National Assembly for Wales

Welcome to this afternoon’s meeting of the Legislation, Justice and Constitution Committee. Just as a reminder, this meeting is being broadcast live on Senedd.tv and the Record of Proceedings will be published as usual. We’re operating in a hybrid format today, where we have Members both in the committee chamber and witnesses as well, but also in a virtual setting, but Standing Orders apply to all our proceedings as normal. If you can, as normal, make sure your devices are switched to silent, and we will proceed.

And we’re going to come straight to the first substantial item of today’s agenda, which is item No. 2, the scrutiny session with the First Minister. First Minister, it’s very good to have you with us; really delighted to have you here on some important areas to this committee that fall within your portfolio and wider Government issues. Glad to see with you as well, First Minister, two people who are very familiar to the committee: Piers Bisson, director of European transition, constitution and justice, and Des Clifford, director of the office of the First Minister. If you’re content, First Minister, rather than have a preamble with various statements and introductions and so on, we’ll go straight into questions, because time, I’m sure, will press against us this afternoon.

If I could begin by looking at the issue of inter-governmental relations, which has been of great interest to this committee, you’ve said that the UK Government has taken decisions over the last period that have undermined the devolution settlement, in your words, and damaged the union. Can I ask you here today in front of the committee: what is your overall assessment of the state of inter-governmental relations in the UK at this very point in time?

Diolch yn fawr, Cadeirydd. I think tonally relations are better than they were at the lowest point of the last four years. Substantively, I’m not sure that things are very different. I think, to my mind, the most striking characteristic is that, after an intense period in the inter-governmental relations field through Brexit and into the Johnson administration, things are now very quiet indeed. My impression is that this is not an area that the current UK Government now have much energy for or interest in. They are drifting to the final period of this administration and inter-governmental relations are very low down on the things in which they take an active interest.

Okay. Well, thank you for that opening summary of where you believe relationships are at the moment. And I think, from a committee perspective, all of us have been very focused on trying to see where these inter-governmental relations can be improved and whether they can work for the benefit of Wales and for the union. So, what you're saying clearly would cause us some concern, and anybody listening to this. Obviously, inter-governmental relations come into play with policy aspects, with legislation coming down the line, but also with immediate topical issues as well. It would be remiss of me, probably, not to ask: how does your assessment of the general play of inter-governmental relations reflect on something like discussions currently with Tata Steel and engagement between Welsh Government and UK Government?

Well, I would describe the picture as very mixed. Obviously, we have been concerned about Tata Steel at Port Talbot over an extended period of time. I remember talking to Prime Minister Johnson about this; I raised it directly with the current Prime Minister; I've had discussions with Michael Gove in his co-ordinating capacity; and every time it has been to urge the UK Government to engage with the necessary seriousness in the future prospects of steel making at Port Talbot. And I've done it, Chair, not simply because of the importance of jobs to Wales and in that industry, but very much from the perspective of arguing the case that an economy of the size and significance of the United Kingdom that does not have an indigenous steel-making capacity is an economy that has exposed itself, in a way that I would think would be, from a national strategic point of view, very unwise, to the vagaries of global markets.

So, we've had a series of discussions of that sort. I've always been assured by Prime Ministers and other senior Government Ministers that they take all of this very seriously. In the more recent times, however, all the discussions that have gone on that led to last Friday's announcement, the Welsh Government was never in the room when those discussions took place. I did receive a telephone call from the Chancellor of the Exchequer on Thursday evening. I was grateful for that, of course. But by then the deal is done, and the perspective that the Welsh Government might have contributed and the long history we have had of supporting the company and understanding its workforce and so on, none of that was available in the room when those discussions were taking place. 

Okay. Well, thank you for that. And I don't want to dwell on this, and I know that those discussions will continue between Governments, but, in the wider context of inter-ministerial and inter-governmental relations, it's quite an interesting topical issue, very pertinent to many of us on a constituency and Wales-wide basis, but also because of those issues around climate change and decarbonisation as well. So, that's quite interesting.

Let me, then, just ask a couple of follow-up questions before I come to James. The Counsel General appeared in front of us. One of the few times that we've seen the Counsel General, who is regularly in front of us, smile and look positive was when the review of inter-governmental relations was being first mooted and the potential of that to improve the way in which Governments work—regardless of EU withdrawal, regardless of other complicating factors or controversial areas of policy, this could be the thing that put it back on a more sensible, mature and formal setting as well. So, First Minister, do you think that review of inter-governmental relations has led to more productive relations between the four Governments of the UK? From what you're saying, it's a very mixed picture; it hasn't yet. 

Well, I think 'mixed' would have been my summary of it. We took part in that review. The Welsh Government led a series of strands within it. I was very pleased when it came to fruition. We were able to help a bit in getting it over the line in the different parts of the United Kingdom. The history since then is of it being a mixed picture. The council of Ministers, the top tier of it, has never met in the way envisaged in the agreement. That's partly because ever since the agreement we've not had an executive in Northern Ireland, so we've never had the capacity to have all four parts of the United Kingdom around the table together. There was one meeting that the new Prime Minister, as he was then, did take part in, but it had three of the four component parts, it wasn't in the same room, and we've had no meeting of it since. Then we get to the middle tier—the Finance: Interministerial Standing Committee, the finance one, has met more regularly. You will know that Rebecca Evans is on to her seventh Chief Secretary to the Treasury since becoming the finance Minister here, so thank goodness it does meet regularly, otherwise you might have missed one or two of them along the way. The other middle tier, the standing committee, has been more sporadic. There is a meeting of it planned. But if the purpose of the inter-governmental review was to create a reliable, regular rhythm to all of these things, I don't think you can say that it's yet fulfilled that. There are a few more meetings happening in this early autumn than were happening earlier in the year, but truthfully for me it goes back to the original point I made. For it to succeed, you need a UK Government that genuinely commits energy to it. The UK Government's got to show that it really wants these arrangements to work and is prepared, therefore, to energise the system. I don't think we're seeing that at the moment and I don't think we will see it this side of a general election.

Thank you, First Minister. Alun.

The First Minister might have answered the question I was going to ask in that last sentence, but I'll ask anyway to see if there's a different answer. Why do you think that is? You've always—. In the time you've been First Minister, you've always set great store on the inter-governmental relationships and the importance of getting those relationships right. I remember you discussing this during the COVID emergency, that you needed to have those conversations in place. In the period of time in the last year or so, we've had the space and the time but we haven't had the urgency to deal with particular emergencies. So, we've had the opportunity to establish that regular, reliable rhythm that you've described. Why is it, do you think, it hasn't worked?

Well, you see, I think there are hesitancies on the part of at least three of the four component parts of the United Kingdom. I think Wales is the only part, really, that unambiguously would commit to these arrangements. Our Scottish colleagues—. Let me say that my experience of our Scottish colleagues is that while they have a different political ambition, when there is an issue to be resolved in the here and now, they turn up and they commit themselves to doing so, but in the end, their political purpose is not to make the United Kingdom work better. So, there is an inevitable limitation on the extent to which they would be prepared to make the running in getting these arrangements to happen. We haven't had a Northern Ireland Executive throughout the whole of this period. That's a real loss. I really feel we miss having them there. So, there's no impetus from there. The United Kingdom Government—during the days of Boris Johnson and Liz Truss, there was no incentive for them to make these things work, because they view the United Kingdom very differently. They don't regard it as an equal partnership of four nations in a voluntary association. They very much regarded it as the UK Government being in charge and everybody else being expected to fall in line. I don't think the current Prime Minister is quite in that position, but of all the many struggles that he has, most of them as a result of the difficulty of ever creating a coherence in the group of people who stand behind him, this issue just never makes it up the list of challenges with sufficient significance for him to invest political capital in this issue when he has so many other things that it's hard for him to secure consent for from his own party.

Well, one of those areas—Adam, I'll bring you in in a moment—that we were hopeful of seeing progress on, based on the optimism originally, some time back, of Mick Antoniw, Counsel General, was on the establishment, not simply of the sub-committees and the three tiers and the Council of Ministers, but also the independent secretariat as well, which, of course, has a role within if we get to any of those last-resort issues around dispute resolution. But it isn't in place—we're 18 months on. Now, this is not casting it at your door, I know, but I wonder if you can help us with an explanation of why we have not seen the independent secretariat established. We've seen, in some of our notes and correspondence, 'summer'. [Laughter.] Are we still in the summer?

Which one? [Laughter.] Well, look, the good news is that the head of the independent secretariat has been appointed. And from our point of view, maybe even better news is that the person—. It was a competitive process, independently run, and it was a member of Welsh Government staff who succeeded in that, and is therefore now seconded to head it. So, at least we will know there'll be somebody there who understands devolution from this end of the M4. There are a further number of appointments still to be made, but the message I have is that they are in the process, and those appointments are now expected reasonably shortly.

The length of time it's taken I think is a bit of an illustration of the point we've been making so far: it is the sense of impetus behind it that has been lacking. I also think that this is a novel concept for some Whitehall colleagues. Up until now, with the old Joint Ministerial Committee arrangements, the whole of the secretariat lay in the hands of the UK Government. There was no independence in them at all, and there will be a certain nervousness, I think, amongst people used to the previous regime at how this new format may operate. They don't need to be nervous, they can look at the way that the British-Irish Council secretariat operates very successfully in that more independent way. But I think that that is also playing its part in the length of time it's taken. 

Thank you. Adam, let's come to you, and then I'll go to James. Adam. 

Diolch, Cadeirydd. Prynhawn da, Prif Weinidog, and I am sorry I cannot be there in person today. One of the important parts of the inter-governmental relations is the disputes resolution process, and the Welsh Government has said in the past it stands ready to escalate disputes where appropriate. Under what circumstances, First Minister, would the Welsh Government make full use of that process set out in the inter-governmental relations review?

Well, I suppose the most general point to make is that, for me, the circumstances would be last-resort circumstances. I don't want to have to be using dispute resolution mechanisms, and the whole of the inter-governmental relations review was about dispute avoidance. When this machinery of Government is working properly, it should be able to deal with these differences without them becoming so entrenched and difficult that only the dispute mechanism would be able to respond to them. So, my first point is that I think nobody should hurry to use this mechanism. You should be certain that you've exhausted all the other ways of resolving disputes. And then, secondly, you need to pick your ground because, whenever the disputes mechanisms is triggered, and it hasn't been triggered by anybody yet, then we will be going round this circle for the very first time. So, you want to make sure that you're on the very best ground in order to make the strongest possible case. So, there are a number of instances where the Welsh Government might have triggered the dispute resolution mechanism, and we certainly don't rule it out. You shouldn't rule it out—it's part of the new regime. But I, so far, have not been persuaded that the matters concerned have been fully exhausted in other ways, or that we have reliably identified the case that would be the best one to trigger the mechanism if the mechanism is to be triggered. Now, I'm not saying, Chair, that that moment couldn't come during the coming months, it might yet do so, but I have not been convinced yet that we've come to that moment and, when we do, I don't want it to be in a trigger-happy way. I think it needs to be very carefully deployed and where you're most confident of the case you have to make.

Okay. Since 2021, First Minister, the UK Parliament has passed legislation on nine separate occasions despite the Senedd withholding its consent. You say that the Welsh Government and you haven't been persuaded yet to use the dispute process, but do you not think, on one of those occasions, it would have been probably the best route to do to try and find a way through the problem, rather than withholding consent, because some people could say, 'It's just playing politics, withholding consent, when actually there is a mechanism there to try and address these problems'?

Well, first of all, Chair, I think the Welsh Government makes strenuous efforts, and often uphill efforts, to try to reach a point where we can get an agreement with the UK Government on Bills where the UK Parliament will legislate in a devolved area. But the answer is much easier, I think, to Mr Evans's question: where the Senedd denies consent, the UK Government should not proceed to legislate for Wales. That's the whole point of the Sewel mechanism, that we are saying to the UK Government, 'Please take Wales out of that Bill; we don't want you to legislate in this way.' The problem is that the system, the Sewel convention, has broken down at that point, and the UK Government has gone ahead and legislated despite the denial of consent.

Now, Mr Evans might say, 'Well, you should have registered a dispute then, at that point', but, actually, I don't think that would have succeeded because the Supreme Court is clear that Sewel is not justiciable; it is a political convention. The UK Government is required to satisfy itself that circumstances are not normal and therefore that it can go ahead. And if you triggered the disputes mechanism in those circumstances, all the UK Government has to do is to self-certify its own belief; there would be nothing that you could do to disprove its own conclusion. The Welsh Government has set out a series of ways in which Sewel could be codified that would make that a more realistic way of proceeding, but in the absence of a codification of Sewel, or—to my mind, much, much better—an implementation of the Gordon Brown proposals, which would put Sewel in a completely different position, triggering a disputes mechanism over a failure of the Sewel convention would be doomed to fail, and I'm not keen to have our first experience of the disputes mechanism being one where the Welsh Government triggers it knowing that we could not succeed.

You said there about codifying it, First Minister. Something that perhaps I might actually be keen on as well is codifying the Sewel convention. I was just interested in what representations you're then making to your own colleagues in Westminster, so that if a change of Government did happen after the next election, codification of the Sewel convention was put in place.

Well, I'm obviously very happy to continue to make that case with my own party colleagues. It would require a UK Government to define what it meant by 'not normally'; it would have to set out in a document the thought process it goes through in coming to that conclusion: what are the tests that it applies before it comes to that 'not normally' conclusion. It would then be obliged, in the codification that we have set out, to put that case to both the House of Commons and the House of Lords, and the parliament whose views are being overwritten would have an independent right to put its point of view to the House of Commons and the House of Lords as well, so that a legislature there looking to see whether it wanted to proceed would have both cases in front of it. I think that would reduce the number of occasions on which a UK Government overrides Sewel by itself, just by shining a light onto that process. Of course, much better, as I've said, Chair, are the Gordon Brown proposals for protected constitutional statutes and a different level of protection through a reformed House of Lords. That would give us a very different way of entrenching the Sewel convention. 

Diolch, Cadeirydd.

Diolch, James. Adam, you wanted to come in on this point.

'Here is a matter we dispute.'

'We don't recognise that there is a dispute.' So, we never got into any dispute resolution process, because they wouldn't admit it into the process. The process was not the current process, however; the process was under the old Joint Ministerial Committee process. I don't think they could refuse to admit a dispute now. That's one of the things that the independence of the dispute resolution mechanism, I think, has seen off, that refusal to allow the ball to be put into play, so we would be in a different and a better position than we were back then.

Diolch yn fawr. We're going to move ahead, but you've left us with a fascinating catch-22 there: under the previous system, the Welsh Government says, 'We dispute this', and the UK Government says, 'We don't recognise there was any dispute.' [Laughter.] Hopefully, we can move beyond this.

But anyway, the second area that we want to focus on is the approach to legislating, and, Alun, you're going to take us deep into this.

Yes. I was just thinking how elegant that would look in written form, arriving from the Cabinet Office, saying, 'We don't recognise that a dispute exists.'

But in terms of where we're going next, I'd like to just dig a bit further into the consequences, if you like, of the process where we find ourselves in terms of two legislatures legislating at the same time. But the obvious issue, an issue I keep coming back to, is that the Counsel General speaks—. Well, all the Counsels General, actually, that we've had over a number of years, have spoken with great eloquence about creating a statute book that is coherent and that is understandable, and, in the past, members of the judiciary have come here and said, 'We need a statute book that is in a better shape than it is today.' They say it in different ways, possibly. But one of the things that concerns me is that the consequence of a failure to agree on Sewel and on legislation is that legislation does reach the statute book, becomes law, with very little scrutiny about what it means for Wales.

Now, if you look at the Energy Bill, where Welsh Government recommended refusal of consent last week, and the Senedd agreed not to provide consent for that, we waited a year for Welsh Government to provide information on that—51 weeks, I think it was—in terms of the legislative consent motion, and the Minister provided an explanation, and there'll be different views about how convincing the explanation was, but, certainly, that year meant that there was no scrutiny of any potential legislation in this place. At the same time, the Building Safety Bill contained what was essentially almost an entire Bill pertaining to Wales, given the number of clauses that the Welsh Government had inserted into it, and it went straight in to Westminster, and through Westminster, without any real scrutiny. So, a Bill became law, affecting Wales, without the scrutiny of either this place or Westminster in those terms. Now, that creates a very real democratic deficit for us here. And I'm interested in your view, First Minister, about how we address those sorts of issues, in terms of both providing for legislative consent—or not, as the case may be—and then the use that this Government makes of LCMs in order to deliver legislation that isn't scrutinised by this place.

Thank you for the question, of course. Here's my response to the whole business of UK Bills being used to legislate in devolved areas. I'm going to give you three different sorts of ways that happens—two of which, I agree, lead to a democratic deficit and should be avoided; the third one, I think, is part of the constitutional settlement, and I've got fewer anxieties about that. So, the first instance is the one that we've been talking about, where the UK Government say it's going to bring forward legislation that impinges on devolved responsibilities, and the Senedd says 'no'. Well, in that case, those things should never reach the statute book—

I agree.

—and when they do, that is, I think, a clear example of a democratic deficit, because consent has been denied. And the Sewel convention should mean that, in that instance, those clauses are removed and the UK Parliament does not legislate. When they do, it creates a democratic deficit, undoubtedly.

The second instance where I think the same jeopardy arises is where the Westminster Government seeks to legislate in such haste that it is impossible for the Senedd, or the Scottish Parliament, if it's them, to do that job of deciding whether or not consent should be offered. And even if the conclusion would have been that consent would have been offered, it is not satisfactory that legislation should be completed in that rushed way so that there's simply no opportunity for proper oversight of it to be exercised. And I think that creates a democratic deficit.

But the third category, which I think is part of the devolution settlement, and where I don't have the same anxieties, is when a UK piece of legislation is brought forward where the Welsh Government believe that this would allow us to legislate more quickly and more effectively than if we were to wait for an opportunity of a Welsh-only Bill in front of the Senedd to come forward. I think those occasions are relatively rare, but they've always been there; we've used those opportunities through the whole of the period. Now, they're generally the ones where we are able to spot those opportunities earlier.

I should say this very clearly to the committee: the Welsh Government doesn't go looking for these opportunities. We're not in the position of being able to say behind the scenes to the UK Government, 'It would be really helpful if you brought forward a Bill on this.' We never have those conversations; we are always reacting to whatever they decide to do. But sometimes, in the things they decide to do, there will be an opportunity that would benefit people in Wales, and where the prospects of a Bill coming in front of the Senedd are reasonably remote. In those circumstances, I don't think we should deny ourselves that opportunity because we somehow have a belief in principle that the only time legislation should ever be made for Wales is in Wales. When we do those things, it's likely to be that there will be the longest period for the Senedd to express a view, so I think that the democratic deficit and oversight anxieties are less. So, I don't want to rule it out completely; I know Plaid Cymru do—they have a position of principle that they will always say 'no' to a legislative consent motion because they don't think things should be done that way. That's a perfectly legitimate position to take; I don't take it—I think it would deny opportunities that Wales could usefully take.

Alun, do you mind if I just bring James in? I'll bring you back then. James.

Thank you, Cadeirydd. First Minister, on that point, I do tend to agree that, where it is prudent to use the UK Government to legislate on areas of shared interests, that's probably the best way of doing it, but I'm just interested when you talk about certain UK Government departments rushing things through quickly and not engaging. Are there some departments in Westminster that are very good at engaging with the Welsh Government and the devolved nations early, and what departments in Westminster don't engage early and cause you all the problems? 

I think that is our experience. I think it's been our experience in the whole of devolution, and it hasn't mattered that much which party is in power in Westminster. Part of the Whitehall machine is just more familiar with what goes on in devolved administrations, because their responsibilities are closer to them. The Department for Environment, Food and Rural Affairs, we would normally say, is at least the department that understands the way that devolution works, because agriculture Ministers have always had to talk together and share information.

If we think of a spectrum of UK departments, there are some whose own business brings them into closer contact with devolved Governments, and they therefore tend to be better at spotting where there are devolved issues at stake and engaging with us. There are other parts of the Whitehall jungle where devolution almost never crosses their mind, because the things for which they are responsible are wholly reserved. And then, suddenly, something unusual and unexpected will crop up where they need to take an interest. They are generally starting from a very low base, and therefore it's harder to get that engagement. 

So, there is a spectrum. I don't myself want to attribute motive, as though some people are just better disposed than others. I think the explanation is much more likely to be that parts of Whitehall that need to deal with devolution all the time are better at it, and parts of Whitehall that very seldomly need to think about it turn out not to be very good at it at all. 

Thank you. Alun.

I'm grateful to you. I agree with the point that you make, First Minister, in terms of a pragmatic approach to the use of LCMs. I think opposing every LCM on principle is as bad as accepting every LCM on principle; they're two extremes, and I'm very happy for once to be sitting in the middle of the road. It doesn't happen often. But I agree with you—I think a pragmatic approach is one that has the best interests of Wales at heart. However, that pragmatism is usually exercised when an LCM provides an opportunity to do a discrete piece of legislative work, not a huge piece of work, but enables the Welsh Government to either tweak the existing statute book or to achieve something where, as you say, the volume of work wouldn't justify taking that entire Bill through. I accept that—I have no issue with that. 

However, where there is a significant and substantial amount of legislation included in a UK Bill, that is somewhat different, isn't it, because what that does then is take away the opportunity for scrutiny. And we've seen with other LCMs where, as you say, the UK Government just said, 'We're going to make these amendments in the House of Lords, but don't worry, the House of Commons hasn't got an opportunity to comment either, so you're not being singled out', and we've had that in the last six months. So, is there a question—this is really where my thinking has been moving over recent times—that the LCM process was one that was established to manage a relatively benign use of relative power? It was there to enable the UK to get its business when that was necessary, and when we felt it was the responsible thing to do, it was there to enable the Welsh Government to get its business when that was the right thing to do.

But that's not how it's being used at the moment. I thought the Minister for Climate Change was in a terrible position, actually, last week where she was saying, 'I recommend refusal of consent here, but I haven't been able to provide you with the information on that and you haven't had an opportunity to scrutinise it, because this was delivered to us last night', or whenever it was. So, it appears to me that the LCM system itself is in need of reform. Like you, I'm looking forward to a change of Government in the next 12 months or so, and I'm thinking, is there an opportunity then for an LCM to be an amendable motion, for example—an LCM to provide greater information about different clauses, an LCM that is a richer piece of legislation in itself—rather than what is essentially at the moment a memorandum with a single conclusion? 

I think those are really interesting ideas, and I'm certainly not opposed to exploring them, but I would probably want to solve the problem in a different way. Because we could reform the LCM process in the way that Alun Davies has suggested, or we could go back to respecting the purpose for which this was originally put in place.

Just to give you this one illustration, Chair: during the period of the David Cameron and Theresa May premierships—so this is not a party position—about six or seven Bills in a Queen’s Speech, as it was then, would be Bills where there was a possibility that a UK Parliament would seek to legislate in a devolved area. In other words, it was at the modest end of that programme, and it often was in the sort of area that Alun has said—technical things where legislating on matters that would apply on both sides of the border and would be subject to oversight of bodies that operated on both sides of the border made sense.

In the last Queen’s speech—King’s speech, perhaps—of the current Government, there were 27 Bills that sought to do things in devolved areas. This is not a change just in the nature of legislating. This is the consequence of muscular unionism, isn’t it? Previous Governments, including Conservative Governments, respected the devolution settlement and that was reflected in legislative programmes and consent motions. We’ve gone through a period since 2019 where we’ve had Governments whose ambition has been to roll back devolution, to see that line and to do their best to rub the line out wherever they could. So, that puts us in a very different position.

We could reform the system to recognise that new way of being, or we could try to say that this period has been a period of aberration and that the best way of dealing with it would be to return to the previous respect for the devolution settlement, where the number of instances where there would be UK Bills, particularly UK Bills with which the Senedd would not consent, would be taken back to the sort of volume that we were used to in the first 20 years or so of devolution. That would be a better resolution, for me, than reforming the whole system to take account of a way of doing things that is disrespectful of the settlement.

I don't disagree with that at all, but doesn't that tell you that the inter-governmentalism that we’ve seen over the last period is simply not working? Because inter-governmentalism—the meetings with you, the Prime Minister, the First Ministers and the rest of it, and ministerial councils—is a means of managing business, and most of that work is done by officials on a day-to-day basis, and where there is a clear inter-governmentalism culture rather than simply structure, we wouldn’t be having this conversation, because officials would be speaking to officials, there’d be agreements reached and Ministers would endorse those agreements. So, taking us back to where we started, in many ways, have we not reached a point where we do need statutory federal structures of governance that actually enable these things to happen without the personalities affecting them? We heard Liz Truss this morning blaming James Evans, in fact, for her failures in Government, and various other members of the Conservative Party.

For the record, James is shaking his head—that he wasn't being blamed this morning.

Or that he's not to blame, perhaps. But we need to have structures that act independently of personality, don't we? 

Absolutely. I entirely agree with that. My own account of this would be that for the most part of devolution we have lived with different Governments at Westminster who had a fundamental respect for the devolution settlement. Since 2019 what we have seen is that the devolution settlement was much more vulnerable than we had realised to a UK Government that didn't wish to operate in that way, that sought to row back some of the fundamentals of the devolution settlement unilaterally, despite the referendums that had been held and that endorsed it, and so on. What we need to see is a new entrenchment of the devolution settlement, so that it is not vulnerable, if I put it this way, to rogue governments taking a different view than governments over the bulk of the period of time of devolution have taken. That is where the Gordon Brown proposals would take us; they would create a very different fundamental set of arrangements that wouldn't leave us as exposed as we have been. That's what we've learnt in the last four years—that the system doesn't just need to be strengthened in terms of more powers and so on, but it needs to be entrenched in a way that doesn't allow it to be vulnerable, as we've found it to be. 

Thank you very much. I want to make sure that, before we finish this useful session with you, First Minister, we're able to go to our third topic. But, before we do that, I want to give at least 10 minutes here for Adam and James to see what other useful nuggets we can glean. So, I'm going to go to Adam first of all, and then James, and then, perhaps about 14:05 or thereabouts, we'll turn to our final area of investigation. Adam. 

Adam, I'm afraid we're losing your last words there. We had you right up until about 10 seconds ago.

Well, just a question, really, about the second element of capacity, about the skills, the resources needed within the Welsh Government to cope with the level of LCMs that are coming from Westminster, and whether that has been under review. It's quite ironic that I'm actually in Westminster at the moment and, obviously, broadband is a capacity issue from this side, as well. [Laughter.]

Thank you. Diolch. First Minister.

I've always argued that we cannot treat ourselves more favourably than we are able to treat other aspects of Welsh public life, and, in an era of austerity, that has a genuine impact on our ability to have capacity to do all the things we would like to do. That certainly is true, inevitably, in the field of legislation, particularly, picking up Adam's earlier point. You have a fixed amount of capacity, and when there are more and more UK Bills that trespass into the devolved areas, you're having to divert capacity to deal with that, to be able to come forward with LCMs and so on. So, I couldn't say for a moment that capacity is not a continuous issue for us. We're nevertheless bringing forward the most significant legislative programme of our own in front of this Senedd term. We are dealing with huge amounts of subordinate legislation, some of it in order to make sure that Bills that have been passed by the Senedd can be taken forward, sometimes having to deal with things like the revocation of EU law proposals, which, although they in the end came to a more sensible place than they started, nevertheless do have an impact on our capacity to do other things when we're not dealing with revocation of retained EU law.

Can I add half a sentence, Chair, if I may, just in case this is useful? So, capacity can be an issue in the way that the First Minister has been talking about, but insofar as some of the Sewel issues, which I think underlie Mr Price's question, I think, really, it's as much a systems failure as a capacity issue. In other words, were the UK Government to work with us in a more collaborative manner and if we were to have earlier sight of issues requiring a Sewel motion in due course, then we could work more effectively with them and prepare the ground in a more effective way. So, I think capacity, yes, can be an issue, but, actually, there's a systems issue here as well.

Okay. Thank you for very much. I'm really conscious of time now. But, James, is there anything particular you wanted to add within this section? 

In the interests of time, Chair, I think we could write to the First Minister with the questions that I've got. So, that's fine. 

James, thank you very much for that. Before we go to this final section, can I just ask you, we've increasingly been concerned as a committee over the use of framework Bills or pseudo-framework Bills or skeleton Bills, where there's less on the face of the Bill and a lot of looking to the future about regulations and consultations and things that will flow from it. Now, clearly, that causes us concern. Let me just ask you a slightly odd question. So, if you weren't that side of the table but you were this side of the table, what would you do in our position as a committee if you saw an increasing use of skeleton Bills or framework Bills? What would you do, First Minister, if you were here?

Well, I hesitate to advise, of course. If I were, I'd suggest two things, really. One is that better attention might be paid to the process by which subordinate legislation fills in the gaps in framework legislation. Is it the negative? Is it the affirmative? Is it the superaffirmative? If people are worried about framework legislation and thinking that it means it won't be scrutinised in the way that it would be if it was on the face of the Bill, then one important thing is to pay attention to the method by which subordinate legislation will be scrutinised in the future.

And the second point—and maybe this is a slightly impertinent point to make—is that if I was in your position, I would be advising colleagues that when those subordinate legislation procedures are used, they take some interest in them. Because, my experience of taking Bills through is that, at its worst—and I'm caricaturing here—it's a bit of a bidding war. The Government says the negative procedure, so somebody says, 'Oh no, no, that must be the affirmative procedure'. The Government says the affirmative procedure, and somebody wants to bid it up to the superaffirmative procedure. But when these things return to the floor, when the affirmative procedure is used, what happens? The Minister speaks, the Llywydd says, 'I have no other speakers', and we proceed to a vote. I think that undermines the arguments against framework legislation. So, if I were in your position, I would be saying to colleagues, 'We need to take this part of our responsibilities a bit more seriously'.

Right. Well, First Minister, I think you've made a rod if not for your own back, for other Ministers' backs there, if we take that instruction back. But thank you very much. That's very helpful. We like that impertinent point [Laughter.]

Now then, let's go on to our third area. We want to look at the topic of external affairs. Adam, would you be so kind as to take us into this, if you would?

Using the same spirit that I thought the Prime Minister successfully mobilised to create the Windsor framework, we ought to be able to do better on Erasmus+. Erasmus+ is available for membership for countries that are outside the European Union. There are many, many examples of that. If we're looking for a better relationship and taking advantage of some of the things that we could take advantage of—this is nothing to do with reversing Brexit, these are arrangements available to countries outside the European Union—I would look for a rapid return to membership of Erasmus+.

Creative Europe—there's something that we should have negotiated continuing membership of from the very beginning. All these dreadful problems that people who make their living as musicians or artists and things now find when they're go into the European Union—there are all sorts of hurdles, absolutely unnecessary hurdles that are there in their way that membership of Creative Europe would allow us to be able to see the back of. There's another example of where we should look for rapid improvement.

Inter-territorial co-operation programmes—I argued every time I had the opportunity, when I used to turn up to all those European negotiation Joint Ministerial Committees, that the agreement when we left the European Union should preserve the ability for the United Kingdom to take part in inter-territorial co-operation programmes of the sort that we enjoyed with the Republic of Ireland over all those years—20 years-worth of investment came to an end when we left the European Union that need not have done so.

So, I think there is quite a list of things where the trade and co-operation agreement didn't get it right, where we could put those things right. It's nothing to do with reversing Brexit, it's just making sure that we have a more sensible relationship with the European Union, taking advantage of opportunities that other countries outside the EU already manage to do. I will be looking for that list and looking for genuine and rapid progress. My disappointment is we had a moment of momentum with the Windsor framework where we could have pushed on to have made better progress than we have in recent months. 

Alun, take us on. We've just come back from some interesting discussions out in Brussels, and much of this was part of our discussions out there. But, Alun.

We had some very good meetings in Brussels as a committee. One of the things that stay in my mind was David McAllister, the Christian Democratic MEP and chair of the Parliament's foreign affairs committee, of course, telling us very clearly that the door is ajar. Now, I don't expect to bump into many colleagues on the rejoin EU march on Saturday in London, but there is, I believe, an opportunity for us to reset relationships and begin on a journey that is about removing barriers to trade and removing borders, rather than establishing further barriers between people and between businesses. And I'm interested therefore in the approach the Welsh Government is considering taking to the review of the TCA, which will be starting, of course, in 2025. I was interested as well to read Keir Starmer's interview with the Financial Times over the weekend, and the points he made there were not dissimilar to what you've said. He spoke about youth mobility and closer co-operation in energy—and those are two issues that you've discussed before—and, of course, he also discussed security, innovation and research. Security came up in our meeting, I think, with David McAllister, and myself and James Evans sat in the confirmation hearing and watched the new Belgian commissioner for innovation being grilled by the committees of the Parliament there, and she was very clear that she wanted to widen and broaden the work of the innovation programme within the EU, dependent on elections in the EU next year.

So, all of these things are happening, and I'm wondering: so where does Wales fit into all of this? The view up until now in Brussels has been, very clearly, that the review of the TCA is a technical exercise—a review of implementation, not a review of the agreement—but, if there is a new UK Government and there is a new tone and a new attitude and a new cultural approach, as well as a political approach, then it appears to me that, in Brussels, there will be an opportunity for a far more positive approach to our relationships and to broadening and deepening those relationships again.

Well, Chair, the Welsh Government’s approach in the immediate run is, as I said, to do everything we can to continue to benefit from the investment we have made over an extended period in having close and productive relationships with our European Union colleagues. We do that by bilateral contact with our key regions—Flanders, the Basque Country, Brittany and so on—we do it by membership of multilateral regional arrangements; the Conference of Peripheral Maritime Regions was here in Cardiff earlier in the summer. We continue to be members of the Vanguard Initiative—we lead the Vanguard Initiative, indeed—we are active players in the Europe-wide network of lesser-used languages. We invest in those opportunities to continue to meet with, talk with, have good relations with other regional tiers of Government across the European Union.

So, I feel like we have recognised that, post Brexit, we have to do more; we have to work harder to make sure that those doors are kept open and we’ll continue to do that. If there is an opportunity for a more fundamental rethink of the relationship between the United Kingdom and the European Union, then, for me, it would start with economics. We’ve all got our theories as to why the United Kingdom voted in the way that it did; I myself never believed that people were voting for a more distant economic relationship. People may have been less comfortable with the idea of an ever-closer union and with the sort of political integration of the European Union, but I don’t think anybody was arguing for greater barriers to trade, and yet that is certainly what we now have, and it has a very bad impact on Welsh businesses every day.

So, my starting point would be a bit of the sort we saw with Keir Starmer setting out in the Financial Times today: to recreate an economic relationship that works for both sides. Our biggest, most important market: we ought to be supporting Welsh businesses by removing trade barriers, not erecting them, and, if we continue on the current path of the TCA, a whole load more barriers are about to be erected. We know this journey is not over, and we really could do to have it reversed, and then you create—as you said, Alun—a different atmosphere, and the atmosphere will be very important in being able to reopen some of those doors that, as I say, are available to countries outside the European Union, and where there will be real advantages to Wales.

I’m aware of time. It might be useful, First Minister, if perhaps you could write to us with some preliminary views of a potential Welsh Government starting position, shall we say, because these matters need to be discussed and we've got opportunities to do that in the next 12 months or so, on the TCA and Wales's current representation within those structures. I and the Chair have attended the Parliamentary Partnership Assembly, with mixed, shall we say, different experiences at different times. But it would be useful if we could understand the approach that the Welsh Government is taking to the current representation of Wales within those structures and where the Government's emerging priorities may be.

That would be really helpful. I don't know if you want to at this stage; we've only got a few minutes remaining. But whether you agree with those people who have said that what we need now is actually a reset in the strategy for engagement with the EU, setting out the priorities—do you think that is important? We're currently undertaking our inquiry, and these are views that have been put to us, that we need a clear set of priorities.

I don't agree with it, Chair. I think I've articulated to you this afternoon what the priorities are. They're set out in our international relations strategy, and I've explained some of the practical ways in which we've taken that forward. I could have pointed to the retention of the office in Brussels. I could have pointed to the appointment of Derek Vaughan and the particular part that he plays in making sure that parliamentary relations are kept going. I think I can articulate for you what the strategy is, and I can show you how we're making it happen. There will be a refresh of the international relations strategy before the end of this Senedd term, and there may be opportunities to make the European dimension of that a bit more explicit. But I'm not keen to distract the attention of people busy trying to do things into writing more strategy documents.

That's fine. Alun.

I think we should say clearly on the record that the work of Derek Vaughan is greatly appreciated by partners across in Brussels, and certainly the role and place of the Welsh Government was something that I think many of the people we met commented very positively on. It's very clear for people who are working within the institutions and in the Schuman sort of area, in the European Parliament and Council and elsewhere, that the work of Derek Vaughan and the work of Welsh Government is valued and appreciated and very visible as well. 

Yes, indeed, indeed. First Minister, we're coming rapidly—. I agree entirely and we heard that repeatedly out there. We're coming rapidly to the close, and I think, if you don't mind, we won't overwhelm you but we will write with some other sometimes technical issues that you could help us with. But I wonder—. One of the interesting things we've come across now is, when you look at things such as the agreement between the UK and Switzerland on professional qualifications, we're now in the situation where we're in a position of implementing international obligations using powers in UK Bills for which the Senedd has withheld consent. We're into this strange constitutional maelstrom again. I mean, with things like this, how do we resolve these? Is there a way to resolve them under the current context of UK inter-govermental discussions?

Well, I don't think there is a way of resolving them in principle, because here was a piece of legislation that the Senedd denied consent on two separate occasions, where I could see no compelling case for the United Kingdom insisting on legislating on our behalf. I don't see where the Sewel convention could be overridden in it. And yet we have this impasse now where we are going to be using powers that we sought not to have in the first place. In a pragmatic way, though, while I can't resolve it in principle, I guess, in a sheer pragmatic way, we will use those powers when we think they are in the interests of Wales. And we've been here before, Chair, haven't we? We've had to navigate some of these things in the past, if you think of the social fund, which we didn't want, which we were clear with the UK Government should remain as part of the fabric of the welfare state, but where the then Chancellor, George Osborne, insisted that it be made our responsibility and with only some of the money to discharge it. Now, we could have said, on that day, 'Well, we won't run the social fund—we don't want it. We've made it clear we don't want it, and we just won't do it.' But you think of those thousands of people—thousands and thousands of people—who have benefitted from the discretionary assistance fund in the decade, now, that it's been there, and playing an even more important part in people's lives a decade into austerity. So, while the principle we couldn't reconcile, in the end, we exercised the new powers we had, and I think we were right to do so. And I expect we will inevitably try and tread the same relatively pragmatic pathway in relation to the Swiss Bill that you've mentioned, or the Swiss agreement that you mentioned.

Thank you very much. Thank you very much indeed. It's been a very good and thorough session. We will write to you, perhaps, with some other questions, and, of course, we'll send you the transcript as well, just for you to check through for accuracy. But, First Minister, and your colleagues, thank you very much indeed for the time you've spent with us today. It will help us not only with our inquiry, but also it's been a good opportunity to test the current temperature of wider inter-governmental relations, and also how things are going within the EU as well. So, thank you very much.

We will take a short intermission now, to allow the First Minister and his colleagues to leave us, and while we reset some of the positions here within the committee chamber.

Croeso nôl. Welcome back, everybody. We've just returned into public session now after our evidence session with the First Minister earlier. So, we now return to our normal business, and the first on that schedule of business is item 3, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, which we have previously considered. And we have a couple of items here, the first of which is item 3.1, SL(6)299, the Seed (Equivalence) (Amendment) (Wales) Regulations 2022. This instrument, we had at our meeting on 9 January, and we laid our report the same day. We had a Welsh Government response to our report, which we considered in our meeting on 16 January. So, I just invite Members to note the further response there received from Welsh Government. Nothing particular to note on that, no, from a legal perspective, so if you're happy to note that.

We can then turn to item 3.2, SL(6)370, the Traffic Signs (Amendment) (Wales) Regulations and General Directions 2023. This instrument, we considered at our meeting last week and we laid our report the same day. And, again, just inviting Members to note the Welsh Government response to the report. There's nothing from a legal perspective that we need to pick up.

Another helpful response.

Helpful response. There we are. We're happy to note that? We are. Good. 

We will go on then to item 4, our regular item, notifications and correspondence under the inter-institutional relations agreement, and the first item on this, of three, is item 4.1. We have a written statement and correspondence from the Minister for Economy in respect of the Interministerial Group on UK-EU Relations. So, I'm asking Members to note the correspondence relating to a meeting of that group, which took place on 26 June. The Minister informs us that the meeting was held in preparation for the subsequent UK-EU meeting of the Withdrawal Agreement Joint Committee, held on 3 July, which he did not attend. The Minister confirms that the subsequent joint committee meeting adopted two formal decisions on sanitary and phytosanitary measures and medicines to implement the Windsor framework. The Minister also tells us that the next meeting of the Interministerial Group on UK-EU Relations was scheduled to take place on 11 September.

Item 4.2, we have correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd telling us of her intention to consent to the UK Government making and laying the Plant Protection Products (Miscellaneous Amendments) Regulations 2023. The purpose of these regulations is to temporarily extend the transitional provisions put in place through the EU exit legislation in relation to seed treatments and plant protection products, in order to enable a sufficient supply of treated seed and plant protection products on the GB market. The Minister states that

'Although the Welsh Government’s general principle is that the law relating to devolved matters should be made and amended in Wales, on this occasion, it is considered appropriate for the UK Government to legislate on a GB-wide basis.'

So, if you're happy to note that, and we can return to any of these items in private session, of course.

Item 4.3, then, we have correspondence from the Minister for Climate Change in relation to the Interministerial Group for Net Zero, Energy and Climate Change. The Minister informs us that a virtual meeting was scheduled to take place on 14 September, and that the meeting would focus on the comments from Chris Stark, the chief executive of the Climate Change Committee, and heat decarbonisation also would be on the agenda. The Minister confirms that the group intends to publish a joint communiqué following that meeting, which she will publish in a written statement in due course. Are we happy to note that correspondence for now? We are.

So, we'll move on, then, to the papers to note. The first of these is item 5.1. We have several items here. It's correspondence from the Deputy Minister for Mental Health and Well-being in relation to the proposals to support a healthier food environment in Wales. In the letter, the Minister outlines her response to the committee's request for further information, and clarification on issues, including whether the United Kingdom Internal Market Act 2020, the Retained EU Law (Revocation and Reform) Act 2023, and common frameworks may have an impact on the effectiveness of these proposals. Colleagues, if you're happy, I'll go through these items of correspondence, and please stop me, if you need to, as we go.

Item 5.2, we have correspondence from the Counsel General and Minister for the Constitution, in which he responds to questions from the committee in relation to the Retained EU Law (Revocation and Reform) Act. 

Item 5.3, we have correspondence from the Minister for Education and the Welsh Language to the Children, Young People, and Education Committee in relation to the Welsh Government's elective home education guidance. Members will recall that we noted that letter from the committee to the Minister in our meeting on 11 September.

Item 5.4, we have correspondence from the Minister for Climate Change to the Climate Change, Environment, and Infrastructure Committee, in which she responds to the committee's questions regarding the implications of the Retained EU Law (Revocation and Reform) Act 2023 on environmental law in Wales.

Finally in this section, item 5.5, I invite you to note a written submission we've received in relation the UK-EU governance inquiry we're undertaking, by Mr. Chesnais-Girard, the chair of the Committee of the Regions-UK Contact Group, which Alun and Adam, of course, are both members of. So, if you're happy to note that, colleagues, we can return to any of those items, obviously, in our private discussion.

Can I ask whether you're happy, under Standing Order 17.42, to resolve to exclude the public for the remainder of the meeting, and we'll go into private session? We are. So, we'll move into private session, please.