Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

16/09/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd AC
Mick Antoniw AC Cadeirydd y Pwyllgor
Committee Chair
Suzy Davies AC

Y rhai eraill a oedd yn bresennol

Others in Attendance

Angharad Thomas-Richards Llywodraeth Cymru
Welsh Government
Diane Dunning Llywodraeth Cymru
Welsh Government
Dr Hugh Rawlings CB Llywodraeth Cymru
Welsh Government
Jeremy Miles AC Y Cwnsler Cyffredinol a'r Gweinidog Brexit
The Counsel General and Brexit Minister
Simon Brindle Llywodraeth Cymru
Welsh Government

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Rachael Davies Dirprwy Glerc
Deputy Clerk
Rhiannon Lewis Cynghorydd Cyfreithiol
Legal Adviser
Samiwel Davies Cynghorydd Cyfreithiol
Legal Adviser
Sara Moran Ymchwilydd
Researcher
Sarah Sargent Ail Glerc
Second Clerk

Cynnwys

Contents

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau 1. Introduction, apologies, substitutions and declarations of interest
2. Gorchymyn yn y Cyfrin Gyngor arfaethedig - Gorchymyn Deddf Llywodraeth Cymru 2006 (Diwygio) 2019: Sesiwn dystiolaeth 2. Proposed Order in Council - The Government of Wales Act 2006 (Amendment) Order 2019: Evidence session
3. Y Newid yng Nghyfansoddiad Cymru: Sesiwn dystiolaeth 1 3. Wales's Changing Constitution: Evidence session 1
4. Offerynnau negyddol arfaethedig nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B 4. Proposed negative instruments that raise no reporting issues under Standing Order 21.3B
5. Offerynnau negyddol arfaethedig sy’n cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B 5. Proposed negative instruments that raise reporting issues under Standing Order 21.3B
6. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3 6. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3
7. Offerynnau sy’n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.2 neu 21.3 7. Instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3
9. Offerynnau statudol sydd angen cydsyniad y Cynulliad: Ymadael â’r UE 9. Statutory Instruments requiring Assembly consent: Brexit
11. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C 11. Written statements under Standing Order 30C
12. Fforwm Rhyngseneddol ar y DU yn Gadael yr Undeb Ewropeaidd: Y wybodaeth ddiweddaraf 12. Inter-parliamentary Forum on Brexit: Update
13. Papurau i’w nodi 13. Papers to note
14. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o’r cyfarfod 14. Motion under Standing Order 17.42 to resolve to exclude the public from the meeting

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 13:10.

The meeting began at 13:10.

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

Okay, this is a meeting of the Constitutional and Legislative Affairs Committee. To start out with the preliminary housekeeping matters, in the event of a fire alarm Members should leave the room via the marked fire exits and follow instructions from the ushers and staff. No test is forecast. Mobile devices are to be switched off to silent mode. The National Assembly operates through the medium of both the Welsh and English languages and headphones are provided. We have apologies today from Carwyn Jones, who is unable to attend. If I can welcome the Counsel General and your staff to the meeting today, I think we'll just move straight on to item 1 if that's okay and there are no opening comments or anything you want to make. Shall we go straight into questions?

In your hands, Chair.

2. Gorchymyn yn y Cyfrin Gyngor arfaethedig - Gorchymyn Deddf Llywodraeth Cymru 2006 (Diwygio) 2019: Sesiwn dystiolaeth
2. Proposed Order in Council - The Government of Wales Act 2006 (Amendment) Order 2019: Evidence session

Okay. So, we'll deal with item 2 on the agenda, which is the Proposed Order in Council—The Government of Wales Act 2006 (Amendment) Order 2019. I suppose the opening question, really, is: can you outline and explain what the purpose of this Order is?

Thank you, Chair. Thank you for the invitation to come and give evidence today. I'm joined by Hugh Rawlings, Diane Dunning and Angharad Thomas-Richards. The purpose of the Order is to confer functions on an electoral registration officer in relation to the canvass reform programme, which is intended to commence next year. The objective is to facilitate a reform that enables several innovations in canvass arrangements, introducing a national data match so that EROs are able to base their assessment of people who are entitled to be registered on other public records—council tax records and similar—then to allow that matching exercise to dictate or suggest the form of registration that follows and to provide some additional flexibility for the way in which the canvass is communicated to electors. So, the driver for the Order is the need to put in place arrangements for the canvass reform, but obviously, as I'm sure we'll go on to talk, it has touchpoints with other legislation that is coming through the Assembly.

So, it's an extension of the competence of the Assembly in order to deal with legislation relating to devolved electoral matters and obviously changes for the future. Any other questions? No. I suppose the one question I did want to ask was in respect of the function of the electoral registration officers—specifically, if you have any further specific information as to what precisely needs to change or will be considered for change in the future.

Well, the issue arises, Chair, from an analysis that we undertook of competence in relation to the functions of the ERO. The ERO was, on our analysis, regarded as a reserved authority for the purpose of the legislation, which effectively, as the committee will be aware, limits competence for modifications and functions without Minister of the Crown consent. So, that's relevant for both the Senedd and Elections (Wales) Bill and it's also relevant in the context of the Local Government (Wales) Bill.

With regard to the Senedd Bill, as Members will know, the franchise will be extended to 16 and 17-year-olds in that Bill, and the Order is predicated on that extended franchise. So, in terms of the sequencing of the Order with legislation, it will be important to make sure that the Senedd and elections Bill obtains Royal Assent before the Order—before the arrangements to canvass are made.

In relation to the local government Bill, effectively, by introducing and bringing the Order into effect, that will remove the need for Minister of the Crown consent, because it will have the effect of altering the competence that we have here to exercise. So, in effect, by making that Order, it will remove that additional requirement from the local government Bill in due course.

13:15

Yes. Presumably this Order can stand alone anyway, because you can't introduce something on the basis of an Act that's not passed yet. If the Senedd and Elections (Wales) Bill shouldn't pass, presumably this Order still has a function inasmuch as it gives the electoral register officers powers anyway.

Yes. It does that, yes. It needs to be sequenced carefully because although, as you mentioned, it stands alone, it operates by way of amendment to, effectively, provisions that would have been brought into effect by a UK Government statutory instrument, and so there's a series of judgments around the sequencing of it, which is why the timing of it is so important—they both, effectively, need to be in place by the end of January 2020 in order to enable the data-matching process to be undertaken within the current timetable.

Yes. And, if the Welsh Bill fails, this Order can just carry on anyway. That was—.

Pwynt mwy technegol: allaf i jest gofyn pam mae'r Comisiwn Etholiadol eisoes wedi'i eithrio o'r gofyniad am gydsyniad Gweinidog y Goron tra nad yw swyddogion cofrestru etholiadol wedi'u heithrio? Pam y gwahaniaeth?

A more technical point: I just wanted to ask why the Electoral Commission is already listed as a reserved authority with regard to Minister of the Crown consent while the EROs are not. Why is there that difference?

Mae'r Comisiwn Etholiadol hefyd yn—dwi ddim yn gwybod y term Cymraeg, ond— reserved authority ar gyfer pwrpas y ddeddf. Mae mesurau penodol, fel dŷch chi'n awgrymu, ynghlwm gyda'r Comisiwn Etholiadol. Dyw e ddim yn glir, a dweud y gwir, pam mae gwahaniaeth rhwng y ddau. Mae'n debyg bod—efallai bod camgymeriad wedi digwydd, neu ddadansoddiad gwahanol ynglŷn â rôl y Comisiwn Etholiadol, ond, wedi ymgymryd â Llywodraeth y Deyrnas Gyfunol ar y cwestiwn hwn, maen nhw o'r farn bod yr EROs yn reserved authority, ac felly bod angen cael cydsyniad i hynny, ac mae'r cydsyniad—maen nhw'n barod i wneud hynny, wrth gwrs, hefyd.

The Electoral Commission—I don't know the Welsh term, but it's a reserved authority for the purpose of this legislation. There are particular functions, as you suggest, relating to the Electoral Commission and it's not clear, if truth be told, why there is this difference between the two. Perhaps there'd been an error or a different analysis of the role of the Electoral Commission, but, having discussed this question with the UK Government, they are of the view that the EROs are a reserved authority and that you do need consent for that, and they are willing to provide that.

Ac felly mae'r Gorchymyn Cyfrin Gyngor yma yn goresgyn y broblem yna, neu'r her yna.

And so this Order in Council overcomes that challenge, doesn't it?

Ydy. Gwnaf ofyn i Hugh wneud sylwad.

Yes. I'll ask Hugh to comment.

The Counsel General has been very polite. We missed it. It was an error—simple as that.

Okay. And can I ask a couple of points with regard to the recent events? Because prorogation has taken place—does this have any impact on the status of this Order?

Well, prorogation itself won't. Unlikely primary legislation, secondary legislation actually doesn't fall because of prorogation itself. So, the Order was laid in July, it's been approved already by the House of Lords, and so it would be open to the House of Commons to consider this Order when the new session begins. However, we know a general election is coming down the track at some point, and if the Order hasn't been made by the time Parliament is dissolved then the Order will fall. So, dissolution affects the Order but prorogation actually doesn't.

Does that mean that you're not really expecting many more of these section 109 Orders in the near future, because of a potential election?

There is one that we have in scope at the moment, which relates to a matter that arose during the process of transferring functions, effectively, to the Government and Assembly here. In the course of doing that there was an exercise to ensure that the powers being transferred could be exercised practically and pragmatically, and so a certain category of those are exercisable by Welsh Ministers or by the Secretary of State, with or without consent—it depends on the nature of it. We identified that as having the potential of limiting, if it wasn't addressed, the future capacity of the Assembly to make changes, because it might modify functions of the Crown. So, we entered into correspondence with the UK Government and agreed with them that we could address that by means of a section 109 Order to tackle that specific issue. We haven't yet had that section 109 Order in draft. I don't know why that is. It's possible there is a judgment being reached about whether the section 109 Order tackles only expressly the issues that are identified to date in that process, or whether it takes, I guess, a broader approach so that more of those issues could be caught in principle. I'm not clear on that point. But, above and beyond that particular one, I don't have anything in mind at the moment.

13:20

Jest i fynd nôl i'r Gorchymyn yma sydd o'n blaenau ni prynhawn yma, ar lefel llawr gwlad felly pa wahaniaeth dŷch chi'n ei ragweld fydd hwn yn ei wneud i swyddogaethau neu i waith y swyddogion cofrestru etholiadol ar y llawr, hynny yw? Neu ydych chi'n bwriadu fel Llywodraeth newid eu swyddogaeth nhw mewn rhyw ffordd sydd ddim yn amlwg? Ond sut fuasech chi'n defnyddio'r Gorchymyn Cyfrin Gyngor yma i potentially newid beth mae swyddogion yn ei wneud ar y llawr amser etholiadau?

Just going back to this point of this Order in front of us today, on the ground what difference does you foresee this making to the functions or the work of the EROs on the ground? Or do you intend as a Government to change or modify their functions in a way? How would you use this Order in Council potentially to modify what the EROs do on the ground at the time of elections?

Mae e'n rhan o gymysgedd o'r Gorchymyn hwn a'r ddeddfwriaeth i sicrhau ei fod e'n haws i gael unigolion ar y gofrestr etholiadol—hynny yw, sicrhau ein bod ni'n gallu defnyddio, neu bod yr EROs yn gallu defnyddio, gwybodaeth gyhoeddus sydd eisoes yn hysbys i ddadansoddi pwy sy'n debygol o fod yn gallu cael eu cofrestru, a wedyn sicrhau eu bod nhw'n gallu cadw database o'r wybodaeth honno. A hefyd mae'r posibilrwydd o allu cyflwyno system o beilota etholiadol i gyflwyno mesurau. Ar hyn o bryd, mae'n bosib i Lywodraeth Cymru wneud hynny gyda cydsyniad yr EROs, ond yr hyn sydd mewn golwg yn sgil y darpariaethau hyn yw bod hynny'n gallu digwydd heb orfod cael cydsyniad yr EROs—bod y Llywodraeth gyda'r grym i allu cyflwyno'r peilota yna yn annibynnol, fel petai.

It's a mix of this Order and the legislation to ensure that it's easier to register individuals on the register, and to ensure that the EROs can use publicly available information in order to analyse who is likely to be able to be registered, and then to ensure that they can keep a database of that information. And there is also the possibility of introducing an electoral piloting system to introduce measures. At the moment, it's possible for the Welsh Government to do that with the consent of the EROs, but what is in mind as a result of these provisions is that that could happen without having to have that consent—that the Government would have the powers to introduce those pilots independently, as it were.

Ac ydych chi'n rhagweld amserlen ar gyfer hyn oll? Pryd dŷn ni'n gallu disgwyl bydd hyn yn digwydd ar y llawr, felly?

And do you foresee a timetable for all of this? When can we expect to see this happening on the ground?

Wel, am y rheswm rôn i'n sôn gynnau—bod angen cael y Gorchymyn yn ei le erbyn Ionawr er mwyn sicrhau bod y broses yn gallu mynd rhagddi—rŷm ni'n disgwyl gyfwyno fe cyn y Nadolig.

Well, for the reasons I mentioned earlier—that we need to get the Order in place by January to ensure to ensure that the process can proceed—we hope to introduce this before Christmas.

I think that's all the questions that we had on this particular Order, so we can move on; we'll obviously discuss this later on. I understand there's a change of officials required now, if we move on to the next item. Would you like a five-minute break to do that or—?

Are we all here for the changeover? So, we just carry straight—. We're just carrying straight on then, okay.

All right, that's fine. It's like the Wales soccer team, is it? Okay, so I welcome Simon Brindle to your team.

3. Y Newid yng Nghyfansoddiad Cymru: Sesiwn dystiolaeth 1
3. Wales's Changing Constitution: Evidence session 1

As you know, Counsel General, we have started an inquiry, really, into a series of constitutional issues that have been emerging over the recent months and the last couple of years, ranging from the constitutional relationship between Wales and the UK and all the issues around that within the context of what's happening with Brexit, and also issues relating to Sewel and the inter-governmental arrangements that exist.

I'd like to start. We'll have questions on a number of areas. I would like perhaps later on just to ask a few questions about the potential court hearing tomorrow in the Supreme Court and the implications of that, but if we could start off with the Sewel convention, and, of course, this is a matter we've had considerable discussion in the past on, and just really start off with what your experience within Government is of the Sewel convention and the extent to which it has been effective, or can continue to be effective, as an inter-governmental convention.

Well, thank you, Chair, for that. In relation to experience of the application of the Sewel convention to date, we all know that the UK Government has not, to date, disregarded a decision of the Assembly on any UK Bill for which the UK Government itself agreed that consent was required. So, in that narrow but important sense, it has functioned as it was intended to.

I think there is a broader application to it, though, which merits consideration and focus. We manage to use the Sewel convention to build towards an inter-governmental agreement, for example, which we entered into with the UK Government around the time of the EU withdrawal Act, and that has been a very useful template, I think, for how we have sought, across a range of interactions with the UK Government, to build those relations or to argue for those relations to be built on the principle that action ought not to be normally taken without our consent in relation to devolved matters. So, there have been particular examples, haven't there, where inter-governmental agreements have been reached ancillary to other legislation—healthcare international arrangements legislation is a good example of that, and the agriculture Bill, I think, is another illustration of that.

So, I think in that sense it's been productive. But, of course, we also know, don't we, that the Scottish experience of it has been different. The fact the EU withdrawal Act was passed without the consent of the Scottish Parliament I think is very concerning, and I think not only because the UK Government disregarded the refusal of the Scottish Parliament, but also the UK Parliament was not given an opportunity to take that into account. So, there are some signals and signposts there for us of what we need to do, I think, to strengthen the protections that we get beyond those that we currently have through the Sewel convention.

13:25

There are one or two areas, of course, where we've been asking the UK Government to legislate on our behalf. Dai, you had a number of questions you wanted to ask. I'll come back, because I wanted to follow up on one point, but—

Ie, popeth yn iawn, dim problem. Yn fwy cyffredinol, efallai, i ddechrau, allech chi jest olrhain yr holl symudiadau sydd wedi digwydd ynglŷn â Brexit a pha effaith mae'r gwanhaol weithdrefnau yn gyffredinol, ŷch chi'n credu, yn gallu'i chael ar setliad datganoli Cymru yn gyffredinol, yr holl sôn yma ynglŷn â Brexit? Os dŷch chi eisiau mwy o fanylder, fe alla i jest mireinio: pan fyddwn ni'n gofyn yn fan hyn i Lywodraeth y Deyrnas Unedig ddeddfu mewn meysydd datganoledig mewn perthynas ag ymadael â'r Undeb Ewropeaidd, ydych chi'n credu bod hynny'n gallu peri risg i danseilio egwyddor a phwrpas datganoli, os ydyn ni'n gadael i lywodraeth mewn gwlad arall ddeddfu ar ein rhan?

Yes, fine, no problem at all. More generally, perhaps, to begin with, could you just tell us a little bit about all of the movement that there has been with regard to Brexit and what impact the different procedures and so on can have on the Welsh devolution settlement in general, all of this mention made of Brexit? If you want a bit more detail on that, I can just focus in: when we ask in this place for the UK Government to legislate in devolved areas with regard to exiting the European Union, do you believe that that could pose a risk in terms of undermining the principle and purpose of devolution if we allow a government in another nation to legislate on our behalf?

Wel, mae'r broses o adael yr Undeb Ewropeaidd yn sgil penderfyniad y refferendwm wedi creu sialensau mawr i ni i gyd fel deddfwriaethau, fel llywodraethau, ar draws y Deyrnas Gyfunol yn gyffredinol. Wrth gwrs, y cyfan—am resymau hollol amlwg i ni i gyd—y byddwn ni eisiau fel y Cynulliad, rwy'n siŵr, ac fel Llywodraeth, yw sicrhau bod cymaint ag sy'n bosib yn gallu digwydd yma o fewn ein gallu ni fel sefydliadau.

Ond, yng nghyd-destun arbennig a sbesiffig iawn Brexit, gyda maint y sialens o drosglwyddo'r holl ddeddfwriaeth Ewropeaidd i'n deddfwriaeth cenedlaethol ni yng Nghymru ac ar draws y Deyrnas Gyfunol yn fwy cyffredinol, yn y cyd-destun sbesiffig iawn hwnnw, penderfynom ni wrth gwrs i gydweithio â Llywodraeth y Deyrnas Unedig a gofyn iddyn nhw sicrhau bod ein llyfr statud ni yn gallu gweithio'n iawn ar gyfer gadael yr Undeb Ewropeaidd. Fe wnaethom ni gytundeb rhynglywodraethol, fel dŷch chi'n gwybod, ac mae hwnna wedi bod yn sail i sicrhau bod ein cydsyniad ni a'n cydlyniad ni fel Cynulliad wedi bod yn angenrheidiol i'r broses honno. Rwy'n credu bod y cytundeb hwnnw, yn amlwg gan ddeall bod rhywfaint o feirniadaeth wedi bod ynglŷn â rhai elfennau ohono fe, wedi gosod sail i sicrhau bod y broses honno yn broses y mae gyda ni fel Cynulliad lais drosti hi, a bod gyda ni fel Llywodraeth lais drosti hi hefyd. Rŷch chi'n gwybod, wrth gwrs, fod cryn gyfathrebu wedi bod gyda'r pwyllgor ynglŷn â'r broses o graffu yn sgil hynny, wrth gwrs. Dwi ddim yn credu y byddai unrhyw un yn dweud ein bod ni'n edrych ar y broses honno fel proses y buasem ni'n moyn ei defnyddio fel esiampl ar gyfer y dyfodol. Ond o fewn cyd-destun arbennig Brexit a'r hyn y gallwn ni ei sicrhau drwy'r cytundeb rhynglywodraethol, rwy'n credu ein bod ni wedi sicrhau amddiffyn ein buddiannau ni fel sefydliadau yma.

Well, the process of exiting the European Union in light of the referendum result has posed major challenges for us all as legislatures and governments across the UK. Of course, generally speaking, for reasons that are totally apparent to us all, we as an Assembly and as a Government would want to ensure that as much as possible is done here within our competence.

But, in the very specific Brexit context, given the scale of the challenge of transposing all European legislation into our own national statute book in Wales and across the UK, in that very specific context, we decided that we would work with the UK Government and ask them to ensure that our statute book can work properly on exiting the European Union. We came to an inter-governmental agreement, as you know, and that's been the basis of ensuring that our consent as an Assembly has been an integral part of that process. I do think that that agreement, while, obviously, understanding that there has been some criticism of some elements of it, has laid a foundation to ensure that that process is a process that we as an Assembly do have a voice in, and we as a Government also have a voice in. You know, of course, that there has been considerable communication with the committee on the process of scrutiny. I don't think that anyone would say that we would look at that process as one that we would want to use as an exemplar for the future. But in the particular context of Brexit and what we can secure through that inter-governmental agreement, I do think that we have safeguarded our interests as institutions here.

13:30

Mi fyddwch chi'n ymwybodol nad yw'r cytundeb rhynglywodraethol yn statudol. Hynny yw, rydych chi'n dibynnu ar berthynas neu ymddiriedaeth yn y Llywodraeth yn San Steffan ar hyn, ac rydych chi'n credu eich bod chi’n cael chwarae teg yn y mater yna bob amser. Oes gyda chi ymddiriedaeth lwyr yn y Llywodraeth yn San Steffan, fel eich bod chi'n gwybod i sicrwydd nad ydym ni yn fan hyn yn cael ein tanseilio o gwbl mewn unrhyw ffordd? Dwi'n gallu meddwl am rai Mesurau, megis gofal iechyd rhyngwladol—. Roedd yna Fesur yn fanna pan oedd yna ymgais i ymledu cwmpawd y Mesur yna yn fwy na dim ond aralleirio beth oedd yn dod i lawr o'r Undeb Ewropeaidd. Dyna pam roedd y Cynulliad yma mewn ychydig bach o ofn a syndod ynglŷn â'r peth, achos roedd yna ymgais ar ran y Llywodraeth arall i ehangu cwmpawd y Mesur yna pan nad oedd hynny i fod i ddigwydd o dan ba bynnag gytundeb. So, ydych chi'n berffaith hapus yn eich hunan bod y cytundeb yma, sydd yn dibynnu ar ymddiriedaeth bersonol a heb fod ar sail gyfreithiol statudol o gwbl, yn hollol iach a'ch bod chi â llawn ymddiriedaeth yn Llywodraeth San Steffan i wneud yn siŵr bod Cymru fach ddim yn colli pwerau?

You'll be aware that the inter-governmental agreement doesn't have a statutory footing. You depend on the relationship and on trust in the UK Government in Westminster, and you believe that you receive fair play in that issue. Do you have total confidence in the UK Government, so that you know for sure that we here aren't being undermined in any way? I can think of some Bills, such as the international healthcare Bill—. There was legislation there that attempted to expand the compass of that legislation by more than just rewording what emanated from the European Union. So, that's why this Assembly was concerned and surprised about that move, because there was an attempt by the Government to extend the compass of that legislation whilst that was not supposed to happen under this agreement. So, are you entirely content in your own mind that this agreement, which depends on personal trust and doesn't have a statutory footing, is entirely healthy and that you have full confidence and trust in the Westminster Government to ensure that Wales doesn't lose any powers?

Mae'n amlwg, wrth gwrs, fod unrhyw gytundeb sy’n seiliedig ar ymddiriedaeth rhwng dau bartner â risg ynghlwm wrth hynny. Ond rydw i'n credu, o edrych ar y peth yn ymarferol, roedd gyda ni broses eithaf manwl fel Llywodraeth—manwl iawn, a dweud y gwir—i sicrhau bod y pwerau oedd yn cael eu trosglwyddo yn cael eu trosglwyddo mewn ffordd a oedd yn addas ac yn gyson ac yn sicrhau bod Gweinidogion Llywodraeth Cymru yn cael y pwerau, neu, lle'r oedd y Llywodraeth yn cytuno i hynny ddigwydd yn San Steffan, fod hynny'n digwydd, pan fyddai hynny'n addas, gyda chydsyniad y Llywodraeth yma. Felly, roedd gyda ni brosesau eithaf manwl wedi'u hadeiladu ar sail y cytundeb rhynglywodraethol i sicrhau bod ein buddiannau ni yn cael eu hamddiffyn. Wrth gwrs, mewn unrhyw broses mor eang â hyn, tasech chi'n gofyn, 'Ydy pob un achlysur wedi bod yn un heb unrhyw anghydfod?', wel, wrth gwrs allen i ddim dweud hynny. Ond, o edrych ar faint y sialens, a'r hyn y gwnaethon ni ei sicrhau, rydw i'n credu bod y mecanwaith yn ei le a'n bod ni wedi sicrhau buddiannau'r Cynulliad. 

It's clear, of course, that any agreement based on trust between two partners will have risks attached to it. But, in looking at this in practical terms, we had a very detailed process as a Government to ensure that the powers transferred were transferred in a way that was appropriate and consistent, and which ensured that Welsh Government Ministers did receive those powers, or, alternatively, where the Government agreed for that to happen in Westminster, that that would happen with the consent of the Government here. So, we did have some quite detailed processes in place which were built on the basis of the inter-governmental agreement to ensure that our interests were safeguarded. Of course, in any process as broad as this one, if you were to ask, 'Has every aspect and every event been without any disagreement?', well, of course we couldn't say that. But, looking at the scale of the challenge and what we secured, then I do think that the mechanism is in place and that we have secured the interests of this Assembly.

Ocê, efallai y dof i'n ôl at hynny. Alla i jest gofyn, yn fyr—? Gair mawr y dydd ydy 'addoediad'—prorogation. Felly, alla i ofyn am dynged Biliau sy'n gysylltiedig efo Brexit a'r Deyrnas Unedig, ac ati? Beth sydd wedi digwydd i rai o'r Biliau yma, gan, wrth gwrs, gofio bod y Cynulliad yma wedi rhoi cydsyniad i rai o'r Biliau yma eisoes? Beth sy'n digwydd nawr efo'r addoediad? Ydy'r rheini i gyd yn cwympo? Oes rhaid i ni ddechrau yn ôl ar sgwâr un? Beth sy'n digwydd?

Okay, perhaps I'll come back to that. The word of the day is 'prorogation'. So, may I ask about the fate of UK Brexit-related Bills? What has happened to those Bills, bearing in mind that the Assembly has already given its consent to some of the Bills? What's happening following the prorogation of Parliament? Do they fall? Do they go back to square one? What's happening?

Diolch am y cwestiwn. Rŷch chi'n gwybod, wrth gwrs, fy mod i wedi cymryd camau i ymyrryd yn yr achosion llys, a dyna un o'r rhesymau oedd yn ysgogiad i wneud hynny. Mae pum Mesur Brexit wedi bod o flaen y Senedd yn San Steffan, ar fasnach, ar fewnfudo, ar amaeth, ar wasanaethau ariannol ac ar bysgodfeydd. Maen nhw i gyd wedi syrthio yn sgil yr addoediad. Mae'r pwyllgor hwn a'r Cynulliad a'r Llywodraeth wedi treulio lot fawr o amser a sylw ac adnoddau yn ymwneud gyda'r rheini, gan ein bod ni wedi gofyn i'r Senedd yn San Steffan i ddeddfu ar ein rhan ni mewn rhai o'r meysydd hyn, i sicrhau bod hynny'n digwydd, ac yn cymryd yn ganiataol felly y byddai'r Senedd yn San Steffan yn cael cyfle i eistedd i gysidro’r rheini. Felly, wrth gwrs, yn sgil y ffaith bod y Mesurau hynny wedi syrthio, bydd yn rhaid edrych—ac rydym ni'n gwneud hynny ar hynny ar hyn—beth mae hynny'n ei olygu o ran opsiynau ar gyfer camau penodol i'r Cynulliad a'r Llywodraeth yma o ran deddfwriaeth. Dwi ddim yn gwybod os mai dyma'r achlysur iawn i wneud hyn, ond rydw i wedi ymyrryd yn yr achos llys, yn achos Miller, oherwydd hyn, a dwi newydd glywed bod y Goruchaf Lys wedi caniatáu i ni gael cynrychiolaeth yn yr achos hwnnw hefyd, a buaswn i'n barod, Gadeirydd, i rannu gyda chi fel pwyllgor yr achos dwi wedi'i wneud yn y ddau lys, pe bai hwnna o ddiddordeb i chi. 

Thank you for the question. You will know that I have taken steps to become involved in court proceedings, and that was one of the motivations for doing that. There are five Brexit-related Bills that have been before Parliament in Westminster, on trade, immigration, agriculture, financial services and fisheries. They have all fallen as a result of the prorogation. This committee and this Assembly and this Government have spent a great deal of time and invested resources in dealing with those to ensure, as we had asked Parliament in Westminster to legislate on our behalf in some of these areas, that that does happen, and we had assumed, therefore, that Parliament in Westminster would have had time to sit and consider these. Now, of course, in light of the fact that those Bills have fallen—and we are doing so at the moment—we'll to consider what that means in terms of options for specific steps for the Assembly and the Government here to take in terms of legislating. I don't know if this is the right forum to do this, but I did become involved in court proceedings in the Miller case, and I have just heard that the Supreme Court has allowed us to have representation in that case also, and, Chair, I would be willing, to share with you as a committee the case I have made in both courts, if that's of interest to you.

13:35

I was going to ask you to do that at some stage. Perhaps, Dai, if you could finish the particular questions you wanted—you wanted to do that as a specific subject.

Ocê. Wel, jest un cwestiwn ar gefn beth rŷch chi newydd ei ateb, felly. Yn dilyn o hynny, dŷn ni'n dal i fod yn y broses o addoediad lle mae, wrth gwrs, Senedd San Steffan wedi'i chau i lawr a dim byd, i bob pwrpas, yn digwydd, ond mae yna seneddau eraill yn yr ynysoedd hyn ar agor, megis hon, er enghraifft. Felly, o gofio hynna, a fuasech chi fel Llywodraeth yn cysidro, gyda rhai o'r Mesurau deddfwriaethol yma rŷch chi'n sôn amdanyn nhw, ar amaethyddiaeth a physgodfeydd ac ati—maen nhw mewn meysydd datganoledig ac mi roedd yna ddadl yn y lle cyntaf y dylai'r Llywodraeth yn fan hyn fod yn cyflwyno'r Mesurau hynny ta beth a ddim dibynnu ar lywodraeth mewn lle arall i wneud hynny—ydych chi wedi cysidro meddwl fel hynny rŵan, ar sail yr addoediad yma?

Okay. Well, just one question on the back of what you've just said, following on from that, we are still in the process of prorogation where, of course, the Westminster Parliament has been suspended and nothing to all intents and purposes is happening there, but there are other parliaments on these islands still open, for example this one. So, bearing that in mind, would you as a Government consider, with regard to some of these Bills, on agriculture and fisheries and so on—they are devolved areas and there was an argument in the first instance that the Government here should be tabling that legislation and not depending on another government in another place to do that—have you considered tabling such legislation now, given the prorogation?

Ydyn. Dyna beth roeddwn i'n awgrymu'n gyffredinol yn gynharach. Mae'r broses yna o gysidro'r camau a sut gallwn ni ymateb fel Cynulliad ac fel Llywodraeth i hynny'n mynd rhagddi. Wrth gwrs, mae'n debygol y bydd angen i'r Senedd yn San Steffan ddod â'r Mesurau yma'n ôl o flaen Tŷ'r Cyffredin maes o law. Gwnaethoch chi sôn am y ddeddfwriaeth ar bysgodfeydd yn benodol. Wrth gwrs, fel y byddwch chi'n gwybod, roedd y Mesur hwnnw'n ehangu'n galluoedd ni yma yng Nghymru. Felly, buasai hynny ddim yn bosib i ni ei wneud, wrth gwrs, heb ddeddfwriaeth yn San Steffan. 

Yes, that's what I was suggesting in general terms earlier. That process of considering what steps we need to take and how we should respond as an Assembly and as a Government to that is ongoing. Now, it is likely, of course, that Parliament in Westminster will need to bring these Bills back to the House of Commons in due course. You mentioned legislation on fisheries specifically. Now, of course, as you know, that Bill enhanced our powers here in Wales and, therefore, that wouldn't be possible for us to do without legislation in Westminster.

Thank you for that. Perhaps you could, and it would be very helpful if you would, outline the Government's case in respect of the Supreme Court hearing tomorrow, because I think it's directly relevant and will conveniently bring us back on to the Sewel convention again as well. 

Yes. Very briefly, Chair, if I may, and I'd be very happy to share the submissions with the committee. The court has permitted me to do that. Obviously, the decision in Miller has gone one way and the decision in the Cherry case has gone another way. Both those cases are being brought together with the Northern Ireland case in the Supreme Court this week and the Welsh Government will be represented in those proceedings. There are a number of submissions. The motivation, as I mentioned in my response to Dai Lloyd, was the fact that the judgment—as you will know from your role as Counsel General—in the Miller case wasn't clear that there's a fundamental role for the dialogue between parliaments as part of the constitution of the United Kingdom, and proroguing one at this particular point obviously cuts off that dialogue between the Assembly and the UK Parliament at a crucial point. Some of the points I've just made to Dai Lloyd were also reflected in some of those submissions about the work of the Assembly as a legislature, predicated on the assumption that Parliament would be entitled to sit to consider that legislation. But there are also submissions in relation to justiciability as a principle or for this to be the sort of thing that the court looks at in principle and then the nature of the remedy. So, all those matters are the subject of submissions, or, perhaps, if there are questions based on the submissions when the committee's had a chance to look at them, we'd be happy to engage in relation to those points.

I do think it's important to make the point, Chair, if I may, that I feel strongly that the submissions that I made on behalf of the Welsh Government have been proportionate and measured, have not been duplicative in the context of submissions that were made in the Miller case, and I think it's incumbent on me as law officer to make sure that I look at those opportunities to protect the rule of law and the interests of the Assembly, which was the motivation for taking the action, and I think the decision in Cherry has vindicated that.

Were there any particular questions on this? I've got a few that I want to ask. If I can just follow on, the issue that's coming up tomorrow very strongly is a question of justiciability, and it's very interesting that the Supreme Court have suggested that—or it's been suggested to the Supreme Court—that the issue of the legal advice that's been given on lawfulness, or, in fact, the accuracy of that, is a matter that is justiciable. What is the Welsh Government's view on that? Is it supporting that it should be justiciable?

Yes. And it, I think, was borne out by the judgments in Cherry by the three justices there, who effectively argue that, whatever reasons were given in public—if I can use that shorthand—the impact is effectively to stymie Parliament's ability to scrutinise and legislate. That was obviously a critical feature for that judgment.

This has very significant consequences because it relates to the use of the royal prerogative and the advice that's obviously given to the Crown in respect of the exercise of that prerogative, so it's very significant. Do you think it has significant implications, potentially, in respect of the justiciability of Sewel?

13:40

Well, the Supreme Court has already given its opinion on the justiciability of Sewel, of course, in the first Miller proceedings, and I think, as you will know better than I, I don't think we were particularly surprised by that outcome. But it does, I think, identify the limitations on Sewel as currently conceived. It's obviously a constitutional convention. The court in Miller made the point effectively that its capacity to bind was a political capacity rather than a legal capacity, and of course the fact that it appears in statute doesn't alter that legal analysis. But I think there is a discussion that is absolutely urgent around how one constrains that notion of the definition of 'not normally', effectively. I think there isn't much precedent, really, in relation to that. 'Not normally', as lawyers in the room will know, is a very, very familiar legal concept in legislation. I think it, generally speaking, imposes a lower threshold than in practice the Sewel convention appears to be predicated upon, but nevertheless we've got an example, haven't we, in Northern Ireland recently where what was regarded as abnormal was the fact that there wasn't a sitting legislature under the Executive, but that's plainly a circumstance that is not normal? But then the much less, I think, defensible position that applied in relation to the Scottish experience, where there wasn't any meaningful discussion of whether these were normal circumstances, and as I mentioned in my brief observation earlier, no opportunity for Parliament to consider the fact that a legislature with competence over primary legislation had elected not to consent. That seems to me, seems to the Government, a very significant shortcoming in Sewel.

It's been suggested that with so much of constitutional Government being dependent upon the issue of convention there is now a need for these conventions to become justiciable, either in the form of some legal framework within which they become justiciable, or potentially in the way in which it's emerging within the Supreme Court that bad faith, or the conventions being exercised—the issue of how they're exercised, and whether the Government is acting in good faith, actually becomes justiciable. In terms of the Government's position, are you moving to a position where we're now almost saying that the conventions as they exist at the moment are not as effective as they could be and that some form of justiciability is now necessary in order to ensure that they can work?

I think what we know and what we see in relation to what's happened around activities in Parliament in the last few weeks highlights, perhaps, the limitations of a constitution that depends quite so much on constitutional convention. There's a much broader conversation to be had around a solution to that, and if the committee wishes I'm very happy to have that conversation. But on the question of what one does with Sewel itself, I think there's absolutely a case for stipulating what those circumstances are so that there is a set of tests, if you like, around what is normal and what is not normal, and absolutely I think there's a case for making sure those are set out in legislation, so that it is understood what is meant when we talk about the UK Government not acting—and Parliament, indeed—in those circumstances.

It's perhaps not for this conversation, but there's also the case, isn't there, that the Sewel convention itself as a principle requires some modification? I think there's an interesting discussion to be had around that. There are arguments for and against that proposition, but there's a case, it seems to me, for saying, 'Well, rather than simply saying that the UK Parliament should not normally legislation, why does it not say that it won't legislate?' That was an observation that Lord Judge made I think, in the passage of the Wales Act. So, I think there's a debate to be had around that proposition as well.

13:45

We will as a committee be considering quite a wide range of some things because once you start going down this road you have to look at the broad picture of the conventions, the devolution statutes and the constitutional framework. But just as a, sort of, one-off view, and if you're not in a position to answer it yet—do you think we are moving towards the framework where there's a need for a written constitution?

Well, my personal view is that that would be a good thing, but what is obvious is the UK constitution has been uniquely resistant to that sort of holistic, rational evolution or change. So, I think there's a judgement, which we—. In terms of protecting the interests of the Assembly, the Government and Wales, there is a judgement to be reached about how one best goes about that. There's a, sort of, rational approach, which is to say there's a kind of holistic view, but I think the challenge of getting reform on that scale is not one that we should shrink from, but, as I say, the UK constitution has been pretty resistant to that and it's important for us, I think, to be very clear about the practical steps that we think can be taken short of that to protect the constitution of Wales, in particular in a post-Brexit context.

I think your further comments, if you wish to submit them, would be very helpful, because we are considering these in the round and I think these are directly relevant matters and who knows what may emerge eventually from the Supreme Court judgement. One of the issues you raised, though, in terms of the breach of Sewel, which is not directly a Sewel breach, is, in fact, the disputes that we've had over competence. So, it occurred in the Trade Union Act, where there clearly was a dispute, a dispute that's never been conceded although the legislation clearly is in force, and, of course, there have been many other disputes along the way where the issue of competence—. In terms of dispute resolution, I wonder if you could, sort of, outline what your thinking is in terms of dispute resolution and how important that is in terms of enabling these conventions, which, I suppose, are the oil of devolution to operate.

Well, Chair, I think in relation to dispute resolution generally—and this is a subset of that, isn't it—one of the very significant shortcomings in the current inter-governmental arrangements is this very question of how you deal with differences of opinion. You will know, the committee will know that the Government's position is that the existing arrangements are inadequate to that purpose and we have called for systemic change, really, in that area, for a much more robust process by which each Government in the UK is treated equally, if you like, there's parity of esteem in relation to identifying what is a dispute—a dispute of any nature, really—and then how that dispute is taken forward in a way that doesn't end up with the current arrangement, which is effectively that the UK Government has the ultimate say on those questions. I mean, obviously, ultimately, questions of competence, as you—. That particular issue is obviously—. There is a mechanism for resolving those through the courts, ultimately, but on the broad question of dispute resolution, there ought to be a mechanism by which some independent element could be brought to bear on how disputes are resolved between the Government of the United Kingdom—. The publication 'Brexit and Devolution' talks about this in the context, I think, of adjudication and arbitration and I think you would look at that independent element. It would vary depending on the nature of the dispute, potentially, mightn't it? But it feels to us that that is a very important element in how the relations and the mechanisms for inter-governmental relations need to be strengthened, as I say, based on the experience of Brexit, but not simply related to matters Brexit.

I think these things have been a long time coming. Listen, I thank you for those comments because we've gone very much off script on it, but I think in light of the fact that there is a judgement tomorrow, this is a road that we're going to go down. Were there any questions on any of those matters that have been raised on that? Suzy.

Yes. I've got two, if you don't mind, Counsel General. You mentioned possibly modifying Sewel as we go along, saying, 'Why are we dealing with "would not normally" and why don't we change that to "will not"?' Are you saying that you support the idea of Sewel becoming a veto?

13:50

The point I'm making is, as Lord Judge is making, there's a broader conception of what the constitution ought to be. It's not a resolved question, it's a discussion that I think is worth having about the distinction between a 'not normally' and a 'never', if you like. Clearly, the Northern Ireland example is a very clear example of when an abnormal set of circumstances occur. But the problem with that 'not normally' formulation is that it includes, within it, potentially, a significant level of latitude, and in my opinion, constitutional matters should not have that level of uncertainty at the heart of them, and I think we need to look at mechanisms for resolving that question.

So, if you are going to set out a list in legislation of what 'not normal' or 'not normally' might mean, which you did suggest, would you include things such as lack of time or volume of legislation as being abnormal?

Well, I think the point you're alluding to is why one would have asked the UK Government to legislate in those circumstances, and I think the point of Sewel is that it ought not to happen without the consent of the legislature. I think, ultimately, the question that relates to—

Not normally without the consent. I am landing on 'not normally' here with this question.

Well, there isn't much precedent for that, is there? But I'm very happy to reflect further and give you some thoughts around that. But the point I'm making is: the mechanism, as currently constituted, simply doesn't provide the level of protection that we would want to see. I think that the time has come for us to look at spelling out for people what that amounts to and giving that level of certainty, perhaps even in the statute itself.

Because, I mean, apart from the core reasons for asking you about Sewel, of course, I wanted to know whether you thought we were in 'not normally' territory when it comes to our secondary legislation. As you'll know, in the last year or so, we've had quite a volume of secondary legislation being dealt with by Welsh Government on behalf of this Parliament when it comes to the UK Government passing secondary legislation. Basically, you've been scrutinising on our behalf and consenting on our behalf when it comes to secondary legislation. I was curious to know how you thought that experience had gone for Welsh Government and whether those two issues of time and volume were, in your view, abnormal.

Well, I think they are abnormal. The volume of legislative activity is certainly unprecedented for us, and pretty close to unprecedented, if not unprecedented, for Parliament as well, and I think in those circumstances, we agreed a set of arrangements, scrutiny, with the Assembly—we have followed those arrangements; there have been requests to change those arrangements along the way, which we've met. As I say, I think if any one of us was designing a system for legislating and scrutiny and stakeholder engagement, I don't think any of us would wish to hold up this process as being the exemplar for that, but I think the pressure of timing, the pressure of resources, and the need to move quickly has meant that in those unusual circumstances—very unusual circumstances—I think it was very clear it was appropriate to ask the UK Government and Parliament to take some steps on our behalf.

So, time constraint and volume can be considered—I think you used the word 'unusual', possibly 'abnormal'. Anyway, I'll move on from that.

Just for the record, I think the agreement you refer to is one that was agreed between us as a committee and Government. I don't think it actually went to the Assembly for ratification in that way—just for the record.

That's fine. I was asking you what your experience of it had been. Did you think it worked apart from what you—I think you said there were a few occasions or odd occasions? I know you wouldn't design it like this, but it did the job, did it?

There have been some examples that I've corresponded with the committee about—specific examples where things didn't work as we would have wanted them to work—but I think they have been an exception rather than the rule, very much so.

Well, I think this committee thought there were quite a few of them to be considered exceptions and, of course, you will have heard about our report on Standing Order 30C complaints. What steps did you take to, sort of, resolve our concerns? Not you individually, but Welsh Government.

Well, I think by the time we have got to this point—that's largely historic, isn't it, at this point? There were issues that the committee raised about the content of information in written statements. We had felt that we were responding as the protocol required us to do. The committee took a different view—obviously, it's perfectly entitled to to that—and, as a consequence of that, we modified the information that we were providing. I think in relation to the—. You're making a point, I think, about the statutory instrument consent memorandum, aren't you, Standing Order 30A. 

13:55

Well, I'll come back to 30A. It's 30C I'm talking about, particularly.

Well, I think, in relation to 30C, we responded, I think, to the committee's request. There was a—. We believed, as a Government, we were complying with the protocol. We were asked to change the template and we did so.

Okay. Well, thank you for that. We appreciate that Government made the effort to provide further information, but even in the papers that we've had today we still get from Welsh Government that time constraints are an issue. Time constraints are a big issue for us as a committee. We want to scrutinise, and it's been a long-standing line in this committee that it's the Assembly that decides if we have enough time to scrutinise stuff rather than Welsh Government. I raise this question of time because, once again, I'm going back to what constitutes normal and what constitutes abnormal. Because one of the things I think personally I'd be very dissatisfied to see is whether, post Brexit, when we're not dealing with Brexit-driven legislation, we see that reason given by Welsh Government for the business-as-usual secondary legislation that might be coming forward, including the statutory instrument consent motions that you've just alluded to. With the statutory instrument consent motions, that reason has been given to us more than once—that there's not enough time, really, to bring this through the Assembly. There have been two occasions when Members have brought forward their own statutory instrument consent motions instead and have had to redraft the Government's own statutory instrument consent motion. Do you think that is sensible or should Members be allowed just to basically reuse the Government's drafted SICM?

Well, it's a matter for the Assembly, isn't it, rather than the Government. But—

But I'm curious, as a law officer, as you mentioned, what your view might be on that.

Well, I think if—. In preparing a memo under the existing procedure, any Member can draw on the material that the Government has put in the public domain through the equivalent memoranda and use that as source material, so I don't think that's problematic.

Do you suspect, in—? Sorry. Do you anticipate that, in the remainder of this Assembly, there'll be any more statutory instrument consent motions that will be laid but not debated?

I don't know about that. The Standing Orders place no obligation on Ministers to table a motion, but you will know our practice has been to do that, and we would continue that practice. I do, I think, want to re-emphasise the point that the context in which we were operating that particular set of motions and memoranda, in the context of Brexit, was specific. But I think in the ordinary course we will bring forward motions.

Well, that's it, because I want to emphasise that was an unusual circumstance that shouldn't be considered a precedent for how Welsh Government brings forward statutory instrument consent motions in future—that was all.

Symud ymlaen i elfen arall yn ymwneud â newidiadau cyfansoddiadol sydd wedi digwydd yn ddiweddar, fframweithiau cyffredin, a rhestr o gwestiynau—rhai ohonyn nhw'n athronyddol, ond, wrth gwrs, mae gyda ni gynulleidfa eang allan yn fanna sydd yn pwyso a mesur pob gair dŷn ni'n sôn amdano yn y lle yma ynglŷn â fframweithiau cyffredin. So, sut dŷch chi'n gweld, yn gyffredinol nawr, ynglŷn â fframweithiau cyffredin—? Roedden ni i gyd wedi clywed y drafodaeth bod rhannu llywodraethiant yn bwysig, bod partneriaethau rhwng y Llywodraeth yn fan hyn a Llywodraeth yn San Steffan, Llywodraeth yn yr Alban ac ati—bod partneriaethau cyfartal a bod pawb efo'r un un parch ac ati ynglŷn â dod i fyny efo'r fframweithiau cyffredin yma. Ai hwnna sydd wedi digwydd?

Moving on to another element with regard to constitutional changes that have happened recently, common frameworks, and a list of questions—some of them philosophical, but we do have a wide audience out there who listen to every word that we say here. So, how do you foresee, in general now, the common frameworks working? We heard the discussion that sharing governance is important, that partnerships between Government here and Government in Westminster and Government in Scotland and so on—that there are equal partnerships there and that everyone has parity of esteem there with regard to these common frameworks. Is that the case?

Rwy'n credu bod y gwaith ar y cyd ynglŷn â'r fframweithiau cyffredin wedi bod yn enghraifft o gydweithio da rhwng y Llywodraethau. Ces i gyfarfod wythnos diwethaf gyda Michael Gove—JMC(EN)—ac un o'r pwyntiau wnes i eu gwneud yn y cyfarfod oedd pa ba mor pwysig oedd e i sicrhau bod cyfle i'r deddfwrfeydd graffu ar yr hyn sydd yn digwydd a sicrhau bod cymaint o'r gwaith yn gallu mynd yn gyhoeddus pan fo hynny yn briodol a chyn gynted â phosib. Ond mae cydweithio ar y fframweithiau cyffredin wedi bod yn enghraifft o gydweithio da rhwng y pedair Llywodraeth, buaswn i'n dweud.

I think the work done in collaboration on common frameworks has been a good example of postive working between Governments. I had a meeting last week with Michael Gove—JMC(EN)—and one of the points I made at that meeting was how important it is to ensure that there is an opportunity for legislatures to scrutinise what's happening and to ensure that as much of the work as possible can be made public when that's appropriate and to do that as soon as possible. But the collaboration on the common frameworks has been an example of effective collaboration between the four Governments, I would say.

14:00

Felly, yn dilyn o hynny, beth yw eich barn chi am y dadansoddiad o'r fframwaith diwygiedig a gyhoeddwyd gan Lywodraeth y Deyrnas Unedig, ac a ydy'r meysydd polisi wedi'u fframio'n briodol, yn eich tyb chi?

So, following on from that, can you give us your opinion on the revised framework analysis published by the UK Government, and whether the policy areas have been framed appropriately, in your view?

Rwy'n credu bod yr adroddiad hwnnw, y dadansoddiad hwnnw, yn fath o snapshot ar gyfer y sefyllfa pan gyhoeddwyd e, a buaswn i'n rhagweld rhyw symud meysydd polisi o un i'r llall. Beth sydd wedi bod yn amlwg, rwy'n credu, yn y broses o gydweithio ynglŷn â'r fframweithiau cyffredin yma yw bod lot ohonyn nhw'n gymhleth iawn—efallai'n fwy cymhleth nag oedd neb yn meddwl ar y dechrau—a hefyd eu bod nhw wedi cymryd yn hirach nag oedd unrhyw un yn gobeithio y buasen nhw wedi ar y dechrau am resymau sy'n ymwneud â chymhlethdod ond hefyd yn ymwneud â pharatoadau eraill ar gyfer gadael yr Undeb Ewropeaidd. Ac mae cwestiwn, rwy'n credu, yn codi yng nghyd-destun hwnna—hynny yw, mae cytundebau anffurfiol yn datblygu o fewn y fframweithiau yma ar gyfer cydweithio yn y tymor byr tan fod fframwaith yn cael ei gytuno. Dŷn nhw ddim yn gytundebau sy'n robust fel buasai fframwaith, ond maen nhw'n ffordd i gadw i fynd yn y cyfamser. Ac mae cwestiwn yn codi, rwy'n credu, ynglŷn â—os yw'r fframweithiau yma'n mynd i gymryd yn hirach nag oedden ni'n disgwyl—ffordd rŷn ni'n sicrhau yn y cyfamser, o un maes polisi i'r llall, fod gwahaniaethu'n gallu digwydd neu ddatblybiadau'n gallu digwydd i sicrhau, o'n safbwynt ni fel Llywodraeth, ein bod ni'n gallu cadw'n gyfredol gyda beth sy'n digwydd o ran deddfwriaeth Ewropeaidd, er enghraifft, mewn amryw o feysydd. Ac mae cwestiwn y mae angen ei drafod, rwy'n credu, ar y cyd â Llywodraethau—sut rŷn ni'n sicrhau bod y broses honno'n bosib tra'n bod ni'n mynd rhagddi i gytuno'r fframweithiau mwy yma.

I do believe that that analysis is a snapshot of the situation as it was when it was published, and I would anticipate some shift in policy. What has become apparent in the process of collaboration on these common frameworks is that many of them are very complex—perhaps more complex than anyone had initially anticipated—and also that they have taken longer than anyone would have hoped at the outset, for reasons relating to complexity but also relating to other preparations for exiting the European Union. And I think that a question arises in that context—there are informal agreements developing within these frameworks for collaboration in the short term until a framework is agreed. These are not agreements that would be as robust as a framework, but they are a means of continuing to make progress in the meantime. And a question does arise as to—if these frameworks are going to take longer than we had expected—how we ensure in the meantime, from one area of policy to another, that developments can take place in order to ensure, from our perspective as a Government, that we can keep up to date with what's happening in terms of European legislation, for example, in many areas. And there's a question to be discussed jointly among Government as to how we ensure that that process is possible whilst we proceed with agreeing these larger frameworks.

Diolch am hynna. Wrth gwrs, yn dilyn o hynna, dŷn ni'n pryderu ar yr ochr yma i'r Siambr, pan fyddwn ni yn y Siambr, am y risg o'r Senedd yn colli pwerau, wrth gwrs, achos dŷn ni wedi clywed y dadleuon eisoes: mae'r sefyllfa'n gymhleth, fel dŷn ni i gyd yn gwybod; mae yna bwysau amser; mae yna bwysau gwaith, a'r holl gymhlethdod yma ynglŷn â gadael Ewrop, os ydym ni'n mynd i adael Ewrop ai peidio. Felly, mae yna gymhlethdodau ar bob ochr. Felly, ydych chi'n cydnabod y risgiau yna, wrth gwrs? Ydych chi'n gweld bod fframweithiau cyffredin, felly, yn ein diogelu ni a'n pwerau ni fel Senedd yn fan hyn mewn ffordd lle dŷch chi'n cael yr ymddiriedaeth lwyr yma, fel dŷch chi wedi dweud o'r blaen, yn y Llywodraeth ar ben arall yr M4? Hefyd, ydych chi'n gweld, gan ein bod ni'n edrych ar gonfensiwn Sewel, rôl i gonfensiwn Sewel allu dod â'r broses gydsynio i'r fframweithiau deddfwriaethol yma, i wneud yn sicr ei fod e'n digwydd yn ôl eich cydweithio rhynglywodraethol chi? Rwy'n gwybod bod hyn yn swnio'n gymhleth, ac mae gan rai ohonon ni atebion gweddol clear-cut i'r broblem astrus yma o sut dŷn ni'n cydweithio efo llywodraethau eraill mewn gwledydd eraill, ond dwi ddim yn mynd i fewn i hynny rŵan. Ond, gan ei bod hi o dan beth sy'n digwydd yn fan hyn, pa fath o gydweithio a defnydd o gonfensiwn Sewel sydd yna i'ch arfogi chi i wneud yn siŵr, pan fyddwch chi'n trafod y fframweithiau yma, fod Cymru'n cael chwarae teg?

Thank you for that. Of course, following on from that, we are concerned on this side of the Chamber, when we are in the Chamber, about the risk of the Senedd losing powers, of course, because we've heard the arguments already: the situation is very complex, as we all know; there is time pressure, work pressure and all the complexity surrounding exiting the EU, if we are to leave. So, there are complexities on all sides. Therefore, do you acknowledge those risks? Do you see that common frameworks safeguard us and our powers as a Senedd in this place in a way that gives you total confidence, as you have said before, in the Government at the other end of the M4? Also, as we are looking at the Sewel convention, do you see a role for the Sewel convention as a mechanism for consenting to legislative frameworks, to ensure that that process happens according to your inter-governmental collaboration? I know that this sounds complex, and some of us have fairly clear-cut solutions to the difficult issue of how we can work with governments in other countries, but I won't go into that now. However, given that we are looking at what is happening here, what kind of collaboration has there been and how has the Sewel convention been used to give you the tools that you need, when you discuss these frameworks, to ensure that Wales gets fair play?

Ocê. O ran y cwestiwn am beth mae'r fframweithiau'n dweud wrthym ni am Sewel, dwi ddim yn credu bod unrhyw beth penodol am y fframweithiau sydd wedi dangos rhywbeth newydd am Sewel. Ond, wrth gwrs, mae'r egwyddor hynny o gael cydsyniad y Cynulliad wrth wraidd y cytundeb rhynglywodraethol ei hun. Felly, mae hynny, ar un lefel, yn estyniad o'r confensiwn i faterion ehangach. Holl bwrpas a holl egwyddor greiddiol y fframweithiau oedd sicrhau bod y fframweithiau'n digwydd os oedd eu hangen nhw. Hynny yw, rŷn ni'n dechrau o baseline lle nad oes eu hangen nhw, mae angen esbonio os oes eu hangen nhw ac adeiladu ar hynny mewn rhywbeth sydd ddim yn golygu deddfwriaeth neu efallai maes o law, mewn rhai meysydd, rhywbeth sydd yn golygu deddfwriaeth. Felly, holl fwriad y fframweithiau yw sicrhau o leiaf gymaint o hyblygrwydd ag sydd yn bodoli nawr, ac yn ehangu ar hynny lle bo hynny'n addas i'w wneud. Ond, wrth gwrs, un o fanteision fframweithiau yw ein bod ni'n sicrhau impact ehanagach na'r impact ar Gymru drwy gytuno ar fframweithiau gyda rhannau eraill o'r Deyrnas Gyfunol—felly, ein bod ni'n esbonio bod angen fframweithiau i wneud pethau gwahanol ar draws y Deyrnas Gyfunol, nid jest yng Nghymru, fel petai, neu dim ond i ni yma yng Nghymru.

Ond mae risgiau, rwy'n credu. Mae risg bwysig i'w thrafod, rwy'n credu, ynglŷn â'r rhyngberthynas rhwng y fframweithiau a'r mathau o bolisi sy'n cael eu datblygu a'r canllawiau a'r ffyrdd o weithio sy'n cael eu datblygu o fewn y fframweithiau ar yr un llaw, a'r cwestiwn yma o berthnasau rhyngwladol ar y llaw arall, oherwydd mewn rhai o'r meysydd, mae elfennau lle mae'r pethau hyn yn torri ar draws ei gilydd. Rŷm ni wedi bod yn glir fel Llywodraeth bod angen rôl i Lywodraeth Cymru o ran sut rydym ni'n sicrhau'r oblygiadau rhyngwladol hynny yn y dyfodol, er mwyn i Lywodraeth y Deyrnas Gyfunol allu sicrhau bod y cytundebau hynny'n cael eu gwireddu. Mae yna, wrth gwrs, bwerau deddfwriaethol ganddyn nhw i orchymyn cydlyniad neu sicrhau nad oes unrhyw ddeddfwriaeth efallai byddai'n cael ei phasio yn fan hyn yn cael ei chyflwyno am Gydsyniad Brenhinol mewn amgylchiadau penodol. Felly, mae angen bod yn wyliadwrus, rwy'n credu, am sut mae'r pwerau hynny'n gweithio yn y cyd-destun hynny o berthnasau rhyngwladol a'r fframweithiau. Dyw'r rheini ddim wedi eu defnyddio mor belled, wrth gwrs. 

Okay. In terms of the question about what the frameworks tell us about Sewel, I don't think there is anything particular about the frameworks that have identified anything new concerning Sewel. But, of course, that principle of having the Assembly's consent is at the heart of the inter-governmental agreement itself. Therefore, at one level, that is an extension of the convention to broader issues. The whole purpose and the core principle underpinning these frameworks was to ensure that they were in place if required. That's to say that we're starting from the baseline of not needing them, and that we need to explain where they are needed and then try to achieve that through non-legislative processes or, in time, in some areas, perhaps through legislation. So, the whole process of the frameworks is to ensure at least as much flexibility as currently exists and to expand upon that where appropriate. But, of course, one of the benefits of these frameworks is that we ensure a broader impact than simply the impact on Wales by agreeing on frameworks with other parts of the UK so that we explain that we need frameworks to do different things across the UK, not just in Wales, and it's not going to simply affect us in Wales.

But there are risks and there is an important risk that needs to be discussed in terms of the interrelationship between the frameworks and the kind of policies that are being developed and the guidance that is being developed within the frameworks on the one hand and this question of international relations on the other, because in certain areas, there are elements where those things do collide. We've been clear as a Government that the Welsh Government needs a role in ensuring those international obligations for the future so that the UK Government can ensure that those agreements are delivered. There are, of course, legislative powers that they have to require that that happens or to ensure that there is no legislation that may be passed here that is put forward for Royal Assent in specific areas. So I do think that we need to be guarded as to how those powers work in that context of international relations. Those haven't been used to date, of course. 

14:05

Wel, yn dilyn hynny—a diolch am yr ateb cynhwysfawr yna—wrth gwrs, mae yna Senedd i fyny yn San Steffan efo pwerau, a dŷn ni'n derbyn y tyndra yma, y risgiau neu'r potential o golli pwerau o'r Llywodraeth yn fan hyn i'r Llywodraeth i fyny yn San Steffan. Wrth gwrs, mae rôl gan y Cynulliad yma fel deddfwrfa i fod yn craffu ar y broses o beth rydych chi'n ei wneud fel Llywodraeth, achos nid jest mater o gytuno yn rhynglywodraethol, ac ati, yn neis yn rhywle—'Dŷn ni'n mynd i wneud hyn a'r llall'—ydy hi rhwng San Steffan a'r Llywodraeth yn fan hyn. Mae rôl gan y deddfwrddfa yn fan hyn i graffu ar beth yn union sy'n mynd ymlaen fel ein bod ni'n gallu sicrhau, nid jest fel y pwyllgor yn fan hyn ond fel Senedd gyfan, ein bod ni actually ddim yn colli pwerau, er y buasech chi fel Llywodraeth ddim yn credu ein bod ni'n colli pwerau mewn rhyw faes penodol, arbennig. Ond mae angen sicrhau i ni, fel y sawl sy'n craffu, ein bod ni ddim yn colli pwerau hefyd. Ac, wrth gwrs, nid jest mater o fframweithiau cyffredin yw e, ond wrth gwrs mae yna fframweithiau anneddfwriaethol hefyd yn bodoli, neu'n cael eu creu, ac ati. Dwi eisiau eich gwthio chi i weld sut y gall y Senedd yma fel corff deddfwriaethol fod yn craffu ar y broses o ddatblygu fframweithiau anneddfwriaethol hefyd. 

Well, following on from that—and thank you for that very comprehensive response—there is a Parliament in Westminster that has its own powers, and we acknowledge this tension of powers from the Government in this place and the Government in Westminster, and so on. But of course, the Assembly has a role as a legislature to scrutinise the process of what you do as a Government, because it's not just a matter of agreeing between governments—'We're going to do this and that'—between Westminster and the Government here. There is a role for the legislature here with regard to what's happening, so that we, not just in this committee here, but as an entire Assembly, can ensure that we don't lose powers, even though you as the Welsh Government say that we're not going to lose powers in a specific area. We need assurance, as those who scrutinise, to make sure that we don't lose powers. Because it's not just a matter of these common frameworks; there are non-legislative frameworks that exist or that are being created, and so on. I just want to press you on that, to see how this Senedd can, as a legislative body, scrutinise the process of developing non-legislative frameworks as well. 

Wel, mae'r pwynt yn bwynt dilys iawn. Rwy'n derbyn yn llwyr, wrth gwrs, fod angen sicrhau trefniadau cynhwysfawr fel bod craffu yn gallu digwydd mewn ffordd sy'n berthnasol, yn addas ac yn drwyadl o safbwynt y Cynulliad. Yng nghyd-destun penodol y fframweithiau cyffredin, dŷn nhw ddim eto mewn man lle mae'r broses honno yn mynd i fod yn synhwyrol, os allaf ei ddodi fe yn y ffordd yna. Mae angen sicrhau mewnbwn o ran rhanddeiliaid ac wedyn rhyw fath o gytundeb mewn egwyddor, efallai, mai dyma'r math o fframwaith y buasai'r Llywodraethau eisiau ei gytuno, os ydy'r deddfwrfeydd yn craffu ac yn dod i'r casgliad hynny. Felly, dŷn ni ddim wedi cyrraedd y man hynny eto, ond rwy'n sicr, jest i fod yn glir—gwnes i'r pwynt yma yr wythnos diwethaf mewn cyfarfod gyda'r Llywodraethau eraill—bod angen inni symud tuag at hynny cyn gynted ag y gallwn ni. Ac mae cytundeb cyffredinol i hynny, gyda llaw. O ran cytundebau anneddfwriaethol eraill, mae enghreifftiau wedi bod, onid oes e, bod y cytundebau hynny wedi cael dod gerbron y Cynulliad—y pwyllgor hwn, rwy'n credu—yng nghyd-destun y ddeddfwriaeth iechyd a'r ddeddfwriaeth amaeth, rwy'n credu, fel rhan o'r broses LCM, ac roedd cyfle ar yr achlysur hynny i graffu gan y pwyllgor. 

Well, the point is a valid one. I do accept entirely that we need to ensure that there are comprehensive arrangements in place and that scrutiny can happen in a way that is pertinent, appropriate and thorough from the Assembly's point of view. Now, in the particular context of the common frameworks, they are not yet in a place where that process is going to be meaningful, if I can put it in those terms. We do need to ensure input from stakeholders and then some sort of agreement in principle that this is the kind of framework that the Governments would want to agree if the legislatures do scrutinise and come to that conclusion. But we're not at that point as of yet. But, just to be clear—and I made this point last week at a meeting with the other Governments—we do need to move towards that position as soon as possible, and there is general agreement for that, by the way. In terms of other non-legislative agreements, there have been some examples where those agreements have been brought before the Assembly—before this committee, I believe—in the context of health legislation and agriculture legislation, I believe, as part of the LCM process, and there has been that opportunity for the committee to scrutinise.

Ocê. Diolch am hynny. Symud ymlaen eto i drafod y cytundebau rhynglywodraethol. Dŷn ni wedi cydnabod eisoes, ac mae pawb yn gwybod, nad ydyn nhw mewn statud; dydyn nhw ddim yn gyfreithiol ac yn dibynnu ar berthynas, felly. A allwch chi ymhelaethu ar y risgiau sy'n benodol i'r rheini, yn enwedig rŵan fel mae Brexit yn digwydd, ynglŷn â beth sy'n digwydd a'r risgiau penodol eto o ran diogelu'r pwerau sydd gan y Senedd yma?

Thank you for that. Moving on again to discuss the inter-governmental agreements. We have acknowledged already that they don't have a statutory footing and they depend on the relationship between the Governments. Can you expand on the risks that are associated with that specifically, especially as Brexit unfolds, in terms of what is happening with those specific risks in terms of safeguarding the powers of this Senedd?

Wel, y risg benodol yw ei fod e'n gytundeb rhynglywodraethol sydd ddim â sail ddeddfwriaethol—hynny yw, mae’n seiliedig ar ymddiriedaeth. Ond, buaswn i yn dweud, pan wnaethpwyd y cytundeb gwreiddiol rhynglywodraethol, fod y feirniadaeth fawr oedd fuasai hyn ddim yn gweithio—buasai’r Llywodraeth yn San Steffan yn rhewi pwerau’r Cynulliad ac ati—a dyw hynny ddim wedi digwydd, wrth gwrs. Rŷn ni’n gwybod dro ar ôl tro dyw hynny ddim wedi digwydd. Rwy’n credu ein bod ni wedi cael o leiaf tri adroddiad hyd yn hyn lle mae Llywodraeth San Steffan wedi dweud dŷn nhw ddim yn bwriadu gwneud hynny, ac felly mae hynny, rwy'n credu, yn dangos, yn y cyd-destun penodol hwn o gytuno’r fframweithiau, fod dim angen wedi bod am hynny.

Ac mae o werth—. Sori. Jest i ategu un peth, os caf i, mae e o werth i bob Llywodraeth, wrth gwrs; nid rhywbeth o werth i Lywodraeth Cymru a'r Cynulliad yn unig yw e. Mae e’n gweithio er budd pob Llywodraeth, a dyna pam dyw'r Llywodraeth yn San Steffan ddim, rwy’n credu, wedi defnyddio’r pwerau hynny.

Well, the particular risk is that it is an inter-governmental agreement that doesn't have a basis in statute, so it is based on trust. But I would say that, when the original inter-governmental agreement was reached, the greatest criticism was that this wouldn't work, that the Government in Westminster would freeze the Assembly's powers, but that hasn't happened, of course. We know time and time again that that hasn't been the case. I think we've had at least three reports where the Government in Westminster have said that they don't intend to do that. And I think, therefore, that shows, in this particular context of agreeing frameworks, that there would be no need for that.

And just to make one further point, if I may, it is of value to all Governments; it's not something that's just of value to the Welsh Government and the Assembly. It's for the benefit of all Governments, and that's why the Government in Westminster hasn't made use of those powers.

14:10

Ac er dyw datblygu’r fframweithiau rhynglywodraethol yma ddim wedi gallu bod yn fater i’r ddeddfwrfa yma graffu arnyn nhw cyn bod y fframweithiau yma wedi dod yn weithredol. Ydy hynny'n wendid neu'n gryfder? Efallai fel Llywodraeth buasech chi’n credu ei fod yn gryfder, ond, fel deddfwrfa, buaswn i'n ei weld e fel gwendid bod y fframweithiau rhynglywodraethol yma jest yn sort of digwydd rhwng dwy lywodraeth heb gyfle gan y Senedd yma fel corff i graffu arnynt cyn iddyn nhw ddod yn weithredol.

And even though the development of these frameworks hasn't been an issue for this legislature to scrutinise before they've come into force. Is that a strength or a weakness? Perhaps as a Government you'd say that it's a strength, but, as a legislature, I would see it as a weakness that these frameworks sort of happen between the Governments without an opportunity for this legislature to scrutinise them.

Ar bwynt penodol y cytundebau fframwaith, dyw’r rheini ddim yn weithredol eto, felly dyw hynny ddim wedi digwydd. Ac, o safbwynt cytundebau yn sgil deddfau eraill, daethon nhw i’r Cynulliad ac i’r pwyllgor cyn bod y Cynulliad yn pennu cytundeb. Felly, dyw hynny ddim wedi digwydd yn yr enghreifftiau hynny.

On the specific point of the framework agreements, those aren't in operation as of yet, so that hasn't happened. And, in terms of agreements reached in light of other legislation, they did come to the Assembly and to the committee before the Assembly gave its consent. So, it hasn't happened in those cases.

A’r cwestiwn olaf sydd gyda fi nawr yn fan hyn ydy: pryd ydych chi, fel Llywodraeth Cymru, yn rhagweld y bydd y rheoliadau rhewi yn cael eu gwneud gan Weinidogion y Deyrnas Unedig o dan y Ddeddf gadael Ewrop? Sut bydd y rheoliadau rhewi yna—? Mae rhai ohonom ni wedi bod yn mynegi cryn ofn ynglŷn â sut dŷch chi’n rhewi pethau, ac dŷn ni eto'n gwynebu'r risg o golli pwerau fan hyn, neu'n dwyn rhywbeth fuasem ni ddim yn cytuno iddo fe fel deddfwrfa. Ond sut ydych chi’n gweld y broses yna o reoliadau rhewi yn cael eu gwneud gan Weinidogion i fyny yn San Steffan yn weithredol o dan y Ddeddf ymadael ag Ewrop?

And the final question in my section is: does the Welsh Government anticipate that freezing regulations will be made by UK Ministers under the European Union (Withdrawal) Act 2018? How will these freezing regulations—? Some of us have been expressing a great deal of concern about them and how you freeze things and that we are at risk, then, of losing powers here, or bringing about something that we would not agree to as a legislature. But how do you foresee the process of freezing regulations being made by UK Ministers in Westminster and how would that take place under this withdrawal Act?

Wel, y peth cyntaf i ddweud yw dyw’r pwerau ddim wedi cael eu colli yn sgil y cytundeb hynny. Mae pwerau sy’n gallu cael eu gweithredu yma yng Nghymru wedi'u ehangu yn sgil y cytundeb, nid eu cwtogi. Felly, dyna’r pwynt elfennol pwysig o’n safbwynt ni.

Well, the first thing to say is that powers haven't been lost. The powers relevant here in Wales have been enhanced as a result of the agreement; they haven't been reduced. So, that's the fundamentally important point from our perspective.

Er dŷn ni ddim yn gallu deddfu ar wahân mewn meysydd sydd eisoes wedi’u datganoli i ni. Mae yna 26 o feysydd wedi rhewi felly.

Even though we can't legislate separately on areas that have already been devolved. There are 26 areas that have been frozen.

Maen nhw wedi wedi rhewi lle maen nhw heddiw ac maen nhw wedi rhewi ar draws y Deyrnas Unedig er mwyn inni allu cytuno ar y fframweithiau yma ar y cyd. Felly, dyw’r pwerau ddim wedi’u tynnu’n ôl; mae’r pwerau wedi dod yma i Gymru, ac rŷn ni wedi cytuno i sicrhau ein bod ni’n gweithio ar y cyd gyda Llywodraethau eraill i gytuno ar symud ymlaen gyda’n gilydd. Mae hynny’n berthnasol i bob Llywodraeth yn y Deyrnas Unedig.

O ran y cwestiwn arall, y rheoliadau rhewi, does dim arwydd bod hynny ar y gweill. Mae tri adroddiad wedi bod hyd yn hyn yn dweud nad oes cynlluniau i wneud hynny, a dŷn ni ddim yn rhagweld, ar hyn o bryd, fod hynny’n mynd i fod yn rhywbeth a wnaiff ddigwydd.

There have been areas that have been frozen, as they are today, and that's happened across the UK so that we can agree on these frameworks jointly. So, those powers haven't been withdrawn; they are here in Wales and we have agreed and sought to ensure that we work with other Governments in order to agree on those and to make progress together. That's relevant to all Governments in the UK.

In terms of the other question, the freezing regulations, there is no sign that that is in the pipeline. There have been three reports to date stating that there are no plans to do that, and we don't predict, at the moment, that that is going to be something that will happen.

Thank you. Obviously, part of this inquiry is to imagine what life could look like post Brexit in terms of the four Governments and, indeed, the four Parliaments working together. Constitutional convention has been mentioned, but I have to say that one of my priorities will be to ensure just what we've been talking about—that the Assembly doesn't lose its powers, or risk losing any powers, not least of scrutiny, let alone actually making decisions on legislation, so that scrutiny applies to the non-legislative policies of Welsh Government as well as the UK Government. How do you think that the Welsh Government can best seek to protect those two duties of the Welsh Assembly and Welsh Parliament?

Well, the scrutiny of the Assembly is a matter for the Assembly. I'm obviously very happy to hear what the committee has to say in terms of the committee's ambitions in relation to scrutiny. I'm not sure in particular what context you're referring to.

Well, I'm just thinking of one example when the exiting the European Union Bill was going through and the Welsh Government came to the conclusion that it could pass an LCM after negotiating some improvement of the relationship between the two Governments. At that time, when I was serving on another committee, the now First Minister gave evidence that he thought that that was pretty important, but was less convincing on what he thought his role was in those negotiations for protecting the powers of the Assembly, which, if you remember, didn't quite match the improvements that the Welsh Government had at that time. I was disappointed by that and I appreciate that you weren't there and you don't have the transcript in front of you, but this is why I'm asking, really, what you think the role of Welsh Government would be in promoting, retaining, certainly protecting, the powers of the Assembly.

14:15

Well, as I say, specifically in the context of agreements that led to legislation, we have brought those forward as part of LCMs for there to be scrutiny. If the Assembly wishes to—. If the committee wishes to elaborate on that, we'll obviously be very open to hearing what the committee has to say.

Can I just ask, then, if we're talking about a constitutional convention, or whatever you would want to call an arrangement, do you think that that is actually something that that convention should consider?

A convention in the sense of an assembly of people, you mean, rather than—

Yes—well, the four Parliaments and the four Governments. I'm actually asking what you think this could look like.

I'm just asking you what you think this convention could look like.

Well, I think it needs to have, doesn't it, an element of legislative expertise, Government expertise, academic expertise, and, crucially, an element that involves and engages the public in the working of that convention as well, I think. And I think there is an important aspect of that as well, not just about how Governments relate one to another in the UK, but also how legislatures relate one to another in the UK. And I know that there's the work of the inter-parliamentary forum and so on and I think that that's a dimension that perhaps doesn't have as much visibility as it might have in these considerations and I expect that that will address some of the points that I think you're asking about in your question.

But there is no doubt, I think, in reflecting the points that the Chair made at the start of the session, that that kind of need—however resistant the UK constitution has been to that sort of holistic approach, it's a pretty urgent set of circumstances now, it seems to me, for that to happen on a cross-UK basis. There are a number of issues, I think, reflecting the voluntary nature of the union, the role of the House of Lords in reflecting the nations and regions of the United Kingdom, and then how the sovereignty of devolved institutions is reflected in the constitution, which is currently conceived of as having one sovereign body in the UK Parliament. And I think the world has moved on very, very significantly since then, certainly in the context of devolution, but much more broadly than that, really, and, clearly, we would make the case for the sovereignty of all devolved institutions based, as they are, on the sovereignty of the people, ultimately, through referenda.

Would you consider that it's a suitable place for discussing jurisdiction, for example, or should that just be dealt with separately?

I think the question of jurisdiction is a matter that is principally for us to resolve here in Wales.

Can I just clarify Welsh Government's position? Would it be supportive of the establishment of a UK-wide constitutional convention?

Absolutely, and it's been our position for some time. It's been advocated for, specifically in the context of Brexit, since—

We first floated it in 2012.

And you'll be aware, of course, that we've obviously argued for this from this committee, but also one of the difficulties in getting movement on it was, of course, the suggestion from this committee that it could be that the speakers could perhaps fulfil that function as well. Unfortunately, that doesn't seem to have moved forward at all either, despite, I think, considerable lobbying and discussion of it. In your view, what do you think are the consequences of not having a constitutional convention?

Well, I think—you know, as I say, these are big challenges in all parts of the UK, aren't they, and I think it would be a missed opportunity for us not to address what we now know to be the fragility, in many ways, of the UK constitution, which Brexit has cast a light on. And the UK Government's carelessness in how it has treated the integrity of the union in the context of Brexit I think is quite surprising and quite shocking, given that it claims to be a unionist Government. I think contemplating a hard or a 'no deal' Brexit is going to create tensions within the union that are, I think, obvious at this point, and I think it's a matter of—. I'm surprised that the UK Government is prepared to run that risk.

14:20

Are you encouraged, then, that this Dunlop review is happening? I don't know if you've had any engagement with that, or—

Well, you know—. I think the Dunlop review—we will engage fully with it. I think it would have been constructive had we been engaged in the terms of reference, so that we could have brought to bear some of the issues that are particularly—that experience in the devolved nations might have brought to bear. That hasn't happened, of course, but the First Minister and I will be meeting Lord Dunlop tomorrow. We will, obviously, engage fully in that analysis.

What I would say, though, is: that is not a substitute for the broader inter-governmental review that is urgent and pressing. Again, together with the Scottish Government, I made this point to Michael Gove at the JMC(EN) last week. We need to see progress, not just in relation to the work of Lord Dunlop, but more broadly so that we move forward at pace to have a set of arrangements that can be much more robust than the ones we have now, addressing that question of parity of esteem, the dispute-resolution mechanism and, essentially, moving our arrangements forward beyond consultative arrangements to ones that are designed to secure agreement between the Governments in relation to matters that are devolved, rather than a consultative mechanism. I think that's the fundamental shift that needs to happen.

So, those are the three priorities you would like to see addressed in these conversations now, even. I know the Dunlop review isn't exactly what you want, but you'll be taking those points directly to him, I guess.

Yes. We have been making these points consistently in public for many, many months, so we will, obviously, take the opportunity of repeating that. But the point that I want to impress, if I may, is that the concerns that we have are much broader than the concerns that the Dunlop review is focused on. And I don't want us, if I may say it like that, to lose focus on that broader set of concerns that need urgent attention.

Ar ben beth dŷch chi'n ei ddweud, wrth gwrs, mae'r byd yn newid yn gyflym ac, wrth gwrs, mae Llywodraeth y Deyrnas Unedig, fel dŷch chi newydd gyfeirio, yn tueddu gwthio pobl i feddwl, efallai, yn ehangach am ddyfodol y gwahanol wledydd yn yr ynysoedd yma. Pa mor ymroddedig ydych chi i'r undeb yma sydd ym Mhrydain yntau a ŷch chi'n gallu gweld ffordd amgen ymlaen i Gymru fel gwlad annibynnol?

On what you say, of course, the world is changing quickly, and the UK Government, as already you've mentioned, tends to push people to think more widely about the future of the different nations of these islands. So, how committed are you to this union that we have, or can you see an alternative way forward for Wales as an independent nation?

Rwyf i wedi dweud, ac mae safbwynt y Llywodraeth yn glir, fod Cymru ar ei gorau mewn undeb, ond undeb sydd yn gweithio yn well na'r undeb sydd gyda ni ar hyn o bryd. Dyna pam rwyf i mor syn bod Llywodraeth y Deyrnas Gyfunol wedi diystyru hynny. Mae'r sialensiau rŷn ni'n eu gweld ar y gorwel yn sialensiau rŷn ni eisiau eu taclo fel Llywodraeth, ac mae gyda ni set o gynlluniau a chynigion sydd yn mynd i gryfhau—os cawn nhw eu gwireddu—datganoli, ond hefyd yn ffordd o gryfhau’r undeb, a bydd hynny o fudd i bob rhan o'r Deyrnas Unedig. Rwy'n credu a buaswn i'n gobeithio y byddai Llywodraeth y Deyrnas Gyfunol yn gweld y cynigion o'r safbwynt honno hefyd.

I have said, and the view of the Government is clear, that Wales is best served by a union, but a union that works better than the union we currently have. That's why I'm so surprised that the UK Government seems to be disregarding that. The challenges that we see on the horizon are ones that we want to tackle as a Government, and we do have a set of proposals and plans that, if delivered, will strengthen devolution, but will also be a means of strengthening the union, and that will benefit all parts of the UK. I would hope that the UK Government would view those proposals from that perspective too.

Well, Counsel General, thank you for your answers. We've gone over a fairly wide range, and, of course, we'll be looking at evidence in more detail on some of the specifics of that, and, again, if there are any further aspects, particularly after the judgment, that you want to refer, then we'd be more than happy to receive those and to consider those. You will, of course, receive a transcript in due course. Just to thank you and your officials for the time here and also for the unscripted part of this, but this is a very fast-moving, fast-flowing river at the moment, so no doubt we may be meeting again in the not too distant future to discuss this further. Thank you very much.

Do we want a quick break, a five-minute break? Thank you, Council General.

Gohiriwyd y cyfarfod rhwng 14:24 ac 14:30.

The meeting adjourned between 14:24 and 14:30.

14:30
4. Offerynnau negyddol arfaethedig nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B
4. Proposed negative instruments that raise no reporting issues under Standing Order 21.3B

I reconvene the meeting of the Constitutional and Legislative Affairs Committee. We're moving on to item 4: proposed negative instruments that raise no reporting issues under Standing Order 21.3B. We have the Retained EU Law (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These regulations are being made using powers conferred by the European Union (Withdrawal) Act of 2018. They were laid for the purpose of sifting under the EU withdrawal Act 2018 in accordance with Standing Order 27.9A, and the purpose of the regulations is essentially the making of technical corrections. Now, I don't know if there are any comments on these from lawyers. No, no comments—move on.

5. Offerynnau negyddol arfaethedig sy’n cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B
5. Proposed negative instruments that raise reporting issues under Standing Order 21.3B

Item 5: proposed negative statutory instruments that raise reporting issues under Standing Order 21.3B. The Seeds (Amendment etc.) (Wales) (EU Exit) Regulations 2019—these again relate to the purpose of sifting under the EU withdrawal Act. Regulation 2 amends the Marketing of Fruit Plant and Propagating Material (Wales) Regulations 2017. Regulation 3 amends the Marketing of Seeds and Plant Propagating Material (Amendment) (Wales) (EU Exit) Regulations 2019. Any comments, observations?

The draft report on pack-page 49 raises a question around the timing of these regulations. In particular, there was a question about Part 2 of the regulations and the possibility that it could be a failure to implement EU law properly. EU law has extended the time limit for authorising the marketing outside the EU until 31 December 2022. Part 2 of these regulations amend Welsh law so that there is no time limit for authorising the marketing of food from countries outside the EU. So, there seems to be a conflict between EU law setting a time limit of 31 December 2022 upon the use of this power and the regulations setting no time limit on the use of this power. As things stand, none of this would matter after exiting the EU, but the change to the time limit is being done under section 2 of the European Communities Act 1972, which is supposed to be used to implement EU law while you're still a member of the EU. In this case, the EU law says the power ends on 31 December 2022. This is a proposed negative instrument. The committee may wish to probe the issue further by recommending the regulations are uplifted to the affirmative procedure.

Do you mind me just asking, then—bearing in mind that the original regulation has got a deadline in it, that doesn't automatically transfer into regulation—?

No, I think it's required to be implemented. I think it's a Commission decision that needs to be implemented by regulations.

6. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3
6. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

I'll move on to the next item. We're on to the code of practice for the welfare of cats. A person who is responsible for an animal has a duty under the Animal Welfare Act 2006 to take reasonable steps to ensure its welfare needs are met. The existing code of practice was issued in 2008, under the 2006 Act. An update is required to reflect the most recent science, legislation and standards in animal welfare in order to avoid animals being put at risk of harm. Any comments, observations? None on those.

Okay, we move on to the next item, then: the Renting Homes (Fees etc.) (Wales) Act 2019 (Transitional Provision for Assured Shorthold Tenancies) Regulations 2019. So, these regulations deal with the application of the Renting Homes (Fees etc.) (Wales) Act 2019 to assured shorthold tenancies. Any comments, observations? There are none.

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

We move on to the next item, then, which is the Education (School Day and School Year) (Wales) (Amendment) Regulations 2019. These make amendments to the Education (School Day and School Year) (Wales) Regulations 2003. They provide for up to two sessions in the third term of each of the 2019-20, 2020-1 and 2021-2 school years to count as sessions on which the school met, if they were devoted to the provision of training or preparation and planning in relation to prospective changes to the curriculum for Wales. A technical point has been identified.

Yes. The draft report notes a fairly minor drafting error in the regulations. The Welsh Government accepts the point and will look to correct the error.

14:35

I suppose it might count as policy, in which case I might just ask the Minister directly, but was there anything in—I couldn't find it—that explained why this extra day has been given in the third term of a school year, rather than any other term? 

We looked at it more from a technical rather than a policy point of view, I'm afraid. 

The Plant Health (Forestry) (Amendment No. 2) (Wales) Order 2019: you have a report, an Order and explanatory memorandum in front of you, plus a letter from the Minister for Finance and Trefnydd. The Order amends the Plant Health (Forestry) Order 2005 to introduce emergency measures to prevent the introduction into and spread of the oak processionary moth within Wales. Wales is recognised as a protected zone for this harmful plant pest. An Order was laid in breach of the standard 21-day rule under the Statutory Instruments Act of 1946. I understand there are some merit points.

Yes. The merits points simply notes the breach of the 21-day rule, that is the rule that 21 days should pass between the date of laying regulations before the Assembly and the date they come into force. The reason for the urgency for these regulations is set out fairly clearly in the explanatory memorandum and in the letter from the Minister for Finance and Trefnydd to Llywydd. In brief, the regulations are urgent because they are needed to allow greater control over the import of potentially high-risk oak trees from countries where the oak processionary moth is widespread. There's also a point raised about why a regulatory impact assessment was not undertaken on this occasion. We've asked the Government for a response but we haven't received it yet.

Okay, we'll receive that in due course and can consider it then. Any other comments or observations?

If not, on to the Hazardous Waste (Wales) (Amendment) Regulations 2019. These amend the Hazardous Waste (Wales) Regulations 2005 in order to supplement Regulation (EU) 2019/1021 of the European Parliament and of the Council on persistent organic pollutants. And, again, a merits point has been identified.

Yes, simply noting that the power to make these regulations allows the regulations to follow the negative procedure or the affirmative procedure. Given what these regulations do, it seems appropriate to follow the negative resolution procedure. There's also one point to note with regard to EU exit. These regulations relate to the—[Inaudible.]—persistent organic pollutants under the Stockholm convention. The European Union has signed up to the Stockholm convention, and after EU exit it is understood that the UK will remain a party to that convention.

Okay. Any comments? No.

We move on to the Plant Health (Wales) (Amendment) (No. 2) Order 2019. It amends the Plant Health (Wales) Order 2018 to introduce—. No, sorry, we've been through—. No, no, sorry, I beg your pardon. We're moving through now—sorry, let's get that right—the Plant Health (Wales) (Amendment) (No. 2) Order 2019 to amend the Plant Health (Wales) Order 2018 to introduce emergency measures to prevent the introduction into and spread of the oak processionary moth within Wales. Again, another point on that. 

Again, just to note the breach of the 21-day rule, and the same justification around the need to protect Wales from the risk of the oak processionary moth spreading in Wales.

Sorry, I thought I had a moment of déjà vu there in relation to processionary moths. 

The Education (Student Finance) (Amendments to Student Eligibility) (Wales) Regulations 2019: again, a report, regulations and explanatory memorandum we've all seen. These regulations insert into the definition of 'leave to enter or remain' in various instruments, persons granted leave to remain on the grounds of family life. Comments there or merits points.

There are two merits points, starting here on pack-page 122. The first merit point states that the regulations could have been more specific in identifying which powers exactly the Minister for Education is using to make these regulations. The Welsh Government response was received after today's papers were circulated, but Members should have hard copies, which will show the Welsh Government accepts the points.

The second merits point notes that the regulatory impact assessment could have been clearer in setting out the financial impact of these regulations. Again, the hard copy response sets out a little more information, and accepts that the regulatory impact assessment could have been clearer.

Okay, and I think you have that before you. It's been circulated, so you've seen that.

It's something I picked up when I was going through the papers. Ultimately, the Government has said it's not possible to provide a statistically reliable estimate of the number of students, which I find slightly unusual if they're introducing legislation to permit it. Just an observation.

14:40

Okay, and we've noted that.

On to the Cardiff and Valleys Railways (Transfer) Order 2019. You have the report and a copy of the Order, which provides for Transport for Wales and Network Rail Infrastructure Limited to enter into schemes for the transfer from Network Rail Infrastructure Limited to Transport for Wales of certain statutory provisions and other rights and liabilities relating to the existing core Valleys railways. 

The firs thing to note about this Order is that there is no Assembly procedure for it. It doesn't follow the negative procedure, nor the affirmative resolution procedure. It's a no-procedure Order, which is allowed under the Transport and Works Act 1992. So, it's a nice example of things that could be done by the Welsh Ministers, by subordinate legislation, without any Assembly procedure. In this case, the thing being done is providing for schemes for transferring railway property and such liabilities from Network Rail to Transport for Wales.

Another thing to note is the various references to legislation that is not easily accessible to the general public. It seems that if the general public wanted to look at all the legislation referred to in this Order, they would need to contact the National Archives and pay a fee for doing so. Now, it is very rare that legislation is not freely available, so it's really just a general point about accessibility of the law.

Okay. This is a point that could be, I think, brought to the attention of the Counsel General in case there's something there. We have noted this, and, of course, the points about scrutiny. Well, of course, it is before us, so we are in a position to actually comment on it even though there is no specific procedure. Any other comments on this?

I presume there are specific guidelines as regards when a piece of legislation conforms to either the negative or affirmative, and when it doesn't have to. So, presumably, that's a matter for our scrutiny, I presume.

Yes. It's set out in the enabling Act, and, in this case, the 1992 UK Parliament Act said that you can do this without any parliamentary procedure. 

9. Offerynnau statudol sydd angen cydsyniad y Cynulliad: Ymadael â’r UE
9. Statutory Instruments requiring Assembly consent: Brexit

We move on to the next item, which is statutory instruments requiring consent. We have the Plant Health (Amendment etc.) (EU Exit) Regulations 2019, and you have the regulation statutory instrument consent memorandum, the explanatory memorandum, a letter from the Minister, a written statement and commentary. These regulations amend the Plant Health (EU Exit) Regulations of 2019 , and the Animal Health, Plant Health, Seeds and Seed Potatoes (Amendment) (EU Exit) Regulations 2019, and they ensure that Schedules 1 to 6 of the Plant Health (EU Exit) Regulations 2019 are updated to reflect recent EU and national legislation, so that EU-derived protective measures against the introduction and spread of organisms harmful to plants or plant products, which are in place immediately before exit day, continue to remain effective and operable following withdrawal from the European Union. Are there any comments on that?

Only to note that this is subordinate legislation made by UK Government Ministers that amends primary legislation within devolved competence, which is why a statutory instrument consent memorandum has been laid. 

Just one comment from me, which is the explanation from the Government about why it's appropriate to make this SI in the way that they have. It's in these exceptional circumstances that Welsh Government has created this. This is far from exceptional; we've had a year of this happening, so I would be quite interested to know why Welsh Government thinks this is exceptional.

It's exceptional in the sense it's not normally normal. [Laughter.]

But at least it doesn't refer to that we haven't got enough time, which is an improvement. 

Okay. We've done the plant health amendments, so we're now on to the European Union (Withdrawal) Act and common frameworks. You have the written statement and the report. The European Union (Withdrawal) Act requires the UK Government to report to Parliament periodically on matters relating to common frameworks, and the use it has made of powers under section 12 of the Act temporarily to maintain existing EU law limits on devolved competence, so-called 'freezing' powers, which we were discussing earlier. The Welsh Government issued a written statement on 17 July 2019, linking the fourth such report, which I think we've all had—we've all seen some time ago—and notes that the UK Government has not sought to bring forward any section 12 regulations to date. In addition, the report notes that the detailed multilateral engagement has taken place at official level on the development of common frameworks. We had a bit of a discussion earlier on common frameworks. Any other comments? No.

14:45
11. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C
11. Written statements under Standing Order 30C

We move on, then, to written statements under Standing Order 30C. The Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019. This is an instrument that disapplies provisions on freedom of establishment and the free movement of services that continue as directly effective rights in domestic law, by virtue of section 4 of the European Union (Withdrawal) Act 2018. Any comments?

On to the Agriculture (Miscellaneous Amendments) (EU Exit) Regulations 2019. This instrument amends provisions of European Union legislation relating to EU common agricultural policy, and the common organisation of agricultural markets, including, in particular, a number of legislative functions that are currently carried out by the European Commission. I think there are a number of points there.


 

Yes, a couple of things worth noting. Firstly, Standing Order 30C requires the Welsh Ministers to set out in these written statements what impact the regulations may have on the Assembly's legislative powers. As the committee has noted on several previous occasions, the statement is not entirely clear as to what that impact is. The statement suggests what the impact might be, rather than setting out what the actual impact will be. Secondly—and this is another issue that has arisen on previous occasions—there is disagreement between the Welsh Government and the UK Government as to whether the organisation of common markets and the common agricultural policy are devolved. But, despite this disagreement, given that the Welsh Government agrees with the UK Government policy in these regulations, the Welsh Government does not object to the content of the regulations and their application to Wales.

Any comments, observations? If not, we'll move on to the Health and Safety (Amendment) (EU Exit) Regulations 2018. These regulations make miscellaneous amendments to 11 pieces of secondary legislation, and one directly acting EU regulation when it is brought into UK law on the UK's withdrawal from the EU. The amendments relate to matters that have been identified as deficiencies in the legislation arising from withdrawal, ensuring the EU-derived health and safety protections will continue to be available in domestic law after exit day. There are some comments from the lawyers.

As mentioned with the previous regulations, Standing Order 30C requires the Welsh Ministers to set out in these written statements what impact the regulations may have on the Assembly's legislative powers. This particular written statement does not address that issue at all.

Do you want to write to raise those issues, seek clarification, and raise those points, because they are ones that we've raised before, as well?

Okay, we'll do that. Is that okay?

Item 11.4, the Storage of Carbon Dioxide (Amendment and Power to Modify) (EU Exit) Regulations 2018. This relates to a European directive of the Parliament and Council on the geological storage of carbon dioxide, and establishes a legal framework for the environmentally safe geological storage. These regulations amend secondary legislation, which forms part of the United Kingdom's implementation of the CCS directive. The written statement is, of course, the subject of the Counsel General's letter, which is in our packs, page 66. It indicates that, due to the UK Government changing the title of the instrument after the Welsh Ministers had provided consent, the Welsh Government's tracking system did not identify that the instrument had been laid in Parliament, et cetera. Any comments on that, because I know they're identified, hopefully now being corrected, at least on record now. Okay. Any other comments?

In which case, we move on to item 11.5, the Animals (Legislative Functions) (EU Exit) Regulations 2019. This instrument provides for a series of legislative functions that are currently conferred by EU legislation upon the European Commission, to be exercisable instead by public authorities in the United Kingdom. Any comments?

We move on to the Common Agricultural Policy and Common Organisation of the Markets in Agricultural Products (Miscellaneous Amendments) (EU Exit) Regulations 2019. And these regulations, again, amend transitional provisions contained in several statutory instruments, to take account of subsequent amendments to the definition of exit day in the European Union (Withdrawal) Act 2018. Any comments?

Only to note that the earlier regulations dealing with the same subject area resulted in disagreement between the Welsh Government and the UK Government as to whether this is a devolved area. Just to note, there is no reference to any disagreement in this written statement, despite it covering the same subject area. So, if the committee is chasing the issue on the previous regulations, mention could be made of these regulations. 

14:50

Okay, we've got that on record as well in terms of the collation of these various items.

The Food and Drink (Amendment) (EU Exit) Regulations 2019, which primarily amend wine legislation but also make minor operational amendments to food information rules. Again, the aim of the regulations is to ensure appropriate rules are in place to cover the movement and control of wine products both from a regime and an excise perspective. Any comments or observations?

The next item then: the Common Organisation of the Markets in Agricultural Products (Transitional Arrangements etc.) (Amendment) (EU Exit) Regulations 2019. The written statement indicates that the aim of the regulations referred to in the statement is to amend provisions of the common organisation of the markets in agricultural products and common agricultural policy—regulations that contain transitional provisions to take account of exit day. Any comments or observations?

Yes. The main issue here is that the Welsh Government did not consent to the UK Government making these regulations. Again, this stems from the disagreement between the Welsh Government and the UK Government about whether the common agricultural policy is devolved. The UK Government does not believe it is devolved and therefore made these regulations that apply in Wales without seeking the consent of the Welsh Government. The Welsh Government statement says, in the last paragraph on pack page 254, that the Welsh Government has written to the UK Government saying,

'it is not appropriate for UK Government Ministers to take unilateral decisions on matters which have a direct effect upon areas of devolved competence.' 

And if the matter is devolved, then it appears that these regulations are imposing a legislative common framework in this particular devolved area in breach of the inter-governmental agreement. The draft report suggests the Assembly may want to take a keen interest in the outcome of the discussions between both Governments.

We could write to Welsh Government and seek an update and we could also write to committees in the House of Commons, subject to what happens over the—

I think it's another example and I think it's worth writing and drawing attention to yet another example where this has been happening.

I remind you, Chair, just a few documents ago, we had a piece of legislation in the same area where the Government seemed to be quite content with it happening because there was no policy divergence. They've not mentioned anything here; they've just said, 'You shouldn't legislate on our patch'. So, perhaps we could ask them why they've taken a different approach in the two pieces of legislation in the same area. 

Yes, that's a fair point. 

On to the next item, then, the Import of and Trade in Animals and Animal Products (Amendment etc.) (EU Exit) (No. 2) Regulations 2019. These are regulations aiming to ensure the current operation of border inspection posts in the United Kingdom is maintained in order to continue the free flow of trade after exit day. The regulations create functions that can be exercised by the Welsh Ministers and UK Ministers on a concurrent basis under Schedule 7B to the Government of Wales Act 2006. The Assembly cannot remove or modify such concurrent functions insofar as they're exercised by UK Ministers without UK Government consent. So, there a number of comments on this as well, I think, aren't there?

Yes. So, again, there's the familiar issue of creating new concurrent functions that impact negatively on the Assembly's legislative powers. However, the Welsh Government's written statement in this case says that Welsh Government officials and UK Government officials are in discussions with a view to limiting that negative impact by amending Schedule 7B to the Government of Wales Act 2006. The amendment would be done by an order under section 109 of the Government of Wales Act. The draft report suggests the committee might wish to seek further information from the Welsh Government as to how exactly Schedule 7B to the Government of Wales Act might be amended. In particular, might it be a very specific amendment to address this specific issue or are there discussions about a wider and more general amendment to Schedule 7B that might be in the Assembly's favour?

Okay, it's agreed that that's the recommendation. Do we all endorse?

On to the Common Organisation of the Markets in Agricultural Products and Common Agricultural Policy (Miscellaneous Amendments etc.) (EU Exit) (No. 2) Regulations 2019. We have there the statement and the commentary. Again, this is an instrument that amends retained EU legislation relating to the common organisation of agricultural markets. Any comments?

14:55

Like the previous regulations, these regulations also create new concurrent functions. But, unlike the previous regulations, there's no suggestion that this issue is being discussed between Government officials with a view to amending Schedule 7B to the Government of Wales Act. Now, that may or may not answer the previous question as to how specific the section 109 order may be. However, in the letter, under agenda item 13.3 on pack page 277, the Welsh Government accepts  the various issues that have arisen as a result of creating all these new concurrent functions in various EU exit regulations, and there appears to be agreement between the Welsh Government and the Wales Office that this needs to be addressed, and that work is progressing on a section 109 order to amend Schedule 7B. But, again, we don't know what kind of things that section 109 order might cover. 

Okay, we can seek clarification on that. I mean, it may be that the appropriate way, rather than doing individual letters, is that we need just to incorporate these into a series of things that have emerged as a result of these items arriving at the end of the summer. 

12. Fforwm Rhyngseneddol ar y DU yn Gadael yr Undeb Ewropeaidd: Y wybodaeth ddiweddaraf
12. Inter-parliamentary Forum on Brexit: Update

On to the next item, which is the inter-parliamentary forum on Brexit update. You've seen that. Any comments on that?  

Yes, just to help me understand this. This is 11.10—the common organisation of markets. Consent has been given on that. So, consent was sought. 

Yes, that's my understanding. Yes. 

Okay, on the inter-parliamentary forum on Brexit, just an update there. I don't think there's anything to add other than, of course, the next inter-parliamentary forum hopefully will be hosted in Cardiff. So, we'll get details of that in due course. That's right—it met on 5 September in Westminster, and you've seen, in front of you, the media release and the letter following the meeting. If there's anything that we want to raise, we can just have that private discussion subsequently. 

13. Papurau i’w nodi
13. Papers to note

Item 13: papers to note. We have the letter from the Minister for Finance and Trefnydd regarding the European Grouping of Territorial Cooperation (EU Exit) Regulations 2019. Any comments? Noted.

A letter from the Chair of the Finance Committee to the Llywydd and the Counsel General. Again, a letter to be noted. 

A letter from the Minister for Finance and Trefnydd—the Environment (Legislative Functions from Directives) (EU Exit) Regulations 2019. Again, to be noted. 

Okay. Item 13.4: a letter from the Llywydd to the Chair of the Equality, Local Government and Communities Committee on voting rights for prisoners, which we've been copied into and that, obviously, we've discussed previously. Noted?  

At 13.5, a letter from the Minister for Environment, Energy and Rural Affairs on the legislative consent memorandum on the Agriculture Bill. I think we're being invited to note the letter from the Minister for the environment responding to our scrutiny of the Agriculture Bill. We reported on this Bill in January, and again in June of this year, and then, following prorogation, the UK Agriculture Bill did not complete its passage in the UK Parliament and fell. Any comments on that? No.

A letter from the Minister for Finance and Trefnydd on forthcoming subordinate legislation. So, a letter dated 26 July 2019. Noted? 

A letter from the Chair of the Equality, Local Government and Communities Committee to the Llywydd regarding voting rights for prisoners. Again, I take it that's noted. 

A letter from the Chair of the Equality, Local Government and Communities Committee to the Minister for Housing and Local Government, again on voting rights for prisoners. Noted? 

A letter from the Chair of the Equality, Local Government and Communities Committee to the Llywydd on 26 July. Noted? 

And a letter from the Chair of the Equality, Local Government and Communities on the same matter, on 26 July 2019. Noted?

These are matters, obviously, that all relate to items that have arisen as a result of the Senedd and Elections (Wales) Bill, which we scrutinised. Item 13.9, a letter from the Counsel General on EU Exit statutory instruments. Again, a letter there to be noted. 

A letter from the Future Generations Commissioner on the future generations report, inviting us to offer any comments or feedback with regard to the preparation of the first future generations report. Any issues there? You've seen the letter. We can discuss it in private session, if we wish.

Then, item 13.11, a letter from the Llywydd on the Senedd and Elections (Wales) Bill, noting the various responses to the Stage 1 report on the Senedd and Elections (Wales) Bill. Again, we can discuss this in private session.

A letter from the Llywydd to the Chair of the Finance Committee on the Senedd and Elections (Wales) Bill—again to be noted.

15:00

These can all tie into the private session.

A letter from the First Minister on statutory instrument consent memoranda—a letter from the First Minister dated 23 August 2019 to be noted.

A letter from the Minister for Finance and Trefnydd regarding the finance Ministers' quadrilateral—noted?

A letter from the Counsel General to the Chair of the Finance Committee, dated 3 September 2019. Noted. You can raise any of these in private session.

A letter from the Counsel General on the Joint Ministerial Committee (European Negotiations). That's the updating of us in accordance with the inter-institutional agreement. Noted?

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

Cynnig:

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

Motion:

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

Cynigiwyd y cynnig.

Motion moved.

We now get to a motion under Standing Order 17.42. So, in accordance with Standing Order 17.42(vi), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree?

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:01.

Motion agreed.

The public part of the meeting ended at 15:01.

Archwilio Cynulliad Cenedlaethol Cymru