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Y Pwyllgor Materion Allanol a Deddfwriaeth Ychwanegol

External Affairs and Additional Legislation Committee

17/06/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Alun Davies AM
David Melding AM
David Rees AM Cadeirydd y Pwyllgor
Committee Chair
Delyth Jewell AM
Huw Irranca-Davies AM
Mandy Jones AM

Y rhai eraill a oedd yn bresennol

Others in Attendance

Akash Paun Sefydliad y Llywodraeth
Institute for Government
Hedydd Phylip Prifysgol Caerdydd
Cardiff University
Professor Jo Hunt Prifysgol Caerdydd
Cardiff University
Professor Michael Keating Prifysgol Aberdeen
University of Aberdeen

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Alun Davidson Clerc
Clerk
Claire Fiddes Dirprwy Glerc
Deputy Clerk
Gwyn Griffiths Cynghorydd Cyfreithiol
Legal Adviser
Manon George Ymchwilydd
Researcher

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

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

Dechreuodd y cyfarfod am 14:03.

The meeting began at 14:03.

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

Good afternoon, and can I welcome Members and the public to this afternoon's session of the External Affairs and Additional Legislation Committee? Before we go into our business for the day, can I just do a bit of housekeeping? Can I remind Members to please turn your mobile phones off or on silent, as they interfere with broadcasting equipment? Simultaneous translation from Welsh to English is available via the headsets on channel 1. If you require amplification, that's available on the headsets via channel 0. We've got no scheduled fire alarm this afternoon, so, if one does take place, please follow the directions of the ushers to a safe location. Any Members wish to declare an interest at this point in time in relation to common frameworks?

Only my chairing of the European advisory group, Chair. 

Which we have noted before. Thank you for that. We've received apologies from Joyce Watson this afternoon, with no substitution. And can I welcome to this afternoon's meeting, Mandy Jones, on behalf of the Brexit Party, who is now a member of this committee?

2. Fframweithiau polisi cyffredin y DU
2. Common UK policy frameworks

We move on to our next item, but, before we start the next item, just for the public's purpose, we have changed the format slightly this afternoon because of the difficulties we are having with the video connection to Sir Michael Keating. So, we're going to change it to an hour's session with the three witnesses present. We will then take a short break and then we'll have a half an hour session with Professor Keating on audio only. And that's going to be the slight change this afternoon. 

So, can I welcome Professor Jo Hunt, Cardiff University, Akash Paun, Institute for Government, and Hedydd Phylip from Cardiff University, also the Welsh governance centre—

14:05

The Wales Governance Centre, yes.

—to this afternoon's session for a discussion on frameworks, common frameworks in particular? And perhaps if I start with a question that is a nice and easy one—and I'll go from left to right, if it's okay with yourselves, because it's an easy one—where do you see us with the current situation on common frameworks? Where are we, how far have we still to go on the discussions with common frameworks?

So, we have seen some apparent progress over the past six months or so. I was last before the committee, I think, in January, with Jo, speaking on this subject—a pleasure to be back—and since then we've seen the revised frameworks analysis document published in April, we've seen further quarterly reports on progress in reaching agreement on the frameworks, and I think we can see from that that there has been a lot of inter-governmental activity. There's a huge amount of work taking place at the civil service level, there are working groups between the administrations, and I understand there are draft framework documents in some areas. So, I do think there's been a lot of analysis at the working level. But, at the political level, particularly I think between the UK and Scottish Governments, the two sides are clearly still some distance apart from each other, particularly on the whole idea of the UK internal market, which the Scottish Government, as far as I understand it, seems to almost reject entirely as a concept, despite the fact that that is supposed to be one of the core principles determining where and how frameworks will be developed. So, I think one has to draw that distinction between the progress at the analytical, civil service level and the progress towards reaching a political consensus. And I suspect that the Welsh Government is somewhere in between the two on that issue.

Thank you for that. We will be wanting to explore a little bit further particularly the UK internal market, and particularly the Scottish and the UK Governments' relationship in relation to frameworks as well. So, we'll come back to that as well. Jo.

I think in part it depends on how we define a common framework, and what it is that we're looking at. If we're looking at that analytical document of the however many areas it is at the moment, then that is a particular piece of work. And we know that there's been very effective engagement at an officials' level; there's talk at a ministerial level of this having entered a more collaborative phase, politically. But then, whilst we see some positive developments there, we still haven't necessarily seen any of these outline frameworks—well, we haven't seen any of these, the outline of these frameworks. We're having commitments to transparency and stakeholder engagement, but we still haven't had any evidence of that. So, we have that piece of work that is ongoing about creating the principles, or seeing the principles that were initially agreed back in, was it, October 2017, seeing how they are read across and what the output of that is, whilst, at the same time, we've had that piece of work around getting ready for—whether that's March this year, or October this year, or whenever that Brexit period does end up being, but that piece of work, with primary and secondary legislation coming through, which might in fact already be presenting, as with some common frameworks for the future.

So, in terms of where we are, we're in different places, depending on what we are defining as a common framework. I think we've got a lot of positive development that's been taking place around the setting of principles and governance structures—or so the reports would lead us to believe. I think we've still got some concerns around those principles—and I personally have some concerns around those principles—that they're not yet forward-looking enough, in terms of looking back to having as much flexibility as we currently have in the European Union. Well, that's going to stop meaning something very, very quickly. And, at the moment, the flexibility in that legislation is perhaps there as a product of subsidiarity—the operation of subsidiarity—so, maybe connecting it to some deeper principles like that would be more appropriate.

Yes, I agree with most of what's been said. And I suppose, just as a footnote to this definitional problem that we have, and the fact that we have the statutory instruments coming though—Brexit-related statutory instruments coming through—both by Welsh Government through this place and also at Westminster level. The latest framework analysis that we've got mentions the fact that these might indeed form the basis for long-term co-operation on common frameworks. If that's to be the case, then it would be very beneficial indeed to have an idea as to what the Government's thinking is on that and how they begin to take shape. Because we know, as was just mentioned, that these instruments are the project of co-operation at official level. So, there seems to be a kind of common understanding developing, enough to see these statutory instruments come through, but that isn't reflected in the political conversation and in the top-line documents that we—well, that are absent at the moment. 

14:10

Thank you. Can I share some of my worries with you? There is a lot of abstract in these papers about the importance of democratic oversight and accountability. I think you mentioned specifically the April document—the accountability to devolved legislatures. So, there is a lot of abstract there, but there's no detail to any of that. One of the things that concerns me is that, where you develop a structure, an inter-governmental structure, then the democratic oversight should be developed at the same time and not be an add-on, a bolt-on at the end of that process, and the democratic oversight doesn't start when a framework is signed or enacted, but the democratic oversight should start at the beginning of the process of negotiating that framework. Because I would anticipate a Welsh Minister coming from here, or going from here, with a mandate perhaps, with having given the very clear understanding to this place what will be negotiated, what their position is, and then a response back to that so we can understand how these frameworks are being planned. At the moment, it seems to be—you know, notwithstanding the structures that have been created for it and the reports and the rest of it, it does seem somewhat ad hoc and it does seem that the different frameworks are progressing at different times according to different timescales and, as such, democratic oversight doesn't seem to be an integral or central part of what is happening at the moment. 

Sure. I would share many of those concerns. I think there is—generally, based on the international evidence, there's a sort of finding that the more decisions are taken in inter-governmental forums, the greater the challenges there often are for Parliaments and legislatures to exercise appropriate scrutiny, because inter-governmental relations do tend to operate in quite opaque ways.

Indeed, if you look at the existing memorandum of understanding, very out of date though it is, that sets out how IGA are supposed to work in this country; the principle of confidentiality runs through that very strongly as a core principle. So, there is clearly a problem with the lack of transparency around what is being negotiated and what is being agreed between the Governments.

It's not easy to come up with a single, magic bullet solution to that. Clearly, there's a role for each of the individual legislatures to hold to account their own Ministers in what they are agreeing to, what they are negotiating in inter-governmental forums. And then there is, I think, a question and a live debate about whether there might be a need for stronger inter-parliamentary co-operative working. I think the more that we move towards a system where decisions are taken, or even executive power is exercised, at an inter-governmental level, then one has to design the scrutiny mechanisms to reflect that. 

Jo, can you answer that, but did you also look as to whether, here in Wales, the Welsh Government has been open and transparent enough for us to actually do the scrutiny of the discussions?

14:15

I think, from the perspective—. The commitments that have been made to democratic oversight within the documents that we've seen—. It's saying what it's supposed to say but, in terms of the opportunities for the Assembly to feed into the process—. You've got that feeding into the process of setting up the structures—the meta-structures—as well as feeding into the process of creating specific pieces of output around these frameworks. Again, are we going to—. In one place it might look like a piece of primary legislation, like the Agriculture Bill, with space within it for more localised variation—

Okay. So, what we've got there is, if that is the approach that's taken, what we've currently got, if we use legislative consent motions, that in itself is not enough feed-in to that piece of primary legislation. It might not be seen as sufficient feed-in for an overarching framework within which Wales has its own space for its own variations within that. But this comes back to we don't know what we're talking about. We don't know what we mean, yet we still don't know what we mean by these common frameworks. It might be like that. That's what it might look like. So, if that is the approach that's going to be taken, if there is going to be a common framework and that's our understanding of it, then there is a case for looking at some of those approaches already—what works, what doesn't work, what could be improved generally and the space for that.

You've got the LCMs and how they play in, but also something else we might draw on is something like subsidiarity review. Is it going to be akin to subsidiarity? Is it some form of subsidiarity review? If we're looking at how competence, powers, are being exercised in areas where there is a sharing of competence—. We might not be used to necessarily referring to it as areas of shared competence, but effectively these are areas where there is ultimately always that overriding reach for the Westminster Parliament, with consent. But, in those areas of shared competence, should some form of more procedural review be taking place? There are different forms of engagement and involvement, and whether that's all that wrapped up in one or whether that takes place in different committees and different parts looking at different aspects of that, of course, but then the co-ordination of that here and then more broadly across the UK in the different Parliaments and Assemblies—. 

A two-part question, extending on from what Alun was saying. As a point of principle, would it be better for the citizens of Wales, of Scotland, of Northern Ireland, of England, in the shires or elsewhere, to have a clear, transparent, understandable ownership of what is going on by politicians like us and by Ministers, particularly when we're devising these? On a point of principle, would it be desirable that it is much clearer and simpler and understandable? Part of the reason I'm saying this, by the way, is one of the criticisms often of the European Union is you have pieces of legislation coming out of the Commission, pieces of legislation coming out of the Parliament now, whatever, and people going, 'Where does this stuff come from and how do we engage with that at that distant place?' So, part of the lessons I feel, myself, we should be learning, in devising these common frameworks and the issue of transparency, is making something really simple and something that Jo and Joanna public out there can just grab at and go, 'I can see where that came from and I can see that we've got an input into that'. Am I right with that? Or should I say, 'Well, actually, there is a job of work to be done here by civil servants and Ministers and they should be allowed to just get on with this in their rooms, wherever they do it'?  

I would say I think there's always going to be aspects of this that are highly technical, technocratic, we might say, and are not going to be designed for a general public audience. But, to the extent that common frameworks may end up being a sort of new tier of governance within the UK constitution, we'll see exactly where this all ends up. That may be overstating it, but, in principle, one can start to think about it in those terms, I think. We have reserved functions, we have devolved functions, and now we're talking about shared functions, shared competences and the governance mechanisms for that. So, if that is what we're creating, then, yes, I agree with you. I mean, I think this is a set of reforms of constitutional significance that the public have a right to be informed about and to express their opinion on.

14:20

I guess, if I can put it clearer, I'm trying to avoid the mistakes that have been made before, where this was seen as something that's very, very distant. Because, we could be talking about legislation, we could be talking about other, much more tangible things for people. And if they feel that this is being done by a distant elite, either in Cardiff or Westminster or somewhere that they can't quite put their finger on, my argument would be that this is an opportunity with common frameworks, if not to put the citizen in more control, to at least clearly understand far better than we currently do at a UK level, and a European level actually, how these things happen and where they can demand accountability and where they can see the paper trail of who said what and who negotiated on what and who sold me down the river.

Yes. Of course you want the public to have as much say as possible, and I think especially in light of the tradition of this Assembly, with the Legislation (Wales) Bill for example, and moving towards the space of codification and an attempt to make Welsh law more clear for people and more accessible, then certainly we wouldn't want to see the position where Welsh law in one area is going off in a clearer direction, but that, with this issue of common frameworks, it's bringing it back into the shadows, as it were. So, that is definitely something to consider, but also the fact that, I think, when the initial common frameworks analysis was published, there was an attempt there to make it clear and simple. There's a list of policy areas—some will be, maybe, legislative; some will be non-legislative. But it's when you dig down into that detail that it gets technocratic, and then it gets very difficult to figure out where powers lie, and so that's the challenge. It's how you balance the top-line policy areas and scrutiny of that with the technocratic detail of it.

Sorry, Chair. There will always be the technical issue that will be of fascination to anoraks and politicians and civil servants—whatever—but there must be, surely, a basic set of principles that underpin transparency within devising a new common framework within the UK, and that should include, surely, as Alun was saying, not simply what happened after the event but what led up to the point. What were the points of difference, the points of argument, the items that were there to be negotiated, and how did we get to this point? And that goes way beyond perhaps where we are now. There are some examples in the European Union, actually, where this is well laid out, where you do do a series of statements to Parliament on the way to certain discussions and so on. But surely we have to have that as a bare minimum now, going forward—that this place has to be informed in the run-up to things and what are going to be the flash points, as well as what comes out the other side.

I suppose the question is: are we missing an opportunity to actually do something different as we build these common frameworks, or are we simply following the old pattern of letting Government sort it out without any consultation or involvement of stakeholders? Do you see the fact that there could have been something done differently here that might have engaged the public and stakeholders better in the development of the common frameworks, or is it seen that this is simply a bureaucratic, technocratic sort of exercise?

We are where we are in terms of exiting the European Union, and so we can't ignore the fact that that has brought us to where we are, and that has created a context that has meant that, obviously, the way that things have progressed may not have been ideal in governance terms, in terms of democratic openness and accountability. However, they're clearly not simply technocratic issues. They are issues about when it is appropriate for the UK as a whole to act as a whole or to co-operate and to co-ordinate, and it brings into question some very fundamental questions about what it means to be the United Kingdom. What is a United Kingdom? Where is that co-operation, or that collaboration—the need for a one UK-wide overarching approach to be taken? Where is there space for that difference and divergence? So, it's absolutely to the heart about what devolution is is about what the union is, and it's that being played out across policy areas, and then, from that broad framework, technical issues arise.

One of the things we're still not seeing is—. We have a general statement—these are the sorts of reasons why we might need joint common frameworks—but we're still not at the level of any explanation of each of these, taking it back to any of those principles. So, whichever one of those you want to pick out in the list, there is not a case that's been made publicly yet as to why this is being treated as a common framework. It's not being explained in terms of common resources, common approach or the internal market. There's a list there, there's a list there and a list there, but there's no read-across yet in that. And so, there's that whole part of the debate and discussion that hasn't taken place in general terms, but perhaps we'll see it being picked up in policy specific terms. But ideally, yes, we would want a bigger discussion about this and a more open discussion about this that engages people about the nature of the union.

14:25

Yes. I wanted to make a similar point. The most recent frameworks analysis does have some interesting mini case studies—I'm sure members of the committee will have seen—of just giving a very high-level summary of what some of the frameworks might look like, with some reference to the principles. But I think, yes, ideally we would have in the public domain the evidence base, or some version of it, that is driving the decisions, from that long list of areas, about which ones are being categorised as requiring legislative frameworks, and why. Supposedly there is detailed analysis about in which areas policy divergences will carry the greatest risks to economic activity and so on, but the thought process is very opaque.

But the culture in which it's happening, as well, is quite opaque, isn't it? Because one of the very refreshing things, of course, about dealing with the Commission in Brussels is that they are used to dealing with a number of different Governments. And, for them, it is an everyday occurrence to have a number of different Governments with different opinions, with different views, whereas it's difficult to say the same about Whitehall, which sees itself as the UK Government and the Government of England all as a matter of the same thing. And it would be very easy, I suspect, for a civil servant in Whitehall to make a very good case that every single power should be part of a UK internal market and should have a framework of control attached to it. We saw that with the last Wales Act process, when we were moving to reserved powers.

I'm interested, therefore, in ensuring that we are able to protect a settlement, but not simply to protect a settlement, but to introduce the transparency and openness that I believe, and others, I think, would believe, is required. And the reason I reacted, Professor Hunt, when you were talking about LCMs is that, as we all know, legislative consent motions do not have anything close to the level of scrutiny, and the consequences of enacting those consent motions have nothing like the level of scrutiny, that a piece of primary legislation would normally have. And what would tend to happen, therefore, is that the Welsh Government would reach an agreement with the United Kingdom Government and we'll simply be told, then, 'You need to vote this through' without any sense of where that leaves us either today or tomorrow. I think that is a real weakness in the process.

I'm coming to a view that, essentially, we need a framework for the frameworks—that we need a democratic settlement within which the frameworks exist, where accountability, openness and scrutiny are hardwired into all parts of them. But also that we have structures that enable—dispute, if you like—policy development to happen on a UK level that isn't the property of the United Kingdom Government. I don't think we have that at the moment.

The conversation we had last week about the shared prosperity fund is one where we should be working together as the three or four Governments in the United Kingdom, but we're not doing so because there are levels of disagreement and the rest of it that goes on, and it's all happening behind closed doors. So, you can't say that that is a good example of policy development. Do we need to have a piece of legislation here, in Edinburgh, in Westminster, that establishes a framework for a new United Kingdom? And if so, how could that be used, then, to govern the actions of the Executives in all four places?

14:30

A couple of comments in response to that: first of all, in terms of the attitudes in Whitehall, which you started off with, I think there are probably some people in Westminster, in Whitehall, who might start from the preference of trying to control and impose law in all of these areas. I'm not sure if that's overall the position, though. If you look at the way that the withdrawal Bill proceeded through, certainly they started from a position of setting the default that everything would go back to Westminster, and this committee and many others; the Institute for Government said that that was not the appropriate way forward, and the Government ended up moving quite a long way from there and showed that, I think, its preference is to reach agreement, where possible. I don't think the UK Government wants to be enforcing frameworks in the absence of consent from this place or the Scottish Parliament. I think there's a little bit more of a willingness to try to reach agreement than maybe you suggest. But there is, nonetheless, a risk that agreement can't be reached, and, yes, if it is perceived at Westminster that there are risks to the internal market and so on, these things might then be pushed through without agreement. So, that was just my thought on that point.

As for your idea of a framework to govern all the frameworks, I suppose I would need to see a little bit more detail, or hear a little bit more detail, on exactly how you think that might work. I think what we can see at the moment is that there's a lot of activity taking place within individual departments and through negotiations between, say, DEFRA and relevant parts of the devolved Governments, and an attempt by the centre of Government, by the Cabinet Office, to somewhat retrospectively, sometimes, make all the pieces fit together. And that's possibly not the ideal way around. We would want to have some more consistent principles about how decisions will be taken, how disputes will be resolved, how disputes might be escalated, for example, through the Joint Ministerial Committee structure. Whether you'd have a single Act establishing the framework for frameworks I'm not quite sure about, to be honest. Is that something you've thought about, Jo?

Not in terms of a piece of legislation that—. I think there's a lot of—. We're needing to learn about this whilst we're doing it. We're working through the principles, identifying what those principles should be, and then maybe there'll be an opportunity to reform that, revise that. And whether the legislative route, in terms of setting up meta-legislation at the moment, may not be the appropriate route to be taking in this period, and that it's something that we could have our sight on in a time to come when we've had a little bit more experience of this, working with the existing principles and recognising their weaknesses. But given the job of work ahead, as we depart the European Union, I think, yes, we have it in mind, but it's not necessarily part of this process, in legislative terms, creating that in a statutory form.

Thank you. Looking at the asymmetrical way in which devolution works, and also the asymmetrical way in which the inter-governmental agreement works, what impact do you think we'll see legally from the fact that the Scottish Government isn't a signatory to the inter-governmental agreement and the Scottish Parliament refused to grant consent and that that sets it on a different footing from the Welsh Government? Do you think that's going to have any messy implications for how common frameworks will be implemented or developed?

14:35

The inter-governmental agreement was, of course, linked to the agreement around the withdrawal Bill, and in particular the acceptance by the Welsh Government of section 12, and the potential for UK Ministers to freeze devolved powers. And that was something that the Scottish Government and the Scottish Parliament decided it simply couldn't give consent to. So, in the event, or at least so far, of course, those powers have not been used by UK Ministers. And, again, referring back to what I was saying a moment ago about the approach of the UK Government, I think, as far as possible, they will try to avoid using those powers. But we may yet come to the point when they deem it necessary to impose section 12 Orders. And at that point, then, I think—. Well, the implications of having the Welsh Assembly and the Welsh Government having committed to the withdrawal Act, and accepted the logic of section 12 Orders, whereas the Scottish Parliament did not—I think that's when you might find a significant difference emerging as a result.

As we know, there hasn't been seen to, as yet, be a need, whether there ever will be, to use section 12—whether UK Gov has taken a decision not to do that because of the context of the legislation and the lack of support, or it simply hasn't been necessary, given the timing of where things are and how things are happening. We're still bound by EU legislation; there's no scope to do anything differently anyway. So, it was never needed; it was a power that was never needed. If we do see, at some point in the future, section 12 coming in in a way that Welsh Assembly and the Welsh Government wouldn't be happy with, then it might be that there is that scope for Scotland and Wales to stand together—the Governments, the Assembly and Parliament, perhaps—in relation to that. Legally, the way that the law might state—. How that plays out politically, I think what we might need to bear in mind is how Scotland may—. We've had this period of Wales and Scotland working quite closely together, and it might be that that might be put under challenge anyway as we look to be moving towards another independence referendum in Scotland, or that becomes something that is talked about more and more in Scotland. So, it might be that the common ground that may have been found before—it might start shifting. So, we'll wait and see. As you say, that asymmetry—there are different stakes, there are different concerns, and there has been a period where there has been quite clear overlap there between Scotland and Wales, but whether that's going to diverge a little—. So, it's the legal within the political context that I think we need to be aware of.

Thank you. I was going to ask on governance structures, but, Hedydd, was there anything that you wanted to add to that?

No, just to say I really agree, because until we get some primary legislation through that really tests that, then we shall wait and see. But I think it's notable that the Welsh Government is seemingly very happy with the way that the inter-governmental side of these agreements are pushing forward and they may not see the need to bring forward that much primary legislation in terms of the common frameworks. And that will pose significant challenges for the legislatures, but it might not weigh so heavily on that asymmetry that you were talking about.

Yes. Sorry, I'm just intrigued by—. Why do you think that they are content with the way it's going along?

I was at the event this morning and Jeremy Miles seemed quite positive.

Sorry, it's slightly unfair—I'm asking you to mind-read a little bit. Not whether they are content, or why has your analysis come to the conclusion that they're content—why do you think they are content? I know this sounds like an odd question, but for Welsh Government to be in a position where, broadly speaking, they're saying, 'We're quite happy with it', there's something—

14:40

I think that primary legislation in these areas is the worst-case scenario, in a sense, and so the maximum that you can achieve without locking anything down indefinitely, by coming to inter-governmental agreements on these topics—then you maintain maximum flexibility, potentially, for the future, but also keep everything ticking over. Therefore, you're not incurring the wrath or the possibility of the section 12 Orders.

By leaving the door ajar. [Laughter.]

Thank you. Coming back to governance structures, and another area where, potentially—although this might be a political reading—Westminster holds all the cards at the moment, in what way do you think that inter-governmental relations would need to be amended to look at dispute-resolution structures? Is there a precedent—I know that we're in unprecedented territory in so many ways at the moment, but is there a precedent elsewhere where dispute-resolution mechanisms have been set up between Governments where there is this hierarchy that hasn't been challenged in that way before?

I haven't done particular international comparative research on dispute resolution in similar constitutional scenarios, so I'm not sure where would be the best place to look for that. Obviously, there are federal systems where there are legally defined divisions of competencies between tiers of Government, and then it would often be for the courts to resolve disputes. That would, of course, be a long way away from where we are in the UK at present. It might be that, one day, we end up at that point, and, obviously, there are people who would like to move towards a federal, codified constitution or something.

But I think from where we are now, the challenge is to create more robust and transparent dispute-resolution mechanisms that move us away from the current principles as set out in the memorandum of understanding, and the dispute-resolution protocol, such as it is, that operates through the JMC, which, effectively, leaves the UK Government as the judge and jury in cases where disputes are raised by one of the devolved administrations. I think that's already very, very hard to justify. When there have been disputes, about funding most often over recent years, not only can the Treasury effectively just decide on the outcome of the disputes unilaterally, but they can also simply decline to accept that there is a legitimate dispute at all, as committee members will be aware was the outcome when the money for Northern Ireland through the deal with the Democratic Unionist Party was challenged. I don't see any way that one can justify that scenario, but it's very deeply rooted in the way the Treasury operates and keeps a very tight grip of public finance—the public finance and budget processes across the UK. So, we clearly have to move away from that anyway.

And then, around common frameworks—for both, actually, the non-legislative and legislative frameworks—they're only going to work, they're only going to be functional, if there is continued commitment from the four administrations to making them work. No doubt there are people in Westminster/Whitehall who think, 'Well, we can just legislate and create them if we have to and never mind the absence of consent.' Legally speaking, that may be true, but that's just a recipe for complete dysfunction, in my view. So, I don't have a 'Here's a solution I prepared earlier', but I think that that is absolutely a vital problem to be solved.

I think it comes back, evermore, to the trust in the system. We hear time and time again that there might be moments where individuals in particular key roles mean that things work better than they have done before. What we don't have is that general buy-in and trust in the processes and the structures and the systems, such as they exist—so, that idea of having a robust enough set of procedures that brings with it a sense that this is something that people can commit to because they have trust that it will be operated in a way that respects the devolution settlement within the broader union. So, whether that is that we move towards a system that sees an independent third party being involved in dispute resolution, whether it is a form of mediation or a form of arbitration, whatever is then proceeded, it's about who is seen as, as Akash was saying, controlling and driving that. And, if there's a sense that you wouldn't necessarily get a fair hearing, then, clearly, there are weaknesses within that model, so—.

14:45

Yes, just very quickly, on the issue of trust, because trust is obviously important and goodwill is very important in terms of running any system, any democratic system, but I don't want to rely on trust. We heard a Minister last week telling us that she was going to take the UK Government to court on various matters, and whilst I'm—. I don't want to go down that route either; what I want is a structure in place that is rules based and where everybody is treated equally. That's why the EU is such a successful union, because there is a rules-based structure in place and everybody accepts the rules and the regulations, and everybody works within that structure. The United Kingdom isn't that structure and doesn't work like that. At the end of the day, you can talk to a UK Minister as long as you like, and then they just walk away and do what they choose to do anyway, if they choose to do that. Other times, you can sit down and have a very good conversation with a United Kingdom Minister and come to a very good agreement that suits everybody. But you can't work on the basis of that goodwill; you have to work and create a structure, surely, that works when you don't have trust and when you don't have goodwill, because that's how you create—

But it's having that trust and the confidence in the system and in the structures. So, that's—. It's recognising that simply trusting each other isn't going to necessarily always work, but it's having, 'They are a set of structures that we can trust in.'

Yes, I agree with most of the analysis that we've heard this afternoon from our experts. I also value experts, if I could put that on the record. I have noticed myself that, when you question the Welsh Government—and, as a Tory, obviously, there's a certain tension when it comes to me and it's my turn to grill—and you get beyond the concerns about the lack of robustness and some, I think, quite valid issues around resilience, which usually come down to arbitration and that sense of it not just being completely Whitehall led—. But, actually, the functionality seems to have worked remarkably well, and there's been a huge shift, as Mr Paun indicated, from the initial view that all these powers, more or less, would land in Whitehall and then they would be devolved but at the discretion of Whitehall, and that's not what's happened.

I think, in constitutional theory, shared governance is probably the most difficult area to administer and to analyse, often. Even if you have a rules-set-out base, it can be circumvented and often is. This is a tricky area and has been at the European level. There have been improvements at the European level, but it's not always been a picnic; it's been a pretty closed system, with very limited parliamentary scrutiny until the Lisbon treaty, I think you could argue.

Anyway—sorry for the long introduction—the real issue we have, I think, is the parliamentary scrutiny, because there's nothing analogous to the role that the European Parliament now plays, both over budget oversight, its increased legislative powers, and its ability also to sack the Commission, or at least hold that as a sword of Damocles over a Commission that is just not responding. It looks at the development of the European Union's competences and also over those areas that are matters of shared governance, like many environmental issues. But we don't have that at all. You may get piecemeal parliamentary oversight late in the day as the various Governments permit it. But we've not even decided, or at least it seems to me that the Governments have not even decided, to build on the authority and expertise that the House of Lords has built up, which has kind of been the unofficial European scrutiny body in the UK. And I just wonder whether we should be looking at perhaps both ends, at how we can improve our scrutiny through anticipation, I guess, and just being more demanding of our own Governments in just seeing what are their negotiating lines or at least their general position before they go into these discussions. But also I just think that the House of Lords is in screaming need of reform, and why is there not more, from your point of view, really—the academic community—pointing this out, that, if there is one way to safeguard the operation of the union and the application of common governance, it would be through an enhanced role for the House of Lords, into which it would be very easy, incidentally, for the devolved bodies to feed and co-operate.

14:50

Do you want to start?

Well, House of Lords reform—. This idea, which I think you're sort of invoking of potentially turning the Lords into a sort of chamber or senate of the nations and regions, as is the case in certain federal systems—. Is that roughly what you had in mind or—?

Well, not entirely, but you could give the House of Lords—. I mean, it's old traditional purpose was to defend the constitution, wasn't it? Obviously, that was completely reinterpreted under the Parliament Act, but that was basically what it claimed, anyway. And you could give it an overriding power to advise and protect the union, into which—it would take a particular interest in these things.

I do believe in some House of Lords reform, though you'd have disproportionate Welsh and Scottish and Irish representation; I think that would be helpful. But much of its role could continue and much of its membership as well, so I'm not saying you need a complete reform but at the minute it is—insofar as we have a chamber that really does look at Europe, it's there, and yet it doesn't seem to me to be developing much of a role over common frameworks.

Committees of the House of Lords have taken an interest, of course. I think the challenge, though, is that the House of Lords is, of course, a chamber of the UK Parliament, and we have this odd constitutional set-up that the UK Parliament and UK Government are also the—

But it's never under the Government's control, however, is it? Or rarely.

No, that is true, but I think nonetheless it would need to be reformed quite radically into something with, yes, as you say, much more disproportionate representation for the smaller nations before it could take on a role as the defender of the devolution settlement, I think. Because, otherwise, just by sheer weight of numbers, it's going to be hugely dominated by English voices. It may not be under Government control, but I think there's still a sort of Westminster mindset that you would need to try to move it away from. So, I think the other reason why maybe people have given up talking about House of Lords reform is simply the number of times it's been attempted and failed over many years. That's not to say that it's not worth trying again.

The other thing that there's been some interest in, of course, and some progress towards, is in creating new mechanisms for members in committees of the various Parliaments to work together. There is the Interparliamentary Forum on Brexit now, which I imagine, Mr Chairman, you're a member of. So, an alternative way forward would be to build on that. At the moment, it's a useful, I think, mechanism for sharing information and maybe amplifying the voices of the different committees where they have an agreement, but one could think about that taking on a formal permanent role in scrutiny of inter-governmental relations.

14:55

Yes. On the point of inter-parliamentary relations, I think that's a very interesting one, and work that I've been doing alongside a colleague, Jack Sheldon, in Cambridge University, and we are still ongoing with that work. There's certainly scope to enhance the role of the inter-parliamentary forum in a way that complements maybe the work that the House of Lords does, as opposed to displaces any of that work. It's unclear at the moment whether there is a will in the legislatures for that to be cemented in any sort of formal way. But, certainly, the informal nature of the forum seems to be very much welcomed by the members, and there's certainly buy-in from those who attend.

There could be scope there for the forum to undertake some work akin to scrutiny. I think the difficulty is that the informal nature of it makes it difficult for it to scrutinise proper, because good practice in scrutiny, as we know, involves transparency. So, it would be difficult to undertake those kinds of meetings in private and try and call it scrutiny. But there's certainly scope there for an increased role in the information sharing and for talking about common frameworks and understanding of what happens in each of the different places in terms of the different policy aspects. There's certainly scope for an inter-parliamentary forum to come in and talk policy issues and understanding of where you are on different bits of the frameworks in a way that helps members, when they return to each of the different legislatures, in their scrutiny role there.

Oh, I did want to ask about—. The use of the single market concept is problematic. I think that Jo has mentioned this, and our next witness has made the same point. Have you seen any of that in practice yet, working out through the frameworks? When we talk about the single market in Europe, there is a huge baggage of things that come behind that in terms of citizens' rights and free movement and environmental and consumer protection, whereas the single market concept in Britain is not so well defined, I think.

I'd agree. But, again, we still have not seen this play out yet in terms of where we're going with these potential common frameworks and where they intersect with ideas of the UK internal market. As you say, our idea of an EU internal market is a very rich concept; it is simply not—it's not just about economic free movement. It's a social market economy. It brings with it commitments to environmental protection, social protection. All of that is embedded. There is space for divergence, and it's got a structure; it's got a set of governance arrangements and principles that underpin it.

We still don't know how this process is using the idea of the internal market. It seems to be very much an economic notion, but that cut across that might come across devolution, if it hasn't got anything else that brings it back—whether that's subsidiarity or whether that is a commitment to environmental protection that might make sense to do things more locally—. As I said, it, at the moment, is a very, as you say, thin concept that we don't yet have the dimensions of, and it could be a cause for concern.

I would just add that a lot, of course, will depend on the eventual terms of the UK relationship with the EU, because I think that the starting point within Government for trying to put some flesh on the bones of the idea of the internal market is thinking about: well, what are we going to lose after Brexit? What are the institutional arrangements and the principles around non-discrimination and a level playing field and processes for notification of new regulations and so on that, currently, the European Commission enforces across the EU? So, what are those things that we will lose? It's hard to answer that question definitively until the nature of the future relationship becomes known. There is clearly, it seems, a spectrum of possible future scenarios in that respect. So, I think that that ought to be high on the to-do list for an incoming Prime Minister and new administration to really take that forward. But I suspect, at the moment, there's not very much progress been made. 

15:00

Okay. You stated earlier about how much work is being done on statutory instruments, et cetera, and we can see actually see that in black and white, because I was on a previous committee doing that, and we've put a lot of those through. What are your views on how the Assembly should monitor the operation of, and compliance with, frameworks and the implementation of policies and legislation under the frameworks, considering that, from the evidence I've heard, nobody at this moment in time actually knows what a common framework is? The name 'common framework' should be so transparent between the UK and the devolved Governments. So, how should the Assembly monitor the policies and legislation under these so-called common frameworks? And, do you think the Welsh Government and the UK will ever be on the same page, possibly with the help of something like the inter-parliamentary forum or another body? 

On the point of statutory instruments— 

No—[Laughter.] There's quite a lot there, but on the point of statutory instruments, I think there's no doubt that they form a part of the common framework issue in a way that we don't quite understand yet what that means. And you'll know, having been part of that committee, the information that comes through attached to those SIs is not always comprehensive and it's not always easy to understand how they link up with the wider legislative plain, with what SIs might be going through in different places and how they might interact with other pieces of legislation. So, I suppose, as just a point of transparency, it would be helpful to get more information, rather than less, when those SIs are introduced in a way that would help, so that jigsaw puzzle starts to be constructed before the SIs make an appearance before the committee. 

Yes. I would just say you're making the point that it's not quite clear exactly what is or what will be a common framework, and I think the reason for that is they're going to be quite different. There isn't going to be a single thing that looks like a common framework in all of these 100 or so areas—90 or so areas—where they're talking about them. First of all, some of them are going to be legislative, some of them are going to be non-legislative. That's one big difference. But, even then, the legislative frameworks, some are likely to be a fairly limited statutory underpinning with more detailed inter-governmental memorandums of understanding, concordats and that kind of thing to fill in the detail, and then I imagine in a lot of areas they'll be fairly light touch—just agreements to share information—and, often, yes, as mentioned, the retained EU law is likely to simply carry forward effectively as the framework. So, I think we're using this term as a catch-all for a range of quite different mechanisms. One might hope that there would be a bit more consistency across the piece, but I think the nature of the beast is just that there's going to be a need for quite different scrutiny and accountability in the different areas we're talking about. 

Just to come back with the relationship, inter-parliamentary, but also the clearly critical relationship that this Assembly has with Welsh Government, and in terms of the nature of the role that Government has in response to this institution, whether it's mandating the Government Ministers to go and negotiate on Wales's behalf, or whether it's more of 'The Ministers come and report back'—not neccessarily mandated formally in that same way. To draw parallels with what happens at an EU level, we have some systems—the Danish system, for example—where their Ministers are clearly mandated with a particular line to take. So, that's agreed in advance, rather than them coming back to explain what's happened. I suppose it's about how that relationship is understood, sort of feeding into these common frameworks if there is that creation of them at an inter-governmental level. 

Time has caught us up, and I'm going to take the prerogative to ask the last question. We've talked about the frameworks. There obviously are some areas that are under dispute, such as state aid. It's still very questionable as to whether that would be considered because the UK Government consider it to be reserved and the other Governments do not—consideration of the implications within that. But is it worrying to you—because everything I've heard this afternoon is saying that there's still a long way to go, effectively—is it worrying to you that we've still got that long way to go because time is moving on, not just in this room, but also in relation to the process? We could be in a situation on 31 October where we will have left the EU, or we'll be leaving the EU on that particular day and are we going to be in a situation where there will still be many aspects of the common frameworks yet to be decided? We will not necessarily have the safety of the European Union frameworks because they'll have gone. So, is there a deep concern that we're still going to have a long way to go in this process?

15:05

Well, I mean, if we were to leave at the end of October with a deal, then, of course, we'd be into a transition period, presumably—

Yes. So, then there's breathing space. If we're talking about leaving with no deal, then, yes, I think it's very concerning, and if that appears to be the likely outcome and that cliff edge starts to approach, well, we'd have to wait and see what line the new Prime Minister would take, but one would assume there would be an attempt simply to push through Westminster the necessary legislation with or without consultation or consent, just to ensure that there is a functioning set of legal and administrative arrangements.

And could that include more section 12 legislation as a consequence?

Well, we haven't seen any yet, we haven't needed any, but then if we move to a position where we are no longer bound by EU legislation, if we are having no transition period with the EU, then the terms of the withdrawal Act will apply to what happens domestically to EU law, but there's that scope then for things to start being done differently. In which case, then, the potential move to section 12 Orders arises, so it's at that point we might start seeing it.

Okay. Well, thank you for your time this afternoon. We've come to the end of our session. You will receive a transcript of the session, and, again, if you find any factual inaccuracies, then please let the clerking team know as soon as possible so that we can get them corrected. Once again, thank you for everything. We'll take a five-minute break to establish the connection for the next part of the session, which is an audio link with Professor Keating, continuing with the discussion on common frameworks.

Gohiriwyd y cyfarfod rhwng 15:07 a 15:10.

The meeting adjourned between 15:07 and 15:10.

15:10

Good afternoon. This is Huw Irranca-Davies, a member of the committee. I wonder if I could just start by asking you what your reading is of the current state of play on this nebulous concept of common frameworks. How do you think it's progressing from a Scotland perspective?

I don't think it's progressing at all. There are several different types of frameworks we've got here. We've got the set frameworks, where the Government's come up with a whole list of specific competencies that might or might not have common frameworks, and then there's a parallel discussion going on on the concept of the internal market, which seems to be at a fairly early stage. That kind of links to the first one, but not terribly clearly because the internal market is a very broad concept and it may be broader or narrower than the specific sectoral frameworks. And then there are sectoral bills that are going through—the agriculture Bill, the environment Bill and so on—that have a buy-in from Wales but not from Scotland. And then there's the unresolved question of what happens about international agreements and international trade deals and how they would fit in; how the devolved governments and legislatures would handle the implications of international agreements. And I don't see that any of them are really coming to much of a definitive conclusion.

Clearly, a different take entirely in Scotland than from Wales—it almost goes without saying. If you could, if there was some way of stripping out, if you like, the different political approach within Welsh Government and Scottish Government, is there a way to say whether, at least on a technical basis, for example, discussions from a Scotland perspective are proceeding in any way well?

I think there's a difference in approach between the Scottish Government and the Welsh Government. That is: the Welsh Government is not against joint policy making as long as Wales, Scotland and Northern Ireland are part of that. So, it wants an input into these shared policies, whereas the Scottish Government really wants to go its own way as far as possible. It's the difference between what we used to call co-operative federalism, which is the Welsh model, or co-ordinate federalism, which is the Scottish model, which would require a lot less by way of frameworks and a lot less by way of joint committees and working parties, and that, of course, is partly due to the political complexion of the current Scottish Government, but it's not only that. It's also to do with the different way that Scotland and Wales are treating devolution and have done over the last 20 years. That difference has big implications for the institutional form that these frameworks might have. And then, of course, there's the current disputes because the Scottish Parliament refused to give legislative consent to the European Union (Withdrawal) Bill and the Welsh Assembly took a different position. So, that means that the political relationship is much more difficult in Scotland than in the case of Wales.

And would it be your reading because of that, because of the differences, that that is in any way inhibiting the level of engagement between Scottish officials as opposed to politicians behind the scenes with Whitehall on this?

Well, there's been a lot of work going on around this at a technical level, but, ultimately, it's not a technical problem, it's a political problem, and unless civil servants, of course, have a clear lead from their own Government, then they can't really conclude on these kinds of things. Political relationships are a difficult point. There's also, of course, the whole shadow of Brexit and whether Brexit is going to happen and what it would look like, that it makes it very difficult to know what kind of frameworks might be required.

Just one final question from me at this stage before I hand over, and they're really helpful answers that you've given. With the fundamental difference in philosophy from the Scottish Government, the Scottish Executive, to the UK proposals around common frameworks, does that in effect mean that it's at something of an impasse? The Scottish Executive, the Scottish Government, wouldn't even deem to, if you like, put forward, if there were to be progress on common frameworks, what common frameworks should look like that would, in effect—and let me put it this way—bind Scotland into the wider United Kingdom.

15:15

No, not necessarily. We know what the long-term ambition of the current Scottish Government is and of a majority in the Scottish Parliament, with two pro-independence parties constituting the majority. I don't think that precludes getting agreement on what's going to happen short of independence. After all, in Northern Ireland, we've got two parties that historically have a very different position who have, in the past, been able to agree on Government and are now placed to try and agree on Government again. So, I think we have to separate people's long-term ambitions from what's got to be done to make things work. Indeed, the Scottish Government said, 'Yes, some kind of frameworks might be necessary.' They also are very keen, very insistent, that any such frameworks should not require taking competencies back to Westminster. Everything should be done on a voluntary basis, but then I don't think there's that much difference on that point with the Welsh either.

Sorry, I said there was one final question; could I just add one in, because it's a really practical example? I'd be really interested in your take on what is currently happening with the Fisheries Bill. It's probably of interest to you. Down here, the Climate Change, Environment and Rural Affairs Committee that we have in the Assembly expressed the view that the Fisheries Bill, England and Wales, which is coming forward there, was actually a missed opportunity because, if there was something more radical, less based on what's currently happening, it was an opportunity, for example, to radically redistribute quotas. Now, in effect, the Fisheries Bill is de facto providing something of a common framework as it goes forward, and yet would I be right in saying that, curiously, it's advantageous to, for example, the Scottish white fleet at the moment, because what they wouldn't want is some radical redistribution of quota formula? So, oddly, some of the frameworks that are going on that are providing dissent in some quarters at the moment may actually be reflecting pretty much what's currently going on and, as such, be advantageous to Scotland.

Well, that may be, but there is the issue of principle here. And the Scottish Government has been unwilling to buy into these sectoral Bills because it says these competencies belong to it. It's also not clear how these sectoral Bills relate to the other framework discussions that are taking place. But the idea of a UK Agriculture Bill, or agriculture, fisheries or whatever, with Scotland, Wales and Northern Ireland going into that—that's something that seems to go against the philosophy of the Scottish Government, or at least until such time as there's a clearer philosophy and a clearer statement of what frameworks are supposed to do. So, I think we just seem to be deadlocked on that point. And on the Agriculture Bill—I know you mentioned the Fisheries Bill, but going back to the Agriculture Bill—another difference is that current Welsh Government has a philosophy on agriculture, a policy, closer to the UK Government than does the Scottish Government, which wants to keep more direct support payments. So, it would be more difficult for the Scottish Government to buy into that because it will be wanting to pursue quite a different policy.

Good afternoon, Professor Keating. This is Delyth Jewell. In our earlier session, we were talking about how difficult it is to explain the concept of what these frameworks are, especially to members of the public. What do you think the main pitfalls are in the fact that the frameworks are going to take such radically different mechanisms—so, some of them are going to use memoranda of understanding, some of them are going to use concordat, some of them will be legislative, some non-legislative? It seems very messy. What do you think the main pitfalls are from that?

15:20

It is messy and it's inconsistent. It's very difficult for Members of the Assembly or the Scottish Parliament to follow all these things, and there's a danger of inconsistency in approach. It would be useful to have some basic principles, such as that policies should not be imposed upon the devolved, policies should be agreed, and what the underlying purposes of these things are. Because the Government has gone at this from two directions, as I said before—one is to start with the minutiae, excruciating detail of—[Inaudible.]—and the other is to start at the other end with this vague notion of what the internal market is and try and narrow that down and hope that the two processes will meet. And that's a very curious way of going about it, because they might not meet. And then, I suspect, in addition to all the ones I've listed, there'll be all kinds of ad hoc things going on as well.

It would be better to start out with some principles about inter-governmental relations—start thinking about some machinery, whether it's the council of the UK, as the Welsh Government has suggested, or some other mechanism, which will be there to look at issues as they come up and get some consistency of treatment across these different fields. We've already been talking about agriculture and fisheries under trade; each of these Bills seems to have a different mechanism. That's a very British way of muddling through, but I don't think it makes for transparency.

Thank you. You mentioned about inter-governmental structures and that there should be common principles that should be in post from the start and that any changes shouldn't just be imposed but that there should be agreement across the piste. So, looking at dispute resolution, how do you think current structures could be amended to strengthen them? We asked the panel earlier and they weren't aware of any precedents elsewhere of how dispute resolution can be brought in where there are already established inter-governmental principles and a hierarchy, can you think of any precedent that we could be drawing on for that, please?

Well, in federal countries, there are these mechanisms, in Germany, in Canada, less so in the United States, in Switzerland. There are mechanisms and the Scottish Parliament is currently looking at these, and I'm going to be talking to them on Wednesday about this. And then, in Spain, I was looking at the mechanisms they've got there. Spain is probably more similar, because it's not officially a federal country, but it's a federal kind of country and they've got a council for the internal market, which is an inter-governmental organisation that has the Spanish Government and the devolved Governments there. It has a secretarirat, which does a lot of the technical work for it, and then there are mechanisms to try and resolve disputes through the central councils, which are the equivalent to our central frameworks, to try and keep them out of the courts as far as possible, because that's always a danger—things get tied up in law. That's something that's worth looking at.

It is, of course, very political and the relations at the moment between the Spanish Government and the Catalan Government are not very good, and the process itself has even been to the constitutional court. But the idea there, I think, has something that is quite useful, particularly the idea that this is a genuinely inter-governmental council and not a hierarchical mechanism. The idea—and this is something that we've also suggested in our Royal Society of Edinburgh paper—is that attached to that council, there should be some technical capacity so that if there's dispute about what the internal market involves, you should have qualified people allowed to give their advice, but ultimately, of course, with the politicians who make the decisions. And then, there's the idea that there should be some mechanism whereby the different levels of Government can reach an agreement and if necessary have to vote on it, but that the central Government should not always have the last word. And that's the big weakness of the British system is that Whitehall in Westminster, in all the existing mechanisms, will have the last word, and that has a feedback throughout the entire process, because if you know in a deadlock you can simply impose your way, then it doesn't help the process of negotiation.

Professor Keating, can I just ask a question? Obviously, you've just mentioned Spain and the council of the internal market, and you talked about the internal market within the UK. Is there a sufficient understanding of what the internal market is within the UK at this point, for us to look at the ways, perhaps, in which these frameworks fit into that, and particularly the resolution of disputes?

15:25

No, there isn't sufficient understanding. Initially, the UK Government was talking about the UK single market like the European single market, but it was really quite a misleading analogy, because the European single market had a particular mechanism. The Commission has a role there, the Council of Ministers has a role there, the court has a role there to make sure that decisions are taken collectively, not unilaterally imposed. There's a principle of proportionality and subsidiarity and there's a legal framework for it. Now, in the UK we may or may not want a legal framework, but once you start talking about legislative frameworks, you have that, and ultimately there's the European Court of Justice that will arbitrate on disputes. Now, we don't have anything like that in the UK devolution system. We didn't need it. We didn't have all these overlapping competencies and we didn't need something like the single market because we had the European single market. For us then to find what a UK internal market might look like outside the EU, there have been a series of discussions that have revealed that it's a very flexible concept, which has all kinds of ramifications and can be defined in a very narrow way, about competition and subsidies and state aid and so on, or could be defined in a very broad way, which would include regulatory divergence, environmental policy, all kinds of things.

We know that, in the European case, some unexpected things have come up. In the case of Scotland, there was the minimum pricing for alcohol, which was introduced as a public health measure, and suddenly that was taken to the European Court of Justice on the grounds that it violated the internal market, or the single market. So, we can have a broad understanding or a narrow understanding, and then it's also very political. Some of these political questions concern the boundaries between the market and public services. For example, the health service in England has got a lot of private provision. Now, does that come under the single market? Do we have to allow private providers into the health service because we've got a European or a UK single market or not? That's a very political judgment, and I think, having launched this idea, people in the UK Government are beginning to realise that maybe this could be something of a headache.

Then there've also been discussions as to how much this really matters. What really matters? Public procurement matters, probably; state aid may or may not matter. Do we need a framework for agricultural subsidies? Well, since there's going to be a shortage of money, probably not. That might not matter. So, these are the kind of considerations people are working with. We don't really know what's going to matter, we don’t know, and until the politicians give some clear lead as to what these principles are—whether they include public procurement, and what regulations are included—then not a lot of progress can be made.

Huw Irranca-Davies again. Professor Keating, you've made a very strong case for putting forward the mechanisms, the inter-governmental mechanisms and others, that would be a much more structured response to where we are now, but what would you say to a UK Government Minister who might say, 'Look, we've got our hands full with Brexit. We will muddle through. We will do common frameworks and we'll get to that stuff eventually. There's too much on our plates. We don't have enough civil servants, and the public just want us to get on with this, for goodness' sake.'

Of course, that is one reason why progress is not being made. Brexit poses huge challenges to our constitution and we can't sort all those out before October, if October really is the date for leaving the EU. But at least it's important not to set precedents that are going to get us into trouble at the moment, and to just think through some of these a little bit more carefully than perhaps has been done.

But you've pointed to another problem in this, which is the lack of engagement of UK Ministers, other than the designated Ministers responsible for devolution. Because, of course, in their minds there are more urgent and possibly more important things. And, of course, depending on what relationship we have with Europe in the future, maybe a lot of this is not going to be necessary, depending on how much regulatory alignment we end up having with the EU.

Regardless of the wider constitutional questions here and different parties' positions on the constitutional questions, what would your informed opinion be on whether some of these mechanisms are simply of necessity to futureproof the working of the United Kingdom, regardless of Brexit? Some of the mechanisms we're describing have been discussed before over the years. They're not totally new, but there is an urgency to them now because of where we are with Brexit. Do you think they're necessary regardless?

15:30

Well, yes. Brexit has revealed some of the problems in the constitution that people have been talking about for a long time, such as the legislative consent mechanism—that Westminster will not normally legislate in devolved matters, but nobody ever defined what 'normally' meant. And that was tested, really, to the limits with Brexit. And then there has been a lot of complaint about inter-governmental mechanisms, which very often atrophy. So, for a long time, the problem is not Westminster trying to grab power back from the devolveds, as sometimes is suggested, it's just ignoring the devolveds. But, at the moment, there's great sensitivity in Whitehall about devolution, because it's 20 years from devolution—I was down in Whitehall just the other week—and part of it is the fact that it's devolution week and because these things have been thrown up by Brexit. So, in that sense, the devolveds have got more attention in Whitehall than they've had for a very long time, so maybe this does give an opportunity to try to get these things sorted out while people are paying attention. 

Hi Professor Keating. Mandy Jones here. I'm going to go right off-piste here and ask you a question about Scottish devolution. Scotland, on principle, seems to be going towards another referendum. They want their freedom, yet they still want to go back into the EU if they get that referendum result. What happens if the referendum gives the same result as last time and you stay in the union? Will you have all your frameworks and paperwork and everything in place if that result comes through like that?

Oh, we can play around scenarios about this and about Brexit, but there's so much uncertainty in all this. What happened after the last referendum was a result that was so close that there was a big constitutional change, with the Scotland Act 2016 and new taxation powers. That's still being worked through, because it's huge challenge, taxation powers and welfare powers. So, in answer to your question, if we are in the UK and outside the European Union, then yes, those questions will have to be thought about and they'll be very urgent. 

A simple follow on from that is: clearly, Scottish Government officials are working in Whitehall with Welsh Government officials and UK Government officials to develop these frameworks and, at this point in time, they are working towards the solution of frameworks without the clear political approval of an agreement from the Scottish Government on this matter. Do you see that being a problem if we get to a point where, on 31 October, we leave? There are some frameworks that could be approved, but the Scottish Government is still in dispute with the UK Government because of the situation relating to the EU Withdrawal Bill and the fact it overrode the LCM decision. 

Well, yes, because these things have to be given political approval from Ministers. I talk to Scottish Ministers and civil servants, and I can't say a lot about that because it's all off the record, but clearly you're aware of the political situation there, which has made it difficult for further progress to be made. And the situation in Wales is different. You also have the broader question of the current Scottish Government and a majority in the Scottish Parliament being in favour of a second Brexit referendum. They haven't accepted that Brexit is necessarily going to happen. That's part of the political environment. And until that is resolved, then it's difficult to see any Scottish Government definitely signing up to something that would deal with the consequences of Brexit. 

15:35

I'm loath to ask you, Professor Keating, as an academic, whether you have a crystal ball with you there, but on that basis of what you were just saying, where does that take us logically in a sequence of events come October from a Scotland perspective?

[Inaudible.]

Professor Keating, we seem to have just lost your signal for the moment.

Can we adjourn for a minute whilst we see if we can reconnect to Professor Keating?

Gohiriwyd y cyfarfod rhwng 15:35 a 15:42.

The meeting adjourned between 15:35 and 15:42.

15:40

Thank you. Welcome back, Professor Keating. We're glad you're back with us. I was just asking you if you could look into your crystal ball, based on what you've already been telling us, and what the implications might be come October, if you were to look at a sequence from your informed aspect, both constitutionally and politically. What, logically, could we be expecting in Scotland?

I really don't know. At the moment, it depends on whether and how Brexit is going to go ahead. The Scottish Government, as you know, has tabled a Bill permitting a referendum, but it is very difficult to see, logistically, that a referendum in Scotland could happen before the next Scottish election in 2021, and the First Minister has said that they will not go ahead with a referendum without the consensus of Westminster. So, we'd be looking for events, I suppose, after 2021, by which stage perhaps Brexit will be clearer—perhaps, I say, because we've been waiting for three years for it to become clear what's going to happen. We've seen that, in the European elections, which in Scotland were really about Brexit versus remain, the pro-remain parties got the same kind of majority that remain got in the referendum, so things haven't really changed very much. On the other hand, in Scotland, there's still not majority support for independence. So, we're back in the same kind of constitutional deadlock we've been in for the last three years or so. It's extraordinary how little has shifted in public opinion on the options that are open.

Do you think in that scenario, Professor Keating, even with that constitutional deadlock and political deadlock between the UK and Scotland in particular, that discussions on the mechanisms that we were talking about, the inter-governmental mechanisms, could proceed in that climate? 

There's no reason why they shouldn't, because a lot of this stuff is not particularly controversial when it comes to the central framework—the individual things. It's about the issues of principle and the issues of hierarchy and the issues of who will have the last say on this. But I'd like to say something rather general about this whole business of frameworks. Rather than focusing on the detail of what frameworks would contain, I think it might be more useful to think about those institutional mechanisms within which frameworks could be discussed as and when they are needed, and then reduce the political heat on it. Because we're in danger now of having an overelaborate set of frameworks here to deal with a lot of issues that will turn out simply not to arise, and possibly not having things in place to deal with things that might arise, for example to do with foreign trade agreements, which will be more common after Brexit because the UK will be making its own agreements. 

So, these ideas—. And I know you've be thinking in Wales, and we've been thinking in Scotland, about what kind of inter-governmental mechanisms could be there, what the role for civil society would be in those, what would be the role for business and the trade unions and the voluntary sector and so on in consulting on what we mean by the frameworks and what we mean by the single market. Otherwise, we just end up inventing machinery that we're not going to need and not have the things that we really need. These are living principles; they're not something that you can fix in advance. I think in response to an earlier question, this should all have put in place anyway, even without Brexit. It just becomes more urgent with Brexit.   

15:45

So, rather than throw up our hands in despair in October if everything comes to fruition as we might be expecting, what we should be doing as a committee down here, and our equivalent in Scotland and the House of Lords and others, is saying to whatever Prime Minister is in place at that time, 'Well, don't sit on your hands; actually get on with the more fundamental job that is needed regardless, and let's look at those inter-governmental mechanisms that put the UK in a structure that is fit for the future'. 

That's right. And one point we haven't discussed, of course, is where England sits in all of this in the absence of an English parliament, because the UK has two hats on in all of these negotiations. It's representing England and it's representing the whole of the UK, so somehow the UK as such, which is the four nations, should be separated out from England, and whatever frameworks we have negotiated should be equally binding on England as they are on Scotland, Wales and Northern Ireland.   

Thank you, Professor Keating. Time has caught us up. We very much appreciate you coming back to us to ensure we have that connection. As you know, you will receive a copy of the transcript for any factual inaccuracies. If you do see any, can you please let the clerking team know as soon as possible?

I will do. 

Thank you, and thank you for your time this afternoon. It's very much appreciated. 

3. Papurau i’w nodi
3. Papers to note

If we move on to the next item on the agenda, which is papers to note. We have several, so if we go through them one at a time.

The first one is from the Minister for International Relations and the Welsh Language to myself regarding the report on the agreement on trade in goods between Iceland, Norway and the UK. Are you okay with that? And perhaps we can have an updated analysis from ministerial officials to be undertaken in relation to that. Okay? Thank you.

The second paper to note is correspondence from the Chancellor of the Duchy of Lancaster with regard to the inter-parliamentary forum on Brexit—to the Scottish Parliament—regarding scrutiny of inter-governmental relations and common frameworks. Are Members content to note that at this point?   

The third one is from the Counsel General regarding the Joint Ministerial Committee (Europe) meeting, just informing us that there was a meeting in June earlier. Are Members content to note that? 

The fourth one is a follow-up on Brexit preparedness from Food and Drink Wales. If you remember, they were unable to attend the evidence session and they agreed to supply written evidence, which they have done. So, we have that now. 

And the fifth one is also in relation to our follow-up work on Brexit preparedness, and that's written evidence from the Wales Trades Union Congress. Are Members content to note that? We will obviously put that into our work in relation to our follow-up work on Brexit preparedness. 

4. Cynnig o dan Reol Sefydlog 17.42(vi) i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
4. Motion under Standing Order 17.42(vi) to resolve to exclude the public from the remainder of the meeting

Cynnig:

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

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.

The next item on the agenda is a motion under Standing Order 17.42(vi) to resolve to exclude the public from the remainder of today's meeting. Are Members content under Standing Order 17.42 to move into private session? You're content. Therefore we'll now move into private session for the remainder of today. 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:49.

Motion agreed.

The public part of the meeting ended at 15:49.

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