Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Materion Allanol a Deddfwriaeth Ychwanegol

External Affairs and Additional Legislation Committee

08/07/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Alun Davies AC
Caroline Jones AC Yn dirprwyo ar ran Mandy Jones
Substitute for Mandy Jones
David Melding AC
David Rees AC Cadeirydd y Pwyllgor
Committee Chair
Delyth Jewell AC
Huw Irranca-Davies AC

Y rhai eraill a oedd yn bresennol

Others in Attendance

Des Clifford Llywodraeth Cymru
Welsh Government
Mark Drakeford AC Prif Weinidog Cymru
First Minister of Wales
Simon Brindle Llywodraeth Cymru
Welsh Government

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Alun Davidson Clerc
Clerk
Claire Fiddes Dirprwy Glerc
Deputy Clerk
Gareth David Thomas Ymchwilydd
Researcher
Gwyn Griffiths Cynghorydd Cyfreithiol
Legal Adviser

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 13:30.

The meeting began at 13:30.

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

Good afternoon, and can I welcome Members and the public to this afternoon's meeting of the External Affairs and Additional Legislation Committee? I remind Members that the meeting is bilingual, and if you require simultaneous translation from Welsh to English, that's available on the headphones via channel 1. If you require amplification, then that's available on the headphones via channel 0. There's no scheduled fire alarm today, so if one does take place, please follow the directions of the ushers to a safe location. Can I remind everyone, please, to turn mobile phones off or onto silent so that they do not interfere with broadcasting? Do any Members wish to declare an interest at this point in time?

Just my standard declaration, Chair, that I chair the European advisory group and the regional investment Wales steering group and, of course, the programme monitoring committee.

Thank you. We've received apologies from Mandy Jones this afternoon. Can I welcome Caroline Jones, who is attending as a substitute this afternoon?

2. Sesiwn graffu ar waith Prif Weinidog Cymru
2. Scrutiny session with the First Minister of Wales

Moving on to our next item on the agenda, which is our scrutiny session with the First Minister, and can I welcome the First Minister to this afternoon's meeting? For the record, would you like to introduce your officials accompanying you this afternoon?

Diolch yn fawr iawn. Gyda fi y prynhawn yma mae Des Clifford, sef y cyfarwyddwr cyffredinol yn adran y Prif Weinidog, a Simon Brindle, pennaeth yr adran Brexit yn Llywodraeth Cymru.

Thank you very much. With me this afternoon is Des Clifford, who is the director general in the First Minister's department, and Simon Brindle, who is head of the Brexit department at the Welsh Government.

Thank you for that. First Minister, we'll go straight into questions, and we'll start off with David Melding.

First Minister, good afternoon. I think it's fair to say that the Welsh Government's general approach to inter-governmental relations has been a constructive one but then the odd fleck of discontent and grumpiness even. And I just wonder where the overall picture is, because we get messages that you've had good relations with key ministers and David Lidington in particular, the officials are working well, you've obviously supported the review process. But, recently, you've written a joint letter with the Scottish Government saying that there are some things now that are quite irritating in the pace and perhaps some of the principles that inter-governmental relations are being examined under. So, where are we, basically?

I thank David for that question, and I think your original description was accurate. The Welsh Government always comes to inter-governmental relationships within the United Kingdom in a constructive way. We believe in the United Kingdom, we want it to work, we want it to be a success, and therefore we always come to the table where there are things to be conducted between administrations in that constructive spirit.

The experience of being involved in things is mixed. There are individual Ministers who we think understand devolution and are keen to go with the grain of devolution and understand that the United Kingdom, post Brexit, will have to evolve in new ways in order to go on being a success. There are other Ministers who are far less familiar with devolution, to put it kindly, and who have a much less benign grasp of how a devolved United Kingdom should operate. So, in the specifics of the issue that you point to, this refers to the agreement that was reached at the JMC plenary to review inter-governmental relationships. Responsibilities were dispersed amongst the different participants. The Welsh Government led on developing a set of principles to underpin devolution and a devolved United Kingdom in the future.

It's well over a year since that work was set in hand, and the only product of it to date has been the publication by David Lidington of a draft set of principles. Now, given that we were heavily involved in the development of the principles, we welcome the fact that they have been published, because they're in the public domain now, others can see them, others can contribute to them, we can improve them further. But it's a pretty small product for over a year's endeavour, and it leaves all the other things that were meant to be resolved by the work streams without any public reporting of them, and there is no JMC plenary in the diary where those things could be reported upon further. That's why we wrote jointly—Jeremy Miles on behalf of the Welsh Government and Mike Russell on behalf of the Scottish Government—to be clear about our welcome for the fact of publication and the work that has been done, but drawing attention to the very significant set of issues that ought to have made more progress by now, and yet remain unresolved.

13:35

The specific example that that letter looks at is of negotiated mandates for international treaties, which would be very significant and could impinge on the exercise of devolved functions. So, is your problem that there is a lot of agreement in principle, but, then, when you work through the hard case of actual implementation over an area like international treaties, that's where the commitment to joint working is less concrete?

Well, I think we drew attention to that strand in the JMC plenary work particularly because it is becoming urgent. Some of the other things—there is still a bit of time to continue to talk about frameworks, for example where the UK Government itself is in the lead. But we could be in a position where these matters are being negotiated for real as early as November of this year, and therefore not to have in place a set of arrangements through which the devolved administrations are properly involved in those negotiations seems to us to have been left far too late in the day. Now, we have, as you know, put forward a set of very particular proposals using the 'not normally' principle that is there in the Government of Wales Act 2006, and which the UK Government itself has used, for example, in the inter-governmental agreement, to say that devolved administrations should be involved from the very start. In developing the negotiating mandate, we ought to be in the room when that mandate is being developed, and we say that because when it comes to implementing international agreements, many of the implementational responsibilities will be devolved responsibilities. So, if a international agreement is to be implemented, it can only be implemented with the active participation of the Welsh and Scottish Governments respectively, and, in the future, with the Northern Ireland Assembly. The Supreme Court, in looking at the Scottish continuity Bill, was very clear on that point—that the implementation issues are devolved.

Now, what we don't want to see is that we end up in a big quarrel over implementation issues when we could have resolved those far further upstream by having a shared negotiating mandate from the beginning.

It seems to me that you're trying to replicate the system that operated when—well, we're still technically a member of the EU, but, anyway, when we were uncontested in our membership and there was no questioning it. The speaking note for the European Council about, say, fisheries or agricultural policy or whatever, state aid issues—you'd be involved in the preparation of that, and your officials would work through for months, probably, with their colleagues. So, surely the UK Government is committed to that sort of principle going on. So, are you being overanxious? Is this just the inevitable outcome of a Government in London that has an awful lot of work in terms of negotiating Brexit and getting the country though this very turbulent period, or do you think they're not going to apply those principles that used to shape the way devolved Governments operated with the UK Government in the European Council?

Chair, I think it's quite complex, so if you'll forgive me I'll take a minute just to explain some of the complexities that lie behind that question. I think there are people in the UK Government, and David Lidington as a former Minister for Europe is very familiar with the way that things have been done in the past, and Alun will have been part of this directly himself as an agriculture Minister—where the negotiating position taken by the UK was thrashed out between Ministers who all had separate responsibilities, and the UK then represented that shared position. There are members of the UK Government who understand that that's the way things have been done in the past and we should seek to replicate that as we move into a different world of negotiating international treaties.

The Welsh Government understands that if you are going to be part of those early discussions, then there will be compromises in the mandate and you have to be bound by those compromises, because you have been part of shaping them. I think there is some anxiety by some members of the UK Government that other devolved administrations may want the penny and the bun here—they may want to be involved in the negotiations and still want to be able to articulate a separate and distinct position of their own that the mandate doesn't fully represent. Now, I think we understand that you can't have both of those things. If you want to be genuinely involved in negotiations, then negotiations involve compromise, and once you've agreed on them, you've all got to stand behind the position that you've agreed, and you can't articulate separate positions outside that room. If you're not in the room and you're not part of the negotiating mandate, then you can say what you like, but we understand that there are compromises that you make in the method that we suggest, and I think the UK Government may not have complete confidence that everybody is in that same position.

More significantly, though, I don't think all UK Ministers are in the same position as I've just described. I think there are some UK Ministers who believe these are non-devolved responsibilities, there's no space for devolved administrations to be in the room, they're reserved matters, they will do it, they will negotiate and they will use section 82 powers to insist that we implement what they have negotiated, even if we don't agree with it. Now, we are working as hard as we can to avoid that eventuality, because we can see why that would be a very bad place to have arrived at, but I'm not sure that that view is universally shared across Whitehall. The good people, the people who are engaged, I think do understand; not everybody does.

13:40

That's a very interesting answer, if I may say. I think it's candid and genuinely helps us in our scrutiny of this work. So, if we look at section 82 of the 2006 Act, that is there to resolve situations that have not been reconcilable for whatever reason, and any state Government has to be able to honour international treaties it enters. Federal countries all around the world would have a similar mechanism to that, which they'd rather not use, but they can use. So, in raising your concern about that section, it's more because earlier along the pipeline, you feel the culture may be changing and therefore you're also concerned about the practical use of section 82, rather than section 82 being, in its own distinct way, problematic. Is that fair?

I think that's broadly fair. I think it's important to recognise that section 82 was drawn up in a pre-Brexit era and so some of the things we are debating today were never in anybody's mind. So, I do think, in the longer run, it is quite important to revisit section 82 and to see whether it is fit for the new circumstances, but I think that is slightly in the medium term. Our focus in the short run is on doing all those things earlier in the process that avoid you getting to a section 82 imposition. Because we think that would be a very bad way in which to resolve these things, and the sensible voices in the UK Government don't rely on section 82; they don't come into the room and put a revolver on the table and say, 'Well, if you don't agree, don't forget we've got a revolver sitting here'—they know that that's not the right way to do things. But as I say, not everybody has quite the same grasp of that. Des—it will come on automatically.

Thank you. If I could just add, I think over 20 years of devolution so far, we've not been really troubled by the UK Government signing international agreements, because, other than within the European Union context, they have not signed international agreements that had a bearing on our devolved powers, and, clearly, we're moving into very new territory. I think that Switzerland, for example—you'll have deliberated on Switzerland in this committee before now—regulates its set of relationships with the European Union through, I think, around about 120 international agreements, and if the UK were to go into a similar direction, then, clearly, very many of those agreements have a very direct bearing on the competencies of this Assembly and the Welsh Government. 

And what I would, just finally, say is, I think if we shared—. When you say, 'Surely, the UK Government will agree to continue the same set of principles outside of the European Union that they have applied to working with us within the European Union, if we shared your confidence on that 100 per cent, I think we'd be considerably less anxious than we are. Plainly, we don't have that confidence 100 per cent. 

But the ways of working that we have developed over 20 years, which the First Minister has referred to and have involved others in this room, have worked well for the Welsh Government and have worked well for the UK Government. We have always recognised the principle, which I think you referred to, that at the point of negotiation, there can only be one voice for the United Kingdom, whether that voice is a UK Government set of vocal chords or a devolved administration set of vocal chords, speaking on behalf of the UK as a whole. We absolutely recognise that principle. And, over 20 years within the European Union, we have developed ways of working within the UK system that provides satisfaction in respect of our interests and we are really looking to replicate that in the new circumstances. 

13:45

Some of these concerns were raised in the Chamber, when I think my esteemed colleague here, Delyth Jewell, asked Eluned Morgan about this issue—if there was a US-UK free trade agreement, whether we would have to open up the NHS to the private sector, which would include American firms. I was certainly taken aback because Eluned Morgan more or less just said 'yes' to that—that it could be imposed. Now, I have to say my understanding is that no international agreement could do that to our powers over the NHS. All it could possibly do, it seems to me, is that, should we decide to open up the NHS to the private sector more than we do and to issue contracts, potentially they would have to be open to US firms. But it would still leave the primary decision with us. Now, have I just been far too sanguine in my interpretation?

Well, I think it's possible to take a less benign interpretation of section 82, that a Secretary of State could instruct the devolved legislature and Ministers to implement a trade deal that they have struck. And if that trade deal involved the sale of the NHS, then there is a line of argument that says that we could be obliged to be part of that. I think Eluned went on to make it clear that we would resist that—whatever actions we could take we would take to resist that, because insisting that a devolved authority implements policies that are entirely opposed by the democratic body that gives you the authority in the first place is not a sensible place to have ended up. So, there are interpretations that suggest that efforts could be made to oblige you to do things that you had not agreed to, and I think we are saying, particularly in that most vivid example about the NHS, that any attempt to do that will be resisted by the Welsh Government, using whatever avenues we could find to resist it. 

I'm not quite sure I share the depth of your anxiety in that particular example, but we want clarity, I think we can all agree, on that. Can I just go to other areas, perhaps—

Before you move to the other areas, Alun— [Inaudible.]—on this area. 

Thank you. I'm grateful to you, First Minister, for your analysis of the inter-governmental relations, which was very helpful to us. Last week, the Prime Minister announced a review of devolution. Perhaps you could inform the committee, First Minister, when you first heard of that and of the Welsh Government's involvement in drawing up the terms of reference. 

Chair, we first heard of it when the speech was announced, and we had no prior discussion with the Prime Minister about the content of that speech at all.

None at all. Okay. You will have heard, as I did, on news media over the weekend that a Conservative hustings meeting for the Conservative leadership was held in Cardiff on Saturday, where one of the contenders, Boris Johnson, said, and I quote from media reports of what he said:

'There will be the full allocation of funds for Wales'—

former EU funds—and he went on to say,

'I think there may be some question about how exactly that money is dispensed, or by whom. I would want to make sure there was a strong Conservative influence on the expenditure of that £350 million [per year], or whatever the sum is'.

Is that a part of the conversations that you're having with the UK Government at the moment? 

13:50

It forms part of the shared prosperity fund, which this committee has extensively explored and come to some conclusions about. So, the position will be entirely unacceptable to the Welsh Government and, I imagine, it will be entirely unacceptable to the National Assembly for Wales if it was put to a vote here. So, good to have confirmation that the money in full will come to us, if that is what that is, because we've never had that confirmed by any UK Minister up until now. But we have always said, 'Not a penny lost, not a power stolen', and while the penny lost may be helped by that statement, the power stolen is certainly not. These are powers that have been devolved to the National Assembly for 20 years. So, Mr Johnson's assertion could only mean a reduction in devolved competence, and a reduction in devolved competence to a political party, as he puts it, that has never won a majority for anything in Wales.

So, we are the democratically elected forum for Welsh people, and currently those are our responsibilities. It would be entirely wrong for those to be taken away from the National Assembly, and particularly for them to be taken away on some sort of party political basis—that a party has an interest in controlling the way in which those decisions will be made here. So, it's democratically offensive to me the way that that was put, and it unfortunately fulfills some of the fears that we have had about some of the thinking that lies behind the shared prosperity fund. 

First Minister, your interpretation is very similar to mine. We may be generous to Boris Johnson and suggest that Conservative influence might mean that they will seek to win a Welsh election, but it appears to me that he could have said, 'UK Government supervision or 'UK Government intervention'. He didn't; he said 'Conservative', which is an interesting differential to make. But there have been no conversations between the Welsh and the United Kingdom Governments about any diminution in the powers available, and no UK Government representative either at official level or at ministerial level has sought to secure the views of the Welsh Government on a reduction in powers in this area.  

Maybe I should separate two things. There were no discussions at all about Mrs May's speech, and there were some aspects of Mrs May's speech that, in a broad sense, we would welcome. But on the specifics of the shared prosperity fund, of course, we've had a series of discussions with a series of UK Ministers in which we set out every time the policy position I've just outlined. It's shared by the Scottish Government entirely. It's shared, as you know, by many others; the all-party parliamentary group report on the shared prosperity fund reflects our position on that entirely. The recent report by the Federation of Small Businesses on the shared prosperity fund reflects our position entirely. So, there'll be many opportunities for us to put these points to UK Ministers. I've never seen the response formulated in the way that Mr Johnson is reported as having formulated it.   

On the specific issue we talked about earlier, because we're not going to be able to—

Yes, it is. Thanks, Chair. I just want to return to something that Des Clifford mentioned earlier on about the UK speaking with one voice in international discussions, international agreements, sometimes international negotiations. And I just wanted to test, going forward, based on where we are with devolution currently, but also where Brexit takes us, whether you see a situation where that UK voice is actually a Welsh Minister, as appropriate.

I do, Chair, because it would reflect the way in which, as David Melding said, arrangements within the European Union have been conducted. It has been, at various times, quite ordinary, for example, for a Scottish Minister to speak on fisheries matters when these are being agreed as the UK position. Jane Davidson, when she was the education Minister, very early on in devolution, took the lead in youth service matters when these were being discussed at a European level, and she represented the UK's position in those discussions. So, there's a long history of devolved Ministers, in the way that Alun put it, being the vocal chords for the United Kingdom's position when this has been agreed between the devolved administrations and the UK Government. I see no reason at all why that shouldn't continue to be the position when a particular devolved administration has a particularly strong interest or a particularly strong track record in a policy area that was being discussed now as part of international negotiations.

13:55

I'll just return to this issue of the shared prosperity fund. Presumably, you don't object to a shared prosperity fund agreeing—the devolved Governments and the UK Government—the range of principles that programmes have to operate under in the shared prosperity fund, and then the UK Government having some role analogous to the European Commission in ensuring that projects meet those agreed criteria. After all, we are looking to the future, trying to ensure that substantial sums of money outside the block grant allocation will be provided by the Treasury to make a UK prosperity fund effective. So, there is a way of seeing some element of governance that is co-ordinated at Whitehall, that's not been dramatically anti-devolution, because you'd have to argue the EU acts in that way now, and it doesn't in my view. 

I think there are two different components to that question. The UK Government, in agreement with devolved administrations, setting out some broad purposes and parameters for our fund—I can see how that could be done in an agreed and non-objectionable way. I couldn't sign up to the proposition that the UK Government would have a role in adjudicating upon whether or not one of the administrations had discharged spending in line with those principles—the UK Government for this purpose will be the English Government—because there will be shared prosperity funds being spent in England. Why should one party to those arrangements have the ability to be the judge and jury on those matters?

So, we've had lots of discussions, and it was, to be fair, reflected in what David Lidington said when he published the principles about a set of adjudication arrangements that would not give all the power and responsibility to one player around the table, where there will be some independence in those review arrangements, where you will be able to go beyond the players around the table to get a view of these things.

So, I'm not opposed to there being a way of making sure that if money is given to any part of the United Kingdom for a set of agreed purposes, that there is oversight of that. The primary oversight for Wales would lie here in the National Assembly, and Ministers will be accountable to the National Assembly for the discharge of those responsibilities. But when there are things that go beyond a single administration, oversight arrangements cannot be—. The United Kingdom Government [correction: cannot be by the United Kingdom Government, it] cannot go on believing that it is judge and jury in all these things. That simply will not work. 

Thank you, Chair. First Minister, you've referred to the principles that were published last week, looking at future workings inter-governmental—of how the Governments will work together in the future. They were drafted by your Government. They look at maintaining positive and constructive relations, mutual respect and building trust. On the same day that they were published, the Prime Minister announced a review of devolution, and you've told us this afternoon that she did so without prior consultation with your Government. Do you think, then, that these principles that took a year and a half to draft were broken by the UK Government on the very first day that they were published?

I think we have a sense of disappointment that we weren't in a position to contribute to the Prime Minister's review, because we think we could have helped to make sure that the review focused on the right issues. We felt we would have made a constructive contribution as we do, and we think we could have helped to make sure that the review she has established looked at the right issues and focuses attention on those things that matter the most. So, there was a missed opportunity there.

David, in his very first question, said that the history has been, where we want things to work—and we always welcome things when they do, and then we have setbacks when things don't live up to the ambitions that we've set—our history of the JMC has been it not living up to the terms of reference that were agreed for it. Nevertheless, our view is always you learn from these things and you try and explain to other colleagues why things need to be done better the next time.

14:00

Thank you, First Minister, but you'll appreciate the irony that that review was announced on the same day of the publication of the principles, I take it.

The review of inter-governmental relations is going to be chaired by Lord Dunlop, and he was a part of Margaret Thatcher's policy unit when the poll tax was introduced. Do you have faith in how he will chair the review?

I think it's important to be clear about what he has been asked to chair. So, he’s not been asked to chair anything at all to do with the devolved responsibilities that come to Scotland or to Wales—that's completely outside his scope. He's meant to be looking at ways in which Whitehall can be better geared to deal with devolved administrations and the devolved settlement. And, in that sense, I think there is a proper job for him to do, because, as we've already said this afternoon, there are parts of Whitehall that have a decent grasp of what devolution means, and there are parts of Whitehall that are much further away from that. So, I don't quarrel with the remit, although I think we could have helped to shape it better. We've all got individual histories, and Lord Dunlop's more recent history has been more in the devolved field, so let's hope that he comes to the job in an open-minded way, and genuinely focused on making sure that Whitehall understands devolution better and is better equipped to make sure that the system we have works effectively.

Thank you, First Minister. A few of my colleagues from different parties have referred to the developments that have happened in inter-governmental relations since you last gave evidence to our committee: we've seen the draft principles that your Government have drafted published and broken on the same day; you were refused access to a ministerial car when you last visited Brussels; the Secretary of State for Wales has accused you of scaremongering over a 'no deal' Brexit; and, as has been referred to already, Boris Johnson, who is likely to be our next Prime Minister, has said that there will need to be strong Conservative influence over how the shared prosperity fund is spent, and that's clearly quite a threat to undermine devolution. First Minister, what word would you use to describe the current state of affairs and the relationship between the UK Government and Welsh Government?

It's difficult to pin down just a single word for it. If I was to give you my most fearful word—but this is at one end of the spectrum; I’ll give you a word at the other end of the spectrum as well—then I would say, 'precarious'. 'Precarious' because we are in the middle of a leadership election where we don't know what an incoming Prime Minister will bring to the table in relation to the future of a devolved United Kingdom and we don't know the extent to which an incoming Prime Minister will live up to some of the things that Mrs May set out in her speech in Scotland, because there were things, as I said, in that speech that we welcomed. We welcome the fact that she regards devolution as an entrenched part of the British constitution. We welcome the fact that she refers to relations being conducted on the basis of respect and the United Kingdom as a voluntary association—a voluntary association of four nations where people can choose other futures for themselves if they choose to do it. I thought all of that was more explicitly set out in the Prime Minister’s speech than I can remember any previous Conservative Prime Minister setting them out in that way. And there are those who believe—different views will be available—that the Prime Minister made that speech in order to try to nail down some of the things that have been secured during the time that she has been Prime Minister in the way that we've had some positive developments in devolution, like the inter-governmental agreement and so on, and to make sure that her successor cannot easily row back from some of those ways of doing things. Now, I said 'precarious' because she won't be there when her own review reports, and she won't be there to live up to some of the things in her speech that we welcomed.

But, if I give you the word at the other end of the spectrum, then, when things are working at their best, I think our relations with the UK Government are constructive and engaged, and that there are examples of individual Ministers and new forums that have been established where we have that better end of the spectrum.

14:05

Thank you, First Minister. To use the first word that you'd given me, then, 'precarious', I respect that you lead a unionist Government and that is your stance. Obviously, from a party political perspective I'll disagree with that, but I'm not here representing my party; I'm representing the committee. But, looking at the precarious situation of inter-governmental relations at the moment, could I ask you whether there would be any conditions or any situation in which you think that you would believe that the union was not benefiting Wales, or would your support as a Government for the union be unconditional?

Well, Llywydd, I lead a devolutionist Government—. 

We are completely committed to a strong devolution settlement in which things that affect people in Wales only are determined only by people who live in Wales, and that is the defining characteristic of this Government: it is a committed devolutionist Government. But we also believe that Wales's future is better secured in a successful United Kingdom, and that's why we put such efforts into trying to find ways in which the UK can continue to be a successful state the other side of the European Union. There are many challenges to that, but our efforts are always directed towards continuing to find ways in which Wales can benefit, as we believe Wales does hugely, from that wider insurance policy that being a member of the United Kingdom provides to us. And I don't envisage—. I don't look at all for the day when that will not be the case, because I'm committed to making sure that it goes on being the case.

Thank you, First Minister. So, just to press you on that point, it would be unconditional, then—your Government's support for remaining part of the union. I'm asking because of the precarious—again, to use your word—relationship at the moment between Governments and the fact that, as the Prime Minister has said, it is a voluntary association.

Well, let me try and answer the question in this way, Chair. If you believe that the UK is a voluntary association of four nations, you have to face the possibility that some component parts of the United Kingdom may no longer choose to be part of it. If that were to be the case in future, then of course any sensible political party or Government would have to reassess Wales's place in the components that were there in the future. So, in that sense, it can't possibly be unconditional, because there are other moving parts here, of which we are not in control. But the more important point, the far more important point than the hypothetical and theoretical possibility, is the way we use our powers now and the purpose for which we use them. And, just to say again, the powers that this Government has and the way we use them is to make sure that Wales is able to go on being a place where devolution is practiced to the greatest extent within a United Kingdom that continues to be successful and therefore offer Wales all the advantages we believe we currently enjoy through membership of the United Kingdom.

Thank you, First Minister. So, if inter-governmental relations were to—. If they were to deteriorate under a future Prime Minister, there would be some potential where you would believe, and your Government would believe, that the union would no longer benefit Wales.

Well, my answer was to a different hypothetical question. I was answering a question that was about Wales's position in a future United Kingdom in which the United Kingdom doesn't look like it does today, and that was my answer, and I think that is a different hypothetical.

Yes, I think this scrutiny session is turning more into an academic seminar, and I'm not convinced I'm going to help matters now. I'm interested in the exchange and the response and the conversations taking place. You've used 'precarious', 'constructive' and 'engaged' to describe the relationship at different times. I think I could use all those three words to discuss the relationship at the same time on some occasions in the past. But would you agree that sometimes there's too much reliance on goodwill in the relationship, that a strong, robust relationship is strong enough and robust enough to get through the bad times and not just the good times? I share—. I think I detected some frustration in your voice when you described the speech that the Prime Minister made last week, that she'd gone so far in some areas and then not quite crossed the line in others. I think I would—. If that is frustration I sense in your voice, I think I would share that, in a very good analysis but the wrong prescription at the end of it, because would you agree that the future of the UK lies not in the reliance on goodwill between individual Ministers or the appointment of individual Ministers but in robust inter-governmental relationships that are rooted in respect, not for devolved administration but devolved Government and the governance of the United Kingdom taking place at different places on different matters and different issues, each one of which is interrelated in some way? So, an international agreement on trade would have an implication for a manufacturing strategy, for example, being pursued by the Welsh Government, not simply the more politically difficult issues of health, but a training strategy for Welsh Government as well—lots of different matters. So, if the United Kingdom is to succeed in a way that we would want it to succeed, then surely it requires inter-governmentalism and not simply a reliance on individual chemistry.

14:10

I entirely agree with that. I think it sets out very clearly the position that the Welsh Government has pursued over a number of years now. The previous First Minister, Carwyn Jones, set out those those arguments very clearly when he made some practical proposals of the ways in which machinery of Government could be established that went beyond goodwill. I want good relations. I believe in trying to build up trust, but I don't believe in relying on that as the basis for a constitutional settlement. Others have set out in detail other prescriptions for the way in which codification could take place.

I think the arguments that Alun Davies has set out are very important because, if the UK is going to go on being a success, we've relied in many areas on a European rulebook, to which we have been able to make an appeal when we disagree with the way that others interpret it, because there is a book of rules that you can go to, and the United Kingdom will need a similar approach. There will need to be codification of the way we work together. That will need to be publicly available so that legislatures can scrutinise the way in which those agreements are being discharged. And, when there is dispute between any of the parties, there has to be some independence in the way that those disputes are adjudicated. And we've set all of those things out, and we have generally, Chair—I've said this, I know, before in the committee—struggled to get interest and attention for those arguments from other component parts of the United Kingdom.

Now, there's been an upswing of interest in the union during the Conservative leadership election and, to that extent, it's good to know that the debate is happening. But the terms of that debate are pretty far from the terms that we have set out, which rely much more on the sort of arguments that Alun has articulated.

Thank you, Chair. The final question I wanted to ask you was whether you had given any thought, First Minister, to commissioning a review of the various constitutional options that could be available to Wales in light of these shifting sands to do with the future of inter-governmental relations, the future of the union, because I know that the Scottish Government are looking at doing that at the moment on a cross-party basis.

Well, we haven't thought of doing it unilaterally, in the sense of just doing it as a Welsh Government, and there is a lot of raw material to draw on for such a review—as I said, some of it generated around the table here. What we have been calling for is a form of constitutional convention, in which all the component parts of the United Kingdom get round the table together. I've no doubt that an exercise of the sort that Delyth has described will be a necessary baseline for such a constitutional convention to operate, knowing what all the different options are and the debates that lie behind them, but I think it would in the end be a more fruitful baseline if it was a shared baseline or at least a baseline in which all the people who, in the end, have to agree on a way forward had had a chance to make their contribution to that baseline, rather than there being a Scottish baseline and a Welsh baseline and a UK baseline, which end up competing with one another.

I want to move on now, First Minister, to some questions on negotiations. Clearly, Donald Tusk reminded us, when the extension was granted to October 31, to use the time wisely. Well, the UK Government is in limbo, effectively, because of the current situation of the Prime Minister having resigned the leadership of the Conservative Party, and therefore resigning as the Prime Minister in a short while. But have you used the time wisely is the question I want to ask; what have you been doing in that time to build relationships up for Wales, particularly perhaps with both the outgoing Commission staff, but also, perhaps, now that you've identified your plans, with the incoming Commission staff?

14:15

Chair, I think we've continued to build on the good relations that we have had with the current incumbents of important positions at the European Union level. I was in Brussels just a couple of weeks ago. I met the Secretary-General of the European Parliament and I met Michel Barnier, as well as other meetings that day, and those meetings built on a series of meetings that Wales has had with those key players, including meetings that this committee has had with Michel Barnier, which were referred to by him in the meeting that I had with him. 

I've written to the new President of the European Parliament, just congratulating him on his election and saying that I look forward to an opportunity to meet with him as well. There'll be an emerging team now, won't there, that will be put forward, and the European Parliament will have a role in scrutinising or approving or otherwise those names. We will draw on the relationships we already have at the Parliament and at the Commission and use those as a basis to form new relationships with important players as the names emerge. 

So, just to confirm, you have intentions of continuing your relationships with the incoming Commission President and whoever it is who replaces Michel Barnier's position, effectively, as the time moves forward. 

We will want to do that whatever the outcome of Brexit may be. Some of these people may be in place while Brexit is still in play. Even if the United Kingdom leaves the European Union, there will be a legacy beyond our membership that will be important to Wales. One of the discussions I had, not at this last visit to Brussels, but a previous one, was with the Director-General of the part of the European Union that deals with structural funds, and he said to me, 'I really hope that Wales will still be willing to come and be part of the discussions about the way this round of structural funds has been deployed, because you have always been a part of the European Union that is prepared to come and offer lessons as well as to learn lessons from other people, and we hope that, even if you're not part of the European Union, Wales will still be part of those post-EU discussions'. And if we're going to play that part, which we would want to, then forming those relationships will help to make that happen. 

Diolch, Gadeirydd. Good afternoon, First Minister. Carrying on with the negotiation part, the First Minister has been in post now for six months, so can you comment on the effectiveness of the new Brexit-related ministerial posts created when you first came into Government?

Thank you for that. Chair, when I was in the position of forming an administration just before Christmas, there were two things that I was trying to balance. I wanted to leave in position people who were already discharging very significant responsibilities that had a Brexit relationship. So, Lesley in her responsibilities in agriculture—there's a huge amount going on there, and I thought continuity was very important there. Vaughan has continued to do that in the health field as well. So, there were important continuity reasons for asking some people in key positions to carry on. And then I wanted to strengthen our Brexit activities in two other ways. One was by asking Jeremy Miles to be the Brexit Minister as well as Counsel General, and I think that has worked very well. I think putting those two things together has helped as well, because lots of Brexit issues have a very important 'the way the law works' component to them, and Jeremy brings a very clear mind to all of that. But I've also been really conscious that in the difficult circumstances that I think Brexit creates, we have to work even harder in future to make sure that the world knows that Wales remains a place that is open to the world, welcoming of people from elsewhere and determined to go on being somewhere that is engaged beyond our own boundaries, and creating a Minister for international relations, which—. I think if you had said that 20 years ago, when devolution was first getting off the ground—that within 20 years you'd have a Minister for international relations—that would have looked very unlikely. But Eluned's job has been to make sure that those messages about the sort of place Wales is and the sort of relations we want to have with the rest of the world, that that's given real prominence, and I think that that has been successful as well. We have had a huge increase in the last six months of visits to Wales from people from elsewhere interested in our views on things, and interested to learn about our plans for the future. I think even just last week we had visits from the ambassador from Romania, which was particularly interesting given that Romania has had the presidency of the European Union for the last six months, the ambassador for Peru, the ambassadors—I think they're not called ambassadors—from Bangladesh and Tanzania—

14:20

—high commissioners—were both here. The United States ambassador was here last week.

There's a Basque delegation.

There's a Basque delegation this week. We will have ambassadors from Austria and from New Zealand here before the end of term. And part of that, I think, is because they see there is a Minister for international relations and the signal that that sends out about Wales wanting to keep our profile in the world in the place where I think the National Assembly would want it to be. So, it's early days—six months is not that long—but, in terms of continuity in important posts and new possibilities, I'm pleased with the way that things have worked so far.

Thank you. And, in the next few weeks, we'll have a new Conservative leader, who will probably be the next Prime Minister, so to what extent, with all this going on, has it been possible to make progress on key Brexit issues, related issues, given the uncertainty surrounding policy and so on?

Well, part of the reason why I answered Delyth's question by saying that there's some precariousness in the relationship is because it hasn't been possible, by and large, to make progress on lots of very important issues. That has been the case for some time, really. The UK Government, as I've said in this committee before, Chair, seems to me to have been overwhelmed by Brexit, that its ability to do other things has been badly compromised by the amount of effort that it has had to devote to dealing with the Brexit issue, and, with the retirement of one Prime Minister and the election of another, then the ability to make genuine progress on a whole range of issues has been, in my experience, at a standstill. Go on—Des will give you more.

It might just be worth adding, Chair, if I may, that the two previous Prime Ministers, that's to say Mrs May and Mr Cameron, made it a top priority to visit each of the devolved administrations within days of taking office. Literally, I think David Cameron, if I remember rightly, came the second day in office, or third day in office—it was very early on. It'll be interesting to see if the new Prime Minister decides to prioritise devolved administrations in the same way.

Because in that—. Sorry. But, in that way, trying to mark some of the progress that there has been, as well as some of the precariousness, on the day that Mrs May lost her first vote on her deal with the European Union, which must have been a gruelling day—she was on her feet in the House of Commons for I don't know how many hours answering questions, and then a heavy defeat at the end of it—later that evening she phoned the First Ministers of both Scotland and Wales.

Now, I don't think that the United Kingdom would have operated in that way not that long ago, where the Prime Minister would have felt that, on the top of the list of people that she needed to have immediate communication with would be the leaders of the devolved administrations. And, in that way, and in the way that Mrs May sets out in her speech in Edinburgh, I think there has been some greater recognition, while she has been Prime Minister, of the parity of participation and esteem that you need to have if you're going to make the United Kingdom work. Let us see if it continues beyond.

14:25

That's a positive contribution. Looking at it in an ideal world, how would you have liked to have seen the improvement of negotiations between the Welsh Government and the UK Government proceed?

Well, we have argued for a series of ways in which the current system could be made to work better, and I've just mentioned a couple of those principles—that when we get around the table together, it should be on the basis of parity of participation. Why is it that only a UK Minister can ever chair any of the forums that we have developed? We're glad to see them develop, but why is it only the UK Government that is ever in the chair? Why is it only ever the UK Government that can set the agenda? Why is it only ever the UK Government that can decide the papers that are presented, or indeed present papers? Why is it only ever the UK Government that produces the minutes of those meetings? That's not parity of participation in my view. So, if the JMC were to meet in Scotland, for example, I see no reason why the Scottish Minister shouldn't be in the chair for that meeting and why the Scottish Government couldn't take responsibility for all the complex administration that goes into making that meeting happen. That would be parity of participation. In a sensible world you have got to recognise that if you are a nation of 3 million people and there are other people around the table who are more than twice your size in the case of Scotland, and, I don't know, is it 20 times our size in the case of England, then there are some power differentials that you've got to recognise in that. But that's different from saying that there isn't parity of participation and parity of an ability to make a contribution. So, we've set out practical ways in which we can move more into that space and that, I think, would have made the negotiations different and better. 

The British-Irish Council.

The British-Irish Council is a good example of that, where not just Wales and Scotland but the Isle of Man and Guernsey and Jersey sit as equal participants, and when the meeting is in the Isle of Man, it's the Government of the Isle of Man that takes responsibility for organising the agenda, chairing the meeting, all of those sorts of things. So, there are models.

And it has an independent secretariat. So the secretariat of the British-Irish Council works neither for the UK Government nor the devolved; it is a joint enterprise and kind of independent of all the Governments. 

It is. There are a set of those ways that we have published and tried to promote when we have these discussions.

Okay. So leading on, can I ask what contact you have had with the two Conservative candidates for the leadership contest? 

Personally, I've had no contact with either of them during the leadership election period, nor would I necessarily expect to—I'm not part of the selectorate to which their efforts are devoted—and I don't think we've had any governmental contact with either of their teams. Over the longer run, it's probably true that we've had more contact with one of the candidates, Jeremy Hunt, as a health Secretary—inevitably there was more contact with him; I think there's been very little contact with his opponent in that election.

Yes, because they are two very different personalities, so I was just wondering if you'd had any contact. So, obviously, you need to prepare for Brexit. So how will you work with the next leader to sort of gather intelligence and work together to bring about the best possible outcome for Wales?

Well, Chair, let me put it in this way: whoever is elected, the Welsh Government will always see it as our responsibility to work with that person to make sure that the views and the priorities of Wales are articulated to them as effectively as we can. So, you know, whatever our views might be of any individual, there are institutional relationships between Governments and our job is to work as hard as we can at those. It's why we said in the letter that Jeremy Miles signed with the Scottish Government that an early meeting of the JMC plenary needs to be called. The United Kingdom is more than a series of bilateral relationships. If the new Prime Minister chooses to make contact with Wales early on, well that will be a good sign. But it's more than a series of conversations between a Prime Minister and individual other administrations. There is a collective responsibility to get all the component parts around the table together. We will be calling for a JMC plenary as soon as it is feasible to have one, and that then becomes a place where we can make sure that the things that we would say here—. For example, Chair, as you would expect, I would take whatever opportunity I had to make it clear to an incoming Prime Minister that leaving the European Union without a deal is absolutely not right for Wales. And whatever opportunities come our way, I will be there to make that point on behalf of the Welsh Government, and, as I've also said here before, knowing that that is the position of the National Assembly for Wales, being able to articulate that on behalf of the Assembly as well. 

14:30

In the hope that they do actually meet very early on, the new Prime Minister, and they have that first JMC plenary, would you see it as critical to have on that agenda some discussion around those machinery-of-government changes that you want to see, or would you say, 'Well, let's knock that to 12 months down the line when we've got rid of Brexit and all those tricky awkward things'? 

No, I think it will be essential to have that on the agenda, because it is JMC plenary business. It was the JMC plenary that set that work in motion. It has to report back. Otherwise, it's in a vacuum. Therefore, it's absolutely essential that it is on the agenda. 

Can I just confirm—? You've talked very often about the bilateral type of approaches. Would you be—? At what point would you turn around and say, 'We've had enough bilateral; we need a more JMC plenary-type approach, in common with Scottish Government and Northern Ireland representation', to ensure that it isn't all bilateral?

Well, I think it's absolutely essential to have both, Chair. There are good reasons for bilateral meetings as well. There are some things that will be important to the Scottish Government that don't apply here, and it's right that there are forums in which those bilateral issues can be pursued. But I'm always as clear as I can be with the UK Government that the UK is more than a set of bilateral relationships and, therefore, as well as those meetings where you can talk about things that are specific to Northern Ireland or Wales or Scotland, we've also got to have a forum where we talk about the things that are common between us. And once or twice I've been anxious that the UK Government is reluctant to convene those forums, finding it easier to manage the devolved administrations by keeping us apart. Now, maybe that's an unworthy fear, but it has occurred to me occasionally, and that's why I always say we've got to have both, working together. 

So, could you share, First Minister, with the committee what your thoughts are based on the current programme within the JMC, but also your thoughts on when the backstop date would be when this stuff has to be done by the next Prime Minister—when there has to be agreement that we have a different way of working? 

Well, the most crucial date in the diary has always seemed to me to be the point at which we leave the European Union. Now, if we leave the European Union with a deal and with a transition period and all the things that we were trying to argue for in 'Securing Wales' Future', then that would give us a further period in which we could have purposeful discussion of all these things. Now, we've never had purposeful discussion of them, because other people have been too preoccupied by other things. And the Scottish Government—just to be clear about it—who I think have played a constructive part in all of this, their political mandate is to take Scotland out of the United Kingdom. So, there is a bit of a limit to the extent to which they are going to commit themselves wholeheartedly to discussions about the UK's future when they have a political mandate to do something different. 

So, in that scenario we have a little bit of time to continue the discussion and put the right things in place. And if we don't—. 

Well, if we don't, then we leave within a matter of weeks from now without a deal of any sort. At that point, unfortunately, the need for proper inter-governmental machinery will be even more urgent. But the distraction from focusing on that will be even more difficult as well, because a United Kingdom that is having to cope with everything that will happen in a 'no deal' Brexit is not a United Kingdom that's going to have a great deal of spare capacity to be thinking about other things, even though they will be more urgent in those circumstances. 

14:35

You've clearly said—sorry, Chair. You've clearly said that you have people like David Lidington, who clearly understands the complexities of this and the imperatives and the time imperatives behind it as well, but we'll have a new Prime Minister—both of whom, I'm sure, have immense capabilities in different ways but will have not been fully sighted on the necessity for what could seem to others outside here as this arcane discussion around inter-governmental machinery and how crucial it is to actually, as a strong devolutionist yourself—but making sure that the union works as well. Does that worry you?

Well, of course, both candidates would have a great deal to learn and time to make up. People who take this view—I mentioned earlier the view that Mrs May's speech was about laying down a series of lines that emerged from her conduct of these matters to make sure that her successors understand those things. But, in both cases, there will be a lot of catching up to do in that way. There'll be a lot to draw on. There'll be people who've been involved in these things all along at official level, and some of these contacts have been very intense and detailed, but, as individuals, yes, there will be a lot to learn.

But is that worrying? Because both candidates have been members of the Cabinet for at least two years, both should, therefore, be familiar with devolution and the responsibilities and relationships that exist in that—particularly Jeremy Hunt because he was the health Secretary—so is it worrying that you still feel that there is a lot they have to learn in this situation? Because I would have hoped that the time they'd spent as Cabinet members, the time they spent in Government and the time they're spending going around the country would have actually made them realise the challenges of devolution and how to ensure that we work as a union.

Well, I think I said earlier, Chair, that one of the two candidates does at least have a background in ministerial office in which devolved issues would have crossed his desk, and he would have had to have thought about that. I don't know how much being foreign Secretary involves you being drawn into those matters, and the Foreign Secretary has never been part of the machinery that we've been describing here. He's never been on the JMC(EN), for example. He's not part of any of the inter-ministerial groups that we've just described. The health Secretary is, the Department of International Trade Secretary of State is, and so on. Foreign Secretary—that particular job has never been represented around the table.

First Minister, I'm genuinely fearful of the consequences of a 'no deal' departure. To say the least, we'll be jumping into the dark, and I suspect Wales will be hit disproportionately heavily, but the whole of the United Kingdom will suffer possibly grave economic and political consequences. I find myself, as a Conservative Member, in genuine agreement with Stephen Kinnock, who says that the time has come now for the Labour Party to back the withdrawal Bill, which, in its latter stages and as the votes were in succession held, contained many concessions to the Labour Party. In fact, you argued for some of these when you were the finance Minister, and we talked about the actual withdrawal agreement and the political agreement and, I thought, established as much consensus between us as it was possible to do at that time. But do you think the time has come for you to act now, unambiguously, in the national interest and call for your party to support the withdrawal agreement? Otherwise, we have no deal.

Well, Chair, I don't want, for a minute, to dismiss the force of those arguments, because I think they are real, but I've come to a different conclusion, which is that the realistic prospects of doing a deal of the sort that we advocated have just evaporated to the point where they no longer exist. We could go over the history of it and I could tell you again of my belief that, had the Prime Minister moved in that direction early after the referendum, then there was something that might have been craftable. But the Prime Minister spent the bulk of her time that she had arguing for a much harder form of Brexit—'Brexit means Brexit', 'Here are my red lines', all of that—and by the time she came to look for consensus and to see whether a deal was doable with another party, the political mood had moved beyond where that was possible. So, I hear the arguments for it; I just don't think that there is a deal—certainly not the deal that Mrs May struck—that can be put in front of the House of Commons and succeed. While the arguments for it can be made in the way that David has made them, I have come to the conclusion—and I certainly come to the conclusion in the context of the current Conservative Party election contest, where the talk is not at all about that sort of deal but all about leaving without a deal—I just don't see whether political room for manoeuvre exists. And that's why I came to the conclusion back in May that as that possibility, which we worked very hard to keep alive and tried to promote and so on—with that having evaporated, the answer can only be to put this issue back to the people who made the decision in the first place, now with all the information that they will have had three years later about the choices available to them. And, again, as I always say, for the avoidance of doubt, the Welsh Government, in those circumstances, would campaign to remain in the European Union and work with others to do that.

14:40

Thank you. Whilst I welcome David's support for my parliamentary colleague in Aberavon, I just remind him that, actually, he was asking for support of the withdrawal agreement Bill that allowed amendments to be made within that Bill per se, and not necessarily agreement as it was.

I'll move on to legislation now, if I can, and that's Huw.

And that brings us quite neatly, actually, to the much easier, less complex area of legislation. We may as well, actually, start with the issue of a withdrawal Bill. From what you're saying, First Minister, can I assume that, for the moment, you have scaled down, diminished, stopped any planning for a possible future introduction of a withdrawal Bill between now and 31 October?

Well, Chair, as a Government, we continue to work on three potential scenarios: that we leave the European without a deal, and because that has become more urgent, I think the majority of our day-to-day efforts are now focused on that; that we might still leave with a deal, although, the chances of that, I think, have diminished. We have in the bank, as it were, all the work that we did on the prospective withdrawal Bill that would have followed, had Mrs May succeeded in getting her deal through the House of Commons, and there was a lot of work that went on at official level, particularly, and at ministerial level, to an extent. So, if that possibility revives, we will be able to draw on all of that. Or, of course, the third possibility is that we don't leave the European Union at all.

Yes. Are your officials engaged with Whitehall at the moment on anticipating what, if anything, an amended withdrawal deal from a Boris Johnson premier or a Hunt premier would look like—what the nuances would be, what changes there would they be, and how, both in Wales and in Whitehall, they anticipate this and start drafting those?

I don't think that there are a sufficiently developed set of ideas from either of those leadership candidates as to what the changes to the deal would be to be able to make those more concrete preparations. Michel Barnier was very clear when I met him: the European Union has agreed a deal—the deal is sealed, there is no scope for reopening it. Now, we all know here that political realities change and things that were not possible one day might be possible on another, but I've heard nothing from either of the candidates that says, 'And when I renegotiate that deal, these are the three things that I will be—'.

Well, you see, that is really quite interesting because this close to a new premiership, this close to a new Prime Minister, I would have anticipated that the Whitehall civil servants would have pulled in both of the contenders and said, 'Behind the scenes now, we need to get ready for you on what your top three items are—these things that are going to see us through—and we'll start work on them so that when you walk through the door, we'll be ready, but we'll also then engage with the devolved administrations to let them know what the secret to the backstop is, and so on'. But, from what you're saying, that has not happened.

14:45

Well, if it has happened inside Whitehall, it's not been communicated to us that there are specific concrete policy proposals that a new Prime Minister would pursue. We've heard the magic ones. We've heard the way that the backstop can be magicked away by technological solutions, but that was never credible before, and I've never heard a credible account of how that could work since.

We have no way of knowing definitively what is happening in Whitehall in respect of the civil service looking at the two candidates. I think it would be the case that our civil service colleagues in Whitehall will have been taking very detailed note of what both the candidates have been saying and will have been trying to interpret that to see what that would mean in reality, but much of this information emerges in the sort of hotchpotch—if I can use that word—of political debate, and it is quite hard to necessarily interpret that into instructions that would be recognised by civil servants.

Yes. It's going to be a busy, busy summer, then, in that. But it's also going to be a busy summer in getting all the necessary already anticipated legislation in place. Could I ask, First Minister, are you confident that the UK Government is in a position to have, as we currently stand, any and all necessary legislation in place by 31 October to leave?

Well, that would depend, Chair, I expect, entirely on the basis on which we leave. If we leave on the basis of a deal, then there will be a great deal of work that will have to be done to get a Bill in a position that could get to the House of Commons and get through the House of Commons and the House of Lords if you still think that 31 October is the date you are working to. It's difficult, given the history of this so far, to see how that could be done, although both candidates have said that they are confident that it could be done. If we're leaving without a deal, then the effort that was made here in the Assembly and was made in Westminster as well to have a functioning statue book, the other day of the European Union, would all come into play. I imagine there will be unintended or unforeseen circumstances of a 'no deal' exit that will require emergency legislation. Possibly we would need emergency legislation here, although we haven't identified specifically any that would be needed, or more likely, these unforeseen consequences will apply in all parts of the United Kingdom and that it would require a United Kingdom emergency Bill to respond to that.

I'm amazed that, in the normal run of legislation, the normal run of policy priorities—domestic policies for Welsh Government and Scottish Government, and so on—that anything can be done in this scenario. I mean, if we look at one example, we've got the delays that have now come with the agriculture and fisheries Bills, so that's going to have a clear knock-on effect here in terms of what we've been told will be coming down the line in terms of Welsh legislation, and that's before we have any complications as we trip over the edge of 31 October. What impact does this have for those Bills in fisheries and agriculture, and what impact does it have for the wider legislative programme, for the final 18 months to two years of this administration?

Well, Chair, as you know, we took a decision to seek powers in the UK Agriculture Bill and in the UK Fisheries Bill that would've given Welsh Ministers the powers that were needed here, albeit on a temporary basis, to make sure that we could go on paying farmers and that we could go on having a coherent fisheries policy the other side of the European Union. So, of course it is a matter of concern to us that those pieces of legislation have not proceeded through the parliamentary process according to their original timetables. The Agriculture Bill is the more advanced of the two still. It's waiting for a date for Report Stage so that it can move to the House of Lords, and provided it does that—and the UK Government still says that that is its plan—then, we will have a suite of powers that we can use immediately and will then produce our own agricultural Bill to provide a permanent set of legislative arrangements here in Wales.

14:50

And you're confident enough to commit to that, albeit that the UK catches up on its timetable and that passes—we will still have that piece of legislation in a timely manner here in Wales.

Well, that is the basis on which we are currently proceeding. New Prime Ministers [correction: Prime Minister], new possibilities and all of that, but, on the current basis, that is the way we're proceeding. Of course, we'll need those powers in the immediate aftermath of leaving the European Union. The Fisheries Bill is less advanced, but it's not a day-one issue for us either post Brexit. There are things we want to do and things we will need to do, but not with quite the same urgency as the Agriculture Bill.

The impact of this on the scrutiny workload of this place could be—. It was always going to be significant. But do you have any worries from a Government perspective over the capacity of this Assembly to scrutinise what could be a welter of significant legislation that comes our way in a rapid course—that we don't miss things, that we don't, simply through pressures of time and capacity, miss things and find ourselves, heaven knows, in the worst-case scenario, rolling back devolution by accident? 

Well, Chair, I hope that the Welsh Government has worked constructively with the legislature through the whole of the Brexit period, particularly in relation to legislation. I think, other than in a small number of instances, we've generally had agreement between ourselves and the legislature. We've worked hard, particularly with the Constitutional and Legislative Affairs Committee, of which there are members previous and distinguished Chairs here, to get an agreement with CLAC on notification issues, on timetabling issues and, whenever they are in our own hands, we have done our best to respect those very important scrutiny responsibilities that the Assembly has, because, in the end, they produce better outcomes for us all.

The current Chair of CLAC wrote to me in February to say that he believed that the Assembly would find a way of dealing with, and dealing effectively with, whatever Brexit demands were made on the legislature, and it's a comfort to know that the Chair takes that view. I think all I can say is, while we share, of course, the concerns about the legislative load that could be there both for the Welsh Government—for the impact it could have on our own legislative programme, other things that we want to do, the demands on civil servants, which have been huge during all of this—if that does happen, just to give an assurance that we will go on having an engaged dialogue through the Llywydd with Chairs of committees to make sure that we do what we can. These things are not always in our hands either; we are dependent on timetables elsewhere, and those timetables can crowd out both our ability to do the job as a Government we want to do and to get things onto the floor so that Members of the Assembly can do their job as well. But, to the maximum extent that we can, we will continue to keep the dialogue open so that we're all aware of what's coming down the pipeline at us and the constraints that we're all working under.

Two issues that concern me—we've discussed the issues around the withdrawal from the EU and the rest of it. I'd like, if I could, First Minister, to return to the subject of what is put in its place, and, at the moment, there's been some conversation about the development of common frameworks and the rest of it. Do you foresee those having a legislative character to them, a statutory character?

I think there will be some of them that do. I think the majority of them will not. Most of the common frameworks will be put in place via non-statutory mechanisms—memorandums of understanding between Governments, and so on. There is a narrowing list of issues where, by agreement—very important that it's by agreement between the different administrations—an element of statutory underpinning will be required. This is work going on very much in the background but continues to be purposeful and, we think, on the whole, to be heading in the right direction on these things. The Secretary of State laid his most recent report in the House of Commons, saying that once again the UK Government sees no reason to use some of the powers that were there, and which we'd be anxious about here—about losing powers from the Assembly. So, no powers have disappeared from the Assembly at all, and there's no prospect of that happening because, as we always argued, when you get round the table and you do it in the spirit that we were exploring earlier, of parity and of participation, agreement is possible. Some of those agreements will require statutory underpinning, but they'll be agreed.

14:55

It's that table that worries me, you see, because that table takes place in private, and where there are common frameworks taking decisions about the common governance of these islands, in my view it should take place in public, and subject to scrutiny, because that is how good government should always take place. This committee hearing is taking place in public this afternoon, and it's a matter of some concern, I think, if the governance of the United Kingdom steps into the darkness, because, as all of us who sat on the Council of Ministers know, those meetings are televised as well and we can be watched on the web at any time. All of those matters are open and transparent. And it would be a matter of concern, I think, if we therefore withdrew from the European Union and governed without scrutiny, without public scrutiny, and without the public being able to see the decisions taken in their name. Without a statutory underpinning, inter-institutional democratic scrutiny becomes difficult. I would suggest to you from a governmental point of view that a concordat or a memorandum of understanding is a sub-optimal outcome because you can't force the UK Government to comply with its undertakings there. You can't go to Supreme Court at one extreme, so you would therefore be in a situation whereby you would be taking decisions, as I said, around a table but those decisions would not be available to scrutiny.There would be very little democratic oversight of those decisions and, at the end of the day, if the UK Government decides to withdraw from it, there's very little that you can do.

Chair, I agree with almost everything that Alun said apart from one aspect of it. So, I absolutely agree that inter-governmental relationships should be conducted in a way that is available to scrutiny, and should be understood by the public, which is why in the future we are proposing a Council of Ministers approach for the United Kingdom, with qualified majority voting as a way of conducting decisions. All of that would be in the public sphere. As far as the frameworks are concerned, I believe that before any framework is finally agreed, it ought to be published for scrutiny by stakeholders as well as by legislatures, because some of these frameworks will radically affect the livelihoods of people who will be operating within them, and before they're finally signed off, they ought to be available for those people to comment on and to contribute to. I think that is or has been the intention of the UK Government as well as the Welsh Government.

I think the one thing that maybe I didn't follow so completely is that, provided they are done in that open way, I think sometimes memorandums of understanding will be a proportionate way of governing inter-governmental arrangements in the future. Not everything will need a statutory underpinning. Much of what we do now operates in that way. It has its limitations, definitely, and it definitely ought not to be decided outside the public gaze, but provided it's done in that way, I think there are different instruments that can be used to agree different sorts of things, and you need to be proportionate, and statutory ways of doing things, I think, should be reserved for those things that really do need the force of law under them, and not everything does.

But we're looking at the governance of the United Kingdom, and the structure of governance of the United Kingdom, and I think I would suggest that if we are looking at—. In some ways, we've talked rather loosely about replicating the Council of Ministers in Brussels with a council of Ministers in the United Kingdom, and of course the structures of the democracy in Brussels operate according to law. There are very clear legal frameworks in place that govern the rights and responsibilities of the Council, the Parliament, the Commission and all the rest of it. There's a very clear legal and democratic structure to all of that. And if we take that model and then try to replicate it in the different laws of the United Kingdom, then to do that without any statutory underpinning, I suggest, we could find ourselves where we really are at the whim or the goodwill of UK Ministers to call a meeting, to chair a meeting, to move these matters forward. So, it's difficult for me to understand how we can have that equality of dealing between the different administrations without the force of law—for the structure. 

15:00

I'll ask Simon to answer and then I'll make one final comment, then, Chair, if I could. 

Thank you. It might help the committee if I tease out two distinct issues in terms of where the legislation falls. So, if you take the frameworks in the agricultural support space around compliance with World Trade Organization rules, that's an area that envisaged a legislative-based framework that would focus around those particular issues, because of the scale, the importance and the implications of not following that. And the framework itself would be set on a statutory basis. But, if you take a different framework issue, such as public procurement, where I think the current thinking is that that would be put out in a draft consultation Bill [correction: a memorandum of understanding], so on a non-statutory basis, then the legislation for procurement would be made here for Wales and in Parliament in Westminster for England, and in the Scottish Parliament for Scotland. So, there is a legislative basis for the procurement, it's just that the framework, which is the inter-governmental joint working, the co-operation and co-ordination mechanism, would be non-statutory. So, there is a legislative underpinning, but it's Wales-made law for Wales. 

It's very late in the day to start exploring this point I'm about to make, but it's just to try and respond to Alun's point that you're not able to go to a court of law to sort some of these things out. So, Sewel would be a case in point, where the Supreme Court found that Sewel had no force in law, but was a political convention. So, one of the things that we have been arguing recently—and Scottish colleagues are about to publish, I think, a paper dealing with this—is that what we need is the codification of Sewel—not a legislative route, but a codification in which the 'not normally' principle that is in Sewel would be set out: how do you know whether a set of circumstances are not normal? What are the tests that have to be passed in order to come to that conclusion? What is the line of reasoning that you have to go through in order to come to a conclusion either that something is normal, or not normal?

So, we are arguing for a shared document, a memorandum of understanding, perhaps, that sets out that understanding and then it's judiciable. That's the key to it. It then becomes testable in law, because you've got something that, if a different party comes to a different conclusion that something is not normal, whereas you think the tests that have been agreed have not been properly applied, you're then able to go somewhere and get that resolved. So I think there are ways in which you can have some of the important things that Alun was mentioning about the ability to go and have some of these things independently underpinned without it necessarily having to be done in a statutory way.

It's got to be very quick, because we're running out of time. 

Okay. In terms of where we are today, you've mentioned the Agriculture Bill at the moment and its progress through the Houses of Parliament. That, of course, confers powers on Ministers by the United Kingdom Parliament, not by the National Assembly, which cuts across all our agreed ways of working, but we recognise, since we are where we are at the moment, that a very quick and dirty fix, if you don't mind the phrase, is needed in order to provide the powers. When can we expect to normalise that situation, because I feel very uncomfortable that the House of Commons has got more power to confer powers on Ministers than we have here? I don't think that's a position we would want to be in for very long. So do you have, at the moment, any indication that you could give to this committee when you would anticipate our being able to normalise that situation through a Welsh agriculture Bill?

Well, we are committed to a Welsh agriculture Bill for many of the reasons that Alun Davies has just set out, and because there are other things we would want to be able to bring within its scope. I can't be definitive this afternoon on timings, Chair, because it is so much dependent on the other things that we've been discussing where timings are uncertain. What we want to secure—and I understand it's a compromise to get a pragmatic set of arrangements in place—we don't want to be in a position where farmers can't be paid and other important things aren't done. We'll have taken the powers by that route to make sure that that is the case, and then we want to come to the floor of the Assembly with a Bill that does things in a better way and a more extended way for Wales. But the timing of it is so dependent upon other bits of this complicated jigsaw that I couldn't give you a sensible answer that ties us to a particular timetable.

15:05

Thank you, First Minister. We've come to the end of the session and we haven't discussed preparedness. So, we will write to you, if that's okay, with questions such as what the Welsh Government is doing regarding the backbone sectors, the challenges with warehouse capacity you may be facing as a consequence, particularly if a 'no deal' scenario arises in the run-up to the Christmas period, and also in relation to, perhaps, funding issues with the discussions you're having with the UK Government. But there's one question I think I want to ask before you go and it relates to the international strategy. So, Delyth, do you want to ask that one? 

Thank you, Chair. Your international relations Minister had promised originally that the international strategy would be published before recess, and then we were told that it would be a draft strategy. It's two weeks to go and we haven't seen anything yet. Could you confirm whether we will get that before the end of next week and why the delay has been, please? 

Definitely intending to publish it before the end of term. Eluned has been involved in a whole series of discussions with organisations and came to the conclusion that there was so much interest in the strategy and so much that could still be done that we'd have a proper consultation on it, rather than just publishing it. We still anticipate having the strategy itself confirmed before the end of this year. 

Can I confirm 'before the end of the year', because we could be leaving on 31 October? Will it be done before then? 

If you're going to have a consultation, you've got people involved in the consultation that have got to have some confidence that it's meaningful. So, we're not going to have a consultation where people can then say, 'There was no point in that because there was no time for you to consider what we said.' So, we're going to have a proper consultation and I think there are very good reasons for that, because of the interest there's been in the strategy and ideas that people want to contribute to it. We're still confident that we'll be able to have the final strategy published—. There'll be a draft strategy; it's not like we've got nothing. We will have the draft out there, people will see what it is the Welsh Government intends, and we'll have that confirmed when we've had the benefit of the consultation and had a proper opportunity to give the things that we are told the consideration they deserve. 

Okay, thank you, First Minister, and thank you for your time this afternoon. As you know, you'll receive a copy of the transcript. Any factual inaccuracies, please let the clerking team know as soon as possible so we can have them corrected. 

3. Papurau i’w nodi
3. Papers to note

If Members are agreed, we will now move on to the next item on the agenda, which is papers to note. The first paper is from the Chair of the Climate Change, Environment and Rural Affairs Committee regarding their report, 'Rethinking food in Wales: Food branding and processing'. Are Members content to note the letter from the Chair, highlighting the report and the areas we may be interested in? 

The second one is correspondence from the Counsel General and Brexit Minister regarding inter-governmental relationships and common frameworks, which we've obviously been discussing with the First Minister. Just to inform Members, we had a discussion on this matter at the chairs' forum last week, and it was agreed that the Constitutional and Legislative Affairs Committee and ourselves would consider the development of proposals for the scrutiny of those frameworks across the committees, whereas some committee will actually do more detail in their specific portfolio areas. Are Members content to note the letter? 

The third one is correspondence from the Counsel General again, but this time it's a letter to David Lidington regarding inter-governmental relationships, which the First Minister was referring to—he wrote to him jointly with the Cabinet Secretary in Scotland. Are Members content to note that? 

And the fourth one is correspondence from the First Minister to the Llywydd regarding international relations that bind the UK, and his request to look very carefully at the Assembly's role in that. Are Members content to note that? At this point, we're expecting an answer from the Llywydd, I assume, to that. Okay. I think we should express a view as much as possible—we have in the past—so perhaps next week we'll have a discussion as to what type of view we can express on that.

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.

Item 4, under Standing Order 17.42(vi), to resolve to exclude the public from the remainder of today's meeting. Are Members content to move into private session? They are, and therefore we now move into private session for the remainder of the meeting. 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:10.

Motion agreed.

The public part of the meeting ended at 15:10.

Archwilio Cynulliad Cenedlaethol Cymru