Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

13/01/2020

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

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

Y rhai eraill a oedd yn bresennol

Others in Attendance

Chris Warner Dirprwy Gyfarwyddwr, y Cyfansoddiad a Chyfiawnder, Llywodraeth Cymru
Deputy Director, Constitution and Justice, Welsh Government
Des Clifford Cyfarwyddwr Cyffredinol Swyddfa’r Prif Weinidog, Llywodraeth Cymru
Director General, Office of the First Minister, Welsh Government
Dr Robert Parry Dirprwy Gyfarwyddwr, Deddfwriaeth Pontio Ewropeaidd, Llywodraeth Cymru
Deputy Director, European Transition Legislation, Welsh Government
Mark Drakeford AC Prif Weinidog Cymru
First Minister of Wales

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Manon George Ymchwilydd
Researcher
Mike Lewis Dirprwy Glerc
Deputy Clerk
P Gareth Williams Clerc
Clerk
Rhiannon Lewis Cynghorydd Cyfreithiol
Legal Adviser
Sarah Sargent Ail Glerc
Second Clerk

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

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

Dechreuodd y cyfarfod am 13:00.

The meeting began at 13:00.

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

Okay, this is a meeting of the Constitutional and Legislative Affairs Committee. We'll move straight on to item 1, and that is to say that the usual housekeeping rules that we are all familiar with apply. There are no apologies, so we have a full committee present. Are there any declarations of interest? If there aren't any, we'll move straight on to item 2.

2. Y newid yng nghyfansoddiad Cymru: Sesiwn dystiolaeth 4
2. Wales's Changing Constitution: Evidence session 4

Wales's changing constitution: on to our next evidence session. You have before you a letter from the Counsel General, dated 27 November 2019. This is the letter that follows on from the appearance of the Counsel General at one of our earlier sessions, and is a response to a series of questions, so I think that goes into the evidence pool, but is there just for noting today, unless there's any comment on it. And if there isn't, we move straight on to item 3—again, the evidence session on Wales's changing constitution.

I welcome the First Minister to this committee; Chris Warner, deputy director, constitution and justice; Des Clifford, director general of the office of the First Minister; and Rob Parry, deputy director, European transition legislation. So, welcome to this committee and thank you for making the time available.

We are at a time of, I suppose, considerable constitutional challenge, to put it diplomatically, at the moment. I'll go into the first few questions that we have. You presented to the Assembly not so long ago the Government's paper, 'Reforming our Union', which put forward a series of, one might say, fairly radical proposals in respect of constitutional reform, many of which have been debated over a considerable period of time. Have you had any response or engagement with the UK Government on the contents of the report?

Chair, I don't think I could say that we've had substantive discussions with the UK Government. The Prime Minister was sent a copy of it. He replied to me on 5 November. He described the document as a constructive contribution to the necessary debate on the future of the United Kingdom. I've raised that issue and our document with him in subsequent conversations, but I don't think—. Other than flagging it up and making sure that they are aware of it, we're yet to have a forum in which you could have that more detailed consideration of the paper.

There have been some proposals during the general election campaign in respect of the need for some constitutional reform, although in a fairly non-specific way. Perhaps you can resend your views. Do you think the current constitutional arrangements, without radical change, are sustainable?

I don't think that the current constitutional arrangements are fit for 2020, I don't think they reflect the first two decades of devolution, and they certainly don't reflect the constitutional arrangements within the United Kingdom having left the European Union—so much of the architecture of devolution having been drawn up on the basis that our membership of the European Union was going to be a permanent feature of the way in which inter-governmental arrangements were to be established in the United Kingdom. So, I don't think the current arrangements are sustainable, if we want the United Kingdom to go on, as the Welsh Government wants it to go on, being a successful state in which a successful Wales is part of a successful United Kingdom.

Your paper talks about really quite developed nuances of our constitutional arrangements. It talks about shared Government and shared sovereignty, and a voluntary union of nations, but of course it's all preceded by, I suppose, the fundamental question: what is the purpose of the UK? Which seems to almost be the starting point: why should it be? I wonder if you might just outline what you think the purpose of the UK actually is, or should be, and how your proposals for reform actually fit in with that.

Well, Chair, this is my view: that the case for the United Kingdom is, that by pooling the sovereignty that exists at the the four nations for common agreed purposes, we all do better as a result. Now, in a different committee and in an exchange with David Melding, he said to me that he thought that was a very instrumental view of the United Kingdom, and didn't I have any 'sentimental'—in the right sense of that term—attachment to it, and the answer is I probably don't, really.

I think the case for the United Kingdom is the practical and pragmatic one: that there are things that we do better, and Wales does better, when we do it at a pooled UK level. And that's why, as you say, in our paper probably the most radical underpinning proposal in it is that we have to move on from the way in which sovereignty was conceptualised in 1999, when it was thought of as something held at Westminster and handed out to the devolved nations, and could be taken back by Westminster whenever the sovereign Parliament thought it was the right thing to do.

Now, my view of the way the United Kingdom should operate in the future is not that. It is that sovereignty should be recognised as resting at the nation level, and then pooled back for central and combined purposes where the component parts of the United Kingdom choose to do that. Part of that thinking is quite aligned with what the previous Prime Minister Theresa May said in her lecture in Edinburgh, which she gave shortly before ceasing to be Prime Minister, when she was very clear that the United Kingdom is a voluntary association of four nations.

The best way to make sure that you give full expression to that voluntary nature is to recognise that sovereignty is dispersed and that the notion of parliamentary sovereignty has had its day. I myself even wish that we could move beyond the language of 'devolution', because it too has a connotation about it of things being handed down from the centre. I don't think the United Kingdom will survive in the way that I would like to see it survive if it goes on being thought of in that way. We set out a different conceptualisation of the way that the United Kingdom should operate.  

13:05

I do. I think it's under more stress and strain than at any time in my political lifetime. For most of my political lifetime, the United Kingdom, as the European Union, was a taken-for-granted part of the way we thought things would be in the future. There are all sorts of straws in the wind that tell you that it's not to be taken for granted in that way.

In the most recent general election, for the first time in Northern Ireland, more MPs were returned who don't believe that the future of the north of Ireland is best in the United Kingdom than there were unionist Members of Parliament. Northern Ireland voted to stay in the European Union and has been taken out of it, with all the stresses and strains that we've seen there. And Scotland has a Government that has a majority and has a political purpose of taking Scotland out of the United Kingdom.

So, it seems clear enough to me that the stresses and strains in the United Kingdom are very real, and we need a constitution—. Those of us who believe that Wales's future is better off in a successful United Kingdom need to have constitutional glue that helps the United Kingdom to go on succeeding. And the glue we have at the moment, through the way the constitution is framed, is not sufficient to the task. 

You clearly are of the view then that a pragmatic arrangement, as opposed to a sentimental one, is the way forward, which takes us on to a series of questions that I think we'll go into in detail. And we will, of course, deal with the withdrawal Bill as part of this session. Carwyn Jones. 

Thank you. Good afternoon, First Minister. Could I ask about the legislative consent convention, if I can call it that? It is, of course, just a convention, and conventions, unless they're observed by both parties, are utterly worthless. I think we've seen examples of that particularly, not so much in terms of Wales, but, in terms of Scotland. What is your view of the current situation regarding the legislative consent convention? Do you have any faith at all in the UK Government observing it? 

Well, let me start by making the more positive case. There have been over 350 legislative consent motions in the devolution period across the three devolved administrations. I think, as evidence you've heard earlier has told the committee, there have been 10 occasions only when consent was denied by a devolved legislature; seven of those were in Wales. The only time, in the Welsh case, that the UK Government has gone ahead and legislated when the Assembly has denied consent has been in areas where the UK Government did not agree in the first place that there was a devolved competence at stake. Wherever they have agreed—and these are only small numbers of occasions, aren't they? Where they have agreed that there was a devolved competence at stake and the Assembly denied consent, they took Wales out of the Bill. So, to have used the convention successfully 350 times does suggest that it's got some reasonable track record behind it.

But it is a constitutional flash point, of course—Carwyn is right about that—because of the way in which the UK Government, in the 2018 withdrawal agreement Bill, overrode the refusal of the Scottish Parliament to give consent to it. That has brought Sewel under the microscope, and I think has very definitely highlighted its limitations. You'll already have heard evidence, I know, about the limitations. And the limitations are that, at the moment, Sewel provides an arbitrary and unilateral power to the UK Government to override the refusal of a devolved legislature to give consent. It doesn't require any explanation as to why a UK Government came to the conclusion that this was a set of circumstances in which it could do that, and it provides no accountability to either House of Parliament for the exercise of that power.

And corrosively, in the Scottish case, it barely drew the attention of the House of Commons to the fact that this was happening at all. Now, I'm prepared to understand that this all happened right at the very end of the legislative process; that it was a difficult Bill and there was an awful lot going on. But from a Scottish point of view, I know, the fact that the Scottish Parliament had denied consent, and this was barely mentioned on the floor of the House of Commons, let alone given proper consideration, has been corrosive. And the Scottish Parliament, ever since, has not had legislative consent motions laid in front of it. 

So, part of our document talks about the need for significant codification of Sewel to make it a device that can command the confidence of all those parties that have a part to play in it.

13:10

You mentioned the need to strengthen Sewel. In your opinion, what would the best way forward be of strengthening Sewel?

I think that there are three or four components that we should look to develop, if Sewel is to be given the sort of part in the constitution that would allow it to bear the weight that it has met.

First of all: codification. When a UK Minister decides that the circumstances are not normal, they ought to be able to set out the line of reasoning that had led them to that conclusion. What were the things they went through before they came to that conclusion? What are the tests that they applied that led them to the conclusion that this was not a normal set of circumstances, and therefore allowed them to go ahead? So, codification. Because, as you know, one of the huge disadvantages of Sewel is that the Supreme Court found, in Miller, that it was not justiciable, and part of the reason for that is that there's nothing to test it against. Now, the more it is codified, the more the decision-making process is laid out, the more points at which somebody who didn't share the same view could challenge it and say, 'Well, you decided, in point 3 in your decision-making tree, and we don't agree with that.' And that's testable in a way that it's not testable now. So, No. 1: codification.

No. 2: I think that codification would best be set out in statute. There should be a way that the law describes how the UK Government comes to that 'not normal' decision, because that would certainly allow it to be tested in front of a court of law.

No. 3: I think there needs to be a reformed parliamentary procedure. There ought to be an agreed, defined and available-to-the-public parliamentary procedure in which, if a UK Government were to come to the conclusion that this is not a normal set of circumstances, quite unlike the Scottish example, there would be an opportunity for both Houses of Parliament separately to be advised of that; that the UK Government would have to produce a document that would set out for the House of Commons and the House of Lords separately how they'd come to that conclusion, and that the devolved administration whose views were being overridden would have an opportunity to present as well a document setting out why they don't agree with that position, so that the House of Commons and House of Lords could separately decide whether or not they were prepared to go along with the UK Government's conclusion.

Now, if you've got all of those three things in place, I think Sewel suddenly stops being an arbitrary matter, and is one that is transparent, has lines of reasoning behind it, has ways of enforcing it, has a political oversight that it lacks now.

We say in our paper that there is a further step and a more radical step that you could come to, which would be that, as part of a new constitutional settlement, Parliament simply could not legislate in devolved areas, or about devolution without consent. So you remove the 'normally' qualification altogether. Now, I think, personally and preferably, that is where I would like us to be. Do I think that we can get all the way there in one step? I doubt it. I do think we ought to be able to codify Sewel in the way that we've just outlined. Otherwise, it's not going to command the confidence of the different Governments that have to rely on it.

13:15

You won't be surprised, First Minister, to hear that I agree with everything you've just said. We have at the moment a situation where, because the UK Parliament can do as it wants in law—it's like a constitutional pater familias scenario that we have here—to my mind, if the UK Parliament decides that it will legislate because circumstances are 'not normal', then the UK Parliament can define 'normal' as it wants, and there is no comeback at all. It's literally that bad.

You outlined what I think is a very sensible and pragmatic way forward to protect the rights of all as Brexit occurs. Do you have any confidence that the UK Government is listening, or will listen in the future?

I think we have to begin the conversation with the new UK Government on the basis that they will be prepared to have these sorts of conversations. I think that has to be our starting point, and then, if we're let down or disappointed, we will learn that as we go along. I know that this matter was extensively discussed in the Joint Ministerial Committee (European Negotiations) on Thursday of last week. I met the new Secretary of State for Wales on Friday, and he said to me—and I'm not saying it in the way that I'm in any sense wanting to hold him to stuff that was in that sort of conversation—he said to me that he thought any UK Minister taking a particular course of action ought to be able to justify why they've taken that course of action to the House of Commons. I thought in saying that, there was an echo of the discussion that was had at the JMC(EN) about the non-arbitrary nature of the way that Sewel is done—that it has to be justified, it has to be explained, and the UK Government has, at the very least, to be able to tell others why they have come to the conclusion that they have.

Just one point, if I could just follow on from on that, of course, aside from those areas where the UK Government agrees that consent is necessary, there have been a growing number of areas—the Trade Union (Wales) Bill was one—where the argument was that the UK Government could say, 'We don’t agree with you that consent is required.' Therefore, the whole process has been by-passed in a very unilateral way, and we've seen quite a number of occasions where issues around international trade and around frameworks have also been pushed into the grey area because of the lack of any working mechanism for resolving that. Do you see that as an aspect of part of these problems around Sewel?

13:20

Well, I agree that it is a difficulty, and I agree, Chair, if you're suggesting that it's a difficulty that might loom a bit larger in the Brexit context. As I've said, there have only been 10 examples altogether where a devolved legislature has denied consent, and seven of those have been in the Welsh context. I think that that is probably best explained by the ill-defined nature of the allocation of responsibilities under the previous set of arrangements that we had, where it was less clear what was reserved and what was devolved. So there was always more room for dispute between our view of where competence lay and where the UK Government competence lay. That's why we've had more of them in Wales than they've had in Scotland—only two examples in Scotland. But I do agree with you, nevertheless, that we will have to keep a very careful eye on any attempts to try and sidestep Sewel by claiming that there was never a Sewel issue there to be resolved in the first place.

Unfortunately, I think I'm moving onto the territory where Suzy Davies is asking questions, but Suzy Davies has plenty left.

That's okay. Perhaps I could just extend Mick's last question a little bit, though, because what we were talking about there is where two Governments disagree. Your earlier argument tended to focus a little bit more around, 'Well, actually it's up to Parliament to decide whether they should be responsible for deciding whether what's currently Sewel should be observed or otherwise'. Do you want to talk a little bit more about that—where Parliament has come into any space of dispute resolution?

Chair, I talked about two different sorts of dispute resolution. One was the legal route, when I talked about putting these things in the statute.

So, there will be a route there. The parliamentary route was something that I think we worked hard with the UK Government to agree in relation to the 2018 Act where, as you all know, we struck an agreement with the UK Government where Scotland did not. Part of the agreement that we struck with the UK Government set out in the inter-governmental agreement was what would happen if the UK Government were to decide to freeze powers under the final clause 12. It hasn't happened, as you know, ever since, and we've managed to proceed as we always argued we could—by negotiation and agreement. But in the 2018 Act agreement, if the UK Government were ever to seek to freeze powers at the Westminster level, then you would have to do what we are talking about here: you would have to provide a report to both Houses of Parliament separately, and not only would they have to set out why they had decided on that course of action, but we, or any other devolved administration, would have a separate right to provide our own account.

So the House of Commons and the House of Lords would not just be relying on the way the UK Government sees the world, and their explanation of our point of view; we would be able to put our point of view directly to both Houses of Parliament, and both Houses of Parliament would separately—and that was really important as well: no overriding, single power for the House of Commons—the House of Lords as well would be able to consider that and then would be able to decide whether they were prepared to endorse the UK Government's conclusion.

So, that's what we're drawing on in our paper for the Sewel codification ideas, not because—. Sorry, I maybe should have made the point a bit earlier that our paper is pitched very clearly as something to generate a conversation. We are not saying that this is the final, worked-out answer, but we think an answer is necessary, and these are some of the ways in which we think an answer could be devised. So we drew on those conversations, but we're not saying that that will be the end of these ideas. Others may have ways of strengthening them further or better.

13:25

Is this one of the reasons why you're arguing for Sewel effectively, or the codification of Sewel, to go into statute? So that Parliament has legislated powers in order to hold the Government to account, rather than trying to ask all Parliaments to hold their Governments to account on their inter-governmental agreements. You might get some questions on this later on, but I'm trying to get to the very node of why there's a difference between, in your view, the effectiveness of inter-governmental agreements and statutory obligations on Governments. Is there going to be a massive difference when, as you've said yourself, it's worked pretty well up until now?

Well, I'm afraid I think that, as we've seen in the Scottish case, and we may well be about to see again, when push comes to shove, even the strength of history that we have behind Sewel isn't enough to guarantee that it will operate. So, the National Assembly for Wales will have a debate on whether or not to give consent to the Bill that is currently in front of the UK Parliament. Given the vote that we held before Christmas, you might suggest that it is unlikely that that consent will be forthcoming. We will have had all the scrutiny here; we will have had all the debate here, so the Senedd will have discharged its responsibilities in coming to that conclusion. They will have done it in that sort of considered way. It's how we convey the views of the Senedd and the reason why the conclusion has been arrived at to make sure that parliamentarians, in the responsibilities they have, are fully aware of why the devolved legislature is in that position, and it doesn't get overridden almost without knowing that that was happening.

And it's a strong argument, First Minister. It's just you've been, as a Welsh Government, content for the UK Government to act on your behalf in a considerable amount of Brexit legislation, and yet we come to this particular piece of legislation and you're less comfortable in them doing that.

I don't think there's anything strange or unusual in that, Chair. As we've seen from the figures, all devolved legislatures have been content on quite a number of occasions now cumulatively for the UK Government to legislate on our behalf provided our consent is forthcoming.

No, provided the Assembly consents, because this is by a legislative consent mechanism. It is the Parliament here that is giving its consent for a Parliament elsewhere to legislate on our behalf. But what we're talking about here is that rare occasion, but flashpoint occasion, when consent is not forthcoming from one Parliament and another Parliament decides to go ahead despite that, and how we can make that difficult moment more transparent, with better governance around it, and challengeable in a different set of ways.

Can I just finish on one question about inter-governmental agreements more generally now, not specifically about the withdrawal Bill? What would you like to see as the mechanism to resolve these, which is clearly an independent mechanism? We've had a little bit of discussion about Parliament's role in that, but how do you see this being arbitrated at the moment?

Outside the courts—and of course, statute would give you recourse to the courts for arbitration—we have some examples already that we could draw on to build this up and, as I say, I'm keen to have a debate, and I'd be very interested in what the committee says on this point. But we have an example in the fiscal framework. I'm familiar with it because I helped to negotiate that with the then Chief Secretary to the Treasury. We have a new fiscal framework between Wales and the UK Government and it provides for either side to be able to invoke a dispute if we think the fiscal framework is not being properly interpreted or implemented. It allows for both sides to commission independent analysis and advice on the issue that is the cause of the dispute, and it provides for a dispute that cannot be resolved in the quadrilateral forum that we have between finance Ministers in the United Kingdom, for that to be passed to the JMC plenary for arbitration.

I'm not content with that, because I think the level of independence needs further strengthening, but that is quite a big constitutional step forward, it's the first time for any agreement that we have struck where the UK Government has agreed that there will be independent rights on both sides to identify an area of dispute. And that, instead of the Treasury saying, 'Well, we'll take a look at that and we'll tell you whether we thought we were right or not', there would be an independent body like the OBR that you would go to to give you a report on that issue and to tell you whether or not they think that either side was in the correct position.

And it gives either side the right to get their own advice. So, if the Welsh Government thought that the body that the UK Government was proposing to get independent advice—we could say, 'No, actually, we'd rather go and get our advice from over here', and all of that will become part of the decision-making process. So, there are better levels of independence in dispute arbitration there than we've had before. But as I say, in the end, they root back into a JMC process, which does not have a great deal of independence about it. So, I think there are better ways of strengthening it. But there are things that have happened already that we can draw on.

13:30

Does that mean that you foresee the need for some additional institutions, if I can call it that—you know, OBR equivalents across different subject areas, to avoid court?

I think that is very likely in the world that we envisage in our document.

Yes, very quickly. In terms of dispute resolution, when Northern Ireland received its £1 billion after the 2017 election, not only did the UK Government not engage with the process but it decided there wasn't a dispute at all. And here we are again in Northern Ireland today where money is going to be made available to Northern Ireland outside of the Barnett formula, despite the fact that it should be part of the Barnett formula. If only the DUP would realise this is a good way of undermining the union, because it shows unfairness to the other constituent nations of the UK. But does that provide you with an example—you've already said it—another example of the need to greatly strengthen the dispute resolution process, so that money isn't used as an inducement, as it has been in this context?

I just completely agree with that, Chair. This is a very bad example of how things should not be done. This has never been—. I've heard the former First Minister answer questions on this and say this many times: this was never an argument that we were making that was seeking to deny money being spent in Northern Ireland for really important purposes there. It was simply an argument that if Northern Ireland needed more money spent on education or health or transport, then a sum of money equivalent should be made available to England, to Scotland and to Wales to meet those needs as well. That is the way that our system is meant to operate. And the previous £1 billion bung, as it was called, subverted that completely.

And when we, with the Scots, jointly attempted to raise that as a dispute, we were denied the ability to do it because the UK Government told us that there wasn't a dispute, despite the fact that we clearly were in dispute with them. Their view that there wasn't a dispute meant that the dispute mechanism couldn't be invoked. The former First Minister agreed a programme of work through the JMC plenary to improve these inter-governmental arrangements, and dispute resolution was one of the five strands in the work that was agreed. It's now two years since that work was set in hand, and there's never been a resolution of it. I am told at official level that good progress has been made in designing a dispute resolution mechanism that would have degrees of independence in it, but that's never been brought back to a JMC plenary. In fact, there hasn't been a JMC plenary now for over 12 months. We need one, and we need that work reported to it, so that that way of doing business can't happen again.

And finally, Chair, just to say, Northern Ireland civil servants were always very keen to support that strand in the work, because they could see that an arbitrary way of sending money to them now could be to their advantage, but an arbitrary decision to send money to somebody else could be much to their disadvantage in the future, so they have been part of that effort to create a different rulebook, which would move us beyond the real difficulties that we've experienced and look like we are about to experience again.

13:35

Ie, diolch, Cadeirydd. Cyn i fi fynd i fanylu ar fanylion manwl y cytundebau rhynglywodraethol, mae'n werth nodi wrth basio fod yna sawl her ynglŷn â diffiniadau, fel rydych chi wedi crybwyll yn eich atebion eisoes. Hynny yw, beth sy'n normal, beth sydd yn anghydfod, a beth sydd yn gysyniad hefyd? Felly, mae yna ychydig bach o waith i'w wneud yn nhermau diffinio pethau sylfaenol. Ond i fynd yn ôl i beth sydd o'm mlaen i yn fan hyn ynglŷn â manylion y cytundebau rhynglywodraethol, gallaf i ofyn pam fod Llywodraeth Cymru wedi defnyddio'r cytundebau rhynglywodraethol yma i fod yn sail i ddeddfwriaeth sy'n gysylltiedig â Brexit, i ategu'r ddeddfwriaeth sy'n gysylltiedig â Brexit?

Yes, thank you, Chair. Before I go into the detail with regard to the inter-governmental agreement, it's worth noting in passing that there are several challenges facing us in terms of definitions, as you've mentioned in your previous answers: namely, what is normal, what is a dispute, and what is consent as well? So there is a deal of work to be done in terms of defining those fundamental things. But, going back to what is in front of me here with regard to the details of the inter-governmental agreement, may I ask why the Welsh Government has used these inter-governmental agreements to underpin Brexit-related legislation, to underpin that legislation relating to Brexit?

Wel, Cadeirydd, dim ond am un enghraifft dwi'n gallu meddwl. Dim ond unwaith dŷn ni wedi defnyddio cytundeb fel yna, so mae'n anodd i dynnu lot o wersi cyffredinol, ond yr achos i wneud beth oedden ni'n gwneud oedd i gael rhywbeth oedd yn sefyll gyda'r Ddeddf oedd yn ein helpu ni fel Llywodraeth yma i ddelio â Llywodraethau eraill y Deyrnas Unedig ac i wneud y gwaith yna ar sail y ddogfen roedden ni wedi cytuno.

Well, Chair, I can only think of one example. We have only used such an agreement in that way once, so it's difficult to draw many general conclusions from that, but the case for doing what we did was to have something that could stand alongside the legislation that would help us as a Government here to deal with other Governments within the UK, and to do that work on the basis of the document that we had agreed.

So the only time we have had such an inter-governmental agreement was alongside that 2018 Act. I think it's a difficult Act to draw general conclusions from, because of the very specific set of circumstances that existed around the leaving of the European Union. But I think that the purpose of the inter-governmental agreement was to make sure that in the implementation of that piece of legislation, that where there were potential clash points with devolved administrations, that we had an agreed way of approaching them. And that that strengthened the hand of the devolved administrations. This is why we were prepared to agree to it in the end, because we felt that it strengthened our hand to make sure that our voice, our views, our interests, could be attended to in a way that we could guarantee, because we had an agreement to back up the ways in which that would happen. And I don't want to claim for a minute that things could not yet go astray, but I think that the history of the two years since the agreement is that it has been properly observed, that the Scots have used it every bit as much as we have, even though they weren't signatories to it originally, and that the real flash point, which was about, as we've mentioned already, the attempt to retain powers at Westminster that were properly to be exercised here, that we've avoided that happening in any instance.

Diolch am yr ateb yna. Ac ar ben hynny, gaf i siarad yn fwy cyffredinol, a dweud y gwir, wrth gwrs? Allwch chi jest olrhain y risgiau sy'n gysylltiedig efo llunio'r cytundebau rhynglywodraethol yma, o ystyried nad ydyn nhw wedi ei rhwymo'n gyfreithiol? Does yna ddim sylfaen gyfreithiol i hyn—cytundebau perthynas, efallai, rhynglywodraethol—felly mae yna risgiau ynghlwm â hynny, yn naturiol, a sut fyddai cynigion Llywodraeth Cymru yn y dyfodol, efallai, yn mynd i'r afael efo'r risgiau yna?

Thank you for that response, and following on from that, to speak more generally about this issue, could you just tell us about the risks that are associated with entering into these inter-governmental agreements, given that they're not legally binding? There's no legal basis for these agreements. They're agreements on the relationship between governments, so there are risks associated with that, and how would the Welsh Government's future proposals address those risks?

Wel, i ddechrau, jest i gytuno â beth roedd Dr Lloyd wedi'i ddweud. Wrth gwrs, y risgiau sydd yna mewn cytundeb yw dydyn nhw ddim mewn Deddf, ac mae unrhyw ochr yn gallu tynnu mas o'r cytundeb. Wrth gwrs, yr hawl i dynnu mas yw'r hawl sydd gan Llywodraeth Cymru hefyd, so mae yna ar bob ochr. Mae unrhyw gorff sydd wedi llofnodi y cytundeb, maen nhw yn gallu tynnu mas. Ond y risg yw bod pobl yn ei wneud e ac yna nid yw'r cytundeb yn parhau. Ar hyn o bryd, dydy hynny ddim wedi digwydd, a bydd costau i unrhyw Lywodraeth sydd yn gwneud pethau yn y ffordd yna—costau gwleidyddol, costau i'r reputational risk, ac yn y blaen.

So, wrth gwrs, rydym ni'n ymwybodol o'r pethau positif a negatif yn y ffordd o'i wneud e fel hyn, ond ar hyn o bryd rydym ni'n meddwl bod y profiadau rydym ni wedi eu cael yn dangos bod mwy i'w gael mas o'i wneud e yn y ffordd yna nag sydd i'w golli. Yn y dyfodol, os bydd achos i gael cytundebau fel hyn, rydym ni'n mynd i dynnu o'r hanes sydd gennym ni, ond nid jest hanes fel hyn ond hanes ehangach hefyd.

Well, first of all, if I could just agree with what Dr Lloyd said. Of course, the risks in any agreement are that they are not set out in legislation, and any side could withdraw from the agreement. Of course, the Welsh Government would also have that right of withdrawal, so both sides would have that right. Any body that signed up to an agreement can withdraw, of course. But the risk is that people do that and that the agreement then lapses. But at the moment, that hasn't happened, and there will be costs for any Government who work in that way. There will be a political price to pay and there will be reputational risk, too.

So, of course, we are aware of the positives and the negatives of working in this way, but at the moment we believe that the experiences that we've had demonstrate that there is more to be gained from working in that way than is to be lost. In future, if there is a case for having such agreements, then we will draw from our experience, and not just these experiences, but the broader experiences. 

Most of what goes on between Governments rests on agreements between us, rather than on legislative statutory ways of doing things. All the devolution guidance notes that were drawn up at the start of devolution, that have been revised and reformed at various points as devolution has developed, are agreements. They don't have the force of law behind them, and yet, despite their vulnerability—and I'm not denying for a minute the importance of the point that Dr Lloyd has made about the vulnerability—despite that vulnerability, actually, successive Governments have honoured them and take them as part of the constitutional fabric of the way that we operate.

13:40

Diolch am hynna. Nawr, dywedodd y Cwnsler Cyffredinol a'r Gweinidog Brexit wrthym ni nad yw'r defnydd o gytundebau rhynglywodraethol yn effeithio ar y setliad datganoli. Sut fyddech chi'n ymateb felly i bryderon eu bod nhw'n ychwanegu haen lywodraethu arall i'r setliad datganoli? 

Thank you for that. Now the Counsel General and Brexit Minister told us that the use of inter-governmental agreements doesn't impact the devolution settlement. So, how would you respond to concerns that they add an additional tier of governance to the devolution settlement?  

They are inter-governmental agreements, aren't they? So, in that sense, the explanation is on the tin. They are not agreements between legislatures; they are agreements between Governments. The Assembly is not a signatory to them; it is not bound as a legislature by the content of those agreements, and that's why the Counsel General argued that the consent of the legislature to an inter-governmental agreement was not required, because that is to confuse the proper separation between Executive and legislature. Inter-governmental agreements are for Governments to strike. The role of the Parliament is not to consent to it, but it certainly is to scrutinise it, and it certainly is to hold those who are exercising the functions of an agreement to account. I think that is the fundamental case that the Counsel General was relying on.

Rwy'n derbyn y pwynt yna hefyd ac, wrth gwrs, mi wnaeth y Cwnsler Cyffredinol yr un un pwynt ac, i ehangu, mae o hefyd wedi dweud na ddylai cytundebau rhynglywodraethol fod yn amodol ar gydsyniad y Cynulliad, fel rydych chi newydd ddweud. Fodd bynnag, pan na all Llywodraethau gytuno ar gynnwys darpariaethau ym Miliau'r Deyrnas Unedig a fyddai'n amodol ar gydsyniad y Cynulliad yma, pam ei bod hi'n briodol i ddefnyddio'r cytundebau rhynglywodraethol yn eu lle na fyddant wedyn yn amodol ar gydsyniad y Cynulliad?  

I accept that point as well and, of course, the Counsel General made the same point and, to expand, he also said that inter-governmental agreements should not be subject to consent by the Assembly, as you've just said. However, when Governments can't agree on the content of provisions in UK Bills that would be subject to Assembly consent, why is it then appropriate to use inter-governmental agreements in their place that then won't be subject to Assembly consent? 

Chair, I'm not completely sure I am following the argument completely because, from our point of view, I think they are two distinct things. Most of the things that go on between Governments don't rely on legislation. As I say, they rely on agreements, established ways of doing things, conventions, memorandums of understanding—all sorts of ways. The daily job of working between Governments I don't think can go on if every time there is to be a way of acting, it requires a piece of legislation to govern it. It's just not the way the world works. And where there is legislation involved, where there are new things that require that, of course, the Assembly has all the rights that go alongside that.

In the other swathe of things that a Government discharges, the interest that the legislature has is not, I think, in consenting through legislation; it is through the process of oversight, of scrutiny, of holding to account, of asking questions, obtaining information—all that really important stuff that the Assembly and Assembly Members discharge all the time.

13:45

To push you a little bit further on that point, does the use of inter-governmental agreements provide an incentive, would you say, for the UK Government not to include legally binding provisions in UK Bills therefore? 

I certainly can see why it could be argued that it does. I don't think I can think of an example where it has happened, though. So, not every incentive leads to an action. While I think it's an important point to make and it's an important thing to be alert to in case it should provide such an incentive, immediately here and now, at least, I can't think of an actual example where you could say that that incentive has been discharged in a way that that has happened. So, I think it's an important warning without necessarily being able to say that I think it's had actual real-world effects so far.

Diolch yn fawr. Rydych chi wedi ateb y cwestiwn olaf, felly mi wnawn ni symud ymlaen. 

Thank you. You've answered the final question, so we'll move on. 

I beg your pardon. Sorry, Suzy, do you want—? Suzy Davies wanted to come in on that. 

I just wanted to ask you, First Minister, I completely take the point that you say that the Assembly at any point, or Welsh Parliament, can scrutinise inter-governmental agreements, but that's always after the case, isn't it? We can only scrutinise something that's already happened or been agreed. Have there been any occasions where there have been inter-governmental agreements that always looked like they were likely to be a bit disputatious, and where perhaps, I don't know, early sight of what the Assembly thought of things might have been of help before you actually made the agreement.  

Chair, I think that's a very interesting point and definitely worth exploring. There is an agreement, isn't there, between the Government and the Senedd as to how scrutiny of the operation of inter-governmental agreements should take place, and that was an agreement that was struck with this committee; that's where the work was done.

I accept the point that Suzy Davies makes that it's post event. When an agreement is struck, how does the Parliament now keep a close eye on it? I'm very happy to give some more thought to how, if inter-governmental agreements are maturing, the Assembly could at least have some role in discussing the issues. I can't imagine there would be a position in which documents could be shared because there's another party to all of this, and they will want their interests protected, too.

In the fiscal framework example, I think I probably would say that there was considerable discussion over that autumn when it was being drawn up, both in the Finance Committee and on the floor of the Assembly, when I was asked questions regularly about progress, about issues at stake, about things that were likely to be concluded in the agreement, because Scotland had already concluded its agreement a year earlier. So, there was a document that Members here could look at and then ask me whether we were looking at the same issues, were there the same things to do with the way population changes would be deployed in the way that money that flows to Wales would be determined in the future—all of that sort of thing. So, I think I might argue that there was already a degree of interest from Assembly Members—certainly from the Conservative Members—in that, looking to probe and check how that inter-governmental agreement was being developed. But I'm happy to think about whether that amounts to the best way or whether there will be other ways of doing it.

13:50

Can I just mention one point, then? You referred to one example of an inter-governmental agreement in legislation. Of course, there was the other one, which was the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019. So, obviously the area of what happens as a result of agreements and scrutiny is really quite a fundamental question for this committee, and really quite an important one for the Assembly as well. I don't want to press further because you've indicated that you want to give further thought to that. Perhaps that's something we could write to you about because it is an area that I know does cause concern, and the fact that there may not be a large number of examples, nevertheless, it's the fact that what may happen, particularly in this rather turbulent constitutional period that we're living in at the moment.   

Chair, I'd be very interested if the committee have ideas about how this developing area could be thought about in terms of scrutiny, and so on. 

Okay. Dai, have you finished with the ones that you wanted to—?

If I can just come in with a number of questions, I do want to move on to the withdrawal agreement shortly, but just in terms of the constitutional convention, something that's been discussed and debated within the Assembly for quite some time, I'm just wondering if you have any view as to whether you think there is growing support and that this is actually a possibility now, or is it something that we're still struggling to achieve in terms of the argument for one. 

I hope that there is growing support for it. The former First Minister carried this baton almost alone for quite a long time in making the case over a number of years for the need for a constitutional convention. I think from the evidence that you have heard earlier in this inquiry, you'll know that there still is a range of views about the best way in which a convention might be brought about, whether it is a constitutional convention, whether it is a Speakers conference. The Conservative party manifesto in the December election referred to proposals for a commission on the constitution, democracy and rights. So, there is something going to happen there. The details are probably still very much to be agreed. The Scottish Government has got its Citizens' Assembly of Scotland working on these ideas.

So, I think there is a growing recognition that these are issues that deserve really serious consideration. The mechanism may be—. You know, people still have different views about the most effective mechanism for doing so and that can get in the way of progress, but I think we are in a better position than we were when Carwyn was first making this case. 

Could I add a word, in case it's useful? I think I was a physical witness in a committee room in Parliament in London when the former First Minister made a speech and called for the first time, as far as I'm aware, for a constitutional convention. I think it was about seven years ago, eight years ago—it was quite a long time ago now—and one of the ideas that he articulated and elaborated on was reform of the House of Lords. It's interesting to know that a number of those ideas have now worked their way into the proposals of the Constitution Reform Group. So, I think this is long-term work and, in a way, we can't repeat the messages often enough. Things do take a long time to penetrate, but then there is some evidence over time of various other organisations picking up ideas that were first being articulated by the Welsh Government in one form or another, not the Welsh Government exclusively, but other voices across the Assembly, of course. 

That happily leads into one further question, and that is, really, that there is tabled legislation in a fairly embryonic format from the Constitution Reform Group in the format of the Act of Union Bill, which I think everyone agrees is an interesting attempt to create a legislative framework, or a debate around the legislative framework. I was wondering what the Welsh Government's thinking is about that particular piece of legislation and that, possibly, as a model around which constitutional reform could take place.

13:55

Well, Chair, we certainly think that it is a step ahead to have a piece of legislation drafted in that way, albeit, as you say, with some parts of it not complete and still for debate. I think that it is useful that the body of people who sit behind that proposal is broadly based and that it cuts across party and has people who are outside the political world altogether—Lord Lisvane and Paul Silk. I think that you took evidence directly from Paul. So, we think of all that as being positive.

There are some aspects of the Bill that I think we would strongly welcome. It makes the source of authority the four nations, and that's really important in the discussion that we had earlier about sovereignty and where sovereignty lies, and so on. I've heard it described as a federal or confederal solution, and much of what we set out in our 20-point plan occupies the same territory on the constitutional spectrum.

There are some parts of the Bill, as I think you say, Chair, where the Bill continues to be developed; it contains options rather than final policy positions. But, we regard it as a very valuable contribution to the debate. That partly helps to answer your previous question about whether there is a gathering sense of momentum behind these discussions.

There has certainly been a considerable debate at parliamentary level, in the various justice and constitutional groups, and so on. It just seems that reaching governmental action is really the key point.

I've probably said in front of this committee before, and I've certainly said elsewhere, that our experience over the last two years has been that, even with, as we would think of them, the better members of the previous administration—those who took a greater interest in these matters—in the end, they were so overwhelmed by Brexit and dealing with that, that even if you could get them to recognise the need for a conversation of this sort, they simply couldn't find the bandwidth, if that's the best term, to be able to do it. It was always being crowded out by the next, more urgent piece of thinking that they had to do. We need to get to a point where the UK Government is as seriously engaged in this conversation as others have been.

Yes, First Minister, I think that we all feel a bit like that. 

3. Memorandwm Cydsyniad Deddfwriaethol ar Fil yr Undeb Ewropeaidd (Cytundeb Ymadael)
3. Legislative Consent Memorandum on the European Union (Withdrawal Agreement) Bill

I'd like to move on now to the European Union (Withdrawal Agreement) Bill, if that's okay. Suzy Davies.

Thank you. This time last week, First Minister, I think that we had a little glimmer of light on the horizon that we might be in a different place on an LCM for the withdrawal agreement Bill than we were with the previous version of it. Can you tell us what's happened in the intervening week, whether there has been any movement or any conversations with the UK Government that might be illuminating?

Well, Chair, as I said, there was a meeting of the JMC(EN) on Thursday of last week. There was, quite certainly, an engaged conversation about this there. The Brexit Minister was also able to have a series of bilateral meetings with Michael Gove and with the Secretary of State at the Department for Exiting the European Union. I had my meeting with the new Secretary of State for Wales on Friday. So, there is a lot of discussion going on around the Bill and our reservations about it. There were two meetings in the House of Lords last week, at which Welsh Government Ministers were present, at which we explained the amendments that we have published and hope that the House of Lords might take up.

I said in front of the EAAL committee this time last week that the Welsh Government is not looking for constitutional confrontation. The legislative consent memorandum that we published, which says that we can't advise that the Assembly give its consent, is not there just for breast-beating purposes.

14:00

It's there because we continue to have serious reservations that the Bill adequately defends the interests of Wales and of the National Assembly for Wales, and those reservations are being taken forward through amendments, we hope, at the House of Lords, but also in those inter-governmental discussions as well.

Have you had any sense of a willingness to, if not move, at least further consider some sort of compromise? I mean, it's great that the conversations are taking place, but are they leading anywhere?

I don't know that I could be completely optimistic, but I think that the fact that the—. I do want to say that I think that the conversations are real. They're not just ritual. The reports that I had of the JMC(EN) and its surrounding meetings were that there was proper engagement on both sides in them. Whether they will get anywhere is a different matter, but they are proper conversations, not just ritual ones.

The engagement in the House of Lords was very real as well. There was a very good turnout of Members of the House of Lords across parties coming to those briefings: a genuine interest—cross-party peers with a Welsh interest as well—in the amendments that we have put forward, and I think an appetite to make sure that those issues are at least properly raised and debated during the parliamentary scrutiny of the Bill.

Okay. Are there any new implications for Wales in this revised version of the agreement Bill, on those that we have been through before?

No. Chair, I think that there are a series of new implications. Sadly, from our point of view, some of the things that we thought had been secured in the previous Bill, published by the same Prime Minister before Christmas, have been lost in this Bill. So, we will move amendments to restore parliamentary oversight and to include devolved administrations in that too.

If I had to choose just one, given the time constraints, Chair, then it is our concern at the new clause 21, which I accept is there to implement the protocol on Ireland-Northern Ireland matters, and that's its primary focus. But it does provide to a Secretary of State the ability to alter the Government of Wales Act 2006 by secondary legislation and without the consent of the National Assembly for Wales. 

And that is a real concern to us. It's just wrong that that should happen—should be allowed to happen.

On the basis of what you've said already, then, I can take it that there's been no consensus on that knotty question about where our consent is required and where it's not required. There's been no movement on that within the Bill.

Well, this is a Bill where the UK Government wrote to us seeking our consent. So, there clearly is a recognition by the UK Government that our consent is required. There were 10 issues back in October where we thought our consent was required, and the UK Government didn't agree. By a lot of official-level discussion, that list has been whittled away. We are down to a smaller list—half or so now of that list, where, the other five, the UK Government has agreed with our position that consent was agreed. Chair, I agreed in the EAAL committee to write to the Chair, setting out where consents were being looked for by agreement, and the relatively small list of places now where we think our consent is required and the UK Government doesn't agree. I'm very happy to copy that letter to the committee here.  

That would be helpful, First Minister. May I just come in on that particular point? Because you will have seen now the House of Lords Delegated Powers and Regulatory Reform Committee report on the European Union (Withdrawal Agreement) Bill, and paragraph 21 there, which seems to be fully supportive of the position that you are putting:

'Even if the House accepts that there is a good reason for clause 21...the power should, in our view, be limited to the minimum necessary. We therefore recommend that the Bill should spell out the purposes for which the power is to be used rather than leaving the matter at large.'  

Is that a view that you're in support of and goes as far as you want it to go?

I think it's very helpful, Chair, to see it put out that way. The UK Government provide us with assurances that it's not their intention that this power should be used to amend the Government of Wales Act in the way that I've just described. Far better if the Bill itself made it clear that that wouldn't be possible.

14:05

Just to finish on this question of which clauses need consent, do you think that there's any chance that that list of five or so might be whittled down even further, or is that pretty much it? Is the conversation still open?

I'll ask people who have been involved directly in it.

I think, given where we are and the very limited time available, that's probably a challenge, I would think—going beyond the five that we've already secured a change of mind on.

Okay. It was just to give us a sense of where we all are on that. Then, very specifically, Welsh Government has got some—. Well, I'll just ask the question as it's written here: to what extent has the Welsh Government assessed the need for regulations to be made by Welsh Ministers under the Bill? And I've got a list of clauses here. Are you okay if I read those out? Do you have them at your fingertips? 

Okay. So, clause 4, which is in connection with the implementation period; clause 12, which is in connection with recognising professional qualifications; clause 13, in connection with co-ordinating the social security systems; clause 14, in connection with non-discrimination; clause 19, in connection with other separation issues; and then clause 22, in connection with the Ireland-Northern Ireland protocol. So, what level of regulations will you need under that?

Thank you, Chair. Well, I'll be helped, I hope—

Yes. I think that my memory from my briefing is that the powers under clause 4 are ones that we don't have any current plans to use. They are amending glosses during the implementation period, so we don't see that that's likely to require Welsh Government Ministers to use regulatory powers. The others—and I apologise; this is a slightly general answer encompassing them all—are all matters, it seems to me, that are going to be the subject of further discussion between the UK Government and the European Union during the implementation period. It is therefore difficult to see, at this point in the process, the extent to which Welsh Ministers might need to use our powers. Because we just don't know enough about the way in which citizenship rights, for example, will be the subject of further refinement between the UK and the EU during the 12 months or 11 months that are there for implementation.

I said something more specifically in relation to some of the powers that lie in the Northern Ireland-Ireland protocol area. We continue to be in discussions with the UK Government about some of the detail of the protocol. I imagine, without knowing enough, Suzy, to give you a sensible answer, that the re-establishment of the Executive in Ireland will itself have some implications for the ways in which those clauses will be implemented. Because having a legislature up and running in Northern Ireland will mean that there will be powers being exercised there too. 

It's a fair enough answer. Perhaps it's something that we can come back to over the course of this next year as things unfold.

Yes. It certainly adds a very significant additional dimension to everything that's happening, doesn't it?

Yes. We're always cautious about Ministers having powers if we are not sure how they are going to use them. That's all.

Ie. Eto, materion technegol yn ymwneud â'r Bil cytundeb ymadael yma. Faint o le sydd gan Weinidogion Cymru i wneud rheoliadau sy'n gweithredu'r cytundebau gwahanu mewn ffyrdd sy'n unigryw ac wedi'u teilwra i Gymru? Faint o sgôp sydd gan Weinidogion Cymru i wneud rheoliadau sy'n gweithredu'r cytundebau gwahanu yma mewn ffyrdd unigryw i Gymru? 

Yes. Again, technical issues with regard to the withdrawal agreement Bill. How much scope do the Welsh Ministers have to make regulations that implement the separation agreements in ways that are unique and tailored to Wales? How much scope do the Welsh Ministers have to make those regulations that implement the separation agreements in ways that are unique to Wales?

Wel, mae pwerau gyda ni o dan y Bil. Dydy'r Bil sydd o flaen Tŷ'r Cyffredin nawr ddim y Bil roedden ni wedi'i drefnu dros y blynyddoedd. Ond, jest i ddweud, roedd mwy o gyfleon inni fod yn rhan o ddatblygiadau'r Bil nag roedden ni'n eu disgwyl ar ôl profiad yr un cyntaf yn 2018. Felly, mae nifer o enghreifftiau yn y Bil lle dŷn ni wedi cytuno gyda'r Llywodraeth yn San Steffan gyda'r Llywodraeth yn San Steffan i roi pwerau inni i wneud pethau mewn ffordd sy’n addas i Gymru. Gallaf i ofyn i Rob neu Chris os ydyn nhw'n gallu rhoi manylion enghreifftiau inni. Ond jest i gydnabod, yn ôl amboutu blwyddyn yn ôl, roedd y JMC(EN) yn cael, ym mhob cyfarfod, adroddiad ar ddatblygiadau'r Bil ac roedd chyfleon inni, a'r Alban hefyd, i ddweud ble roedden ni eisiau cael pwerau i wneud pethau mewn ffordd sy'n addas ac unigryw inni.

Well, we do have powers under the Bill. The Bill before the Commons now isn't the Bill that we had agreed over a period of years. But, just to say that there were more opportunities for us to be part of the development of the Bill than we had expected following the first experience in 2018. So, there are many examples within the Bill where we have reached agreement with the Government in Westminster to provide us with powers to do things in ways that are appropriate to Wales. Now, I could ask Rob or Chris if they could provide some detailed examples for us, but I just wanted to put that on the record. Around a year ago, the JMC(EN), at each meeting, would have a report on the development of the Bill, and there would be opportunities for us and for Scotland to tell them where we wanted powers in order to do things in a way that would be appropriate and unique to us.

Do you want to offer anything in particular, Rob?

14:10

We have been discussing the Bill for a very long time, since roughly the summer of 2018, and I think quite a lot of improvements have been made during that time. But I think we're generally content with the powers that, in the various fields, go to the devolved authorities to implement the withdrawal agreement or the separation agreements and so on. So, I think we're broadly content with that.

Grêt, achos mae yna ambell i gwestiwn jest i'ch pwyso chi'n fanylach ar hynna. Allaf jest, ar gefn hynna, ofyn pa newidiadau y gallai fod yn rhaid eu gwneud i Ddeddf Llywodraeth Cymru 2006 o ganlyniad i weithredu'r cytundebau gwahanu yma?

Great, because there are just a few other questions to press you a bit further on that. Following on from that question, what changes might have to be made to the Government of Wales Act 2006 as a result of implementing the separation agreements?

Dŷn ni ddim yn meddwl, Cadeirydd, mai unrhyw le lle bydd yn rhaid inni newid Deddf 2006 o achos y pethau sydd yn y Bil o flaen y Tŷ Cyffredin ar hyn o bryd.

We, Chair, don't believe that there will be any need for changes to the 2006 Act because of what's contained within the Bill before the Commons at the moment.

Reit. Ac yn symud ymlaen i bwynt gwahanol, ond eto tebyg, yn debyg i Ddeddf ymadael â'r Undeb Ewropeaidd 2018, mae'r Bil yn cynnwys pwerau llunio rheoliadau eang y gellir eu harfer mewn meysydd datganoledig gan Weinidogion Cymru a Gweinidogion y Deyrnas Unedig. Ydy’r Prif Weinidog, felly, yn rhagweld, fel y digwyddodd o dan Ddeddf ymadael â'r Undeb Ewropeaidd 2018, y bydd Gweinidogion y Deyrnas Unedig yn gwneud y mwyafrif o reoliadau o dan y Bil ar ran Gwenidogion Cymru?

Right. And moving on to a different point, but also a related point, as with the EU withdrawal Act 2018, the Bill includes broad regulation-making powers that can be exercised in devolved areas by the Welsh Ministers and UK Ministers. So, does the First Minister therefore envisage that, as happened under the EU withdrawal Act 2018, UK Ministers will make the majority of regulations under the Bill on behalf of the Welsh Ministers?

Wel, Cadeirydd, dwi'n meddwl ei bod yn bwysig jest i gofio cyd-destun Deddf 2018, ac roedd honno'n cael ei chreu gydag amserlen ble roedden ni i lawr i ymadael â'r Undeb Ewropeaidd ym mis Mawrth 2019. So, roedd lot o bwysau ar yr amserlen, a dyna pam roedd yn rhaid inni ddibynnu ar bwerau Gweinidogion y Deyrnas Unedig i wneud pethau ar ein rhan ni.

Well, Chair, I think it's important to bear the context in mind here in terms of the 2018 Act, and that was drawn up with a timetable where we had expected to leave the European Union in March 2019. So, there was huge pressure on the timetable, and that is why we had to rely on powers held by UK Ministers to do things on our behalf.

I think it is too early to be sure about the volume and timing of regulations that will be required to implement decisions that have not yet been reached. So, in a way, it's slightly the same point that I was making to Suzy's question about the powers that come to us through different clauses in the Bill. These are all about things that are still to be negotiated between the UK Government and the European Union, and it's difficult to be sure about the volume of regulations that might happen and whether we will come under the same time pressure to have all of these things in place, for example, by 31 December of this year. Because it doesn't seem to me to be impossible to imagine that, even if the UK Government wants to conclude whatever it can by then and say there's no further implementation period beyond this calendar year, nevertheless, some of the things that are agreed might not come into force until some time after that. So, not everything might have to be done by the end of this calendar year.

We will seek to make regulations for Wales in Wales, wherever possible; that's our guiding principle. As much as possible, we want to do this for ourselves, but there may be circumstances in which, in order to make sure that there is an orderly process here and that the essential interests of people in Wales are protected, we would have to rely on others to do things, where we are content for them to do so.

Diolch am hynna. A'r cwestiwn olaf wrthyf fi. Wrth gwrs, mae yna bwynt egwyddorol pwysig gyda ni yn y pwyllgor yma yn wastadol, sydd yn dilyn o'r drafodaeth yna ynglŷn â SICMs neu MCOSys yn Gymraeg, rwy'n credu. Wedyn, dŷn ni'n deall y ddadl, wrth gwrs, ond dydy'r ddadl ynglŷn â phwysau gwaith ac ati ddim i fod yn rhan o'r rheswm pam mae pethau ddim yn gallu cael eu gwneud. Felly, all Llywodraeth Cymru ymrwymo i gyflwyno cynigion ar gyfer y memoranda cydsynio offeryn statudol—SICMs—bob tro y mae Llywodraeth y Deyrnas Unedig yn defnyddio ei phŵer o dan y Bil i ddiwygio deddfwriaeth sylfaenol mewn meysydd datganoledig fel y gall y Cynulliad yma gydsynio yn ffurfiol? Achos beth sy'n tueddu digwydd ydy dŷn ni ddim yn gwybod am y rhain nes eu bod nhw un ai wedi cael eu pasio neu mae disgwyl i Aelodau cyffredin gyflwyno SICM gerbron, sydd, buaswn i'n fodlon dadlau, yn sefyllfa anfoddhaol.

Thank you for that. And the final question from me. There is always a very important principle in this committee, and it follows on from the discussion we've just had with regard to SICMs, the statutory instrument consent memorandums. And we understand the argument, of course, but the argument with regard to work pressures and so on is not meant to be part of a justification for why things can't be done. So, can the Welsh Government commit to tabling motions for statutory instrument consent memorandums, these SICMs, each time the UK Government uses its powers under the Bill to amend primary legislation in devolved areas, so that the Assembly here can formally consent? Because what tends to happen is that we don't know about them until they've just been passed, or ordinary Members are expected to table a SICM, which I would argue is an unsatisfactory situation.

14:15

Wel, Cadeirydd, rŷn ni wedi dweud yn barod fel Llywodraeth mai ein bwriad ni yw rhoi'r SICMs i'r pwyllgor i wneud y gwaith craffu in normal circumstances.

Well, Chair, we have already stated as a Government that it so intention to ensure that we do provide SICMs so that the committee can carry out its scrutiny in normal circumstances.

And I see myself being drawn straight back into what is normal and what is not normal. [Laughter.] But whenever we can, that is our intention, that is what we would like to see happen. If we face a position where the scale of the challenge becomes one where, in a practical way, that is very challenging, then we will come back to the committee and set out those circumstances and explain why we think that we are struggling to do what we would like to do. But I'm very happy to repeat the commitment we've given already that, as far as we are practically able, we want to do it in a way that allows them to be tabled and properly considered. We are grateful to the committee for the work that you've already done in this field.

I think, First Minister, there's an area of concern, because we have certainly come across a number of statutory instrument consent memoranda where consent has almost been dispensed because it's been considered, at Government level, that it's a relatively minor thing, which is often the case. But there were some quite fundamental principles in terms of the exercise of power, and maybe this is an area we could write to you separately on, because what happens occasionally can become a culture of activity, and it's a concern that I know we've had on a number of occasions and Members have raised. But in terms of time, I think that is probably as far as we want to take it at this moment.

Two questions from me, Chair, the first one relatively straightforward, the other one perhaps not quite so much. Section 78 or clause 7A, rather, of the Bill says that rights, powers, liabilities et cetera created under the withdrawal agreement will be recognised in domestic law. It then goes on to state that every enactment will be subject to those rights, powers and liabilities, and that 'Enactments' includes Acts and Measures of the Assembly. Would it be fair to say, then, that a new restriction is being placed here on the ability of the Assembly to legislate? It may be, of course, that there's no desire to deal with any removal of what is contained in section 7A, but—. I suppose we could look at this in two ways. Either, firstly, it's a new restriction or, secondly, it replaces the restriction that currently exists that we're unable to legislate incompatibly with European law.

I think certainly the UK Government's position would be the second, that this is not a new restriction, that these restrictions already exist within the current devolved settlement. But it's why we have put such a lot of emphasis, Chair, on making sure that when negotiations on new trade agreements are being carried out, that devolved administrations are involved from end to end in that process, because surely what nobody wants to see is the UK Government strike a trade deal, the implementation of that trade deal relies on powers that are devolved to ourselves or to the Scottish Parliament, but that we've had no part in shaping the way in which that trade deal has been struck.

Now, the current settlement would allow the UK Government to insist that we use our powers in a way that they had determined through those negotiations. But that's a very bad way for these things to be done, not only because it would give rise to all sorts of constitutional friction about the devolved Assemblies being cut out of powers that we currently have. But if you look around the world, where you have this two-level arrangement, a state that strikes a trade deal, but relies on regional, national Parliaments to implement them—where states have acted in that way, it doesn't work, because there are all sorts of ways in which people who have been forced to do things that they don't want to do frustrate that. I'm going to use the word more powerfully probably than I mean, but it's not a straightforward matter of just being ordered to do something and it's guaranteed it's happening that way. The evidence is that it doesn't.

So, it doesn't work for the UK Government either is what I'm saying. It certainly doesn't work for us; it certainly wouldn't work for them. The way to avoid it is by making sure that devolved administrations are fully involved, from the time when a trade deal is being thought of to the point when it has been concluded and is being implemented, and then we can avoid the difficulties that would otherwise—. I see the point exactly that Carwyn is making, that those are very potentially there. 

14:20

The second question I was going to ask, and this perhaps is something for consideration at this stage, rather than an answer—. I refer particularly to clause 38(1), which simply says,

'It is recognised that the Parliament of the United Kingdom is sovereign.'

Now, that may look quite innocuous, but, in fact, it opens a very large can of worms because there are several issues that become live as a result of that statement, which I don't think it's needed, actually. I don't see the point of putting that in there, apart from—it's almost like graffiti; it doesn't have any real purpose as far as I can see. But the sovereignty of the UK Parliament is a matter of convention not law. There is nothing in law that says that the UK Parliament is sovereign. There are declarations that the Parliament of England was sovereign, but that disappeared in 1707, and so there's nothing in law that declares that until now. This is quite a profound change. And the effect of that is that, whilst, over the last few decades, the courts have respected the convention of UK parliamentary sovereignty, there have been many statements made by various judges over the years that there may be occasions when they would not recognise it. Let's say, for example, that Parliament passed a ridiculous law, or a clearly draconian law, then the courts would not feel bound to respect the UK parliamentary sovereignty in those circumstances. This gets rid of that. If it's expressly declared that the UK Parliament is sovereign, then there is no rule for the courts at all, no matter how draconian the legislation might be, and that, to me, is of great concern. That's a clear example of the elected dictatorship that Lord Hailsham talked about in 1976, which he then forgot about when he was in Government, but there we are.

Secondly, this cuts right across Scottish constitutional law. Now, I know people's eyes might start to droop when I start talking about this, but it's an important principle. Scottish constitutional law does not recognise any kind of sovereignty in parliament, only in people. And the Scottish courts have, from time to time, made statements that if they felt that an Act of the UK Parliament cut across the Act of Union 1707, then they would strike down that Act in Scotland. If you look at case law in 1953, case law in 1975, that suggest that—it's not what we call 'ratio', it's not something that binds the courts, but they're observations made by judges. Now, what this section seems to do is to remove that. If the UK Parliament is sovereign, it is sovereign across the whole of the UK, and that is not something that is recognised in Scottish constitutional law. So, there's another issue there that would need to be dealt with, which doesn't affect us perhaps, but we'd certainly have an interest in it, because a new legal principle has been inserted into Scots law for the first time ever, and that is bound to create friction, I'd suggest, in Scotland.

Finally, of course, the difficulty from a practical perspective is that, First Minister, both you and I do not accept that the UK Parliament should be sovereign. You've said quite rightly that sovereignty should be shared, and so what this does is entrench in law something that you and I would profoundly disagree with. Now, the question is, then: given that something that appears to be quite harmless on the face of it, given its effect in terms of putting in law something that's never been in law before—in other words, the sovereignty of the UK Parliament—given the fact that it changes the ability of the courts in my mind to intervene, where the courts feel that it's appropriate, and given the fact that it cuts across what we have both said this afternoon—. I'm simply going to leave it in this way with you: would the Welsh Government then consider what representations it would need to make to the UK Government in relation to clause 38(1)? I don't expect an answer now, but if you could consider it.

14:25

Might I suggest, First Minister, that that might be an appropriate thing—that we write to you very specifically on that point, because I think this needs some thought and it has very significant implications for the underlying principles of your own reform paper. And it might be better to get that in, perhaps, a more—

We have proposed an amendment to clause 38, as you know—that it refers to the devolved administrations alongside it. But I can really agree with what Carwyn said. This is a clause that either means nothing, and I like the phrase 'constitutional graffiti', and should just be deleted, because it's just there as some bit of red meat window dressing for the European Research Group, or it means something very significant. In which case, it deserves to be debated and understood a great deal more than it will be during the very rapid passage of this Bill, which is really not about issues of parliamentary sovereignty and it certainly does not reflect the views that we discussed earlier about the way, 20 years on, sovereignty is dispersed across the United Kingdom.

It's unusual to see the word 'recognised' in legislation as well. You recognise other states, but you don't usually see the word 'recoginsed' in law. If the purpose of a clause in a Bill is to recognise something, it does then raise, to me, the question of whether it's needed at all. That is something that surely can be done in other ways, other than through legislation.

It's also very interesting to note the UK Government's own concern about the choice of wording such as 'necessary' and 'appropriate', which appears within there, but that's for another time.

Are there any further questions? First Minister, that brings us almost on time for the—. Thank you for the amount of time you've given us and the detail of the questions in the usual fashion. There'll be a transcript in due course. We will write to you separately about the one or two pieces that were raised very specifically. I thank you and your officials for your attendance today.

4. Offerynnau sy'n codi materion i gyflwyno adroddiad yn eu cylch i'r Cynulliad o dan Reol Sefydlog 21.2 neu 21.3
4. Instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3

If we now move on to item 4, which is the the Building (Amendment) (Wales) Regulations 2019, and, again, you have before you a report, regulations and explanatory memorandum. These regulations amend the building regulations of 2010 to restrict the materials that may become part of an external wall or certain attachments to an external wall of particular buildings. The amendments apply to buildings at least 18m high. Any comments?

Yes. So, these regulations actually come into force today. The draft report starts on pack-page 82, and a Government response has been received, which starts on pack-page 85. There was one technical point, and three merits points have been raised.

So, the technical point notes an inconsistency between the explanatory note to the regulations and the regulations themselves, which could lead to confusion for the reader. The Government will seek to correct this point by way of a correction slip.

The first merits point notes that these regulations are in response to the fire at Grenfell Tower in June 2017, and they follow the Welsh Government's commitment in May 2018 that, subject to consultation, they would move to ban the use of combustible materials in cladding systems of high-rise residential buildings in Wales. These regulations specify the materials that can be used in external walls of relevant buildings, and they also include some non-residential buildings. So, the relevant buildings are buildings that are at least 18m in height and contain at least one dwelling or a room for residential purposes, or the building is used as living accommodation for or for the treatment, care or maintenance of persons. So, it does extend to hospitals as well. Fire safety in high-rise buildings in Wales and these regulations have been the subject of several recent media stories and public interest.

The second merits point notes that the explanatory memorandum doesn't accurately reflect an element of guidance in 'Approved Document B: Fire safety (Volume 2—Buildings other than Dwellinghouses)'. Those approved documents are to give guidance and assistance in how to interpret the 2010 building regulations. The Government accepts the point. However, it is satisfied that, in practice, the industry refers to 'Approved Document B' itself to establish methods of compliance with the 2010 regulations, and that the amendments slip they have issued to 'Approved Document B', in light of the change of policy, is clear.

The third merits point asks when the functions under section 34 of the Building Act 1984—which was one of the enabling powers used in making these regulations—were transferred. Assembly lawyers take a different view to that of the Government, which is set out in the draft report on pack page 83. However, following the Government's response, we accept there are two ways of approaching this question. However, whichever approach is preferred, it is clear that the functions under section 34 were transferred to Welsh Ministers before making these regulations.

14:30

No, only to say that codification is going to be fun, isn't it, if we're dealing with things by slips, or whatever they're called?

Okay. So, we note that, and of course we have the report there.

Moving on to item 4.2 then, on to the Non-Domestic Rating (Small Business Relief) (Wales) (Amendment) Order 2019. Again, we have a report, an Order and an explanatory memorandum. This Order amends the Non-Domestic Rating (Small Business Relief) (Wales) Order 2017, which provides for a non-domestic rate relief scheme that applies to certain categories of hereditament. The effect of the amendments made by this Order is to ensure that hereditaments that are used exclusively for automatic teller machines do not benefit from small business rate relief under the scheme. I understand a merits point has been identified.

Yes, the merits point is on pack page 114, and it notes that the explanatory memorandum referred to an incorrect enabling power. The Welsh Government responded and accepted the point, and have already laid an amended explanatory memorandum on Friday 10 January.

5. Papur(au) i'w nodi
5. Paper(s) to note

We move on to item 5, papers to note. We have a letter from the Deputy Minister for Health and Social Services regarding the Children (Abolition of Defence of Reasonable Punishment) (Wales) Bill. We're just invited to note that letter, which relates to the laying of an updated explanatory memorandum in respect of the Bill. Shall we note that?

6. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o’r cyfarfod ar gyfer y busnes a ganlyn:
6. Motion under Standing Order 17.42 to resolve to exclude the public from the meeting for the following business:

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.

So, I then seek a motion under Standing Order 17.42 to resolve to exclude the public from the meeting for the following business—17.42(vi). So, is that agreed?

Moved and agreed. Okay, thank you. We move into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:33.

Motion agreed.

The public part of the meeting ended at 14:33.

Dysgu am Senedd Cymru