Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Materion Allanol a Deddfwriaeth Ychwanegol

External Affairs and Additional Legislation Committee

11/06/2018

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

David Rees AC Cadeirydd y Pwyllgor
Committee Chair
Jane Hutt AC
Jenny Rathbone AC
Leanne Wood AC Yn dirprwyo ar ran Steffan Lewis
Substitute for Steffan Lewis
Suzy Davies AC

Y rhai eraill a oedd yn bresennol

Others in Attendance

Yr Athro John Bell University of Cambridge
University of Cambridge

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Alun Davidson Clerc
Clerk
Elisabeth Jones Cynghorydd Cyfreithiol
Legal Adviser
Gerallt Roberts Dirprwy Glerc
Deputy Clerk
Nia Moss Ymchwilydd
Researcher
Rhys Morgan 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 14:01.

The meeting began at 14:01.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introductions, apologies, substitutions and declarations of interest

Can I welcome Members to this afternoon's meeting of the External Affairs and Additional Legislation Committee? Can we also remind people of some housekeeping first of all? Please switch off your mobile phones or any other devices that may interfere with the broadcasting, or put them on silent. The meeting is bilingual, and if you require simultaneous translation from Welsh to English, please use the headphones available to us on channel 1. If you require amplification, it's on channel 0. We're getting some feedback at the moment. If I go on with the housekeeping, there is no scheduled fire alarm today, so please follow the directions of the ushers if one takes place—and you've heard it twice. 

We've received apologies from Jack Sargeant, Steffan Lewis and Michelle Brown. Oh, it's gone quiet. No. And can I welcome Leanne Wood this afternoon, as a substitute for Steffan Lewis?

We need to resolve, I think, the feedback question before we continue. Can we adjourn for five minutes and get the feedback sorted out? 

Gohiriwyd y cyfarfod rhwng 14:03 ac 14:09.

The meeting adjourned between 14:03 and 14:09.

14:05

Can I welcome everyone back to this afternoon's session? Hopefully, the difficulties have been lessened, although not totally gone away. So, can I just finalise our housekeeping? I just said that we'd received apologies from Jack Sargeant, Steffan Lewis and Michelle Brown, and I welcomed Leanne Wood to this afternoon's session as a substitute for Steffan.

14:10
2. Cyfraith Ewropeaidd a'r trefniadau pontio wrth ymadael â'r UE—sesiwn dystiolaeth
2. European law and the Brexit transition—evidence session

We move into our next item on the agenda, which is an evidence session on the European law and Brexit transition issues. Can I welcome Professor John Bell from the University of Cambridge via the video link? Perhaps, Professor Bell, you could give us a slight introduction, because you wrote a paper prior to the withdrawal agreement getting some form of almost complete recognition. Has that withdrawal agreement changed any aspects of your position paper, which you wrote in relation to the transition and withdrawal?

I think the key thing about the transition is that it's now going to be managed by a separate Bill, and the provisions on the transition have been included in the withdrawal treaty in such a way as to be limited in their scope. The way it is structured in the draft treaty—the draft agreement—that the Commission has produced is in the form of effectively moving the cliff edge from 29 March 2019 to 31 December 2020. So, most of the standard bits of EU law continue until that point, but the UK ceases to be a member state, and there are lots of provisions that take it out of that, including provisions on agriculture for the year 2020. So, I think what they've managed to do is to keep it very much as a transition away from withdrawal in such a way as to be within article 50 of the treaty. But one of the questions you ask is, 'Well, can anything happen after 29 March 2019 to extend that?', to which the answer is very clearly 'no'. The only way it could be extended would be by a new agreement, under article 307 of the
Treaty on the Functioning of the European Union, which requires the consent of the Parliaments of the 27 members, in addition to the Council. So, that would be a very unlikely scenario.

So, what we've got with the draft agreement—most of which, as you will have seen, is in green, which means it's agreed between the UK and the European Union, simply awaiting signature. What we've got there is a large number of provisions that effectively continue European Union law until that 31 December, which, of course, poses problems because you still have to work what happens from 1 January 2021. There needs to be some change of law during the period of 2020, in which the period after 2020 is envisaged. All that the withdrawal Bill does is to provide a transfer of European Union law into national law, and to withdraw sovereignty of European Union law. It means that, during the transition period, there need to be powers conferred on the UK in some way to bring UK law up to date with whatever the requirement of European Union law is until the final day of the transition period. So, one would expect further Henry VIII powers to be given to Ministers to manage that period, and to manage effectively the change from European Union law to national law that will have effect from 1 January 2021.

So, I see that as the sort of  fundamental structure, that to a very great extent, the withdrawal and implementation Bill will be a continuation of many of the powers that are in the withdrawal Bill, although performing a different job, namely performing the job of managing the transition period. Does that help a bit?

14:15

Yes. I just want simple clarification for myself and perhaps the public. What we are saying is that the article 50 process will complete on 29 March next year, and if we wish to have an extension to the transition period for any reason, there is a new process that will have to be followed, and that new process will require the acceptance of the 27 Parliaments of the member states, plus the European Parliament.

Yes, unless there is a provision in the withdrawal treaty to extend for a short period. That might be controversial as to legality, but that would be the only question. It would have to have been built into the withdrawal treaty, because once the UK has withdrawn, article 50 ceases to apply.

And there is nothing built in to the withdrawal agreement that would actually give that certainty?

Okay. And you highlighted the EU withdrawal Bill, which is currently going through the House of Commons—it will be there tomorrow and Wednesday to consider the House of Lords amendments. That technically takes us from EU law into UK law from the point of exit. So, are you saying that you would expect a withdrawal and implementation Bill to have something in addition now to address the period of time during the transition of how we address laws made during that period?

Because we have, under the draft agreement, an obligation in articles 4 and 5 to implement European law, as amended, during the transition period. And since it won't automatically happen, we have to use our own powers to actually make that change that would otherwise not happen.

You highlighted the Henry VIII powers as an example. Now, that was a very contentious issue in the House of Lords in particular. Is that the only way we can do this, or are we still talking about perhaps ensuring that Parliaments and perhaps devolved Parliaments also have an opportunity to have a say on these?

Well, I mean, the difficulty you've got is that the obligation is—[Inaudible.]—the European Union, and therefore the UK Government has taken the view that that is an international treaty, and therefore within its competence, and restricts the competence, effectively, of the devolved Assemblies. And I think that's the difficulty.

A similar provision is contained in the trade Bill, where you are altering the treaties that the European Union has entered into with third states. Again, there are restrictions on what the devolved Assemblies can do there. So, the plight of the devolved Assemblies needs to be viewed in two ways: one, as a sort of legal formal requirement, which will be limited, because of the way the UK Government has treated this as a matter of international relations, and therefore not as governing specific areas of law. But then you also need the informal arrangement, where you get on the inside track of discussions before the final agreements are made by the UK Government. I think that's probably the most important bit, because at the moment the UK Government is not as transparent as the European Union. The European Union is very transparent and it's negotiated the position from what it needs. The UK is much more hidden in what it's trying to do, and therefore it makes it more difficult to be involved before particular rules are adopted.

When the article 50 power ceases to bite, which will be, in practice, the end of 2020, if I've got that right, obviously the UK can't unilaterally extend the transition period, but it would be open to using its own powers to making law that would make it more likely for a transition period to be extended by, for example, committing to a certain alignment or committing to even follow EU rules beyond the period that ends in 2020. How realistic do you think that is as an option, should it turn out that we need a longer transition period? With your ability to see into the future, what types of clauses would we need to include in that to make us even of interest to the European Union should the transition period, from our perspective, need to be extended beyond 2020?  

14:20

Right, sorry. [Inaudible.

We'll adjourn again, simply to try and get the technicalities right. 

Gohiriwyd y cyfarfod rhwng 14:21 a 14:22.

The meeting adjourned between 14:21 and 14:22.

We are back in public and we're hoping to get over our technicalities, and we'll continue with the session. So, Professor Bell, would you like to repeat your answers to the questions from Suzy Davies? 

The point that I was making is that the European Union is getting on with things, so it depends on what you want to continue. The European Union presented its budget for 2021-27 in May, and that will be signed off probably in the course of 2019. So, a lot of expenditure is already earmarked, and lots of the rules on areas that we might want to sign up to are being agreed as we speak. So, it's a question of the UK coming forward and saying what exactly it wants to continue and what relationships it wants to build. Does it want to build the free trade arrangements? Is that what it wants to do? It clearly doesn't want to continue the common agricultural policy, the common fisheries policy and the regional grants system. So, there are a number of things that the UK will no longer get and Wales will no longer get out of the budget for 2021-27.

What will be left will be the question about the free movement, and that really depends on what kind of agreement the UK wants to put in place either temporarily or permanently between it and the European Union. And really, the nub of the question is: what does the UK actually want? Once it's decided that, there are various technical ways in which that can be achieved, but it behoves the UK to make it clear what it actually wants, and I think that's difficulty the European Union has at the moment. It can suggest things that the UK might want, but it's not clear what the UK actually wants.

14:25

Okay. Effectively, then, anything that the UK may want, like access to specific programmes, doesn't need to be the subject of a further extended transition period; it can be agreed on an ad hoc basis, programme by programme, then, I presume, yes?

Yes. To take the one that I know best, and which we're working on at European level at the moment, on research funding, there, there are specific provisions about third countries joining and the basis on which third countries are joining. The draft regulation for 2021-27 is already on the table. All we have to do is to sign up to that particular agreement. So, as you say, it's a question of: are there particular things that we want, and, if so, what are the arrangements for doing so? The problem we've got is that the European Union is just getting on with things, so, for that particular programme, the rulebook will be set probably by December 2018 for operation in 2021 onwards. They're not waiting for the UK to get on board; they're just getting on with it.

Can I ask one further question on that? You say the rulebook is being set, probably by the end of 2018, which is this year. We are still a member of the EU during that period of time. Are we involved in those discussions for something that happens post 2020?

Well, the regulation has to be approved by the Council of Ministers. There are protocols about participation in those meetings. Our Minister was involved in the meeting in March on that. Our Members of the European Parliament will be in the assembly to vote on those things—they have a right to vote until the UK ceases to be a member. So, yes, we have the leverage to encourage the rules to be slightly different if those are not what we want, but we'd better get a move on.

Thank you. Good afternoon, Professor Bell. Many of the provisions in the EU withdrawal Bill are expected to be superseded or at least impacted heavily by the forthcoming withdrawal and implementation Bill. What do you expect the impact of the withdrawal and implementation Bill to be, and what do you expect it to contain?

As I say, I would expect it to contain clauses that deal with the transition period. The withdrawal Bill effectively shifts EU law into UK law from 29 March 2019. Once you get beyond that, then there are two things that have got to happen. One is keeping the EU law that the UK applies up to date, which is not going to be a huge ask, but it will be a fiddly task. And then, the other is: how do we work out what the trends of the move are from the rules that apply during the transition period to the rules that apply the day after? And they are UK law; they can continue beyond the transition period, but the UK might well need to operate different rules, for example, on customs arrangements. For example, on vehicles that are travelling across Welsh territory, from Ireland through to the Dutch lowlands, if the UK is not part of the customs union, there will have to be rules about what happens at those two frontiers, the Irish frontier and the Dutch frontier, even if the vehicle goes across Welsh territory. And those will have to be in place from 1 January 2021.

Okay. Do you believe that the passage of the EU withdrawal Bill will create legal certainty for the UK and the devolved legislatures, or do you foresee a scenario where the withdrawal and implementation Bill will create further uncertainty? What opportunities are there for the Brexit process to be influenced by the Westminster Parliament and the devolved legislatures?

14:30

The way in which things have been evolving with the withdrawal Bill suggests that there is very limited scope for either the Welsh Parliament or the devolved assemblies to influence very much, because what is happening is that, instead of that withdrawal Bill being passed as was expected in October 2017, it is now dragging on until July, probably, 2018, leaving very few months to pass what your own officials have estimated are about 1,200 pieces of legislation that have to be on the books probably by the beginning of March. So, there is going to be very little possibility for serious influence on the content of those rules by anybody other than the Whitehall officials, because scrutiny of 1,200 pieces of legislation, which nobody has seen yet, becomes very difficult. So, there will be an issue, post 29 March 2019, of probably spotting that the wrong things have been done in relation to some of those 1,200 pieces of legislation.

There is then the question of the two blocks of legislation that will come. One is updating that corpus of a total of 1,200 pieces of legislation to make sure it is current, because, obviously, regulatory conformity between the UK and the EU is absolutely essential until 31 December 2020, and thereafter probably for a longer period in which some form of collaborative arrangement on customs continues, because clearly it's not a question of customs tariff but regulatory compatibility that seems critical. So, there will need to be rules put in place to deal with that.

Then, the transition away to new arrangements with third countries, partly through the trade Bill but not only through the trade Bill, will give the opportunity for the UK to create regulatory divergence. I think, under the withdrawal and implementation Bill, there will be a longer period for thinking things through, but even then we're still only talking about 20 months at most, probably significantly less, and so in many ways what is important is to identify the areas of policy that are going to change and then seeking to get on the inside of the planning process before Whitehall comes with proposals that probably will not get very much scrutiny because there is very little time for it.

Okay. I've got a further question on a vote on the final deal, but I'm happy to come back to that if you want to go to other Members.

Can I expand a little bit on the withdrawal and implementation Bill? You've identified that it's likely to look at how we translate EU law and regulations during the transition period and what happens at the end of the transition period and [correction: from] 1 January 2021. Would you also expect to see in that Bill perhaps an identification of the resolution mechanisms that will take place between the two nations post 2021? Because, we understand the European Court of Justice will be agreed during the transition, but what happens beyond that is going to be an interesting question. Would you expect anything in that withdrawal and implementation Bill to start highlighting where that might be?

The withdrawal agreement has a whole series of very specific provisions. For example, on tax, there's a five-year continuation period to deal with tax arrangements. There are other periods to deal with settlements of outstanding Bills between different countries or under particular policies like the common agricultural policy. So, you would expect—. Whether it will be in the Bill or whether it will simply be by reference, by powers created under the Bill, is not clear. It may be that what they do is annex the withdrawal agreement and do it that way, because the withdrawal agreement contains lots of provisions, and then they will produce delegated legislation to deal with that—or whether they wish to create, in advance, a clear procedure for settlements of disputes where, as yet, it has to be worked out precisely whether those are through the court of justice or through some other body. And as you also, in your note, point to, the monitoring body, the joint UK-EU committee, is not likely to be a dispute resolution body, but is at least likely to monitor. And I suspect its powers will, in some way, form part of the withdrawal Bill. But I don't expect the withdrawal Bill to be very long, because the withdrawal Bill has yet to be produced and has got to be enacted by the middle of March 2019.

14:35

Before I move on to Jane Hutt, who's going to ask you some questions on the joint UK-EU committee, are you concerned that, as you say, the withdrawal Bill [correction: withdrawal and implementation Bill] has yet to be presented—there's a very tight schedule—that we will either not have sufficient time to scrutinise that Bill or it will be so short that it becomes meaningless?

I think it's more likely to be short because there are a couple of other Bills that have got to come forward at the same time. One is an immigration Bill and one is a customs Bill. They were all promised and they've somehow got to be magicked and approved. I can see the withdrawal and implementation Bill being predominately a series of enabling powers to enable regulations to be made at a later point. I think that's the most likely, because it is a very tight schedule, because we won't know the final agreed shape of the withdrawal agreement until the middle of October 2018. And if they hold back the withdrawal Bill until after that has been enacted, or at least agreed, you are then on a very short timetable given the Christmas recess.

Thank you. I'll move on to Jane now, who has some questions on that joint committee.

Thank you very much, Professor Bell. I think, to start off, in terms of the transition period, as you say, the EU will be getting on with developing new EU law and we need to know what opportunities we've got—the Assembly, UK legislatures—to scrutinise and monitor such new EU law during the transition. Obviously, the joint committee could be one mechanism, but what role could we play to influence the UK Government in terms of that committee and those developments during transition?

To a great extent, the European Union legislative process is extraordinarily transparent, and therefore it is quite easy to find out well in advance what changes are being proposed, because the Commission has to propose to the Council, which then presents proposals to the Parliament, and the Parliament necessarily takes a long time to go through things. So, there are opportunities in the period up to 29 March 2019 to see very clearly what is being proposed by the European Union and to use the European Union processes to influence the content of legislation that will come into effect, probably during 2020, if not 2021. So, from that point of view, to some extent, going through the UK Government is a bit of a waste of time; it is just as easy to go through the European Union processes. And the European Union processes do also allow for lobbying and so on, and various organisations are very good at lobbying. To a great extent, if there are issues that concern Wales about the shape of European Union legislation that's coming through, it's probably more useful to get on the inside of the European Union legislative process, through friends and supporters in the European Parliament, among others, or indeed talking with the Commission, than to try and do it via Westminster and rely on Westminster Ministers finding time to do it. So, I mean, to some extent, I would be very sanguine about any changes in European Union law, because that is a process that is slow, transparent and relatively easy to influence.

14:40

That's interesting. It still sounds a bit ad hoc in terms of being a legislature of the UK and a devolved administration that we could be lobbying like others in terms of this EU law, but it's very helpful to have that perspective.

Just to point out that various regions of Germany, for example, have offices in Brussels precisely to do that sort of lobbying, and that's on top of the Committee of the Regions. So, I mean, it's not an unusual feature.

What are your views on the proposals for the joint UK-EU committee in terms of overseeing the withdrawal agreement? From evidence we've had so far, it seems very unclear. We don't know about the membership of that committee in terms of the UK, and we don't really know what role they're going to play. Have you got any views on the proposed committee?

Well, what's in the draft agreement is a committee that produces an annual report and meets at least once a year. So, it doesn't have—. It has various things to check up on. It will meet by various sub-committees, which is the obvious structure that they've proposed within it, but I think it's very much a monitoring body: 'Are things going well?' It will identify areas that are not going well, and perhaps make reports on them. As you say, I think you're right that the key is what kind of membership it has, and how senior the people are who will be identifying issues and problems going wrong. But they will probably be, on the whole, technical problems that are going wrong, rather than policy issues that either side regrets having made. I think that's the difficulty: that it's going to be a technical committee troubleshooting particular problems and bringing to the public those, but not necessarily solving the bigger problems that may be emerging on both sides, as they see the reality of the Brexit process.

Yes. I think, just finally on that point, we haven't been very happy with the mechanisms that we've got now in terms of joint ministerial committees in terms of European negotiations, and obviously we're looking for as much transparency and the opportunity for devolved administrations and legislatures to actually oversee the work of the committee, even if we can't—and hopefully influence it. So, it has been suggested that that means that we've got to spend more time in London and not Brussels in terms of having an oversight of that committee's work, which is going to be crucial. But if it's just in terms of more technical issues, then that's interesting itself. But they're bound to have policy impacts. 

14:45

There will be policy issues that come up. It's a question of whether that committee sees it as its remit to start commenting on them. And as you say, it's not obvious that it will take to itself a high-level policy approach or whether it will take to itself a much more low-key, 'Are we technically delivering what we promised?' on intellectual property and databases and all the other things that are in the very many articles that are in the withdrawal agreement. 

I appreciate that, but therefore it's also important that, as we monitor that committee, it's transparent, so that if there are technical issues, the devolved institutions are aware of those issues and can actually ask questions regarding those matters and the implications for policy on those matters. Do you have any indication as to how that committee will be scrutinised?

I would have thought it simply reports to both the Commission and to the UK Parliament—or the UK Government, actually. So, I think the issue will be what the membership of the sub-committees are. I expect a high-level committee that doesn't do a great deal itself, but a lot of smaller committees that are much more specific to specific areas. There, a question would be: to what extent do the devolved Assemblies get a member on the technical committees looking at it, or are all the UK members drawn from Westminster?

Thank you for that. That's very interesting, and something we need to reflect upon very importantly. Can I go back to the withdrawal and implementation Bill? You said it might be a short Bill that gives regulatory-making powers to Ministers. Would you expect that to also give those same powers to Welsh Ministers? 

[Inaudible.]—There's a stop in the EU withdrawal Bill that is relatively similarly mirrored in the trade Bill. I suspect they will clone those provisions into the withdrawal and implementation Bill, which is: in appropriate circumstances there will be joint signatures on particular pieces of delegated legislation that are produced, depending on the areas of competence. But what is clear from those two previous and already published Bills is that there is a claw-back of power to Westminster and particularly to Whitehall in that the areas are treated as areas of international treaty making in foreign relations rather than as areas of agriculture or whatever, which naturally belong with the devolved Assemblies. I think particularly if the function of the implementation Bill is to keep the UK law similar to European law, they are going to look to have uniform rules without much opportunity for anybody else to dissent. It's similar with the trade Bill. That's the structure they've adopted there—that effectively the trade agreement is made by the UK and nobody else is allowed to dissent from that. That, I think, is the worrying bit—that the implementation Bill will continue the pattern that the other Bills have already set. 

As you quite rightly point out, the trade Bill had very similar sections to the EU withdrawal Bill, but the EU withdrawal Bill has now been amended, and one would expect the trade Bill to be amended similarly to ensure that they are consistent. But is it therefore possible to have the withdrawal and implementation Bill still maintain those powers only for Westminster Ministers rather than Welsh Ministers as well?

14:50

I think, as you say, the trio will be organised consistently, but it's a question of how the problems are identified as to whether they are treated as problems that apply to a particular sector of the economy or whether they are treated as problems of international relations. If they're treated as problems of international relations, that leaves less scope for others, and that's going to be the contentious area. It depends really on how well the UK ministries are able, before enactment, to consult the devolved Assemblies and get them on board before they start producing the rules. But that means that you have to see what they're proposing and at least have the opportunity to make comments, and that requires time, which seems to be running out rather quickly.

Yes, on that question of time, some of us want to see a public vote on the final deal, and there seems to be a lack of clarity as to exactly when that could happen. If a vote takes place prior to the article 50 process being completed, is it legally feasible for there to be an option to extend the negotiating period or even to remain in the European Union if people vote against the final deal? Or are we out of time?

If I remember correctly, the European Council final meeting is on 15 March 2019 [correction: 21 March 2019]. It has the power under article 50 to extend the withdrawal process under article 50. That requires unanimity of the 27 members, of whom several come up for election in the course of this year, and we've already seen Spain and Italy change Government in recent weeks. So, there is a question of how well would you lobby—if there were a vote—the 27 to suspend the process. So, it is possible to stop the process, but almost certainly the European Parliament would have to have voted on it, certainly by February, to agree the treaty. It's up to the European Council to stop the process, but it will—. Effectively, as far as I can see, they would only get one bite of the cherry. So, if they put a later date on it, I don't think they'd be able to repeat themselves. So, I think, if there is a referendum in the UK, that won't stop the European Parliament getting on with it, and really couldn't stop the European Parliament getting on with it, because the European Parliament needs to have proper deliberation before it comes up with its view and it has to have its decision before the European Council can then sign the withdrawal agreement. So, you'd have to have a referendum no later than the beginning of November.

That answer clearly puts a lot of pressure again on the time factors. Can I go back to the EU (Withdrawal) Bill? As I said earlier, that's now being discussed in the House of Commons tomorrow and Wednesday, particularly focusing upon the House of Lords amendments. Those amendments— obviously, 15 of them were defeats for the Government in the House of Lords. Others were put forward by the Government. Do they impact upon the transition period at all in any way?

They would give direction—. Well, if you were going for a customs union or the EEA, that would significantly affect what you did in the transition period and how you managed the process because that would affect the rules that you were trying to produce. Merely remaining in the customs union doesn't keep you in the EU. So, you come out on 29 March, but then you have to come up with arrangements. Remaining within the customs union would then be easier and probably easier to get an article 307 agreement with the European Union before the end of the transition period. I think once you are coming out of the customs union, then there are lots of practical things to be thought through—as I said, not least what happens to transit vehicles going across from Ireland to the Netherlands across English and Welsh space. Those sorts of practical questions then need to be regulated. You wouldn't have those if you had remained within the customs union. But there are still issues about regulation and regulatory compatibility that would still need to be worked out, and would carry on beyond the transition period. So, from the UK's point of view, there would need to be a further Bill in the course of 2020—and probably the first half of 2020—to deal with the post-31 December 2020 situation. So, by no means are they out of the woods. Most of those amendments don't significantly affect the timing; they simply affect certain content of either the withdrawal agreement itself or the implementation period.

14:55

I've just got a quick question, really, about remedies for breach during the transition period, whether that's of retained EU law or any laws made during the transition period. Bearing in mind how long it takes to take anything to the European Court of Justice, how realistic do you think it is that any breaches of the law, either made in good faith accidentally or even deliberately—how realistic is it that anyone would bother to take advantage of the ECJ during that period?

Well, the primary European courts are the British national courts, they—you can't get remedies, on the whole, against UK institutions in the European courts. The European courts only deal with it by reference. So, the answer is that the arrangements in the withdrawal agreement allow for a certain slippage of references for matters that have begun during the period of UK membership and the transition period. But the answer is that it's the UK courts that have got to provide remedies. All the EU courts do is monitor whether the UK courts are doing it properly. And, as one of your colleagues pointed out earlier, there was a question in the EU withdrawal Bill—in one of the Schedules—about remedies, and that, I believe, is now being sorted out.

But I think the answer is: complain to the UK courts, and the UK courts will have to give a remedy on the basis of the law that was operational at the time, which is EU law.

Okay. Thank you. I just suspect that the references that you mentioned might dry up during that period, but, who knows, I may be wrong. Okay. Thank you.

Thank you. Anyone else have any questions for Professor Bell? No. Therefore, can I thank you, Professor Bell, for your time this afternoon? I apologise for the technical issues we had to address during the meeting. You will receive a transcript for the meeting. Please, if you find any factual inaccuracies, can you let the clerking team know as soon as possible so we can have them corrected? So, once again, thank you for your time this afternoon. It's been very interesting to look at—

Thank you very much and good luck—

And good luck with your inquiry.

3. Papur i'w nodi
3. Paper to note

We move on now to the next item on the agenda, which is papers to note. We've got one paper to note, which is a letter from Mark Drakeford, Cabinet Secretary for Finance, to the Chair of the Constitutional and Legislative Affairs Committee, talking about the inter-governmental relations. In that letter you'll note that he offers to meet with the Chair to discuss their committee's report on inter-governmental relations. I just want to ask if Members are content that I also write to the Cabinet Secretary to seek whether we can be involved in areas that affect our remit in relation to this matter. Are Members content with that? Thank you for that. That's the only paper we had to note, so we move on.

15:00
4. Cynnig o dan Reol Sefydlog 17.42(vi) i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
4. Motion under Standing Order 17.42(vi) to resolve to exclude the public from the remainder of 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.

Under item 4, under Standing Order 17.42(vi), we now agree to exclude the public for the remainder of today's meeting. Are Members content? Then we will go into private session for today's meeting.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:00.

Motion agreed.

The public part of the meeting ended at 15:00.

Archwilio Cynulliad Cenedlaethol Cymru