Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Materion Allanol a Deddfwriaeth Ychwanegol

External Affairs and Additional Legislation Committee

04/06/2018

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

David Rees AC Cadeirydd y Pwyllgor
Committee Chair
Jane Hutt AC
Llyr Gruffydd AC Yn dirprwyo ar ran Steffan Lewis
Substitute for Steffan Lewis
Mark Isherwood AC
Suzy Davies AC

Y rhai eraill a oedd yn bresennol

Others in Attendance

Dr Brigid Fowler Cymdeithas Hansard
Hansard Society
Dr Tobias Lock Prifysgol Caeredin
University of Edinburgh

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Alun Davidson Clerc
Clerk
Elisabeth Jones Cynghorydd Cyfreithiol
Legal Adviser
Nia Moss Ymchwilydd
Researcher
Robin Wilkinson 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

Good afternoon. Can I welcome Members and the public to this afternoon's session of the External Affairs and Additional Legislation Committee at the National Assembly for Wales? Can I remind everyone that the meeting is bilingual? Headphones are available for use for simultaneous translation from Welsh to English on channel 1. They are also available for amplification on channel 0. Can I also remind people, please, to turn your mobile phones off or to silent—also any other equipment that may interfere with the broadcasting equipment?

In the event of a fire alarm, please follow the directions of the ushers. There's not one scheduled for today so, to ensure safety, everyone follow their directions.

We've received apologies from Steffan Lewis, Michelle Brown, Jenny Rathbone and Jack Sargeant this afternoon. Can I welcome Llyr Gruffydd, who is attending as a substitute for Steffan Lewis? Welcome.

2. Cyfraith Ewropeaidd a'r trefniadau pontio wrth ymadael â'r UE—sesiwn dystiolaeth 1
2. European law and the Brexit transition—evidence session 1

We move on to our items on the agenda, and this afternoon we are starting our inquiry looking at the implications of the Brexit transition period. We are assuming at this point that the transition period will take place. That's our positive hope. So, we will go with the view that there is likely to be an agreement with a transition period in place.

Can I welcome this afternoon Dr Brigid Fowler from the Hansard Society? I know that they have produced a paper for Parliament, but it is important that we start understanding some of the implications that this may have for the Assembly and for the politicians in Wales as well as those in Westminster. So, Dr Fowler, would you like to perhaps introduce yourself and give an introduction to your paper?

Thank you very much for the opportunity. I'm Brigid Fowler; I'm a senior researcher at the Hansard Society. As mentioned, we published in the middle of April a briefing note identifying five tasks for Parliament arising from the likely existence of a transition period after Brexit. Now, the paper was primarily discussing the Westminster Parliament, but I understand—or I hope—it could be helpful to be aware of it for your deliberations here in Cardiff too.

The five overarching tasks that we identified arising directly from there being a transition period in the terms set out in the draft withdrawal agreement published in mid March break down into two that are more domestically focused and three that are to do with the EU. The two domestic tasks—one is obviously legislating for the transition period, which is obviously primarily about the relationship between the European Union (Withdrawal) Bill or what will be the European Union (Withdrawal) Act and the promised withdrawal agreement and implementation Bill, but there are possibly other legislative implications as well; and, secondly, adjusting the scrutiny of the Westminster or the UK Government's practical and administrative preparations for Brexit, adjusting those, in line with, possibly, a longer time frame for many areas, although not necessarily all of them.

The three EU-related tasks that we identified were, firstly, monitoring of new EU law and policy as it continues to be made by the EU institutions and, secondly, scrutinising the actions of the UK executive—the UK Government—at EU level. Both of those are, in effect, continuing with tasks that are already done at the moment with the UK as a member state, but obviously the institutional conditions for doing them will be very different. And then, finally, the last overarching task arising directly from transition is oversight of the planned UK-EU joint committee, which will be, obviously, a new task, and one not necessarily limited to the transition period since it is envisaged that the joint committee will outlast the transition period.

On top of those five tasks that we talked about in the paper, I would mention two further things. One is tasks to do with specific policy areas where, for example, we're thinking about trade, which is one of the policy areas where things will already change from the end of March next year, and then, finally, obviously, there will need to be continued scrutiny of the UK-EU negotiations on the future relationship, which will not be finished by the time that Brexit happens.

14:05

Thank you for that. Obviously, we have some questions because it is clear that, currently, as we have now given the consent to the legislative consent motion on the withdrawal Bill, if that is implemented, we will convert EU law into UK law as of the point of exit, which, at the moment, is still defined to be 29 March next year, but this period goes on to 31 December. So, are we right in assuming, therefore, we will be required to abide by EU law that may be coming into play after we leave during the transition period, but it will not be naturally converted into UK law because it's gone past the exit date?

I should say that, by way of expectations management, I'm not a lawyer, so I'm very pleased to see that you are hearing from some lawyers. My understanding is that, yes, the draft withdrawal agreement will require the UK to continue to apply EU law coming into force during the transition period, and it will require it to be interpreted in the same way as in the EU. So, in that respect, there will be continuity. In terms of the saving moment, I think that is something you probably have to raise with the lawyers, but there will certainly be an issue as to whether or not you save EU law on 29 March next year, and then again on 31 December, or whether you do it all on 31 December 2020. That's a question, I think, for lawyers, but the terms of the transition agreement certainly make a difference to the savings provisions as they are currently in the EU withdrawal Bill.

So, if we look at the mechanisms that are currently in place to scrutinise EU legislation, is it possible to continue those mechanisms post Brexit and into the transition period, or do we need to put different things in place during that period?

I think the political need to continue to scrutinise new law as it's coming into effect will remain. By definition, that's something that legislatures should be doing. The main change is obviously that the institutional context in which the Westminster Parliament and the devolved legislatures have done that will change completely, and I'm primarily thinking about (a) the provision of information by the UK Government, certainly to the Westminster Parliament, which, as you know, is the basis for the whole European scrutiny system to work at Westminster, and, secondly, obviously, UK Ministers will no longer sit in the council, and the Westminster scrutiny system is entirely geared to holding UK Government Ministers to account for what they do in the EU Council, and they won't be there anymore. So, I think the challenge is trying to think of ways of maintaining the scrutiny of the EU law itself without those institutional mechanisms.

In terms of information provision, my reading of the draft withdrawal agreement is that the provisions that enable Parliaments to receive some documents directly from the European Commission will stay in force, and I'm pleased to report that that's also the reading of it that the House of Lords EU Committee has. So, there may in fact be some scope for certainly the Westminster Parliament to maintain a monitoring function directly through the receipt of documents from the European Commission, and it won't be so reliant on the UK Government to deposit documents with it. The Lords EU Committee is engaged in correspondence with David Davis on precisely this issue at the moment, and they had a letter from him in mid May or so, a couple of weeks ago, in which they asked David Davis, 'Will the UK Government continue to deposit documents and explanatory memorandums in Westminster after Brexit?' and Mr Davis just said, 'We will engage in dialogue with the committee about how scrutiny might be maintained'. He either couldn't or didn't want to give any commitment, but one thing I think that the Westminster Parliament and the devolved legislatures could usefully do is establish, perhaps directly with the European Commission, whether this reading of the draft withdrawal agreement is correct, and that they will be still in receipt of some documentation directly from the Commission on draft legislation. That would be, I think, one useful thing.

In terms of monitoring new EU law and policy coming in, the other thing I would perhaps mention is inter-parliamentary forums and inter-parliamentary co-operation [correction: EU inter-parliamentary forums and EU inter-parliamentary co-operation], which is obviously informal, but it can be a means of UK actors finding out what's going on, or being sighted on what's going on. So, I would suggest that some thought be given to how that might be maintained during the transition period.

14:10

Yes. You've answered my question, really. I was going to ask where the UK Government were at in terms of making a commitment to table an explanatory memorandum or whatever. So, clearly they're not giving anything away. I'm just trying to think why—would it be a capacity issue or would it be more political?

My sense, and that's all it can be, is that it's probably a bit of both. There is so much uncertainty at the moment, and matters are so politically sensitive, that I think it's very difficult for, really, any actors in London to start proceeding now on the assumption that the withdrawal agreement will happen and transition will happen. It's a percentage judgment at the moment, and it's probably more likely than not, but people can't really politically proceed on that basis. But I think there probably is also a capacity issue.

But if Parliament was soley dependent on what the EU provides, then that's wholly insufficient. Surely you'd have to have some sort of policy steer from the Government in terms of how they propose to respond to any of this.

Well, I think the difficulty with that is, apart from some very, very limited cases as set out in the draft withdrawal agreement, the UK Government won't need to have a position on any of these things, because it won't be part of the decision-making process anymore. So, the UK Government presumably won't necessarily need to go through the rigmarole of producing EMs and having positions on these things, because it won't need to; it won't be in the council and the council structure.

Although there may be indirect consequences for the UK from some of that legislation.

Absolutely. I think that's precisely where the political worry is, as I'm sure you're aware—that there may be some on the EU side who seek to use the opportunity of the transition period to try and introduce things that are not favourable to the UK. My sense is that the UK is hanging quite a lot of its hat on the provisions about good faith in the draft withdrawal agreement and that it will want some kind of mechanisms in place, perhaps through the joint committee, to be able to say, 'Hang on, the EU is trying to exploit the transition period and this is not acting in good faith, and we need to be able to put a stop to that'. That's all still to be determined as to how exactly that might work. 

14:15

You've highlighted the concerns there, and, as you said, we will not have a role in the decision making post March next year, but we will be required to abide by some of the decisions that are made. Is there any movement in producing mechanisms that will allow indirect influence between those bodies? In other words, not just a formal joint union but some form of inter-parliamentary relationship with Members of the European Parliament. We won't have any UK MEPs, but how will we be interacting with MEPs who may have a voice? Is there any move at the moment that we can see where those types of mechanisms have been put into place to allow us to have some influence on decisions that will impact upon us during transition? 

I think this is all—. You know, there's nothing very definite at all. I would probably mention two things. The most formal thing is obviously the UK-EU joint committee, and it may well be that the UK Government looks to that to be the forum where it would raise concerns about anything that may be going on in the EU. So, there's an issue about how Parliament or parliaments can get some handle on the joint committee and exercise some scrutiny over the positions and the actions that the UK Government is going to take in that committee. Obviously, we don't even know at the moment who is going to represent the UK in it, whether there might be some kind of devolved representation, or how the devolved administrations might feed into that committee—we don't know that yet. So, that's one locus. 

The much more informal and weaker one: as I say, there might be inter-parliamentary co-operation [correction: EU inter-parliamentary co-operation], so whether or not—for example, the UK Parliament might still be an invitee to some of the inter-parliamentary bodies [correction: EU inter-parliamentary bodies] during the transition period—whether or not there might be some kind of observer status to be sought in the Committee of the Regions, things like that. But the point of the transition—well, not the point but the key feature of the transition period that's in prospect is that the UK falls out of institutional representation.  

I was just wondering, in those cases where there will be a need for the UK Government to engage and be part of these processes, has there been any commitment to continuing with the principle of subidiarity within those situations? 

I haven't heard of anything explicit. As you'll be aware, the UK Government consistently says, 'We want to involve everybody, we want to consult everybody and make sure that the interests of the regions and the devolved administrations are taken into account'. I haven't heard much use specifically of the term 'subsidiarity'.

Taking those into account, we've just seen an inter-governmental agreement as part of the EU withdrawal process. Are we expecting a far stronger form of inter-governmental agreement that will allow these things to happen, because as we keep being told, particularly by Michel Barnier, the clock is ticking and there's not a lot of time left between now and March, when these things will take effect?   

I haven't heard of anything particularly strong. You'll be aware that there is a new ministerial forum, I think just set up a couple of weeks ago. My understanding is that that is to feed into the UK-EU negotiations on the future relationship, the post-transition relationship. So, that looks like it could be the main site for the devolved administrations to feed in, but I haven't heard much else beyond that. I think the point about timing is important because it could be that things need to be done in a hurry next winter and early 2019. As the committee will be well aware, there are scenarios in which things need to be done really quite fast, which is never great for getting lots of buy-in and consultation.

14:20

I'll bring Jane in in a minute, but my understanding of the forum is that it will feed into the Joint Ministerial Committee (EU negotiations), which again is another step on the ladder. So, there are still questions to be asked as to where decisions are made and who will make the decisions. Jane.

Thank you very much for your paper; it was really helpful. It's very difficult to see what you can say formally, obviously, about how the transition period would operate. We've mentioned the fact that there is this joint EU-UK committee mentioned in the draft—it still is a draft withdrawal agreement. We've mentioned the inter-parliamentary forum and the fact that that is an important route, which our Chair and indeed the Chair of our Constitutional and Legislative Affairs Committee is engaged in, but I think it's going to be a question about UK Parliament and devolved legislatures having some kind of oversight into the role and function and business of the EU-UK committee. I don't know whether there's any further light you can shed on that in terms of whether the UK Parliament has been asking the same sort of questions as we're asking today.

Yes. None of the UK select committees have launched an inquiry entirely into the transition period per se, but it's obviously featuring largely in some of the Brexit work that some of the select committees are doing. The one thing I would say is that when it comes to procedures that are purely about parliamentary scrutiny and about inter-parliamentary relations, the UK Government always says, 'This is a matter for Parliament', for understandable and obvious reasons. It doesn't want to say, 'This is how Parliament should scrutinise us, or should scrutinise whatever.' So, I would say at the moment there is actually a window of opportunity for Parliament—or parliaments—if it wanted to come forward with some ideas, particularly given the lack of capacity that may be part of the problem on the UK Government side, to say, 'Well, this is what we would like to do.'

I would say that, certainly, the Lords EU committee is already engaged on this and, to a somewhat lesser extent, the European scrutiny committee in the Commons is already thinking about it, particularly the oversight of the UK-EU joint committee. So, I would have said there's an opportunity there to come forward and say, 'This is how this might work. This is how we would like this body to be scrutinised.' There would still be some limits on what one could say at the moment in the absence of certainty about who exactly is going to sit on this committee, but there might be some scope to start to put some proposals forward, or certainly to start to take up contact with the Commons and Lords committees and say, 'Are you thinking about how the devolveds might be involved in this?'

That's helpful. I think we'll look to following that through. Just moving on to issues around legislation, could you say something about what your view is about the relationship between the EU withdrawal Bill and the withdrawal and implementation Bill?

They will obviously be extremely closely linked. Our assumption is that if the transition agreement is going to happen under the terms that are anything like those in the draft, the key provisions of the European Communities Act 1972 are, in effect, going to have to be recreated for the transition period. Now, there are different ways that one might do that, ranging from not bringing the repeal of the European Communities Act into effect or, alternatively, effectively recreating its provisions, probably either by amending the EU withdrawal Bill or in the withdrawal agreement and implementation Bill. I suppose my assumption would be that, effectively, you would probably do it in the withdrawal agreement and implementation Bill—you effectively recreate section 2 of the ECA in that Bill—but that's probably something on which Dr Lock and other lawyers might be more sighted. But there will certainly have to be some sort of provision like that in order to provide for the supremacy and direct effect of EU law, which will be an international obligation under the withdrawal agreement.

14:25

I've got a quick question on that. In the sense that—. It probably will be, I would assume, in the withdrawal agreement and implementation Bill, because the EU withdrawal Bill has gone through all the stages and they could have, actually, done the amendments, I would have thought, in the House of Lords. 

Well, I think this is one of the things that are striking, and it goes to my broader point about London, or Westminster, not engaging fully yet with the transition period. They seem to be focusing on getting the EU withdrawal Bill right and getting it through, and nobody has, or relatively few people have really turned their attention yet to providing for transition. And, as I say, I think it's partly capacity but it's partly political that nobody wants to look like they're just assuming that the withdrawal agreement is a done deal and is definitely going to happen.

But in your eyes, based upon the timescales that have already been taken with the EU withdrawal Bill, is it really likely that this withdrawal and implementation Bill, which may have these quite complex issues in it, can also be done before March, before we actually leave?

It can be done. It could be quite tight, depending on when the withdrawal agreement is finalised. If it's finalised as everybody plans, officially, in October, then it's probably okay. If it starts to slip much beyond that, it starts to get much tighter and, obviously, there will be knock-on effects in terms of parliamentary time on other legislation. So, the Government is not at all where it originally planned to be by summer 2018 and there will be knock-on effects for other bits of Brexit legislation, which has both practical consequences and political consequences in terms of people not being sure what's going to happen. They're going to have to approve Brexit or not approve Brexit knowing, perhaps, less than might have been originally envisaged about what happens next.

I think there's so much unknown as yet about this, in terms of this transition period, and I think it's unique. There's no precedent for anything like this before. But, just in terms of our engagement, obviously we've looked at the opportunities we have to give our views on the EU-UK committee. But, obviously, there's other legislation during this period of transition that could have an impact in terms of Brexit legislation—other Brexit Bills. Have you done any work on looking at that in terms of our role as a devolved legislature or the UK Parliament?  

We as the Hansard Society haven't looked specifically at the roles of the devolved legislatures in the other Brexit legislation. The Trade Bill is the main other Bill that we're keeping an eye on. Obviously, that has come to a halt at the moment pending not least agreement on the withdrawal Bill. So, it's an open question at the moment as to whether or not the Trade Bill and the customs Bill, which very much go with it, will come back to the Commons before the summer, or whether they'll slip to afterwards. So, that's another area of uncertainty, but there is—. For example, there's no sign yet of the immigration Bill, which is one of the other big ones that people are waiting for. Agriculture: there has been some progress, but we don't have a Bill yet. So, there's an awful lot still to get through, but, I mean, obviously—

14:30

Well, I think one of the issues will be, or it could become an issue, as to—. Given the nature of the transition period, assuming it's agreed, one of the issues could become: 'Okay, what now really needs to be done by next March, and what can be left until the transition period?' But that, obviously—again, it has both a legal aspect and it has the political aspect as to what people are happy to leave until after the UK's actually left. 

Are we in a position, or heading towards a position, where we'll have very little time to scrutinise in detail some of these Bills? If all these big Bills are coming through, maybe after the summer, that's a lot of important scrutiny that needs to take place in a very, very tight timescale.

Yes. My sense—and it can only be that—is that people are gearing up for a really quite intense and difficult winter—autumn, winter, early spring.

Because there will be LCMs associated with some of those Bills—

Because there will be, or there could be, an awful lot of business to get through.

So, if we go, just to now look ahead, beyond possible transition—I mean, obviously, after Brexit—has any thought been given to future EU monitoring mechanisms that would be needed in terms of Westminster and then, hopefully, for devolved administrations post Brexit?

For after the—. During the transition period or—?

Well, after. After the transition period—beyond, looking ahead.

After the transition period. I think very little, certainly publicly, because it will depend on the nature of the UK-EU relationship and, as the committee will well know, there is a spectrum of options in terms of the economic and trade relationship, depending on the degree of integration with the single market, from a Norwegian scenario at one end to something much more distant: just a free trade agreement of more or less degree of depth. Those would obviously require quite different types of monitoring mechanisms. So, I mean, for the transition period, the European Scrutiny Committee in the Commons has said, 'We should go and look at what the Norwegians do or what the Swiss do', but, obviously, if the long-term position is for something much more distanced from the single market, you would not need as intense an engagement with new EU law, and you might be looking at something that's much more akin to just a normal FTA.

Now, obviously, in the UK context, we don't know what UK scrutiny of a normal FTA looks like either, because we don't have them. So, that's all up for grabs. Obviously, there will be implications as to whether or not the EU relationship still requires some kind of dedicated scrutiny system and committee structure, or whether it can be subsumed into an international trade relationship or a foreign policy type of scrutiny, so we're not sure. But I think it's worth thinking about scrutiny of the EU relationship from that broader perspective, that this is only going to be one of many international relationships—possibly more intense international relationships—that are going to need scrutiny post Brexit. And the question is: how different is it going to be, or how similar? For example, the committee may remember that there's been some discussion of something called the three-basket approach. We heard a lot about it a few months ago, and it's all gone a bit quiet on that front again. This was the idea that the UK-EU relationship would be differentiated by sector and the UK would align itself fully in some areas and in some sectors and less fully in others. And on the basis of the way that UK Government spoke about that, it sounded to me as though you might be looking at some kind of opt-in mechanism whereby the UK Government could decide to follow EU law, or new EU law, in a particular area, and you might be looking at an opt-in mechanism like we've got for justice and home affairs at the moment, but I haven't heard much public discussion of that, and obviously the question of whether or not a relationship at all like that would be acceptable to the EU is a different question.

14:35

At the moment—. If you look at just where we are at the moment, are the structures and mechanisms in place? It seems to me like we're going towards more of a situation where we're going to naturally end up with greater divergence from the regulatory position of the EU to ourselves, simply because the mechanisms don't seem to be there to scrutinise effectively. Is that a fair comment, or do you expect that the mechanisms that we currently have will allow us to remain reasonably closely aligned on the regulatory side of things?

I think I would probably turn it around and suggest that it's the nature of the UK-EU relationship and the degree to which we, as the UK, commit ourselves to align or not align with EU law. It's the nature of that that will then determine the nature of the scrutiny that's appropriate, because, obviously, if you're in any kind of European Economic Area or single market kind of relationship where you pre-commit to taking on new single market law, that new law will need scrutiny as it comes through. I mean, that's a question of when you get into a dynamic relationship or a dynamic agreement. If you're looking at an FTA, which is much more fixed—okay, you agree, 'Right, we're going to liberalise X, Y, Z and then leave it there', and then it's a much more static relationship and it's less onerous in terms of the scrutiny requirements, so it would require a different kind of scrutiny. So, I would—. You want to input into the making of the relationship and then allow the nature of that relationship to determine the scrutiny arrangements that you feel are appropriate.

Just going off on a couple of points you've made: you mentioned the immigration Bill and time delays. It was anticipated until recently that that would likely be coming in the autumn—possibly October. It was reported a couple of weeks ago that the Prime Minister had asked the Home Secretary to bring something forward before the summer recess. My first question, really, is: what, if anything, is your understanding of the situation?

I don't think we're getting the Bill before the summer recess. I'm trying to remember what—. You're right, I think it's—. I'm trying to think what it was—. The Prime Minister did want to accelerate something. I can't remember if it was a report or a White Paper or something. I'm sorry, I can't remember off the top of my head, but I'm not expecting the Bill, I don't think, but I will check.FootnoteLink

Yes, because I did pick up one article a couple of weeks ago and it was media so I don't know whether it was—.

Yes, sorry, I can't remember off the top of my head what it was. No, you're right, it was after the change of Home Secretary that the Prime Minister had asked for something to be accelerated in that process.

Great. My second question, on trade: we know that the revised draft on the withdrawal agreement allows the UK to negotiate trade agreements with non-EU members—

Yes, that's correct.

14:40

—but they can't come into force until after December 2020. I understand that, in terms of accessing existing EU third country trade agreements during transition, the EU has to formally go through the process of seeking consent from those third countries for that. I don't know if you have any knowledge of the situation that we are in, because, again, some concern has been expressed that the EU hasn't yet taken the motions necessary to carry that forward.

The wording in the draft withdrawal agreement is that the EU will notify its partners that the UK is going to continue to meet its obligations under existing EU trade agreements and that the UK should continue to be treated as if it were party to those agreements during the transition period.

Now, I think there is a degree of confusion about exactly how that's working. Indeed, there's a story about it in the press today. I am concerned that there is a risk that this could fall down the gap between the UK and the EU. It's not 100 per cent clear to me who is responsible for this. The Department for International Trade says that it's in discussions with all relevant partners. Everybody is saying that they're happy to abide by the terms of the draft withdrawal agreement and to maintain continuity and to continue to treat the UK as though it's still party to those agreements, but there are some noises coming out of the EU end saying, 'Well, we're not doing anything about this. We haven't done much about this. We're not working on that.' So, I think there is a degree of uncertainty there. Again, it's partly down to transparency out of the UK Government. They are saying, 'We're talking to everybody and it's all fine and none of our partners are expressing any difficulties', but it's a case of being absolutely sure about that.

I've heard UK Government statements regarding agreements with existing third parties who have trade agreements with the EU post Brexit but not during the transition period itself, which is the concern you highlight. 

I think my final immediate question relates to access to programmes, which is something we've considered extensively. There's been a lot of negotiating hardball over things such as Galileo and Horizon, but again I read last week a report that positive decisions or indication of positive moves on Erasmus had been made, which might be indicative of a way to compromise in the future. What's your understanding of that?

Again, that's not something I've looked at in detail, but you're correct—there is some new draft legislation published by the Commission for the participation of non-EU member states in Erasmus for the next wave of Erasmus, and my understanding is that the language does leave it open for the UK to be able to participate in that. The UK Government has made it clear all along that it would want UK students and young people to be able to continue to participate in Erasmus as a non-EU member state and that it's happy to contribute, make a financial contribution, to cover that. So, there's certainly been some movement there.

Given that this legislative congestion or log jam, potentially, is ahead, I'm just wondering whether there's any thought being given to the potential for more formal arrangements between devolved legislatures and Parliament in terms of maybe scrutinising—I'm not necessarily saying joint scrutiny but something a bit more formal and streamlined.

I think it's certainly a good opportunity or potential opportunity to say, 'Look, potentially, the legislative workload next winter could be such that we actually need to share it out a bit.' I think probably the main forum that's been engaged with inter-parliamentary relations within the UK, as you will know, is the Lords EU Committee and its Interparliamentary Forum on Brexit. That would probably be my first port of call to say, 'Look, can we think about this?'

14:45

Not that I'm aware of. Obviously, in the Commons, there are the Welsh Affairs Committee and the Scottish Affairs Committee, but I'm not aware of anything formal at the moment.

[Inaudible.]—but clearly there are opportunities, I think, to look at this—[Inaudible.]—that discussion. Can I ask: have you looked at—? Because you talked about free trade agreements and scrutinising FTAs—and that's new to us. Have you looked to other countries as to how they may scrutinise FTAs? I think the example we've got is CETA. We've always talked about CETA, and we talk about CETA plus plus plus, or whatever it is, but have you looked at how Canada may scrutinise such agreements, or other countries scrutinise it? Because you mentioned earlier that the EU Select Committee said about going to Norway or Switzerland. Have you, as an organisation, looked at that type of position?

That's work that we're doing at the moment, and I'm aware that other people are doing it. Both researchers and people in Parliament are looking at what other committees [correction: countries] do. The other example I think that's probably acting most powerfully is actually the European Parliament itself. It's been very interesting to watch Westminster become more aware of how the EP does international negotiations and exercises input or exercises influence over international agreements. So, the EP is probably being cited more than anybody else at the moment in discussions, but it's certainly something that people are doing—looking at different examples of how different countries do it. As the committee will be aware, the general sense is that the UK Parliament's powers over most international agreements are weak, and that other parliaments have a bigger role. I think there's an across-the-board initial issue about the transparency and the provision of information from the UK Government, because whatever parliaments are going to do, they are going to need information, they're going to need documents about international negotiations and international agreements, and that's the sort of first step, really, getting matters even there.

I'm glad you mentioned the European Parliament because, in your paper, you also noted that the European Parliament wanted to look at how it could scrutinise the joint committee that's been proposed. Have you heard anything from the UK side as to how it would want to scrutinise that joint committee, and would it involve the devolved administrations?

The scrutiny of the joint committee is something that has been raised by the Lords EU Committee and the European Scrutiny Committee in the Commons, and they've sort of engaged in the—. They ask the Government, 'Well, do you have any thoughts in this field?', and the UK Government says, 'Oh, well, that would be a matter for Parliament'. So, you sort of engage in a bit of a dance. But there will certainly be a strong wish on the part of the UK Parliament to exercise proper oversight of that committee. So, I think discussions are under way. I haven't seen any formal proposals come forward yet because, as I say, we don't actually know who's going to sit on it from the UK side. People are certainly thinking about it and, as I say, I think that's an area—that's an issue where there's actually scope at the moment for Parliament or parliaments to take the initiative and to say, 'This is how we would like to do this'.

I think a point to bear in mind is that that kind of joint committee between the UK and a partner country or partner organisation—those kinds of joint committees could become a much more frequent feature of the UK's international relations because most or quite a lot of trade agreements tend to have that kind of structure in them, some kind of joint committee. So, I think, if you're thinking about scrutiny of that, you would want to be aware that this is something that might be replicated, or it might set a precedent for other international agreements as they come through. But for the EU one, I would have thought, because that joint committee will be so heavily implicated in the implementation of the withdrawal agreement—I think you would probably want scrutiny of that body to be integrated with the other task that we mentioned about the monitoring of new EU law as it's coming through during the transition period, rather than have it as a separate body. But I haven't heard of any specific proposals for devolved representation on the joint committee, no. 

14:50

Because clearly, with the transition period, there's a large proportion of devolved responsibilities that are coming back to institutions—both Scotland, Northern Ireland and ourselves—and this is slightly unique, compared to an FTA, in the sense that there are transition periods in which some of these will still be operated by the EU.

So, I think it's important that a decision like this would have some form of opportunity for scrutiny by a committee.

I would have thought so, yes.

Okay. Do any Members have any other questions? No. Therefore, I think we've finished slightly earlier than we anticipated, but can I thank you very much for your evidence this afternoon? It's been interesting to see how perhaps we are still some way off the establishment of some of the mechanisms that need to be in place, in less than 10 months, now, to ensure that we're able to operate effectively during the transition period, if one is in operation. So, thank you. You'll receive a copy of the evidence, of the transcript, for any clarification. If you find any factual inaccuracies, can you please let the clerks know as soon as possible?

I suggest that we now take a break for 20 minutes, because we are scheduled for 3.10 p.m. but that's a video link, so we need to set the times up. So, we'll come back at 3.10 p.m. Thank you.

15:05

Gohiriwyd y cyfarfod rhwng 14:52 a 15:09.

The meeting adjourned between 14:52 and 15:09.

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

Can I welcome everyone back to this afternoon's session of the External Affairs and Additional Legislation Committee? We go on to our next witness. Can I welcome Dr Tobias Lock from Edinburgh university on our video link? Can I thank him for attending this afternoon and also, obviously, for the papers he's written on the issue of transition? Perhaps you'd like to give us a short introduction as to your views on the transition period and some of the complications that may arise, and then we can go through some questions as a consequence of that. 

Thank you very much. I'm very sorry I can't be there today. I think, on the transition period in general, we need both sides to agree, because the negotiating period for the withdrawal agreement is coming to an end very soon and there simply isn't enough time to sort everything out. Especially, there isn't enough time to negotiate the final future relations agreement between the EU and the UK, and therefore, the negotiators devised this transition period, which is supposed to last until the end of 2020.

The transition period has been largely agreed in the withdrawal agreement. If you look at the text published by the European Commission with the different colours, with the colour coding, everything is in green and that means it's not going to change, but, of course, it is all subject to the overall withdrawal agreement being concluded; the mantra being that nothing is agreed until everything is agreed. So, we can't be 100 per cent sure that this is going to happen, but we can be relatively certain, I would say.

What will transition mean? It'll mean two things. The first thing is that nothing will change in substance: EU law is going to apply in the UK and to the UK, as it does at the moment. That means that the UK will be under the same broad obligations that it is at the moment, legally speaking. And people living, or being resident in the UK, or happening to be here, will continue to enjoy the same rights that flow from EU law and they will be able to enforce those rights as they can now, directly in the courts, and there will be a possibility for these cases to then go to the Court of Justice of the European Union in Luxembourg. The main difference is that the UK will no longer have a say in EU matters: it will not be taking part in the decision-making processes and, in particular, that means that there will no longer be any Members of the European Parliament from the UK and the UK Government will not take part in the Council of the EU and it will not have a vote there.

The main challenge, I believe, is the translation of this whole transition compromise into domestic law. The withdrawal agreement will require the UK to make sure that EU law applies as it does now. So, the UK will need to replicate the effects of the European Communities Act 1972 in UK law. That means, in particular, section 2(1), which allows for the direct effect of EU law and the primacy of EU law, which means that EU law trumps domestic law, to take place. And secondly, section 2(2) of the European Communities Act, which gives the Executive a power to implement EU directives entering into force during the transition period. So, that will need to be replicated somehow as well. The easiest thing would be pretty much a copy-and-paste job, and that will probably happen in the withdrawal agreement, an implementation Bill, although we haven't seen a Bill yet, so we don't know. But that's what I'm guessing will happen.

This will then need to be co-ordinated—. Sorry.

15:10

Sorry. I've got some echoes here. Sorry. Apologies.

This will then need to be co-ordinated with the EU withdrawal Bill. As you know, the EU withdrawal Bill repeals the European Communities Act and it'll probably continue to do so, even if the withdrawal agreement is agreed as it is and the transition period will happen. So, we'll need this replacement, but we will also need to make sure that the powers in the EU withdrawal Bill given to Ministers to amend retained EU law are not exercised before the end of the transition period, or at least that they are not exercised in a manner that substantively changes EU law until we've reached the end of the transition period. So, there's a co-ordination effort needed, which could be, technically, quite complex.

Will that require another amendment to the EU withdrawal Bill, or could that be done through another Bill?

That's a good question. I mean, purely from an EU perspective, the EU will only be interested in ensuring that the UK complies with its commitments under the withdrawal agreement, and how the UK does this is of no interest, really, to the EU, as long as it does so. So, it could even be done in a way that Ministers simply do not make use of those powers during the transition period. Now, that's a bit risky, perhaps, but if they don't do anything that contravenes EU law, then there's no problem. It would probably be better to do it by putting a provision into the withdrawal agreement and implementation Bill that clarifies that Ministers can't use those powers until the end of the transition period. 

15:15

Whilst I appreciate that the EU may not be worried about what happens in the UK, we and Scotland obviously would be worried about what happens in the UK. So it's important that we look at the issues in relation to how that is implemented within UK law. Jane—or, sorry, Llyr.

What would happen if there was disagreement as to whether something contravenes EU rules within that transition period?

Well, because EU law would continue to apply, as it does now, the normal enforcement mechanisms of EU law would equally apply, so the European Commission would continue to perform its role as it does now. So, there's the infringement procedure and article 258 that can eventually result in a court case against the UK. It's an interesting question here, because in practice these procedures take quite a long time, so it might well happen that the transition period would be over by the time any case reached the Court of Justice.

So, there is a slight enforcement issue here on the part of both, actually, the EU and the UK side. There's the joint committee that is given a role in managing the agreement, if you want, in facilitating it and providing some supervision of the withdrawal agreement as a whole. The joint committee doesn't seem to have a specific role in the transition period, but the withdrawal agreement doesn't say anything about the joint committee not having such a role either, so that might be one way of raising issues and communicating between the EU side and the UK side, perhaps outside the formal process of infringement proceedings that are very much top-down, and perhaps might not be as effective and as efficient as they would be if the UK was still a member state.

We've just been taking evidence about what this EU-UK committee could mean. It sounds as though at the moment it's very unclear and there are no answers really about membership or how it will be set up. What we're very interested in is what role the devolved legislatures can have in terms of oversight or monitoring the role of that committee. But obviously it's part of the draft legal text of the withdrawal agreement that there should be that committee, and issues around dispute resolution also, obviously, are addressed in that.

You've talked about the novelty of the whole transition period. There's nothing to go by. It might be over before it—. It's going to go quickly, isn't it, in terms of the period for transition? But have you got anything more that you feel you need to say from a legal perspective on the role of the committee—this proposed joint UK-EU committee? I'm interested that you feel that it's relatively sure that we will get this transition period, but there's still so much uncertainty about it happening, and then what powers and opportunities we've got to monitor how it progresses through, and the role of the EU in that time, particularly in relation to dispute resolution.

It's rather complex. On the joint committee, joint committees are quite a common feature of trade agreements, especially the ones concluded by the EU. There has to be some way of communicating between the parties after the agreement is concluded, and it is usually a representative from each party, and they come together on a regular basis to review and to talk about issues arising, basically. So, it's just a forum for communication, really, between the parties to an agreement. Now, here, we've got an unusual agreement, of course. It presupposes much closer relations then we would have, say, between the EU and Canada under the comprehensive economic and trade agreement, where there is also a joint committee.

In terms of composition, perhaps, the withdrawal agreement is clear, there will be a representative from the EU side and a representative from the UK side. The withdrawal agreement doesn't say anything about who that will be on the UK side, and it would be particularly interesting, of course, in how far the UK Government would be amenable to either including—or how it would include representatives from the devolved Governments when it comes to devolved issues. But there is no clarity about this at all, and it's a UK internal matter to deal with this. How this could be done probably is one of those big constitutional questions, actually, we'll need to ask ourselves when it comes to the management of UK trade deals and UK external relations post Brexit much more generally.

But, back to dispute settlement under the withdrawal agreement, briefly, if I may. So, we've got different questions that can arise. There can be disputes about aspects of the withdrawal agreement that have nothing to do with transition, and for those disputes the withdrawal agreement is relatively clear. Though it hasn't been agreed yet by the UK, the withdrawal agreement envisages the joint committee being the first port of call, so it'd basically be a diplomatic type of dispute settlement. The joint committee has to decide by agreement, so if both parties can't agree, the withdrawal agreement at the moment, as it is drafted by the Commission, foresees cases going to the Court of Justice of the EU on this matter, but the UK Government is reluctant to accept this. So, this is why we don't have agreement on this.

When it comes to the transition period, because we've got the full panoply of EU law as it applies now, the dispute settlement would either be instigated by the European Commission, and it could go through the enforcement procedure that I've explained, or if the UK, for instance, were unhappy with a legislative Act coming down or with a decision that was made by the European Commission affecting the United Kingdom, say on subsidies, on state aid, or whatever, it could still challenge these in the normal ways before the Court of Justice. So, during the transition period, not that much is going to change. But, of course, what the UK will lose, and that is crucial and significant, is its influence on the decision-making processes within the EU. It will be with one foot, at least, outside of the EU already, and that will make it very, very difficult to influence anything that is happening at EU level, within the EU and among the EU-27 at that point.

15:20

Obviously, in terms of the precedents, historically, dispute resolutions take a long time to be resolved anyway. It would start with how we'd get it through anyway, as well as the disagreement about the European Court of Justice. It's going to be hard to see how a dispute could be resolved in that period of time of the transition.

Can I ask a question on the back of that, if that's okay? Jane's quite right: any dispute resolution, or even going to the ECJ to solve a matter of dispute, takes forever. How realistic is it that if the UK, during the transition period, actually commits a breach of EU law, that the EU or an EU state would bother taking the UK to a dispute resolution or even the ECJ? Because it takes so long, it's going to be so out of date as a decision by the time it's taken. The reason I ask is because if the chances are small, then there's a question about why the UK is making such a fuss about it, because, in practical terms, it's probably not the threat they think it is.

When it comes to a concrete example, say, a city in the UK exceeds certain limits on air pollution—we've had instances of that over the last couple of months and years, and it's very likely that this is going to happen again. The EU Commission then starts infringement proceedings. If they came to the Court of Justice, which they often don't, but if they arrived at the Court of Justice it would be a couple of years down the line, because there's a long pre-procedure where things can be resolved amicably, if you will.

Yes, that is indeed an issue and, if you look at the withdrawal agreement, the EU has seen this as a problem, and they have included a clause there where they are saying that, in certain cases, the EU reserves the right to unilaterally suspend certain benefits arising from the withdrawal agreement. I'm struggling to find the exact number in the agreement now, but there is such a clause that envisages exactly that problem. If the UK wanted to be abusive, so to speak, of the agreement and simply say, 'We're not going to abide by any rules at the moment', the EU would then have a chance to unilaterally say, 'Well, we're not going to give you access to the market in financial services from now on until you have complied.'

Again, these are very, very extreme—it's a very, very extreme measure. In most cases, indeed, if a new infringement happens during the transition period, not much is probably going to happen, and both parties simply have to assume that they will abide by the agreement in good faith.  

15:25

It may depend a little bit on the nature of the infringement perhaps, on whether the EU would be prepared to go to all this trouble. 

Yes, I think it would be in extreme cases, as I say: if the UK—I'm just making this up now—but if the UK stopped accepting EU migrants during the transition period full stop, for instance. 

Yes, but there will be other external factors that might move the goalposts somewhat in terms of early discussions around trade agreements and this, that and the other, and if alternatives emerge within that period, then the UK Government might well decide to plough a different furrow. I know it's an unknown, but it's—. 

That is perhaps possible, but we don't know, yes. 

Just a short point. You referred to the CETA agreement and the joint committee established there. Do the Canadian provinces have any representation or even attendance rights? 

I do not know, I'm sorry. 

In a sense, the question is: do you envisage any changes to the devolved settlements as a consequence of the transition period, or post transition period? 

I would read the transition period as a continuation of the status quo, and because the status quo will have to be retained, that, of course, means that—. Sorry. When I spoke earlier about having to bring legislation into Parliament and putting it into effect, that the transition period can work, that EU law can take the effects that it has at the moment, and that new EU legislation can be transposed by Ministers, that will, of course, have to be translated down to the devolved level as well. So, that would mean certain amendments to the Government of Wales Act 2006, which, at the moment, limits the powers of the Assembly and the powers of the Government because they're not allowed to or they can't act contrary to EU law.

And, of course, EU law as such will no longer be binding, but EU law as translated or as conceived by the withdrawal agreement will continue to be binding. So, there will at least need to be some slight changes to the devolution Act in order to make that work, because otherwise there would be no limits to the powers of the devolved Governments and legislatures. Equally, the devolved Governments would not have the power to implement EU directives within the purview of their competencies. So, slight changes will have to be made. I don't think there will have to be any major changes before the end of the transition period. 

But it is possible, therefore, where Wales, in particular, and Scotland have responsibilities that are currently under the purview of EU laws and regulations, as they are devolved back to the institutions during that transition period, that there are some possible complications that may arise. 

15:30

I think the complications can be ironed out before they arise, in the sense that if you look at section 158 of the Government of Wales Act, where the definitions are, and the way EU law is defined, it's currently defined as the treaties and so on and so on. That would need to change, because the UK will no longer be bound by the treaties directly, but it will be bound by the EU-UK withdrawal agreement and the EU treaties will be indirectly binding through that withdrawal agreement during the transition period. So, that definition at least would need to be changed, so there will need to be changes to the Government of Wales Act and the parallel provisions in the Scotland Act and Northern Ireland Act.

Can I ask a question as to article 50? How do you think the article 50 mechanism affects the transition issues and does it put any constraints upon them?

The transition agreement will be agreed on the basis of article 50. Article 50 will be the legal basis, and, in EU law, that is quite important. If you use the wrong legal basis, an international agreement can be declared not binding on the EU by the Court of Justice, or at least not binding in EU law within the EU legal order. So, it is a risky business, basing anything on untested articles such as article 50. We wouldn't have any authoritative readings on this by the court itself, but the constraints, I would say, are that the transition period has to be time limited and it has to be reasonably short. It doesn't have to be as short as is envisaged, but it can't be particularly long. It cannot be the basis, in other words, for the future EU-UK relationship. The transition period can't simply morph into that future EU-UK relationship without a new agreement based on a proper legal basis in the EU treaties.

In a sense, article 50 can be extended with the unanimous agreement of all members of the EU-27. The transition period at the moment is up to the point of 31 December 2020. Is it easier to extend that as well if we have the unanimous view of the EU-27?

That is one of those things that aren't quite clear, because article 50 doesn't expressly envisage a transition period; it's something that clever lawyers came up with after the fact and, I believe, after the UK had notified the council of its intention to leave in 2017. So, there is no express provision. So, the lawyers, like myself, and academics are slightly divided on this issue. There are some who say, 'Yes, it's possible to use article 50 again to extend the transition period, because, if you agreed it on that basis, why shouldn't you be able to agree amendments to the withdrawal agreement and the transition period on the same legal basis?' Others say, 'No, you can't do it.'

I have some sympathy with that view, I must say, because article 50 is clearly designed to allow an agreement between the EU and a departing member state, but nonetheless a member state—a country that is still currently in the EU. If, say, in August 2020 we realise that we need a longer transition period, the UK will be outside the EU at that point and I'm not sure—I really have serious doubts—that article 50 can be used to extend the transition period at that point in time. Nonetheless, it is legally possible to do it, but the process will be a slightly more complex one. You probably need unanimity amongst all remaining 27 member states. You will need the approval of the European Parliament, and that might do the trick in the end, because it would then be based on other competence bases. 

And there's nothing, as far as we know, within the withdrawal agreement that allows that possibility of an extension to be sought.

That would be the ideal solution, I think. 

I was interested in what you just asked, so that was really helpful. 

15:35

You referred to the need to, potentially, amend the Government of Wales Act 2006, but what, if any, other changes do you envisage might be needed to the devolution settlements as a result of any agreement on transition? 

I don't think we need any substantive changes. It was made, I mean, legally speaking—politically, you will have your own views on these matters, I'm sure—because, really, nothing is going to change. The full panoply of EU policies is going to continue to apply as if the UK were a member of the EU, and the UK will remain committed to implementing new EU legislation as it's coming down. It won't be a huge amount, but there will be some new EU directives that will have to be transposed before 31 December 2020, and if they fall within the competence of the Welsh Assembly, then it will be up to the Welsh Ministers to do that.  

Why do you state that the current text of the draft withdrawal agreement doesn't fully answer the question as to whether the UK will be able to negotiate and sign free trade agreements with other countries during the transition period, albeit that those couldn't come into force until after December 2020?

Okay. Maybe I was referring to the older—. There was a previous version of the withdrawal agreement—and the earlier version was a Commission text without the agreement of the UK—that indeed did exclude the possibility for the UK to even negotiate such agreements. That has now been changed and agreed in article 124, where the UK is now allowed to negotiate and even conclude these agreements provided that they don't enter into force before the end of the transition period. 

That's helpful. Thank you for the clarification. In a similar vein, I think there's been some confusion over what action might be required by the UK or the EU, or both, to ensure that the UK continues to be covered by existing EU third party trade agreements during the transition period. What's your understanding of that?

There is indeed a legal issue here. The UK and the EU cannot unilaterally, or between them, decide whether an agreement concluded with a third party should be binding on that third party after Brexit and during the transition period. So, they will need to seek the consent of third parties. It's relatively complex because it depends a little bit on the exact nature of the agreement concerned. There are some agreements that the UK is party to in its own right—so-called mixed agreements. The World Trade Organization agreements are an example—the UK is a party to the WTO together with the EU. But there are also agreements that only the EU has concluded, without the member states, and, in those cases, it very much depends upon how that particular agreement defines its own scope of application. So, for instance, the South Korean free trade agreement that the EU has says something along the lines of, 'It shall apply to everywhere where the EU treaties apply'. Now, you can interpret that as encompassing the UK during the transition period, because, after all, the EU treaties will apply as if the UK was a member state, but there is a certain risk that the South Koreans won't accept that. So, I believe that it is for both the EU and the UK to make sure that these third countries give their consent to the UK being fully covered as if it was a member state during the transition period. So, something has to be done; you can't just rely on this happening automatically; I think that would be negligent.

15:40

Thank you. There's another question, actually, I'd like to ask from the suggested—

Okay. You mentioned, before, potential disagreement on the role of the European Court of Justice in dispute resolution. How might that be resolved? Can you see a model that might resolve that, perhaps looking at the current arrangements that the Swiss, for example, have, or otherwise?

Yes. This is going to be a difficult issue for both sides, I suppose. The EU has a constitutional constraint. And we're talking here about the future relationship; we're not talking about the transition, because that's all been agreed. When we're talking about the future relationship, the EU is constrained by its own constitutional rules in that it cannot allow a third court or an independent court, which would be some international court that the EU and the UK had agreed upon, to interpret rules of EU law. That has to be reserved to the ECJ itself, to the Court of Justice, and this leads us to the solution we actually find in the EEA, in the Norway model, which is a solution whereby Norway, Iceland, Liechtenstein have their own court, which is the EFTA court, and the EU member states of the EU have their own court, which is the Court of Justice, and they basically exist in parallel. We've got a bifurcated dispute settlement system here. The EFTA court must pay attention to what the ECJ is doing, but at the end of the day decides these disputes on the basis of the same rules but independently, and a similar model could be envisaged for the UK as well. So, the EU side would have the Court of Justice to decide disputes that were brought within EU member states, and the UK would have its own way of resolving this. 

Now, the UK could either hook up to the EFTA court or create its own international court, but that, to me, would seem a bit silly, if you're thinking about the UK being the only party that would ever be affected by the decisions of one particular international court. So, I think the pragmatic—. That doesn't mean it's going to happen, but the pragmatic solution, in my eyes, would be for the UK to guarantee a separate chamber of the Supreme Court or indeed a separate court that would deal with these issues at the domestic level and that would have certain connections back to the Court of Justice. So, if you had a similar model to the EFTA court system and the EEA system, that would work. But that is only necessary, of course, if both sides apply the same rules—and if both sides apply EU law in fact. So, if the UK-EU relationship was far more distant than it is now, if we had some sort of a Canada-type free trade agreement, that would be quite generic. One, of course, dispute settlement could take all sorts of forms: it can be just the joint committee, a political dispute settlement; it can be a joint committee and a third-party dispute settlement, say, an arbitration panel, but it would still be only between the two parties, between the EU and the UK, so only the EU could bring cases, or the UK could bring cases, but there would be no possibilities for individuals to raise issues before those courts; or you could have a much more advanced model whereby you'd have individual access to some extent and in some shape or form, but that could then become a bit tricky with what the Court of Justice would be willing to accept. It would really come down to the minutiae of the agreement reached.

Can I expand that a little bit further, in the sense that if it is a situation where, as you say, individuals may be—? Because we're also concerned about the role of Parliaments across the UK and what role we would have in referral to either the committee, the joint committee, or to, perhaps, some form of resolution aspect. So, is the UK currently working towards something that will allow that to happen? And how long do you think it could take to organise such things? Because I'm concerned deeply about the timescales we're now operating under.

15:45

Well, if I understand the UK correctly, I think there is a desire to keep dispute settlement relatively traditional and at the international law stage, which would mean that dispute settlement, really—court dispute settlement or indeed joint committee dispute settlement—would be happening between the parties to the agreement only. So, there would be no way of, say, either institutional actors like the devolved Assemblies bypassing the UK Government and bringing a case before a court or indeed individuals, even, being able to bypass their own Governments in bringing a case either through the national courts or directly. I don't think that that is something the UK currently wants to happen, but we don't know—. It would be possible to do this. It would certainly make the agreement a lot more efficient if you allow individual actors or sub-states, or even sub-Government actors, to get involved directly because they have different interests to the Government as a whole and the Government might be constrained by other diplomatic considerations that they might have, whereas individuals don't tend to have those considerations and they just bring cases.

So, it would be possible. Would it be possible to set it up? Well, I think a court is a relatively easy thing to set up. I know it sounds a bit optimistic, but there is always a time lag until cases actually materialise. So, even if it wasn't ready on 30 December 2020, you'd always have a year or two until you'd actually come to the point when the first cases would arrive, and, by then, you could set up a relatively modest international arbitration body or something; I think that would be possible.

It is possible, but in what you're reading of the current discussions going on, particularly as we see the devolved institutions now looking to have some form of constitutional agenda within the UK to ensure that that can happen, are they any moves, as you can see, of that actually taking place at this point in time?

I can't see anything like this, to be honest. I haven't heard of any proposals to the extent that the devolved Governments or the devolved Assemblies—legislatures—should be given a direct role at the international level. I think discussions are mainly about strengthening the domestic influence that would then influence the Government's position internationally—the UK Government's position internationally. I think that's how I read the situation.

Okay. Thank you. Do the Members have any other questions? No. Well, can I thank you this afternoon for your evidence? It's been very welcome and very interesting to have that. You'll receive a copy of the transcript for any factual inaccuracies. Please let the clerks know if you see any. Once again, thank you very much, and we do appreciate your time this afternoon.

4. Papurau i’w nodi
4. Papers to note

Okay, we move on to the next item on the agenda, which is papers to note. The first paper is a correspondence from Robin Walker, who's the Parliamentary Under-Secretary of State for Exiting the European Union. If we remember, when he appeared before the committee, we did ask him about the nominations for the Committee of the Regions, and he has produced a response that indicates that they are hoping to have those progressed in time for the July plenary of the Committee of the Regions. Are Members content to note that?

The second paper is correspondence from Mark Drakeford, the Cabinet Secretary for Finance, regarding the new ministerial forum that, effectively, took place for the first meeting on 24 May. In relation to this matter, in his penultimate paragraph—and I assume in the Welsh version of the letter will be the final paragraph—he indicates it may be beneficial for his officials to work with the committee team on the best mechanism to keep Members informed. Are Members content for me to write back to the Cabinet Secretary to seek to explore that avenue to see how we can set that up?

Can I just ask a question on that? I notice Rebecca Evans is going to be the representative on that. Nothing against her at all, but that strikes me as slightly unusual. Do you have any indication why it's not Mark himself that's going to be doing it?

15:50

That's when I spoke to Mark privately. I did ask the question and I got the indication that it was simply the amount of time and the number of meetings he would have to attend, and therefore he couldn't necessarily do it. But what he did indicate to me—and I need to get clarification—is that this ministerial forum will report back to the JMC(EN).

So, then it goes up to Mark's level at that next stage. That's the understanding, and that's the clarification we'll have when we write to Mark.

Okay. The third paper to note is a letter to Mark Drakeford from the Chair of the Constitutional and Legislative Affairs Committee seeking some clarification, and he's copied us in for information purposes. Are Members content at this stage to note that? Thank you for that.

5. Cynnig o dan Reol Sefydlog 17.42(vi) i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
5. 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 5—in accordance with Standing Order 17.42(vi), can we now resolve to meet in private for the remainder of this meeting? Are Members content?

Then we move into private session for the remainder of this meeting.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:51.

Motion agreed.

The public part of the meeting ended at 15:51.

Eglurhad / Clarification:

The publication being referred to is the promised immigration policy White Paper.

Dysgu am Senedd Cymru