Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol
Constitutional and Legislative Affairs Committee07/01/2019
Aelodau'r Pwyllgor a oedd yn bresennol
Committee Members in Attendance
|Carwyn Jones AM||Yn dirprwyo ar ran Lee Waters|
|Substitute for Lee Waters|
|Dai Lloyd AM|
|Mandy Jones AM|
|Mick Antoniw AM||Cadeirydd y Pwyllgor|
|Suzy Davies AM|
Y rhai eraill a oedd yn bresennol
Others in Attendance
|Lyn Summers||Llywodraeth Cymru|
|Sarah Wakeling||Llywodraeth Cymru|
|Vaughan Gething AM||Y Gweinidog Iechyd a Gwasanaethau Cymdeithasol|
|Minister for Health and Social Services|
Swyddogion y Senedd a oedd yn bresennol
Senedd Officials in Attendance
|Gareth Howells||Cynghorydd Cyfreithiol|
|Katie Wyatt||Cynghorydd Cyfreithiol|
|P Gareth Williams||Clerc|
|Ruth Hatton||Dirprwy Glerc|
Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.
The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.
Dechreuodd y cyfarfod am 14:30.
The meeting began at 14:30.
Good afternoon, everyone. It's a meeting of the Constitutional and Legislative Affairs Committee. I start off by wishing everyone either a happy new year or, if you follow the Julian calendar, a happy Christmas.
On to item 1, apologies. Well, Lee Waters—I congratulate him on his appointment as Government Minister. Carwyn Jones AM will be substituting for Lee Waters, and we've had apologies from Dawn Bowden. Are there any interests to be declared? If there's nothing, then we'll go on. Just in terms of the housekeeping, the usual housekeeping rules apply.
So, we go straight on to item 2, and I welcome the Minister here in respect of the legislative consent memorandum on the Healthcare (International Arrangements) Bill evidence session. We have before us, obviously, a considerable volume of correspondence that the Minister has had with his counterpart at UK level. I'm grateful for the copies of those, and this is obviously a piece of legislation that we particularly wanted to look at because it's one of a number of items of legislation, obviously, that raise constitutional issues as, of course, has been identified in the correspondence that the Minister has had. If I can just start off the questions, and that is, really, the purpose of the Bill, why it is necessary and what its primary objective is.
The Bill's objective is to make sure that reciprocal healthcare arrangements can continue should the United Kingdom leave the European Union. If the United Kingdom leaves on the basis of the deal proposed by the Prime Minister, then there'll be a transition period. There'll still need to be agreement after December 2020 about what those arrangements will be. It's actually even more important, though, should the United Kingdom leave with a 'no deal' scenario, because, essentially, all of our current arrangements that we currently have, in particular with the European Union and wider economic area, would fall upon the United Kingdom leaving. So, this provides powers to make sure that healthcare arrangements can continue and it's why the Bill provides for the Secretary of State and United Kingdom Government to be able to make the necessary arrangements for payments to be made. The challenge, though, is that, obviously, it goes across the devolved areas of health, and so the United Kingdom Government themselves recognise that a legislative consent motion is required because it does affect a devolved competence. So, I think the Bill is necessary should the United Kingdom leave the European Union. Whether all its provisions are necessary and supportable are matters, I'm sure, that we'll discuss during the rest of the session.
I mean, to put it the other way around, without legislation, effectively, the arrangements in terms of mutual health cover in, certainly European countries—EU countries—will effectively disappear.
Certainly in a 'no-deal' scenario. The withdrawal agreement being proposed suggests they would carry on until December, but if not now, then, even if there was agreement to the Prime Minister's proposed deal, at some point you'd still need to take new powers to continue with the arrangements. The challenge is how broadly those powers are drawn within the Bill, and that there's a clear understanding about the purpose of them as they relate to the current arrangements we have with the European Union and the wider European economic area.
This draft Bill is one similar to a number of Bills. That is, they are, effectively, Bills that transfer powers in a particular area, and, of course, the international implications of it have constitutional implications for us in terms of the devolution settlement. You've raised quite a number of items. There's been the ongoing correspondence that we have before us going back over several months. I wonder if perhaps you could just outline your concerns that you've raised and the discussions that you've had. I know other Members of this committee will want to ask more specific questions on each of the particular clauses and some of those issues.
The first point to make is that the Welsh Government isn't looking to try and interrupt or prevent these arrangements from continuing in the future. We think it's a good thing for Welsh citizens to be able to have these reciprocal arrangements when people travel or, sometimes, live for a significant part of their time in other European countries, and, equally, we would not want to see that European citizens who come to this country somehow have alternative and less favourable arrangements. The challenge is how the Bill sets out that those should continue. The first problem and challenge, which you'll see raised in my initial letter of 25 October, is the time, because the Welsh Government was not informed in good time, from initial conversations between officials to then being told on the twenty-second that a Bill would be published within a few days. Now, that is not appropriate and that is not usual either. And so that was really disappointing and I set that out both in the telephone conversation with James O'Shaughnessy, who was one of the Ministers in the department for health at the time, in the House of Lords, and it's set out in my correspondence. That's why we've had a challenge in that, actually, the time in which we'd normally lay a legislative consent motion before the Assembly is not within the normal two weeks because of the notice, or the lack of notice that we had. And that's unhelpful.
But in terms of the way the Bill is then set out, the UK Government accept that they do need consent. They accept that it does affect devolved areas of competence. The challenge comes in the way in which the regulation-making power is set out in section 2, because that, as drafted, doesn't require consultation or consent from Ministers in devolved administrations. That's poorly drafted, if you wanted to be generous and not see a conspiracy, or you could take the view that there is a deliberate attempt to try and have the widest array of powers possible for UK Ministers. And you see that in the broader challenges around the exiting the European Union arrangements. So, we've had correspondence about how clauses 2 and 5, in particular, are set out, because clause 2 sets out that, by regulation, the Secretary of State may make different arrangements and clause 5 then sets out the range of those areas and the detail of how they could be undertaken, and that includes, of course, a regulation-making power to potentially change primary legislation.
So, we think it is important that there is a proper relationship in advance of new obligations being agreed by the United Kingdom on behalf of the four nations of the United Kingdom, for there to be an involvement of devolved administrations. So, we've set those out. And, of course, we've also set out our concerns about cost. We wouldn't want to see new arrangements agreed by the United Kingdom Government that produce an extra financial burden upon the Government and this Assembly. So, I think we've been pretty clear in our correspondence about where we are.
We've made some progress on a proposal that is dependent, contingent upon an acceptable agreement being reached in a memorandum of understanding between the Welsh Government and the United Kingdom Government, and the last correspondence you'll see is a letter from James O'Shaughnessy on 19 December in which he suggests that he's pleased that we've agreed that we will support the legislative consent motion. That isn't quite the position. I set out in my previous letter the circumstances that would need to be met for me to be able to recommend to the Assembly that our consent should be given. That is that there is a clear consultation power with Welsh Ministers on the face of the Bill in section 2, to be accompanied by a satisfactory memorandum of understanding about the Welsh Government being engaged at an early stage before any agreements are entered into by the United Kingdom Government, so that we understand, from a negotiating mandate point of view, what was being proposed. And that's not unusual in other areas. For example, the way in which pricing mechanisms are set—with pharmaceutical companies, we already do that with the United Kingdom Government before any agreements are actually concluded.
I know that some of the Members will ask specific questions on those, so rather than—. I'll go to Dai Lloyd.
Diolch, Gadeirydd. Fel rydych chi wedi awgrymu eisoes, mae cymal 2 o’r Mesur yma’n gallu bod yn eang iawn. Rydw i’n siŵr bod gyda ni i gyd nifer o heriau yn enwedig ynglŷn â’r cymal yma, achos, wrth ddyfynnu o adroddiad pwyllgor Tŷ’r Arglwyddi, sydd yn cyfateb i’r pwyllgor yma, maen nhw’n nodi:
Thank you, Chair. As you've suggested already, clause 2 of this Bill can be very wide-ranging in terms of its scope. I'm sure that we all have a number of challenges to make in terms of this clause, because, in quoting from the report of the House of Lords corresponding committee, they note:
'Clause 2 has a breath-taking scope. Indeed, the scope of the regulations could hardly be wider. There is no limit to the amount of the payments. There is no limit to who can be funded world-wide. There is no limit to the types of healthcare being funded'
and so on,
'But the Bill applies to countries throughout the world, not just to the EU.'
Wrth gwrs, mae'r Llywodraeth yn Llundain yn dadlau taw rhywbeth gweddol gul ydy hyn, a dim ond ynglŷn â phethau sydd yn ymwneud efo gofal pobl, fel rydych chi wedi cyfeirio eisoes, sy'n mynd i deithio tramor neu i fyw dros dro. Ond mi allech chi ddiffinio hynny fel rhyw fath o ymyrraeth bosib rhwng gwahanol systemau gofal iechyd, yn enwedig, felly, rhwng Unol Daleithiau America a system iechyd Cymru, sydd yn naturiol yn wahanol iawn i'w gilydd. Hefyd, mae'r adroddiad o Dŷ'r Arglwyddi yn dweud:
Of course, the Government in London would argue that this is quite a narrow thing, and it's only related to issues to do with the care of people, as you've already referred to, who travel abroad and who live abroad for a period of time. But you could define that as a kind of intervention between different healthcare systems, especially between the United States of America and the Welsh health system, which are naturally very different. The report also says:
'Actually, the scope of regulations made under clause 2'—
rwyf i'n dyfynnu'n uniongyrchol—
that's a direct quote—
'relating to the provision and funding of healthcare throughout the world—is exceedingly wide.'
'It is particularly unsatisfactory that exceedingly wide powers should be subject only to the negative procedure',
and so we go on.
Felly, y cwestiynau sy'n deillio o hyn ydy—achos mae rhai ohonom ni'n teimlo, ac rydw i'n siŵr ein bod ni i gyd rownd y bwrdd yma â phryder ynglŷn â dyfodol ein gwasanaeth iechyd ni ta beth—. Fuasem ni ddim yn licio gweld ein gwasanaeth iechyd ni yn cael ei danseilio, efallai yn anfwriadol, gan y math hwn o Fesur, sydd ddim ond i fod yn weddol gul, ond mi allai gael ei ddiffinio yn eang iawn, fel y mae pwyllgor Tŷ'r Arglwyddi wedi'i grybwyll yn fanna.
Felly, a oes yna unrhyw linellau coch gyda chi fel Llywodraeth yn nhermau'r cydsyniad? A hefyd yr ail gwestiwn ydy: pam mai dim ond y Llywodraeth yn fan hyn sydd yn rhan o'r cydsyniad yma? Oni ddylai'r Cynulliad i gyd, yn gyfan gwbl—ni i gyd—fod yn rhan o unrhyw benderfyniad cydsyniad ar y ddeddfwriaeth yma?
So, the questions that stem from that—because some of us do feel, and I'm sure that all of us around this table have some concerns about the future of our health service anyway—. We wouldn't want to see our health service being undermined, perhaps unintentionally, by this kind of Bill, which is only meant to be quite narrow in terms of its focus, but can be defined with a great deal of scope, as the House of Lords committee has mentioned there.
So, do you have any red lines as a Government in this regard on consent? And then the second question is: why is it only the Government in this place that is part of this consent process? Shouldn't the Assembly as a whole—all of us—be part of any decisions with regard to consent on this legislation?
Thank you for the points. I think the starting point is that this is a Bill drafted by the United Kingdom Government, and it's not one that we are currently content with. So I'm not here to defend the drafting of the Bill in front of us—far from it—but to set out the position as to how this could be a Bill that we could accept, and could recommend to the Assembly, which should be passed. Because, again, I don't think that anyone in any party wants to see reciprocal healthcare agreements fall away.
But to deal with your first point about the scope of the Bill in terms of its territorial scope—well, the reason why this Bill is being brought forward is because the United Kingdom is currently set to leave the European Union. So, actually, those are the healthcare arrangements that are due to be affected, that come from our membership of the European Union. Setting the Bill out in a scope where it's plainly not just about the European Union and our membership of the European Union is, I think, an understandable concern for parliamentarians in both Houses, the Lords and the Commons, and also Members of either House of Parliament in whatever party as well. Because it is a very, very wide in scope agreement. It goes beyond simply leaving the European Union.
When drafting Bills there's always a temptation to say, 'Let's just not deal with the current issue that we have, but let's try and anticipate any and all future issues and give Ministers wide enough powers to deal with things that may happen that we haven't anticipated.' What's actually happened in the drafting of this is that it is isn't just the territorial scope about the ability to make regulations as currently drafted that wouldn't require the agreement of any devolved administration for matters that are plainly devolved, and that's set out in my correspondence as a concern. So, if this Bill as drafted is the final product, then the Welsh Government will not recommend consent, because it plainly infringes on devolved areas. Now, what we've said—and I was going into this area in answer to the previous question, to the Chair—is that, unless there is a meaningful role for the Welsh Government in determining future policy on reciprocal healthcare, then we're not going to be in a position to recommend consent. We either have a position where there is no role for conversation between the Governments in that negotiating mandate, if you like, to understand the potential impact at an earlier stage, and if there is no role, then we would say that, for this to be acceptable, there has to be a consenting power for Welsh Ministers. So, you have to give consent to the regulations for them to be effective. If it's to be a consultation power, there has to be that meaningful role within a memorandum of understanding. Otherwise, we're not going to be in a position where we're going to come to the Assembly and recommend that it gives its consent.
Now, already, if you look at the way that this is structured, should there be, in our current Standing Orders for this place—if a Minister in the United Kingdom Parliament wants to introduce secondary legislation that amends primary legislation here, whether it's the legacy legislation, for example the NHS Act, or whether it's a Measure or Act of this place, then there is already a process where the Assembly would have to give its consent for that to take place. So, if this went through, if there were regulations that wanted to affect primary law-making duties and responsibilities of this place, the Assembly would have to give its consent in any event. And, obviously, it's the same process as now where the Welsh Government would provide a recommendation, but ultimately it would be for the Assembly to determine whether it wished to give its consent to the altering of primary legislative powers that this place has.
Suzy Davies—you wanted to ask something on this point.
Yes, it's just a point of clarification, if you can help me with this one, because I share your concerns about the very wide drafting of clause 2 and this issue of the rest of the world. Are you aware of—? Is this attempting to try and cover a situation where the EU itself, as an entity, has arrangements with third countries?
I appreciate the sort of internal—this is about us leaving and our relationship with the EU, but as members of the EU perhaps we'll have arrangements with third countries, which we will now lose because we're leaving. Is this a sort of bungled attempt to try and recreate a route for bilaterals with third-party countries?
That isn't the way it's been set out in conversation or correspondence. In the letter of 26 October from James O'Shaughnessy to me, at the very end of that, on page 6, it talks in the final paragraph that he's looking to the future:
'Regardless of the outcome of the Brexit negotiations, the powers in this Bill will also allow us to implement new agreements to support UK nationals to obtain healthcare if they live in, work in, or move to third countries should this be desirable'.
So, it isn't just the European—it is about potential arrangements with other countries within the world, and that's why they want to have the territorial scope. It isn't just dependent on our membership of the European Union. There are two paragraphs at the end on looking at the future.
Okay. That's what I was trying to get to. It's not just the fact that because we leave the EU we lose those third-party arrangements—
No. And that goes back to my point that this Bill has come before us because of the fact that we are due to leave the European Union at the end of March, but the way it's drafted is a great deal more than just our relationship with the European Union.
I agree with you on that point. Thank you for the clarification.
Just one point on clause 2, which is that, for any regulations made in the future by the UK Government in devolved areas under clause 2, the consent of Welsh Ministers is required rather than that of the National Assembly. What is your view on that specific point?
That's the normal way in which these powers work. The powers are conferred on Welsh Ministers to exercise. When you then get into if it affects primary legislation that has already been passed by this place or primary legislative powers that are, if you like, legacy pre-devolution statute that has come to this Assembly—the NHS Act of 2006 is probably the most helpful example in this context—that's where you have the alternative process of the statutory instrument consent motion if a UK Minister wishes to move a statutory instrument that would affect the primary legislative powers in this place. So, then, of course, the Assembly would need to decide whether to give its consent or not.
Yes, okay. Carwyn Jones.
Minister, good afternoon. Just to take you, then, to paragraph 4 of the letter of Lord O'Shaughnessy of 19 December, much of the correspondence that predates that I've seen, of course, in a different role, which I was detained in for nine years, but I haven't seen this letter. The second question I had I think you've made clear, but I'll just explore it with you just to make sure that I understand it, and that is that, if we look at the second part of paragraph 4, we see the line:
'This would necessarily extend to any regulations that amend, repeal or revoke a Measure or Act of the National Assembly for Wales.'
That's been referred to, of course, by the Chair and by Dai Lloyd. Of course, where UK Government regulations seek to amend regulations that affect Wales, it would be the consent of Ministers that would be required because they would be Executive powers. Of course, if we had a situation—I think you've made it clear, but I'll just ask you again just to be sure—where UK Government regulations sought to repeal, amend or revoke a Measure or Act of the Assembly, so, in other words, primary legislation, then, in your view, it would be for the Assembly to give consent in those circumstances rather than Ministers because it would be a legislative power that would be affected, not an Executive power.
Yes, and I've set this out in my letter of 4 December. In the second paragraph of that letter to Lord O'Shaughnessy, and it's the third sentence:
'I would note that any statutory instrument which amends Welsh primary legislation would of course also be subject to a Statutory Instrument Consent Motion in the Assembly, and it would be for the Welsh Government to decide whether to recommend that consent be given.'
But, of course, the Assembly would have to determine whether to do so.
Okay. The other area, just to explore a little further—. We've already mentioned the offer by Lord O'Shaughnessy on 19 December to insert a statutory duty on the UK Government to consult the devolved administrations before making regulations under clause 2. In your oral evidence, you said that it was important that the Welsh Government had a meaningful role. You made reference to a memorandum of understanding being part of that meaningful role. So, the question is this: thus far, the offer has been to put on the face of the Bill a duty to consult and not a duty to obtain consent. So, in the absence of that offer at this moment in time, how would you see a meaningful role being developed for the Welsh Government? Does it mean, for example, in practice that consent would be required? And secondly, how would the situation be monitored in the future? Once something is said, it's important, of course, that measures are put in place to make sure that people keep their word in the future.
Indeed, and that's why the memorandum of understanding matters, because it's not just about having a memorandum but the content of it matters; that it's written down and not a matter of a telephone call and verbal assurances given between Governments, but something that people can see and understand what has been agreed upon. I gave the example earlier of the mechanism to try and determine prices for a range of pharmaceutical items. The UK Government negotiates on behalf of all parts of the health system—all four nations. There is a conversation between Ministers in all four Governments—well, three plus the current arrangement in Northern Ireland—about the negotiating mandate. Comments are made and there is a quite open process where people trust each other because they understand it's in all of our interests to have a sensible set of arrangements. There is no reason at all why we could not have a similar arrangement with clear rules and an understanding over how that should work, where each Government understands what happens, and, equally, that the public can see that memorandum of understanding, and to understand that that is how the system should work. Now, in those circumstances, should the memorandum provide the range of undertakings that we're looking for, for the involvement of the Government at an early stage, before agreements are entered into, I would be prepared, in these extraordinary circumstances, where we understand we want to maintain reciprocal healthcare arrangements, to recommend a commitment on the face of the Bill to consult. Together with a satisfactory memorandum, that would be something I would recommend.
If the memorandum proposed or drafted is not satisfactory, then we go back to a position of requiring the consent of Welsh Ministers, and that, really, is in the hands of the UK Government. The letter from James O'Shaughnessy on the nineteenth suggests that I am prepared to recommend consent to the Bill, but, of course, that rather leaves out that it's contingent upon conditions being met for that memorandum. If we don't have the amendments from the UK Government to place that duty on the face of the Bill, if we don't have a draft of the memorandum that we are content with, then we're not going to be in a position to ultimately recommend to this place that its consent is given to the LCM.
Thank you, Chair. You know my enthusiasm for skeleton legislation, Minister. I've been through this before.
Indeed. I am well aware of it.
So we'll save a little bit of time on this. It is why you probably recognise my concerns about clause 2 in particular. I mean, some attempts have been made to define what could be covered by clause 2 in clause 2(2), but, bearing in mind the worry I think we all share on the open-endedness of this, have you got any particular amendments that you would like to see introduced to tighten up the certainty on this?
The UK Government have indicated that they are prepared to move a series of amendments as the Bill proceeds. We would need to see what those amendments are. There are regular conversations between officials as well, and they've indicated amendments they may be prepared to provide. We need to see the detail of those and to see them laid. And if we don't believe those are satisfactory, as well as the conversations that take place between officials and Ministers, then, of course, we have the ability with parliamentarians, in more than one party, who would be prepared to try and consider providing an alternative amendment as it proceeds through the Commons and the Lords, because, as I say, this isn't just about how it affects Wales; it would affect Scotland and Northern Ireland, too. So, I think that we are in a position where nothing has been ultimately agreed, because we haven't seen the drafting of potential amendments. So, we're certainly not in a position now to say, 'Yes, I've agreed to or we can agree to amendments laid by the UK Government'. I think that would be the ideal position: to have Government amendments from the UK Government that we agree with and meet the concerns that we've set out. If they don't, there are alternative ways to try and amend the Bill as it passes through the Commons and the Lords.
Can I just ask you a bit more about that, then, because it's not the first time that Government or, indeed, this Assembly has been in this position, and have been so worried that, actually, we've drafted on both sides potential draft amendments of our own that we hope, obviously, that our parliamentary colleagues will take up for us? Are you in that position at the moment, because we're all worried about the timescale on this, as you mentioned earlier? Have you got some drafts up your sleeve, if I can put it like that?
I wouldn't necessarily refer to it as 'drafts up a sleeve', but it is something that we are actively aware of—that if we don't have appropriate amendments that we agree on with the UK Government, we'll need to provide those amendments, potentially, to people who would lay them, as has happened in other legislation, you're right. So, it is an option that we are actively aware of and considering, and, actually, it's not having to draft huge amounts of extra text, to be fair, to give effect to our concerns on the face of the Bill that would still allow these reciprocal healthcare payments and arrangements to continue in place. And that's part of the frustration—that I don't think this is a difficult issue to resolve.
I hope you're right.
Just on that, Carwyn wanted to come in on this point.
Where are the Scots on this, and what communications have there been at official and political level with the Scottish Government?
The Scottish Government's broad position is that they're not involving themselves in any legislative consent motions unless the circumstances are extraordinary. And this may be one of those circumstances because, of course, should the United Kingdom leave without a deal, then potentially citizens from any UK nation, including Scotland, may be adversely affected if those arrangements fall away. So, it is possible that the Scottish Government will lay their own LCM before the Scottish Parliament. We can't be absolutely certain about that—they've certainly not given us any absolute, cast-iron guarantees—and I suspect that events in the next few weeks and what happens, whether meaningful or otherwise, may help to determine that. But we're essentially looking at legislation to safeguard our position should events go in what most of us think is the wrong direction.
There is regular conversation, not just in the copying-in of correspondence, on these issues between Ministers, but also conversations between officials. We maintain very constructive relationships with colleagues in the health department in Scotland, and they agree with us that, regardless of what happens in the next few weeks, it would be sensible for every UK nation and UK health Ministers to meet to discuss the relative where-we-are with Brexit as it affects health and social care, and what we could and should do to put, if you like, party politics aside about what is the best thing to do for the future of the health service. And that's a matter that I intend to pursue with colleagues in Scotland to try and make sure that, once Matt Hancock has got over launching a 10-year plan, about six months after our own, we can sit down and have a conversation about health and Brexit.
Dai Lloyd, you wanted to come in on this as well.
Mater byr. Rydych chi wedi dyfynnu llythyr diweddaraf Lord O'Shaughnessy ar 19 Rhagfyr eisoes, lle mae'n dweud, yn y trydydd paragraff,
Just briefly. You've quoted the most recent letter of 19 December from Lord O'Shaughnessy, where it says in the third paragraph,
'Dear Vaughan...I am delighted to hear that you are prepared to recommend consent to the Bill.'
Nawr, rŷch chi'n dweud wrthym ni y prynhawn yma nad dyna ydy'r sefyllfa diddweddaraf. Felly, i'r perwyl yna, beth ydych chi wedi ei wneud ers y llythyr yna i drio argyhoeddi'r Arglwydd O'Shaugnessy nad ydych chi, a dweud y gwir, yn cydsynio i'r Bil ar hyn o bryd?
Now, you tell us this afternoon that that isn't the latest position. So, to that end, what have you done since that letter to try and convince Lord O'Shaughnessy that you don't consent to the Bill as it currently stands?
There are a couple of points to make. The first is that neither in conversation nor in correspondence have I said that I am prepared to recommend consent to the Bill on the basis of undertakings given. I've been very clear in my correspondence—you'll see in the correspondence of 15 November—that it is contingent upon a satisfactory memorandum of understanding being agreed. In those circumstances, I would be prepared to recommend consent. As ever, when writing between Governments on the definition of Brexit, it goes through a series of different lawyers, and I'll be writing to Lord O'Shaughnessy—. No, I'll be writing imminently to Stephen Hammond in the health department of the United Kingdom Government to set out our position. I want to try and make sure that we're clear about our position without having an unnecessary fight, because I genuinely think, as I said earlier in response to Suzy Davies, that it's not in the interest of any of the UK Governments to have an unnecessary fight on this issue when we all want to see the arrangements maintained. I won't be corresponding with Lord O'Shaughnessy on this issue, at least for the foreseeable future, as he left the United Kingdom Government on 20 December. I believe they're personal matters; I don't think there's any particular dispute on policy. And it's a shame, because, actually, in honesty, he was very constructive and appeared to take a pragmatic approach during our conversations. But I hope that approach is maintained with whoever the successor is who picks up these arrangements.
The previous Minister I also spoke to—Stephen Barclay—within a week of speaking to me had been elevated to the UK Cabinet as the Secretary of State for Exiting the European Union. I'm not sure whether that's the effect of people speaking to me, but—
You're a man of influence, plainly. [Laughter.]
I hope you are. Perhaps you could make a plug for them to improve their definition of healthcare. If you're that influential, please ask them to do that.
I just want to finish by asking about this difference between affirmative and negative procedure. Again, there's been an attempt in the Bill to say why they're going to do one procedure with one type of statutory instrument and why they'll apply the negative to the other. Again, it seems fairly arbitrary to me. At least they haven't gone down the sort of 'Oh, it's a technical matter route', which we're a bit fed up of on this committee. But, do you have any views on that, because it seems a bit binary, and, I will say, arbitrary again, actually? Have you got any views about how this could be dealt with better and what amendments you might consider?
Well, I believe that people of all parties in both houses of the United Kingdom Parliament will have a view and express their concerns, as have already been expressed. This is a UK Bill, and I'm not here to defend the current drafting of the Bill. What I would say is that should a Bill on similar issues of import be brought before this Assembly, I would be amazed if the Government did not agree, at the very least, to those matters being dealt with by the affirmative procedure. These are hugely important issues, and I would be surprised if, at the end of this Bill, the current arrangements are in place as drafted for the negative procedure.
Oh, I'm very encouraged by that. Presumably, with your influential comments from now on with Stephen Hammond, you might be able to drop a hint about what we might feel about this.
Well, I think parliamentarians on all sides of both the House of Commons and the House of Lords look at these matters and would say 'Well, is this really an appropriate use of regulation-making powers? Is it an appropriate use of regulation-making powers in the negative?' They're matters for the United Kingdom Parliament to try and actually agree, but I would much prefer it if it were not the negative procedure.
And I suppose you're hopeful of no more ministerial changes at UK level between now and then. Over to Mandy Jones.
Oh, no, I'd like to see wholesale change, but that's a rather different issue. [Laughter.]
I think Suzy's covered two of my questions, so I've got two different ones for you. As you stated before, this is a UK Bill. It says here that, as the Department of Health and Social Care has responsibility for all financial costs, there will be no additional cost to devolved administrations associated with the Bill. You said that you're not going to give consent to it. Can they override you on that?
Well, it's always potentially within the gift of the current United Kingdom constitution, for the UK Parliament, to override any measure in any other part of the United Kingdom. That's one of the mischiefs that I think we need to resolve within the UK constitution.
Again, I'm going to do a separate question. Following on from what Suzy was saying about clause 2, the money that we spend in the UK and what we pay out for the NHS for people abroad, what are you going to do, or you, with the UK Government, are going to do to recover money from other countries when we give healthcare to their citizens here under a reciprocal arrangement or otherwise? I don't see anything happening with the Welsh Government, NHS or the UK Government getting some of that money back.
Well, I think that's strictly outside the Bill as drafted and the issue it's trying to resolve. What I would say is that, in reality, we have charging arrangements and recovery arrangements and the Welsh Government does recover funds from reciprocal healthcare provided to citizens from other countries throughout the world, just as we pay for healthcare in other countries throughout the world. I don't really think it's the point and purpose of this Bill to say where's the evidence of that money being recovered, but it absolutely does happen and I myself have updated the regulations on those charging arrangements on more than one occasion during my time within the Government.
One relevant point there of course is the assurances you've been seeking in respect of no additional costs falling on Welsh Government. I just wonder where we are on those assurances because—
We initially had a very definitive 'there will be no costs', which was welcome, and I think that was in the letter from James O'Shaughnessy on 26 October. Certainly, that was set out in telephone conversations, that there wouldn't be a cost shifting onto the Welsh Government. Then, there was a trimming back on the issue. If you look at the letter of 19 December from James O'Shaughnessy, and it's the first paragraph on the second page, it then suggests that:
'Where these schemes entitle foreign nationals to access domestic healthcare services, it will remain the responsibility of all the four nations to provide those individuals with that healthcare...and bear the costs, accordingly.'
We want to be absolutely clear that the United Kingdom Government does not enter into new arrangements that shift costs onto the Welsh Government. That was the undertaking that we asked for and it was given, and you'll now see a trim in the position. That's a matter for us to continue to take up.
Do you have any other questions on the Bill, Mandy?
Yes. What happens if any of the amendments tabled and accepted by the Bill in relation to Wales that you could possibly disagree with?
What would happen if amendments are tabled and accepted to the Bill in relation to Wales and are there any of those types of amendments that'll come through that you would disagree with?
That rather depends on what the amendments are, and given that I haven't seen any of the amendments I can't really comment on that.
None have come through yet, no?
No, and that's part of the reason why we're in this slightly unsatisfactory position of in telephone conversations we're broadly giving them the direction we will want to take but we've not seen the detail of the amendments that the UK Government say that they're prepared to provide. When we see those I'll be in a better position to update this committee and of course the other committee that will take an interest in this matter, I think later on this week.
Symud ymlaen i gymal 5, gan ein bod ni wedi treulio tipyn o amser ar gymal 2, ond mae'r un math o heriau efo cymal 5. Yn ôl memorandwm esboniadol Llywodraeth y Deyrnas Unedig, o'u hochr nhw, ni fydd angen cydsyniad y Cynulliad mewn perthynas â chymal 5, ond mewn cyfan gwbl gyferbyniad, yn eich memorandwm cydsyniad deddfwriaethol chi rydych chi'n nodi y bydd angen cydsyniad y Cynulliad mewn perthynas â chymal 5. Felly, sut mae cysoni'r ddwy agwedd yma?
Moving on to clause 5, as we have spent so long on clause 2, but the same kinds of challenges exist with clause 5. According to the UK Government's explanatory memorandum, from their perspective, the Assembly's consent will not be required in relation to clause 5, but in stark contrast, in your legislative consent memorandum you note that the Assembly's consent will be required in relation to clause 5. So, how can we bring those two things together?
That goes back to the conversation that we had earlier. Where there is a piece of secondary legislation that seeks to amend primary legislation, the Assembly will need to give its consent. So, that is the position. It is clear. It is understood. There is a nice set of initials that mean nothing to anyone outside lawyers or politicians immersed in this area, but that's the process to follow. So, the Assembly would need to decide whether to consent to that amendment of primary legislative power.
Ac mae Llywodraeth y Deyrnas Unedig, felly, yn deall hynny, ydy hi? Pam mae yna wahaniaeth barn ynglŷn ag a oes angen cydsyniad y Cynulliad ai peidio?
And the UK Government understands that, does it? Why is there this difference of view as to whether the Assembly's consent is required or not?
We set that out very clearly in our correspondence. The drafting of the Bill in front of you was again not something that was shared with us in advance. Should it have been, we could have avoided a range of issues; we may have had a piece of draft legislation that we could recommend to you. That is not how we have arrived at this point. I would much rather be in a position during the passage of this Bill where we have a piece of legislation that we can recommend to the Assembly, because as I say, it is not in the interest of any UK nation or any one of us in our respective parties to see these arrangements come to an end.
A fydd memoranda cydsyniad deddfwriaethol atodol yn dilyn unrhyw welliannau i'r Bil sy'n effeithio ar gymhwysedd datganoledig yn y fan hyn?
Will supplementary LCMs follow any amendments to the Bill that affect devolved competence here in Wales?
A ydych chi'n hyderus na fydd y Bil yn effeithio ar y setliad datganoledig i Gymru? A ydych chi'n hyderus y bydd yna ddim effaith ar y setliad?
Are you confident that the Bill will not impact on the devolution settlement for Wales? Are you confident that there will be no impact on the settlement?
No. The Bill, as drafted, does affect the settlement potentially, and that's the reason why we're having this discussion and conversation about the width and breadth of the powers as drafted. And to be fair, the UK Government themselves recognise that consent is required. If the Bill isn't amended to a satisfactory form, we'll have a position where the UK Government recognises there's a primary piece of legislation going through the UK Parliament that affects devolved competency and does not do so in a way where there's agreement between the devolved Governments of the United Kingdom and the UK Government, and that would be a very unsatisfactory position to get into.
Parliament is sovereign in terms of the current UK constitution, but actually there is a political consequence to simply overriding the wishes of directly elected representatives here and in other UK nations. And, on an area where we all agree on the policy objective and maintaining these arrangements, that would be a poor fight to choose. So, I'm optimistic that, as I said, the pragmatic approach that James O’Shaughnessy took in our conversations will actually be made real in real amendments and a memorandum of understanding that we can actually see and agree to, so that we don't have that wholly unnecessary and avoidable disagreement.
Diolch. Cwestiynau i ddilyn ar ddydd Mercher.
Thank you. There will be some follow-up questions on Wednesday.
I'm sure there will. [Laughter.]
Suzy Davies. Carwyn, did you—
Sorry, just an observation really. This is the difficulty that we face, not just in this area but in others, where healthcare arrangements with other sovereign states are not devolved, but the implementation of those agreements is devolved, which is why—and I think you've made your position very, very clear on this—it is so important that we have the strongest voice possible in order to make sure that agreements are not made at international level that we then have to fulfil and, more importantly, finance.
Indeed, and the shifting of finance around potentially as a result of these agreements is potentially significant, and if you give way on the principle then each person, whatever our party, and potentially this institution and our Government roll over in a way that none of us would believe is acceptable. And, again, I just don't think that is a smart fight for the UK Government to pick. There are so many other things that we need to resolve with Brexit, and that's also why I've proposed health Ministers from across the United Kingdom sitting down and agreeing on a way forward on areas where we recognise it's in the interests of the health service in every nation to do so.
Suzy Davies, do you have any further questions?
Just one briefly, because I agree with you: you pick your fights in this and I'm hoping the UK Government will see sense and bring forward something sensible by way of amendment on this. Are you worried at all that they might try and filibuster to shorten the time period with the to-ing and fro-ing with letters or are you more confident than that?
Well, that would be some risk to take on an area where we agree on policy objectives and where we want to go. That isn't the approach that any Minister has taken in our conversations, but they need to get from broadly saying the right thing in conversations to actually making that real by laying amendments or discussing amendments with us in advance that then get laid that we can agree to, to be able to move on, because I don't particularly want to spend all of my time arguing about an area where we agree on where we want to get to ultimately, in the end.
Okay, I'm just testing the red line with you a little bit there. So, let's hope they won't need the red line, yes?
Well, I hope not, because as I say it's a system that works well for UK citizens from every country and we'd like to see that carry on.
Okay, thank you. Thank you, Chair.
Just a couple of small points: just clarification on the financial situation, the UK Government refer to £50 million being recovered as a proportion and that they would expect that to increase. Does money actually come back to Wales out of that, because the assurance that's been given is that there will be no additional costs? But out of the moneys that are recovered, is it the case that moneys actually that are recovered do come back or are distributed pro rata or in any other format?
Yes, we have charging arrangements for people who receive healthcare within this country—it depends where the person comes from. So, we have charging arrangements for non-UK nationals from other parts of the world outside the European Union as well. So, we recover a range of those, and, yes, from the overall sums that are recovered and provided throughout the European Union and wider economic area there is a sum that comes to Wales. I'm sure that the committee on Wednesday may be interested in some of the sums and the policy areas behind them, but, yes, we do get some—
So, it's not a centralised process; it goes back to the respective health trusts or bodies.
It comes into the health service here in Wales, so the Government.
That's okay, that clarifies that point. Just one point that we are asking of all legislation is the consideration in terms of the accessibility of legislation, particularly in light of the various statements from the Counsel General with regard to that. Are there any issues in terms of how you'll deal with the accessibility and promulgation of the legislation?
As with all modern legislation, it will be published, it will be made available on publicly accessible websites that are free of charge. It's a UK Bill, so again, if it becomes a UK Act, it will be the UK Government that publishes it. Any subsequent arrangements that we make will be provided. So, for example, if there were to be a memorandum of understanding, we'd expect to make that publicly available too. So, I'd always have the question in my mind when talking about access to legislation as to how much of that is about the text being available and how much of that is about the meaning and the purpose of the text being available in an accessible format. The two things, as I know you understand, are different.
Okay. There are no other matters on this. I thank the Minister for your attendance today on the first day back and for the very helpful answers in respect of what is a very complicated area. Thank you very much. You will in due course be sent a transcript of your evidence. Thank you to your officials as well.
If we now move on to item 3: instruments that raise no reporting issues under Standing Order 21.2. Statutory instruments with clear reports, affirmative resolution instruments: the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019. For the record, these regulations make amendments to the Housing Act 1985 and the Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Act 2017 in consequence of the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018. The regulations make saving provisions to ensure that the relevant provisions within the 1985 Act will continue to apply in respect of applications made to exercise the right to buy or the right to acquire in respect of dwelling houses in Wales on or before 25 January 2019 and in respect of dwelling houses that have been purchased under the right to buy or the right to acquire on or before that date, or after that date in pursuance of a notice served before that date. Are there any lawyers' comments or any comments from Members about that?
On to item 4: proposed negative instruments that raise no reporting issues under Standing Order 21.3B. Proposed negative statutory instruments with clear reports, and just to draw your attention to the fact that these are the first of the regulations that are subject to the sifting procedure introduced by the European Union (Withdrawal) Act 2018. In accordance with Standing Order 21.3B, as a committee we must report on the appropriate procedure to follow based on the criteria set out in Standing Order 21.3C.
So, we move on to the Elections (Wales) (Amendment) (EU Exit) Regulations 2018. This is an instrument that removes references to Members of the European Parliament, the European Parliament and elections to the European Parliament not required following the date of withdrawal. Any comments? Any observations?
On to item 4.2: the Environmental Damage (Prevention and Remediation) (Wales) (Amendment) (EU Exit) Regulations 2018. These are regulations that amend the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 in order to address failures of retained EU law to operate effectively and other deficiencies arising from the UK's withdrawal from the European Union. Any comments or observations?
Item 4.3: the Environmental Noise (Wales) (Amendment) (EU Exit) Regulations 2018. These are regulations that are made under powers conferred by section 11 of and paragraph 1(1) of Schedule 2 to the European Union (Withdrawal) Act 2018 and they amend the Environmental Noise (Wales) Regulations 2006 in order to address failures of retained EU law to operate effectively and other deficiencies arising from the UK's departure from the European Union. Any observations or comments? No.
On to item 5, then: statutory instruments requiring consent in accordance with Standing Order 30A, EU exit. We'll go on to item 5.1, which is the Floods and Water (Amendment etc.) (EU Exit) Regulations 2019, and you, of course, have some correspondence before you: statutory instrument consent memorandum, regulations, explanatory memorandum and commentary. These regulations amend a number of EU directives, statutory instruments and primary legislation. The Welsh Government statement explains that the purpose of this statutory instrument (affirmative procedure) is to address the failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the EU on the basis of a 'no deal' scenario. So, these are essentially minor and technical amendments to fix deficiencies such as, for example, references to reporting to the EU Commission and so on. Are there any comments?
On to item 5.2, the Fisheries (Amendment) (EU Exit) Regulations 2019, and, again, you have correspondence: statutory instrument consent memorandum, regulations, explanatory memorandum. And the Fisheries (Amendment) (EU Exit) Regulations 2019 amend a number of statutory instruments and primary legislation in respect of fishing. Any observations or comments?
On to item 5.3, the Environment (Amendment Etc.) (EU Exit) Regulations 2018. Again, you have the papers before you. These regulations amend various pieces of secondary and primary legislation and revoke a number of EU directives and decisions in relation to the environment. The Welsh Government statement explains that the affirmative procedure addresses the failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the EU. Any comments or observations?
Can I just make one observation? It comes up repeatedly in the Welsh Government covering letters that these relate to operability amendments, which I'm sure is right, but it also says 'and other deficiencies'. It would be quite nice to know what those other deficiencies were.
He said that all the way through.
In the consent memorandum, normally within the regulations as well, in the explanatory memorandum, there are details there. Some of them are—. You have to go through them to find some of them.
I know, they're mind-bending.
I specifically referred in the last one—the floods and water one—that the deficiencies there, for example, were references to member states having to report to the EU Commission and, of course, once we're not within the EU Commission—
Oh no, I understand.
Okay, any comments?
Right, we're now on to item 6, written statements in accordance with Standing Order 30C: the European Union (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) Regulations 2018. You have before you a written statement relating to the EU withdrawal Act. Any comments? Any observations? No.
In which case, item 6.2, the Common Agricultural Policy (Direct Payments to Farmers) (Amendment) (EU Exit) Regulations 2018. This is a written statement relating to the Common Agricultural Policy (Direct Payments to Farmers) (Amendment) (EU Exit) Regulations 2018. Any comments or observations?
On to item 6.4, the Rural Development (EU Exit) (Amendment) Regulations 2018. Again, this is a written statement relating to the Rural Development (EU Exit) (Amendment) Regulations 2018. Any statements or comments?
No, that's fine.
Item 6.5, the Shipments of Radioactive Substances (EU Exit) Regulations 2018. Any comments?
Item 6.6, the Environmental Permitting (England & Wales) (Amendment) (EU Exit) Regulations 2018. Any comments?
Item 6.7, the Intelligent Transport Systems (EU Exit) Regulations 2018. Any comments or observations?
Item 6.8, the Animal Breeding (Amendment) (EU Exit) Regulations 2018. Any observations or comments? No.
Under item 6.9, the European Structural and Investment Funds Common Provisions (Amendment) (EU Exit) Regulations 2018, do you want to make some comments there, Gareth?
Yes, one small comment. These regulations enable existing programmes in the UK, currently funded by the European agricultural fund for rural development, to continue for the remainder of the 2014-20 period. The regulations also enable existing programmes funded by the European maritime and fisheries fund to continue on exit. The statement from the Welsh Government refers only to the continuation of the agricultural fund; it doesn't refer to the continuation of the maritime and fisheries fund. Of course, that doesn't affect the effect of the regulations.
Okay, comments or—
Noted. Okay. Item 6.10 is the Ionising Radiation (Environmental and Public Protection) (Miscellaneous Amendments) (EU Exit) Regulations 2018. Any comments?
Item 6.11, the Plant Breeders’ Rights (Amendment etc.) (EU Exit) Regulations 2018. I think there were some comments on this—Gareth.
Yes, there are a few incorrect references to legislation in the Welsh Government statement, and they are listed under points 1 to 4 on pack page 202. More important is the point quoted under bullet point No. 5 on pack page 202: the
'Regulations confer functions on the Controller of PVR',
—plant variety rights, which is a public authority that is not a devolved Welsh authority, and, as the Welsh Government statement says, functions transferred to a public authority other than a devolved Welsh authority would engage paragraph 10 of Schedule 7(b) to the Government of Wales Act 2006. This means that if the Assembly wished in future to legislate to remove or modify the functions that are being given to the controller of plant variety rights under these regulations, then the Assembly could not do so without the consent of the UK Government. So, by consenting to the UK Government making these regulations, the Welsh Government is, in a way, restricting the Assembly's freedom to legislate in this area in future, albeit in a fairly narrow policy area.
We'll take that up, write directly to the Welsh Government, and raise those particular points and seek clarification. It will come back before the committee and we'll review it then. Is that agreed?
Okay, item 6.12, the Marketing of Seeds and Plant Propagating Material (Amendment etc.) (England and Wales) (EU Exit) Regulations 2018. Any comments or observations?
Item 6.13, the European Parliamentary Elections Etc. (Repeal, Revocation, Amendment and Saving Provisions) (United Kingdom and Gibraltar) (EU Exit) Regulations 2018. Any observations or comments?
Item 6.14, the Invasive Non-Native Species (Amendment etc.) (EU Exit) Regulations 2019. Any comments?
Two small comments. Although these regulations amend primary legislation, being the Destructive Imported Animals Act 1932, they are not doing so in a way that is within devolved competence of the Assembly, so that's why there is no statutory consent process applying here. It's also worth noting that these regulations provide a useful example of how post-exit arrangements can apply in different ways in different parts of the United Kingdom—in effect, a mini-framework, albeit again in a fairly limited policy area.
Okay. Shall we note those points? No comments. Okay.
We move on to item 7 now: the inter-institutional agreement. This is the agreement with Welsh Government in terms of the inter-governmental work that goes on to enable and facilitate the scrutiny of that. It's been before this committee several times. You now have the draft that's been agreed by Welsh Government, and this will be tabled for the purpose of a debate. It's not a matter that goes to the Assembly for approval, but it's a matter of sufficient importance that the Assembly is aware of it and is able to discuss that, so it's really just to note that, unless there are any comments that anyone wishes to make on that.
Okay. Item 8, paper to note. The letter from the Cabinet Secretary for Education on additional learning needs. This is the updating letter from the Minister. Noted.
Item 8.2, a letter from the leader of the house: regulations made under the EU (Withdrawal) Act 2018. So, I just invite you to note the letter from the leader of the house, which provides an update on Brexit-related legislation and, in particular, the number of pieces of legislation that need to be made. Are there any comments on that? I think that's item 225. We have requested, on a number of occasions, this sort of detailed information about the number of incidents and so on that are likely to come through. Are there any issues on this? There is one point, just to draw attention, I think it's the very last paragraph, it's actually page 227, where the leader of the house, Julie James, stated that,
'In circumstances where consent is given to a UK Government SI, our position is that consent is provided for the entire SI, rather than consenting to specific parts of the SI.'
I just wonder about seeking clarification about precisely how that operates, whether—. Because it seems to me—it was the point we raised before—helpful to actually know which bits are being specifically referred to, and if they have been specifically referred to, and that really isn't clear, and I don't think the letter clarifies. So, with your agreement, I'll write and seek clarification on that particular point.
Now, where are we—? A letter from the leader of the house, 10 December. A letter to the leader—. So, we've dealt with those.
Item 8.3: a letter from the First Minister, the Animal Welfare (Amendment)(EU Exit) Regulations 2018. Note?
I should declare an interest.
Yes. We'll do that rather than seek clarification. [Laughter.] A letter from the First Minister, 7 December; a letter to the First Minister, 28 November. So, we've noted those items of correspondence.
I'll move on to item 9. So, in accordance with Standing Order 17.42(vi), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do the Members agree?
bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).
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.
Okay. So, we go into private session.
Derbyniwyd y cynnig.
Daeth rhan gyhoeddus y cyfarfod i ben am 15:31.
The public part of the meeting ended at 15:31.