Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad - Y Bumed Senedd

Legislation, Justice and Constitution Committee - Fifth Senedd

21/09/2020

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Carwyn Jones MS
Dai Lloyd MS
David Melding MS
Mick Antoniw MS Cadeirydd y Pwyllgor
Committee Chair

Y rhai eraill a oedd yn bresennol

Others in Attendance

Chris Warner Dirprwy Gyfarwyddwr, y Cyfansoddiad a Chyfiawnder, Llywodraeth Cymru
Deputy Director, Constitution and Justice, Welsh Government
Dr Robert Parry Dirprwy Gyfarwyddwr, Deddfwriaeth Pontio Ewropeaidd, Llywodraeth Cymru
Deputy Director, European Transition Legislation, Welsh Government
Jeremy Miles MS Y Cwnsler Cyffredinol a'r Gweinidog Pontio Ewropeaidd
Counsel General and Minister for European Transition

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Craig Griffiths Cynghorydd Cyfreithiol
Legal Adviser
Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Katie Wyatt Cynghorydd Cyfreithiol
Legal Adviser
Manon Huws Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Sarah Sargent Ail Glerc
Second Clerk

Cynnwys

Contents

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau 1. Introduction, apologies, substitutions and declarations of interest
2. Cynigion Llywodraeth y DU o ran y farchnad fewnol a gwaith craffu cyffredinol ar ddeddfwriaeth yn ymwneud ag ymadael â'r UE: Sesiwn dystiolaeth 2. UK Government's internal market proposals and general scrutiny of EU exit-related legislation: Evidence session
3. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 neu 21.3 3. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3
4. Offerynnau sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3 4. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3
5. Offerynnau sy’n cynnwys materion i gyflwyno adroddiad arnynt i’r Senedd o dan Reol Sefydlog 21.2 neu 21.3 – trafodwyd yn flaenorol 5. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 - previously considered
6. Is-ddeddfwriaeth sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.7 6. Subordinate legislation that raises issues to be reported to the Senedd under Standing Order 21.7
7. Offerynnau statudol y mae angen i’r Senedd gydsynio â hwy (Memoranda Cydsyniad Offeryn Statudol) 7. Statutory Instruments requiring Senedd consent (Statutory Instrument Consent Memorandums)
8. Papurau i’w nodi 8. Papers to note
9. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod 9. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting

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.

Cyfarfu'r pwyllgor drwy gynhadledd fideo.

Dechreuodd y cyfarfod am 09:30.

The committee met by video-conference.

The meeting began at 09:30. 

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

So, I welcome Members to this virtual meeting of the Legislation, Justice and Constitution Committee. In accordance with Standing Order 34.19, I've determined that the public are excluded from the committee's meeting in order to protect public health. In accordance with Standing Order 34.21, notice of this decision was included in the agenda for this meeting, published last Thursday. The meeting is being broadcast live on Senedd.tv and a Record of Proceedings will be published as usual. So, aside from the procedural adaptation relating to conduct of proceedings remotely, all other Standing Order requirements for committees remain in place. We have a full committee, so there are, obviously, no apologies. Are there any declarations of interest? I don't see any declarations of interest. The usual housekeeping arrangements apply.

2. Cynigion Llywodraeth y DU o ran y farchnad fewnol a gwaith craffu cyffredinol ar ddeddfwriaeth yn ymwneud ag ymadael â'r UE: Sesiwn dystiolaeth
2. UK Government's internal market proposals and general scrutiny of EU exit-related legislation: Evidence session

So, I'd like to welcome to this important session on the UK Government's United Kingdom Internal Market Bill and general scrutiny of EU-related legislation evidence session the Counsel General Jeremy Miles, together with Christopher Warner, deputy director, constitution and justice, and Dr Robert Parry, deputy director, European transition legislation. So, welcome to you all. Unless, Counsel General, you have any opening remarks that you wanted to make, we'll go straight to questions.

I'm very happy to go straight to questions, Chair.

Okay. Well, the first, if I just start off with a few general questions, really to respond to the UK Government's Minister's view that the Bill's purpose is 'not constitutional but economic'.

Well, Chair, I recognise that that is the UK Government's position in relation to the Bill and that it is, ostensibly, laid in order to create certainty for business. Obviously, we recognise how important certainty for business is, both for businesses and the economy at large. But I think the focus, perhaps the narrow focus on that issue, has somewhat eclipsed the extent of the impact on the constitutional settlement in the Bill, and I think that there is a clear assault on devolution contained within the provisions of this Bill. So, it is possible, and we have advocated what we would describe as a kind of constructive set of alternative proposals, we've advocated a system where certainty can be achieved and the devolution settlement respected.

I think, if I can put it like this, one of the clues that tell us that this is an important piece of constitutional legislation is that the Bill provides that the entirety of the Bill, when enacted, would be a protected enactment, which, as Members of the committee will know, is generally reserved for constitutional legislation. And, indeed, it's highly unusual for a Bill to be proposed, in its entirety, as a protected enactment. So, I think that gives us a clue as to the scale of the issue here.

I would also say, finally, Chair, that whilst the Bill, plainly, is entitled the 'internal market Bill', there are, I think, parts of the Bill that aren't obviously linked to the internal market, and I would say those are around the financial assistance provisions and the latter parts of the Bill. So, I think that gives us some idea that this Bill goes beyond the question of giving certainty for business.

Thank you for that. We will get on to, I think, some of those particular areas. You referred to the Bill as 'hollowing out' our constitutional competence. What did you mean by that?

Well, Chair, it does that in a number of ways. Effectively, it undermines, to start with, the work that the Governments have collaboratively, actually, been undertaking over the course of the last two years and more to agree a set of common frameworks, which I'm sure we will come on to further. But Parts 1 and 2 of the Bill, for example, would enforce the principles of mutual recognition and non-discrimination in relation to goods and services so that, in effect, provided you comply with the lowest standards in any part of the UK, any other part of the UK needs to accept those goods on its market, whether or not they conform with the rules applicable in that country. So, just even at that broad level, I think it's possible to discern the threat to standards that is contained within the Bill.

So, you'll be in a situation, Chair, where, for example, and I mentioned this in my letter to, I think, Alok Sharma, the ambitions of the Government in Wales and the Senedd in Wales in relation to banning single-use plastics are more ambitious than the UK Government's stated ambition for England. Now, we could legislate to ban those plastics in Wales, but the practical effect of this Bill if it were enacted is that we will be unable to enforce that legislation in Wales. Since, obviously, most of the goods and services that are consumed in Wales aren't produced in Wales, it's easy to see that the impact of that could be very, very significant. So, that's one example in relation to the first part of the legislation.

But then there are a number of other ways in which the Bill does that. So, if you look at the financial assistance provisions, which are in clause 46 of the Bill, they're effectively an attempt to circumvent the power of the Senedd and Welsh Ministers in relation to expenditure in devolved areas. The UK Government, I think, has been pretty explicit in saying that it would allow the UK Government to run successor programmes to EU programmes, so the shared prosperity fund, obviously, is what's intended by that, and members of the committee will know that there has been—how can I describe it—an in-principle indication the UK Government isn't looking to supplant Welsh Government's powers in this area, but the Bill obviously does exactly that. So, a Government that seeks powers to spend in devolved areas, whilst also having significant control over the budget, I would suggest, is a Government that's looking to circumvent devolution. The state-aid provisions in the Bill, in Part 7, explicitly add to the list of reserved matters in the Government of Wales Act 2006, so that's a straightforward change in the devolution settlement. There's no two ways about that.

And then, I suppose, the last point is that point about the protected enactment, which, as members of the committee will know, effectively will lock in the changes, because it puts those parts of the Bill to which that status attaches, which currently is all of the Bill, beyond the reach of the Senedd, even when, as in this legislation, they touch very directly, obviously, on devolved matters. So, there's a range of ways, Chair, in which the Bill seeks to hollow out devolution.

09:35

Counsel General, you'll be aware when the Assembly was first set up, in order to legislate in an area there was a process whereby the Assembly then had to apply to UK Government if it wanted to legislate in an area and to seek, effectively, permission to do so. Does this Bill—would it effectively take us back to those days, in the sense that if we wanted to pass legislation in devolved areas, bearing in mind the overriding powers this Bill gives, it would almost be the case, would it not, that we would have to apply to the UK Government to check that they had no intention of using their overriding powers? Does it not almost take us back 10, 15 years constitutionally in Wales, to having to effectively seek permission to use our powers, because otherwise we won't know when or where we can legislate because of the overriding powers this Bill gives the UK Government?

Well, there isn't any mechanism for that in the Bill, Chair, but, equally, as it were, it provides powers for UK Government Ministers to change some of the exceptions in the Bill, which could change even what we see on the face of the Bill today, so giving a significant amount of power to UK Government Ministers in relation to that. The protected enactment provisions obviously mean that the Senedd and Government on their own, as it were, couldn't change those parts of the Bill. But I do think that one will find oneself in a situation where the courts are called upon to adjudicate on very significant questions that touch on the devolution settlement, possibly quite frequently.

Schedule 7A of the Government of Wales Act provides that the Senedd has powers, for example, to legislate in relation to food standards, as we know, and animal welfare standards, and there's an exception to the reservation around the import and export of goods that allows those sort of powers to be effectively exercised. Well, if you've got that in the Government of Wales Act, and then a protected enactment elsewhere in this Bill, if it were to be enacted, providing that you can't effectively discriminate against goods whether they comply with standards that the Senedd has set or not, you can see the obvious tension there, Chair, that the practical application of that will obviously mean that the law would not be enforceable. 

09:40

Can I just go on to another area, then? Paragraphs 87 to 89 and Annex A of the explanatory notes to the internal market Bill provide that legislative consent is required for every part of the Bill, and of course that consent is being sought. Now, part of the Bill, I think referring to clause 45, which basically enables the UK Government to override international law and in fact domestic law, legislative consent would require us to effectively be accepting or giving consent to a legislative clause that effectively endorses legalising illegality, if I put it that particular way. Firstly—just two aspects to this—what are your thoughts on this in terms of the implications for Sewel, and secondly, what are your thoughts on that particular part, the ethics of whether we, as a Parliament, as a Welsh Parliament, could legislate to endorse legislation for illegality?

On the latter part first, if I may, Chair, I'm actually looking at this question in detail at the moment in relation to whether it's effectively possible to give consent to that given the scale of, as you described it, the illegality. That's a question I'm looking at at the moment, but certainly it wouldn't be something that the Government would be recommending for consent in any case, and I dare say even if the Government did, the Senedd wouldn't provide it. So, I think that that is a very clear signal of the overreach that this Bill contains, and as I know is your view, Chair, from other exchanges in the Chamber, it poses very, very serious challenges to questions around the rule of law. There is a wide coalition of voices, if I can put it like that, on a cross-party basis that has raised concerns on that point.

In relation to Sewel and the consent request, we have of course received a request for consent. In the usual way, we are working through the Bill to identify where we think the Bill engages the need for consent, and as you will know, it is often the case that the UK Government assessment of that isn't the same as our assessment of that. The timescales: ordinarily we would be looking to lay the memorandum in relation to that in the next week or so, from memory. Obviously, we'll seek to do that, but the fact that we haven't had any involvement in the preparation of the Bill itself, Chair, I think you will recognise poses significant challenges in relation to that, not least given the scale of the issues that even a cursory reading of the Bill suggests.

But on the broader question of Sewel, we will recall, won't we, the observations that both Michael Gove and Stephen Barclay made at the last occasion—well, the first occasion, in fact—when our withholding of consent as a Senedd was effectively overruled, that those circumstances were unique and extraordinary, and the language used was to set the bar very high. I don't think the UK Government could justify proceeding without the Senedd's consent in relation to this legislation.

Just on that, Counsel General, I think the precise words were from Stephen Barclay, the Government Minister, that the circumstances of our departure are 'specific, singular and exceptional'. Is it your view, then, that if legislative consent was refused, the UK Government would be in breach of that commitment if they proceeded?

They'd need to establish these were not normal circumstances, and I think if the language of Stephen Barclay and other Government Ministers is to mean anything, then that sets the bar very high. My submission to you is that with this legislation they would struggle to justify proceeding in the absence of consent for that reason.

Thank you for those comments. I will move on. I'm sure we'll explore a number of these issues later on. Over to Dai Lloyd. Dai.

Diolch, Cadeirydd. Bore da, Cwnsler Cyffredinol. Dwi wedi clywed beth dŷch chi wedi'i ddweud eisoes ynglŷn â safonau, ond mae'n wir i ddweud bod y Papur Gwyn yma ar y farchnad mewnol yn amlinellu y bydd safonau uchel yn cael eu cynnal ar gyfer nwyddau a gwasanaethau. Ydych chi'n cytuno y byddai'r Bil yn sicrhau safonau uchel?

Thank you, Chair, and good morning, Counsel General. I've listened to your comments on standards, but it's true to say that the internal market White Paper expressed that high standards would be maintained for goods and services. Do you agree that the Bill would secure those high standards?

09:45

Wel, ar yr wyneb, wrth gwrs, mae'r syniad o sicrhau safonau uchel yn syniad sy'n ddeniadol, ond y gwir o edrych ar y Bil yw ei fod yn caniatáu cychwyn ras i'r gwaelod, fel rwyf wedi dweud eisoes. Hynny yw, cyfle i danseilio'r safonau uchel yna ym meysydd safonau bwyd, iechyd anifeiliaid, safonau amgylcheddol ac ati—safonau mae pobl yng Nghymru wedi eu mwynhau ac wedi bod yn browd ohonyn nhw drwy gyfnod datganoli. Dwi wedi clywed, fel roeddech chi'n dweud, fod y Llywodraeth yn San Steffan wedi datgan hynny, ond does dim unrhyw beth yn y Bil fel y mae wedi ei gyhoeddi sydd yn sicrhau hynny o gwbl. Mae hefyd gwahaniaeth, wrth gwrs, mewn ymroddiad presennol, petaem ni'n gallu dibynnu ar hynny, a'r gallu i Lywodraeth yn y dyfodol newid safonau. Felly mae hynny, wrth gwrs, yn elfen bwysig o hyn.

Mae'n bwysig i ddweud bod y gymuned fusnes yng Nghymru ac mewn rhannau eraill o'r Deyrnas Gyfunol wedi bod yn glir eu bod nhw'n croesawu'r syniad o isafbwynt, o ryw safon waelodol i safonau, fel ei bod hi'n bosib cael rhyw elfen o sicrwydd fel sydd gennym ni nawr, wrth gwrs. Felly, mae angen sicrhau bod hynny yn y Bil.

Well, on the face of it, securing high standards is something that is most attractive, but the reality in looking at the Bill is that it allows the beginning of a race to the bottom, as I've already said in the past. That is, there's a chance to undermine those high standards is terms of animal health, food, environmental standards—standards that people in Wales have enjoyed and have been proud of throughout the period of devolution. I've heard, as you've said, that the UK Government stated that, but there is nothing in the Bill as published that secures that in any way. There is also a difference in terms of current commitment, if we could rely on that, and the ability of future Governments to change those standards. And, of course, that's an important element of this, too. 

It's important to state that the business community in Wales and in other parts of the UK has been clear that they welcome the idea of a baseline standard, so that you can have an element of assurance as we currently have. So, we do need to ensure that that is contained within the Bill.

Diolch yn fawr am hynna, Weinidog. Jest i symud ymlaen, cwpwl o gwestiynau byr rŵan ynglŷn ag enghreifftiau penodol. Dwi'n clywed beth rydych chi wedi ei ddweud ynglŷn â'r defnydd o blastigau defnydd un tro, er enghraifft, felly yn adeiladu ar esiamplau yn fanna, a allwch chi roi enghraifft o reoliad sy'n ymwneud â gwerthu nwyddau y byddai'r darpariaethau yn y Bil yn effeithio arno fo pe bai'n cael ei gyflwyno ar ôl pasio'r Bil? Felly, rheoliad ynglŷn â gwerthu nwyddau—esiampl sy'n cael ei effeithio yn y lle cyntaf.

Thank you for that, Minister. Just a few brief questions now seeking specific examples. I've heard what you've said on single-use plastics, for example, so building on that example, can you give us an example of a regulation in relation to the sale of goods whose operation would be affected by the Bill's provisions, if they were introduced after the Bill is passed? So, a regulation on the sale of goods—that's an example on goods, first of all. 

Jest un nodyn cyflym, os caf i ddweud, rwyf wedi ysgrifennu at y Llywodraeth yn San Steffan, fel rydych chi'n gwybod. Dwi heb gael ateb i hynny, ond mae amryw o gwestiynau yn hynny a bwriad y rheini oedd cael sicrwydd ac eglurder am hyn. Mewn Bil o'r math yma, byddech chi'n disgwyl bod gennym ni fel Llywodraeth ryw fath o fewnbwn i'w llunio, felly byddai gyda ni mwy o fanylion y gallem ni eu rhoi ichi o ran bwriad y drafftio.

Ond, o ran effaith y drafftio, yn sicr yr enghraifft dwi wedi ei roi yn y Siambr cyn hyn ynglŷn â hyn yw cig eidion â hormonau a gwrthfiotigau, ac ati. Gallem ni gael sefyllfa yng Nghymru lle nad yw gwerthu hynny yng Nghymru yn gyfreithlon ond bod y Bil, petasai'n cael ei wneud yn gyfraith, yn caniatáu i'r math yna o gig eidion ddod ar y farchnad yng Nghymru a'n bod ni'n methu gwahardd hynny rhag digwydd ar lawr gwlad.

Just one quick point, if I may, I have written to the Government in Westminster, as you know. I haven't received a response, but there are a number of questions posed in that correspondence seeking clarity and assurances in this area. With this kind of Bill, you'd expect us as a Government to have some sort of input in its drafting, so that we would have more detail on the intention of the drafting.

But in terms of its impact, the example that I've given in the Chamber prior to this meeting is antibiotic and hormone-injected beef. We could find a situation in Wales where the sale of that in Wales is not legal, but if the Bill became law, it would allow that kind of beef to enter the market in Wales, and we couldn't prohibit that in any way on the ground.

Diolch am hynna. Wrth gwrs, mae'n bwysig nodi yr esiamplau ymarferol yma achos mae rhai pobl yn dadlau ein bod ni jest yn dadlau am fesurau sych cyfansoddiadol yn fan hyn, ond wrth gwrs maen nhw'n esgor ar enghreifftiau byw fydd yn effeithio ar ein bywyd bob dydd ni, felly nid dadl sych gyfansoddiadol ydy hon o gwbl. Felly diolch am yr esiampl yna ac, ymhellach, a allwch chi roi enghraifft o awdurdodiad neu ofyniad rheoliadol sy'n ymwneud â gwasanaethau y byddai darpariaethau'r Bil yma yn effeithio arnyn nhw pe baent yn cael eu cyflwyno ar ôl pasio'r Bil? Ynglŷn â gwasanaethau, rŵan.

Thank you for that. Of course, it's important to note these practical examples, because some people argue that we're just talking about dry constitutional issues here, but of course they do bring about things that will have a very real impact on our daily lives. So this isn't a dry constitutional argument in any way. So thank you for that example and, further to that, can you give an example of an authorisation or regulatory requirement in relation to services that would be affected by the provisions of this Bill, if the Bill were passed? So that's on services now. 

Ocê. Rydych chi'n iawn i ddweud bod elfen ymarferol iawn i hyn. Unrhyw un sy'n siopa'n wythnosol, dylai fod ganddynt ddiddordeb yn effaith y Bil yma. Ac os ydych chi'n denant, er enghraifft, yn y sector breifat yma yng Nghymru, dylai fod gennych chi ddiddordeb hefyd, achos un o'r gwasanaethau rydym ni'n darogan bydd yn dod o fewn cwmpas y Bil yw'r gallu i unrhyw landlord sy'n gallu gweithredu mewn unrhyw ran o'r Deyrnas Gyfunol weithredu yma yng Nghymru, pa un ai eu bod nhw'n ateb y safonau ar gyfer rheoliadau ar gyfer landlordiaid ai peidio. Felly, mae hynny'n enghraifft fyw arall mewn maes lle mae'r Senedd wedi bod yn actif iawn yn deddfu, wrth gwrs.

Okay. Well, you're quite right in saying that there is a very practical element to this. Anyone who does a weekly shop should be interested in the impact of this Bill. And if you're a tenant in the private sector here in Wales, then you should certainly be interested, because one of the services that we anticipate that will be captured by the Bill is the ability of any landlord who can operate in any part of the UK to be able to operate here in Wales, whether they meet the standards in terms of regulations relating to landlords or not. So, that's a very pertinent example in an area where the Senedd has been very active in terms of legislation.  

Diolch am hynna. Y cwestiwn nesaf: yr un math o syniad o esiamplau i wneud efo cymwysterau proffesiynol. Dwi wedi eich clywed chi wythnos diwethaf yn darogan heriau ynglŷn â chymwysterau proffesiynol. Allwch chi ymhelaethu ar hynny, os gwelwch yn dda?

Thank you for that. The next question: again I'm seeking examples, this time on professional qualifications. I heard you say last week that you anticipated some challenges on professional qualifications. Could you expand upon that?

Wel, ar y cyfan, mae'n beth da bod rhannau o'r Deyrnas Gyfunol yn cydnabod unigolion o rannau eraill o'r Deyrnas Gyfunol. Wrth gwrs, mae hynny'n gwneud synnwyr, ond mae angen bod hynny'n digwydd ar sail sy'n cael ei chytuno. Byddai'r Bil, er enghraifft, yn caniatáu i qualifications athrawon, er enghraifft, mewn gwahanol rannau o'r Deyrnas Gyfunol, ein bod ni ddim yn gallu, er enghraifft, sicrhau yng Nghymru bod elfennau o hynny'n orfodol a bod yn rhaid derbyn rhywun sydd â chymwysterau is, efallai, mewn rhan arall o'r Deyrnas Gyfunol i ddysgu yma yng Nghymru. Mae gwahaniaeth yn y maes hwnnw yn barod, ond mae'n wahaniaeth sydd yn digwydd o fewn fframwaith sydd wedi cael ei gytuno. Felly, mae hynny yn sefyllfa wahanol i beth sydd yn y Bil.

Well, generally speaking, it's a good thing that other parts of the UK recognise the qualifications of individuals from other parts of the UK. That makes sense, but that needs to happen on an agreed basis. The Bill, for example, would allow teaching qualifications in various parts of the UK so that we couldn't, for example, ensure in Wales that elements of that would be mandatory, so we would have to accept somebody who may have a lower level of qualifications from other parts of the UK to teach here in Wales. There are differences in that area already, but that happens within an agreed framework. So, that's very different to what's contained within the Bill.

09:50

Diolch am hynna, a fy nghwestiwn olaf i am y tro ydy: allwch chi gadarnhau a fydd Llywodraeth Cymru yn paratoi asesiadau o'r farchnad fewnol ar gyfer Biliau'r Senedd yn gyffredinol?

Thank you, and my final question for the time being is whether you can confirm whether the Welsh Government will prepare internal market assessments for Senedd Bills. 

Does dim gofyniad yn y Bil i hynny ddigwydd, ond yn sgil y mathau o wrthdaro rhwng y setliad datganoli a chynnwys y Bil rwyf wedi amlinellu yn barod, ar lefel ymarferol byddai'r Llywodraeth, rwy'n credu, yn gorfod edrych ar impact y Bil, petasai'n dod yn Ddeddf, ar unrhyw un o'r penderfyniadau y buasai'r Llywodraeth yn y dyfodol eisiau eu gwneud ynglŷn â'r meysydd yma er mwyn deall beth yw gallu'r Senedd neu'r Llywodraeth i wneud hyn i ddigwydd ar lawr gwlad, hynny yw. Felly, rwy'n credu ar lefel ymarferol y byddai hynny, siŵr o fod, yn anorfod.

There's no requirement in the Bill for that to happen, but given the conflict between the devolution settlement and the content of the Bill, as I've outlined already, then at a practical level, I think the Government would have to look at the impact of the Bill, were it to become law, on any of the decisions that a future Government would want to make in these areas in order to understand what the competence of the Senedd or the Government is to make this happen on the ground and to have impact on the ground. So, at a practical level, that would almost be inevitable. 

Thank you, Chair. A few quick questions from me first of all, Counsel General, and good morning, and then some longer ones. The UK Government, through various Ministers, have suggested that there are 70 further powers that will come to the Senedd as a result of this Bill. Have they told you any?

No, and I haven't been pointed to any provision in the Bill that provides for that either. As we will all know in this committee, that extension of the competence of the Senedd operates by virtue of the interaction between the existing devolution legislation and the fact of leaving the European Union, so it has nothing to do with the contents of this Bill.

Thank you for that. Could I ask you to turn to one aspect of the Bill, and that is the aspect that deals with substantial change in its effect on the market? The Bill is not retrospective, so any legislation that has been enacted before the Bill comes into force is not caught by it. However, if legislation is subject to substantial change, if the Bill becomes law, then it is caught by it. I'll just give you one example. Minimum alcohol pricing would not be affected, but if an attempt was then made to raise the unit price of alcohol from, say, 50 to 60 per cent, effectively, that law will become null and void because it would amount to substantive change—substantial change, rather—and so the provisions of the Bill would kick in and it would not be possible to enforce that legislation. Would that be correct?

I certainly think there is a risk of that. The Bill doesn't, of course, elaborate on what would be considered substantive change, and the example that you gave is precisely the reason why that sort of mechanism is so problematic. And I think in practical terms what it would mean is that any future Welsh Government looking at reform of the law in any area that comes within the scope of the internal market Bill would be in the invidious position of perhaps not being able to make the kind of sensible legislation that any Government into the future might wish to make, for fear of the really significant consequences of it falling foul of the provisions of this Bill.

Counsel General, I'm thinking of re-triggering or re-enacting my practice; I can see there's a whole bevy of work here that will be created, not for the good of society, I suspect, but for lawyers in the way that you've suggested.

Could I bring you on to common frameworks? You rightly say that agreement is the best way forward via common frameworks, rather than imposition from Whitehall. Given the current stage of the Bill and given what we know, for example, with the dispute resolution mechanism of the JMC, where the UK Government has rigged the system to assist themselves, and given the conflict of interest that exists in Whitehall because the Government there is both the UK Government and the English Government, how much confidence do you have that the internal market Bill and its operation will operate fairly across the UK, rather than being geared to one part of the UK?

I think, as you say, it's inherent in the arrangements that we have now that that level of conflict exists. Now, many members of this committee will have—. I'm sure all members of this committee will have views about how the devolution settlement can be, obviously, improved to address that question, but whilst that isn't the case it is obviously not right to pass legislation that enhances that conflict, and I think you are right to say that that is a risk in this Bill. One, I suppose, very straightforward example of that, which I think is pretty uncontentious actually, is the extension to the reservations in Schedule 7A by including state aid in that list of reservations. The UK Government, on behalf of England, is responsible for economic development in England and obviously must prioritise the interests of England in relation to economic development in that sense. So, to have on top of that UK-wide powers in relation to state aid, I think, puts into very stark relief the conflict that arises because of our current arrangements. 

09:55

Yes, that's not something I'd thought of, where the statutory requirement on the UK Government is to promote economic development in England, and, therefore, it would seem, that the law would force them to create an internal market that is of benefit to economic development in England. Is that a risk? 

Certainly in the way the internal market is conceived in this Bill, I think there's a risk of that. I just want to be clear, and I'm sure this is on the record but just to be clear in this conversation as well, that the Welsh Government's position is that the concept of the internal market is a good concept and it works in the interests of Welsh businesses and Welsh consumers, as it does for other parts of the UK, but not done in this way. This is an imposition, as you say. It is not the only way of doing this. There is a much better way of doing it, which takes us back to the point of the common frameworks that you raised. There is a mechanism in there that proceeds on the basis that the Governments are treated with parity in areas that are devolved and that there is a mechanism for seeking agreement and that agreement can be to—. It depends on what you're discussing, but plainly some of those frameworks will lead to there being a floor of standards or a range of standards perhaps, and the capacity, then, to vary and diverge from that, which is, as obviously you and other members of the committee will know very well, the basis on which we've proceeded whilst members of the European Union effectively. I think there is an alternative route here, which doesn't then pose that question of conflict in the way that you described it. 

One last question from me, Counsel General, and I welcome your words. It has to be a single market with rules otherwise it's no longer a single market—you're absolutely right—and there have to be state aid rules within that single market. It's how they are actually constructed and implemented and operated—that's the debate we're having here, isn't it? And much of what you said echoes what I've been saying for months. Final question from me: can this Bill in any way be rectified in order for the Welsh Government to recommend an LCM to the Senedd? 

As I say, we have put forward alternative proposals, which are around putting the common frameworks at the heart of this, having a mechanism for agreeing them, for introducing them when they don't exist, for risk assessment, for dispute resolution, for monitoring. All of that is in an alternative set of proposals, but with the Bill, as it stands, there would need to be very, very, very significant change for that to be conceivable. At the more binary end, if I can put it like that, the clauses around the Northern Ireland protocol and the breach of international law would need to be removed, the financial assistance provisions would need to come out, the amendment to the devolution settlement in Part 7 would need to come out, the question of protected enactment would need to be looked at on a case-by-case basis, there would need to be a statutory commitment to high standards, and the application of the mutual recognition principle and non-discrimination principle would have to not be automatic but would have to be at the end of a common frameworks process. So, I list them, and I think, in listing them, you can see the scale of the challenge. 

One very small question that arises from what you've just said—sorry, Chair—is that one Government can lower its standards across the UK and all other countries in the UK have to accept those standards, but that, I suppose, works both ways. If Northern Ireland decided to reduce standards in a particular area, then the whole of the rest of the UK would be forced to accept those standards. Would that be true? 

Well, because of the requirement for Northern Ireland to comply with the EU legislation, I think that would colour the scale of that—[Inaudible.]    

Well, can I use another example? Scotland or Wales—let's say, for example, Scotland or Wales decided to lower standards in a particular area, shall we say. England will be forced to lower its standards as a result of that.

10:00

We'll pass over now to David Melding. Can we de-mute? Can we de-mute David Melding? Thank you.

Okay? Can you hear me? Chair, with your indulgence, I'll just develop some points in my section, because I think they've all been comprehensively answered, really. Counsel General, you did say that you'd written a detailed letter to the Government. It's slightly despairing in a way. Do you expect any more interactive discussions about the future of this Bill with the UK Government? And how soon is that going to happen, and how comprehensive is it likely to be? And will it be at ministerial level?

Just to say, if I may, Chair, I share that despair, really. I honestly don't want to be a Minister who consistently comes before committees telling people how bad ministerial relationships are in particular areas. I'm keen not to be in that position. And, bluntly, in other areas, there are some examples of good close working. So, I don't want to paint an entirely bleak picture.

But on this particular point, I haven't had a letter in response to the letter of 14 August yet. I would have hoped to have had that before the Bill was published, obviously, but that hasn't happened. There has been a request for ministerial discussions in relation to the Bill—an invitation from the UK Government—which I do plan to take up. But I think the sensible way of doing that is for the UK Government to lay out its response to my letter first, so that the meeting can focus on the areas in dispute. I'm not particularly keen on having a verbal response to a letter in which we took some trouble to set out a reasoned case. So, I will take the opportunity of having that ministerial discussion, and I hope, but I'm not confident, that it will be productive.

I don't want to pursue that; I think it's a very clear position you've taken. The whole issue of substantive change has been talked of in relation, really, to Bills, but the principle also applies to regulations, it seems to me. What affect is that going to have on the application of and updating of the statute book and the policy rule you have in terms of developing and updating and ensuring that policies are innovative and fit for purpose to current needs, because, obviously, a lot of that is fine tuned through regulations?

Well, I think the risk is there, as you say. Even if it's just from the point of view of law that is largely consolidating but making some changes at the margin, I just think you'd set the bar very much higher for those sorts of sensible changes that any Government would want to make, really. So, the Bill casts a long shadow in that sense.

So, it is conceivable that, through regulations, substantive change will be introduced, because we don't know what 'substantive change' means. But, obviously, sometimes we use secondary legislation, particularly if it's got superaffirmative attached, to do quite important things, and the efficiency of Government and management of legislative time often requires that sort of approach, especially if the legislature is satisfied to progress that way. All this could get affected, couldn't it, quite fundamentally, by the internal market Bill?

Yes, I think that's right, and with some of the provisions that we have, and some of the work that I've been doing around consolidation, as we will all know, there's a significant piece of work in the planning space around that. One could start to see some of these things bite quite soon, it seems to me.  

And then, is that likely to freeze a lot of Government activity because a devolved administration will just be fearful of the door that is suddenly opened if it does want to develop a policy?

Yes, I think it'll have a chilling effect, in a way, Chair. I think the chilling effect will be there, but also the recognition that these changes are locked in, aren't they? So, it's not something that then—the Senedd or Ministers—could approach, because its protected enactment status would effectively put that beyond reach. So, I think the combined effect of those two things probably is quite significant, actually. 

10:05

My final question in this part: I think it would be useful for the public record if you do state what is the real practical difference—the way it's applied, anyway—in the principle of mutual recognition that all single markets require to work effectively and, indeed, is deeply enshrined—in fact, it was the most important thing, arguably—in the European single market, and it's now deeply embedded in the internal market Bill that's been presented. So, in this mutual recognition principle, why does it work at the EU level, at least reasonably in terms of the exercise of the devolved functions, but it might not if the current Bill proceeds in its present form?

Well, I mean, that goes to the heart of it, doesn't it, really, because the question of mutual recognition in some way is relevant to an internal market however it's cast, so I absolutely accept that. The reason this is different from the arrangements that currently exist and have existed during our membership of the EU—. Firstly, by the way, this isn't limited to retained EU law, so this set of provisions goes beyond EU law and so its reach is greater to start with. Secondly, there is a range of public policy exceptions to how this might work through the current mutual recognition principle in EU law. So, obviously, they're in the space of animal welfare, environmental protection—the sorts of things we've been talking about already today—and the exceptions in the Bill as proposed aren't as extensive and are capable of being varied by UK Government Ministers without the agreement of devolved Ministers. So, the reach of that is very extensive. There's no floor of standards, which obviously there has been as part of the European Union, and I will say, as an approach, if you like, the mechanism by which the arrangements that support the existing mutual recognition principle as part of EU law that have been reached has been one that is not reflected in the approach the UK Government is taking here, which is effectively to impose this.

Now, the common frameworks proposal, if you like, is a means by which you can square that circle, really, so that's why we've been pursuing that. On the services side of things, again, the 2009 regulations that implement EU law in this space—. So, this Bill introduces similar sorts of rules, but again, it isn't entirely clear about the scope, effectively, and the exceptions. There's an issue there as well in relation to services herem and I think there's also a set of questions around—. Those are public interest exceptions, and there's also a set of issues around the clarity, if I can put it like that, of the qualifications recognition part, where the broad approach is the same as the current approach, which is, 'Some things are automatic; some things require an alternative way of taking into account variances of qualifications', but, unlike the current EU arrangements, where it's very clear what's subject to what set of arrangements, the Bill doesn't provide that clarity. So, I think there's quite a lot of scope for confusion, just on a practical basis, in the Bill in relation to that as well. 

Sorry, Chair, very quickly. Isn't the difference with this that, in the European Union, the Commission produces directives and those directives impose minimum standards beyond which nobody can drop? In this current model with the internal market Bill, there is no commission-like body, therefore there is no-one to impose minimum standards and therefore it's inevitable there'll be a race to the bottom?

Indeed, and that's where the common framework is the solution to this, because that provides the mechanism for an agreed set of standards or agreed range, if you like, within which countries can vary and diverge. That's why that's such a powerful part of the answer to this, I think.

No, that's all I wanted to ask in this section, Chair. Thank you.

I was going to pursue—. You've answered a number of points in respect of the state aid issue, and I think Carwyn Jones has brought the issue in terms of, I suppose, the underlying philosophical area of dispute, and that is that the UK Government believes that all the powers that currently reside in Brussels can just be transferred to the UK Government and that that is just a natural flow. Although it seems (1) that goes against the devolution agreement, but also fails to recognise the role of the UK Government as a Government, in many areas, for England, and I'm just really wondering what your view—if that's something you could just expand a bit, because, in the regulatory impact assessment, it says that devolved Governments will have the same powers to decide where and how subsidies are allocated within the UK regime as they currently enjoy under the EU state-aid system. That's a bit misleading, that statement in the regulatory impact assessment, isn't it?

10:10

Well, it certainly isn't the effect of the Bill, as I understand it. To return to that point, Chair, if I may, restricting regulation subsidies to a Government that also has a separate set of responsibilities for economic development in England alone poses a very clear conflict of interest, it seems to me, and I would suggest that businesses in other parts of the UK—Wales and Scotland, Northern Ireland—ought to be very concerned about that. We are very clear as a Government that the best outcome is a set of state-aid rules that apply consistently and fairly across all parts of the UK. We don't think that the UK Government taking in new powers in this area for itself at the expense of devolved nations is the right way of doing that, because that bakes in that conflict into the new set of arrangements.

Counsel General, one interpretation is that this Bill is a significant act of recentralisation of power in Westminster. Firstly, is it your view that that is correct? And, secondly, are you aware of any other state in Western Europe where a similar centralisation of power is actually taking place?

I'm not sure about the latter point, Chair; I might give that some further reflection, if I may. Nothing immediately springs to mind, but, yes, it certainly is. It is an act of centralisation. Perhaps that doesn't appear to be the case in relation to the mutual recognition and non-discrimination principles, although I think we've explored why that is, in practical terms, the case. But it's certainly the case that the UK Parliament giving UK Government Ministers new powers in devolved areas plainly is an act of centralisation, and there is a provision in the Act that reverses part of the devolution settlement and that is incontestably an act of centralisation, I would say.

Counsel General, do you believe this Bill strengthens or weakens the United Kingdom as an entity?

There's no question that it weakens the United Kingdom as an entity, and I think this fails—. The fundamental political problem, if I may put it in these terms, just for this purpose, is that, at its heart, it fails to recognise that the best way of strengthening and delivering an effectively operating union in the interest of all parts of the UK is to recognise, and, I would say, to enhance, devolution. The approach taken in this Bill is one that effectively seeks to sideline devolution and I think that will only be bad, both for devolution, but also for the union.

Diolch yn fawr, Cadeirydd. Jest i fynd i mewn i ychydig bach o fanylion eto, ac yn benodol y tro yma ynglŷn â'r swyddfa'r farchnad fewnol, ocê, allwch chi nodi pa agweddau ar y cynigion i sefydlu swyddfa'r farchnad fewnol y mae Llywodraeth Cymru yn cytuno efo nhw? Pa agweddau ydych chi'n cytuno?

Thank you, Chair. Just to pursue some detail again, and looking specifically here at the office for the internal market, can you set out which aspects of the proposals for the establishment of the office of the internal market the Welsh Government agrees with? Which aspects do you agree with?

Ocê, jest i ddweud yn y cychwyn, os caf fi, mai dyma un o'r rhannau bach o'r Bil lle mae rhyw elfen o drafodaethau swyddogol wedi bod ers y Papur Gwyn, jest i fod yn glir am hynny. Felly, mae pwrpas y swyddfa, hynny yw, cynnig cyngor a cynnig arolygon o sut mae'r farchnad yn gweithio a dyddiadau ac ati, mae hynny yn beth—mae gwerth, yn sicr, buaswn i'n dweud, yn hynny. Wrth gwrs, mae'n gwbl gynhenid i hynny bod gan y bedair Llywodraeth access hafal i weithrediadau'r swyddfa. Bydd angen diwygio ar beth sydd yn y Mesur i sicrhau bod hynny'n wir. Dŷn ni ddim yn derbyn mae'r ffordd orau o sicrhau hynny yw fel rhan o'r Competition and Markets Authority, achos mae hynny'n adran anweinidogol o Lywodraeth y Deyrnas Gyfunol, ac, wrth gwrs, mae'n atebol, felly, yn wleidyddol, drwy BEIS, i'r Senedd yn San Steffan. Felly, byddai angen diwygio sylweddol ar hynny a mwy o allu gan y Llywodraethau datganoledig, felly, i gael control, rhyw elfen o control, ar y cyd â Llywodraethau eraill yn y trefniadau hynny, a dyw hynny ddim yn y Bil fel y mae ar hyn o bryd. Felly, o ran bwriad cyffredinol, syniad da; o ran gweithredu, fel mae'n cael ei ddisgrifio ar hyn o bryd, mae angen diwygio sylweddol.

Okay, just to say at the outset, if I may, that this is one of the few sections of the Bill where there has been some element of official discussion since the publication of the White Paper, just to be clear on that. So, the purpose of the office, namely to provide advice and forecasts in terms of how the market is working and to provide reports—then there is certainly some value to that. Of course, it's integral to that that the four Governments should have equal access to the operations of the office. We would need to amend the Bill to make sure that that is the case. We do not accept that the best way of securing that is as part of the Competition and Markets Authority, because that is a non-ministerial department of the UK Government, and is politically accountable, through BEIS, to the Westminster Parliament. So, we would need substantial amendment on that, and there should be more ability for the devolved Governments to have some element of control or joint control with other Governments in those arrangements, and that isn't provided for in the Bill as currently drafted. So, in terms of general intentions it's a good idea; in terms of its operation, as currently described, then we would need substantial reform.

10:15

Diolch am hynna. Jest i gadarnhau un elfen: ydych chi'n credu y bydd adolygiadau swyddfa'r farchnad fewnol yn sicrhau yn ddigonol bod marchnad fewnol y Deyrnas Unedig yn gweithio'n effeithiol ym mhob rhan o'r Deyrnas Unedig?

Thank you for that. Just to confirm one element: do you believe that the office of internal market's reviews will sufficiently address whether the UK internal market is working effectively in every part of the UK?

Wel, dyw e ddim yn ei hunan yn mynd i allu sicrhau hynny, ond mae'r cyfle iddo fe roi cyngor ac i roi asesiadau ac ati yn beth adeiladol, buaswn i'n dweud, yn y cyd-destun hwnnw. Ond, fel y gwnes i ddweud gynnau, mae'n rhaid sicrhau bod hynny'n hafal i'r pedair rhan o'r Deyrnas Gyfunol.

Well, it won't be able to ensure that in and of itself, but there is scope to provide assessments and advice, and that is a constructive thing in that context. But, as I said earlier, we must ensure that that is equal for all parts of the UK.

Diolch am hynna. Y cwestiwn olaf gen i, rwan, yn yr adran yma: yn ôl at—fel rydych chi wedi'i grybwyll eisoes—yr Awdurdod Cystadleuaeth a Marchnadoedd. Dwi'n clywed beth rydych chi wedi'i ddweud ynglŷn â'r ffordd mae wedi'i sefydlu o dan amcanion y Bil yma. Felly, allwch chi jest gadarnhau, ar gyfer y record, pa newidiadau yn y dulliau o lywodraethu'r Awdurdod Cystadleuaeth a Marchnadoedd y buasech chi, fel Llywodraeth Cymru, am eu gweld er mwyn i'r elfen hon o'r Bil fod yn dderbyniol i Lywodraeth Cymru?

And a final question from me in this section. You've already mentioned the Competition and Markets Authority—I've heard the comments that you made on how this is established within this Bill. So, can you just confirm, for the record, what changes in the governance of the Competition and Markets Authority you as Welsh Government would want to see for this element of the Bill to be acceptable to the Welsh Government? 

Wel, mae bwrdd yn y CMA sydd yn gyfrifol am benderfyniadau strategol, ac mae'r bwrdd hwnnw'n cael ei apwyntio gan Lywodraeth y Deyrnas Gyfunol yn gyfan gwbl ar hyn o bryd. Ac, yn fwy na hynny, mae'r Ysgrifennydd Gwladol dros BEIS wedi arfer rhoi rhyw fath o steer, rhyw fath o gyfeiriad, i waith y CMA. Felly, mae'r elfennau hynny, wrth gwrs, yn broblematig yng nghyd-destun beth sy'n cael ei argymell fan hyn. Felly, byddai'n rhaid cael rhyw fath o newidiadau sydd yn rhoi sicrwydd inni fod penderfyniadau strategol y bwrdd hwnnw'n un—bod gan y Llywodraethau datganoledig ddylanwad arnyn nhw hefyd. Does dim, ar hyn o bryd, unrhyw gynnwys yn y Bil sy'n rhoi rôl statudol, dywedwch, i Weinidogion yn y Llywodraethau datganoledig i apwyntio'r bwrdd neu apwyntio'r panel. Felly, byddai angen edrych ar rywbeth yn y maes hwnnw, buaswn i'n dweud, fel bod gennych chi bosibilrwydd bod y swyddfa, fel rhan o'r CMA, yn atebol go iawn i'r pedair Llywodraeth.

Well, there is a board in the CMA that is responsible for strategic decisions, and that board is appointed by the UK Government in its entirety at the moment. And, in addition to that, the Secretary of State for BEIS has provided a steer for the work of the CMA. So, those elements, of course, are problematic in the context of what's recommended here. So, we would have to have some changes that would provide us with assurances that strategic decisions taken by that board would be decisions that the devolved Governments could influence. At the moment, there is nothing within the Bill that provides a statutory role for Ministers in devolved administrations to appoint the board or to have an input on the panel. So, we would need to look at something there, I would say, so that there is that possibility that the office, as part of the CMA, would be truly accountable to all four Governments. 

Diolch am hynna. Jest i wneud rhyw gymhariaeth o'r meysydd chwarae, fel mae sawl un wedi'i grybwyll—dwi'n gwybod am eich diddordeb chi mewn mabolgampau, Gweinidog—ac, wrth gwrs, y gymhariaeth efo'r Awdurdod Cystadleuaeth a Marchnadoedd, cymhariaeth rhwng gêm rygbi rhwng Cymru a Lloegr lle mai Lloegr sydd yn dewis y dyfarnwr a hefyd yn dewis y rheolau a sut mae'r gosb yn cael ei gweithredu. A fyddai hynna'n gymhariaeth deg, ydych chi'n credu?

Thank you for that. Just to draw a sporting comparison, as many have mentioned—I know about your interest in sport—and there is the comparison between the Competition and Markets Authority, and a comparison between a rugby match between Wales and England where England choose the referee and also select which rules and which penalties should apply. Would that be a fair comparison, in your view?

Clywais i'r gymhariaeth honno'n cael ei gwneud gennych chi, rwy'n credu, yn y Siambr yr wythnos diwethaf, ac roedd yn fy nharo i fod rhai elfennau o'r Bil yma yn sicr yn ateb y disgrifiad hwnnw.

Well, I heard that comparison made by yourself in the Chamber last week, and it struck me that some elements of this Bill certainly do reflect that description.

And I suppose, before we move on, the ability of the referee to change the rules as you move along. Carwyn Jones.

Quite, Chair. Absolutely true. Two questions from me, Counsel General; one is perhaps a bit more mechanical. Coming back to this point of substantive change and the risks that a Government might face if a law is—an Act is—amended thus creating the substantive change that would lead to the law, in effect, being nullified, you talked about consolidation. Is there not an incentive on that basis not to repeal laws that are no longer needed, but simply to produce new legislation to build on them, therefore actually acting against consolidation and creating a momentum that would just see more and more and more laws being produced without repealing existing legislation because of the risk of being caught by the substantive change rule?

10:20

I think that would—. For me to give you a very informed answer on that, I would need to have a bit more clarity about what's intended in relation to that provision in the Bill, if I'm candid about it. But I think it is certainly the case that that provision in the Bill provides an unnecessary obstacle, really, to the sort of basic good governance and sensible legislating that you're describing in your question.

Thank you, Counsel General. Final question from me: do you regret the language used by politicians such as Alun Cairns and Stephen Crabb when they say that if you do not support this Bill then you are not in favour of the union? Do you agree that such a narrow definition of unionism on that basis can only lead to fewer and fewer people identifying with the union and it means, effectively, that you and I are classed as people who are against the union? Now, that's something that I hugely regret and something that appalls me, quite frankly. Do you share that view that the language being used around this Bill seeks to marginalise those people who wish to see the UK remain together but know that it can only do so if there's constitutional change?

Well, I think what it does, if I may say, is—. There is a Government in Wales that wishes the union to succeed; it wishes for there to be an internal market that works effectively; it recognises that mutual recognition in some circumstances would be necessary for that; and it recognises that some aspect of legislation is necessary for that. So, those are points of common interest, if you like, and I think what that kind of language that you describe in your question does is to create division where there needn't be any.

We as a Government have put forward a set of practical, constructive, alternative proposals. Ones that, by the way, actually, the UK Government themselves have been engaging in as part of the common frameworks process. And, lest we forget, the original list of common frameworks was proposed by the UK Government as mapping the needs of an internal market. Two years ago, actually, the UK Government's perspective was much closer, I would suggest, to where we are today in the sense of putting those centre stage.

I think a failure to recognise that that mechanism, which is about agreeing an approach and recognising that, against a backdrop of a set of standards, variation is possible—that is a healthy mechanism and a healthy vision for an internal market. I think that, in the way that I know that you share, from hearing you speak on this matter several times, the union is only going to be weakened if this sort of mindset, I'm afraid to say, prevails.

There is a challenge for those of us who believe in the union, I think. I'm not wishing to be too political about this, but there's a challenge for us in trying to imagine how that can work better than it does today, and I think a Bill of this nature, accompanied by that sort of messaging, is a significant step backwards.

Counsel General, can I just follow on from that? Do you think one of the problems is that there is no real clarity as to what the purpose and role of the United Kingdom union actually is or what it should be, and also, added to that, the problem of the lack of any clarity of what the governance arrangement within that union is for England?

Well, I certainly think that the lack of governance for England puts the question of the conflict between the UK Government acting as the Government of England and the Government of the United Kingdom at the heart of a number of the challenges that we are talking about today.

But, to your first question, Chair, I think—and we've talked about this in other contexts today—what this Bill doesn't recognise, and I think it's a broader question, is the importance of the principle of subsidiarity, which is that Governments ought to be able to make decisions, which—you know, your starting point is that Governments are able to make decisions for their own territories or countries within the UK, and then there's a sort of set of building blocks on top of that and, at the end point of that, you get a kind of cross-UK set of competences. I think, because this Bill has started from the other end of the telescope, if you like, it seeks to impose that uniformity, rather than recognise that divergence within a framework is actually a healthy part of a devolved constitution.

Thank you, Chair. Counsel General, we do still have a developing system of common frameworks, and I suppose, if I were impartial or acting as a consultant from Mars or something, coming in to look at governing arrangements from a completely different perspective, I might say, 'Ah, what we need to do is work these systems in parallel so that the internal market Bill is informed by the common frameworks, which already cover mutual recognition in key regulatory areas like the environment and agriculture'. So, you could expand the model and then ensure that the actual Act is not implemented in a way that is inimical, really, to effective exercise of devolved powers. So, couldn't we just have a parallel system operating? Is that the way out of this thicket, or do you think that either the frameworks won't operate effectively, or they can't operate effectively, given the Bill?

10:25

Well, the Bill starts on the wrong premise to achieve that outcome, it seems to me. If the Bill started from the premise of saying, 'The Governments will seek agreement on the basis of common frameworks', and that leads to mutual recognition—because that, in a sense, is the point of common frameworks, that you get a set of arrangements that involve mutual recognition, obviously. But it starts from a different point, which is an agreement, rather than an imposition, if you like.

The problem with introducing the principle of mutual recognition in the way that this Bill does is that it bluntly removes the incentive from the UK Government to engage in the common frameworks mechanism, because you've already got an overriding principle that renders that unnecessary, in a sense—well, certainly not the focus of attention. So, I think the Bill starts from the wrong perspective, really. That's why, if you have a common frameworks mechanism, that provides both the certainty required and the devolution assurance required.

Actually, we've been working together for over two years on this. I don't think there are any examples, actually, of a common framework where one of the Governments has simply walked away from it. We've discussed in this committee before that progress on that work has been slower than, I think, all Governments would've hoped, really, for reasons that I think are probably well established by now. But, at the last JMC(EN), we did approve ministerially for scrutiny two common frameworks and those will be going forward to the legislatures for scrutiny. Essentially, the devolved Governments have given a commitment, really, that, whatever state the frameworks are in at the end of this year, they'll all be in outline—we hope and expect that we will operate those as they are and as they're being refined, subject to scrutiny, and so on.

Because one of the arguments I think we've heard is, 'Well, the common frameworks aren't sufficiently advanced to be able to provide an alternative to the Bill'. I don't think that's the case. The common frameworks start at the moment from a shared place, don't they, across the UK in many ways, and I think there's a possibility of operating them in a kind of progressive way, as they're being scrutinised and finalised. I think that would provide an alternative, then, to the Bill as it's currently drafted. 

The other thing I suppose that might be used in the negotiations is if the UK Government came back immediately, or very soon, anyway, and said that the certain aspects that you find particularly difficult—like, for instance, what is 'substantive change'—could be dealt with in an inter-government agreement that would give not statutory, but certainly, would give at least some guarantees in the practical political world about how the legislation will be interpreted by Government and used—by UK Government, I mean. Would that be a basis for saving something from what you consider at the minute a very inadequate Bill?

Well, I mean, one level of common frameworks are inter-governmental agreements, aren't they, so we obviously accept that that is available as part of the overall picture for the common market here. Clearly, in terms of how one deals with the legislation itself, the First Minister has said previously, obviously, that it's not our preferred approach, but in a kind of mixed ecology, if you like, then you might see the common frameworks coming into play in that sense. But I think anything broader than that, particularly in some of the challenges that I've already described to you, and in particular, the one you just mentioned now, I don't think we are anywhere near the kind of place where an inter-governmental agreement could sensibly be the solution to those. So, I suppose our stance on that would be that there is some scope, I suppose, with an inter-governmental agreement, to solve some of these things, but we are quite some way away from where that would need to be for that to be a live discussion.

10:30

And finally, Counsel General, you, like me, believe that, with reform, the union can flourish again, and possibly for another 313 years. It is a project well worth working to save. Now, I don't want to rehearse the constitutional implications of this Bill passing without the Senedd's consent, because I think we've aired that this morning already, but in terms of the United Kingdom, and given the constitutional journey that Scotland has been on and the place they are at the moment, what do you think are the implications for the future of the United Kingdom if this Bill is forced into law, in defiance of the consent of the Scottish Parliament?

Well, I think that the—. We work closely with the Scottish Government wherever we can, and despite the fact that we have very different views about what the constitutional destination ought to be, there's a significant amount of common ground in relation to many of these issues, which, I think, in a rationally ordered world, ought to give pause for thought, really, for people advancing this legislation. We've already, I think, seen the response in Scotland to this legislation. I don't think it's for me to comment on the future ambitions of Scotland in this space, in particular, but what I would say is, to echo the point I made earlier: legislation like this certainly does nothing to build the capacity of the union to deliver for all parts of the UK and, plainly, will cause discontent in a number of different parts of the United Kingdom, I would suggest.

Okay. Thank you for that, Counsel General. We're going to move on to, now, other Brexit primary legislation, and, of course, we have, in the background, the agriculture, fisheries, trade and environment Bills, which seem to be making lamentable progress with a whole series of obstacles. So, I wonder if you could perhaps update us as to what your assessment is of the progress of these Bills and the importance of legislation being enacted before the end of the year when we formally fall out of any transitional arrangements with the European Union.

Well, each of the Bills that you describe, Chair, obviously plays a very important role and plays an important role in the capacity of the Senedd and Ministers in different ways in Wales into the future. The question of timing, which, for me, is the heart of your question, varies, as it were, between those four Bills. So, different parts are more time sensitive than others, if I can put it like that. So, if you were to take, for example, the—. Well, let's take the Environment Bill; I think that's probably the most straightforward. So, I don't think any of the clauses in that Bill, as they apply to us in Wales, are necessary, if you like, to meet our obligations leaving at the end of this year. I think, on the Fisheries Bill, again, it wouldn't, I think, be ideal, if I could put it like that, for the provisions in the Bill to be delayed. But, you'll recall, there was a series of SIs that would provide a sort of short-term fix, if you like, to some of the main challenges that we would experience. So, there would be a not ideal, but a probably functioning way of managing some of that risk.

On the Agriculture Bill, obviously that's more time sensitive. For us to be able to continue basic payments in 2021, and after that, we'd obviously need provisions in relation to that to be in place by the end of 2020. So, that's, obviously, the direct payments powers themselves, but also all the kind of ancillary things that are in a devolved space, which is around data collection, marketing, market intervention. Those are, generally, in a devolved area, and they would be needed for aspects of the single market to be in place—the UK single market. So, those would need to be in place by the end of this year. And there are other things, as well, which are not devolved to us—so, the red meat levy, some aspects of the World Trade Organization clauses, some aspects in relation to producer organisations are reserved, so those we'd want to make sure were in place as well.

10:35

What are the contingency plans in the event that that legislation doesn't proceed within the timetable that you want to see it happen? Because there are clearly areas that are going to be quite damaging for the Welsh economy if they're not in place. I'm thinking of two things: whether using existing powers in respect of regulations in those areas, if that is possible or feasible, but secondly, in the event that agreement can't be reached or that the progress isn't sufficient, what is the plan B?

Well, some of them don't, in a sense, require contingency. As I say, with the Environment Bill, there's not a specific set of contingency plans in place, because that isn't—it's a desirable thing, it isn't time sensitive in that sense.

On both the fisheries and the trade legislation, there are existing sets of statutory instruments that have been in place for some time as we contemplate departure that would, for example, in the context of fisheries, allow Ministers to license and control foreign vessels. That would be relevant if we were to leave the transition before the Fisheries Bill gets Royal Assent. So, there's a set of fallback options there, which are not perfect solutions, but they would function. In the trade space, there are also existing SIs that would handle the procurement and Agreement on Government Procurement obligations.

On agriculture, I think you would probably be looking at a stand-alone direct payments continuity Bill of some sort that would need to come through the Senedd within that time frame, which would then, itself, provide powers to Ministers to make regulations. So, a contingency for that is a more substantial thing, really, given the impact that would have in a short time. So, that, I think, hopefully, explains it for you. 

Thank you for that. We obviously anticipate possibly a flurry of further legislation in those circumstances. Do you think it's appropriate—? The Welsh Government has indicated that it will table a legislative consent motion on the Fisheries Bill, but before it has agreed a memorandum of understanding with the UK Government on the Secretary of State's power to determine fishing opportunities in clause 23 of the Bill. I wonder if you could perhaps explore that a little bit more.

Well, I think on the MoU, our intention as a Government was for Members to have sight of that before seeking consent, obviously, and, plainly, we are pushing for there to be substantial progress on that. It's a wide-ranging document, and it has some interrelationships, some dependencies, as I understand it, with the joint fisheries statement, which is a provision in the Bill. I'm anxious not to tread on the policy responsibilities of the Minister for the environment on this. I know that she's been in correspondence with the committee in relation to that, and I think that, as I understand it, that correspondence is ongoing. So, perhaps I can defer to that exchange, if I might, Chair.

Thank you for that. Do you understand—? One of the concerns this committee has, of course, on legislation of this type is that the memorandum of understanding is extremely important. It therefore becomes very difficult within a parliamentary process to endorse consent or a legislative consent motion when you don't actually have the full picture as to what is actually going to happen and what the legislation might amount to. Do you see any way of overcoming that, or—? What is your view?

It's inherent in the fact that we intended for the MoU to be available before asking Members to give their consent that we regard anything else than that as being not the perfect outcome, obviously. But I think what's intended, as I understand it, Chair is that the Minister for the environment will obviously be providing regular updates on developments in this, and I think that she expects to write again on this matter before the debate, in order to provide the maximum available information to Members at that point.

So, is it the case, then, that legislative consent may not be sought until that memorandum of understanding is available to Members?

10:40

I don't believe that is the intention, Chair. I think the intention is to provide as much available information as possible, but perhaps I can take that away and come back to you and confirm that.

Thank you very much, and I appreciate that. If we move on, then, to scrutiny of some of the EU exit-related subordinate legislation, over to Dai Lloyd.

Diolch, Cadeirydd. Fel mae'r Cadeirydd wedi dweud, rŷn ni'n symud ymlaen i graffu ar ychydig bach o elfennau o'r is-ddeddfwriaeth rŵan sy'n berthnasol i adael yr Undeb Ewropeaidd. Allech chi yn gyntaf gadarnhau y bydd Llywodraeth Cymru yn ymrwymo i ddefnyddio Rheol Sefydlog 30C i roi gwybod i'r Senedd ei bod yn rhoi cydsyniad i Weinidogion y Deyrnas Unedig reoleiddio mewn meysydd datganoledig o dan ddeddfwriaeth sylfaenol y Deyrnas Unedig yn ymwneud â Brexit?

Thank you, Chair. As the Chair mentioned, we are now going to move to scrutinise some elements of subordinate legislation related to exiting the European Union. Can you first of all confirm whether the Welsh Government will commit to using the Standing Order 30C process to notify the Senedd of its consent to UK Ministers regulating in devolved areas under all the UK's primary legislation on Brexit?

Jest yn gyntaf, byddwn i'n dweud ein bod ni'n cydnabod pa mor bwysig yw e—pa mor bwysig yw'r Rheol Sefydlog hynny ac, wrth gwrs, gallu'r Senedd i graffu ar hyn. Mae'r Prif Weinidog, rwy'n credu, newydd ymateb i lythyr oddi wrth y pwyllgor yn cytuno i ddymuniad y pwyllgor ein bod ni'n ymestyn 30C i gynnwys y math yna o reoliadau, a rheoliadau o dan y Biliau rŷn ni newydd fod yn eu trafod nhw, a bod y protocol newydd fyddai'n dod ac yn deillio o hynny wedyn yn ymestyn tan ddiwedd tymor y Senedd hwn. 

I would first of all say that we do recognise how important that Standing Order is, and the Senedd's ability to scrutinise this process. I think the First Minister's just responded to a letter from the committee agreeing to the committee's aspiration that we should extend Standing Order 30C to include those kinds of regulations, and regulations under the Bills we've just been discussing, and that the protocol emerging from that would extend until the end of this Senedd term. 

Diolch am hynny, achos mi fyddwch chi yn gallu deall ein pryderon fel pwyllgor sydd yn obsesiynu pan fydd llywodraethau eraill yn ceisio deddfu mewn meysydd datganoledig. Felly, diolch am hynny.

Allaf i bellach ofyn i chi a allech chi roi'r wybodaeth ddiweddaraf i'r pwyllgor yma am nifer yr offerynnau statudol y bydd eu hangen cyn diwedd y cyfnod pontio, ac egluro pam mae'r asesiadau wedi newid dros y misoedd diwethaf yn ôl pob golwg?

Thank you for that, because you will understand our concerns as a committee that obsesses about other governments seeking to legislate in devolved areas. So, thank you for that.

Can I ask you also whether you can provide the committee with an update on the volume of statutory instruments required between now and the end of the transition period, and to clarify why the assessments appear to have changed over recent months?

Bydd angen nifer sylweddol o ddeddfwriaeth eilradd yn hyn o beth. Cawsom ni, ar ddiwedd tymor yr haf, am y tro cyntaf, adroddiad gweddol fanwl o'r cynllun SIs gan Lywodraeth y Deyrnas Gyfunol mewn meysydd sydd ag elfen ddatganoledig. Mae hyn, wrth gwrs, yn ymwneud â'r cytundeb ymadael ar y cyfan. O ran y rhestr ddiweddaraf sydd gyda ni fan hyn, rŷn ni'n darogan y bydd rhyw 45 o SIs yn gofyn am ein cydsyniad ni i newidiadau, a bydd hynny'n digwydd trwy lythyru ac ati. Mae'r pwyslais yn y meysydd hynny ar newidiadau yn nghyfraith yr Undeb Ewropeaidd a wedyn gweithredu'r cytundeb ymadael a chytundebau sy'n perthyn i hynny. O safbwynt SIs sydd yn cael eu gwneud yma yng Nghymru yn y meysydd hynny, rŷn ni'n credu y bydd angen tua 30, felly rhyw 75 os ŷch chi'n edrych ar y cyfan gyda'i gilydd. Mae hynny, wrth gwrs, yn dibynnu ar newidiadau a phenderfyniadau ynglŷn â'r protocol, a dyw hynny ddim yn cymryd i ystyriaeth unrhyw newidiadau a fyddai'n deillio o gytundeb rhwng Llywodraeth y Deyrnas Gyfunol a'r Undeb Ewropeaidd. Felly, mae hynny ar ben y rhifau rwyf newydd eu rhoi i chi nawr. 

A substantial amount of subordinate legislation will be required. At the end of the summer term, for the very first time, we received quite a detailed report on the UK Government's SI plan in areas that have devolved elements. This of course relates to the withdrawal agreement, generally speaking. In terms of the latest list that we have, we anticipate that some 45 SIs will require our consent, and that will happen through correspondence, and so on and so forth. The emphasis in those areas is on changes in EU law and the implementation of the withdrawal agreement and issues related to that. In terms of SIs made here in Wales in those areas, we believe that some 30 will be required, so the total would be 75. That, of course, depends upon decisions on the protocol, and that doesn't take into account any changes emerging from an agreement between the UK Government and the EU. So, that would be on top of the figures that I've just given you.

Diolch am hynny. Ymhellach i'r ddwy frawddeg olaf y gwnaethoch chi eu hynganu yn fanna, allech chi egluro pa senarios yn hollol sy'n ymwneud â'r berthynas rhwng y Deyrnas Unedig a'r Undeb Ewropeaidd a allai olygu y bydd angen mwy o is-ddeddfwriaeth na'r hyn a ragwelir ar hyn o bryd?

Thanks for that. Further to the last point that you made there, can you explain what scenarios related to future relationships between the UK and the EU could lead to the need for a larger volume of secondary legislation than is currently being anticipated? 

Yn gyffredinol, os caf i ei ddodi e felly, o ran egwyddor, y dyfnaf fydd y berthynas, y mwyaf o ddeddfu fydd ei angen. Dyna'r egwyddor sylfaenol. Mae'r SIs sydd yno wedi cael eu drafftio ar sail gadael heb gytundeb, felly, os bydd cytundeb, bydd angen diwygio’r rheini. Felly, bydd mwy o SIs yn sgil y senario honno.

Generally speaking, if I could put it in those terms, and from a point of principle, the deeper the relationship, the more legislation will be required. That's the fundamental principle. The SIs have been drawn up on the basis of leaving without an agreement, so, if there is agreement, we will need to amend those. Therefore, there would be more SIs in that scenario. 

I sôn yn benodol, felly, am y 45 o reoliadau yma mewn meysydd datganoledig rydych chi wedi eu crybwyll eisoes, allwch chi nodi'r sail resymegol gan Lywodraeth Cymru dros ganiatáu i Lywodraeth y Deyrnas Unedig wneud y 45 o reoliadau yma sydd mewn meysydd datganoledig yn hytrach na deddfu eich hunan?

Turning specifically to the 45 regulations in devolved areas that you've already mentioned, can you set out the Government's rationale for permitting the UK Government to make the 45 regulations that are in devolved areas rather than legislating yourselves? 

10:45

Wel, yr egwyddor yw'r un egwyddor sydd wedi bod yn llywodraethu ar y maes yma ers y cyfnod gadael y llynedd, pan oeddem ni'n gweithio tuag at edrych ar senario o adael heb gytundeb o unrhyw fath. Hynny yw, mae scale y peth yn hollol ddigynsail o ran deddfu ym meysydd deddfwriaeth eilradd a hefyd pwysau o ran deddfwriaeth gynradd, a chyfnod mor fyr i allu llwyddo gwneud hynny. Fel y byddwch chi'n cofio, fe wnaeth Llywodraeth y Deyrnas Gyfunol basio dros 600—630 neu rywbeth felly—o SIs cyn gadael ar ddiwedd y llynedd. Yn sgil y cytundeb rhynglywodraethol y gwnaethon ni ei gytuno, gwnaethon nhw ofyn am i ryw 150 o SIs gael cydsyniad Llywodraeth Cymru a gwnaethon ni, yma yng Nghymru, ryw 50 o SIs ein hunain. Felly, fuasai hi ddim wedi bod yn bosib, o ran y Llywodraeth, i allu delifro'r volume hynny o ddeddfwriaeth mewn cyfnod mor fyr. Ond, wrth gwrs, yn sgil y cytundeb rhynglywodraethol, roedd gofyniad felly ar y Llywodraeth yn San Steffan i fynnu'r cydlyniad yma wrthon ni. Mae'r un sialensau yn digwydd eleni eto, ond, wrth gwrs, mewn cyfnod lot byrrach gyda llawer mwy o ansicrwydd, ac ansicrwydd hyd yn oed yn hwyrach yn y cyfnod. Felly, mae'r sialens efallai'n amlwg yn sgil hynny. 

Well, the principle is the same principle that's been in place since the exit period last year, where we were looking at the scenario of leaving without any sort of agreement. The scale of it is unprecedented in terms of legislating, as regards secondary legislation as well as primary legislation, and we have such a brief period to do that. As you will recall, the UK Government passed more than 600—630 or so—SIs before leaving at the end of last year and. In light of the inter-governmental agreement, they asked for some 150 SIs to be given consent by the Welsh Government, and we also made some 50 SIs here in Wales. So, it wouldn't have been possible for the Government to have delivered that volume of legislation in such a brief period of time. But, of course, given the inter-governmental agreement, there was a requirement on the Westminster Government to demand consent from us here. The same challenges are occurring again this year, but, of course, in a far briefer period, with far more uncertainty and with the uncertainty coming even later in the process. So, the challenge is perhaps clear as a result of that. 

Dwi'n deall hynny, ond a allaf i bwyso arnoch chi ychydig bach ymhellach ynglŷn â'r union seiliau rhesymegol, achos mae disgwyl bod mwy o sail resymegol na dim ond y pwysau gwaith trwm sydd arnoch chi fel Llywodraeth?

I understand that, but can I just push you a little further on the exact rationale, because there should be more of a rationale than simply the pressures of work on you as a Government?

Wel, mae'r egwyddorion lle rydym ni'n gofyn i Lywodraeth y Deyrnas Gyfunol ddeddfu ar ein rhan ni yn glir ac yn fater o record gyhoeddus. Hynny yw, dydyn nhw ddim yn newid, wrth gwrs, deddfwriaeth sydd wedi ei gwneud yma yng Nghymru, a dydyn nhw ddim yn gwneud hynny mewn meysydd lle mae gwahaniaeth polisi, a dydyn nhw ddim yn gwneud hynny mewn meysydd lle mae sensitifrwydd gwleidyddol neu lle byddai'n sicr gan y Senedd ddiddordeb penodol yn y drafodaeth honno. Felly, mae'r egwyddorion yn dryloyw ac maen nhw'n dal i barhau ar gyfer eleni hefyd. 

Well, the principles where we ask the UK Government to legislate on our behalf are clear and are a matter of public record. They do not change legislation made here in Wales and they don't do that in areas where there are differences of policy, and they don't do that in areas of political sensitivity, where the Senedd would have a specific interest in that debate. So, the principles are transparent and they remain for this year, too.  

Grêt, diolch. Y cwestiwn olaf gen i—

Okay, thank you. The final question from me—

Can I move on, Dai, because I think the next issue is one that's been quite canvassed and I'm very wary of the time that we have? We've got a few more questions to get through. Is that okay? If there's time at the end, Dai, we can come back.

Thank you, Chair. Counsel General, the letter of 11 September that you sent to this committee suggests that the section 109 Order, which is necessary to correct the loss of competence on behalf of the Welsh Government, is being delayed. Why that delay, do you think?

I don't know the answer to that question, but we are waiting for confirmation of the new timetable for that coming through. The Wales Office have committed for that to happen for some time, frankly, and there was a draft Order produced before the summer recess. So, we're expecting that to be delivered as soon as possible now. It's obviously pressing. 

Well, we're hoping that it will be delivered, because obviously it will have an impact on some of the concurrent powers that we have. But we're very much hoping that the Wales Office will continue the arrangements. Obviously, they've been indicating they will do so far. 

So, there's a commitment, but there's no commitment as to when. Would that be fair?

Well, I think we were expecting for it to be done by now, Chair, so it's been delayed beyond where we anticipated it would be. We are pressing the Wales Office for progress on that, because obviously we want to make sure that's resolved, clearly. 

The final question from me, then: have the Wales Office given any explanation at all for the way in which they've treated this issue?

I may have to come back to the committee on this, if I may, but, from recollection, I don't think there's a reason for the delay that's been given, Chair, no. 

Thank you. We've gone through those 42 questions very efficiently. I just wonder, Dai, because I cut you off, was there anything else you really wanted to ask about?

Mae Carwyn wedi llwyddo i gyfro beth roeddwn i'n mynd i ofyn, so mae hynny'n iawn. Diolch. 

No, Carwyn covered it, so that's fine. Thank you.

10:50

That's fine. That brings us to the end of the questions. First, I thank you, Counsel General, and your officials for the very detailed answers. It has been a long session but it's been an important session, and the depth and detail of your answers I think has been extremely helpful. We will bring this session to an end now. Of course, you will get a transcript in due course. This is a debate that is obviously fast moving and we'll be coming back on 12 October, again, when, I think, you and the First Minister will be doing an evidence session on this, as well. So, it's not something that's going away. Thank you again for attending.

Shall we take a short comfort break now and come back at 12 o'clock to complete the rest of the business? Is that acceptable to Members? So, we'll do that. We'll close now and allow the Counsel General to leave, and we'll restart at 12 o'clock. Thank you. 

Gohiriwyd y cyfarfod rhwng 10:51 ac 11:00.

The meeting adjourned between 10:51 and 11:00.

11:00

Okay, we're continuing now the Legislation, Justice and Constitution Committee meeting. We've just finished the scrutiny of the Counsel General. There were two items—actually, there were a couple of questions relating to COVID and the impact of COVID, and apologies, David, we didn't get to those. Are you satisfied if we put those matters in writing to the Counsel General and we'll have those for the next meeting? Also, my apologies over the time. I think I'm running on Tonyrefail time, which is an hour ahead. So, we're recommencing at 11 o'clock, not 12 o'clock, as I indicated.

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

We move on now to item 3. We're on to the Healthy Start Scheme (Description of Healthy Start Food) (Wales) (Miscellaneous Amendments) Regulations 2020. These regulations make amendments to the Healthy Start scheme. There are no points that have been identified for reporting on this by the lawyers, I understand. Any comments on this?

4. Offerynnau sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3
4. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3

Okay. If not, then we move on to the next item, item 4, which is the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 8) Regulations 2020. And, again, we have the report, the regulations, the explanatory memorandum, and, of course, the letter from the Trefnydd, dated 3 September 2020, and a written statement. These regulations, as they indicate, are the eighth set of regulations that impose requirements on persons entering Wales after having been abroad. They came into force on 4 September and Members will be aware that three further sets of amendment regulations have since been laid, and these will be considered shortly. Over to you, Gareth—merits points.

Diolch. Yes, there's one merits point, on pack page 45, just noting a breach of the 21-day rule and that these regulations came into force before they were laid before the Senedd. And the letter from the Minister for Finance and Trefnydd, on pack page 56, sets out why the Welsh Government thinks the regulations are urgent.

Okay, thank you. Any comments or observations from anyone? No. In which case, we move on to item 4.2, which are the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 8) (Caerphilly) Regulations 2020. These came into force on 8 September. Again, merits points have been identified. Gareth.

Yes. There's one technical point and two merits points, starting on pack page 61. The technical point notes a cross-reference in the Welsh text—it's not as clear as it could be when compared to the English text. The Welsh Government has not yet responded to this point.

The first merits point notes there's been no formal consultation or regulatory impact assessment that quotes from the explanatory memorandum what the Welsh Government has been doing to inform people of the changes.

The second merits point notes that the regulations amount to a tightening of restrictions that had previously continued a general trend of being lifted, and, therefore, they trigger renewed interference with human rights, such as the right to respect for home life and freedom of religion. And, of course, it isn't interference just with the rights of people who live within the Caerphilly region; it also affects someone who lives outside Caerphilly who may want to go there to a place of worship, for example, or to grandparents, for example, who may want to visit grandchildren in the Caerphilly area. The Caerphilly restrictions must be reviewed by 24 September 2020 and then once every seven days after that. And on pack page 80, there's a written statement from the Minister for Health and Social Services about these regulations.

Okay. Are there any comments on those from Members? If not, I don't see any interventions, so we then move on to item 4.3, which are the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No.9) Regulations. These were made on 11 September, came into force on 14 September. Again, there have been a number of merits points identified. Gareth.

11:05

Two merits points, starting on pack page 83, noting there's been no formal consultation and again these restrictions are a tightening of the restrictions in certain areas. There's also a written statement by the First Minister about these regulations on pack page 98 and it's also worth noting that the No.10 amendments have now also been made, which introduced new restrictions in Rhondda Cynon Taf.

Thank you for that. Are there any comments or observations? I don't see any.

I move on to item 4.4, which are the Health Protection (Coronavirus Restrictions) (Functions of Local Authorities) (Wales) Regulations 2020. You have all the relevant papers before you. These regulations, on Friday, they were revoked and new regulations were made in their place, and we'll consider these new regulations at next week's meeting. However, as the regulations before us today were in force between 14 and 17 September, they should still be considered by us. They provide local authorities in Wales with additional powers in response to the threat to public health posed by coronavirus. A number of technical and merits points have been identified—Gareth.

Three technical points and three merits points, starting on pack page 101. The first technical point notes that the Public Health (Control of Disease) Act 1984 requires these regulations to include a declaration by the Welsh Ministers, a declaration that they think these regulations are so urgent that it is necessary to go ahead and make the regulations without laying a draft before the Senedd for the Senedd to approve. Now, there is such a declaration in the explanatory memorandum, but not in the regulations themselves, and the Welsh Government has already addressed this by revoking these regulations and making new regulations that contain the declaration. 

The second and third technical points note incorrect cross-references within the regulations.

The first merits point suggests that certain things could be made a bit clearer in guidance on these regulations, for example, the guidance could help with the meaning of terms like 'critical infrastructure' and the meaning of 'essential goods and public services', and the merits point also notes that it has not been possible to find guidance on enforcement of these regulations.

The second merits point, in brief, seeks clarity from the Welsh Government around the meaning of 'persons who own premises', 'persons who occupy premises' and 'persons who are otherwise responsible for premises'.

The third merits point notes a typographical error: the regulations refer to 'policy officer', when they should refer to 'police officer', and the Welsh Government has not yet responded to these points.

Okay. So, we await those responses. Any observations from Members? No, I don't see any.

5. Offerynnau sy’n cynnwys materion i gyflwyno adroddiad arnynt i’r Senedd o dan Reol Sefydlog 21.2 neu 21.3 – trafodwyd yn flaenorol
5. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 - previously considered

So, we'll move on to item 5—I think we're on now—which is the European Union (Regulated Professions Proportionality Assessment) (Wales) Regulations 2020. We considered these at our meeting on 3 August and laid our report on the same day. We've now just had the Government's response to that. Any comments from you, Gareth?

Only to note that Government accepts the points raised by the committee and a revised explanatory memorandum reflecting that has been laid.

Thank you for that. Any other comments or observations? I don't see any.

I move on to item 5.2, the Marketing of Seed, Plant and Propagating Material (Wales) Regulations 2020. Again, we considered these on 24 August and we laid our report that day. We've now had the Government response. Any comments, Gareth?

There's one particular thing, I think, that's worth noting: the committee noted that a footnote in the regulations referred to the Legislation (Wales) Act 2019 when it should have referred to the Interpretation Act 1978. The Welsh Government accepts the point and it just shows how difficult it can be working out which of the interpretation Acts apply in Wales: is it the Legislation (Wales) Act 2019 or the Interpretation Act 1978?

A very good point there. Any comments or observations?

We move on, then, to the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 7) Regulations 2020. Again, we considered this instrument at last week's meeting, 14 September, and had a Government response, which has been added to the report in advance of it being laid. Gareth, any comments?

11:10

The committee reported to say that guidance should include isolation information for travellers who, for example, travel to Wales from a country and the status of the country changed mid flight, or halfway through isolation. The Welsh Government response on pack page 197 accepts that such additional guidance may be helpful and it will consider including this in guidance in the future.

Okay, thank you for that. Any comments or observations? No.

6. Is-ddeddfwriaeth sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.7
6. Subordinate legislation that raises issues to be reported to the Senedd under Standing Order 21.7

We move on to item 6, then: subordinate legislation. We have the Modification of Curriculum Requirements in Wales Notice 2020. This notice has been issued under paragraph 7(6) of Schedule 17 to the Coronavirus Act 2020, which contains a list of education enactments that can be modified by Welsh Ministers. Gareth.

Yes, the draft report notes on pack page 199 how important this notice is, and that it modifies some important pieces of education law. It also notes a summary of the reasons given by the Welsh Government for the modifications made by this notice.

7. Offerynnau statudol y mae angen i’r Senedd gydsynio â hwy (Memoranda Cydsyniad Offeryn Statudol)
7. Statutory Instruments requiring Senedd consent (Statutory Instrument Consent Memorandums)

We move on to item 7, the Waste (Circular Economy) (Amendment) Regulations 2020. Again, you have the set of papers before you. This statutory instrument consent memorandum relates to the Waste (Circular Economy) (Amendment) Regulations 2020, which were laid before the UK Parliament on 27 August 2020. The consent memorandum was laid by the Welsh Government on 1 September. The objective of the regulations is to transpose the 2020 EU circular economy package requirements in the UK.

The letter from the Minister does not indicate whether it's her intention to table a motion for debate. However, the business statement and announcement published last week indicates that a debate will be held on 6 October. This committee is required to report to the Senedd within 35 days of the consent memorandum being laid, and a draft report for Members will be considered at the next meeting. Any comments, Gareth? No. Any comments from the Members? No. In which case, we then move on to item 8.

8. Papurau i’w nodi
8. Papers to note

We have a letter from the Minister for Environment, Energy and Rural Affairs in response to our report on the supplementary legislative consent memorandum on the Agriculture Bill. We're invited to note that letter. A motion on whether to consent to the Bill is scheduled to take place in Plenary on 29 September, so I suggest that, if there's any discussion on this, we defer that to private session. Is that agreed? Okay, I see that.

Item 8.2, we have a letter from the Minister for International Relations and the Welsh Language in response to our report on the legislative consent memorandum on the Trade Bill. It was a fairly full report that we submitted, you'll recall, so we're invited to note that letter from the Minister, and perhaps also to note the Minister's letters to the Lord Speaker and the Minister of State for Trade Policy regarding the Bill. It is not yet clear to us when a motion on whether to consent to the Bill will be considered in Plenary. I suggest if there's any discussion that perhaps we should take this up in private session. Are we agreed with that? Okay, thank you very much for that. 

Item 8.3, we have a letter from the First Minister on scrutiny of regulations arising from the UK's exit from the European Union, the protocol between the Welsh Government and the Legislation, Justice and Constitution Committee. You see the letter we're invited to note from the First Minister in relation to the protocol, which is very positive. Again, shall we defer this to discussion in private session? Thank you for that.

Item 8.4, we have a letter from the Counsel General on the inter-institutional agreement: inter-governmental relations review of ministerial meetings. It's a letter dated 17 September 2020. We're just invited to note that. Do Members note that letter? No comments or observations are there, or are there? No. If there's any issue, we can raise that in private session. 

9. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
9. Motion under Standing Order 17.42 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.

I think we've got to the end of that formal business, 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 Members agree we now go into private session? I can see that agreement, so we now go into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 11:14.

Motion agreed.

The public part of the meeting ended at 11:14.