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Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

12/03/2018

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd AM
David Melding AM
Mandy Jones AM
Mick Antoniw AM Cadeirydd y Pwyllgor
Committee Chair

Y rhai eraill a oedd yn bresennol

Others in Attendance

Dr Robert Parry Llywodraeth Cymru
Welsh Government
Mark Drakeford AM Ysgrifennydd y Cabinet dros Gyllid
Cabinet Secretary for Finance
Rhys Davies Llywodraeth Cymru
Welsh Government

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Alys Thomas Ymchwilydd
Researcher
Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Lisa Salkeld Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Ruth Hatton Dirprwy Glerc
Deputy Clerk
Sarah Sargent Ail Glerc
Second Clerk

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

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

Dechreuodd y cyfarfod am 11:00.

The meeting began at 11:00.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datganiadau o fuddiant
1. Introduction, apologies, substitutions and declarations of interest

Okay. I open this meeting of the Constitutional and Legislative Affairs Committee, starting with item 1. We have full attendance here, so there are no apologies. Are there any declarations of interest? If there are none, just some handling arrangements: in the event of a fire alarm, Members should leave the room via the marked fire exits and follow instructions from the ushers and staff. There is no test forecast for today.

The National Assembly for Wales operates through the mediums of the Welsh and English languages. Headphones are provided for instantaneous translation and the hard of hearing. Do not touch any of the buttons on the microphones as this can disable the system. Interpretation is available on channel 1 and verbatim on channel 2.

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

We move straight on to item 2, instruments that raise no reporting issues under Standing Orders 21.2 or 21.3.

Paper 1, affirmative resolution instruments, which are the Welsh Language Standards (No. 7) Regulations 2018. Are there any comments on that item? If not, it can be noted and the report laid before the Assembly.

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

Item 3, instruments that raise issues to be reported to the Assembly under Standing Orders 21.2 or 21.3. Negative resolution instruments. The Education (Student Support) (Wales) Regulations 2018. You have before you the regulations, explanatory memorandum and the report. These regulations provide the basis for the system of financial support for students who are ordinarily resident in Wales taking designated higher education courses in respect of academic years beginning on or after 1 August 2018—support including areas of tuition fee loans, maintenance grants and maintenance loans. I just refer first of all to the Assembly lawyers. Any comments?

So, these regulations basically implement the recommendations of Professor Diamond in his independent review of higher education. They've got several reporting points. There are three technical reporting points and a merits reporting point. The merits reporting point is simply to bring them to the attention of the Assembly because they give rise to issues of public policy likely to be of interest, in that it's moving from the current tuition fee grant basis to a new basis of tuition fee loans, maintenance grants and maintenance loans.

On the three technical points, the first two are fairly straightforward. Regulation 44 provides for a number of bodies, and there's no definition of an NHS foundation trust. We feel it would be much clearer if that term was defined, and it has been used in other legislation—the Social Services and Well-being (Wales) Act 2014 and the Additional Learning Needs and Education Tribunal (Wales) Act 2018 are just two examples.

Sorry, can I clarify what you're saying? There aren't any NHS foundation trusts in Wales. Or is this in England and Wales stuff?

This is just for Wales, but it's for futureproofing, I guess, to make it clear. All the other bodies that are referred to in that regulation are defined by reference to something, but there's no definition at all.

—that we might at some stage in the future possibly—

Right, okay. We take the anomaly on the basis that the policy's against such things, so why have we actually included it there to cover something that doesn't exist—

I guess it's included in other recent legislation with the additional learning needs—

So, it's just for consistency with other legislation then.

Yes. But we haven't had a Government response on that as yet.

Sorry. The second technical point is an inconsistency between the English and Welsh texts, where there's reference in the Schedule to loans or payments made by the Higher Education Funding Council for Wales in the Welsh text, but in the English text it's just loans or payments made, so it's not similarly limited in that way.

And the third point is in connection with an age limit that is put on maintenance loans and Oxbridge college fee loans. There's an age limit that you have to be under 60 on the first day of the academic year in which the course starts to apply for either a maintenance loan—

—or an Oxbridge college fee loan. Potentially, that's discrimination and raises an issue under the convention, but as the committee is aware, if it can be justified, then there won't be any discrimination. The difficulty with the explanatory memorandum is that there's no information in there at all as to why 60 has been put in there for a cut-off point. So, we're just suggesting that the committee writes to the Welsh Government asking four questions, which are at the end of page 2 of the report, asking them to justify why they've had 60 as a cut-off date. I think it's an approach that the committee has used previously on some other student support regulations.

11:05

I don't know, do we want to be stronger and just say, clearly, at the moment they're deficient because this is not addressed in the explanatory memorandum? I mean, human rights points are not casual add-ons if you think about it.

Yes, that's an important point, isn't it? I agree with David; I think we should be very specific. It is also setting the custom and practice in terms of these matters, isn't it? So, we'll adopt that approach. Okay. Were there any other matters that you wanted to refer to?

No. Are there any other comments on that, other than the one that David has raised? Okay. So, that can be noted, and with those particular actions.

We then move on to the next item, which is the Proceeds of Crime Act 2002 (References to Welsh Revenue Authority Financial Investigators) Order 2018. You have there the regulations, the explanatory memorandum and the report. The Order provides that references to accredited financial investigators in the Proceeds of Crime Act 2002 are to be read as references to accredited financial investigators who are members of the staff of the Welsh Revenue Authority. So, it's basically creating comparative powers for the WRA. Are there any comments from the lawyers on this?

Just to note that this Order gives the WRA powers that can be exercised under the Proceeds of Crime Act 2002. For example, they can apply for a restraint order and seize property to which the restraint order applies. And again, like last week, we've noticed that the explanatory memorandum says that the Welsh Revenue Authority must comply with statutory codes of practice—the case codes—but, again, our understanding is that the WRA will only have to have regard to those codes.

And, of course, we took that up in the last meeting, so that's been dealt with. Are there any comments? If not, then we'll move on to the next item.

The next item is the Jam and Similar Products (Wales) Regulations 2018. I was going to say that I was going to preserve my position on that, but—[Interruption.] Okay, so you have before you the regulations, the explanatory memorandum and report. These are regulations that apply in relation to Wales, providing for the continuing implementation of EC council directives relating to fruit jams, jellies, marmalades, sweetened chestnut purée and so on and so forth, and they revoke and replace the Jam and Similar Products (Wales) Regulations 2004. There are some comments from the lawyers on this.

Yes, the merits point raised highlights the complexity of legislation these days. As the Welsh Government says in its response, the text of the Food Safety Act 1990 itself is not being changed. Rather, the Food Safety Act 1990 is being applied in a different way for the purposes of setting standards in respect of jam and similar products. But there is a heading in the regulations that says,

'Application and modifications of provisions of the Act', 

which does sound like the Food Safety Act 1990 is itself being modified, and in this case the modification could cause confusion. It's a modification that creates a criminal offence. So, the real merits point is that legislation is getting very complicated and intricate, and it's a problem that's getting worse day by day.

Yes, there are, in front of you, the Government responses to the draft report on the Jam and Similar Products (Wales) Regulations 2018. Have you all got those in front of you?

Yes. Can I just clarify: what's the criminal offence in jam making?

I will find out.

Sorry. I didn't realise emotions could run so high.

Yes. Is it because the Scots want to do something different?

11:10

So, it's anyone failing to comply with regulations 4 to 8 of the regulations. Regulations 4 to 8 set rules around using the name 'jam' or indication of the kinds of fruits used, or the fruit content indication. If any of those are misleading or wrong, then it is an offence.

Okay. Any further comments on this, or on the note that's been provided?

Content with the legal explanation offered, thank you.

Okay. We then move on to affirmative resolution instruments: the Agricultural Sector (Wales) Act 2014. Again, the regulations, the explanatory memorandum and the report are before you, and the effect of section 41 of the Agricultural Sector (Wales) Act 2014 is that the Act lapses on 30 July 2018 unless an Order is made by the Welsh Ministers providing for it to continue, and the Order is such an Order providing for the Act to continue. Any—?

I think that that was the whole point to raise: bringing it to the attention of the committee.

4. Papur i’w nodi
4. Paper to note

Okay. I have some papers to note under item 4: a letter from the Leader of the House and Chief Whip. That relates to the amount of subordinate legislation that we have raised. Any comments on that?

I suppose we should be grateful for small mercies—that's 200 fewer SIs than, perhaps, we were expecting. I mean, it's still a heck of a job.

Yes. I mean, it's, what, 4—? Sorry. Do you have any—?

Yes. On the numbers: the letter says the Welsh Government has identified 400 pieces of EU-related instruments that will need to be corrected. Twenty of those will need their own individual SI to correct it, and I think the other 380 may be corrected in what they call amalgamated instruments. So, if we were to say, on average, that each amalgamated instrument would correct five of those instruments, you'd need 74, I think, maybe, SIs. So, add those 74 to the 20 and we'd end up with less than 100 SIs under the European Union (Withdrawal) Bill.

And there is reference, isn't there, that there may be a need for some primary legislation as well, but it's not indicated to what extent, just that it's a possibility. And, I suppose, hopefully, it will only be a small number, but we'll have to wait and see what that is, and, in particular, why, as well. Okay. Are there any further comments on that?

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

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o’r cyfarfod ar gyfer eitemau 5.1 ac 5.2 yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from the meeting for items 5.1 and 5.2 in accordance with Standing Order 17.42 (vi).

Cynigiwyd y cynnig.

Motion moved.

If not, then, we move on to item 5, and a motion under Standing Order 17.42 to resolve to meet in private. Is that agreed?

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 11:13.

Motion agreed.

The public part of the meeting ended at 11:13.

11:35

Ailymgynullodd y pwyllgor yn gyhoeddus am 11:35.

The committee reconvened in public at 11:35.

6. Bil Cyfraith sy'n Deillio o'r Undeb Ewropeaidd (Cymru) Sesiwn dystiolaeth
6. Law Derived from the European Union (Wales) Bill: Evidence session

Reconvening the meeting of the Constitutional and Legislative Affairs Committee. Welcome to the committee, Cabinet Secretary—Mark Drakeford. Do you want to introduce your officials for the record?

Thank you, Chair. So, I have with me today Rhys Davies, who is a member of the legal services team working on the Bill, and Rob Parry who has policy responsibility for it.

Okay, thank you for that. We know we're obviously working within very short time frames so thank you for attending promptly so that we can go through the scrutiny process. If I can just perhaps open it up and just ask you firstly why we need this Bill and why it needs to be an emergency Bill.

Well, thank you, Chair. So, the Bill is needed because we have, to date, failed to negotiate a satisfactory outcome with the UK Government in relation to its own withdrawal Bill, and that is a matter of real frustration, given that we share the objectives of the European Union (Withdrawal) Bill: we all agree of the need for an orderly transfer of EU law into domestic law. But from the point of view of the Welsh Government, that has to be done in a way that respects the devolution settlement, and from the very outset we've had to point out to the UK Government that the Bill as introduced, clause 11 in particular, failed to do that.

Now, we have made this point to the UK Government now for over a year. As it happens, I met David Davis, the Secretary of State for Exiting the European Union, on 1 March last year, in his office in Downing Street, and I said to him then that I was baffled by the UK Government's apparent wish to have a fight over something where no fight was necessary and to be turning friends into enemies in a way that I thought was in nobody's interest. We worked over the summer with the UK Government, and in September, together with the Scottish Government, we laid amendments to the Bill in the House of Commons, which we believe would put right the anomalies that it currently contains.

In December, the UK Government gave a commitment on the floor of the House of Commons to bringing forward amendments to the Bill. So, by then, they had recognised themselves that the Bill, as currently drafted, is defective in this area, and they said in December that they would bring forward amendments in the House of Commons at Report Stage. In the event, they were unable to do that, and here we are in March and we're still to see such an amendment. Now, we believe that an amendment might be imminent, but based on discussions to date, the amendment is unlikely to do all the things that we think are necessary. If this were to mean that the National Assembly were unable to provide legislative consent to the UK withdrawal Bill, then we think there is an obligation on the Government to fill the lacuna that would emerge as a result, because if that Bill does not apply to Wales, then there will be significant parts of EU law today that would not have been transferred in an orderly fashion onto the statute book, and that's what the continuity Bill aims to do. That's why it's needed, because if we fail to reach an agreement, we cannot, in any responsible way, allow simply for there to be a gap, and this Bill fills a gap.

It is still our second choice—I say it every time, I want to say it again today. I was in London last week, the First Minister will be with the Prime Minister and Nicola Sturgeon, the Scottish First Minister, on Wednesday. We continue to take every opportunity to try and reach an agreed amendment to the withdrawal Bill that could be put in the House of Lords and that would allow us to come to this Assembly and say that legislative consent to the withdrawal Bill could go ahead. In that case, this Bill will not be necessary, but we're not at that point yet, and that's why it's in front of the Assembly.

Why is it an emergency Bill? Because I think we have offered every opportunity to the UK Government to make the necessary changes to its Bill. We've given them every bit of time that we could, and we've left the introduction of the Law Derived from the European Union (Wales) Bill to the last possible moment, but that moment has now arrived. Implementation of the Bill will require a substantial—indeed, a wholly unprecedented—volume of legislative action on the part of the Welsh Ministers and the National Assembly. The limited time left between now and exit day means that the application of the normal Bill procedure would defeat its own object, by leaving too little time for implementation once it had passed, hence the need to bring it in front of the Assembly on an emergency Bill basis.

11:40

Well, thank you for that. One of the—. I mean, we're obviously in very complex constitutional areas, and, of course, we have the withdrawal Bill still going through the Westminster process, and this Bill will be coming before the—. The continuity Bill—I'll call it that for simplicity—will be coming before the Assembly. How will that work, though? If legislative consent is not given, if an agreement cannot be reached, on clause 11 in particular, nevertheless the withdrawal Bill is still required because, without the withdrawal Bill, we do not effectively repeal the 1972 Act, and, of course, that then has significant implications for this Bill standing alone in its own right. How will that conflict work out?

Well, Chair, the approach taken in our Bill has been formed by the content of the EU withdrawal Bill at UK level, and our Bill is designed to work alongside the EU withdrawal Bill, and therefore it's broadly aligned with the approach taken in that Bill. In the circumstances that you describe, I would expect Welsh Government officials and UK Government officials to work collaboratively to ensure that both Bills are implemented effectively and successfully. It's in all our interests, because we are both committed to the same objective: continuity, certainty and stability.

We don't believe that our Bill creates a necessity for amendments to the EU withdrawal Bill, and we are certainly ready to work with the UK Government to assist their understanding of the relationship between the two Bills. So, we've designed our Bill very deliberately to allow that to happen. It will require a will on both sides to make sure that the two Bills can play their separate parts. There will be parts of the UK Bill that will still be relevant to Wales. There may still be things that we would want to see happen for Wales, which were of an uncontentious nature, that we would be content for that Bill to be used to see through onto the statute book on our behalf. Our Bill is absolutely not about just trying to do everything for ourselves. But where those things, where the current UK Bill is not an adequate vehicle, because it doesn't respect the devolution settlement, we would use our Bill to make good those gaps.

Okay. Well, thank you for that full answer. If we could move on to some of the issues to do with legislative competence—this is obviously a major part of it—and I'll pass those on to David Melding, who has questions there.

It is my intention also, Chair, with your indulgence, obviously, to just probe some of those issues in terms of the LCM and the need for an emergency Bill. But I do think it's important that we clarify this issue of competence. Can you confirm that—in your opinion, anyway—this Bill would be within competence?

Yes, Chair. It's incumbent on a Minister bringing forward a Bill to have explored the issue of competence in advance, and the fact that the Bill has been brought forward to the floor of the Assembly—you can take it from that that I am confident that the Bill is within the legislative competence of the National Assembly.

I think it's important that we all note at this stage that the Presiding Officer here has also given a determination that the Bill is in competence. However, the Scottish Presiding Officer ruled that the Scottish Bill as introduced is not within competence. Have you reflected on—? There was quite a full reasoning given for that, which I think is available publicly. Have you reflected on that? Why, in your view, does that not change your opinion?

11:45

Yes, I have, Chair, of course. Obviously, it is not for me to speak for the Scottish Presiding Officer, but I've read very carefully what he had to say, and I've read very carefully what the Lord Advocate had to say as well, which I must say I thought was a particularly lucid set of arguments explaining why, in his view, the Scottish Bill was within competence and taking head-on the issue that the Presiding Officer in Scotland raised about competence in advance of the fact.

So, our Bill is very carefully drafted to deal directly with that issue. It's drafted on the basis that it will have been passed and will have received Royal Assent before EU exit. The body of EU-derived Welsh law, as defined by the Bill, cannot, in our Bill, have any effect until EU law ceases to apply in the United Kingdom. The regulation-making powers conferred on the Welsh Ministers that would enable modifications to be made to EU law cannot be exercised to make provisions that would have any legal effect prior to the date of EU exit. 

Of course, once the United Kingdom has left the European Union, the existing restrictions that prevent the Assembly and the Welsh Ministers from acting incompatibly with EU law will no longer apply. On that basis, there would be no point in time when this Bill would give rise to any incompatibility with EU law. While we're bound by it, we remain bound by it, and nothing that we can do to modify it takes place until we are the other side of the European Union. Therefore, on the specific issues raised by the Presiding Officer of the Scottish Parliament, I believe that this Bill is firmly in competence.

Given the ruling that the Presiding Officer made in Scotland, do you think it's likely that the Scottish Bill and then, almost inevitably, any Welsh Bill that's passed will be referred to the Supreme Court?

Well, Chair, I don't know that I can speculate in that way. I think it's sensible to recognise that the Scottish Presiding Officer's judgment will be a material fact in how these Bills are viewed in the future. So, in that sense, I agree with the general point that Mr Melding is making.

Whether it leads to Supreme Court referrals I think is a more specific point, which I don't think I can give a view on.

I'll come to the need for an emergency Bill. We have a very clear right, in terms of the LCM process, to agree or to disagree with the EU withdrawal Bill. In what sense is this going to be a better check? I have to say that the process you've then tried to describe if both of these Bills, the EU withdrawal Bill and our version, become law—you'd have to negotiate. It seems to me that it takes us back to precisely the situation we're in with an LCM.

Well, I don't think I've argued that it is a better check, Chair. What I've said is that if the National Assembly chooses to use the check of an LCM, then we have to prepare for the consequences of that. The consequences of an LCM that was refused by the Assembly, we have to assume, would be that aspects of the Bill—the UK Bill—would not apply in Wales, otherwise what's the point of asking for our consent? In that case, we have to make provision for the orderly transfer into Welsh law of those aspects of EU law that we could not rely upon the UK Bill to do on our behalf. That's the case for the Bill—it's not that it's a better check in the system, it's that it is a necessary responsible response to the possibility that we might yet be in a position where we are unable as a Government to recommend to the Assembly, and for the Assembly then to consider, whether legislative consent to the UK Bill can be provided.

11:50

But if an LCM is not granted, here and in Scotland, we're in constitutional crisis. It just seems pedantic to go through all these scenarios where we still pass our own Bill and have the negotiations, and, presumably, we will come to appropriate agreement. Doesn't it undermine the full force of an LCM if you provide this sort of scenario of an alternative?

Well, I think I would take exactly the opposite point of view, Chair. I think, if the Assembly faced a choice where denial of an LCM would be to create a huge lacuna in the law as far as Wales is concerned, there may be Assembly Members who would feel that was not a price that they would be prepared to pay. They can now make an LCM decision confident in the knowledge that, if they decide that the UK Bill is not fit to be supported, there is another Bill that will fill the gap that that would create. So, in that sense, I think it reinforces the LCM process, because I think it allows people to make that decision without having the sword of Damocles hanging over them, that, if they were to do that, they would create, not a constitutional crisis here, but a sort of legislative gap that would lead to very considerable uncertainty for Welsh businesses and public services.

Can I just ask—? Dai Lloyd wanted to come in on that point.

Jest i gadarnhau, yn y trafodaethau rydych chi wedi'u cael efo San Steffan, pa garantî sydd yna i ni yn fan hyn, os ydym ni'n pleidleisio i wrthod cydsyniad deddfwriaethol yn y fan hyn, fod San Steffan yn mynd i wrando ar y penderfyniad yna a ddim jest yn mynd i wthio'r Bil ymadael trwodd ta beth? A ydych chi wedi cael unrhyw garantî, i ddilyn y cwestiwn—hynny yw, os ydym ni'n pleidleisio yn erbyn cydsyniad deddfwriaethol yn fan fyn—fod San Steffan yn mynd i wrando yn y lle cyntaf?

Just to confirm, in the discussions that you've had with Westminster, what guarantee is there for us here, if we vote to reject an LCM in this place, that Westminster is going to listen to that decision and isn't just going to push the withdrawal Bill through regardless? Have you had any guarantee, to follow on from that question, if we vote against legislative consent here, that Westminster's going to listen?

Wel, nid ydw i wedi clywed dim byd rydw i'n gallu ei ddisgrifio fel garantî, Cadeirydd.

Well, I've not heard anything that I can describe as a guarantee, Chair.

But I think we have to go forward on this basis: the UK Government has never overridden an LCM where it had decided in the first place that an LCM was necessary. It has pushed past an LCM, but only when it had said from the very beginning that it didn't think an LCM was required. So, I think we have to proceed on the basis that, having asked, having itself said that this Bill requires the legislative consent of both the Scottish Parliament and the Welsh Assembly, the UK Government is bound to take that seriously.

Here we agree. It's a dramatic moment when an LCM is—[Inaudible.]—a foundational constitutional matter, is denied. That seems to me—the full dignity of the process, really, is at that point. Your argument for why you need a Welsh Bill I find ingenious but unconvincing, if I could be slightly rude to you, which I dislike, because I think you are a prime thinker in terms of the Government's approach here, and I have no doubt that you do want to see British governance strengthened as a result of our exit from the EU.

But can I just finally say, for good or ill, and we all have our firm views on that, Britain, the state, the United Kingdom, is withdrawing from the European Union, and it seems that's how it should withdraw, with UK legislation, not to have the home nations separately withdrawing with their legislation. And your approach is just muddying the waters isn't it? Where we need clarity, you are now going to bring confusion, both to the status of any Bill and how effective it would be in a climate where we're in a constitutional crisis following an LCM being rejected.

Well, Chair, it's because our starting point has been quite close to what David Melding said at the beginning of that question that we have argued all the way along that our preferred option is to see the UK Bill put in a state that we could support it. Because we agree that that would be a preferable way of resolving these matters. So, in some ways, I start from the same place as him. We then get to the next question, which is, 'What if we can't secure agreement?' I think his question came quite close to implying that if we can't reach agreement we have to shrug our shoulders and go along with what the UK Bill is prepared to offer us, because that's a preferable solution in the end. What I can't agree to, and we've said this so emphatically and from the very beginning—I can't agree to a Bill that rides roughshod over the powers of the National Assembly for Wales, that takes away from the National Assembly for Wales responsibilities that it has had since 1999, that does so without our consent, that does so without being able to tell us how long those powers would be taken away from the National Assembly, that cannot describe the process by which those powers will be returned to the National Assembly, and offers no guarantees that UK Ministers, during the time that these powers are in their hands, not ours, would have done all sorts of things with them that meant that by the time they were returned to us they would not be the same suite of powers that we have had up until now. Because I think that those things are fundamental objections, I feel we have to bring forward this Bill. 

Let me say to David Melding, because he also is a very thoughtful contributor to these discussions, the second reason why I think this is worth the attention that we have focused on it and the hours that we have spent on it is that, as well as what the Bill itself does, in some ways, it is a precedent-setting Bill for the way that the United Kingdom will operate the other side of the European Union. Up until now, we've had the responsibilities here, we've chosen to exercise them through the rule book that the EU has laid down, and that's been a common rule book across the United Kingdom that we've all been able to abide by. How are we to operate as a United Kingdom on the other side of the European Union when that rule book isn't there? Well, the precedent created by the UK's Bill is that, if we hit any difficulties, the way that the United Kingdom will operate will be by the UK Government sweeping everything off the table and into its own lap. I just don't think that that is in the interests of the United Kingdom.

I come at it in this narrow sense as a unionist, in the sense that I want the United Kingdom to be a success. I don't think it will be in the interest of the United Kingdom if, the other side of Brexit, we don't have a rule book in which the devolved responsibilities of the United Kingdom are not respected and we find a way of doing things that allows us all to come to the table with our different responsibilities and voluntarily to sit around that table to share them and to come to agreement. So, while the Bill has important issues in its own right, it also has cast that shadow over the way in which things will be done more generally in the future, and that's why it's worth the effort to get things right now.

11:55

I'm grateful to you, Chair, for letting me pursue that subject. Thank you.

No, no—it's a very important area. It goes to the root of wherever there may be viewpoints on this legislation, and we are in new, groundbreaking territory. Can I just ask one point, though, that emerged out of some of the questions that we've had so far, and that is with regard to a transition period? Because much of the Bill is focused really—the competence issue is on not doing anything before exit day that is in breach. Of course, we don't quite know what might be the case in a transitional period, what the obligations might be. What consideration has been given to that, or the fact that there might need to be changes at some stage? If, for example, this Bill goes through and becomes law—it receives Royal Assent, et cetera—we may still not be in a position where the transition arrangements have actually been determined, and those transition arrangements could have an impact on competence. I'm just wondering how that might be looked at.

Well, Chair, these are very important questions. I may ask Rhys to come in and give some of the more technical detail about it, but you are absolutely right that, if there is to be a transition period, and we don't know yet for certain whether there will be one, and we're unlikely to know it for certain, even if the March council agrees that there should be a transition period, the fact that it needs negotiation—nothing is agreed until everything is agreed—means that we won't know for certain, even about a transition period, until the end of the year.

How is our Bill constructed to take account of that, and the impact that could have on exit day? Well, we have been very careful in the Bill to ensure that exit day cannot be specified at a point in time before the EU treaties have ceased to apply in the United Kingdom. So, exit day for the purposes of this Bill will have to be after that point, and our primary focus will be on trying to make sure that there is no lacuna when the EU treaties are switched off and our Bill is switched on, because what we don't want to have—and this is where the transition period becomes a complicating factor—is we don't want to have a period in which the gap that we are trying to fill doesn't get filled because there is an exit day issue there. So, that's how our Bill is constructed. It's constructed entirely with the issue of transition in mind. We will have to wait to see, I'm afraid, how the specification of exit day will depend on what any transition agreement says about the continued application of the EU treaties in the UK—whether they are switched off, for example, at EU level, but continue to operate at domestic level, or whether there is some other solution in the transition agreement that takes account of this matter. But I think the provision that we have taken in the Bill allows us to align this Bill with exit day around the disapplication of EU treaties in the future.

12:00

Yes. So, in terms of exit day, there is a power for the Welsh Ministers to specify exit day, and it's the context that the Cabinet Secretary has just described, in which we felt that that flexibility was needed to ensure that we can react, and we can adapt, to whatever decisions or negotiations take place between the EU and the UK. But, as the Cabinet Secretary made clear, we cannot exercise that power so that it, exit day, is before, at a point in time before, the EU treaties switch off. But there will be some flexibility afterwards to react to whatever decision or agreement is reached.

Okay. And the primary determinant in all of this is going to be the issue of competence.

Competence will be a relevant factor, of course, but I think the practical effect of the agreement will be a material consideration, because we wish to avoid that cliff-edge scenario where perhaps EU treaties switch off and then our Bill needs to take effect at that point, otherwise there will be that lacuna that the Cabinet Secretary described.

Okay. Well, thank you for that. We do need to move on now, so we'll move on to Dai Lloyd in respect of section 3.

Ie, diolch yn fawr, Cadeirydd. Materion llawer mwy technegol nawr—rydym ni'n mynd nôl at y Bil parhad, neu'r Bil Cyfraith sy'n Deillio o'r Undeb Ewropeaidd (Cymru); byddaf i'n ei alw fe'r Bil parhad.

Rydym ni wedi cyrraedd adran 3 rŵan, a'r grym i gadw cyfraith uniongyrchol yr Undeb Ewropeaidd. A allaf i ofyn yn y lle cyntaf, o dan adran 3(1), beth ydy'r ystyr 'cyfatebol', hynny yw, 'corresponding', yn yr adran yna, yn adran 3(1)? Pa mor agos y mae'n rhaid i'r cysylltiad fod rhwng y rheoliadau a chyfraith uniongyrchol yr Undeb Ewropeaidd er mwyn iddynt gyfateb?

Yes, thank you very much, Chair. Far more technical matters now—we're going to the continuity Bill, or the Law Derived from the European Union (Wales) Bill; I'll call it the continuity Bill.

We've reached section 3 and the power to retain direct EU laws, so can I ask first of all, under section 3(1), what does 'corresponding' mean in this particular section, section 3(1)? How close a link must there be between the regulations and the direct EU law for them to correspond?

Chair, sorry, my earphones are coming through in Welsh.

Right—is there a problem with the translation? Mine was okay. Are you on—?

If we can just get that sorted; it's quite important. Okay.

Chair, I'm being asked about section 3 of the Bill, and in particular what the word 'corresponding' in that section of the Bill means. I'm not sure if it is helpful, but I wonder whether it would be helpful, given that this is pretty technical stuff, if I would read into the record just a brief note about the sections, the three key sections, of the Bill, 3, 4 and 5, and then to deal with why the word 'corresponding' is used.

I'm going to say—I mean, throughout, I'm happy to do that. This is very technical stuff. This is not about catching out; this is getting clarification in the scrutiny process. I'm more than happy to adopt that approach.

12:05

Thank you very much for that, Chair. So, section 2 of the Bill defines EU-derived law by reference to sections 3, 4 and 5, and those are the very heart of the Bill. Each section provides powers for the Welsh Ministers to make regulations to preserve EU law in devolved areas, and each section deals with a different category of EU law. That's why it's structured in the way that it is.

Section 3 of the Bill deals with direct EU law. Direct EU law is defined in the Bill and captures all directly applicable EU law that applies in relation to Wales. It includes provision in EU treaties, EU regulations, EU decisions and EU tertiary legislation. These types of EU law are currently directly applicable in the UK by virtue of section 2(1) of the European Communities Act 1972. That section provides that certain laws at EU level are directly applicable in the law of the United Kingdom without any further action being needed.

However, not every provision in direct EU law can have the same form and function in its application to the UK once the UK has left the EU and any transitional period, if there is to be one, is over. Direct EU law is currently designed for the operation of the law of member states, and it's designed to be applicable across the institutional architecture of 28 different sovereign states. The retention of this part of the law will, therefore, require modification as a result of the UK no longer being a member state.

The question of how close the link needs to be between the provision in the regulations and the provision in direct EU law is difficult to answer in the abstract, but can I maybe offer you just one example? That, I think, will help to explain why the term 'corresponding' is necessary. So, there is law at European level that is designed to support the recovery of the stock of European eel, and it makes reference to the protection and sustainable use of the stock of European eel in community waters. It makes reference, for example, to the way in which rivers flow into the Mediterranean sea. Now, the other side of Brexit, we, I think, will want in Wales to go on taking action to protect and sustain the stocks of the European eel, but we will not need in our law reference to rivers that flow into the Mediterranean, there not being any Welsh rivers, as far as I'm aware, that have that as their destination. So, we will make law that corresponds here, and that's why the word 'corresponding' is there, but there will be things in direct EU law that won't make sense in a domestic context the other side of Brexit, and we will be able to use this Bill to take those out of the statute book while retaining the essential purpose.

That explains the point about not just 'corresponding', but 'as Ministers'—you—'think appropriate' as well, I take it. By the way, Malta, in the middle of the Mediterranean, hasn't got any rivers, by the by. Presumably they've already got round that little sneak disadvantage. But, presumably, there's nothing that you can't override either. That's what you're trying to say, yes?

Yes, the powers of the Bill allow us to put those things right.

The 'appropriate' issue, Chair, comes in section 4 of the Bill. So, section 4 of the Bill deals with a separate category of EU law, and deals with EU-derived enactments. Those are domestic Acts, Measures and subordinate legislation that, in some way, relate to the European Union or, indeed, to the European Economic Area. The power in section 4 of the Bill enables the Welsh Ministers to make regulations that restate EU-derived enactments along with any necessary modifications. The test for those modifications in our Bill is higher than in the EU withdrawal Bill. In the EU withdrawal Bill, the term is 'appropriate'. We have taken the term 'necessary' because we put a number of self-limiting ordinances on Welsh Ministers in this Bill to make sure that the actions we take are designed to ensure continuity. In other words, we recognise that there are some broad powers in this Bill, but we try and narrow that breadth by making it clear that you can only use them for the core purpose of the Bill, which is to secure continuity of European Union law into domestic law the other side, and only 'necessary' modifications can be made, in part, in section 4 of the Bill.

12:10

Sorry, can I just very quickly go on to this because this is something that comes up in number of items of legislation? We have the words 'appropriate', and—perhaps trying not to become repetitive in terms of some of the questions later on—you then have in 3(4) 'among other things', and then, of course, you have 'appropriate' appearing further on in other sections as well.

We've had this ongoing argument in terms of 'appropriate' as opposed to 'necessary' and why the term 'appropriate' is there when 'necessary' seems to suffice because 'appropriate' seems to apply a lower standard. I don't want to get pedantic, into the dictionary interpretations. Is this something that was very deliberate, to have 'appropriate'? What does 'appropriate' add that, then, if you didn't have it in there, you just had the specific? If something's 'necessary', it needs to be done and should be done. If something's 'appropriate', it just becomes much more subjective.

Well, Chair, you are absolutely right in saying that the distinction between the two is that if you use the word 'appropriate' rather than 'necessary', you are—or 'necessary' rather than 'appropriate' narrows the scope of that power.

Where we have, later in the Bill, taken the power to make 'appropriate' amendments, it is because, generally, of the uncertain world in which this Bill will operate. Because the Bill is inevitably being crafted in a period in which many things may change between now and exit day. Wherever we can, we've used the word 'necessary' because we think that is a tighter definition, and we should be tighter wherever we can. But where the future is so uncertain, and where we couldn't be sure that a necessity test would allow us to make some of the necessary alignments that we want to make, we've chosen the term 'appropriate'. But it is a deliberate choice because, in conditions of uncertainty, we believe that parts of the Bill will need that slightly wider elbow room for Welsh Ministers to be able to act. It's the unknowable nature of the circumstances that we might be facing that justifies the use of 'appropriate' where we have chosen to use it.

I suppose, taking your analogy, it wouldn't be 'necessary' to remove references to rivers flowing into the Mediterranean Sea, but it would be 'appropriate'. Would that be the—?

Well, it wouldn't be 'necessary', as you say, because no rivers from Wales do flow that way, but the corresponding power allows us to do that.

Okay, Dai. i think we've got that. I was just hoping to circumvent a number of questions around that—if you're satisfied that that deals with that.

Absolutely, because several of my questions are technical, so they don't require a huge, all-embracing, lengthy answer.

But just reverting to section 3(2) for a minute, will there be cases where the Welsh Ministers will seek to continue, for example, a right that has been available under EU law, but which, in the end, will be impossible to continue and so will not be continued in the regulations? Are there specific examples of things that you would seek to continue but, actually, in reality, they won't still be there?

12:15

Well, I think the answer to that has to be 'yes', Chair. The Bill is aimed at ensuring that rights currently enjoyed by Welsh citizens continue to be available after Brexit, but it may well be, as the question suggests, that the unfortunate reality of Brexit is that certain rights may be lost.

Okay. We've covered 'among other things'—thank you, Chair. Moving on to section 3(5), this is about the continuity Bill allowing some things to be done in regulations that the 1972 Act does not allow to be done in regulations. So, can we just ask why are the restrictions that are set out in the 1972 Act not being carried over in the same way under the Bill? We're looking at sections 3(5), 4(5) and 5(7) there.

Well, Chair, I think the main explanation for that is just changes in legal drafting over time. I think these things are simply done differently 40 years later than they were in 1972. There are some more deeply technical reasons that Rhys will explain to you.

Yes. So, I think the restrictions in the 1972 Act did inform the restrictions that were imposed on the Welsh Ministers' powers under those sections. I think that the only differences are that we have omitted that restriction that relates to conferring delegated powers. So, the rationale behind that being that direct EU law, for example, contains a number of powers for the Commission to specify details perhaps more technical in nature. We will need to ensure that the Welsh Ministers have those powers. So, in restating the EU regulation, for example, that confers those powers to the Commission, we can take that power and make corresponding provision to it in domestic law, which would include conferring powers. So, that's the rationale for the delegated powers.

I think the other example is in relation to criminal offences. I think, again, we have taken the restriction from the 1972 Act and, I suppose, made a minor modification just to reflect the uncertainty, because, although the 1972 Act has been used to implement a lot of EU obligations, there are also a number of other examples where primary legislation has been used and other subordinate legislation has been used. So, it's not certain—. Well, those restrictions wouldn't have applied every time we have created a criminal offence in the past in the domestic context. So, we've just taken a little bit more flexibility, taking the exact same approach as the UK withdrawal Bill to just offer that little bit more flexibility.

Okay. My final question, because most things have been covered, presumably could reassure David here, who is feeling a bit fragile about these sorts of things. Why does the Bill not allow regulations made under sections 3, 4 and 5 to come into force before exit day? If you could flesh that one out and emphasise that it doesn't or can't, and why.

It is for exactly the reason that David Melding asked me earlier in relation to competence. We've been careful to ensure that the Bill does not allow for any provision to be made that would deviate from EU law to take effect before exit, because up until that point the National Assembly is bound to remain within the scope of EU law. So, regulations made under those sections cannot come into effect before exit day because that would give rise to a competence issue, and the Bill is carefully designed to make sure that that competence issue does not arise.

Presumably those will be the circumstances actually being raised by the Presiding Officer in Scotland, in fact, won't they? It's that scenario.

I suppose one of the difficulties is trying to draw comparisons between our legislation and the Scottish legislation, which, in fact, is different to ours as well. Okay?

Does anyone want to move on? Okay. We now move on to, I think, question 13.

Yes, No. 13. On the interpretation of EU-derived Welsh law, why have you not provided for the continued operation of the charter of fundamental rights in relation to devolved areas?

Well, thank you for that. It's an important question, and the Welsh Government's position has been clear all along that UK withdrawal from the EU should not in any way lead to a dilution in human rights protections or indeed any of the other social, environmental or employment protections. 'Securing Wales' Future', which we produced last year with Plaid Cymru, was clear. We said there:

'In leaving the EU, we need to be vigilant and insistent that protections and standards which benefit our citizens and the wellbeing of society as a whole are not eroded.'

That's why we remain, Chair, very supportive of the ongoing efforts to amend the EU withdrawal Bill in the House of Lords to ensure that the charter is fully incorporated into UK law after Brexit. We think that that is the right way to address the question that Mandy Jones has just asked me—in the UK withdrawal Bill, which covers far more than the law contained in our continuity Bill—so that the impact of the charter of fundamental rights should continue to be felt right across all of the law. Now, it's interesting to see that this is one of the four issues that the House of Lords is now firmly focused on, and UK Government Ministers have made a commitment in the House of Lords to return to this issue at Report Stage. So, I think there is some ground for optimism that the issue will be properly addressed at the UK level. That will then incorporate our Bill as well, and the impact of the charter will be secure.

12:20

I think you've answered questions 14 and 15 as well previously, haven't you? Right—

Just on that, though, the important point there, it seems, is that the charter influences so many areas of law and has already been incorporated in a whole series of decisions and that by retaining those decisions what you're actually retaining is also almost the jurisprudence around those areas as well as some of the basic principles.

And that is why, Chair—exactly that is why we do retain a reference to the charter of fundamental rights in our Bill, so that it becomes part of that panoply of things that influences the interpretation of EU-derived Welsh law. So, where we are able to, we have retained the influence of the charter. The way to answer Mandy's first question is to put it right at the UK level.

Yes. I'm also glad that the UK have stated that they're actually going to roll over all the EU laws into UK laws, which makes things a hell of a lot easier when you're sifting through them later.

And we've always been supportive of that—the sense of that.

Right. We'll skip question 15, because that's already been covered. Question 16: do you feel it is constitutionally appropriate that, where an EU law is passed by both the European Parliament and the EU council, the Welsh Ministers should be able to replicate the EU law by making regulations, as is permitted by section 11?

Well, Chair, as Members here will know, from the very beginning in the 'Securing Wales' Future' document, we said that securing full and unfettered access to the single market is the most important outcome of EU negotiations as far as the Welsh economy is concerned. We have a higher proportion of manufacturing industry as part of our economy than other parts of the United Kingdom. Nearly two thirds of our exports go directly to the EU, and we have a very significant fresh foods market where goods that leave Wales arrive fresh in the southern Mediterranean because there have been no barriers to that trade anywhere along that line.

What section 11 allows is for us to go on replicating the EU law. It's a permissive power. It doesn't require Welsh Ministers to do it, but it allows Welsh Ministers to secure regulatory alignment in the future between the conditions under which Welsh goods are produced and under which the EU operates so that there will be no barriers to trade. I don't think that it's a constitutional issue to allow a power in this Bill, given the importance of the policy that it is intended to underpin, and, indeed, in a constitutional sense, no one should be in any doubt: the law included in any regulations under section 11 would be Welsh-made law, made within the processes set out in the Bill and designed to serve Welsh interests.

12:25

What would be the process of scrutiny, though, within that? Because I understand the logic in terms of continuity, to enable the ongoing trade processes and so on there. There is, first of all, a potential issue in terms of the outcome of the trade Bill and the withdrawal Bill, and clause 11 as well as the trade Bill, but also there is the issue in terms of what decisions are being taken by Government on this, as there will need to be an appropriate scrutiny mechanism. I wonder if you could outline what the scrutiny mechanism would be.

Regulations brought forward under section 11 of this Bill would be subject to the enhanced procedure. So, for some of the reasons you've just outlined, they would be subject to the highest level of scrutiny that the Bill allows.

Not by the Assembly, but there would be a period for the Assembly and committees to make representations and recommendations on the content of those and then it would be for Welsh Ministers then to take those into account. They could bring forward a subsequent draft of the regulations with material changes, which would then be put forward to the Assembly for consideration.

Yes. Can I just say, on your last answer—? I'm sorry, but you keep going on about wanting to stay in the single market. We're actually coming out of the EU, so we won't be in the single market and that's why the UK wants to bring in the common framework: so that we have a UK common market, you know, when we leave the EU. So, part of your answer was like—it won't work because we are not going to be in the single market.

We're not going to be in the single market, Chair. That's clear. We will have left the European Union.

But where it is in the interests of Welsh businesses to continue to have regulatory alignment, so the rules we operate on are the same rules as the EU operate on, section 11 allows us to do that. It doesn't require us to do it, but if—. Let us give the example of the mussel industry in north-west Wales—

In Anglesey. In the Menai straits. You know it much better than me. But, as you know, 90 per cent of the product of that industry goes straight to the southern Mediterranean, and it leaves here fresh and it arrives there fresh and there's no country-of-origin rules to worry about. There's nobody asking you to fill in a form to say, 'Did you observe the same rules in Wales as we expect down here?' And what this would allow us to do is, if the rules change in the future at the European Union level, and we thought that it was in the interests of Welsh businesses to stick to the same rulebook, we would be able to amend our rules for that to happen. It doesn't require us to do it, and it doesn't imply that we are somehow back in the single market, but it does give us a flexibility. Where we think that that regulatory alignment would be in the interests of Welsh firms and Welsh businesses, we have now the scope to bring forward regulations to the Assembly to do that.

Do you think the UK's going to do something like that as well? It would be good that we've got regulatory alignment. 

Well, Chair, you know, as I've said before, if you look at the three choices that the UK Government agreed with the European Union in December over the Irish border, the least attractive option for the UK Government is the most attractive option to the Welsh Government, because if you can't magic away the border and you can't get an agreement for just an island of Ireland solution, then the third place that you go to in that agreement is regulatory alignment between the UK and the European Union. And because we think that that will be in the interests of Welsh businesses, we're most attracted to that possibility. 

12:30

Could I just ask for some clarification on the process of this? In areas where we move towards regulatory alignment, I understand the clarity of the answer you've given on that, but of course, these changes in regulations can occur on a very regular basis year after year, as we know, particularly in areas of food, product safety and so on. Would you envisage, then, that essentially these will be instruments that will be coming as the changes are made, or do you have in mind changes that would basically say that whatever is determined there would be what applies? So, effectively, there would be an ongoing process of alignment incorporated into the legislation.

The Cabinet Secretary has indicated that it's a permissive power, so it would be for the Welsh Ministers to decide on a case-by-case basis. I suppose in each case it would be incumbent on the Welsh Government to consider the benefits of alignment on a particular subject matter—particular EU regulations or a directive that's been adopted at EU level—and then consider the merits of doing something similar within Wales. Now, each time there is legislation adopted at EU level, there will be a decision to be made by the Welsh Ministers whether to adopt or to align. So, there wouldn't be a case where regulations are made under section 11 and there would be a blanket alignment on a particular subject area. It would be for each individual piece of EU legislation—for corresponding provision to be made domestically for each individual instrument. 

So, every time there is a change at European level, there would need to be a process whereby it comes back here for confirmation or a change in some way.

Yes. And section 11 is designed very similarly to section 3, to reflect the supranational nature of the legislation that was adopted by the EU. So, we've adopted the 'making corresponding provision' formula to give that little bit of flexibility, which is, like the example that the Cabinet Secretary gave before, where we just need to make some modifications to ensure that it works at a domestic level.

That's okay. We haven't gone through why it's in an emergency Bill, have we, section 11? 

So, question 17: why is it necessary for the broad powers in section 11 to be included in an emergency Bill?

Well, I think it is because they are part and parcel of the essential purpose of the Bill to provide legal continuity and certainty after Brexit, and the powers in section 11 are just part and parcel of that basic intention. I don't know if it's particularly relevant that they are in an emergency Bill, but what they will allow the Assembly to do is to make sure that we have continuity on the day of exit. But if things diverge post exit, on a case-by-case basis, section 11 will allow the Assembly to decide whether or not it would be in Welsh interests to maintain alignment.

Okay. Do you think there should be a time limit on those powers under section 11?

Chair, I don't want to say that I don't see a case for that. I suppose I think that now is maybe not the time to set a time limit, because of the uncertain nature of the terms on which we will leave the European Union. But I will be interested to see what you say in your report on this matter. I recognise that section 11 could be regarded as having a very broad scope, even though I hope the way that I've described our intention to use it tells you that it is for a very particular purpose. And I've obviously read the arguments that suggest that the pace at which regulatory change comes about, at the European Union level, is such that it might be possible to accommodate ourselves to those changes via primary legislation, rather than through this Bill. So, I think my argument would be that, in the circumstances we find ourselves in, these powers are necessary, and necessary in the way they've been set out. As things settle down and the circumstances become clearer, the arguments for doing the job that section 11 sets out to do in a different way may be strengthened.

12:35

So, there wouldn't be, in principle, any objection to something like a five-year sunset clause? I understand the points that you make there, but, obviously, this committee's concern is with the exercise of powers and the scope of those—those are, obviously, matters that we consider.

I think all of those are absolutely proper questions, and I'm sure the committee will think carefully of them. I think what I would say to you today is that if you are attracted to the idea of a sunset clause, there should be some flexibility in it rather than it being an arbitrary date, so that if we get there and we find, actually, this part of the Bill is turning out to be useful and doing a job that the Assembly itself would be keen to see going on, there would be a way of revisiting that deadline closer to its expiry time.

Yes, so I suppose perhaps not technically so much a sunset clause as a review clause, or something along those—.

Possibly. Okay, those are things we will, obviously, give consideration to.

Just a point on incidental powers in section 17(2): section 17 seems to attach the incidental powers to other regulation-making powers in the Bill rather than creating a new stand-alone power to make incidental provision, as happens in the Public Health (Wales) Act 2017 and the Regulation and Inspection of Social Care (Wales) Act 2016. Is there a reason why the incidental powers in section 17(2) have been drafted in a different way to the incidental powers in other recent Assembly legislation?

Well, Chair, we did consider the comfort that a wide consequential power could provide, and the UK withdrawal Bill and the Scottish Bill do both contain such a power. Let me say, though, that this is an example of where we have listened very carefully to the report from this committee, and what you had to say about the EU withdrawal Bill and the use of that power. Taking account of the breadth of the powers that the Bill already contains, we concluded that a further broad power would strike a balance too far in favour of the Executive rather than the legislature, and we've decided not to include it in the Bill.

Okay. I need to move—. Do you want to ask a question about the exit day issue?

Yes. Question 21: how likely is it that exit day in Wales will be on a different day to exit day in any other part of the UK?

Not likely, I hope, Chair, because I don't think that would be a sensible outcome. But, as I tried to explain in an earlier answer, we've carefully constructed this part of the Bill to take account of the points that you made earlier about the transition period. So, the Bill requires us to take account of the exit day decided at the UK level. I think it would be in everybody's interests to avoid a cliff edge that people worry about. While technically the Bill could lead to different exit days, the question was how likely I think it is that that would be the case, and my answer is that I don't think that it is likely.

We're nearing the end now, Cabinet Secretary, you'll be pleased to note. On Schedule 2, the procedure for making regulations, do you believe that the enhanced affirmative procedure set out in Schedule 2 to the Bill is a sufficient safeguard against the broad powers that the Bill gives to the Welsh Ministers? The answer is 'yes' or 'yes', I presume.

I do—you are quite right to anticipate that I believe that the Bill is constructed in a way that does match the significance of the issue to the procedure outlined. No powers in this Bill can be used with less than the affirmative procedure, and there is significant use of the enhanced affirmative procedure as well, and that is calibrated to offer the Assembly the safeguards it needs to have proper oversight over powers that Welsh Ministers will have through the Bill.

12:40

That's it. And following on from that, what information will be available to this committee to come to a decision as to whether a recommendation should be made? Will the draft regulations be sufficiently clear and transparent for us to come up with such a decision?

The committee would have all the information it currently receives in respect of statutory instruments that are laid before the Assembly. Standing Order 27 will apply to draft regulations laid before the Assembly. Each will therefore be accompanied by an explanatory memorandum and, where one is prepared, a regulatory impact assessment. So, the committee would have an explanatory memorandum that sets out a description of the instrument, draws the attention of this committee to any matters of special interest, provides the legislative background, provides an explanation of the purpose and intended effect of the instrument, provides details of any consultation that has taken place on the instrument, or policy delivered by it. It will provide the regulatory impact assessment where one has been carried out, and an explanation if one has not been. It will provide details of any post-implementation review and will provide details of any impact assessments, such as those in relation to equality or children's rights, that have been carried out. So, all of that information would be available to the committee when it came to do its work, and our aim would be to make sure that the committee had everything that it needed in order to discharge its responsibilities.

Good. Finally, from me, what time limits apply to this whole enhanced affirmative procedure as regards making regulations under Schedule 2? What time frames are we talking about here?

Regulations to be made under the enhanced affirmative procedure will need to be made in a timely manner to ensure that all the procedural steps laid out in the Bill can be taken before exit day. So, that's the really important thing here. The regulations will need to be made before exit day. I'm sorry not to be able to offer a specific time frame, because that will depend therefore on when exit day is identified.

I probably didn't say as clearly as I might have done earlier, Chair, but in the interplay between this Bill and the UK Bill we will inevitably have to prioritise the laying of draft SIs that are subject to the enhanced affirmative procedure, because we will want to use this Bill for the most important purposes, and if there are things where we can agree with the UK Government that the UK Bill is a perfectly adequate legislative vehicle to take through things that are not controversial or not a matter of dispute between us, then we would be happy to do that. That means that this Bill will be prioritised to bring forward the most important matters as far as Wales is concerned, and those are the matters that the enhanced procedure has been designed to accommodate. 

With the urgent procedure—it's described in paragraph 111 of the explanatory memorandum—the Bill doesn't set any specific duty on the Ministers to give reasons as to why the urgent procedure should apply.

I think we didn't put in a specific duty, Chair, because there is a requirement to lay an explanatory memorandum, and unless that explanatory memorandum sets out the reasons why the urgent procedure should apply it would not have achieved its purpose. So, we didn't think that there was a need for a separate duty. If the committee feel that the Bill should be strengthened in this area and that it would provide the National Assembly with a greater reassurance, if that's the conclusion you come to, I will look at that very seriously.

We're obviously moving on a very tight time frame as well. Did you have any particular example—? When you were looking at the urgent procedure, did you have anything in particular in mind as to an example as to what circumstances might arise, or is it really there for unforeseen situations?

I wish I could say to you that it's hard to envisage it, but I'm afraid in the current circumstances that isn't the case, because there is a very distinct possibility that negotiations could continue until very late in the process. And we have to prepare for the possibility that these talks may continue past the autumn of this year, and that we would be in the position of having to respond very quickly to last-minute changes in the negotiations.

So, to give you just one example: the European Medicines Agency. Up until now, the UK Government's position has been that we are leaving the European Union and, therefore, we will be withdrawing from a whole series of agencies that we have been members of for many years. The Prime Minister took a step back from that position in the speech that she made on 2 March, and I absolutely welcome the fact that she did so, because being able, for example, to sustain an associate membership of the European Medicines Agency would be entirely in our own interests, and there were a number of other agencies that she set out in her speech. There are some that she didn't identify—Euratom, for example. We have said all along it makes no sense at all for us to withdraw from that agency, because the regulation of nuclear medicine, for example, is fundamentally bound up in the way that that agency operates.

So, with a set of ideas like that coming back onto the table, you can imagine that the practical negotiations as to what sort of relationship the United Kingdom will have in the future with those agencies, and how it will have to be paid for and what influence we will have, and so on, may continue quite late into the day and that an urgent procedure might be required here to make sure that our rule book, our law book, remains consistent with whatever comes out from those negotiations.   

12:45

And I'm sure that competition authority issues would also be an area as well. Sorry, please, yes. 

If you'd listened to Theresa May's speech from the beginning, and various other Ministers' speeches and that, they did say that when we come out of the EU we will pay to come back into the Euratom and Erasmus programmes, and things like that. That's why she said that she was putting money aside, so that we could actually go back into those programmes and to pay it. So, that money's being put aside in the UK Government so we can carry on with things like Erasmus, because those are nothing to do with the EU. Anybody in the world can come into those programmes.

I think my understanding is just slightly different to that. I absolutely agree that from the Florence speech in September last year, the Prime Minister was clear that she saw the case for us to continue to pay in to be able to be participants in Erasmus+, in Horizon 2020, the successor programme, and, as I hope, inter-territorial co-operation programmes as well, which are very important to Wales. 

I think the slightly different point she made on 2 March is that there are European Union agencies, like the medicines agency, that up until now—well, I can tell you absolutely explicitly that the Secretary of State for Exiting the European Union told me that we would not be members of in the future, and where now the UK Government appears to be more open to some form of relationship. We can't be members because you can't be members, really, if you're not members of the European Union. But, there are imaginative ways in which you can—  

Associate membership is the most obvious one, and I think that's what she came—. I thought she was a bit warmer about that than she had been previously.  

Okay, just a couple of quite technical questions to conclude some of the matters. How many sets of regulations do you think will need to be made under the following sections of the Bill as a consequence of leaving the EU: sections 3, 4 and 5, sections 9 and 10 and section 11? 

Thank you, Chair. The Leader of the House and Chief Whip wrote to the Chair of this committee, to yourself, last week. In that letter, she provided an update on the secondary legislation programme. That letter estimated that around 400 EU-derived legislative instruments had deficiencies that must be corrected under the powers for Welsh Ministers set out in Schedule 2 to the EU withdrawal Bill. The vast majority of these—around 380 of the 400—we believe can be corrected by a series of amalgamated correcting instruments. It's not yet clear as to the number of instruments it will take in total to correct all the deficiencies identified within the legislation that will need to be amended, and this will become clearer as work progresses.

That work provides a good starting point for estimating the volume of legislation that will be needed to be made under of this Bill. However, because this Bill provides wider powers for Welsh Ministers to make corrections to EU-derived legislation, and involves powers to restate that legislation, the number and size of instruments under this Bill is likely, in principle, to be both higher and greater.  Having said that, as I've said already this morning, the Bill is structured in such a way that provision can be limited to those areas where it is considered necessary to create EU-derived Welsh law, so I don't have a definitive figure for you. I think we can learn from the figures that have been presented to you already, and there is that fallback position where if we have to prioritise regulations to be brought forward under this Bill, we have the ability to do that. 

12:50

Thank you very much for that. Then one final question from me: is it right to say the Bill will reduce the scope for the Welsh Ministers and UK Ministers to make statutory instruments in devolved areas on a composite basis where both the Welsh Government and the UK Government have the same policy?

Yes, it does, Chair. It does primarily because of the different approaches taken to scrutiny. Where regulations under the UK withdrawal Bill will be made subject to the negative procedure, regulations under this Bill will be subject to at least the affirmative procedure, and therefore cannot be contained in the same instrument. 

Thank you. I think that brings us through to most of the set questions that we needed to complete the process of scrutiny. I don't know if the Members have any additional points that they wanted to raise. If not, I'll thank you for the session, for the very detailed answers on what is a very complicated and technical area. Thank you very much for that. 

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

Cynnig:

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

Motion:

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

Cynigiwyd y cynnig.

Motion moved.

I now invite the committee to move into private session. 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 12:52.

Motion agreed.

The public part of the meeting ended at 12:52.

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