Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Materion Allanol a Deddfwriaeth Ychwanegol

External Affairs and Additional Legislation Committee

14/10/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Alun Davies AC
David Melding AC
David Rees AC Cadeirydd y Pwyllgor
Committee Chair
Huw Irranca-Davies AC

Y rhai eraill a oedd yn bresennol

Others in Attendance

Akash Paun Sefydliad y Llywodraeth
Institute for Government
Dr Andrew Blick King’s College, Llundain
King’s College London
Dr Jack Simson Caird Canolfan Rheol Gyfreithiol Bingham
Bingham Centre for the Rule of Law
Yr Athro Aileen McHarg Prifysgol Durham
University of Durham
Yr Athro Alan Page Prifysgol Dundee
University of Dundee
Yr Athro Alison Young Prifysgol Caergrawnt
Cambridge University
Yr Athro Jo Hunt Prifysgol Caerdydd
Cardiff University
Yr Athro Michael Keating Prifysgol Aberdeen
University of Aberdeen

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Aled Evans Cynghorydd Cyfreithiol
Legal Adviser
Alun Davidson Clerc
Clerk
Claire Fiddes Dirprwy Glerc
Deputy Clerk
Manon George Ymchwilydd
Researcher

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Dechreuodd y cyfarfod am 14:02.

The meeting began at 14:02.

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

Can I welcome Members and the public to this afternoon's session of the External Affairs and Additional Legislation Committee? Before we go into our business for the afternoon, may I just do some housekeeping? First of all, can I remind Members that any mobile phones or electronic equipment, which may interfere with the broadcasting equipment—can you please either put them on silent or switch them off? If you require simultaneous translation from Welsh to English at any point during the session, please use the headphones. For simultaneous translation from Welsh to English, that is on channel 1; if you require the headphones for use for amplification, that's available on channel 0. There is no scheduled fire alarm this afternoon, so if one does take place, please follow the directions of the ushers to a safe location. Do any Members wish to declare an interest at this point in time? No, not on these issues. I've also received apologies from two Members, Mandy Jones and Delyth Jewell, and we have no substitutes named for either.

2. Trafodaeth ford gron gydag academyddion ynghylch craffu ar fframweithiau polisi cyffredin y DU gyfan
2. Round-table discussion with academics on the scrutiny of UK-wide common policy frameworks

We move on to the items on the agenda and two sessions. The first session is on a discussion regarding the scrutiny of UK-wide common policy frameworks; the second session is a discussion on the scrutiny of international agreements. Both sessions are with a panel of academic experts. Can I welcome to this afternoon's meeting Dr Andrew Blick from King’s College London—thank you, Andrew; Dr Jack Simson Caird from Bingham centre for the rule of law; Professor Jo Hunt from Cardiff University; Professor Michael Keating from the University of Aberdeen; Professor Aileen McHarg from Durham University; Professor Alan Page from the University of Dundee; Akash Paun from the Institute for Government; and Professor Alison Young from Cambridge University? I welcome you all. I know some of you have been to the committee before, so welcome back.

If I now move on to the first area of discussion, which is the UK-wide common policy frameworks, the committee has produced some work on this, which I am aware has been sent. We've been looking at the scrutiny challenge very much posed by these developments of the frameworks, and in August, we actually published a discussion paper that aimed to outline our understanding of the inter-governmental processes for developing the frameworks and some scrutiny challenges that faced the Assembly as a consequence of that. We published the paper because we found it important to actually make sure that colleagues, in particular, would have an opportunity to scrutinise them, and perhaps help fill gaps that we may have identified or not identified as a consequence of that, particularly in a Welsh context.

To further our work, we've produced a draft scrutiny proposal to help promote the wider dialogue, and we want to take the opportunity to work through these proposals with you today, if that's okay. So, I suppose, in a sense, the first question I would ask is, given the paper we have produced, whether there is anything that you want to comment upon generally, in generic terms, in relation to that paper, knowing that we will obviously want to—? We advised that paper ahead of our actual work that will take place on the scrutiny of the common frameworks as they are published,  because, at this point in time, we've still not got any published. So, generic comments, first of all. Professor Page.

14:05

I have one comment in general, which is that the focus, as I read it, is very much on the outputs in particular, whether we're talking about legislative frameworks or non-legislative frameworks, and this paper is about non-legislative frameworks. But I just wonder if that is the most profitable way in which to approach it, and whether, if you like, a less formal, or a less formalistic approach should be adopted, in which the focus is not so much on the outputs but on the whole process surrounding the development, the adoption, and the subsequent management and adaptation or amendment of these common frameworks. In other words, should you not be talking about a Brexit or a post-Brexit governance, or even an inter-governmental relations committee, which could have this as part of its work, but only part of its work? That is my general reaction to what I've read. 

Just to follow on what Alan said, I think that's absolutely right, and we've also got to give some thought to what frameworks are, because the way the process has been going on, there are frameworks that are about very particular things, very precise competencies, and there's another process going on about the internal market, which is a very broad kind of thing. Now, the second one doesn't really seem to be going anywhere, but it does raise a lot of questions as to why some things shouls need common frameworks—what are the broad principles underlying that? And the two processes don't really seem to be talking to each other very much. And the problem with looking at individual competencies is that you may end up with frameworks that have too much and too little in them because they cover issues that don't need to be there, and something else will be missed out because it may have arisen in relation to an international trade agreement or something anticipated, with the broad framework saying, 'What are the broad principles?' The internal market, I think, is highly problematic because it raises very, very political kinds of issues as to the borders between the market and social provision and so on, and because it potentially could be quite centralising. So, I think we need to bear in mind that those two processes are going on at the same time, and we don't really know which is going to be the more important one. 

Yes, I suppose I just wanted to add that I felt there was a focus on the question of constraints that common frameworks would impose on the devolved institutions, but, if we're talking about non-legislative frameworks, then those obviously wouldn't legally change the competencies of the Welsh Government or Assembly. Presumably, if these frameworks are agreed, the Welsh Government will enter into them because it sees the framework as a way to achieve something that it wants to, as the best way to advance its own objectives. And I think, in terms of the information you'd be seeking and so on, which we might come on to talk about in more detail, I just felt the tone was perhaps a bit too focused on that negative way of looking at it, which didn't seem quite appropriate for the non-legislative frameworks. Maybe it would be if we're talking about legislation—a different set of issues arises. 

A couple of observations. One is, following on from this morning, what we're looking at today is very much the business of shared governance and how we do that working together where it's seen that there is an imperative to work together. And, as Michael mentioned the internal market project, these two things are intimately connected. We know that one of the reasons, or the primary justification for a common framework, is still given as 'for the interests of the internal market', but we're still not clear what that means. But, reading this document in particular, just a couple of things jumped out. When we're talking about legislative or non-legislative, sometimes I'm a little confused about the use of that language, because, when we're talking about non-legislative, I'm assuming we're saying 'not UK-wide primary legislation', whereas it could be legislative in that there'd be secondary legislation—delegated legislation—at work. So, is that what we mean when we're using 'non-legislative'—that it would require Government action, secondary legislation here, under some parent Act, and so there would be the scrutiny of that part of a wider governmental agreement? So, it's just making that clearer, I think, about what we mean by 'legislative' and 'non-legislative'.

14:10

May I interject, or ask a question, just for the purposes of clarification? I understood 'legislative' from the paper itself to include all forms of legislation, because the paper begins by saying it is a legislative framework, and then we have mechanisms by which that legislation is scrutinised. And it includes Welsh secondary legislation, if that's an appropriate use of the term. So, it is very much 'non-legislative' that's being talked about in this paper.

If I might clarify, that's correct, in the sense that the paper is focusing on the non-legislative framework agreements that are anticipated, as opposed to the ones that have legislation attached to them.

So, framework agreements with non-staturory—nothing—

They've published one already, haven't they, on hazardous substances, and that seems to be just an agreement, a memorandum of understanding, an agreement to share information on policy changes in that area, and to abide by, or take into account, advice of the Health and Safety Executive in that case, but no legislation that would actually change what any of the Governments were able to do, as I understand it.

Just to add to that, with regard to understanding the aspect of non-legislative, you've got the two layers as well. So, you've got the non-legislative agreement, the common framework, between the Governments, but then you've also got all sorts of ways of how that might be implemented. And sometimes that will come through primary, sometimes secondary. Another area that I think is often missed out is how much then comes through guidelines and circulars that then effectively guide how you're going to implement these common framework agreements. But there's very little possibility for any form of scrutiny over those guidelines. And sometimes, even if they're only guiding and not binding, they become de facto binding because of the way in which we use the guidelines to interpret other principles. I think that's an other area that you're going to need to think about when scrutinising these measures that come through.

I'm interested in how we work towards a shared democracy across the UK. Because, having sat in ministerial meetings myself—and Huw and I have both acted as Ministers in these matters—you very often share policy objectives with colleagues in other administrations, and it's no bad thing to sit down together and to co-ordinate those policy approaches. But it's an entirely new aspect now, whereby we're actually creating a framework of governance that has not existed in the past. In my experience, the areas where we've created shared governance, if you like, has been in a delegation room in Brussels, where we've sat round a table—not dissimilar to this one—and shared an agreement on a policy approach, on a speaking note, or a negotiation point. And it's worked in a reasonably amicable and effective way. But it's also operated in secret—that's the issue. And whilst a conversation about a speaking note at agri-council may not be seen as the apex of political ambition, if we are creating, in a sense, a new shared executive—which we would be, in lots of different ways—then we need to have a far more effective form of scrutiny and accountability for that as well.

For me, whether we have a legislative, non-legislative, or a secondary, a primary or whatever, as an output in terms of delivering policy, is interesting, but it's not the key issue for me. The key issue for me is whether we should be having that policy in the first place, and what that policy is—what is the objective, what is the purpose of policy? And so, for me, my concern is, at the moment, looking at a Welsh Minister from this place, I'm only seeing a part of that, and somebody who's looking at a UK Minister in Westminster is only looking at a part of it, and the same in Scotland and Northern Ireland. What we don't have is a means or a facility or an ability to look at the whole from the point of view of democracy. The executive too—the executive will sit around these tables, have these conversations, and will have officials having these meetings and taking forward policy. But, on the other side of the coin, there is no shared democratic accountability and no shared democratic scrutiny. I think that's the issue for me, which really worries me about the direction of travel with the frameworks.

14:15

I suppose the importance of that issue depends on the importance of these non-legislative frameworks. There's one thing to try and understand where the policy that the Welsh Government is pursuing came from, what were the factors that led to the development of that policy and what constraints did it see. And that's an issue for any parliament to understand in any circumstances. But these non-legislative frameworks could have more significance than that. The question I'm asking is: what happens if these non-legislative frameworks are ignored? Is the assumption that they then become legislative frameworks? If it is, then these have a much greater significance, which does, I think, raise the kind of questions you're talking about, about looking at them in the round and looking at how they affect everyone. So, I think it would just be helpful to have some sense of how we see where these are going and what happens if they're breached. What happens after the next election if the next Welsh Government decides, 'I don't fancy being bound by this anymore'? Is that an option that's available to them?

And there's also the question of where the checks and balances lie here, and it's a real deep, fundamental question in terms of where we are with this asymmetric devolution that we have. Do the checks and balances lie in some form of development, informally or otherwise, of some central mechanism—an expansion of the work of the inter-parliamentary forum, which is starting to get more meaty and starting to think, 'What more can we do?' But, if we go down that route, of course, is that an alternative to what we do here, or is that a supplement? By saying, 'Let's support something centrally where we can be the guardians of what the executive is doing up there', do we in effect undermine where we currently are with devolution? Should we be turning that on its head and saying, 'Actually, what we want is Welsh Government Ministers here answering for arrangements that have been come to and deals that have been done'? I think that is quite a fundamental question for this and for the Scotland executive, and for the Northern Ireland executive, when it's up and running, and so on.

There is one other aspect, though. Alun was mentioning the question of the Brussels/Strasbourg equivalent of Ministers sitting around, coming to an agreement. One of the interesting things there is that there are very well established political positions before that we went into. So, if you went into agriculture or fisheries, everybody knew where my counterparts in the Scottish National Party were coming from—it was very clear. But, then you went into locked rooms and then something came out. The question is: do we want to know what went on to get to that point, or is it actually undesirable, because frankly it's not very pretty? But we should be able to at least interrogate the reasons.

So,  as you were saying, what are the constraints, the problems that have led to this compromised position that comes out? But it does strike me that, in these informal aspects that you were talking about, a real fundamental question for us is where do we vest those. Is it up that end, is it down here, or is it a balance between the two?

I think it's a balance between the two. You can't neglect the Welsh dimension, because that's your primary concern, but you are very conscious that that's only a starting point in these negotiations, and therefore you want that bigger picture as well.

And that surely argues, then, in that case not simply for as many people outside of the Whitehall establishment to be arguing for different variations on better inter-governmental machinery, but much, much stronger inter-parliamentary machinery.

And would that be ceded? Would that be given? Would that be encouraged, allowed, enabled?

I think there's an acknowledgement of reality that no devolved legislature, on its own, can get the full picture. Effective scrutiny in this context does require co-operation. Whether that co-operation is forthcoming or not is another matter, but I would have said that that is the starting point.

14:20

Anyone else want to give a view in relation to the points made? Because, clearly, that discussion is crucial to the way we work. Where you've highlighted the point, quite clearly, is the co-operation that will be required. The inter-parliamentary forum agenda, I can see that moving towards that type of co-operation, because the Parliaments seem to have that understanding. I suppose the question comes as to whether the inter-governmental agenda also recognises that co-operation.

There was a point—on those things, Huw, I was reminded that, when one is talking about European negotiations, transparency can be a barrier to actually reaching agreement. If everybody knows what it is you've given away—[Laughter.]

Those moments when you lock people in rooms—you don't really want to see all of the discussions, I wouldn't have thought. It can be very constructive, but sometimes frenetic and not wholly edifying. Chair, could I ask you a question, curiously?

Which is—. Do you see, from your experience, because you're involved with the inter-parliamentary forum—is this something where you see that greater parity being expressed in a way that we've had difficulty in seeing to date, really, emerging in the inter-governmental mechanisms? Do you see that, if you like, parity of regions and nations, potentially, within that? Sorry, I've put you on the spot, David.

You have. What I've seen over the last 18 or 24 months is a progression from a group of chairs meeting to discuss a common theme to a body that actually now wants to scrutinise a wider environment, and where the devolved institutions—obviously, Northern Ireland is not included, because they're not sitting—actually are given equal status in those discussions. 

Numbers wise, clearly, there's still a heavier weight towards Westminster, simply because there are more representatives and there are more committees in Westminster dealing with some of these sorts of issues. But there is an acceptance and an awareness that the devolved institutions have a voice that needs to be listened to within the inter-parliamentary side of things. I've also seen some who were sceptics beforehand come around to that idea.

I just wanted to make a positive comment reflecting on the experience of looking at how Westminster has done at scrutinising the Brexit process so far. I contributed to a liaison committee inquiry on this, and my sense was that the failures in the Westminster process have just been that the arrangements that they had were not bespoke enough for the Brexit process. Reading your document, what I think is heartening, obviously, is that you are really thinking about the need for a bespoke process for the actual tasks ahead.

But I think the difficulty is that getting the balance right between proactive and reactive scrutiny is really difficult, because proactive scrutiny is something that's much more difficult and uncommon—not normally what committees do, certainly in Westminster, and I don't know how much in the devolveds, but it's a much more difficult thing to play an active role in that early stage of the process. It does require some creative thinking that, hopefully, we'll get on to talking about. But I just think the difficulty is that you're going to have to be quite bold at the beginning, in a way, because, if you just leave it to work it out as you go along, you might regret not asking for more, if you see what I mean, but, anyway, we'll come on to that.

Are we not moving towards a more mainstream European approach, when we are looking at—ironically, given what's going on? We're looking at, you know, scrutinising a negotiating mandate from a particular Government before it goes off to meet its colleague Ministers and then coming back with something at the end of that process. 

For me—Huw and I are both drawing on our experience in Government, but one of the most miserable, frankly, experiences I ever had in Government was chairing the British-Irish ministerial council, where you really would spend hours and hours getting somewhere in order to read a line to take to someone who's not listening. And I question, outside of language and culture, frankly, where the Celtic countries learnt a lot from each other, I think—outside of that, I question whether we get anything out of it at all, apart from a level of stability, but in terms of ministerial functioning—. And so I’ve always hesitated before looking towards a parliamentary assembly from the different parts of the United Kingdom. But I can’t really easily find in my mind an alternative to bringing parliamentarians together in order to scrutinise Ministers in the execution of UK-wide policy. I can’t really think of a different way, because UK parliamentarians are there to scrutinise UK Government, and not to support their role, if you like, or scrutinise the Welsh Government. It can’t do that. Even Welsh MPs can’t do that. So, I don’t understand how, without a UK structure and framework of parliamentarians, you actually create the democratic accountability for an emerging UK structure that is outside UK Government.

14:25

Okay. Well, I want to move on a little bit to some questions that we would like to ask based upon the documentations issues—and I think this has led into those type of questions, but we are where we are, I think—and just for your interpretations regarding documents being laid. We’ve identified that draft framework agreements should be laid before the Assembly. Should they be laid before the Assembly in draft form? And, if so, what is the appropriate route for this happening? So, should we use Standing Orders? Should we use some form of agreement or concordat between the Assembly and Welsh Government? I know Scotland has got some form of concordat between the Scottish Government and the Scottish Parliament. Should we go down a similar route? And, I suppose, should anything be removed or added to the list that we’ve already identified regarding each draft agreement? So, that’s the next question we’ve put in—the documentation aspects. Have we missed anything? Are we correct in our call for them to be laid? And should some form of agreement, like the Scottish one, be placed in Wales? I know there was movement in the Constitutional and Legislative Affairs Committee to that agenda. There is one. Do we need to strengthen it? Our colleagues in Scotland will obviously know the one that’s been laid in Scotland.

Well, in answer to your question, yes, it has to be laid in draft, because if it's laid once it’s adopted it’s too late. I thought the information that you wanted was broadly right. You might add the views of the other devolved administrations to your list of things that you would actually want to know about—is this something everybody’s agreed about or are there serious disagreements?

Then I thought—. Should there be an equivalent of the Scottish Government-Scottish Parliament protocol? We might come onto this again later on, but I thought something that was very commendable about what you are doing is that this is a relatively open—well, this is an open process; you’re talking about how you should do this. Whereas, if you scrutinise closely what the Scottish Government/Parliament is doing—I’m now thinking ahead to scrutiny of common frameworks, which is what you’re talking about as well—what you'll find is references to discussions taking place between Scottish Government civil servants and Scottish Parliament officials, which will result in an agreement between the Scottish Government and the Scottish Parliament. Excuse me—what is the precise status of those agreements? Where does it cover? In what sense is it an agreement? In other words, it’s a completely opaque, non-open process whereby this emerges. And I think it’s a reasonable expectation that the Scottish Government in approaching these discussions will be looking for a system of scrutiny that is the least burdensome possible from its point of view. So, I think you are to be congratulated for having this discussion, and not—. I’d be wary of saying, ‘The Scots are doing it; that must be okay’, because I think what we’re doing leaves a lot to be desired in terms of transparency and public debate.

I would just add to what Alan said that it’s actually also difficult to find these agreements. Unless you know roughly when they were decided and where to look, it’s actually difficult to find them. So, there is an advantage in putting these kinds of things, I think, on the basis of Standing Orders because at least they're public and accessible and there's an index and things like that that can help you to find them.

14:30

Yes. In relation to the first question, it's a 'yes'. In relation to the second one, I think that, again, building on the experience in Westminster, I think having—it sounds a bit silly, but having a framework agreement about information on framework agreements is a good idea. So, basically, making sure that everyone understands, from the beginning, what the information is, and having that set down in writing in some kind of—you know, whether or not it's—. Maybe, in terms of the form, although it's not my specialism, I think that maybe rules against it being either a Standing Order or legislation. But just having a stand-alone agreement that you can refer to would be the better way, because there's more flexibility, perhaps, in form.

And then, on the third one, in terms of information, the thing I would be hot on would be the devolution impact assessment and the legislative impact assessment and to be very specific about what information you want and the questions. This is building on some work I did in looking at how scrutiny works in Westminster and, often, you see that there are various committees that, in the course of their life, have made lots of important constitutional points about things that legislation should or should not do in order to safeguard the rule of law, for example, in relation to delegated powers and other things—so, things that the Government should justify on particular terms. And I think what's really useful for speeding up the scrutiny process is being very specific, from the outset, exactly what you want justification on. Because otherwise these assessments will be very bland and boring and you won't find out the information you want and then you'll have to go to them and ask them instead. But if you can come up with a list of particulars that you want these impact assessments to cover, then I think you can get ahead of the process a bit more and make the Government reveal a bit more about what its position is.

Just to second what Jack has just said, I think the more you can specifically guide the questions that you want answered the better, because, often, when these memoranda, this information, comes through, you get to a state of information overload—so, you have so much information you can't actually filter through what is the important information you need for your committee. So, the more that you can say beforehand what it is you want information on in specific areas, I think, the better.

With regard to whether you put this on a Standing Order or in some form of agreement, my only concern would be making it very clear who precisely was bound by whatever agreement you came up with. So, if you want to draw on the experience of the Salisbury convention that allegedly binds the House of Lords, trying to get agreement as to whether this binds the House of Lords, some political parties of the House of Lords, because others weren't there at the time, whether it applies in certain areas, becomes problematic. So, I think if you have it on an element of a Standing Order that's very clear, it's very clear what its provisions are, it's open and transparent, and it's also clear who is bound by it.

Yes, thanks. Specifically on the question of the information you might seek on such frameworks, again, I think most of the things listed there are sensible. The bits I wanted to suggest you might expand, though—. Your second point on the list about the evidence to support the need for a framework in this area: again, that's obviously crucial. I think you could be more—that could be expanded to link to the underlying principles.

In the draft framework that they published earlier this year—the hazardous substances one that people may have seen—there is an attempt to go back to the original principles and explain why there may be some degree of risk to the internal market or there are international agreements that must be adhered to and, for those reasons, a framework is needed. But the information is fairly limited, actually, and I would like to see a more systematic reference back to the principles. For example, if we're talking about the internal market, in the end, there ought to be an economic evidence base for that. That should be summarised in some form in the reporting, I think, showing that these are the particular risks to business or to the internal market that could arise. So, that's one side I think would be particularly important.

Then the other thing I think that should be maybe prioritised more is the post-implementation plans, because most of this seems to be about, at the point of adopting a framework, what the situation is or what the initial impacts might be, but I think the frameworks ought to have built into them a clear process by which they'll be kept under review, success will be measured. There are some objectives for why the framework is being adopted in the first place—okay, well then how are you going to assess that it is working and it is delivering upon those objectives? So, I think that should be built into it as well.

14:35

Just to reiterate some of those points, and going back to the hazardous substances package that we've seen, this is held up as—. Well, it's the first one. It's the one that we've seen the most success for people to be able to agree on this so far, and it is quite concerning, I think, that that's the case because they justify it—they seek to justify it on an internal market basis, but it's not a convincing justification. They say, 'In this area, we wouldn't expect to see a race to the bottom.' It doesn't make out the grounds for justification. So, I think, as you say, wanting to have a stronger set of grounds there and one that can be held to account.

Just on the legislation part: obviously, that particular proposed common framework is based upon a body of retained EU law. There is secondary legislation, it's just that we're not making it new. It's stuff that we're inheriting. So, it's that legislation that—. There's an agreement about how that will play out. Now, we're looking to the future but we're coming at this—. As you say, we are where we are. We've got a situation where a lot of work around some potential common frameworks has been done through retained statutory instruments, and these things are being looked at not necessarily knowing that these are going to be part of a common framework. So, we're hamstrung a bit being in a situation where we've not got a full picture with regard to how these things might look. This is an ideal case, looking to the future, if we're starting from ground zero, as it were, but we're not there, and we've got bits and pieces all over this and not yet a clear picture about what these common frameworks are. We know, potentially, the Fisheries Bill was going to be the first one that was a primary piece of legislation, that called itself a common framework, but any number of those pieces are retained EU law that feed in. So, it's catching up with that. We need to get from a Welsh Government perspective how they perceive these things to be developing, how they perceive them to be emerging. But then again, that's not necessarily going to have the full picture either because we're not quite sure how things are moving, where things are with Brexit at the moment.

Can I just ask, since the Lisbon treaty, the functions of the European Parliament were strengthened: have they made a better fist at scrutinising and influencing the shared governance at a European level? And are there any lessons there about how our committees could work?

When you say 'they'—?

Well, the European Parliament. Does it influence and scrutinise shared governance at the European level? Has it been successful in doing that? Because it was my understanding that that was one of the objectives of the Lisbon treaty. It's all right if no-one has any—.

I think a better analogy might be the increasing role of national Parliaments in scrutinising European legislation. There is some literature on that.

In talking to commissioners, in conversations at a Council of Ministers, commissioners are always talking about the Parliament and the importance of the Parliament and, 'This will have to go to the Parliament.' And I was never a Minister prior to Lisbon, so I don't know—I don't know if, perhaps, you've got a different perspective. But, certainly, sitting in the Council, listening to commissioners talking about, 'Whatever agreements we reach are subject to agreement with the Parliament and the Parliament will have to be content', and, certainly, when we were negotiating the last common agricultural policy and the last budget agreement, there were representatives of the Parliament present when the Council of Ministers was meeting, so—

And that reflects the decisional change that came in around agriculture. That was the first time the European Parliament was going to have co-decision rights there, so that—

And I remember agreeing CAP at midnight in Luxembourg—all sorts of meetings, you know—and the whole thing being sent, then, off to Brussels to the Parliament, with a parliamentarian attached to it. And it went to the Parliament the following day. Now, you can argue whether that's a rubber-stamping exercise, but the Parliament was a part of the negotiating teams right through it as part of the presidency. So, I would argue that, without the experience of the situation pre-Lisbon, certainly at the moment, I think the Parliament has a significant role to play.

14:40

In relation to the comparison people have done with how the House of Commons has looked at Brexit, the key point people have made in relation to the European Parliament is that obviously the treaty gives the Parliament hard rights, hard veto rights, and then all the other arrangements, soft arrangements, revolve around those hard rights. And that's where all their power has come in relation to the Commission and the negotiations and stuff. So, the basic model, as it's been explained to me by experts on the EU Parliament, is that's the key model.

As you say, they're taken so seriously upstream because they've got this veto right. And there's this one famous example, which doesn't come to me now, but there is one example, post Lisbon, of them using it and so they know these threats are not just on paper, they're real threats that they can derail the whole process at that end point, and then you can have effective soft-scrutiny processes earlier on. And I think that was something that struck me reading your document as well, in relation to your processes, which are really difficult unless you have some kind of—even if it's not necessarily a legal veto, but some mechanism to give a verdict that has a major impact, without that hard verdict, rather than, 'We don't like these bits'; something quite hard. It'll be difficult to have the effective soft procedures around it, because people won't take it seriously.

Just to add that the added element to it is if, through the co-decision procedure, you get them agreeing the composition early, you get your legislation through quickly. You've got the threat of the veto, you've got the threat of delaying it through all sorts of complex conciliation committees to try to come up with agreement. So you've not just got the hard power of the veto, you've also got the element of, 'If you get us in beforehand and we all agree, and we come up with a composition, we can enact this much more quickly.' Now, that works very well as an element—. As Jack said, it's not just the back-up, it's an extra back-up: 'Well, we can delay this for a very long time in order to get no agreement', and trying to work those in, but it's very difficult to see how you can transfer that down to a kind of model through the devolution level, because you don't have that element of, 'But we might delay', you don't have that element of a potential veto. And I think you're thinking the model, as Michael was saying, is more thinking about how national Parliaments have been playing a greater role, feeding into Europe. I think that's more, at the European level, the model that you need to be thinking about.

But I think this comes back to the point about the real nature of these non-legislative frameworks, because if they were legislative frameworks, there would at least be a conventional veto, because, at some point, the devolved Parliaments would be asked to consent. But we think about these non-legislative frameworks, 'Well, this is great, no hard powers are being used, it's all been done by consent', but actually it is a bit of a problem if that then side-steps or bypasses any real rights, concrete rights, for Parliaments at the end of the day.

That's my worry, because what we're looking at here are things where we can identifiably say that there is something going on that adds to the construct of a common framework and we should be, somehow or other, finding a way to look at that and so on. My worry is about the things that aren't identifiably 'common framework', in quotes, but emerge to become common framework, and the equivalent in the European institutions was that we would occasionally get hijacked by something where we'd say, 'Where the hell has that policy just come from? We didn't see that one coming.' 'Oh, it came out of this other commission, not the one we were sitting on, but this other one over here, and it's been five years in fruition and it just knocked us completely.' And it's that sort of thing, discussions and agreements that are being done on some minutiae over here that evolves down the line and then it hits us and we haven't even spotted it.

And what strikes me with that is the immense resource that we would throw at, with the powers of UK Permanent Representation to the EU, scanning what was coming down the line, and we'd still miss things and suddenly find we were in a new deal situation. Sorry, it's slightly beyond the scope of what we're looking at of things we can identify and agree what our powers are on that and how we scrutinise it. It's what resource do we have, and what level would you put that resource at to actually scan. Is there some combined effort that needs to be done by the devolved nations and regions to just liaise and keep and eye on what's being talked about?

It's all right. Let's go back to our consideration of the document because it does, to an extent, have two points here. You're talking about our own scrutiny but our, perhaps, combined work with other institutions. But we are focusing, at the moment, on our responsibilities and our scrutiny. And I suppose with the document, what we're asking is—. There are two aspects to the scrutiny—I think you've mentioned it before—as some form of output, some form of assessment, with the reports or debate or something that takes a positive consequence of the scrutiny, and which committees, and should we continue with that agenda. There is an element of where we've gone through the standard process—the Business Committee in the Assembly decides what business each committee takes on, allocates political aspects to different committees, and timescales as well, so the managers organise that. So, should we continue that with the frameworks as well? Should frameworks be put in as part of the normal Assembly business? And having done that, should we also be expecting committees to produce reports or make sure we have a response for those aspects so that it becomes part of our normal work and it's not different from the normal work? And should we also seek commitment from Welsh Government that it will not agree any framework until the Welsh Assembly has actually had an opportunity to debate that work? So, that's what we're recommending. Are we out of kilter, then? Now, I appreciate the agenda with other institutions, and we might therefore not necessarily have an opportunity to take into consideration other institutions' outputs because they may not have done them yet. But should we, as an Assembly, be looking at that route forward?

14:45

I think the point we made at the beginning was that this was only one potential strand of, if I can say, the Assembly's work—the scrutiny of actual frameworks. There is a need to have that broader view that we talked about and identified how difficult that might be and the probability that it will require effective co-operation between legislatures in order to have that, or increase the chances of picking up on things that you might otherwise be blindsided by. In response to your question: should the Assembly seek a commitment? Well, there is a House of Commons/EU parallel into this, which is the scrutiny reserve. Going back to what Jack was saying about having things that you can actually hang soft controls on, then this is something that I would've thought you would want to look at beginning because you're not going to be able to establish it afterwards. So, it should be demand No. 1. 

I think the scrutiny—that's what I thought when I was looking at—. Having just given evidence in September to the scrutiny committee, I think there are lots of lessons to be learned about the problems with the scrutiny reserve from looking at how Sir William Cash's committee operates. I mean, the problem there is that they've got too much to clear in terms of work, so that it's very hard. So, the Commons' committee just covers too much and isn't really able to selectively focus or bring things to attention and then the relationship between the committee and the Chamber doesn't really work because it's deluged with documents to clear. So, I think it's getting that balance right, I suppose, in terms of what you actually—. So, making it meaningful, in that sense, and also to make sure parliamentarians actually engage with it because they think that they've got a real opportunity to influence the process. That's why I think you need to veer on the side of getting more powers than you might need for something like the scrutiny reserve so that you have a chance to actually engage people and say, 'Look, we can really make a difference to how this process plays out if we use this power.'

I suppose the other element, if we come back to this, is you have to prioritise. You have to say which of these actually matter to Wales, so, 'We're not interested in common frameworks in the round because we can't possibly do all of that, but these are the ones that matter to us, and that's where we should concentrate our energy and resources.'

Well, while we're talking about useful comparisons with what goes on in the UK Parliament, there's the European Scrutiny Committee in the House of Commons that, personally, I wouldn't recommend as a model for very much, with all due respect to that committee. Then, in the House of Lords, you've actually got, I think, some quite interesting committees that have had thematic policy areas to them, which will probably carry on in some form, assuming we leave the EU. And I think that's the important point here—that whatever mechanism you come up with does not just drag you into the detail and have you looking at the detail of things that maybe you can't change that much, but you have some kind of mechanism to allow you to look more broadly at the policy of this; where are we going with all of this? And I think, the House of Lords committee, subject to the limitations of it being the nature of the chamber it is, did actually—. I actually read those reports anyway, let's put it that way.

14:50

It's a very well-resourced committee.

Yes, indeed. And I know it's easily said, but resources are really important here.

That's very interesting, those comments. It's our skill, as parliamentarians, and the staff who serve us, really, to identify salience, isn't it? But it does seem to me to embed a model of scrutiny in the subject committees, because a specialist committee is going to get swamped, as some of the contributors have said. It's like an intelligence-gathering network, almost, isn't it, trying to get the Government to give us a timetable of what discussions are taking place and when they're likely to move to decisions and then for the committees to look at this more.

I'd say, in the last five years, on the big European stuff like the common agricultural policy reform and shifting between the pillars, we had huge debates in the Assembly about that, so, we do identify the really big stuff, or environmental monitoring in the various zones we have. These things get a lot of discussion and I think that's probably the kind of model that we should be doing. Because I know from when I chaired the Constitutional and Legislative Affairs Committee, keeping on top of 500 or 600 statutory instruments, my weekend papers were like that and I was just turning to the page that said, 'Is there a merits report or a technical one?' and, you know, you can't absorb all that material in any sort of depth. So, I think that's where it's pushing us, you know—salience is really important, and occasionally, when you go for that model, you will miss things and I think you just have to live with that, and have some sort of post process. I think someone else mentioned that earlier, as well.

Thanks. I was just reflecting, and I think one of the challenges you might face in creating a standardised process for all the frameworks, and, for example, the general commitment from the Welsh Government, as we've discussed, not to enter into any agreements until a certain process has been followed, is that—. I mean, the frameworks are across some very different areas that are being led by a range of different Whitehall departments, and there's an attempt to maintain some consistency across the piece—the Cabinet office obviously does it's regular reporting and so on—but I think the kinds of agreements that are going to be reached are going to look very different. In some cases, they're probably going to be fairly limited and just short agreements to share information and so on, and in other cases there might be something that feels a bit harder edged. So, it might not even always be clear whether something is or is not a common framework. I mean, we're talking about it as if it's a very clearly defined thing, which, obviously, are things that have a legislative underpinning, where there'll be something that you can sort of spot and create process around. But, when you're talking about quite informal inter-departmental agreements, I don't think they're necessarily even going to be all labelled common frameworks. I think some of those issues might be a bit challenging in practice.

One specific thing I was just wondering, though, I mean, reflecting on the reporting that the Government does do—the Cabinet office—which is a statutory requirement, of course, under the withdrawal Act and the frameworks analysis and so on—. Have there been any proposals made that the Welsh Government should do something similar alongside that? Because, you know, of course, that there are 43 areas where there's expected to be a framework covering Wales, both the legislative and non-legislative ones. It seems to me that the Welsh Government ought to provide a commentary from time to time on, 'Well, here are the 43 areas, these are our objectives, this is what progress we've made in negotiations with the UK Government', or something along those lines.

I don't believe there is an agreement with the Welsh Government to provide a similar analysis that the UK Government has been required to do as part of the European Union (Withdrawal) Bill. We have had a commitment from the Brexit Minister that he will lay frameworks before the Assembly for scrutiny, but that's not the same as what you're asking, because you're asking what progress has been made—do we have a quarterly update, basically, on that. 

14:55

The Scottish protocol on inter-governmental relations generally does have an annual reporting obligation, which is probably not enough, but I think you need something. That's absolutely right. You need this general overview of where things are going, and why some things are going into a non-legislative framework and some things going into a legislative framework, and what might be on the horizon—exactly the sort of thing that you were mentioning earlier.

If I remember rightly, that was part of the inter-governmental agreement that the Welsh Government and the UK Government signed as a consequence of the EU withdrawal Bill. Of course, the Scottish Government didn't agree it.

Yes, it is not a party to that. 

It's not a party to that. I think the Welsh Government simply will be publishing what the UK Government has published, not its own interpretation of that. But it's a very good question to ask them.

There might be lessons to learn from the Scottish experience on this to date, where in principle it's a good thing that some of the feedback from colleagues up there is that the implementation of it is not as useful. But it would be your feeling that we should be doing something that works, that allows the Government to justify what it's looking at, what it's prioritising, and what it's leaving off, as well. But it needs to have a fair degree of transparency with it so that scrutineers can then say, 'Well, hold on—why was that left off?' It will need some real detail behind it. 

Yes. One would need to think through exactly what information should be included, but, yes, I think the general point is just that the reporting that the UK Government is required to do by statute may be limited as compared to what you might like to see, but it goes a long way further than the kind of information you normally get about inter-governmental relations or policy development more generally. They didn't want to have to make that commitment; they were forced into it by Parliament, but I think it's a useful mechanism. So, if something similar could be created here it would be helpful.

Interesting. We're coming to the end of our first session, because as I indicated, we've reduced the time. Are there any other comments you might want to add upon the common policy frameworks and the discussion paper we put forward, in particular in relation to anything we should be seeking to establish within the Assembly and the Assembly frameworks? I'll try to exclude that from inter-institutional arrangements, because that's a wider basis again. Any comments you want to add, based upon the paper? Any closing comments on the paper?

As I say, I think you're to be commended for having produced the paper. It provides the starting point for what I thought was a very useful discussion. 

Could I therefore thank you for that first session discussion? It's been helpful and has given us some things to think about. We'll now take a five-minute comfort break and we'll start back up at 3.05 p.m. We'll come to session 2 on the international trade agreements that we need to look at. Thank you very much for your time, and we'll have a break. 

Gohiriwyd y cyfarfod rhwng 14:58 ac 15:06.

The meeting adjourned between 14:58 and 15:06.

15:05
3. Trafodaeth ford gron gydag academyddion ynghylch craffu ar gytundebau rhyngwladol
3. Round-table discussion with academics on the scrutiny of international agreements

Can I welcome everyone back after the short break? We move into the second session of the discussion, and that will focus on the scrutiny of international agreements and the process of negotiations. I hope you've seen the paper we've provided to date on work relating to international agreements, and we perhaps want to talk through some of the points we've raised. We see a need for the Assembly's engagement with the UK international agreements and their interaction with devolved areas, particularly as we understand, clearly, there may be agreements that actually cover areas of competency that are devolved and the devolved nations will be asked to implement those areas. It could be, in some areas, against the policies of those devolved Governments. So, it is an important aspect for us as to how we scrutinise those agreements, how we influence those negotiations and how we influence, perhaps, more of the mandates for those negotiations, which is perhaps more important. So, there's clearly uncertainty as to how we go about that at this point in time. It's not clear. 

There will be a new role for Parliament that goes beyond the limited provisions of the Constitutional Reform and Governance Act 2010, let alone legislatures like ours. But we need to have those discussions, and we've discussed the role that the Assembly should have and I think, to some of us here, must have, in a sense. We've looked at international comparisons and I'm sure you'll appreciate there are quite a range of international comparisons on this, and there is no one thing that fits all situation here, but it's useful information for us to see the facets that could be used, and so on, in certain areas, which can assist us. 

So, we produced our paper just to describe the role a little bit and, perhaps, the suggested engagement we want to have, particularly in setting a mandate, because I think what we've all recognised is that that's the crucial area—to set the mandate. I think Alun and Huw were talking about the discussions going on before you went into those other meetings; it's setting the mandate and the implications of that, what that might mean, then, for devolved nations and how can we, as an Assembly, also, scrutinise the Welsh Government's role in setting that mandate. So, I suppose, in a sense, the questions that we're going to be asking are more of what are your views on that paper; what are your views on how devolved institutions should be involved in those aspects of the work; how should institutions like us be involved in the scrutiny that happens as a consequence? And we'll go on to ratification at some point, as well: should we be involved in ratification aspects of any agreement, particularly those that require us to implement solutions for some of those agreements. 

I think that's the first question. So, the first question is: in our paper, do you think we, again, need to strengthen any aspects we've produced in that paper, perhaps along the lines of Sewel, which normally—this is the word— [Laughter.] It normally requires the consent of the Assembly—and this is what I mentioned earlier; the LCM argument is an interesting one. So, there isn't always a fallback for us at this point in time. There's a 'normally' in there somewhere. The withdrawal agreement Bill would be an interesting one where 'normally' may or may not be used again. But is there anything that we need to require of the Assembly regarding the mandates on devolved competencies? Should we find the Assembly doing something about it? Aileen.

15:10

I thought this was a very good paper, really commendable. I absolutely agree where you say, 

'In our view, adjusting the devolution settlement through acceding to international agreements is as constitutionally significant as adjusting it through UK legislation.'

Absolutely and, of course, a much less transparent procedure. So, there's a case for a much stronger role here. 

I also think it's worth bearing in mind a distinction that we talked about in this morning's session. When we're talking about international agreements, we're not talking about the role of the UK Parliament, we're not talking about parliamentary sovereignty; we're talking about the role of the UK Government, which is not sovereign. And I think in those circumstances it is reasonable at least to seek something stronger than a mere convention; something that has legally binding duties to seek the consent of at least the devolved Governments. Whether that involves the devolved Assemblies as well is a different view [correction: issue], but a legally binding commitment to devolved consent [correction: to secure devolved consent] does not conflict with parliamentary sovereignty here. This is about control of the UK Government, and the UK Government is not sovereign, and that's worth bearing in mind.   

Yes, absolutely, I would completely agree with Aileen. I think the key point there is that you need to be very specific about what information you want. Again, thinking back on the experience of article 50, the key point in relation to a mandate scrutiny process is just literally getting the information on what the mandate is; that's really what was lacking in terms of—. The UK Parliament only found out about the various positions when we got to the joint report, and that was all too late. Again, history will be written about that, but the point is that I don't think you necessarily want a legal veto over the mandate, because that, for lots of reasons, is not workable. But, you could have a legal right to certain information at the mandate stage and then have a non-binding vote on that information, so a duty to provide certain information before you enter a certain point in the negotiations. That is something that you could see a case for, supplemented by a legal veto at the end of the process, which, hopefully, if the process works as it should, you never actually have to use because you've got people's buy-in from the early stage. So, I think that just being very specific about the information you need is the main point I wanted to make. 

At first just to underscore, although as was said the UK Government isn't sovereign, how far we are at UK level from having reasonable oversight of what goes on in terms of conduct of the diplomacy and treaty-making power. You mentioned the Constitutional Reform and Governance Act 2010. I'd like to see how CRAG could really be used to actually block a treaty because, in theory, the House of Commons can do it, but it doesn't look to me like an ideal procedure, and it's another example—. We've talked a bit today about the Sewel convention. When you try and put a convention—in this case, the Ponsonby rule—into legislation—it was introduced, I think, in 1924—it's not the ideal model for doing it. So, that needs a lot of work before the UK Parliament can get involved in this, I think, with the whole UK constitutional set-up some way from that. 

And then to underscore what Jack was saying about having some kind of veto at the end of the process, I think that's absolutely key. You rightly said that setting the mandate—. If it goes wrong at mandate stage, then the whole thing is in difficulty. However, the only way you're going to get the power of the mandate is for the people setting the mandate to actually know that if they get the mandate wrong, they're going to be blocked. So, the whole point about avoiding trouble— it's 'anticipated reaction' I think they call it in political science. If they know you've got the power to mess things up for them further down the road, they're going to take you seriously all the way along the line. If they don't think that, they're not going to take you seriously, and I think that's the underlying power relationship. How you get to that, I don't know, but that's got to be there somehow, and then you find you might not ever have to use that power, but if you use it once you probably won't have to use it again in a hurry. But how you get there, I don't know, but that's where you need to be.

So, any number of procedures around setting mandates, fine, but they've got to be backed up by actual powers at the end of the process—not at the beginning, the end—but the fact that they're at the end will mean it works all the way through. We can see that, say, in the Senate in the US. I know there are ways of working around it, but with treaties, traditionally, Senators might be taken along to negotiations, for example, to make sure that they knew the Senate could veto—the Senate vetoed the Treaty of Versailles. I'm not saying that's a good thing, but that's quite a powerful tool to have there.

15:15

I was very taken by what you said, Jack, in our previous conversation about the role of the European Parliament, and how the Lisbon treaty is brought into being—a whole new series of soft powers as a consequence of the hard power. And I think that's a very, very interesting observation, because I think the fundamental here is that the UK Parliament finds it exceedingly difficult to share power—and the UK Government finds it impossible. [Laughter.] The UK Parliament finds it exceedingly difficult to share power and to recognise another person's mandate. And I think we do need to look at this in a contextual way, that the UK Parliament itself doesn't have the ability at the moment to scrutinise and deliver on treaty scrutiny.

I've always found this quite a difficult issue. Because one of the first issues I had to deal with was an area where the UK Government had agreed through the response to the EU issues on the financial crash and the rest of it to a whole series of actions. And I remember there were five actions we were discussing, three of which were devolved, and the UK Government could say what it liked, but neither myself nor Fiona Hyslop, representing the Scottish Government, had any interest at all in delivering on the three that they'd agreed to, and we were very clear with them. And it was actually a shock to William Hague—he'd never even considered this. It is something that I believe there is an ability through some of the memoranda of understanding that we have in place at the moment to actually start developing a very different approach to that institutional scrutiny and the weight of powers. Because, for me, if there are any devolved issues involved in any international treaty obligation, then this place has to have an absolute veto. The usual example is the sale of the NHS to Donald Trump, which I think is not overly serious. But, for example—

[Inaudible.]—the Queen's Speech. [Laughter.]

Yes. But the privatisation of different parts of service delivery could be very easily included in a trade deal, or a law changed at Westminster that would have profound implications here, and we have to be able to say we will either deliver that or we won't. So I think the veto there is absolutely essential.

Is there a precedent in the decentralised or federal systems for that level of power for a veto?

The famous one is Wallonia. [Laughter.]

There are other cases. There are many cases in which international treaties are not automatically applicable at the sub-state level—Canada, for example. It requires to be incorporated by the provinces.

Can I draw your attention to a point where I think you're in danger of acquiescing, and something you might want to think long and hard about before you agree to it, or adopt it—or, to put it another way, you might not be making as much of a point as you perhaps should? And that is paragraph 37, where you say,

We would expect the Assembly and/or Welsh Ministers to be responsible for the domestic implementation of devolved aspects of international agreements'.

To which I would add: 'Damn right you should.' And the corollary of that is that you should be involved in the discussion of those things that have implications for you in terms of the actual implementation of these obligations. That is a point that the Scottish Government is very strong in making, and I think it should preface your approach to the Welsh Assembly, Welsh Government's role in relation to the negotiation of international agreements. Here, I think you're in danger—. And then you say, 'And maybe the UK Government could tell us when we're expected', in paragraph 38. I would delete that.

I think you're in danger of acquiescing into what I call the abuse of the Sewel convention, which is a Brexit-related phenomenon. It comes in the relatively attractive guise of, 'We've extended the Sewel convention to secondary law making.' Wow, isn't that wonderful? That sounds good. It sounds like there was a gap there, but what we're missing, or what people were missing when they were seduced by this claim is, 'Well, actually, at the same time, we're taking the power to implement things, to make rules in areas that actually belong to you, and the sop we're giving you in return is saying that we won't normally do that without your consent.' So, actually, I think you should be, given that all this legislation is not on the statute book—the trade Bill, agricultural Bill and fisheries Bill and so on—and will have to be gone through again, I think you should be starting with a very hard line that says, 'These powers are our powers and we will exercise them.' And the corollary is, as I say, 'We need to be involved in the discussion of agreements that will require us to do things and the implementation of these powers.'

15:20

Sorry, but I'm trying to play devil's advocate here: do you not foresee any circumstance, where, under 38, UK Government Ministers might say, 'We've had two years of discussions behind the scenes, but we need to come to a rapid conclusion here, so we're going to have to move and then we'll work on it afterwards with you'? Now, I see the dangers of this, absolutely, as you say, which is—

I wouldn't want to rule it out. 

Just listening to you, I'm reminded that there is something in one of the memoranda of understanding that is actually talking about the implementation of the EU obligations of other devolved administrations, which says that the process is kicked off by the relevant UK departments saying to the devolved administrations, 'This needs to be done', because otherwise you wouldn't possibly know about it. I suppose you could read that as having been lifted from that, but my point is about the actual standing of the Assembly or Welsh Government in relation to the negotiation of these agreements as a preliminary to implementation.

Absolutely, but in acknowledging that there might be an instance where that sort of power might need to be used by the UK Government, the question then is: what is the backstop that can avoid it being abused? And I suspect that might be something where this ultimate power that rests with the devolved administrations to say, 'Yes, you can do that, but you better know that we're going to have to sign it off eventually, so don't do something on steel negotiations, just because you've been backed into a corner because of this particular geopolitical issue, that is going to devastate down here, because you know we're not going to agree.' I don't know, it's—.

I think you're upfront about, 'We need the agreement of the devolved administrations before we can sign off on them.'

I just wanted to make a short point about something that you touched on earlier, which is inter-parliamentary diplomacy and in relation to information sharing. I think one lesson we've learnt from the Brexit process so far is that it can be very effective if you're making sure that you're liaising with the Parliament of the country that you're negotiating the treaty with, because you might find that their constitutional arrangements mean that their side are getting more information shared with them, and if you can come to a Parliament-to-Parliament agreement on the information, that might be a way of showing up your Executive by saying, 'Well, look, the New Zealand Parliament gets this', or whatever, 'and we don't get that—why?'

I think, famously, David Davis promised that the UK Parliament would have exactly the same level of information as the European Parliament, and that's all that needs to be said. But it didn't turn out quite to be true and the reason was because there wasn't any hard agreement about what should be shared. But inter-parliamentary diplomacy is a really important part of the picture.

I think I'd also like to draw your attention to the need to differentiate between different aspects of how these international agreements can impact on Wales. So, sometimes, the impact is about modifying the powers that are devolved down to Wales, and that's really the strongest element of veto, because they're changing the constitutional settlement. Sometimes, it's an area where it is devolved. When you get to those areas where you've got international agreement that covers devolved powers, sometimes you have a say in implementing them, sometimes you do not. But I think you need to layer the element of consent. Where you need it strongest is: 'You're altering our balance of devolved powers.' Where you've got it weakest is: 'It's in the devolved area, but it's an area where we're setting goalposts.' Wales can then go away and implement those because you've still got the ability later on, so you can negotiate further up, but you have the ability later on within the confines to set a Welsh-specific way of implementing those particular aims. So, the middle is where you won't have any power for implementation but it's still in a devolved area, and then I think you'll still need a strong element of being able to push back, and I think being able to layer those is important, because then you've got the veto when you absolutely need it, which is going to be in those scenarios where they're altering the devolved powers, and I think that's where you need to push strongest.

And to second Jack's point, but also look at it not just in terms of Parliaments in the New Zealand Parliament, but look at Australia, look at what the Queensland Parliament gets from its international agreement with Australia—what do they get? Because then you can argue very strongly, 'Well, if the Canadian provinces get this, the Australian states get this, how come we don't get this?' So, you can push back for similar information that way as well.

15:25

I was going to say also, if there is some kind of veto power, it's not necessarily something that weakens the UK Government in negotiations, because they can actually say, 'We can't do this, because—'—you know, they can play the bad cop routine. So, even though there are different ways, it's important to bear in mind that it's not necessarily a way of undermining the UK Government—as in, you know, 'surrender Act' type stuff—it's not necessarily that at all.

No, the intention—the veto, I'm assuming, will be on the basis of, 'Actually, we agreed this particular mandate and you've gone away from that mandate that we agreed upon.'

Yes. And then the UK Government can say, 'This is our mandate and we can't back away from it' in a negotiation, and, actually, potentially use that as a tool in negotiations to say, 'We can't give ground on this'—not, 'We might be able to'—'We can't, because there are these terrible people in Cardiff who will make trouble for us.'

Yes. And, of course, that's a scenario that could apply, technically, when a mandate is being discussed and agreed prior to an Assembly election. Post an Assembly election, you're then dealing with a different Government, which would solve that argument. 

I think one particular problem, looking at the way that delegated legislation is working in preparing for this, is that you've got a situation where it looks like the Government is going to have a whole system or web of powers covering all sorts of areas, which means that—and this overlaps the conversation where the worst case scenario, and I was speaking to someone who worked in the New South Wales Parliament about this, is that you have no say in the formation stage and then you have to do, as was said earlier, all the work, the detailed work. And it doesn't sound like a lot of fun policy choices in terms of implementing, because I'm not a trade expert, but if you look at the Australia-USA trade agreement, it's extremely detailed. So, there's not a lot of design—. There's not a lot you can change at the implementation stage. It's all prescribed down to the smallest detail, and then you've got this huge technical work that you have no influence over, which is probably not a great incentive for parliamentarians to actually engage with the process at all, because it's like, 'Here, have a ton of work to do, over which you've had no say whatsoever.' It seems like a nightmare scenario to me.

But that scenario also seems to indicate that, if there were differences in policies, there would be very little a devolved Government could actually do about it, because it is so prescribed. Under the current legislation and the current constitution on international trade, the treaty would be sovereign.

It would be a question of what scope there was for differential implementation. I can't remember the name of the case, but there was—

Yes. These arose in relation to EU law, and I think it was actually decided that the Welsh Government could go its own way. They didn't have to be implemented uniformly across the United Kingdom.

There's more flexibility in the way EU law was designed, because it was designed to be implemented across 27 member states, whereas—

It was the UK Government that was saying there wasn't, probably.

Oh, really. [Laughter.]

Yes, except my observation on that was there was increasing flexibility over time as that evolved. Originally, it was quite precise, and limited flexibility. One of the things they learnt was the need to give more flexibility. What we wouldn't want to do is be in a position where the UK position was so inflexible that we had to take 10, 15 years to unravel it. So, there is a—. We've got to learn fast here about—and I guess a lot of this will fall then on the Welsh Government to explain their position up front and where their clear hard lines are, as opposed to red lines, and where they're more amenable to going with the UK position.

15:30

I think one point that’s worth emphasising is the importance of getting a generally applicable framework here, because one thing that’s very obvious in the various different bits of Brexit legislation, some of which has fallen, but will come back, is that there are different arrangements in different Bills, and some of them have inter-governmental agreements attached to them, but those inter-governmental agreements don’t all say the same thing. So, you end up with a patchwork of provisions, some of which are quite generous, some of which are not so generous, but always with scope for things to fall between different regimes. So, having something overarching in general that applies to everything and isn’t dependent on particular subject areas or ‘We’re operating in exercise of this particular power, therefore these consent obligations or scrutiny obligations or consultation obligations go with it, but if we’re acting under another power we can do what we like.’ You don’t want to get into that situation, and that’s another aspect of this unprincipled ad-hocery that we see throughout. So, trying to get something general and fixed in statute I would say is really important.

The starting point in relation to all that legislation should be that the implementation within the devolved areas is a matter for the relevant devolved administration. I suspect—I haven’t looked closely at the legislation, but they probably made it up, Bill by Bill, and there is no pattern.

Yes, I think that's—. Jo, you and Tom did a really useful paper on this, which shows the different arrangements under different Bills, but you also make the point that the UK Government is still not accepting that principle that implementation of international agreements is a devolved matter. They’re still pushing back against that principle, so it does really need to be reinforced.

Well, their view on the shared prosperity fund is a good indication of their view on these matters, because that is supposedly replacing EU funding, of course, and EU structural programmes, and all the indications that I have at the moment are that the UK Government are seeking to repatriate these things to London. And I think it’s a very, very unhappy situation for us all to be in at the moment.

I assume in this question we’ve raised, because, obviously, we’ve mentioned examples we’ve—. I’ve got notes of examples in Australia where there have been differential arrangements for the different states in an agreement, so there are examples somewhere else where this has happened. But what you’re saying is, actually, the UK Government hasn’t even looked at that area as such—it’s still treating it as their responsibility and, whatever they decide, it will be implemented no matter what.

I think, if we get the sort of deal that they want to with the EU, isn’t that sort of process going to be necessary, because they’re going to have to come up with differentiations for Northern Ireland, aren’t they, in terms of these trade deals. So, they’re going to have to have—. That’s going to require some degree of baking in different arrangements for each of the constituent parts of the United Kingdom in any agreements moving forward, because the EU won’t allow them to—. It’ll be very, very complicated. It's already a—

We don’t know—obviously, we’re speculating on the possibilities of what deal may be being discussed as to how it may affect Northern Ireland at this point in time, but, yes, I suppose, if that comes into play, then we’ll already have a different part of the UK being differentiated. So, in a sense, the road is started.

Yes, and, in that sense, you can't see how there can be a principled objection, therefore, to the idea that there would be different arrangements, depending on the different legislative arrangements, in each of the constituent parts.

Except you can hear these arguments all the time. You do. You hear arguments all the time saying, ‘Yes, it’s a special case. You can’t read across to Scotland,’ and it’s somehow wrong to try to do that, because, you know, people kill each other in Northern Ireland and it’s distasteful to try to suggest there’s any equivalence. So, you know—. Logic is on your side, but politics isn’t, necessarily.

Well, building on some of that, it probably is useful in doing these comparisons to look at a place like Norway. Because we may—. We don’t know; we might all end up like Northern Ireland. Not in the sense of what you were just talking about, hopefully, but in the sense that we don’t know what kind of Brexit, if we leave at all, we might end up with, and we might not actually be able to negotiate very much in the way of trade deals. So, you might find that a lot of what you’re doing—and you may or may not be happy about that—actually, there isn't that much to talk about. So, there's a range of options, and it's worth bearing that in mind. 

15:35

That would be an interesting constitutional moment. [Laughter.] I'm just wondering, Chair: do any of our experts here today know what's happening with the Lords and Commons committees on this? Are they turning their attention to the same thing—the House of Lords particularly—in terms of where consenting powers should lie in terms of international trade agreements in the future, in terms of what the roles of the devolveds are? Do we have allies if we were to advance this argument?

The Constitution Committee are doing a report on treaties. 

So, they're doing evidence to the—. Maybe ask them to hold a joint evidence session with you on this subject. It could be useful.

The Constitution Committee didn't go that far, I don't think, in terms of how much, how big a role Parliament should play in—. There was talk of a treaties committee in the Lords at one point—I don't know whether that came about—which could—

It's been recommended on many occasions in the past that there should be a treaties committee or a treaties sifting committee and it's never quite happened, but it's been talked about. 

I think everything got tied up in the Trade Bill because in the Trade Bill there were lots of amendments put in—which is one of the reasons it's no longer making progress—to bolster Parliament's role. And then, because that's been abandoned, we don't really know—. Until we have another trade Bill, we won't really know what role Parliament will have in terms of any legal powers to supplement those in the Constitutional Reform and Governance Act 2010, and then, hopefully, the committee arrangements will be built around those, but, in the Commons, it's very difficult because there's such a competition between the different committees about who's going to play what role. It's not clear who's going to play what role on the future relationship and then with other roles it's—.

With the demise of the Trade Bill, which is, obviously, one of the ones that fell as a consequence of that prorogation of Parliament—and it's been mentioned in the Queen's Speech that they will have a new trade Bill, but the focus being on the Trade Remedies Authority more than anything else—is it likely, in your opinion, then, that that might be a more simplified Bill, therefore more difficult to amend as a consequence, if they didn't like the amendments? 

I'm not sure. I think you can amend anything now. That's the rule. You can pretty much put anything—. I mean, if it's a narrow scope—that would be the tendency, under the minority Government, that they try and have as narrow a scope as possible in order to—. But that hasn't really necessarily always worked. I think, in trade, it'd be pretty hard to argue that things like Parliament's role wouldn't be within the scope of something like that. But I haven't seen the Bill, so I wouldn't know. 

No. Because we did have an LCM on the Trade Bill originally, which—

PACAC—the Public Administration and Constitutional Affairs Committee—was doing a report, an inquiry, on 'The Role of Parliament in the UK Constitution: The Scrutiny of International Treaties and other Agreements'. Given their previous work on devolution and Brexit, I would have thought they would be quite sympathetic to—.

Just that, again, the UK Parliament, I don't think is a great model to look at for treaty scrutiny. And it does come back to this—and we've touched on this a bit—the Julius constitutional model, that our big thing is, well, the Government can go off and negotiate stuff and ratify stuff, but, if it changes UK law, Parliament has to approve it. So, that's why you've got maybe, in theory, you've got the Sewel convention that change to the UK law involves some kind of approval, but because there's never been a tradition that Parliament actually has anything to do with treaties—that's changed slightly with CRaG, but, as I said before, CRaG is not the most effective piece of legislation in that respect. So, again, that's why you're working—. There's a bit of a blank canvas there in terms of how you actually do this and it's something that has affected the UK Parliament, which is why they've never had a treaties committee even though it's been called for for the last 15—.

I think the commission that looked at the House of Lords in 2000—what's the way forward for the House of Lords post-1999 reforms—one of the things it said was that maybe the House of Lords should have a treaties committee, but it was never done. They did a constitution committee, but not a treaties committee. The Wakeham commission; that's the one I'm thinking of. So, they recommended it, but it never happened.

Because, of course, treaties were an EU issue, and therefore Parliament—

The trade treaties, yes. 

It's a serious issue, because I was talking to someone about this in terms of how other countries will look at the UK and whether or not we're a reliable trading partner, and, if you're like Japan, do you want to spend seven years negotiating a deal with the UK only for it to be torpedoed at the last minute because, in the House of Commons, there's no majority? So, I think, from that perspective, in a similar way to the exercise you're looking at, I think Parliament will have to, and the Government will have to, have a think about making sure that doesn't happen—that, you know, when you've got a change of Government, if these negotiations go beyond one Parliament, that you don't get a change of Government and it then gets torpedoed at the last minute. But, obviously, because of Brexit, the serious thinking on this is being delayed because I think there's one thing the current Government's definitely not going to do is propose more powers for Parliament to scrutinise anything.

15:40

Is there also a fear, then, on that argument, that they will want fewer opportunities for devolved institutions to—in your words, not mine—torpedo an arrangement and a deal that's come through? So, they wouldn't want to necessarily be in the mood to look at changing the Government of Wales Act 2006, for example, to allow us more say on foreign affairs and things like this?

Yes, as you're saying, it's short-sighted if you actually want not to repeat a situation where you have something being shot down three times at the last minute. That is not a sustainable approach, so you have to find an alternative way of doing it. But when that moment will come, I suppose is—.

Actually, I think as you pointed out, buy-in at the very beginning is important because if we get that buy-in in the beginning, then, technically, you know you can be straight: 'Well, this is what you wanted. This is what you agreed to. Now you're changing your mind. It's not what you said five years ago when we started negotiations.'

We've such a range of experts here: any intelligence on the inter-governmental review? I mean, is it as dead as a duck or is it still alive in this new administration, given the cliff edge of a general election and all sorts of things?

The Welsh Government—obviously it's a much stronger inter-governmental model—has said, failing that, that there should be a JMC on international trade, which seems a fairly reasonable proposition to me, but, again, not one I would—. There doesn't seem to be a great appetite from the UK Government, although there is a ministerial forum that involves our Ministers, I understand.

Before anyone answers you on the review, I understand there is a JMC, or a Ministers' forum, on trade being established. It hasn't met yet.

Yes, but that's not the same as a JMC, is it? At least, I presume it isn't.

I don't know what the authority of that body will have either. That's the relevant question. So, does anyone have a view on the inter-governmental review? We know it should have been done months ago, and we're still awaiting the outcome of it. So, if you've got any intelligence or if you've heard whispers—.

I think the radar's pretty dead, isn't it? Because there's not much happening.

I think Akash would know, if he was still here.

We'll blame him. Okay. Well, I think that answers your question, David.

Can I ask something? We're talking about trying to be proactive and get ahead of the game here, but if this doesn't receive a warm response, then what would the default position—what are the implications of that? If, for example, a future trade deal was adjudged after the event, in effect, to have such an implication on devolved competencies or, alternatively, such negative ramifications on a sector or whatever, then how would we deal with that? Because this is an interesting argument for UK Ministers, who have some headspace to think about this: if we don't do this, then what's the result?

I think the result is a recipe for endless constitutional wrangling, and I think you have to address it sooner or later. I perhaps naively hope that it will be addressed, and sooner rather than later.

You're right in thinking that you're between something that has an effect on a sector and something that has an effect on devolved competencies, and I think both of those are important because there may be non-devolved competence—you mentioned the steel industry a while ago. That's important as well, and Wales should be there—even necessarily have the same potential veto power, but you'd want to be in there.

One of the issues under the current devolution settlement, certainly in Scotland, and I think also in Wales—I'm not sure about Northern Ireland—there are ministerial powers that can be used to keep the devolved Parliaments in line, in the sense that there are veto powers that can be used if you tried to legislate contrary to international agreements. There are also ministerial powers that can be used to force devolved Ministers to do things, including introduce Bills. What the devolved Parliaments can't be forced to do is to pass Bills, but then you have the possibility, simply, of UK implementing legislation and a reasonable argument to be made that it is necessary to proceed without consent, because otherwise the UK is in breach of international obligations. So, it's not a happy situation. The current default at the moment is the devolved Parliaments are quite weak in this sphere.

15:45

Should we be seeking a repeal or an amendment, therefore, of the sections in the Government of Wales Act?

Well, I think what they're trying to do at the moment is sidestep these arrangements by coming up with tailor-made arrangements in the fields of trade, agriculture and all the rest of it. So, these powers are regarded as relatively unimportant because, of course, the focus was on EU obligations and the fear that the devolved administrations might possibly not implement, hence the concurrent nature of the powers of, 'If you don't do it, we will', which, of course, never ever happened. It comes back to this issue of trust that we talked about at the beginning.

I also think that maybe five years ago we might have thought that these powers were practically unusable because of the political ramifications, but I don't think we could make that assumption now. I think they would be usable.

You've also got to remember that the UK Government doesn't have the civil servants to do these things. At the end of the day, it is dependent on the devolved administrations to act in their devolved areas.

Let me ask this question—and perhaps it's a constitutional question more than one for us—given that you've said that it was actually more incorporated into the Act because of the requirement to ensure that EU regulations would be abided by and a devolved institution couldn't go off that because of our membership of the EU, is it more likely that they would want to use it now because they would see a trade agreement as being crucial to their delivery of Brexit, and therefore the need to actually ensure that devolved institutions abide by a trade agreement are critical to their political futures, in one sense?

Yes, that's what I meant earlier by the abuse of Sewel. They're taking the powers, so at the end of the day, they can do it, but, 'Of course, we wouldn't want to do it without your consent.' But, you know, we have the power to do it.

I was just going to say, in this context, I think the devolveds are in a stronger position in relation to Brexit, because there's no ticking timeline, and, obviously, if you don't agree to a trade deal, the default is that you just have the status quo in terms of legislation, and that shouldn't be a disaster. So, in a sense, more delay at that stage isn't as much a threat as it has been portrayed in terms of Brexit. If we gave the Assembly a veto over the whole Brexit process, they would make that point that that wouldn't be proportionate. But in the context of a trade deal, a delay to make sure that everything's kept all right isn't necessarily the end of the world, because nothing's going to happen.

Sometimes you talk about common sense and people seem to have been—. At the moment, we're in a world where common sense has disappeared. Andrew.

It may be, in that situation, that it's a political disaster for the Government that it hasn't got any trade deals, and they need trade deals, and they may not be looking too closely at the actual content of the said trade. So, I think there may be immense political attempt, but I agree with you, it's—. And they can also bypass the Constitutional Reform and Governance Act procedure without, I think—I think, under CRAG, they can actually bypass the House of Commons veto procedure without, I believe, needing to give reasons as to why they're doing so. So, they may feel like they've got that mechanism—at the level of the UK Parliament, why are they not—? I mean, I wouldn't agree with that approach, but I think that might be the attitude that's taken.

Okay. I think we're coming to the end of the areas we want to discuss. Is there anything anyone wants to add to the discussion on international trade agreements, because, clearly, there are issues that we have to address with the UK Government? And perhaps the comments on the Public Administration and Constitutional Affairs Committee, and whether we should be looking at inputting into their discussions in relation to that area, because it is—I know that Bernard Jenkin also sits on the inter-parliamentary forum, so he's aware of some of the concerns that have been expressed. But it might be a chance for this committee to liaise with them and ask whether it's an opportunity to have that sort of session with them.

It is deeply worrying to us that there may be circumstances in which we have very little say over either the mandate or the implementation of an agreement, but the Welsh Government, and therefore the Assembly, will have to be delivering on that agreement—whether it's health or chlorinated chickens, but it could also, as I say, be steel, if an agreement goes in with India, for example, regarding steel. Of course Tata, an Indian company, is the biggest steel owner in the UK at the moment. So, who knows how that all fits out. So, it is important that we address that. Any other comments you want to add? There are none.

Therefore, can I say 'thank you very much' for your time this afternoon? It's been very interesting and enlightening for us. I'm sure you were informed by Mick Antoniw this morning that, of course, these have been recorded and you will get a transcript. If there are any factual inaccuracies, please let the clerking team know as soon as possible so we can get them corrected for you. We'll make sure that our next step, actually, is to consider everything we've discussed today and hear the Welsh Government's views on some of our ideas, and we hope to make a final proposal for the Assembly's Business Committee sometime in November in relation to all this. So, once again, thank you for giving us your views, your guidance—it's much appreciated. I hope you all have a safe journey home.

15:50
4. Papurau i’w nodi
4. Papers to note

Just for colleagues on the committee, we have two papers to note. The first paper is changes to freedom of movement after Brexit, the implications for Wales—the responses. You should have all had a copy of this, I think. Are Members happy to note that? And the second one is correspondence from the Minister for International Relations and the Welsh Language regarding international agreements. Are members happy to note that?

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

Cynnig:

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

Motion:

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

Cynigiwyd y cynnig.

Motion moved.

And then, under Standing Order 17.42(vi), I now resolve to meet in private for the remainder of this meeting. Are members content? Therefore, we move into private session.

Derbyniwyd y cynnig.

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

Motion agreed.

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

Dysgu am Senedd Cymru