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Y Pwyllgor Materion Allanol a Deddfwriaeth Ychwanegol

External Affairs and Additional Legislation Committee

14/01/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Alun Davies AM Yn dirprwyo ar ran Vikki Howells
Substitute for Vikki Howells
David Melding AM
David Rees AM Cadeirydd y Pwyllgor
Committee Chair
Huw Irranca-Davies AM Yn dirprwyo ar ran Jane Hutt
Substitute for Jane Hutt
Mark Reckless AM

Y rhai eraill a oedd yn bresennol

Others in Attendance

Akash Paun Sefydliad y Llywodraeth
Institute for Government
Professor Jo Hunt Prifysgol Caerdydd
Cardiff University

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Alun Davidson Clerc
Clerk
Claire Fiddes Dirprwy Glerc
Deputy Clerk
Elisabeth Jones Cynghorydd Cyfreithiol
Legal Adviser
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 13:59.

The meeting began at 13:59.

Teyrnged i Steffan Lewis AC
Tribute to Steffan Lewis AM

Good afternoon. Before we commence the scheduled business of the committee, I wish to address the sad news we received last Friday that our colleague Steffan Lewis passed away. At this time, the loss we feel from Steffan's absence, as great as it may be, is nothing in comparison to that which his family are now experiencing. On behalf of the Members of the committee and the committee staff, I want to express our heartfelt condolences to Steffan's family, particularly his wife and young son.

As a member of this committee, Steffan's talent and commitment shone through in his contributions. He had the ability to cut through to the crux of the matter, no matter how complex it was, and he knew how to deliver scrutiny in a way that maximised the efficiency and effectiveness of this committee. He worked tirelessly in pursuit of the best outcomes for the people of Wales, and, I know, for his ambitions of trying to achieve an independent Wales in a very vibrant society. He did always this with passion and good humour, and decency. And we miss him greatly.

I understand that the Llywydd has agreed that, tomorrow, there will be opportunities for Members to offer tributes, and therefore I will ask Members to hold their tributes back until that occasion. I would now like to invite Members to stand for a moment, in a sign of reflection, as we reflect upon the loss of Steffan. So, if everyone is standing, so the committee can have a moment to reflect upon his contribution.

Safodd y rhai a oedd yn bresennol am funud o dawelwch.

Those present stood for a minute’s silence.

14:00

Thank you. Please be seated. And can I reiterate that our thoughts and prayers are with his family at this difficult time?

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

I move on to the business of the meeting today, and I will now commence the normal housekeeping. Can I welcome every Member and substitutes to today's meeting? Can I remind Members the meeting is bilingual? If anyone requires translation, it is available on the headphones via channel 1. If you require amplification, that's available via channel 0. There are no scheduled fire alarms today, so if one does take place, please follow the directions of the ushers to a safe place. Can I also remind Members to turn your mobile phones off or on silent for the duration of the meeting? We have received apologies from Vikki Howells and Jane Hutt, and also from Michelle Brown, and we have two substitutes today. Can I welcome Huw Irranca-Davies and Alun Davies as substitutes for Vikki Howells and Jane Hutt?

2. Trafodaeth panel arbenigol ar ddatblygu fframweithiau polisi cyffredin y DU a deddfu ar gyfer Brexit
2. Expert panel discussion on the development of common UK policy frameworks and legislating for Brexit

We move on to our next item of business, which is our official discussion with our experts, and I'll wait for them to come in.

Good afternoon. Can I welcome you to this afternoon's meeting of the committee? For the record, would you introduce yourself and the organisation you're representing today?

Sure. Good afternoon. Thanks very much for having me. My name is Akash Paun. I'm a senior fellow at the Institute for Government in London.

I'm Professor Jo Hunt from Cardiff Law School, the School of Law and Politics, and the Wales Governance Centre.

Thank you very much. You are aware, of course, that this afternoon's session is to look at some of the areas that will be impacted upon, the common frameworks, and the Brexit legislation and inter-governmental relationships highlighted in those areas. And we're fully concerned with the issues going on in Westminster—clearly there are still huge uncertainties as to what outcome will happen tomorrow evening, and, as a result of that, what will be the next steps in the process, and we have to live and discuss within that context of uncertainty at this point in time. But we will try and work as best we can to understand what the implications are for Wales in particular.

So, if I move to the first area of questioning on the common frameworks and ask David Melding—.

14:05

Thank you, Chair. I think all the comments I'm going to make, and questions, are for both witnesses. I'll leave it up to you both to decide who starts and then for the other to add any material as you see fit. I think we would all agree that a shift from common frameworks, which are at the minute the area of European governance, to then being at the level of UK governance, is very significant for our constitutional future and the way that works as effectively as possible in partnership. But I would say, so far, that the whole process, perhaps because of the rush of what needs to be done initially, seems very opaque and we could be establishing precedents that are not going to be particularly helpful for the durability of the process. I just wonder what your view is, initially, on how the frameworks have been worked on and how effective the JMC has been. Is it the mechanism for these frameworks, or just the final act of endorsement, rather than working through two established, common approaches? 

I'm happy to—

You go first, sure. 

I mean, this process of working out what the replacement common frameworks are going to look like is, or should be, an exercise in shared governance. I think what we would hope to see, and would replicate the best practice that we may have seen from EU governance, is to see a sort of co-operative, multilevel governance coming through.

I think we have seen, to date, a certain degree of effective co-operation between the different governments and very much their officials. But, as you say, there has been a certain opacity around that process. There has been a lack of full engagement. I question how that might have been made possible. Could it be any more open to parliamentary engagement up until this point? As you say, it's almost in crisis mode that the Government's operating at the moment. These common frameworks, if we don't have a reciprocal agreement to have a transition period that leads us to the end of 2020, then these common frameworks are going to be needed very, very quickly.

Now, the process so far has been a Government-driven process. It's been undertaken under extreme time constraints and there has been that lack of transparency. That said, the UK Government is committed under the withdrawal agreement to report every three months to Westminster Parliament on the activity that's been taking place around, specifically, section 12 freezing and then any activity around common frameworks and things that also would be reported on in that context.

So, we've had the first of those reports, so there is some parliamentary engagement between UK Government and Westminster, and then that is also supposed to be shared at a devolved level. But, as you say, this operating in crisis mode, operating essentially inter-governmentally, is setting up potentially problematic future relations for the UK constitution. 

Yes. So, I would agree with the premise of your question that this is an extremely significant moment in the evolution of the UK territorial constitution. Devolution, as designed initially, was, by and large, predicated on a kind of clear division between what was devolved and what was to be held at Westminster. That's become even more entrenched as the logic of devolution, in recent years in Wales, of course, saw the shift to the reserved-powers model, and consequently there was relatively little need, given the framework of EU law, to think particularly deeply or systematically about what kind of shared governance arrangements, as Jo referred to, the country might need. Without a huge amount of prior thinking about that, given the wider lack of preparation for contingency planning for Brexit, there has then been a fairly frantic attempt to design these institutions from scratch at a time of, obviously, great political uncertainty and the bigger picture of trying to negotiate the withdrawal agreement, and so on.

So, yes, I think there's been an element of trying to make things up as we go along, rather than having a clear plan for how all this should work, and I think, clearly, the British Government has got quite a few big things wrong in how it has managed its relationship with the devolved administrations since 2016. But I do also think that we can see a degree of learning and improvement over recent months, and particularly since the inter-governmental agreement with the Welsh Government—obviously, it wasn't reached with the Scottish Government. Since then, we've definitely seen a stepping-up of the inter-governmental machinery, much more regular meetings of the Joint Ministerial Committee (EU Negotiations), and greater civil service engagement as well. So, I think there is a bit of a story of improvement there.

As far as the transparency question is concerned, yes, I think there's still a long way to go on that, and inter-governmental relations—. I mean, the very name, I think, doesn't lend itself to being a very transparent and widely understood arena of decision making. Yes, the reporting that's now required under the withdrawal Act [correction: under Schedule 3 of the European Union (Withdrawal) Act 2018] on progress in developing common frameworks—I think that's quite a good example of how giving some of these mechanisms a statutory footing can lead to greater transparency, but it doesn't go a hugely long way to opening up the whole process to proper scrutiny.

14:10

That's very helpful. It seems to me that the initial organising principle has been to preserve the internal market within the United Kingdom. How useful do you think that has been and how transparent has that been? Many of the common frameworks clearly fit that pattern, but not all. I'm not sure environmental protection is easily attributed to preserving the internal market, though it will have some effect on any market in terms of the regulations we impose. How helpful has this concept been, that we need to focus on the internal market, and how precisely do you think the definition and clarity of that concept has been? Should we go the other way around, or—?

So, the internal market and preserving—. Protecting the effective functioning of the internal market has been, maybe, the principle that's been most widely remarked upon, but it's obviously just one of the list of six principles, initially, that were agreed between the three Governments—I think Northern Ireland was already suspended by then—at the JMC in 2017. So, there's also, of course, a recognition that we might need common frameworks to enable the UK to enter into trade agreements, to meet its international obligations, to manage common resources as well, and I think that's why, maybe, some [correction: and I think that some] of the environmental areas fall into that category as well.

And in terms of how useful those principles have been, I think the basic logic of the principles they came up with in October 2017, at the JMC plenary [correction: JMC meeting] then—. I thought that it was quite a sensible package. They did identify a few clear, logical reasons why we might need a degree of standardisation and constraints on devolved power, but there was also, to balance that, a commitment that the overall effect of this process would be a significant increase in the decision-making powers of the devolved bodies, for example, and that new frameworks would be subject to the Sewel convention. So, overall, I thought the principles that were supposed to then guide the process were quite sensible. I think it's not been really clear how they've been put into practice, and the whole idea of the UK internal market is not something that's ever been defined—certainly not in legal terms, but not even, I don't think, in economic or governance terms—and I think that does contribute to the lack of transparency about how these decisions [correction: about how decisions] are being taken.

I think, as a concept, it is at the moment incredibly hollow and a sort of shadow concept. If we're looking at what we're inheriting from the EU, it's taking a very partial set of provisions of EU law and saying, 'We're going to use these to ensure that we've got an internal market'. From an EU law context, you have both negative and positive harmonisation techniques under way. That internal market that has been an ongoing process of creating and sustaining that market through regulatory means, through the involvement of the courts, that's been going on for decades, and legislating—so, these sorts of measures that we find here—is just one part of how we make that internal market or how the EU's internal market was made. The default position is the relying on the free movement principles. So, cross-cutting principles of free movement, free movement of goods, of people, of workers, of services and establishments, that's not here. It's just looking at rolling over some positive harmonisation measures rather than getting to grips with what we would need for a functioning internal market and what the consequences of that are. So, it's partial as things stand. it's entirely—. We can recognise why, in this sort of crisis mode that we see at work, this has been undertaken, but it's only part of understanding what a UK internal market is and what its consequences may be for devolved powers, because how we interpret that and how that plays out might have consequences for the exercise of existing devolved competence and we're yet to see that properly play out yet.

14:15

If I could move on to the parliamentary scrutiny, when some of these profound issues could have been, perhaps, tested and the consistency of them analysed and, perhaps, improvements or gaps filled or at least encouraged by the parliaments to do that—. So far, we have this reporting mechanism. I don't know what the experience has been in Westminster or the Scottish Parliament, but I would say that there's not been an awful lot of scrutiny yet of some of the principles that would motivate the common frameworks, which are huge activities, like: would there be a UK environmental body? What will be the principle on environmental regulation—the interplay of regulations, directions and the approach to direct payments in agriculture? These are massive things that require—if they're going to change very much, anyway—very extensive discussion in the parliaments. So, is it the usual thing—in the current confusion, you couldn't expect all this to be happening? But, Professor Hunt, you've already said that these frameworks could come into play much sooner than we realise. So, where are we on parliamentary oversight and on whether there should also have been any inter-parliamentary, where, you know, the various legislatures around the UK attempt at co-ordinating as well, because it's sometimes difficult, really, for us to try to influence the UK Government? On occasion, that would be more relevant than us trying to scrutinise our own executive.

Well, I suppose one thing I would say is the big rush, in the event that there isn't a deal and we just leave on 29 March, is not actually to have all the new frameworks set up; it's just to make sure that EU retained law is functional in the UK outside of the EU. Yes, even if we end up in 'no deal' scenario, I don't think that necessarily creates this huge pressure to take big decisions about the future governance of all these areas. I think the initial decisions will just be about, 'Okay, well, how do we need to fix EU law so that things don't simply fall over on 30 March?', and then there will still be a longer period to work out the common frameworks.

And then, in terms of the scrutiny, I mean, there are quite a lot of committees, of course, here, in Holyrood, in both Houses of Parliament as well, who have become quite engaged in this debate. I mean, there are far more committees than, for example, I and the Institute for Government are able to contribute evidence to, because there is—and it's a welcomed thing—a kind of healthy attention being paid to these big questions. I think it is difficult because there's so much potentially changing and so much uncertainty, and, yes, there is a problem about how much information there is about the intricacies of the inter-governmental relations. But I don't perceive that the Parliaments and the Assembly here are just taking a hands-off view, or hands-off approach, rather, and letting the Governments just get away with making big decisions without them. And, of course, where the frameworks are going to be placed in legislation—and we've already seen the Fisheries Bill, for example, before Parliament—those will go through the normal legislative process at Westminster, and they'll be subject to, of course, a legislative consent process as well at the devolved level, so there are those various—

14:20

Could I interrupt and ask you in particular because of your knowledge, I think, of other UK institutions: I know that in our—because I used to serve on it—Constitutional and Legislative Affairs Committee, we subjected Philip Rycroft to a scrutiny session, if that's appropriate for a civil servant, and tried to develop the understanding of shared governance, and I thought that was an interesting session, though not a decisive one, I think it would be fair to say, in terms of being encouraged or not that this was a principle that is now being taken forward, but have any of the other Parliaments been looking at this? Because I don't see a great discernment in Westminster, and indeed not even in Scotland, where I think they're quite happy with bilateral approaches. Anyway, that's the question.

Well, I suspect that there's probably a greater interest in some particular aspects of this debate here in Cardiff, so there's an actual focus on the inter-governmental mechanisms and shared governance as a concept. Certainly both at the Assembly level and the Government level, I think there's probably more interest in that. But you could look at things that the committees like PACAC, the Public Administration and Constitutional Affairs Committee, have produced recently, the Lords Constitution Committee and, in Scotland, certainly the Finance and Constitution Committee there as well. There have been some quite extensive inquiries conducted in all those places, I would say. They may not have all come to exactly the same conclusion, but then—. And then, through the inter-parliamentary forum, of course, there's been an attempt to collect the voices of the various legislatures and to strengthen the voice of legislatures across the UK.

I want to go back a little and just see if we can be clear what we mean when talking about these common frameworks and how much of them is very much specifically what we're inheriting from the EU and whether this—. Will this be a moment where we're just dealing with these, or are we looking to the future and how we undertake shared governance more broadly in the UK? As things stand at the moment, we have the inter-governmental agreement, but that seems to be very much focused on these common frameworks, as understood under section 12, which follows the process through sort of freezing and then maybe primary legislation, so Parliamentary-Assembly involvement there, maybe secondary legislation, I'm assuming using the powers to amend under the withdrawal Act, which can be used by UK Ministers as well as Welsh Ministers, but I don't know how else, what other—how else do you make these common frameworks?

If we are looking to creating new structures—the JMC as a new decision-making body, rather than just a space in which these things are discussed—then this is a more thorough overview of how we do business for the future. So, what we want to make sure is that the things that we are inheriting go wider, go broader, than simply this immediate experience of inheriting EU stuff. I just want to go back to the principles that we found from October—that you have there reference to things like sufficient space or sufficient flexibility or equivalent flexibility that currently exists under EU measures. Well, that is a principle, clearly, that only works in relation to quite a short time, because we can remember what this EU law was, but it doesn't set any general principle for future governance across the UK, which we might see in something like the subsidiarity principle, for example.

So, if we're looking at how we remake inter-governmental relations for the United Kingdom, then, absolutely, we need to be properly looking at, if we do go to a more decision-making type body for the JMC, how do we make that accountable, how do we make that open to parliamentary scrutiny. PACAC, I think, has made suggestions around having a combined parliamentary forum, based on the inter-parliamentary forum on Brexit, using something like that—but just more examples of joint parliamentary committee working. And we in Wales have already had experience of that in relation to the Wales Bill, but, if these are going to be decisions made together by the Governments in those fora, if that's how it's going to be, then, absolutely, we need to have an opportunity for joint parliamentary engagement with that.

14:25

Yes. Just quickly to echo, I think the appropriate parliamentary scrutiny model definitely depends on the inter-governmental bodies that are to be scrutinised. Because, if we have something more like a continuation of the current JMC structure, then I think the scrutiny and accountability relationships make more sense as separate accountability of the Ministers from each Government back to their own legislatures. And then there's probably still a good role to be played by an inter-parliamentary forum in sharing information and just having a dialogue, but I see that less as a kind of formal accountability model, whereas, if we move to something more like a UK council of Ministers or whatever you want to call it, then you probably need quite a different model of scrutiny as well.

Can I bring in Alun Davies and Huw Irranca on this, because we want to move on, unless there are supplementaries?

Thanks, Chair. I'm interested in those final remarks. Both I and Huw Irranca-Davies, of course, have sat on JMCs and Council of Ministers, and, as such, I think we're looking at some of these matters from different perspectives. My experience of a JMC is that they're either very dull or very exciting. I would suggest that neither of those two things provides the best form of governance. 

In terms of our approach, JMCs have very much been in the past about consultation and engagement. We have a conversation about different issues. What we don't do is act as an Executive, and that's a very different role, of course. My concern about the current way of developing these proposals is that the United Kingdom Government is both the referee and a participant, and I'm not convinced that that is a good thing.

In terms of how we take these things forward, if the JMCs are to be the way in which we reach agreement on new common frameworks and new ways of governing the territory of the United Kingdom, then we need two things, surely. The first is what you've referred to, which is proper inter-parliamentary, inter-institutional scrutiny, which I agree with you on. But, surely, the second part of that equation is also an inter-governmental Executive that isn't within the ownership of either one of the Governments participating in it. Because my experience of the Council of Ministers—and I don't know if it's your experience as well, Huw—is that, when you are negotiating as part of a ministerial team, you have the Commission and the Presidency in front of you and you have the sense that they're acting on behalf of a collective whole, which feels good, frankly, because you've got a referee holding the rope. When you're at a JMC, you're talking to a UK Minister, who, quite often, is the person who will also resolve any disagreements, and that is a fundamentally broken system.

Sure, yes. I think—. I agree with—. I agree with—. It's very interesting to hear your own personal reflections on what JMCs are like from the inside, as well. I agree with quite a lot of that. I think the dispute resolution processes or the dispute resolution protocol that exists as part of the JMC structure is clearly conceptually flawed for the reason that, as you point out, the UK Government will often be one of the parties in the dispute—normally the one being complained about—and yet, as it stands, will also have the power to resolve the dispute as well. We've seen that particularly with disputes over finance in the past, where, I think, there's even more of a culture emanating from the Treasury that devolution hasn't really fundamentally changed anything, and there is still this concept of Treasury control and that decisions are ultimately taken there in SW1. But I think, yes, that would be a concern if that kind of model of dispute resolution were carried forward into all these new areas of common frameworks as well.  

So, exactly how you design these things is obviously quite a difficult one to get right. I'm a little bit sceptical that we are likely or even should be [correction: we are likely to be] thinking about transforming the entirety of the JMC into an actual Executive decision-making body, like the EU Council of Ministers. I think it's more likely, and probably preferable as a starting point, that, in particular areas where it's clear that the policy area in question is devolved and yet it's also clear that we need a high degree of co-operation across the UK, then you might try and set up specific decision-making processes and dispute resolution processes, for example, around fisheries, around agriculture. So, in particular areas like that, I think, I can see the logic of moving to something more like a joint Executive. I think actually saying that the whole JMC can become some kind of federal Executive body—I'm not quite sure how that would work at this point. I think that would imply a much more radical transformation of the constitution as a whole.  

14:30

Or would it simply reflect the transformation that has already taken place? 

I think—. I would be in favour of a move in that direction. I think it depends on exactly what you have in mind. I think in certain areas—. Let's take, for example, trade policy. The Institute for Government and other people have looked at this and recommended that we probably should think about having a new JMC for international trade, so that, where trade agreements are going to impact on, say, agriculture or other devolved issues, there's a route for devolved voices to be taken into account. I think that's important, but that's not the same as saying trade agreements are going to be jointly agreed or jointly negotiated by the four Governments of the UK. In areas like that, I think it will still be mainly a reserved UK Government competence, but in which we should try and have a more entrenched—. And, yes, maybe with a statutory underpinning system for devolved input, and with stronger dispute resolution processes as well. 

Yes, but, if you take another example—for example, agriculture—I was the Welsh agriculture Minister at the time of the last renegotiation of the common agricultural policy, and I took the decisions about the shape of CAP here in Cardiff without reference to the UK Government, except in conversation with Owen Paterson who was the UK Minister at the time, and I did it—. Most of my conversations were with Brussels, not with London, and it would appear to me odd, if we are creating a common framework to administer those areas of policy, if we were creating a common framework on, for example, agriculture across the United Kingdom, where I would, as a Minister with absolute powers over these matters, then need to negotiate with a UK Minister who is, in effect, an English Minister without those powers and authority in this country. Now, that would appear to me to be somewhat odd and incongruous, and not reflecting the geography of the distribution of power of the United Kingdom as it is today. 

Yes, on agriculture, I'd be quite sympathetic to your position. I think one would need to think more about the exact design of the new decision-making structures and so on. I think that's a very important distinction, though, that you've drawn between where UK Ministers are acting with their UK hat on, as opposed to when they're acting with an English hat, and in areas, as you say, like agriculture and the environment, then, yes, it is a matter where there are four different national positions. And I think, in those areas, that's where we might look to move towards something more like a proper decision-making role for inter-governmental bodies. But, as I say, I don't think there's a one-size-fits-all solution there. In other areas, we'll still be more in a consultative space. 

14:35

Can I just extend the question that Alun was putting, but actually to Jo? What our esteemed colleague was arguing is very much a very British approach to this evolution, this constitutional moment, where that classic way of legislation tends to be like the old analogy of sausage making; you don't want to watch it happening. It feels a bit like this with this constitutional issue that we're dealing with at the moment. But you're arguing that there are things we can build on, we can develop them, but let's not start with a clean sheet here. Jo, I sense from what you're saying that you feel there's an opportunity here for—if not a step change, to at least make a big stride ahead to make these arrangements for scrutiny, but also, for enforcement, for monitoring, more fit for purpose, get ahead of the game a little bit. 

And I think that would be the sort of view that you would see appropriately coming from Wales, that seeks to find a place within the union of the United Kingdom that gives proper respect to the powers that have been devolved to it under the devolution settlement, and that have been exercised within a shared governance framework whilst we've been part of the European Union, that perhaps recognises and acknowledges more space for differentiation than so far we've had a commitment on from the UK Government. And, of course, this is a time for big thinking, but in that very British way, we also have the common frameworks being made at the same time, concurrently with thinking about how do we make common frameworks. So, whilst they're being made, we've also got the reporting saying there's cross-cutting work under way on what the governance of these things should look like, rather than, of course, that coming first. That's where we are.  

But could you agree with Akash when he says, 'Well, actually, we can, with some tweaks and modifications, with the JMC perhaps, with some executive function within a separate, small one on specific issues like fisheries or whatever—we could actually make it work to fit what we've currently got in front of us. We can make it work, at least for the next five years, 10 years, get us through Brexit to the other side'?

Yes. But there needs to be a commitment. And I think we're seeing something of that happening through the inter-governmental agreement, and we're seeing—. There is—. As you say, there has been that improvement that we saw over 2018, and I think there was a real shift taking place, not just inter-governmentally, but I think there has been a real attempt to engage with legislative consent motions, or the fact that these things might be coming on issues to do with fisheries and agriculture. And I think there is an attempt to work with this. There will be limits to that, but I think that has to continue, that has to go further, and that has to be seen in things like a commitment to regular meetings. And if you have them on a statutory basis with the JMC—. Those things have been asked for—a regular commitment to these meetings, and we know how they can just fall by the wayside. But if there's a regular calendar, if the chair of that changes, if the location for those change, if there is an independent, impartial secretariat for that, then we've got the bare bones, but it needs the tweaks. 

Can I put to both of you—? Can I seek your response on this issue of—? I think there is a British way of muddling through this, tweaking, adjusting and so on, and we'll get there, one way or another. What it will not deal with is those things that are not laid down in principles or in a memorandum of understanding; it's relationships. And two years down the line, five years down the line, a UK Government who decides, 'Well, actually, I can see what the high principles are, but my interpretation of them is this'—and we're back to exactly what Alun and I and others have been in before, which is an impasse at the JMC that sometimes escalates—previously to the Supreme Court. Now, there is an opportunity, I would put to you, particularly Akash, to say, 'We could move ahead of that, we could put greater transparency, greater accountability, through these systems, we could step ahead of the game a little bit.' So, it's my challenge to you—because I agree we can muddle through, absolutely, but we will end up in the same classic British impasse that we do from time to time. Now, maybe that's good enough, but maybe it is time for fresh thinking.

14:40

I wouldn't disagree at all with the need for greater transparency and accountability of these systems, or indeed with some of the specific things Jo just referred to that you might want to put into statute. I do think those things would be advantageous. I suppose all I was saying before was that, yes—you paraphrased what my position was, I think, fairly accurately. I do think that we can reform and improve upon the existing machinery, rather than thinking that this is the moment to design some kind of new federal constitution. Aside from just how long it would take, and the huge number of issues that everybody would disagree with each other about, I think there just clearly isn't going to be political backing for that at Westminster. So, you also just have to work with the political grain a little bit.

Chair, I've got just one final question. Where does this leave wider Scottish, Welsh society, as we take these things through? Because Lesley Griffiths has eloquently explained to the Assembly that, in terms of the Fisheries Bill, there's one reason that she was taking it through clauses within a parliamentary Bill at a UK level—because it was convenient. Ideally, we would have brought it down here, and we would have actually given it scrutiny here, and allowed wider Welsh society as well to input into it, through its democratic Welsh institution. Okay, it's convenient, and we get that, but, de facto, we've just said, 'Well, it's convenient that we do it in that way for now', but, really, we just bypass scrutiny down here. It's that classic thing again, we're slightly making it up as we go along, but we're cutting out segments of the non-political establishment that would want to actually input into this.

This is on agriculture, specifically.

Well, on fisheries, currently, but agriculture, I suspect, the same.

But isn't the idea that the Welsh Government will come forward with its own Bill in due course, and that this is just a sort of holding measure?

That is the suggestion, yes. We have asked the question as to when Bills will come forward, but we haven't had an answer yet.

Okay. Those are obviously good questions for you to ask. I haven't been following it closely enough to really give you a good answer on that, I'm afraid.

We could have a very busy final year of this Assembly term, which itself provides challenges to the quality of scrutiny.

Are the issues that my ex-ministerial colleagues identify simply consequences of having a UK Government that is also the Government for England? While that is the situation, is there any solution to the issues they identify?

I think that is the reason for some of the difficulties we've been talking about. But I suppose I also think, just as a starting point, that's not likely to change any time soon. Of course, there are people who, for a long time, have called for an English parliament, and an English government, but I don't think that's a proposition with widespread support. So, I suppose we have to make it work with the slightly odd constitutional hybridity of having a Parliament and Government that are, at different times, English, British, sometimes England and Wales. And it does make things complicated, I agree, but that's just the system we have, is it not? 

Because England is 85 per cent, broadly, of the UK population, and a bit more in gross domestic product, is the way this will, in reality, be resolved that, in many areas, we will have the legal power to do things differently in Wales, but may decide not to, and to instead do things as the UK Government chooses to do them in England, because we fear the economic consequences of doing otherwise?

14:45

I suspect in many cases that will be the case. Wales is obviously far smaller and economically integrated into England, so businesses operating across England and Wales will presumably often prefer there to be a common approach in these areas where EU law provides for commonality. More often than not, one would presume that would mean Wales following the English model rather than the other way around. I'm not saying that that's a good thing, and I can see that in particular cases that may be a source of frustration here, but I'm not quite sure what you'd be suggesting as a sort of response to that. 

But, if we have multilevel governance at work—whichever level we're looking at, whether we're looking at the Welsh level, the UK, EU or some other international organisation—there will be times when we choose to, in regulatory terms, follow what's happening somewhere else because it makes things easier to have the same regulatory regime, just as we may be seeking some form of regulatory convergence with the European Union even though we leave. So, of course, what devolution provides is that opportunity to go that way or to go another should there be the political decision taken that the price to pay for going the other way is worth paying. 

You identified earlier the work we're seeking to replicate in narrow terms and legislative functions that has been undertaken at EU level, but the EU had a broader system of enforceable regulatory principles. Will we have that equivalent in the UK or will there be much more opportunity for devolved nations to go in a different direction and pass laws that, in effect, break up the single market within the UK?

We don't know. In terms of what action's been taken there, where would that come from? We know that there is cross-cutting work as part of the common frameworks on understanding the UK internal market. We haven't yet seen what that's going to look like, what that's going to mean, whether we're going to see some sort of replication of free-movement principles on a UK-wide basis, whether these things are going to have reach into the exercise of devolved competence in the same way that EU free-movement rights did—still do—and, if that is the case, if those things do roll over in some way, will they come with the same guarantees that the operation of the EU principles came with? Because just as we may have had that centralising drive towards an internal market and free movement and non discrimination, so we also had treaty-based recognititon of situations where member states and the regions and subnational groups could take different approaches on different matters if it was justified in relation to things like environmental protection and those areas that are recognised as being able to be treated differently, and also commitments to principles like subsidiarity. So, we don't know what might be coming across and how that might play out and what consequences that might have, because we've only been given part of the picture of the UK internal market.

So, where there isn't a specific UK regulation enforcing a single standard across the UK, do we have anything that functions in the way of the Cassis de Dijon principle of mutual recognition within the UK, were different standards to develop?

It's going to vary. It depends what area we're talking about. If you look across the full range of areas of EU law that will be repatriated, the majority of them, just in terms of counting the items on the list, are being devolved in full. There were 153, or whatever it is, areas of intersection originally identified—intersection between the EU and devolved law—and the majority of those are being devolved in full. They've narrowed it down to 24 or maybe slightly more areas where possibly there'll be a need for legislative frameworks. The overall effect, presumably, is going to be greater capacity for policy divergence, but with a commitment across the Governments not to jeopardise the functioning of the UK market. And a great deal of analysis from the various Governments and, particularly, in Whitehall, has gone into identifying the areas where that would be cause for concern—so the level of subsidy to farmers, for example, being one where they are trying to impose constraints on devolved autonomy. 

14:50

In terms of what legal basis there might be for that, whether there is something that could be constructed around ECHR rights, but, other than that, there's—. There's little as we have it within UK law that hasn't come from the EU, and those commitments to free movement in any kind of legislative form—.  

Could we have a principle of mutual recognition, at least in terms of product regulation, that deals with it? And, beyond that, don't we have already strong incentives that, if we do things that are in a radically different way in Wales that makes it hard for people from England to sell something into Wales or to invest into Wales, then the economic implications of that are already something that we will take into account in making that policy calculus? Do we need something that is going to enforce something different at a UK level, except for the devolution settlement, as interpreted by the Supreme Court? 

What we wait to see is, of course—. We've had situations where decisions have been taken in Wales on particular products that have banned the use of those products in Wales. There's the pet collars case, and that was challenged by a company that wanted to sell its products in Wales. So, there is the basis that that—. EU law was able to act as a defensive shield in that case to protect the legislation that Wales had adopted, because, under the free movement principles, it had the power to do that, to make those choices in the interests of protection of animal health and things like that. Now, do we have anything similar to shield that off in the future? What are we going to see emerge at a UK level? Looking forward, we don't yet know what sorts of things might emerge, what might come up, how these things may be constructed legally and what sort of impact they may have for devolved competence. If we haven't got the protections that EU law provided, the constitutional type protections, because—[Inaudible.]—what do we have to protect the devolution settlements in that way? 

And one of the things I come back to is that what we don't have in any of these principles or any of the common framework principles or the IGR principles that are being developed by the working group is this specific commitment to subsidiarity. It's not there, but I think it would be a useful thing to have should it ever be needed. 

But don't we have a fundamental political mechanism that, if some politicians or a particular Government in Wales wish to Balkanise the UK single market to a significant degree that prevented consumers buying things they wanted from companies in England—why can't the political process deal with that through another party critiquing that approach and seeking to win an election? What is wrong with that democratic mechanism of governance? 

Because there will be cases, because companies may see this as an opportunity. There will—. Law will happen. 

Can I ask a question on subsidiarity? You've indicated that you haven't confidence that—you know, it's not been there. Are you aware whether it's being discussed at official level or not? 

The concept of subsidiarity? I doubt they're having discussions about such fundamental principles as such. I think they're much more focused on operational questions about these frameworks, but you'd have to ask them to be sure about that.  

We know—the review of inter-governmental relations that was launched following JMC(P) last year, there's been a group that has now submitted a report that has been drafted to inform that process. Now, that report doesn't mention subsidiarity; it covers some principles, but that's not there amongst them.  

He said last week it was so thin that he just wondered why it wasn't published last March. 

The Centre for Constitutional Change, and—was it Bartlett at Cambridge—the Nicola McEwen—[Interruption.] Yes, Nicola McEwen, and they've written a 100-page document, and I'm assuming a lighter version of that might have been shared with—

14:55

Perhaps we need to seek this out because that would be different to the one I think he was describing. 

I think that one has been written explicitly to inform this process, so whether parts of that have been taken from there, I don't know. 

The other active principle in governing common approaches, which has been developed at EU level—. Subsidiarity is always mentioned, but proportionality is equally as important—that, where you do take action, it is a proportionate action. I presume this is not being widely discussed either, as an organisational principle.  

I think proportionality is. I think I have—. I'll confirm that for you. 

I've not seen those documents, so I can't comment on that, I'm afraid. 

Could I ask what you think of the balance between the Assembly and Welsh Government in terms of our relative involvement in the Brexit process, and particularly with a view just to the huge amount of secondary legislation that is being corrected, we are told, or is only of technical importance, that UK Ministers are doing through the UK Parliament and our virtual lack of involvement as an Assembly in overseeing that? 

Yes, I understand that's been a source of debate and controversy here. I don't know the exact numbers, perhaps you do—the number of statutory instruments under the European Union (Withdrawal) Act going through here as opposed to at Westminster, but I think—. It was always anticipated, of course, that some of this workload—on behalf of Wales, on behalf of the whole of the UK—would be carried out at Westminster. I think it's clear from the inter-governmental agreement, and the fact that, ultimately, the Assembly gave its consent to the withdrawal Act, that UK Ministers would have the power to correct legislation, including in devolved areas. So, I didn't have a particular expectation about what the balance would be. I think the question for the Assembly, or for this committee, would presumably be whether there are particular areas where this power, this ability for UK Ministers to make changes to devolved law, is being misused and whether there are changes being made that are not being subject to sufficient debate here or are of particular concern for some reason. The basic principle that some of these instruments are going through—quite a few of these instruments are going through—Westminster, I don't think that's a matter—. That's not a surprise, is it? That was written into the legislation. 

Understandably enough, there's been a real emphasis on governmental activity throughout this period. I do think, though, as far as what does this mean for the devolution settlement, if we draw that out a bit more broadly, I think the inter-governmental agreement is significant and I think we are seeing an improvement in the relations between the Governments, between the UK Government and Welsh Government in particular and how they are working together. But I do also think that we are seeing—as I said earlier, I think we are seeing a greater respect for the input for the Assembly around its role in legislative consent. But I think there is that job of work to be done here in terms of the Assembly and its relations with Welsh Government and making sure that they're held properly to account. Now, I think CLAC were working on an inter-institutional agreement and I don't know the status of that, but we know that Scotland, the Scottish Parliament, has had something similar with Scottish Government, and whether we want something more specific at this time, whether that needs to capture as well what we're seeing with common frameworks, that—it's in the Assembly's court. 

I think the Scottish Government agreement—to provide more information about Joint Ministerial Committee meetings—it was a useful innovation, but, when you look at the amount of information that actually is released through that, it doesn't go much further than what was already— 

15:00

Yes, and there's, potentially, some debate around that. But the actual—. The exchange of letters between the Ministers and committees there, I don't think it tells you much more than what's in the JMC communiqués in many cases, so I think you need to go quite a bit further than that, ideally.

Yes. I'm not sure that relationships are improving to the extent that we might wish for them to improve. I think there are issues around the UK Government having to fight so many fires at the same time; I think it's no more than that. But the key issue here about the balance between the roles of the different legislatures, surely that has much to do with the way that decisions that have been taken by the United Kingdom Government over the last two years to hugely reinforce relevant departments in London—we've seen thousands of new civil servants appointed in order to deliver these frameworks and this legislation, this process, but we haven't seen the same resources here in Wales or, I presume, in Scotland either. So, at least one of the reasons isn't a political reason, except that it's a decision taken by the United Kingdom Government and the United Kingdom Treasury that they're simply not going to sustain and support the devolution settlement by providing the resources required for the institutions and the Government of the United Kingdom to be able to take the decisions and to provide the necessary legislation in those legislatures to enable the devolution settlement to actually exist in practice as well as in theory.

I think Government, probably at all levels, is feeling a huge amount of strain as a result of Brexit and, yes, at Westminster, significant additional staff have been recruited. There will be, of course, Barnett consequentials where additional money is being put into preparations in areas that are devolved. So, if the Department for Environment, Food and Rural Affairs gets additional money, then that ought to be calculated through the Barnett formula.

It does, indeed, and if—

Well, that, I think—. I saw that you'd asked the First Minister about that, I think last week in your session, or in—. Anyway, there's been some public debate about it. I know that additional money has come to the Welsh Government as a result of the Brexit preparations. Whether it's sufficient, and whether they're applying the Barnett formula fairly— 

The First Minister has said it was a useful sum, I think.

Yes, I think it was £40 million, £30 million or £40 million, extra this year. Of course, across the big picture, a lot of the extra resources in Whitehall will be for non-devolved functions. If it's for immigration or Her Majesty's Revenue and Customs and so on, those things won't carry the consequentials; you'd need to look at the actual figures. And I do agree that the lack of transparency about how the Barnett formula is calculated, and the control that the Treasury has over that process, is problematic, and I'd certainly be in favour of change there.

On that last point, because we've come to the end of our session, I think I understand that the First Minister said there was £21 million for this year and £31 million for next year. But, of course, we didn't get that information, and it's only temporary, so it's very difficult. If we start looking at employing more staff—the timescales taken to employ staff, knowing the fact that they may only be employed for one year because the consequential's not guaranteed beyond that—. There are several complexities in being able to ensure we have a sufficient workforce to deliver the needs you want. But we've come to the end of our time.

Just a slight follow-up to see if the witnesses completely share Alun's view on that, because, speaking as a Conservative Member, throughout this process, I think the Welsh Government has been quite skilful in the way it's handled its inter-governmental relations. It's barked a bit, but it's been—you know, at the end of the process, when it's been in various levels of dispute, it has usually come to an agreement.

I suppose the fragility of this system—and I should say I've argued for long time that we need more robust federal mechanisms, but, I agree with you, there's no sign that we're moving in that direction—. So, where, in effect, the United Kingdom Government, often acting for England, is going to give a strong lead, there needs to be a lot of tact in how they behave within the process, doesn't there? And if they do behave in a way that is respectful of the room that needs to be left for effective devolved policies to be exercised, then this whole system could evolve and just about work. The fragility is that you only need one bad Government in Westminster that takes a very centralising approach and you'd have difficulties. But I would say, in fairness, in giving evidence, Welsh Ministers—. The First Minister, and in his previous role as finance Minister—I've always been impressed by how engaged and informed he is, and it's been very constructive, it seems to me. Professor Hunt, is that your—? Would you share the encomium that I've just given?

15:05

I think the hand that the Welsh Government have had, they've played incredibly well.

Okay, thank you. We've come to the end of our time allocation for this session. Thank you very much for your evidence this afternoon. As you know, you'll receive a copy of the transcript for any inaccuracies you can identify, please let the clerking team know as soon as possible if you spot any. So, once again, thank you for your time this afternoon.

If we move on to the next item on the agenda—

Before we move on, can I suggest that David's point there on the CLA committee—[Inaudible.]?

Yes, they've done something, but I left the committee before—

Well, we definitely put forward in the CLA committee recommendations that we should take the lessons from the Scottish Parliament and Scottish Government relations and seek to replicate them, with a reporting function and so on. Now, in terms of the Sewel convention and how it applies to regulatory scrutiny here, I think that would be certainly useful. The criticism that Akash was putting about the lack of detail in what is produced, we've heard reflected directly first-hand from Scottish Ministers—but at least they have the mechanism in place. So, it may be, as part of our deliberations when we come to what we're going to put forward, that we look at reinforcing what has been said 15 or 18 months ago by the CLA committee on that, replicating the Scottish model and seeing, actually, how we can make it better, more robust, in the Welsh context.

We'll discuss those matters, because I understand—. I think that is not an issue that has gone away from CLAC, and they are still looking at this.

3. Papurau i’w nodi
3. Papers to note

If we do our papers to note, paper 1 is correspondence from the Llywydd regarding our initial correspondence to her on the relationship the Assembly has with other institutions across Europe. She notes she will highlight beyond Europe as well. Are Members content at this point to note that, for our discussions?

Paper 2 is correspondence from the Llywydd relating to the Senedd and Elections (Wales) Bill, particularly highlighting the request as to whether we would consider the possibility of undertaking the work on that Bill. You will see from our response, which is suggested in the papers, that we understand CLAC has been preparing for this particular Bill. It is in place and almost ready to schedule itself on that. Also, as we all understand, the fragility of the current circumstances around Brexit, when things happen, the speed at which things are moving, and the tight timescales that were in that Bill, the response indicates that we believe that perhaps it would be best suited to CLAC, who have done the preparatory work on it and are ready to go ahead with it, and probably will meet the deadlines, whereas we may not be able to guarantee the deadlines as a consequence. Are Members content with that response?

Thank you. 

The third letter is from Lesley Griffiths: a note regarding the UK Fisheries Bill and the LCM, and asking us to do some work on it. Again, you will note from the papers that we do find that we understand the Climate Change, Environment and Rural Affairs Committee is looking at this and CLAC will be looking at this. So, I don't know whether we could add anything to what they're doing, but we will keep an interest in what's going on. Are Members content? Thank you.

4. Cynnig o dan Reol Sefydlog 17.42(vi) a (ix) i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
4. Motion under Standing Order 17.42(vi) and (ix) 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) a (ix).

Motion:

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

Cynigiwyd y cynnig.

Motion moved.

We move, then, into the next item on the agenda. Under Standing Order 17.42(vi), I now resolve to meet in private for the remainder of this meeting. Are Members content? 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:09.

Motion agreed.

The public part of the meeting ended at 15:09.

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