Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

30/04/2018

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
The 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
P 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 14:45.

The meeting began at 14:45.

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

Welcome to the Constitutional and Legislative Affairs Committee meeting, on Monday 30 April 2018. We have a full attendance, so there are no apologies. Are there any declarations of interest? As there are none, then, I'll just go through the handling—the housekeeping arrangements. 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 the Welsh and English languages. Headphones are provided, through which the instantaneous translation may be received. For any that 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. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3
2. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

We move on to item 2, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We move on to the Safeguarding Boards (General) (Wales) (Amendment) Regulations 2018. Any comments from the lawyers? So, no comments on that. Any comments from Members? Okay. So, we note those.

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

Item 3, instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3. We have the composite negative resolution instruments, and you have before you the regulations, the transposition note, explanatory memorandum and report. These regulations are part of a package of measures to transpose council directive 2013/59/Euratom, laying down basic safety standards for protection against the dangers arising from exposure to ionising radiation. I refer now to the Assembly lawyers for any comments.

Only to note, these have been made by the Secretary of State and the Welsh Minister, so they're laid before the UK Parliament and the Assembly, and they're in English only.

It's just our usual issue with 'English only' in these circumstances.

Well, plus, in the event of Brexit, what happens, because this is Euratom, isn't it?

I'm not sure what the latest is on Euratom, I'm afraid.

Well, we're implementing the directive now in any event, and it will become part of retained law, of course.

4. Papurau i’w nodi
4. Papers to note

Item 4, papers to note—scrutiny of regulations made under the European Union (Withdrawal) Bill. We've got paper 6, which is a letter from the First Minister, dated 25 April; letter from the Llywydd, 25 April 2018; and a letter from the Minister to the External Affairs and Additional Legislation Committee, 25 April 2018. Correspondence, really, to be noted. Are there any comments on the correspondence?

Well, I think it's for us to determine urgency and control the process. I think you just allow them to use it as a vague criterion whenever they need to, or felt the need to do it just in case, and that's not really a very satisfactory system. It's not been their best episode, I don't think, in terms of lying low and then shouting loud as soon as the Assembly has spoken.

I agree entirely, and we've made the point as forcibly as we can, and I think the Llywydd is taking that forward. And no doubt we will have correspondence in due course that will inform us of the outcome of those representations that have been made.

We now move on to item 4.2, a letter to the UK Government—understanding of devolution. I think Members are invited to note that the letter has been sent to Chloe Smith MP, the Parliamentary Secretary, Minister for the Constitution,. The letter was an action from the UK Government's post-Brexit report. So, that letter is, really, to be noted.

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'r cyfarfod yn unol â Rheol Sefydlog 17.42(vi).

Motion:

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

Cynigiwyd y cynnig.

Motion moved.

Item 5, motion under Standing Order 17.42 to resolve to meet in private. Is that moved and agreed? We will, of course, be back in public session at 15:30, to take evidence from the Cabinet Secretary for Finance on the Brexit issues. We now move into private session.

14:50

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:50.

Motion agreed.

The public part of the meeting ended at 14:50.

15:30

Ailymgynullodd y pwyllgor yn gyhoeddus am 15:30.

The committee reconvened in public at 15:30.

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

This is a reconvened session of the Constitutional and Legislative Affairs Committee. I'd like to welcome the Cabinet Secretary for Finance to further give evidence in respect of the withdrawal Bill and the memorandums that have been agreed between the Welsh Government and the UK Government. Would you like to introduce your officials?

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

Thank you, Cabinet Secretary. We've got quite a lot of questions to put to you. I understand you've had a busy day today with one of the other committees as well, so we'll get moving on those. When you were last with us, of course, you outlined that you were getting close to agreement and that there were a number of discussions that had been taking place and that you were getting close to a compromise agreement. In respect of the compromise, I wonder if you could just outline briefly what it is you sought to obtain in the ideal world and what it is that has not been achieved in the negotiations.

Well, Chair, if you don't mind me using the language of the freezer, which we've got used to in this Bill, I'll try and explain that what the negotiations have been about since the UK Government published its inverted clause 11 amendment is these four things. The inverted clause 11 amendment, as you know, reversed the original proposition in which nothing was to be retained at the devolved level and everything was to be retained at the UK level, other than things to be passed back to us, and created the position in which everything was to remain at the devolved level, other than those things that we agreed would be held for a temporary period at the UK level. We then had a number of issues that we needed to resolve. If matters were to be held at the UK level, how was the decision on what was to be retained to be made? If things were to be held at the UK level, who was to have access to the freezer—who would be able to use powers while they were held there? How are matters to be released from the freezer and how long was all this to go on for—how temporary was 'temporary'? We believe that we have secured agreements on all those four matters sufficient to allow us to put a legislative consent motion to the floor of the Assembly and to recommend that it be supported, because now, things that are to be held at the UK level will require the consent of the National Assembly for Wales. While matters are held in the freezer, neither devolved Ministers, nor Ministers acting on behalf of England, will now be able to make use of those powers. How are things to be released from the freezer? By a process in which all devolved Governments and the UK Government act together to agree frameworks that will govern those matters in the future, and now we have a sunset clause, which puts a firm backstop—end point—to the length of time that these powers can be temporarily deployed in that way. Those are the four questions that we started off with. We think we have satisfactory answers to them all, hence we are prepared to come to the Assembly with a recommendation that legislative consent be given.

I think you yourself said that the outcome is not perfect, but that there is sufficient protection. 'Sufficient' seems quite a low bar when it comes to protecting the Welsh constitutional settlement. Will you perhaps elaborate on what you mean by 'sufficient' and to what extent this is really an agreement that's dependent on trust—or will there be sufficient guarantees in the legislation itself?

Chair, I don't want to get into a semantic discussion, but I don't regard 'sufficient' as a low bar. I don't think, when the good Lord said in the sermon on the mount, 'Sufficient unto the day is the evil thereof' that he was saying to himself, 'Well, I'm setting a pretty low bar there'. I think the word 'sufficient' is to be taken in its normal and natural meaning, in that it is enough. It is enough for us to be able to come to the floor of the Assembly, and I think it is enough in all the aspects that I have outlined. Are there things that, had we had more time, would have been capable of being done in a different way? Well, I'm sure there are. I'll give you one example. When the powers are held in the freezer, Welsh Ministers and Scottish Ministers and Ministers in a Northern Ireland Executive are not able to make use of those powers, and that will be in the statute. English Ministers will not be able to act on them either, and that is set out in the inter-governmental agreement. So, we come to the same place but by different routes. Ideally, would it have been good to have had us all covered in the legislation? Well, I probably think so. But, in the time available and with negotiations going up to the very last minute, we have, I believe, secured parity of treatment, but not by unidentical means. The end is the same, the means are different. It would have been preferable, on the whole, to have had both of them the same, but I don't think that it in any way amounts to a barrier to the agreement being approved.

15:35

Just one further question from me before I move on to the other Members. You do say in your letter of 24 April to David Lidington that you

'would have preferred such arrangements to have been developed without the need for legislative constraints, with respective Governments trusting each other’s undertakings not to legislate in areas where we agree UK wide frameworks are needed until they have been agreed.'

Trust still is a significant element of the memorandum and its workability. 

We said from the very beginning to the UK Government that clause 11 was unnecessary, that we should have all of us come through the door with our separate responsibilities committed to reaching an agreement on a way forward, developing frameworks that we could all have played a part in developing, and that would have been an entirely trust-based solution, and the Welsh Government would certainly have been willing to play its part in that. In the end, the UK Government believed that it needed that trust to be underpinned by something in the Bill, and I believe that the discussion that we have had on frameworks, and indeed on the inter-governmental agreement, demonstrates the validity of our position—that it is possible, by detailed discussion and negotiation, to reach an agreement that doesn't require legislative routes. But trust has to be built up, really. Trust doesn't just arrive on a single day; it depends on everybody working hard to develop it and then to nurture it. I think we've made a good start in the way that this agreement has been drawn up on that process.

Just a brief trot through several questions, really. Referring to your statement in the Siambr last Wednesday, you said at one point, as regards the clause 11 amendments, that

'without an agreement with ourselves...the UK Government would simply revert to the original amendment'. 

Is the implication of that what you told us—that the UK Government would have bypassed legislative consent if it was refused by the Assembly?

First of all, thank you for the question, of course, because I think it pinpoints an important part of this debate. Our belief as a Government was that the choice we faced was between securing what we had negotiated painfully over many weeks with other colleagues or something less satisfactory, not a choice between what we had negotiated and something better than we had negotiated. I don't think it is right to construct an argument that says that, had the UK Government simply put down its original clause 11 amendment, that would necessarily have led to the outcome Dr Lloyd suggested, because had they done that, the game would not have been over. We would certainly have laid amendments to that amendment in the House of Lords. We would have acted, I'm sure, with our Scottish colleagues, in trying to do that, and we would have gone on trying to persuade the Lords that they should have supported our amendments, which would have been an advance on the original clause 11 amendments, which would have built on many of the points that were made by Members of the House of Lords during the earlier stages in the House of Lords debate, and we still would have aimed to have got to a point where the amendment that was finally passed in the House of Lords was one that we could have brought to the floor of the Assembly to seek consent. So, I don't think it leads in that linear way that the question suggests, because there would have been many other steps still to fight out in the process.

15:40

Indeed, and all that's accepted. But given, as you said in your statement last week, that the current situation, having accepted this now, is not perfect, it could be viewed that the UK stance in the negotiations of saying, 'If you're not going to agree, we'll simply revert, without any amendment in between, to what was there before, you can forget about flipping the clause 11 amendments, we'll simply revert'—if that can also be construed as some sort of vague threat, if you like. And given the Secretary of State for Wales, Mr Alun Cairns, had said that, even if this Assembly would reject legislative consent, the UK Government would respect that decision—. So, given that backdrop, how would you have considered the UK Government stance of saying, 'Right, okay, if you're not going to agree to this, you're simply going to have what we've suggested first of all'—but you knew that the Secretary of State had said, 'We'll respect the position of the Assembly'. Or wasn't that the case?

First of all, Chair, I should make it clear that the UK Government never, in an unsubtle way, said in the negotiations, 'If you don't agree with this, then we'll be reverting to our last offer.' Negotiations don't take place in quite that direct way. It's a judgement. It's a judgement that we had to make. And it's a risk-based judgement, isn't it? If we did not take the agreement that was on the table and that we thought had made very significant steps forward on what was available before—. We thought that the risk was there too significantly that we would lose all of those gains and the UK Government would revert not to the original clause 11—I never myself believed that they would do that—but to the inverted clause that they had originally put down. I may be misunderstanding the question, so apologies if I am, but if the question was to say, 'If the Assembly then denied legislative consent to that proposition, we would somehow be in a better position', I just don't really see how we would be. 

Just to explain, the question was: the Secretary of State had said that they would acknowledge and respect the decision of this place to refuse legislative consent if it came to that. So, why did you feel an overwhelming need to agree with them? Because surely there was no threat then, if the Secretary of State said they would accept our vote if we rejected the legislative consent. 

Well, I suppose it is for the Secretary of State himself to elaborate on what he meant by that. It was then, and it still would be my judgement now, that we are in a better position, having reached an agreement that defends devolution—and I think it entrenches a number of defences to devolution, not just in the Bill, but in the process that will follow—than in declining to come to an agreement, coming to the floor of the Assembly without an agreement. Yes, the Secretary of State may have respected that decision, but I think we would be in a worse position, as a result of that course of action, than we are as a result of the one that we have pursued.

That's forgetting all about the continuity Bill argument, but I'll move on to—. I'll stick to the script, Chair, because we haven't got all day, as you remind me.

The sunset clause. Initially, the First Minister had been quite scathing about the concept of sunset clauses. 

'We wouldn't accept a sunset clause',

he said on 27 November,

'Who is to say that it wouldn't be extended ad infinitum in the future? It's a matter of principle here.'

That was 27 November. Obviously, he would say a lot of negotiation has gone on since then, but that sounded like a bit of a fundamental principle. So, why has the Welsh Government now accepted a sunset clause and what guarantees have you received that that clause won't be extended ad infinitum by the current UK Government or future ones? Because, as you've pointed out, we're going into deep-freeze mode now for several years, so that rather paralyses the workings of the next Assembly Government as well. 

Well, I think there are three different points there, Chair. Dr Lloyd threw in a final point there, which is quite a big point, actually, so I will say something on it if you don't mind. First of all, the First Minister, when he was making his remarks back in November on a sunset clause, was referring to clause 11 as originally drafted. Because, at that point, no powers were resting in the Assembly—everything was being taken back to Westminster. And the First Minister said that a simple sunset clause, based on the fact that no powers were coming here, would not be sufficient to assuage our anxieties about clause 11. Now we have a very different clause 11: an inverted clause 11 in the first place and now a clause 11 with all the additional amendments that secure the consent of this legislature, a guarantee that English Ministers cannot use those powers, and that makes sure that when those powers are released, it is on the basis of negotiated agreed frameworks in which all parties come to the table on parity of esteem, and then a sunset clause on top of all of that. That is a very different context to the one that the First Minister was commenting in back in November.

As for this business about the extension of a sunset clause, I think I need to be clear that the amendments that are laid do not make provision to allow the sunset clause to be extended—it is a fixed period with no power to extend. The only way in which the period could be extended would be through fresh primary legislation and that fresh legislation would be subject to all the normal Sewel conventions that any primary legislation requires. In other words, it would have to secure the consent of the National Assembly for Wales. So, there is no arbitrary way in which the UK Government, by itself, without the involvement of this legislature, could extend the sunset period. The Bill and the amendments simply do not allow for that to happen.

15:45

So, no powers additional to what Parliament already has by virtue of its status as a sovereign parliament.

Just in terms of the deep-freeze, it's going to be eight years' time—there's a year until we leave and there's two years and then there's five years on top of that, so that's where the eight years comes from. So, 24 areas, perhaps more, will be in a deep-freeze somewhere. That rather traps the next Assembly Government into this whole escapade as well, or do you foresee a rush to legislate once we hit March 2026? Or not?

If I could, Chair, I want to make two points and then Simon will add some further ones. I think a fundamental point to remind Members of here is that what happens when any area is in the deep-freeze is it simply guarantees that the current status quo continues. And that status quo has been the status quo for successive Assembly Governments since 1999, because the status quo is the European Union rule book and that rule book has applied to each Assembly that has been elected ever since devolution was inaugurated. All this does is to guarantee that the rule book that we operate on today will continue with nobody able unilaterally to interfere with it until we all agree on the frameworks that will be necessary so that the UK can operate in a post-Brexit world. So, our hands are no more tied here than they have been since 1999. How quickly will the powers that are being held centrally be released back to the devolved administrations? I argued last week on the floor of the Assembly that I believe that it will happen a good deal more quickly than the backstop period suggests. 

Yes. I say it for this reason: that until we are able to negotiate, the English Ministers are in the identical position to us. There was a risk that actions might have been able to have been taken on those policy areas in relation to England while we were unable to operate in relation to Wales. Now we are in exactly the same position, and that means the pressure is equally upon all partners to come to an agreement on the way in which these powers can be released into the hands of English Ministers to pursue the policies they will wish to pursue, and into the hands of the National Assembly for Wales so that we can use them here. And because we are all in that same position, I think the pressure will be on everybody to come to that agreement as soon as we are able to do so.

The agreement now requires that the Secretary of State will lay, every quarter, a report in front of Parliament, which will be sent to the Assembly as well, to explain the actions that have been taken to make sure that that process is being taken forward expeditiously. So, I think the pressure will be on everybody to try and come to these agreed frameworks in a timely fashion. We will certainly have the two years of the transition period, provided that is agreed, where we're all bound. There will be no ability for any of us to implement new frameworks, and I think that we will use that period purposefully. I think the work that has been done already on the deep dives demonstrates how much ground we can gain when we all get around the table to do that. The five-year period beyond those two years is a backstop. It is the last possible moment at which powers will be released back into the hands of the National Assembly, and I believe, for the reasons I've outlined, that it will be done more quickly.

15:50

Obviously, the way that devolved Parliaments deal now with the deep-freeze situation is statutory, through restrictions in legislation, yet when it comes to England-only legislation, that is defined under the inter-governmental agreement, which is not statutory, surely. That's a political agreement. So, there is a differentiation between England-only legislation in devolved matters, in the absence of an English Parliament, and obviously that's an argument outside my mandate, as a Plaid Cymru Assembly Member, but the fact is, it's not an equivalent field. That's what I'm trying to drive at, and we need protection from that.

Look, Chair, I completely accept that point that Dr Lloyd is making. We reach the same end by different means; that's my reply. We are all bound. We are bound by the statute. They are bound by the inter-governmental agreement. It is a fair point for Dr Lloyd to make that those are not necessarily of the same weight, and I said in answer to an earlier question that had we had more time and were ideally able to do it, I'd have preferred that we were all in the same position. But I do want to say to the committee, as I said on the floor of the Assembly, that if anybody thinks that getting that clause in the inter-Governmental agreement that binds the hands of English Ministers was done in any way casually, or just put in there without people having had to be argued to get to that point, and that it wasn't absolutely seriously made as a commitment, they would be mistaken. That commitment from the UK Government was hard won and hard fought for, and I know that the Chancellor of the Duchy of Lancaster, with whom we were negotiating, had to go and work hard with his colleagues to get their agreement to that being in the inter-governmental agreement. So, I think we are entitled, in the trust-based way that you said, that if a Government commits itself in that serious way, they intend to honour that commitment seriously.

Is it a constitutional first for the UK Government to bind itself in that way?

Well, Parliament cannot bind itself, and that was one of the arguments that was used against a statutory solution in relation to English Ministers, but I, at least, know of no other example where we have an inter-governmental agreement of this sort.

So, staying on the inter-governmental agreement, did you request that the content of that was written into the Bill?

Well, I think that the content of it, largely, is written into the Bill. I think the core parts of the IGA are reflected in the amendments that were laid by the UK Government last week, but the IGA does go beyond the statute as well, in some of the things we've just been talking about. Had there been more time, I think there were aspects, of the sort I've just described, which we might ideally have liked to have pushed into the amendments, but we got as far as we possibly could, and I think the amendments faithfully reflect the agreements that we have reached and which the inter-governmental agreement sets out.

Fantastic. Why did the Welsh Government accept the statement in the agreement, that

'The implementation of this agreement will result in the UK Parliament not normally being asked to approve clause 11 regulations without the consent of the devolved legislatures'?

15:55

Well, Chair, we accepted that because it is just a straightforward restatement of the current constitutional position. I did notice last week on the floor of the Assembly that there were some Members who were regarding the 'not normally' phrase as though it was something novel and new in this agreement. It's there in the Government of Wales Act. The founding statute of this Assembly contains a section in Part 4 that says:

'it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Assembly.'

So, 'not normally' is just part of the founding DNA of the relationship that this Assembly has with the UK Parliament, and we picked up that phrase and replicated it in relation to the additional safeguards that the inter-governmental agreement sets out. And, Chair, you know, I think we've learned something in the years since then. There have been over 100 occasions in which the Assembly has been asked to consider legislative consent to a UK Bill, and there are examples—not many, I know—where the UK Government has said upfront that it needs our agreement and we haven't given our agreement where the UK Government has then withdrawn the clauses from the Bill to which consent was not given. So, the Police Reform and Social Responsibility Bill—to give you an example—required that local authorities should establish a panel to oversee police and crime commissioners. The National Assembly did not give its consent to that, and that clause was withdrawn from the Bill as far as Wales is concerned.

So, we will no doubt some time in the future reach a place where it's 'not normal', but, so far, what we have established is that consent is asked for and that, if it's not given, the UK Government does not go ahead with the things for which consent has been denied.

Do you have any further questions? Okay, then we move on to David Melding.

Cabinet Secretary, the inter-governmental agreement is to rely on custom, respect and culture, so it uses phrases like that, looking for 'common frameworks', for instance, 'not normally', 'unreasonably withheld'—these sorts of things. I think the position of this committee has been—and it was clearly seen most explicitly in our report on UK governance post Brexit—that we need more institutional rigour now, and I just wonder where we are in that respect. Do you think we've advanced at all to a firmer, clearer, more constitutional—if I can use that word—position?

Well, Chair, I completely agree with the point that David Melding is making and that was made in this committee's report and which was set out in the Welsh Government's own paper, 'Brexit and Devolution'. The other side of the European Union, we will need more rigorous, constitutionally entrenched means of conducting relations between the four constituent parts of the United Kingdom. We've been able to rely on our common membership of the European Union up until now for so many of these things. We're all bound—. The UK Government, as much as we have been, have been bound by the rule book that the European Union has created. When that is taken away and we are developing frameworks of our own to be agreed between the four parts of the United Kingdom, we will need better machinery than we have today.

Now, I think I said to you last week that the last six months or so of the JMC(EN) have been a more constructive experience than previously, and I think that gives you some confidence that these better ways of working can be developed. I think that what we have set out in the inter-governmental agreement in relation to frameworks is a small but important step on the journey towards the sorts of arrangements that this committee has set out, because it's now nailed down in that agreement that frameworks will be produced not by the UK Government suddenly producing something late in the process, sending it around everybody else and saying, 'You've got a short period to comment on it', and then a sort of 'take it or leave it' approach to things, but we will all be equally involved from the outset. By the time the framework emerges, and, hopefully, by the time it makes its way for the consent of the National Assembly, it will be genuinely on that shared trust based, jointly produced basis. We've got that commitment in relation to frameworks. Now, we need exactly that spirit to be applied to the way we do business more generally between us. The Joint Ministerial Committee is not a sufficient vehicle for that. We need something much more like, we have argued, a council of Ministers on the European model—on a smaller scale, of course, just for the UK nations—and we've put some proposals in there on qualified majority voting, for example, to guarantee that no one part of the United Kingdom could constantly frustrate the agreed position of everybody else in coming to joint positions on matters of mutual interest. So, I think what we have here is an example, albeit in miniature, of how those bigger relations should be conducted. It therefore takes us on an important step on that journey, but there is still a considerable way to go.

16:00

David Lidington, in his letter to you, is very polite and urbane. As anyone who has met him would say, that reflects his personality. But there's not much that's concrete there, just, you know, that the successful collaboration indicates that we can look at these issues for longer term reform and all that. You've talked very much about future frameworks and that they won't just be plonked on you—'Please sign off, unless you want to kick up an awful fuss'—but will be jointly worked to construct. But I just wonder what you've seen so far that gives you confidence that these are now going to be taken forward, and will they extend to the governance of frameworks? This seems incredibly sketchy to me. It's almost as if, once you've agreed a framework, it's there as a perfectly existing entity that never requires any further adaptation or whatever. The real detail could well be in how they're applied. They could be quite broad in setting out quite wide policy aspirations, or whatever, or regulations to govern certain standards, and then the detail will really be very, very important. So, why do you think that the UK Government are now going to give this a priority that they've not really shown in the past?

Well, Chair, my answer to that, I think, would be that it's because they are now being advised—and very regularly advised by their own civil servants—of the need for those governance arrangements. Because what the framework deep dives have thrown up—and they've thrown it up absolutely consistently across them all—are exactly those sorts of questions. Say we can reach an agreement on a framework, what happens to it after that? What happens if one of the parties to the framework believes, in three months' time, that something that they hadn't originally anticipated has come up? What if one of the parties believes that one of the other parties is not adhering to the framework? What if a new set of circumstances arise that means that the framework needs to be revisited in some way? We have to have a book of rules that says how those concerns can be raised, who has the ability to put papers on the table to have those addressed, what would the independent adjudication mechanism be if there was a dispute over an interpretation, a dispute over the framework. We've been saying these things from the beginning, and I've said on the floor of the Assembly that we weren't making much headway with any other partner around the table. The reason I think that the UK Government has come to recognise the need for it is that their own people coming to those deep dives are going back and saying to UK Ministers, 'We think we can reach an agreement on a framework; we've made some good progress and we can see where it's needed. But, if we're all to have confidence in that framework in the future, agreeing it is part of a process and not the end of it. As a result, there is more of an appetite, I believe, amongst UK Ministers to engage in the discussions that would be needed to create the governance arrangements of the future. And there have now been deep dives on the governance issue itself, which wasn't on the original list. But it's emerged with such clarity from the deep dives on subject matters that it's now had discussions for more than a day—Simon, am I right?

16:05

We've spent three days altogether working on the governance matters. I think one of the factors that is making this issue crystallise across other Governments is that, in each of these areas, there are specific, tangible decisions that are going to require joint positions to be taken between administrations and taken to legislatures for common agreements within a framework. So, who sets the fishing quotas for the UK when it's not done in Brussels? The regulatory standards for organ donation need to be set and monitored and adapted between the—[Inaudible.] It doesn't change devolution, but it means inter-governmental relations have a step change: rather than staying in touch, it's about actually jointly taking decisions on matters, and that is what is driving the pressure for increasing and enhancing the governance arrangements across these areas.

And this is what, in the memorandum of understanding on the frameworks, is referred to as a broader review of inter-governmental relations, is it?

And that, Chair, was agreed at the JMC plenary between the Prime Minister and the two First Ministers. And the first meeting between officials to discharge that commission will be in May. So, the work is—not well under way, but it's about to start, so we know it's going to be getting on with it now.

Are you satisfied there is the urgency on it? Because the phrasing is quite weak; it's sort of, 'Well, we're going to have a look at it. We know we need to do something.' And, of course, that was in line with the evidence that the Secretary of State for Wales, Alun Cairns, gave, that these things could be looked at. But it didn't seem that there was, at the UK Government level, an understanding of the urgency, because, effectively, everything that has been agreed fit to be successful requires those new structures to actually be in place, otherwise the temptation is then to resort back to overriding agreements.

Well, Chair, we will definitely press the case for getting on and building the governance that will be necessary for the future. I've said—maybe in this committee, even—in the past that what I feel we have been up against, if that is the right way to put it, is a UK Government whose hands are so full in dealing with everything else they have to deal with in Brexit that it has been difficult to grab some attention for this with everything else that they are trying to deal with, and a Scottish Government that has a perfectly proper but different constitutional ambition. The SNP Government believes that Scotland would be better off outside the United Kingdom, and it comes to the table—. I'm not in any way critical of that, that is absolutely their right to have that as their political ambition. But it's sometimes difficult then to get them to focus a great deal on how can we make the UK work better in the future, when their real ambition is not to be part of the United Kingdom.

Of course, at the same time, the Presiding Officer is engaging with the other Speakers with regard to a potential Speakers' conference to try and move this forward. So, presumably, there's strong parliamentary pressure across the various Parliaments to resolve this.

And there is the work that this committee and the External Affairs and Additional Legislation Committee has done with parliamentary committees in the other legislatures—I think pressure from all sides, really. You will have seen it in the reports of the House of Lords' Brexit committee, in the report of the committee chaired by Hilary Benn—all those reports make this same point, as do academic reports. The Institute for Government report that came out two weeks ago makes exactly the same points about the need for stronger institutional, constitutionally entrenched—as David Melding said—arrangements for the future. So, the pressure is on from a wide variety of sides. It's getting people to find scarce resources, in terms of attention and energy, to focus on it.

16:10

Yes, thank you, Chair. Well, it's a balancing act, isn't it, between those people who want to strengthen the union and others who would see that as weakening devolution. But, anyway, that's a debate for another day. In terms of the clause 11 regulations and amendments, are you content now? As a Welsh Government, have you signed off the UK Government's amendments, or is there more work due? And the second point is: how does the Bill apply the Sewel convention to clause 11 regulations? Sewel is meant to be in statute—is it, or is it just another political convention?

Well, Chair, we saw the amendments in draft, we raised a number of technical points about them. They were resolved—changes were made, which meant that they were in a position to our satisfaction. Might there be further amendment again? I believe that David Lidington has not ruled out further possible amendments at the Third Reading in the House of Lords. It's not impossible that cross-bench peers, for example, might put down further amendments before next week, and, as I said in the Assembly, we will continue to work on a three-way Government basis on any ideas that could produce further refinements to the agreement as it currently rests, and if there's more ground that could be gained that ground would apply to us all—I'm very keen to emphasise that. This is not a matter of having agreed one thing for Wales and if further changes happen that they will only apply to Scotland. We've got that agreement with both other Governments: any ground that is gained applies to us all. And, if there is further ground to be gained, wherever the suggestions come from, we're in the room doing our best to secure that agreement.

As far as Sewel is concerned, the big breakthrough, I believe, in the agreement, is that Sewel will now apply to regulations, not simply to primary legislation as it always has in the past. Now, when regulations come forward, the consent of the Assembly will be sought. Sewel is a political convention. That's what the Miller case—

Can I just ask on that—is that not the case already, though, under our Standing Orders, that consent is required in respect of secondary legsilation?

Well, my understanding is that if we had not got the agreement then the regulations that fall from clause 11 would not have made their way to the floor of the Assembly and would not have required the Assembly to give its consent. If anybody wants to correct me on that here, now, I'd be grateful for that, but that's my understanding. Owen will, if you don't—. One moment, Chair.

Yes. I think the distinction, potentially, here is that, in relation to statutory instruments, the statutory instrument consent motion provisions in Standing Orders relate to amending primary legislation, but not specifically relating to regulations that change our competence. And I think that, perhaps, is the distinction. 

We weren't sure whether that—

I wasn't clear from the document that that's what was actually meant. Sorry for—

Parliament will not normally receive regulations from the UK Government that have not had the consent of the Assembly, but that means that you've—. That could be turned around to say that you've accepted that there are circumstances in which regulations can be laid before Parliament without getting consent here, so why have you accepted that quite dramatic principle, given your original position?

16:15

Well, Chair, that is just the identical dramatic principle that applies to Sewel in relation to primary legislation and tracks back to the debate we had earlier. The Assembly could deny consent, but given the 'not normally' clause in the Government of Wales Act 2006, Parliament could still decide to go ahead, even without our consent. So, this is no different, this is the identical formula in relation to the regulations as applies in relation to primary legislation, other than the fact that we have secured some additional safeguards here that don't exist in the primary legislative field, because here, if the National Assembly for Wales were to deny consent, then Ministers at the UK level must seek, if they wish still to go ahead—and there's no guarantee that they would do, they might decide, without consent, they would find a different way of addressing the same issue.

But let's assume for a moment, in the way David Melding said, that consent would be denied and a UK Minister decided to go ahead. They would have to seek an affirmative resolution in both Houses of Parliament. As well as their own account of why consent had not been forthcoming, we would have the independent ability to make sure that legislatures had our account of that position in front of them as well. I don't think we should assume for a single moment that the UK Government is guaranteed that its point of view would prevail, certainly not in the House of Lords. Given that there is now a level playing field in which members of the House of Lords would see the point of view of UK Ministers and see the point of view of devolved Ministers and be able to make a judgment between them, and we would certainly be in there, pressing our case, as we have on the withdrawal Bill, very successfully in the House of Lords. We would be in there, making our case there too, and I don't think we should, for a moment, just assume that UK Ministers would automatically get their position to prevail.

I accept that the right to lay information and the review in Chamber is a check in Parliament—that's not insignificant, but you put a lot of store by 'not normally'. Now, to a layperson, a warm day in November's not normal and a cold day in July is not normal, so how are you using 'normally' in this regard?

Well, in exactly the same way, Chair, as it is set out in the Government of Wales Act itself. So, there's no difference to the—we pick up the formula that is there in our own founding statute, and then we reapply it in the circumstances of this Bill. As I say, we've now got quite a significant track record of how 'not normally' actually works out, and so far—but in the way I said to Mandy Jones that the time may come where things are different—the record is either that the Assembly's consent is sought and is given, and where it was sought and not given, the UK Government has not gone ahead with its original proposals. So, I think 'normally' is built up there through custom and practice to be quite a significant position. Things have to be pretty unlike how they have been in every instance up until now for something—

So, we're talking about war, pestilence, famine—not an ordinary process of Government.

Not an ordinary—. Of course, let's not forget that the UK Government might argue that Brexit is not a normal set of circumstances.

Taking on board what you're saying, in terms of the actual consent decision, say, by the National Assembly for Wales, and I've taken the background, but, obviously, it is also defined, well, at the moment on the face of wherever the latest draft of this Bill is—so, a consent decision is defined in three ways:

'(a) a decision to agree a motion'—

so,  when we agree. That's obvious consent. But (b) is a decision when we don't agree—that's taken as consent, and (c) if we have a motion here refusing consent, that is still taken as consent. Now, if that's usual custom and practice, that's fine, okay, and I understand the various ramifications and stuff. But if it's now something vaguely new that, potentially, is going to appear on the face of a Bill, why say it—if it's not new, then? That's my point.

16:20

Chair, I just don't accept that interpretation of what we have. I've seen some of the things that have been written around this issue. What the amendment does is to set out a consent decision. A consent decision can be a decision to give consent, a decision to withhold consent or a decision not to lay a motion seeking consent one way or the other. It does not—it simply does not—amount to a proposition that to say you don't agree with something can be interpreted as an agreement. 

But what you're suggesting is that the provision for proposals to be laid in both Houses of Parliament with a statement, and for a Welsh Government statement also to be there as well—I think you're suggesting that is a significant strengthening of Sewel, or an additional element to Sewel that didn't exist before. 

I absolutely say that. That was what I said to David Melding. But what I think Dr Lloyd is doing is he's looking at the amendment, which describes a consent decision, and what that means is that a consent decision can be a decision to give consent, a decision not to give consent, or a decision not to lay a motion in front of an Assembly or a Parliament seeking consent one way or another. What you cannot do—I think it is a stretch beyond any reasonable interpretation to say that that means that a decision not to give consent can be interpreted as giving consent. 

Exactly. I think this will—I am hopeful that this will be made very clear by UK Ministers when this is debated in the House of Lords on Wednesday. 

We may be able to rattle through some of these quite quickly.

When a draft regulation is sent to you by the UK Government, which they want to lay before Parliament, and it requires our consent, the 40-day clock starts, but you're under no obligation to send it to us in that time frame as well. So, why isn't there an automatic requirement that you inform us immediately?

I assume, Chair, it is because drafters of the Bill did not feel it was right to lay duties on Welsh Ministers in that way. But you'll know that the letter that will come to Welsh Ministers will go out the same day to the Presiding Officer, so the Parliament will be informed at the same timetable as us. I'm quite happy, David, to give an undertaking this afternoon—

That's fine. Famously, when things come out of the freezer, I don't think there's a decision yet that we get notified on that. You just get notified—or how does that operate?

Chair, I think the difference is that there is no consent arrangement for matters coming out of the freezer. But given that we are very keen to get things out of the freezer, and the National Assembly's concern is that powers are temporarily being withheld from them, we didn't feel that it was necessary to hold up the process by consent, because this is simply doing—

And similarly, just as your consent isn't required for things coming out of the freezer, because you don't envisage that there could be timing issues, or it could be inconvenient. You just think, 'Well, if they're ready to come out, they should come out.' 

And there's no LCM requirement on the Assembly, because the competence is in abeyance, from your point of view, then, rather than not existing and then being added to.

Exactly that, and the anxieties amongst people who have reservations about the agreement are about powers being temporarily not available to the Assembly, so I don't think it's unreasonable to assume that the people with those anxieties will be anxious to have those powers back as soon as possible, and would not be looking for further institutional complexity in getting them back in the hands of the Assembly. 

And then, when there is legislative activity in these frozen areas, at the minute, as I understand it, it's the UK Government that consults the Welsh Government, but there is no link that goes on then to us as the legislature. Why do you think that's appropriate, because that doesn't seem to involve very much scrutiny from our point of view?   

16:25

Chair, it's just important to be clear that no use can be made of those powers to change policy in any way; they are frozen on all sides. The only changes that UK Ministers can make are technical changes, just to make sure that the law is able to operate effectively post Brexit. So, this is the business about, you know, if the statute relies on a named European Union body that is no longer part of the landscape here, then a different body would need be to be named, but it can't change the policy in any way.  

And will there be lots of them? Because we have to be careful of the technical, and this applies not just to using the law but it applies to the regulations as well, so—. 

I think it is quite difficult to know how many technical corrections there may be. Work is going on on those areas that would remain in the hands of the National Assembly from the outset, where corrections of that sort will be in the hands of the Assembly. So, we are beginning to get an idea of how many there may be, but I don't think I'm in a position to make a sensible guess for you this afternoon. 

And then my final question, with your indulgence, Chair: annex A, which is the list of policy areas that are likely, which I think is the phrasing, to be subject to clause 11, and the 24, and they're fairly extensive, in a lot of areas seem to limit us more or less completely—in agriculture, fisheries, environmental issues, some public procurement. And then we could well have food geographical indicators added—I think that's important, but perhaps not such an extensive issue in terms of what the public are concerned about. But state aid, which we don't know is in or out of the freezer at the moment, that seems a biggie. So, how restricted is our power for policy making going to be?  

Chair, I'm not allowed to ask members of the committee questions, but even in a rhetorical way I might put it like this: if the Member suggests that having 24 areas retained in the freezer is very extensive, I wonder how he would describe twice that number coming directly to the National Assembly as a result of this agreement, because in the original clause 11 all 64 areas would have been retained at Westminster. As a result of this agreement, 40 of those will now stay here from the very beginning. So, twice as many areas as are in the freezer are being made available immediately to the Assembly, and would not have been. So, 24 is extensive, and I think this agreement delivers twice that.    

Okay, but, at the very least, these are significant areas of public policy, which means that frameworks, their construction and governance, are matters of huge public interest, and what happens to state aid is doubly so in Wales, surely.  

Yes. Chair, I completely agree with that. State aid is there at the moment. It is still a matter of  discussion between the Governments. And in any case—and I know Mr Melding will certainly be aware—the way state aids are treated post Brexit, post the transition period, is itself a matter of very very significant negotiations over the extent to which we will be able to have frictionless access to the single market. Because if we do think that we have extensive ability to depart from European Union existing rules in relation to state aid, then that will undoubtedly cause new restrictions on our ability to trade across the European Union, because they would expect us not to use state aids in a way that distorts the market. So, the state aid issue is way beyond the narrow point that we are negotiating on here. 

And just finally to say again, as I know David will know, the fact that these areas are identified as being in the freezer does not mean at all that everything that lies under that heading is going to be retained there for legislative underpinning. In fact, in quite a number of areas, the bulk of what lies underneath that heading will be very quickly be identified as material that can be negotiated in a non-legislative way. And we talked last week, and on the floor of the Assembly, about having to work across the Government and the legislature to devise scrutiny arrangements that will allow the Assembly to do the job it is here to do in seeing how that side of these things develop. So, those things will come our way even faster. 

16:30

Just very quickly, you've answered a number of question on the sunset clauses. In terms of the frameworks generally, if Scotland doesn't give legislative consent, of course, it's very difficult for progress to be made. Is that correct?

Well, I don't think it is, Chair, necessarily, because the UK Government has already said very explicitly that everything that we have agreed with them will be available to Scotland as well. So, all the safeguards that we have agreed, all the need to secure consent, all of that will be available to the Scottish Parliament and the Scottish Government whether or not they give their consent. And although I have not read in the last few days what the Scottish Government has said, I do believe that Scottish Ministers are previously on record as saying that however this is finally resolved, they would still intend to play a full and constructive part in the ongoing discussions of our frameworks and so on. So, I remain hopeful that, even if the Scottish Government does not feel able in the end to recommend legislative consent, the framework we have established will be sufficient to allow them to go on playing the constructive part I believe they have played so far. 

Thank you very much. Cabinet Secretary, We've just got a couple of final questions, if you're okay for just a few more minutes. Mandy Jones. 

You've taken one of mine anyway. I am so glad that Wales and the UK Government are going to be doing this on parity. That makes life a whole lot easier for everybody. In last week's statement, you said,

'We recommend that the Welsh Government enters into an inter-governmental relationship agreement'

with this committee to support the scrutiny of Welsh Government activity in this area. Can you keep us informed on the Wales and UK activities please?

Yes. Chair, of course, I'm very happy to commit to continuing to report to this committee and to the External Affairs and Additional Legislation committee on further developments in this field, and to repeat what I said last week about the Welsh Government's willingness to work with this committee, where you think that would be useful, in developing the arrangements that will be needed on the part of the legislature to oversee the actions that will flow from these agreements. 

Okay. One very final, very technical point. Paragraph 7 of the memordandum—clause 11 regulations will be made in accordance with the following processes. However, within the six-step process, which follows step c., it says,

'Where the draft regulations have been developed in line with this agreement.'

It implies that some might be made differently. I presume that's a drafting thing, but I wonder if you could just clarify that. You don't have to deal it with it now, but possibly by—

Well, Chair, I'll write to you, of course, if there is anything I need to add. But that wording that is there, as I recall, following representations made by the Welsh Government, because it goes on to say that we would not unreasonably refuse to recommend consent. And I was only willing to sign up to that where the process of developing frameworks had been delivered in the way that the agreement sets out. So, I was not prepared to sign up to something that would bind me not unreasonably to recommend to the National Assembly that consent is given if I felt that the process of developing that framework had not been delivered faithfully in line with this agreement. 

Yes. I just wanted to be clear that I was not signing a blank cheque for anybody in saying that I would guarantee to come to the floor of the Assembly recommending consent if I felt that the process that had led to that point had, in practice, turned out to be flawed. 

Well, Cabinet Secretary, we've come to the end of our time. Thank you very much. I think we've gone through all the questions and points that we wanted to raised. Obviously, we'll be giving consideration in due course  to the LCM itself. 

A transcript of the evidence will, of course, be made available. And, again, thank you for attending. I know you've had quite a number of sessions on this, and we seem to be moving on now. Thank you very much.

16:35
12. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod
12. 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 now move into private session. Is that agreed? Thank you very much.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 16:35.

Motion agreed.

The public part of the meeting ended at 16:35.

Archwilio Cynulliad Cenedlaethol Cymru