, and we will review further where we have got to.

I understand the position the UK Government finds itself in. It has a hard deadline of 4 p.m. on Wednesday to put down amendments for the Report Stage. The timetables that they have to abide by allow them no further latitude because of where the clause 11 debate is scheduled. But there may be further opportunities, even beyond the Report Stage, if any further refinement of the position we have reached so far is required.

14:05

I wonder whether I could ask you to clarify, then, bearing in mind how close you are on quite a number of areas, as there has been considerable movement, what exactly are the precise issues that are the obstacle.

Well, Chair, you'll remember that the suite of issues that was there after the inversion of clause 11 were questions such as: if some things are to be retained at the UK level, who decides what those matters are to be? Who is able to act in relation to those matters while they are retained? How long are they to be retained for? And what will be the process for taking those matters out of the freezer, as it was often called in the discussion? I think we've made some good progress on a number of those points. The issues that remain for debate include: how can we be confident that all parties to this now agreement, if it is to be an agreement, are treated equally—that there is parity between the players? Parity does not mean being treated identically, in my view. There are different ways in which you can be treated to allow you all to reach the same place, but there does need to be a parity between the players. And how do you resolve things if, at the end of all the arrangements and all the discussions, agreement cannot be reached? What is the tie-break mechanism that will be adopted? There's further work and further discussions going on around those issues.

Well, I think there are still a number of potential solutions in play, Chair, and as because they are still being discussed between people—

No, I won't pursue. You have previously stated—and certainly the Secretary of State for Wales stated in his evidence session that he was very confident that agreement would be reached. Do you share that confidence?

Even with the progress that has been made, which is real, I don't know that I would go as far as saying 'confident'. I will go to meetings again tomorrow, as I hope we have tried all the way through, very determined to do our best to reach agreement, and to bridge any remaining issues. We recognise, Chair, that agreement means compromise. If you're going to find a way through that everybody can sign up to, everybody's going to have to give some ground in order to gain ground. It won't be perfect from anybody's point of view. The very final stages are sometimes the most challenging of all because you are down to the hardest of issues. I am optimistic because I think the spirit in which the most recent discussions have been conducted has been constructive. Confident—that's probably a step beyond where I would be.

And in terms of contingency, is there a contingency other than the continuity Bill?

Yes, I think there are contingencies beyond the continuity Bill in the sense that if, in the end, the amendments that the UK Government are able to put down are not ones that we would be able to agree to, that does not prevent us from taking our own action at Report Stage in the House of Lords. Now, there are different ways in which that could be done. We could re-present the amendments we have already laid, we could lay amendments to the amendments that the UK Government has laid, we could invite the House of Lords simply to delete clause 11. There would be a number of contingencies that we would have at our disposal. What we would need to do at that point would be, obviously, further discussions with the Scottish Government, but also discussions with colleagues in the House of Lords, who have, in my experience, a very fine-grained understanding of the position that the House of Lords would be most likely to coalesce around. Because to get something through the House of Lords, you have to bring together quite a wide coalition, involving not just members of political parties, but cross-benchers as well. And it's people on the spot, I find, that will have a more granular feel for where the debate in the House of Lords is heading to and which of the range of possibilities would be most likely to command the greatest support.

14:10

Thank you, Cabinet Secretary. Other Members will explore a little bit more detail about some issues of Sewel that arise, but just, I suppose, to get the record straight right at the beginning, the position of Welsh Government at the moment is that insufficient progress has been made, and Welsh Government is not in a position to agree to legislative consent.

That is the position that we are in today, but that's the position we hope to resolve, and to resolve positively.

Thank you, Chair. If I can pursue this issue of legislative consent, obviously that's going to be an important discussion in the Assembly. So, there are two issues here: revised memorandum, and then, presumably, a consent motion. So, when would you envisage at the moment either being able to say, 'Yes, we can now lay a motion and we recommend the Assembly approves it,' or, I suppose if we're—I'd rather go on the optimistic scenario there, but I suppose it does apply as to when you make a judgement of, 'We're not going to get agreement and we're not going to consent.' So, when is this process likely to kick in here for the Assembly?

Well, Chair, to take the legislative consent memorandum to begin with, we will lay a revised legislative consent memorandum. At the moment, we hope to lay that by the end of this week because, as I say, we will have seen by 4 o'clock on Wednesday what the most up-to-date position will be. The small window that we have is that we have to bring a legislative consent motion in front of the Assembly after we see what the House of Lords does to the Government amendments. I wouldn't be prepared to bring a legislative consent memorandum in front of the Assembly, even if we agreed with the Government's amendments, until I know that it's been voted on and before Third Reading. Because if consent were to be denied, then the Government need to know that in advance of Third Reading because, on Sewel, you might assume that they would have to withdraw the clauses to which consent has not been given. So, that means we've got to do it no later than 15 May, given that Third Reading is scheduled for 16 May, although those dates are movable and some of the debates in the House of Lords at Report Stage have already taken longer than was originally allowed for them. But at the moment, we are told Third Reading on 16 May, therefore we must bring a consent debate to the floor of the Assembly no later than the fifteenth.

My inference from what the UK Government has been saying—or allowing us to conclude, perhaps, or filling in the gaps—is that the LCM process is going to be strictly followed in Scotland and in Wales so that, obviously, if an LCM isn't forthcoming, that then has that impact on the process: that it cannot proceed in that fashion. Is this your understanding? Have you discussed this with the UK Government, or do you feel it's such a clear constitutional convention now that you don't really need to drag out an assurance from the UK Government that Sewel is that absolute wall?

Well, Chair, I think we will be into uncharted constitutional waters at that point. The UK Government has been at pains throughout the process to say that it placed reliance on Sewel, and I know, in the debates we've had in the Chamber, Mr Melding and others have equally pointed to the importance of the consent process. But Sewel does say that Parliament will not normally—not normally—legislate without consent. The Supreme Court in the Miller case made it clear that this is a political convention, rather than a legal requirement. So, I believe Sewel should be observed, and I know the Secretary of State was at pains to emphasise to you that the convention has always been honoured by the UK Government, but I don't think we can rule out of our thinking that the United Kingdom Government might yet conclude, if consent isn't forthcoming, that these are not normal times and they would want to go ahead in any case. Now, that does take us into very difficult constitutional territory. I think it is partly in the minds of UK Ministers in the efforts they have made to seek agreement so that they don't face that dilemma, and it's part of my motivation as well. Let's get this agreed and then we won't have to trigger what would be a very big constitutional discussion.

14:15

I think we can all agree that the constitutional ramifications would be serious; perhaps, in this committee, we can leave the matter there.

The Secretary of State, I think, giving us added reassurance about the Sewel convention's importance, said that it would apply to regulations made by the UK Government under clause 11, assuming that we get to a situation where you agree the bits that have to be retained for a time by the UK Government, or whatever is going to be in charge of the framework construction, led by the UK Government, presumably. Is that your understanding—that consent would have to be at that level?

Well, Chair, I think the Secretary of State gave you a bit of an insight there into some of the discussions that have been going on and the work that I've said to you has been going on at official level, because Sewel does not normally apply to regulations. But if these powers are to be held at the UK level, and if frameworks then are constructed around them, one of the key things we have argued all along is that those must be developed by consent. And one of the ways in which consent can be built into that process is if there is agreement that Sewel would apply to the regulations that flow from it. So, those regulations would then have to come to this Parliament and to the Scottish Parliament as well, and the consent of the legislatures would be required to them. If we do succeed in getting that, then I think that is a pretty significant step forward in the process. It's never been done in that way before, and it does make a significant inroad into one of the things that we said were still left after the inversion amendment went down—that it didn't deal with the question of who can do things with the powers that are being retained.

I agree with you. I think it was an interesting development that the committee heard when the Secretary of State gave evidence. Then, let's go down the optimistic road that we do get an agreement on the EU withdrawal Bill: have you made any assessment of the likely intervention the UK Government may need to use in amending our primary legislation in these areas, and then these areas would come under Standing Order 30A? Are they likely to be rare or is there a possibility of quite a lot of intervention being required by the UK Government, acting, as I said, to ensure that this whole area can be properly co-ordinated in the interests of everyone?

Chair, one of the ways in which I think maybe the Welsh Government has occasionally felt differently than some other players around the table is that we don't have antibodies to UK Ministers using powers when we've all agreed that that is a sensible and pragmatic way of resolving something. But the key thing there comes in 'where we have all agreed'. So, I hope that there will be no examples of where UK Ministers unilaterally use those powers, and that's, again, one of those other issues that we have been working away at: what assurances can we have that UK Ministers will only use those powers where they have already secured agreement with Scotland and with Wales? Then, I don't mind too much whether it's rare or whether it's relatively frequent, because those occasions will be ones where everybody has decided that that is a sensible way of taking an issue forward. So, it's the strength of the assurance we can get that UK Ministers will not unilaterally reach over into the devolved settlement and do things without us having agreed that that's the right thing for them to do. 

14:20

So, to put it in fairly simple terms, you're still at the higher level of the discussions rather than getting a sense of the likely activity, and also this would apply to secondary legislation that amends our primary law-making powers as well. I just want to get an idea of the extent of the work that may be happening. I can understand if at your level it's not yet being fleshed out in terms of what we may be facing, but perhaps at official level it has—

I'll ask Simon, Chair, because Simon has been leading for us on the detailed framework discussions, of which there have now been many of the deep dives that we've talked about previously. He will be able to give you a bit more of a granular sense of matters.

Initial discussions have happened over 30 different meetings getting into sets of issues where legislation may be required between administrations on a common basis in the areas of returning EU law. The question is also related to the impact of the transition deal, because the EU withdrawal Bill and its powers only apply when the constraints of the European Union Act 2011 are disapplied, and the transition deal extends that, so there's a period of two years or more to actually develop across the UK solutions. So, there are going to be several areas, potentially quite a lot of areas, where agreement is made between administrations and post-transition arrangements are set in place and the powers of the EU withdrawal Bill are not used, because they don't come really into effect until beyond that point.

The UK Government published its analysis of framework areas and set out its ideas of 24 policy areas subject to more detailed discussions to explore whether legislative common framework arrangements might be needed in whole or part. Some of those topic areas are quite broad, and within those areas we expect only a subset of the matters to be considered where law would be required. Some of them are quite specific and relate to specific EU directives.

So, there's a programme of work that will run for several years in terms of taking forward this legislation and correcting it. A lot of it will happen before the withdrawal Bill takes effect, but the powers in the withdrawal Bill are there to give that certainty that, actually, there are mechanisms to do that.

Diolch yn fawr, Cadeirydd. Efallai ar ogwydd llai optimistig na David Melding—ychydig o gwestiynau ar y Bil parhad, os bydd rhaid i hwnnw ddod i mewn. Wrth gwrs, rydych chi'n gwybod, fel pawb arall, fod y Bil parhad yma wedi cael ei arallgyfeirio i'r Goruchaf Lys. A allaf i ofyn: os cewch chi gytundeb efo Llywodraeth y Deyrnas Unedig ar gymal 11, a ydych chi'n deall y bydd y Twrnai Cyffredinol yn gofyn i'r Goruchaf Lys ddod â'i ystyriaeth i ben, wedyn?

Thank you very much, Chair. Perhaps a less optimistic view than David Melding—a few questions on the continuity Bill, if that will have to come in. Of course, you know, as everybody else, that this continuity Bill has been referred to the Supreme Court. Can I ask: if you get an agreement with the UK Government on clause 11, do you understand that the Attorney General will request that the Supreme Court stops its consideration, then?

Wel, dyna beth mae wedi'i ddweud yn barod. Fel rydw i'n ei ddeall, mae'n bosib tynnu y referral yn ôl os yw pob un yn rhoi cytundeb i'r llys—cytundeb ysgrifenedig—neu mae'r llys yn gallu dod at yr un farn. So, os ydym ni wedi dod i gytundeb gyda'n gilydd ar y ffordd ymlaen rŷm ni eisiau ei defnyddio—fel rŷm ni wedi dweud dro ar ôl tro: nid i ddefnyddio y Bil parhad, ond i ddod i gytundeb ar y withdrawal Bill. Os ydym yn y sefyllfa yna, beth rydw i'n ei ddeall yw y bydd y Twrnai Cyffredinol yn gallu mynd at y llys a thynnu yr achos yn ôl. 

Well, that's what's been said already. As I understand it, it's possible to withdraw the referral if everyone gives their consent to the Supreme Court—that is, written consent—or the court can come to the same view. So, if we have reached agreement, and we get to the point where we're agreed on a way forward—and we've always said that we don't want to use the continuity Bill, and that we do want to reach an agreement on the withdrawal Bill. If we get to that position, then my understanding is that the Attorney General will be able to approach the Supreme Court and withdraw the case. 

14:25

Ac yn dilyn o hynny, felly, mewn sefyllfa lle na chawn ni gytundeb ar gymal 11, a allech chi fel Llywodraeth Cymru roi rhagor o wybodaeth am yr amserlen debygol, yn enwedig o ystyried sylwadau'r Cwnsler Cyffredinol yr wythnos diwethaf ynghylch ceisio cael proses o wrandawiad cyflym? A oes gyda chi unrhyw amgyffred o beth ydy'r amserlen debygol mewn sefyllfa lle nad oes cytundeb? 

And following on from that, therefore, in a situation where an agreement has not been reached on clause 11, could you as the Welsh Government provide more information about likely timings, particularly given the Counsel General's comments last week about seeking an expedited hearing? Do you have any sort of idea of what the likely timetable is going to be in a situation where there is no agreement? 

Fel rydw i'n deall, Gadeirydd, mae Jeremy Miles wedi rhoi yn barod rywbeth i mewn i'r llys i gael rhywbeth yn gyflym, so expedited hearing. Rydym wedi ei wneud e'n barod, ac mae Llywodraeth yr Alban wedi gwneud yr un peth. So, mae yn nwylo'r llys ar hyn o bryd. Maen nhw'n ystyried beth rydym ni wedi'i ddweud, ac mae e lan i'r llys i weld a ydyn nhw'n fodlon gwneud pethau yn y ffordd yna. Os ydyn nhw, neu beth bynnag, pan rŷm ni'n clywed yn ôl, wrth gwrs, rym ni'n gallu bwydo nôl i'r Cynulliad ac i'r pwyllgor hefyd.  

As I understand it, Chair, Jeremy Miles has already made a submission to the court to have an expedited hearing. That's already been done, and the Scottish Government has done likewise. So, it's in the court's hands at the moment. They are considering our submissions, and it's up to the court to decide whether they are willing to work in that way. If they are, or whatever the situation is, when we hear back from them we will be able to feed back to the Assembly and to this committee too. 

Diolch yn fawr. Ac ar gefn hynny, wrth gwrs, yn naturiol, fel rydych wedi'i grybwyll eisoes, mae'r tirlun yn gyfnewidiol ac yn tueddu i symud weithiau heb fawr o rybudd. Eto, mewn sefyllfa lle nad oes cytundeb ynglŷn â chymal 11, pa ystyriaeth ydych chi fel Llywodraeth Cymru wedi'i rhoi i beth fydd yn digwydd os caiff y Bil ymadael ei basio cyn i'r Goruchaf Lys wneud ei ddyfarniad ynglŷn â'n Bil parhad ni? Lle ydym ni wedyn? 

Thank you very much. And in addition, of course, naturally, as you've mentioned already, the landscape is changing and tends to move without much notice. Again, in a situation where agreement has not been reached on clause 11, what consideration have you as the Welsh Government given to what happens if the UK withdrawal Bill is passed before the Supreme Court makes its ruling on our continuity Bill? Where are we then? 

Wel, rŷm ni mewn sefyllfa gymhleth dros ben, Gadeirydd. 

Well, we're in an extremely complex position, Chair. 

And it's possible that officials might be able to give you a clearer account of this than I will be able to, because as I understand it—and I am not a lawyer—there are many different contingencies here, depending on the order of events and what happens when. I return as ever to the basic point that we hope that all of this will be avoided by reaching an agreement on the EU withdrawal Bill, and as I said earlier, even if we don't reach an agreement with the UK Government, there are steps that we ourselves will take at the House of Lords, and we could resolve it in that way too. 

If we end up in front of the Supreme Court, then we will defend our case to the full. We're confident that the Bill is within the legislative competence of the Assembly, and if our application for an expedited hearing is granted, then we will make that case to the best of our ability. We can't hide from the fact that there are a series of interlocking timetables going on here, when it is difficult to predict the exact sequence of events and what action we would need to take. There is the point that Dr Lloyd made about whether we would be in a position of Royal Assent before the Supreme Court has issued its judgment. An Act of the Assembly cannot be repealed until it has had the Royal Assent, so—  

No, so there we are. So, if we were to have to take action ourselves to repeal our Bill, that probably couldn't happen until about September, even if we all wanted for it to happen, because of the sequencing of these events. So, I can't probably be more help to the committee than to say that we are alert to all the complexities, and the point that Dr Lloyd raised, in particular, but because of the interlocking nature of different timetables—parliamentary timetables, our timetables, court timetables and so on—it's not easy to predict the point at which you would need to take action. But we are tracking these things all the time, and we'll be prepared to act in any eventuality. 

I'm presuming there is some leeway in the sense that the Welsh Government's Bill doesn't actually take effect until we have actually left the EU, so there is a certain amount of scope there for problems to be sorted out, I suppose.

14:30

And not only that, Chair, but some of the discussion we have—and it strikes me every now and then on the JMC—it is slightly surreal in the sense that we know now that, if a transition deal is agreed, we are leaving the European Union on one day and will be faced with a 'let's rejoin it all again' Bill for the following day, and that means that the period within which we will all be operating under the European Union rule Bill—rule book, rather—is not until 29 March next year, but will extend for nearly two years beyond that as well. We are sort of preparing for something that is not going to happen in the timescale that was originally anticipated and we will have longer to sort out some of these framework issues and to come to agreement than the Bill itself was constructed to address.

Ie. Symud ymlaen—gwnawn ni adael y Bil parhad yn fanna, a symudwn ni ymlaen i faterion, wel, digon dyrys hefyd: llywodraethiant yn yr ynysoedd hyn ar ôl Brexit a sut mae'r gwahanol Lywodraethau yn cydweithio efo'i gilydd. Rydych chi'n ymwybodol i'r pwyllgor yma gynhyrchu adroddiad, wrth gwrs, ar y pwnc sylfaenol yma, efo rhyw naw o argymhellion. A wedyn jest i fynd ar ôl trywydd rhai ohonyn nhw, a allaf i ofyn i chi yn y lle cyntaf i ba raddau rydych chi fel Ysgrifennydd y Cabinet yn cytuno efo'r sefydliad llywodraethu—hynny yw, yr Institute for Government—y bydd angen ffordd newydd o gydweithredu rhwng Llywodraethau'r Deyrnas Unedig ar ôl gadael yr Undeb Ewropeaidd? 

Yes. Moving on—we'll leave the continuity Bill there, and we'll move on to other serious issues: UK governance post Brexit and how the different administrations are working together. You're aware that this committee produced a report, of course, on this fundamental issue, with about nine recommendations. Just to go after some of those, can I ask you first of all to what extent do you as a Cabinet Secretary concur with the Institute for Government that, post Brexit, we'll require a new approach to co-operation between the Governments of the UK?

Wel, mae'n glir dros ben i ni fel Llywodraeth yma yng Nghymru y bydd yn rhaid i ni gael ffyrdd newydd o ddelio â phethau yn y Deyrnas Unedig ble mae'r cyfrifoldebau wedi cael eu datganoli ond nawr mae'n rhaid i ni ddod yn ôl at ein gilydd a chynllunio gyda'n gilydd i helpu'r Deyrnas Unedig i fod yn llwyddiannus yn y dyfodol.

A dweud y gwir, Cadeirydd, mae wedi bod yn beth bach yn anodd i dynnu sylw Llywodraethau eraill at hwnnw. Mae Llywodraeth y Deyrnas Unedig, mae eu dwylo nhw mor llawn gyda Brexit, maen nhw'n gwneud sut gymaint o bethau i ddelio â phethau sydd o flaen eu llygaid nhw nawr, mae wedi bod yn anodd i'w perswadio nhw i feddwl am bethau sy'n mynd i ddigwydd yn y dyfodol, ac y Llywodraeth yn yr Alban, fel rydych chi'n gallu deall, eu pwrpas nhw yw i ymadael â'r Deyrnas Unedig, so mae trio eu perswadio nhw i roi lot o egni i mewn i feddwl am sut i redeg y Deyrnas Unedig yn y dyfodol pan maen nhw eisiau ymadael—wel, nid oes lot o incentive iddyn nhw i'w wneud e fel yna. 

Beth sydd wedi digwydd yw, y gwaith sydd wedi mynd ymlaen ar y fframweithiau, y pethau mae hwnnw yn twlu mas bob tro yw: sut rydym ni'n mynd i lywodraethu y fframwaith yma yn y dyfodol? Os rydym ni'n gallu cytuno ar bethau, sut rydym ni'n mynd i lywodraethu pethau? A phan fo hwnnw'n codi yn y sgwrs, ac mae Gweinidogion y Deyrnas Unedig yn cael cyngor oddi wrth eu gweision sifil nhw i ddweud,

Well, it's very clear to us as a Government here in Wales that we will have to have new ways of dealing with issues within the UK where the responsibilities and powers have been devolved but now we have to come back together to jointly plan to assist the UK to be successful for the future.

Truth be told, Chair, it has been a little difficult to highlight this issue to other Governments. The UK Government, their hands are so full, they're so busy with Brexit, they are doing so many things to deal with those things in front of them at the moment, it's been difficult to persuade them to think about these issues that will arise in the future, and the Scottish Government, as you can well understand, their main aim is to leave the United Kingdom, so trying to persuade them to put a great deal of energy into thinking about how to run the UK in the future when they actually want to exit the UK—well, there isn't a great deal of incentive for them to do that.

What has happened is, the work that's been ongoing on frameworks, what that throws up time and time again is: how are we going to govern this framework in the future? If we can agree on issues, then how are we going to govern these things? And when that does arise in conversation and UK Government Ministers are given advice from their own civil servants that says, 

'You've got to think about how this is all going to work in the future', that has pushed this issue further up the agenda than we were able to achieve through our own efforts. But the Welsh Government has always been in that position. The First Minister, in many ways, has argued this outside Brexit altogether, the need for more creative thinking about the way that the United Kingdom—. And other people around this table have written, made contributions, on the same topic as well. So, I think it says in the Institute for Government chapter on this matter that it is Wales that has set the pace in this space in trying to persuade others to find some time and energy to address it.

Ie, diolch am hynny. Wrth gwrs, yn dilyn o'n hadroddiad ni, un o'r argymhellion canolog, wrth gwrs, oedd bod angen cynnig llwybr cydlynol ac ymarferol i wella cydweithio rhwng y gwahanol Llywodraethau. Er enghraifft, y dylai Cyd-bwyllgor y Gweinidogion, y JMC, gael ei ddiwygio'n sylfaenol fel ei fod o'n gyngor y Deyrnas Unedig yn lle’r corff mae o ar hyn o bryd, sydd yn cyfarfod pan fo’n dewis cyfarfod a'r agenda’n llac—rŷm ni wedi cael y drafodaeth hon o’r blaen ynglŷn â’r angen dybryd i gryfhau Cyd-bwyllgor y Gweinidogion. A fuasech chi’n fodlon eto dilyn y trywydd yna, rŷch chi’n meddwl?

Yes, thank you for that. Of course, following on from our report, one of the central recommendations was that there is a need to offer a coherent and practical path to improve co-operation between the different Governments. For example, the JMC should be subject to fundamental reform so that it becomes a UK council rather than the body it is at the moment that meets when it chooses to, and with a loose agenda—we've had this discussion before regarding the need to strengthen the JMC. Would you be willing to follow that line?

14:35

Diolch i Dr Lloyd. Fel rwyf i wedi’i ddweud sawl gwaith nawr, nid yw’r JMC mewn ffurf ble mae’n gallu ymdopi gyda phethau ar ôl Brexit.

Thank you, Dr Lloyd. As I've said on a number of occasions, the JMC isn't fit for purpose in dealing with issues post Brexit.

I talked earlier, Chair, about the need for some parity in some of the arrangements that we are talking about in relation to the withdrawal Bill, and the JMC is characterised by the fact that only one party can call meetings, only one party can produce agendas, only one party is able to lay papers, and, if there is a dispute, only one party regards itself as capable of adjudicating on them.

While we've all been members of the European Union, we've had a rule book that we are all bound by, and lots of these issues have not come to the surface very much. But, when we are in a different position, they come to the surface much more sharply, and that's why we have been pressing the case all the time, to say that an improved JMC system in the short run—. And you can do things outside the rules, just to make the working practices of the JMC more equal. I'd have to say that, in the last six months or so, the JMC has felt a better place because of the way that business has been conducted. But, really, we've got to move beyond a grace-and-favour approach to it, in which it depends on the individuals who happen to be involved in it at any one time, and having a more rule-based system.

The committee's own report—arguing for an overhaul of a memorandum of understanding—was echoed at the JMC plenary when officials were asked to review and report to Ministers on existing inter-governmental structures, including the memorandum of understanding. As I'm informed, the first meeting between officials of the four administrations is now in the diary, and that work will begin in May.

Diolch am hynny. Wrth gwrs, ar gefn hynny, gwnaethom ni glywed gan yr Ysgrifennydd Gwladol yr wythnos diwethaf amddiffyniad cryf o Gyd-bwyllgor y Gweinidogion. Hynny yw, roedd e’n gweld bod y cydweithio’n digwydd nawr yn y misoedd diwethaf—un o’r pwyntiau rŷch chi wedi’u gwneud, wrth gwrs—ac felly ddim yn fodlon derbyn unrhyw awgrym bod angen cryfhau neu ddiwygio Cyd-bwyllgor y Gweinidogion mewn unrhyw ffordd achos ei fod e'n gweithio’n iawn nawr. Ond fe wnawn ni barcio hwnnw lle mae e achos rwy’n credu eich bod chi wedi esbonio’n ddigon trylwyr beth rŷch chi’n ei feddwl o’r gosodiad yna.

A hefyd, rŷch chi wedi crybwyll hyn, hefyd, ynglŷn â—

Thank you for that. Of course, we heard from the Secretary of State last week a strong defence of the JMC. He saw that that co-operation was happening within the last few months—one of the points you've made, of course—and therefore wasn't willing to accept any suggestion that there was a need to strengthen or reform the JMC in any way because it works well now. So, I think we'll park it there, because I think you've explained quite thoroughly what you think of that statement.

And also, you've mentioned this, as well, about—

Can I just come in on that? I know I've put this before. The inter-parliamentary group—this is all the constitutional and legislative affairs committees across the parliamentary processes—they said that the system isn't fit for purpose. When the Secretary of State for Wales was here, it sounded very much that there might be a need for some tweaking or a bit of reform and so on, but certainly the parliamentary bodies seemed to think that it was actually a far more fundamental weakness and failing that exists.

Now, I can understand the Secretary of State for Wales will come here and may well want to present the best scenario, but, in terms of Welsh Government's thinking about the actual workability of it, is it as stark as being not fit for purpose? That is, it will be incapable of delivering what is needed without substantial reform in the post-Brexit era?

Well, I would say from my experience that the way the JMC operates at the moment is that, with a considerable amount of effort from all parties there, it is working at the better end of the spectrum of the way it could work. But change some of the people who are involved and that might no longer be the case. That's why I described it as a grace-and-favour approach, which is not acceptable in itself, and certainly not adequate to meet the challenges of the future.

So, while I might be willing to say that, with all the efforts that are being made, the machinery at the moment is just about managing to deliver on the key things that are in front of it, does that mean I think that it is fit for the future? Well, no. I agree very much with the conclusions that I—. Chair, I think you are absolutely right to say that—. I don't think I've read any report, whether from the different Parliaments and inter-parliamentary bodies, or from organisations like the Institute for Government, that argues that the current system will be adequate for the future. That's definitely our position. I'm not going to sign up exactly to saying it's broken already, but it certainly could not bear the weight of the responsibilities that will need to be discharged in that collaborative way in the future.

14:40

Wel, dim ond un. Rydych chi wedi cyffwrdd â hwn hefyd. A ydych chi'n cytuno â'r sefydliad llywodraethu—yr Institute for Government—sy'n dweud bod angen mecanwaith newydd nad yw'n wleidyddol ar gyfer cytuno pob anghydfod technegol, dywedwch, rhwng y gwahanol Lywodraethau a'r gweinyddiaethau yn y Deyrnas Unedig ar ôl gadael yr Undeb Ewropeaidd, bod angen rhyw fecanwaith newydd pan fo yna anghydfod, pan fo yna anghytuno hyd yn oed ar lefel weinyddol?

Well, only one. You've touched on this as well. Do you agree with the Institute for Government, which says that a new, non-political mechanism is needed for agreeing technical disputes, say, between UK administrations post Brexit, that there is a need for some sort of new mechanism when there is a dispute, when there is disagreement even on an administrative level?

Rydw i'n meddwl fy mod i'n mynd i wneud yr un pwynt, ond mewn ffordd arall. Beth rydw i'n meddwl bydd yn rhaid inni ei gael yn y dyfodol yw mecanwaith newydd ar lefel wleidyddol, ond mecanwaith newydd hefyd ar ochr swyddogol. So, os, pan fyddan nhw'n siarad am bethau technegol, maen nhw'n siarad am bethau y mae swyddogion, pobl sy'n arbenigwyr yn y maes yna, yn gallu dod at ei gilydd a sortio mas, rwy'n cytuno â hynny. Bydd yn rhaid inni gael mwy na jest lefel wleidyddol.

Ar ddiwedd y dydd, mae lot o bethau sy'n edrych, i ddechrau, fel eu bod jest yn dechnegol yn cael rhyw effaith wleidyddol hefyd. So, i mi, nid ydw i cweit yn cytuno os mai'r pwynt yw eich bod chi jest yn gallu rhoi pethau i swyddogion a dweud wrthyn nhw i sortio popeth mas heb ddod nôl atom ni. Pan fo pethau technegol a chymhleth ac mae pobl sy'n arbenigwyr yn y maes yn gallu gwneud y gwaith caled, fine, a bydd yn rhaid inni gael fframwaith a mecanwaith i wneud hynny. Ond, i mi, mae'n bwysig bod y gwaith yma yn dod yn ôl at lefel wleidyddol, jest i gael pobl sydd wedi cael eu hethol i gael rhyw fath o oversight o bopeth sy'n mynd ymlaen.

I think I'll make the same point, but in a different way. What I think we'll need for the future is a new mechanism on a political level, but also a new mechanism on an official level. So, if, when they're discussing technical issues, they are discussing things that officials, people who are experts in any given area, can come together and sort out, I agree with that. I think we will need more than simply a political level mechanism.

But, at the end of the day, many of the things that initially seem to be simply technical matters do have some political impact too. So, for me, I don't quite agree if the point is that you can just hand things to officials and say, 'Well, you sort it out' without coming back to us as politicians. When there are complex, technical issues and you do have experts in their field that can do the ground work, that's fine, and we will need a framework and a mechanism to do that. But, for me, it's also important that that is referred back to the political level, just so that elected representatives have an oversight of everything that's going on.

Hi. I'm glad that you've just covered some of these, about the inter-governmental arrangements post Brexit and how you hope that the JMC could be brought up to scratch, hopefully. Following the initial work on—. We're back to common frameworks now. Following the initial work on common frameworks, do you believe that there is now more support for other UK administrations to develop new government structures for frameworks post Brexit?

Thank you, Mandy, for the question. Look, I think in our discourse this afternoon about being optimistic and pessimistic one of the reasons why I feel there is some room for optimism is that our original proposition to the UK Government was—and I remember it very vividly, because I was sitting with the Secretary of State for Exiting the European Union on St David's Day last year, and I remember saying to him, 'Why is the UK Government provoking a quarrel with people who want to be on their side?' Because, as far as the withdrawal Bill is concerned, we said from the beginning—and the Scottish Government said, as well—we understood the reason for there being a withdrawal Bill: an orderly transfer of EU law into domestic law and the need to create a way of managing things in the United Kingdom. We absolutely agreed that that was important to achieve. We said, 'The way to achieve it is by agreement. Where we have shared responsibilities, let's get round the table and come to an agreement.' The UK's original proposition, which we've now spend all these many months having to try to reverse, was that they would decide for us and they would tell us what to do.

Now, the reason I'm a bit optimistic about the framework discussions is I think they are showing that we were right, if I can put it that way—that, when you get people round the table to discuss things, even when they are complicated and even when they were challenging to begin with, I think the experience has shown that the process of discussion generally leads to a position where everybody is able to say that they could live with that outcome. And in that sense, as the process has shown that it can be successful, maybe some other parties who were a bit sceptical of that and thought it would all be a fight and that it would all be Wales and Scotland refusing to co-operate with this and saying 'no' to that—as it has shown it is a more mature process than that, they have been willing to put more energy and investment into it.

14:45

Yes, because, previously, your response was that

'it had not been agreed with us and does not represent Welsh Government views', 

yet the Secretary of State last week said that it had been agreed—the publication of the provisional frameworks.

Well, actually—thank you, Chair—I think both of those propositions are true. We agreed and were keen that the UK Government should publish its analysis. So, when the Secretary of State said to you that we had agreed that it should be published, he was reflecting faithfully what we had agreed, but we didn't agree to the content. It was their paper; we thought they should publish it because it would help the debate, but the fact that we agreed that they should publish it did not mean that we were signing up to everything that it said. And that's the point that I think I was trying to make last time.

I'd just like to talk about the place of the Assembly and indeed the other legislatures as well that are going to have a role in the scrutiny of this process. I think we've heard about the ongoing analysis and the deep dives of where frameworks are likely to operate, so I'm not going to press on that, but do you think there's something to be said for a fairly common approach to the level of information that's given to the various legislatures—a lot of these issues will overlap—and that we need a fairly transparent process? There is, I think among some people, a fear that, even if there's more robust framework governance, it could replicate some of the less helpful aspects of EU governance, which were seen as being pretty closed and not accessible to the citizen. So, have you any thoughts there about the level of information that is going to be at the disposal of UK legislatures in good time to make sensible points when they're scrutinising the proposals?

Chair, while I might not have a detailed answer to the question, I think I can say confidently that the Welsh Government's view in this developing picture would always be that we would favour the maximum amount of information being available for scrutiny purposes. Given that these will be, hopefully, when we have the Northern Ireland Executive, four-way frameworks, I can see why it would make sense to have a common level of information available to all legislatures.

Simon will correct me if I'm wrong, but I don't think that a great deal of discussion has yet taken place in that level of detail between the four participants in the framework, but I think it's a very important point that's been made, and the principal approach that we would take would be that we would certainly not want the National Assembly to be in any less of an advantageous position than any other legislature in access to information and that we would be at the disclosing end of things.

If I could just add to the Cabinet Secretary's comments, we are anticipating a whole area of business, which is currently constrained, with EU frameworks. The UK administrations need to work together on ways to operate that with the same levels of flexibility enjoyed now but having that certainty about making it functional across the UK. The majority of that will be non-legislative, and I would imagine that subject matter committees would have particular interests in the functionality of those areas and how Governments are intending to have those co-operative arrangements. 

In terms of the legislative aspects of frameworks, then what we've been pressing for is a programme of work where there's full joint working on the policy, on the developing of instructions and options, that Ministers see those together before they go through, and that legislatures are much further up the line in terms of legislation, so they're actually seeing it in formulation rather than having a Bill presented to you, asking for consent at the very end stage, but actually to be much more involved in it as it goes through, and taking a common approach across this range of Bills and regulations.

14:50

I find that quite reassuring, that you're thinking in these terms. I wonder, has the Government thought here about how it intends to involve the Assembly in terms of framework governance? Because in the way the frameworks develop, the negotiating position of the Welsh Government is going to be a significant thing. One thing you could do is perhaps make a statement to the Assembly on your top lines in any negotiation, and then reporting back on that. Certain governments in the EU approach work in the Council of Ministers like that. Is that the sort of mechanism you may be looking at to bring innovation down here, as well as what you want to see at a UK level?

Yes. Chair, I got drawn into a bit of this sort of discussion in front of the External Affairs and Additional Legislation Committee last week and quickly felt I was slightly out of my depth in it all. What I said to them I'd say to you as well: that the Welsh Government will be very keen to work with the National Assembly on these matters. We have to be a bit careful. The scrutiny responsibilities are for the Assembly to decide on, but in the sense that we would be keen to be innovative, where we can be, recognising that, when you are scrutinising legislative matters, we have a well-set-out process that everybody knows now and understands. But when we're talking about non-legislative matters—and many of the frameworks will result not in legislative action but in non-legislative matters, like memorandums of understanding and so on—

Yes, there will be. Indeed. If you think of the 24 topics, one of the things that the deep dives have thrown up is that a topic often breaks down fairly quickly into some things that everybody agrees would need a legislative underpinning, but many other aspects that can be agreed between the four constituent parts of the United Kingdom on a different basis. Now, I would argue that the Welsh Government has used all the different mechanisms that are currently available for scrutiny. You know, we appear before committee, we make statements, we have debates, we answer questions. All the things that are there, we use for those things, but we don't have a codified sense of them in relation to this particular set of developments. Given that they may have a different sort of significance, because so much of inter-governmental action will rest on them in the future—and this is why I was getting out of my depth, David; I feel I'm already trespassing in this way now—maybe what we need to do between us is to come to an agreement on a more codified set of ideas as to how those non-legislative scrutiny arrangements will need to work.

There would need to be some form of convention established as to the process, and certainly statements will take on probably an additional meaning within this context in order to enable that to actually be scrutinised.

Cabinet Secretary, can I just ask you about one area? The final point I put to the Secretary of State for Wales during his evidence session obviously related to a matter that hasn't been discussed, or doesn't appear to have been discussed within all these frameworks but is still fundamental, and that is the issue that's emerging of the shared prosperity fund, which has many implications. What exactly do you understand by the shared prosperity fund?

Well, there's nothing shared about it, Chair, as far as the Welsh Government is concerned, because we are not in favour of such a fund, insofar as we understand it, because there is very little detail out of the UK Government as to exactly what it intends with a shared prosperity fund, although I sometimes read suggestions that they are about to set out their thinking in greater detail in the not-too-distant future. My fear of a shared prosperity fund is that it will seek to bypass the National Assembly, it will pay scant regard to the responsibilities that are already devolved to this body, and that Wales will be worse off as a result.

Wales has been, as we've said many times, a considerable beneficiary of funds that come from the European Union that recognise the need for that investment in improving the Welsh economy and the prosperity of people who live here. After we leave the European Union, the promise that was made to people in that referendum that we would be not a penny worse off as a result has to be honoured, and a shared prosperity fund that brings all of that money across the United Kingdom together into one big pot and then, for example, invites the whole of the different parts of the United Kingdom to make bids into it, is not likely to result in money coming to Wales on a scale that we have had so far and we need to continue to have into the future.

And a bidding process that is not rule based, where all the decisions lie in the hands of Ministers at Whitehall, who lack, I believe, the presence on the ground to make a shared prosperity fund work in any case—. I mean, this is to disregard 20 years of devolution. When the man at Whitehall picks up the phone to speak to their office in Blaenau Ffestiniog, they will find that it closed in 1999. They just don't have the presence on the ground to carry out these sort of responsibilities, because those responsibilities have been here for 20 years.     

14:55

Cabinet Secretary, the Secretary of State for Wales did say there had been discussions with councils and with businesses on this. Has there been any approach to Welsh Government to discuss this issue? 

Well, you see, I regard that as an attempt to bypass the National Assembly for Wales. I regard that as an attempt to dangle some purses of gold in front of other people, and to persuade them that the shared prosperity fund might be okay for them. Maybe I am not the person in the Welsh Government with whom those conversations will be had, because I don't hold those responsibilities necessarily. On the funding side of it, in my finance role have I had any conversations with any UK Ministers on how much money will be in this fund, how anyone would have access to it, what the arrangements would be? No. None at all.   

Is there any intention, Cabinet Secretary, for your Government to raise this matter with the UK Government? Because it does seem to me that it is quite an urgent matter. 

Well, I can assure the committee that I have raised the issue of money coming to Wales post the European Union for structural purposes, for regional investment purposes, for agricultural support, and so on. I have raised those whenever I've had an opportunity, both with the Chief Secretary to the Treasury and with other UK Ministers. But I raise it on the terms that we would set out. The shared prosperity fund is not our proposition, and we've had nothing so far that I have seen that would have allowed me to have had a discussion of any substance with the UK Government on such a proposition. So, I raise the issue, but I raise it always on the terms that we have set out, published with Plaid Cymru in our initial paper back in January of last year, and have continued to advocate for ever since. 

Cabinet Secretary, thank you very much for your evidence. We've now used up the amount of time that you kindly agreed to. There will obviously be a transcript of the evidence that will go to you. Thank you very much for attending and for the clarity of your answers. 

3. Offerynnau sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.2 neu 21.3
3. Instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3

If we can move on now to the remainder of the agenda. Item 3 is instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3. Negative resolution instruments: the Sea Fish (Marketing Standards) (England and Wales and Northern Ireland) Regulations 2018. We have before us regulations, explanatory memorandum and a report. Can I go to the lawyers for an update?  

15:00

Diolch. The committee regularly pays attention to powers of entry. Under these regulations an authorised officer must, when exercising powers of entry, produce a document showing the authority of that officer, if someone asks that officer to show their authority. The reporting point simply asks for clarification as to who can ask an authorised officer to prove that they have authority to enter the premises, and the Welsh Government have responded by saying that anyone who reasonably needs to see the authority of an officer can request to see the authorisation, and that is fine; that is what I'd expect, but I thought it was worth probing so we have clarity around powers of entry, because these are powers given to officers to enter people's homes. So, that was the first technical point.

The second technical point is a familiar issue here: these regulations were laid before the Assembly and the UK Parliament, so they are in English only.

There are also two merits reporting points. The first notes an error in the explanatory memorandum in respect of Police and Criminal Evidence Act 1984 codes of practice, in particular PACE code of practice B, which sets out the rules around using powers of entry. The committee gets reassurances on a regular basis from the Welsh Government that is everything is fine with regard to powers of entry, but we still see errors in explanatory memoranda around powers of entry.

The second merits point, again in relation to powers of entry: the regulations say that, where an authorised officer applies to a justice of the peace for a warrant to enter premises, the warrant remains valid for three months, and the draft report we've prepared just tries to seek clarification on whether that blanket period of three months is proportionate. You may have completed your powers of entry that you need to find out what went wrong after a day, but the warrant, and the powers of entry, and still there, valid, two months and 29 days later. So, we just asked the question: is this proportionate, especially when these are powers of entry into someone's home? The Welsh Government have responded by saying that operational flexibility is needed, allowing time to deal with unexpected issues, but the Welsh Government response does not refer to the point that it covers people's homes and proportionality under the European convention on human rights. So, the committee may want to note that in its final report, and I'd like to consider the impact on human rights a bit further and come back to the committee if need be.

Yes, I'd like to know about this three-month period, which does seem quite irregular, but it may be common practice if there's surveillance involved and they're accumulating evidence—I don't know what on earth it is—they get over a certain bar where they think they may have to react, and something is happening, but they then want that window open for that operational use, rather than having to go back and forth and all the rest of it. So, I've got issues there. But if they've already got a suspicion, and in the nature of these things you have to accumulate evidence, I'd perhaps be a bit more sympathetic. But I think we should probe, because it does sound quite a strange procedure. 

We can reflect the concerns in the report, and I can do a bit more digging around the article 8 human rights issues. 

And we can look at that when it comes back to us. Okay, thank you very much. Was there anything else on that? No.

Okay, let's move on to the next item, then, which is the Agricultural Wages (Wales) Order 2018. Again, we have regulations, explanatory memorandum and a letter from the Leader of the House and Chief Whip with regard to the breach of the 21-day rule and report. The Order makes provision about the minimum rates of remuneration and other terms and conditions of employment for agricultural workers. The Order revokes and replaces the Order of 2017 with changes that increase the 2017 pay levels for agricultural workers, and of course, as has been noted, this has breached the 21-day rule, and hence the letter. So I'll perhaps ask for an update from the lawyers. 

Yes, there are some technical points again. The first one relates to article 15(2) in the Order, which allows an employer to deduct a certain amount from the wages of an agricultural worker where the employer provides accommodation for the worker. The draft report noted a lack of clarity as to how much can be deducted from the wages of an agricultural worker where the employer provides accommodation. The Welsh Government response explains very clearly what deduction is allowed, but I'm not convinced that is actually reflected in the Order itself. So, the committee may want to reflect that in its final report, and I can seek further clarity from the Government.

15:05

I think that's agreed, is it? Is that taken on board? Okay, thank you very much. Thank you for those points.

The second technical point is—

—there's an inconsistency between the English and the Welsh: some words are found in the Welsh but not in the English, and the Welsh Government accepts the point and will address it in the future agricultural orders.

And there is one merits point, finally, as well, around timing: consultation on this Order was carried out in autumn 2017 and some new information came to light around November 2017. But that's five months ago now, so we just asked why it has taken until 27 March to actually approve the Order. The Welsh Government response doesn't add much to what we already knew. Apparently, a revised Order was sent to the Welsh Ministers in January 2018, but, again, that revised Order was not approved until 27 March, and leaving approval that late meant that the 21-day rule was going to be breached and, in this case, breached by a whole 19 days. The 21-day rule is important, it's in statute, so breach of it should be taken seriously.

I think it might be appropriate to send a letter to the Government seeking further clarification, particularly around some of the comments made about the decision to breach the 21-day rule being made on 22 March.

I think we should say that, on the face of the evidence that we've received so far, we do not believe that there was adequate grounds to breach the Order—

4. Papurau i’w nodi
4. Papers to note

Now we go on to item 4, papers to note. Scrutiny of regulations made under the European Union (Withdrawal) Bill, paper 8, the letter to the First Minister, 17 April 2018. Do we note that? The letter to the Llywydd, 17 April 2018. We can discuss these in private session shortly if the Members wish. So, we note that for the moment. A letter from the Cabinet Secretary for Economy and Transport on the Trade Bill. That was an action point from the concurrent evidence session with the External Affairs and Additional Legislation Committee on 12 February 2018 and related to the legislative consent memorandum of the Trade Bill. Okay.

5. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod
5. Motion under Standing Order 17.42 to resolve to exclude the public from the meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

We move on to item 5, which is basically to resolve to meet in private, pursuant to Standing Order 17.42. Is that agreed? Okay, we move into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:08.

Motion agreed.

The public part of the meeting ended at 15:08.

Archwilio Cynulliad Cenedlaethol Cymru