Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad
Legislation, Justice and Constitution Committee20/06/2022
Aelodau'r Pwyllgor a oedd yn bresennol
Committee Members in Attendance
|Alun Davies AS|
|Huw Irranca-Davies AS||Cadeirydd y Pwyllgor|
|James Evans AS|
|Rhys ab Owen AS|
Y rhai eraill a oedd yn bresennol
Others in Attendance
|Adam Turbervill||Uwch-gyfreithiwr, Llywodraeth Cymru|
|Senior Lawyer, Welsh Government|
|Dr Robert Parry||Dirprwy Gyfarwyddwr, Pontio Ewropeaidd, Llywodraeth Cymru|
|Deputy Director, European Transition, Welsh Government|
|Mick Antoniw AS||Cwnsler Cyffredinol a Gweinidog y Cyfansoddiad|
|Counsel General and Minister for the Constitution|
|Piers Bisson||Cyfarwyddwr, Pontio Ewropeaidd, y Cyfansoddiad a Chyfiawnder, Llywodraeth Cymru|
|Director, European Transition, Constitution and Justice, Welsh Government|
Swyddogion y Senedd a oedd yn bresennol
Senedd Officials in Attendance
|Claire Fiddes||Dirprwy Glerc|
|Gareth Howells||Cynghorydd Cyfreithiol|
|Gerallt Roberts||Ail Glerc|
|P Gareth Williams||Clerc|
|Sarah Sargent||Ail Glerc|
Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.
The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.
Cyfarfu’r pwyllgor yn y Senedd.
Dechreuodd y cyfarfod am 13:00.
The committee met in the Senedd.
The meeting began at 13:00.
Prynhawn da. Croeso i chi i gyd. Welcome to this meeting in person of the Legislation, Justice and Constitution Committee. We'll introduce our guests in a moment, but first of all, just some housekeeping matters. As per normal, this is being broadcast on Senedd.tv live, and the Record of Proceedings will be published as usual. We have no apologies for today's meeting—a full turnout from our committee members. We're not expecting a fire alarm, but if we do have a fire alarm, if you'd just follow the staff to the fire exits. We're operating today through the medium of Welsh and English, and we have interpretation as normal available during this afternoon's meeting. The operator behind the scenes is controlling the microphones, so you don't need to mute and unmute yourselves; we can go straight into it.
So, with all that said, we can go straight into the substantive item in front of us first of all this afternoon, which is our scrutiny session with the Counsel General and Minister for the Constitution. You're very welcome here this afternoon. Thank you for giving us the time. We've got about an hour and a half to go through a huge range of issues we'd like to cover with you. If we don't get through them all, I'm sure we'll be writing to you afterwards. Would you just like to introduce, Counsel General, your officials, or allow them to introduce themselves?
Well, I'll take them through—introduce yourselves.
Adam Turbervill, senior lawyer within the Welsh Government.
Piers Bisson, director for European transition, constitution and justice in the Welsh Government.
Robert Parry, deputy director for matters relating to European transition.
Thank you very much indeed. So, between all of you, and you, Counsel General, we should be able to cover quite a breadth of issues, and in some detail here today. Just for Members to note, we've had correspondence from the Counsel General and Minister for the Constitution, which appears under this item, which we had on Friday afternoon, relevant to today's session.
So, if we begin, and if I could turn, first of all, in opening, Counsel General, to ask you: to what extent do you think that Welsh Government's programme for government and legislative statements should give a clearer indication of which UK Government Bills will be used to deliver Welsh Government legislative objectives? As you know, this is a matter that's been concerning us as a committee, because of the need to give real clarity and transparency to interested parties out there as well as the public.
I don't think it's a matter for the programme for government. The programme for government sets out what the Government's agenda is, the legislative programme, and other policy directions. The legislative programme of the UK Government, of course, is something that emerges, and we often get very little notice of it, if at all, and it is continually changing, in terms of amendments and so on. So, we look at the UK Government Bills, as we're required to do by Standing Orders, if they have an impact on devolved interests, but we don't go out of our way to actually engage with UK Government in terms of the creation of Bills. I'm not aware of any legislation occurring in that particular way, but when the legislation does appear, obviously it triggers a reaction, and that is that we have to consider it, we have to assess it, we have to analyse it, and we have to know what the implications are for us and what the issues might be in terms of cross-border issues, competence issues, and so on.
So, I don't think it's right for it to be in the programme for government, but I think it is obviously a matter of importance that this committee and the Senedd is able to scrutinise and understand what the UK Government is actually proposing. The biggest difficulty, of course, is that, after the Queen's Speech, if I was to ask, 'What's in the UK Government's programme and what impacts is it going to have?' there would have been very little I would have been able to actually tell you, so I would be in exactly the same position as you, and I think the point you're probably getting to is that that isn't really a good enough constitutional system and the best way in which legislation should be done.
That's a very good explanation of how the Welsh Government needs to be fleet of foot and needs to be reactive to what is happening up the other end of the M4 in Whitehall, but where does it leave us, then, in terms of Welsh Government commitment? For example, when it commits in a programme of government or where it commits in public statements, or ministerial statements to the press, that it intends to legislate for Wales in Wales in a particular area, and then, of course, we get to the point where something emerges from Whitehall, how do we get greater clarity, then, of what's going on there, when Welsh Government have said, 'Our intention is to do it here in Wales,' but then we end up reacting to something coming down the M4?
Well, quite often, UK Government Bills will relate to things that aren't part of our programme for government, and then the issue arises whether there's something in that that we might want to seize the opportunity to do, that it might be advantageous to the people of Wales. But, if it's something that we don't think that we would be able to legislate in time, and if we didn't, it would disadvantage, et cetera, this is the issue we've had in terms of legislative consent memoranda in relation to UK Government legislation.
In terms of the constitutional relationship, the discussions that we've had at inter-ministerial level have basically been around the need to have very early engagement in UK Government Bills, so that we're able to, right from the start, identify those areas that may impact on Wales, what the direction is and so on as part of that process, and that enables us then to actually start looking at the issues of scrutiny, informing this committee, informing the Senedd and so on. So, it's not a satisfactory situation. We've been given lots of promises that there will be that earlier engagement. It is fairly, sort of, irregular in practice at the moment. There are some good examples that have occurred—the common frameworks was a good example of working well together until the internal market Act. But, of much of the legislation that was announced recently in the Queen's Speech—I think it was some 37, 38 pieces of legislation—27, we understand, have or may have an impact on devolved interests, and, of those, only 12 we were actually sighted on in terms of, 'These are bits of legislation that will be coming forward that may impact upon devolved interests'. And then we go even deeper in that—how much do we actually know about what is actually, really being proposed is often very little.
Well, crikey, there's the old adage about nobody would want to actually look in detail at how legislation is actually made—the sausage machine of it—and we have the sausage machine now operating at both ends of the M4, and not always talking to each other about what they're putting into it. It's quite interesting. But, Alun, take us on.
I'm not sure I can. You seem to be describing a pretty chaotic situation, Counsel General. My understanding was that, I think, in the old days it was devolution advice note 9 or some other instrument, and today it may be the fabled Cabinet Manual, if that actually exists, where there would be structured engagement between the two Governments, where, for example, if a UK Secretary of State was designing a piece of legislation, then there would be a clear instruction or an understanding that that Secretary of State would engage with the Governments of the UK in a proactive way. From your previous answer, you seem to be saying that where that exists—or it would be useful if you could clarify whether that does exist—at present, it doesn't actually occur in practice.
There are devolution guidance notes, and, of course, the whole principles of early engagement et cetera and devolution respect and so on all feature as part of that, as indeed they do now in terms of the new inter-ministerial framework, which we've started to put in place and to work on. But, in reality, it's honoured more in the breach than in any other way. The fact of the matter is as we saw, for example, with the Police, Crime, Sentencing and Courts Bill, which not only had very little notice of what was going to be in it, but was continually changing, amendments were coming through very late in the day, and very large of numbers of amendments, all of which had to be assessed within a very narrow timescale. And is that a good way to do legislation? I don't think it is. Is it constitutionally acceptable? No, I don't think it is. It is almost the worst way to be doing legislation, where people are kept at arm's length and almost kept unaware of what the content of legislation is. Could it be done much better? Yes, it could be done much better, but it is very dependent on those who are bringing forward the legislation to actually accept and to recognise right from the start that we have to be engaged in the process.
There are some good examples. I think the Procurement Bill is one where there has been good engagement. There still are competence issues around it, but there's been early engagement. I had a meeting with Jacob Rees-Mogg on the issue of the Brexit freedom or the Bill dealing with retained EU law—the legislation UK Government wished to bring about. We know that has an incredibly chequered history, because the legislation was announced to us on a Saturday when we weren't even told what was in it. That is really not the best way of doing things. But, I've been given assurances that there will be respect for the devolution arrangements and also that there will be early engagement. We have to wait and see whether that's delivered. There has been early engagement with officials, but it needs to go further than that in terms of being able to see the draft clauses, and even being able to participate in the construction of the legislation itself.
I think this is something that we may wish to return to, Chair. I won't pursue all these matters with the Counsel General this afternoon. Have you, or has the First Minister, or other Ministers, raised the chaos that you describe with UK Ministers as part of the inter-ministerial structures or the inter-governmental structures that exist as a consequence of the agreement announced?
The answer is 'yes'. Those discussions and those issues have been raised, and assurances have been given. And, as part of the new inter-ministerial arrangements, that is meant to happen. We've been given those assurances. Of course, there's only been one Interministerial Standing Committee meeting; the two subsequent meetings have been postponed. So, perhaps not the best of starts, but there is a further meeting, I think, towards the end of this month, which I'll be attending, and, of course, those issues will be raised. And, of course, many of these issues actually go back the fundamental status of Sewel.
I'll come on to Sewel in a moment. Can we just stick with the legislation structures and processes for a moment, though? In terms of where we are, I read the First Minister's written statement, I think it was, just after the Queen's Speech last month, and, as part of that—correct me if I don't remember this correctly—he seemed to be saying that we have the Bills, which you've already described in the previous answer, and we will be preparing, or Welsh Government will prepare, legislative consent Orders for these Bills in due course, and they will be placed before the Senedd. It seemed to me, almost going back the Chair's sausage machine, that this is just a process that we go through. And, to me, I would have anticipated the Welsh Government taking the view that, 'We will determine whether we wish to put these consent Orders in front of the Senedd and whether we wish the Senedd to provide consent for these matters'—that the Welsh Government would be acting in a more considered fashion, perhaps, possibly, than the words in that written statement conveyed.
Well, I think the point is, isn't it, that once the UK Government has brought forward legislation, if it impacts on Wales, or impacts on the devolved powers, we have an obligation to lay a legislative consent memorandum. One of the difficulties is, of course, in order to decide whether it is something you would want to consent to or not, you have to know what the detail of it is, and the timescale involved in doing that is not easy. You get some pieces of legislation where you get them a day or two before they're actually tabled, if you're lucky, and then there's the analysis—what are the devolution implications of these? So, that's the starting point. Now, at that stage you might think, 'Well, now is the best time to notify the committee, to lay a legislative consent memorandum and so on', and sometimes that happens. But, at other times, it then triggers a negotiation process where we go back to them and we say, 'I'm afraid this is not something that's acceptable to us. We disagree with this. We intend to do this ourselves', or, 'We don't want you to legislate in this particular area. We will at some stage do what is, we think, appropriate et cetera', or, 'We don't think you should have these powers et cetera, whether it's concurrent, concurrent plus and so on.' You then have to think about, 'Well, do I bring the legislative consent memorandum now, or do I wait until we actually know a bit more about what the substance is?'
And this is the question I have for you, Counsel General. I think we've all been unhappy—I think Welsh Government has found itself unhappy and certainly the Senedd has been unhappy with the way in which we've dealt with legislative consent motions over the last year or so. I think both my friends and comrades on this committee have taken purist views: Rhys opposes everything; James votes for everything, no matter what it contains. That has the virtue of some clarity; they know where they stand. The three of us here on the other side, if you like, have no idea where we stand on these matters because it's done on a case-by-case basis, which has other virtues, but clarity isn't one of them. Would it be fair to agree this afternoon that the current process isn't working especially well and that we need to look again at how we deal with legislative consent motions, and that perhaps the Welsh Government needs to review its own processes and the Senedd needs to give further consideration? Because, at the moment, Huw's sausage machine is a very, very accurate description of a process that puts legislation onto a statute book with no scrutiny at all, and that can't be good for anyone.
I think the biggest difficulty is not the legislative consent process itself, but the way in which legislation originates, and the momentum that can get behind UK Government Bills and the way in which it may or may not intrude into the devolved areas highlights several problems. One it highlights a problem in terms of the extent to which, at a UK Government level, when legislation is being put together, there is a sufficient awareness of the devolved interests and so on, and, if that's the case, why isn't there more engagement early on with it? So, that's the first part of it.
The second part of it is that it is almost the case that we then have to stand up and to argue Sewel and say, 'No, we're not', et cetera. The presumption should be that it doesn't go in unless there is an agreement in the devolved area. And if you had that joint working early on, I think it would save enormous amounts of time between the lawyers and everyone else who is going backwards and forwards in almost a sort of bargaining process in terms of, 'What do you mean by this?' and 'What impact this?' or 'We weren't aware of that, but we are aware now; we'll look at changing that', 'Well, you haven't changed it quite properly'. You know, the process that goes backwards and forwards in terms of officials negotiating et cetera is really a product of the cart being before the horse, that the legislation appears and that level of engagement and groundwork hasn't been done. And if that were to change to what is meant to happen, I think that would make that a lot easier. The problem is, of course, that once you do have legislation that does impact, at a certain stage, it's necessary to bring that legislative consent memorandum, because Standing Orders require it and the Senedd needs to know.
The other issue that emerges out of it, of course, is the one that you are concerned with, and I think we should all be concerned with, of course, which is the impact on scrutiny of legislation that impacts in devolved areas that is emanating from Westminster, and the ability of the Senedd to actually scrutinise it. Because the reality is that the only opportunity that the Senedd gets to scrutinise it is on the content of the legislative consent memorandum itself.
Absolutely. Which is not scrutiny of legislation, of course. I think it may be useful—I don't want to hold things up here, unduly—for us to look, Chair, at, for example, the Building Safety Act 2022 and how the legislative consent process ran out of control, I think it's fair to say, on that particular piece of legislation, and what we've ended up with wasn't what the Minister sought consent for in the first instance. But let's not hold ourselves up on that.
In answer to a previous question, Counsel General, you spoke about Sewel, and I think all of us see Sewel as a useful instrument to enable two legislatures to work together to deliver what's best for the people we seek to represent. But Sewel, as you've said before, isn't justiciable and Sewel has no status in law, and Sewel has demonstratively failed over recent years to protect the interests of the Senedd and to act as a mechanism where two legislatures work together. I presume you agree with that analysis, and, if so, where do you see Sewel going from here? How would you replace Sewel? How do you bind a Parliament that seeks for itself sovereignty that is perhaps not as real as it wishes?
Well, listen, Sewel has been a growing and emerging problem the more responsibilities that we've had in this place, and the same within Scotland as well; there'll be more need to have the delineation of the exercise of power and responsibilities. It takes you back in principle to the issue of sovereignty, and I still argue that I think, once you have a legislature with legislative powers that has a mandate from democratic elections, that sovereignty becomes shared; it cannot be any other way.
But the issues around Sewel—. Sewel is still of some benefit in the sense that, during the discussions and processes over legislation, particularly with the UK Government, there are often concessions made during that process. The Elections Bill is a significant one, where, effectively, we decided that we didn't want most of it to apply to Wales, and most of that has occurred—not everything, but most has occurred. I think the difficulty, of course, with Sewel is that individual Ministers' interpretations of what Sewel means is different. It's that inconsistency. So, the approach that we've taken, raised in a recent Interministerial Standing Committee, was that—. I mean, our ultimate view is that it should be justiciable—there needs to be a proper mechanism for deciding on the application of Sewel—but, essentially, it needs codification. What do we actually mean by 'Sewel'? My view is that Sewel, really—unless something is of such significant constitutional magnitude, et cetera, UK Government should not be able to override the exercise of devolved powers.
So, codification is important and, ultimately, justiciability. That, it seems to me, is the constitutional way forward, the only proper way it goes forward, because otherwise you end up with all these different bits of legislation that we've had, whether it's the Professional Qualifications Bill, the Subsidy Control Bill, now an Act, and so on, where there are different interpretations and, to some extent, even a case of, between some Ministers, 'Well, if they don't like it, I will override it anyway, because we can in any event.'
And also I think. in terms of the arguments over Sewel, we say that this is a matter that's within Welsh competence, they say, 'No it isn't', we say, We disagree', and they say, 'Well, you can't disagree because we've decided that you're wrong.' Now, that isn't an appropriate way to actually proceed constitutionally as well. So, the inter-governmental agreement, which is still in its very early, embryonic, formative stage, should hopefully improve. But we have to wait and see whether that's what happens in practice, but we have to test it.
Thank you, Alun. Thank you, Counsel General. James, you wanted to come in on this.
Yes. It was really on the point that Alun was making before, and I do agree with a lot of people on this table that the UK Government should engage more at an early stage, because I do think it makes better legislation and allows the devolved administrations to have a say on legislation. What I'd like to understand, Counsel General—. We have a Queen's Speech quite frequently, and I'd like to know what engagement does the Welsh Government have with departments in Whitehall before Queen's Speeches are announced to get an understanding, on a confidential basis, what legislation is potentially going to come forward, so you can have that early engagement that way, so there's a two-way conversation, rather than just, perhaps, sitting back and expecting to be told, and just a bit more proactive engagement, really.
I'll bring Piers in in a minute on this, but, basically, my understanding of what happened on the recent Queen's Speech is that we had indications that there would be 12 pieces of legislation, which we were given some sight of—that is, to some extent, just being told what the name of the Bill might be, or what area it was going to work in, but very little more detail than that. There were one or two areas that were carryovers where there had been some earlier, historic work. But it turned out there were 27 Bills that potentially impact on Wales; there were 37, 38 altogether, some of which clearly will only be England-only Bills, to do with education and so on. So, to be honest, very little; it's almost a guessing game, right up to the minute, what's going to be in there and what the substance is. I don't know if you're able to add any more to that.
Happy to flesh out slightly. So, I think it varies significantly. There are some historic conventions about what can be said publicly or outside of UK Government about the content of a Queen's Speech before it happens, which does tend to limit, perhaps, the amount of sharing in some instances. At the best end of the spectrum, you might have had a UK Government that announced a consultation on a piece of legislation or a proposal for legislation, and that opens up an authorising environment, then, for more engagement to happen, or there might have been Bills that have been carried over. So, obviously, before the Queen's Speech, we've been working with UK Government on the Procurement Bill, for example. So, there are instances where you can get some good engagement in advance. On others, then, actually, this time round, at the Interministerial Standing Committee, back in March, we had that list of 12 areas that were envisaged perhaps to have legislation that would be relevant to devolved areas. That was useful to be able to get that sense of what would be coming through in the Queen's Speech in respect of certain pieces of legislation. But then, again, on those 12, it's varied significantly after that point in time as to how much we've then learnt on those 12 areas, probably as a result of, really, how much UK Government felt they could share and how well developed their thinking was.
Now, our position and our hope was that, actually, it is much better to have the devolved Governments engage right from the ground up, because it enables us then to see what the thinking is and then be able to take those strategic judgments that we touched on earlier in the conversation. But then, of course, on some Bills, we haven't had any real information in advance, and then there have been other Bills that were not referenced in that list of the initial 12 that have obviously come to the fore and look like they're significant for devolution. So, hopefully, that gives you a flavour, then, of the range of experiences that we would have.
Yes, it does. Diolch, Cadeirydd.
Thank you, James.
If I could just add, we would know, for example—. We all knew that there was going to be—probably going to be—a Northern Ireland Protocol Bill, but, as I think probably the First Minister said in the Senedd, to then get a letter from UK Government saying, 'There's going to be a Northern Ireland Protocol Bill and it will affect you and will you consent to it?' and we haven't actually seen the Bill speaks for itself, doesn't it, in terms of the breakdown. That sort of applies to other areas of legislation as well, where you think, 'If we were engaged early on, what a difference it would actually make in terms of the process of good legislation, but also in terms of the delineation of the differentials there might be in terms of policy.'
There we are. Thank you. Rhys, before I bring you in, I wonder if I can ask you just two quick supplementaries before we move on to another area. One is that, during the last 12 months or so, one of the reasons that has been advanced to us at various times from Welsh Government for using more England-and-Wales legislation has also been the issue of capacity within Welsh Government itself, behind the scenes, in terms of drafting legislation and so on—it's easier to go up there and actually deploy the resource up there. So, can I just ask you, very straight: is there an issue with undercapacity, either in absolute terms within the resources available to Welsh Government to prepare Wales-only legislation—? Is that a reason why this is happening? Secondly, if that is the case, why have we got to this position? And thirdly, why is it less resource intensive to legislate at the other end of the M4, because you're deploying skilled resource up that end to do it, rather than saying, 'Well, let's just get on with it down here in certain areas'? So, can you just deal just quickly with those areas of capacity?
Yes. This is how I see it: it's not an issue of resource or capacity per se, in that sense. I have to take it back a little bit. The development of policy, the interlinking between policy leading into instructions for legislative change and then leading to legislative drafting is an incredibly highly skilled one, and one where we have enormous levels of skill, expertise and so on in within particular areas.
There is no doubt that the actual demands on those are absolutely enormous, and by all sorts of things that you cannot predict what the demands are going to be and where they are going to be. For example, in an individual Member's Bill, you won't know necessarily where that may be, in what area, and, of course, within the construction of legislation, you have particular skills bases et cetera. So, that may be one. You also don't know what the demands are going to be in terms of the UK Government's legislation and the extent to which that is going to impact and divert attention because of the timescale in which you have to very, very quickly respond.
So, the resources are there and the skills are there in terms of the Government's own legislative programme, in terms of the things that we want to do. The challenge really comes—
So, there is not a problem on capacity. The resources are there, the right skills are there—
I don't think it's the issue of capacity in terms of the things that we want to do. I think there are certainly issues in terms of ensuring that you are continually aware of the specific skills that you have and how they are allocated and where they're allocated, depending upon what the demands are. I'll explain it, perhaps, in this way: we work on our own legislative programme, the First Minister makes a statement—he'll be making another statement on 5 July in terms of the year 2 legislative programme—so there's an enormous amount of work that's ongoing over long periods of time in terms of policy and then converting that into legislation and then putting that into the legislative programme. The things that you don't know about are what suddenly are the demands going to be with the fact that we now have 27 Bills and that we actually have to examine the scale in which they may impact on the resources that we have to suddenly do that, and the things that may arise within UK Government legislation. I'll just mention two areas, the ones that are—
You're into Donald Rumsfeld territory here now.
There was one piece of legislation—I think it might have been the police, crime and sentencing Bill—where the UK Government was going to put an amendment to criminalise vaginoplasty. It's something that we might want to do, but it's not part of our programme to do. I think, in the end, if I'm right, that they actually dropped it in the end, but it was something that we would probably want to do, that we might legislate on ourselves, but it's not part of our programme. Because the UK Government have raised that et cetera, the two options are you turn around and say, 'Well, this is actually a matter that we could do ourselves, therefore don't do it', but the reality is, unless we then divert resources and work that's going on on the existing programme, you effectively—
But you are diverting resources to help ease this through Whitehall.
No. The point is that once it comes forward you've still got to actually scrutinise it, you've still got to analyse it, you've still got to produce the LCM on it. But, you would divert resources if the position we adopted was to say, 'Well, this is actually a devolved matter, therefore, no, you don't do it, and we will do it, but it may be that it's several years ahead before we're able to do it.' So, the choice actually is that there's an opportunity for something to be done that you want to be done, that would benefit Welsh people, that fits in with your political objectives, but if it's not done that way, it will be several years before you can do it. So, that's the choice, and that's where the exception sometimes comes in terms of that.
Isn't that the question? Why does it take several years to get legislation through this place?
It's not the question that it takes several years to do it—
Well, that's what you just said.
It's the diversion of the resources from what you're doing on existing legislation that means existing legislation will be deferred. Some of the legislation is incredibly complex and is not going to be done quickly because it's just the sheer nature of that legislation. We know that with even the consolidation Bills that we're doing where you've got Law Commission papers and so on. So, it's a question of choices, of whether there are opportunities that are beneficial to use that enable you to carry on with your existing programme, because the alternative is that, effectively, we're using the resources that we have to divert attention to an agenda that's been set by the UK Government in policy.
We could carry on with this, but Rhys, take us on, because we could spend a lot of time just on that.
Thank you very much, Chair. Diolch, Gwnsler Cyffredinol. We're not moving that much forward in a way, because it's all linked. I agree—well, I think all colleagues agree—with the importance of the early intervention, the early communication between Governments, and I understand, albeit maybe I don't agree with the use of them, why Welsh Government will find it advantageous to use the LCM process. You mentioned that one big disadvantage, of course, is the lack of scrutiny within the Senedd by Senedd Members, and it's more than just the scrutiny, because one important part of scrutiny is improvement and amendment. We have no powers as Senedd Members to amend UK legislation that impacts Wales within devolved areas. Do we just accept that democratic deficit? Do we just shrug our shoulders and say, 'Well, that's an unfortunate consequence', or is there a way to deal with it? Can we mitigate its impact in a far better way than we are doing at the moment?
It is a democratic deficit in the sense that we would want all legislation that involves Welsh powers to be actually initiated within Wales and scrutinised within Wales with the opportunity to change, to amend et cetera. I think where you have a UK Government legislating and seeking to legislate in Welsh areas, the legislative consent process, depending upon when it kicks in, and I suppose maybe the argument is as to whether it should, of course, intervene early on—. That is, you have the first draft of the legislation, you know the bits that you want to negotiate, you want to change and you want to amend, you lay an LCM that actually identifies the issues that the legislation is doing and where competence arises, and then you have subsequent LCMs. We have had legislation where we've had three or four LCMs—we have the LCM, we have a supplementary LCM, we have a supplementary supplementary LCM and so on. So, we have had that. But with a lot of that, again, you're right, if there isn't that level of engagement, and if legislation is moving quickly at UK level, there isn't the opportunity to do that.
Officials work on almost a day-by-day basis, backwards and forwards, to negotiate, to identify those areas. As Counsel General, I try and look at all the bits of legislation where there is a constitutional impact on Welsh responsibilities, to try and ensure that we have a high degree of consistency in terms of protecting positions and that we know exactly what the overall picture looks like. But the reality is that, in practice, the way it works is that unless you do have that very early engagement, the capacity to come forward and to talk about the direction of UK Government legislation and what changes might be made, et cetera, is not there. But, either way, it is not the same as proper processes within the Senedd itself where Members can table amendments and so on. But I think that is just part of the constitutional structure that we have at the moment. It is a deficit in that sense, and it's not adequate.
And of course, all the supplementary LCMs are Government to Government, rather than legislative.
Okay. We were pleased when you gave us the list of principles back in October about when Welsh Government would use LCMs, and we were pleased with the line—and I want to get the wording right—
'that primary legislation in devolved areas should be enacted by the Senedd.'
I think we all can agree with that. In your May 2022 statement, a word was added—'normally' was added. So, it now reads like this:
'primary legislation in devolved areas should normally be enacted by the Senedd.'
Why did you add the word 'normally', and what's the significance of adding that word?
My view is I don't think there's any significance in it. I think it's probably just drafting, in terms of the letter. My view is that legislation should be enacted within Wales, but there are circumstances, as I've outlined, when that can't be done. In my view, when those circumstances arise and you take that option, that is the abnormality element. So, I think you might be reading more into it than was actually intended.
Thanks. Thanks, Chair.
Thank you for that. James, we'll move on to you, please.
I just want to take that a little bit further, Counsel General, because the Welsh Government have stated that there would be instances where the law could be changed more quickly by using Westminster to legislate on devolved areas, because things move a lot quicker up there. So, could you provide more detail on any circumstances where this applies or where it might apply? We've talked an awful lot about scrutiny of UK Government Bills today, but using this type of legislation, using them up the M4 to legislate on devolved matters, bypasses scrutiny of the Senedd and also lets Welsh Government, I think, off the hook. So, how do you think it respects the scrutiny here in the Senedd to allow Westminster to legislate on devolved matters?
The starting point is that we don't go to UK Government and say, 'Can you bring a piece of legislation forward on our behalf?' Certainly, as far as I'm aware, I think every experience I have is that those circumstances have only arisen where legislation has already been initiated and we have to deal with it in one way or another, either through the LCM process or through negotiations and so on. The example I mentioned earlier, which I think is the type of one, was, for example, in a UK Government piece of legislation, out of the blue, suddenly the Government introduces an amendment that is on the outlawing of vaginoplasty. That is something that we would support and would want to do. We could do it ourselves, but it is not part of our programme. So, the issue there is do you in that circumstance then say, 'No, we don't do it, because we could do it ourselves', although we wouldn't be able to do it for some time. It's making use of an opportunity that arises that in those circumstances would benefit Welsh society more generally.
I think there are other circumstances that arise from time to time where something like that happens. I'm trying to think of where they were. There have been a number of them. But that normally is where that arises. So, it's not a question of going to the UK Government, 'Can you use your resources to do this because we're all extremely busy at the moment?' That doesn't happen. The reality is, though, that if they are legislating and there's an opportunity there, that they are doing something in England and they have said, 'This is only going to apply to England', would it be reasonable or unreasonable to turn around and say, 'Well, actually, we haven't got this on our agenda, we don't want to divert resources from other parts of our programme, and we do not have an objection if that became England and Wales'.
That's fine, but how do you think the Senedd could play a part in that? Obviously, you're using Westminster legislation to forward things that you said you could do in seven years' time, but also, we have parliamentary colleagues who would probably like a say on some of these matters, when we do have primary legislation-making powers here. I'm sure there are plenty of Members, my colleagues, who would like to have a say on that, and it does feel, when that does happen, that we don't have a say here, and that we are being bypassed in a way to push through, perhaps, the Government's agenda via different means.
I suppose it comes down, doesn't it, to the earliest stage of being able to table the LCM. Because that's where the detail of what's being proposed will come forward and go onto the floor of the Senedd, and can actually be debated. It will specifically state that there is this provision there, and this is an area where we would recommend consent being given. That's where the Senedd would then have the opportunity to say, 'No, we don't agree' or, 'We do agree' et cetera, and, 'Yes, we are prepared to give consent'.
Okay. Because it would be quite nice if there was something that came earlier on, and the relevant scrutiny committee in that area had an opportunity to discuss that well before an LCM comes into the Chamber, and then we're not all scrambling around with a week's business to decide on how we're going to respond to something. I share frustrations from my side of things when things come forward and we don't have enough time to scrutinise them.
One of the problems on these as well, though, is that, of course, sometimes you've literally only got a couple of weeks' notice in terms of the amendment, and being told that you either agree to this within the next seven days or it won't happen. So, there are real practical issues. It comes back to the question as to this not being the most effective way of actually legislating and developing legislation, and particularly legislation that is continually changing. So, I don't disagree with the concerns and the frustrations you feel on that. I suppose the only comment I would make is that I equally feel that when I get an advice saying that this is what's being proposed, and they're going to do this, and you either consent to it within a certain deadline or you miss the deadline for the amendments as it goes through the parliamentary process.
Okay. One last question. Obviously, a big piece of legislation coming forward from a Westminster perspective is going to be the Brexit freedoms Bill. I would take it that that is going to have impacts on the devolved legislatures right across the country. So, can you just outline, Counsel General, an update on any discussions you or other Ministers have had with the UK Government around the Brexit freedoms Bill, and any issues that could arise from that regarding devolved areas here in Wales?
The first contact I had was when all four nations were called together and told there was going to be a publication, and there was going to be an announcement at the beginning of the week, but we weren't actually given the publication and we weren't allowed to see anything, which was really grossly inadequate, and I think everyone was very unhappy about that arrangement. I think it's agreed that that is not the appropriate way of doing things. The next stage, of course, is the announcement in the Queen's Speech. I had a meeting with my counterpart on this, Jacob Rees-Mogg, and in fairness, it was a very fair meeting. We raised the issues where obviously we want early engagement within it, and in the construction of it, and also where want respect for the devolution matters. That was all harmonious, et cetera, and I understand some early engagement has started taking place. I have also asked then for a face-to-face meeting, which I think is being arranged within the next few weeks, where we'll take that further. This may be an example where, in actual fact, these things could or should be done. We'll have to wait and see how that operates.
That's fine. And just on that point, when you do find out information that does respect Wales and could impact on Wales, just a plea, really, that when you do find information out that it is relayed to the Senedd and relevant committees here for them to have that in-depth look at these things, so that we can have an informed discussion on these things outside of the Welsh Government, which allows us as parliamentarians outside the Welsh Government to do our job. Diolch.
Yes. Can I just add one point on that? The difficulty, of course, is that we get the notification to say that I've had a meeting with, et cetera, or I will be meeting to discuss, et cetera—the difficulty is how much you've actually got to actually say beyond that. That's the problem, if it's still very formative. But, I certainly agree, in terms of notification and engagement, as early as possible is really important.
Okay. Thank you.
Thanks, James. Alun.
I'm interested as to how you believe, Counsel General, that this proposed Bill may fit into our common frameworks, internal market Act frameworks, and how you will approach dealing with some of these areas, because one of the things that we've found through the last five years or so is that the UK Government has been very fond of taking powers to Ministers to amend primary legislation and to do so without consent, and to do so in devolved areas, sometimes, where necessary. And you'll remember the difficulties we had; I think the current First Minister was the Minister responsible at the time for reaching an agreement on some of these matters around EU exit. And I worry that we may be going back down that rabbit hole, if you like, where we may be seeing Ministers—Welsh Ministers as well as UK Ministers, for that matter—taking powers to amend primary legislation and to do so by Order. What sort of approach do you intend to take to these matters, because for most of us—? And the political approach that you've put on the record that you want to see, with EU law as a starting point to increase standards and not as a starting point to decrease standards, is somewhere where I think you'd have very broad agreement and support, but what we wouldn't want to see happen is a land grab in terms of Henry VIII powers.
And that is the danger and that is what consistently appears within bits of legislation. Very frequently, we're able to get that changed or to get it altered, and within this fairly tortuous negotiation process that takes place. Retained EU law is one that concerns me considerably, because we're talking about, I think—I'll ask Adam to come in in a minute—but I think we're talking about potentially several thousand pieces of legislation, proposals to set a sunset clause, which means that you're going to have to look at all of these bits of legislation, some of it may be very technical, very minor, but whether you want them to stay or whether you want them to go, or not. I raised those points very specifically with Mr Rees-Mogg on that, and I certainly was given the assurances I hoped for at that time, that there may be areas there where we do not agree and that we want these matters to be retained. Our position is that we don't want to see a lowering of standards. We're prepared to see an increase in standards, but we don't want a removal of retained EU law to actually be something that looks at a way of actually lowering standards, and that is the concern. And then, of course, that then begins to intrude, doesn't it, into the complications around international trade as well, where trade deals are done using, effectively, royal prerogative and can have the same impact.
On common frameworks, well, of course, we have mechanisms for regulating in various areas the internal market. But, of course, we had the legal challenge with UKIMA, the United Kingdom Internal Market Act 2020, on which we're still waiting for a decision from the Supreme Court. And also there are other pieces of legislation that are coming forward that I think we have to be alert to and be concerned about: the Genetic Technology (Precision Breeding) Bill is one that raises a number of issues as well that have constitutional implications in terms of the internal market.
Thank you, Alun. Before we go on to Rhys, can I just ask you what is the Welsh Government's view on changing the status of retained EU law?
Well, if it relates to a devolved area and we do not want that changed, then the status doesn't change, does it? I am not completely clear what UK Government Ministers mean when they say they want to change the status of EU law. Sometimes, they're talking about the European court and where that comes in, but I'm not quite sure what is meant there. I don't think it has been thought through properly, because in terms of the trade and co-operation agreement, for example, there is a commitment there to maintain a level playing field.
Now, if you have a level playing field, you have to have a mechanism for determining that level playing field. That level playing field can't be determined by one of the teams having control of the referee's whistle. So, it seems to me there have be to some mechanisms. And, of course, those mechanisms exist in just about every trade agreement that exists. It exists in the World Trade Organization in terms of the arrangements we have there. So, there is nothing new. It's one of those things where I really want to think what it is that is actually meant, and what is actually intended.
One of the additional consequences—I'll just throw this in now, and I think it's probably an issue on its own—is the issue of changes to the ability of courts to judicially review Government decisions and the way Government operates, and that is something that I think we should really all be concerned about as being something that undermines parliamentary integrity.
Okay, thank you. Rhys, over to you.
Diolch yn fawr, Gadeirydd. In October of last year, you told us that there wasn't an internal central mechanism within Welsh Government to check on changes within EU law. How then does Welsh Government check with regards to Welsh legislation, with regards to any alignment or divergence from EU law?
It's a very, very good question and it's a very difficult one, because the scale of issues around alignment are so absolutely enormous. If we were to set up a body that was to do nothing but look for changes in EU law, et cetera, you'd have a building with hundreds of people somewhere or other doing nothing but doing that, and the question is what it would produce in any event. What is important, I think, is the actual engagement that we have amongst the four nations in terms of the things that are happening, processes that are taking place, so, the engagement of officials, the engagement with the EU itself in terms of changes. The engagement between officials, it seems to me, are fundamental.
I notice, for example, that within Scotland, their position is one—. I think they had a continuity Bill, didn't they, in terms of alignment, but I think they haven't gone down the road of actually setting up a body to do that, because I think once you start trying to do that, it's a question of whether you're best utilising resources and what you're actually achieving from it. But we do need to be very aware of those standards and of changes that are taking place, so that we can actually choose specifically to align or even to improve upon them. There may be some areas that we don't want to align to. That's the nature of devolution and empowerment, isn't it, of the Senedd and the Welsh Government.
I don't know, Piers, was there anything that—?
I'm happy to say a couple of things additionally. So, within the TCA agreement there is the good regulatory practice and regulatory co-operation chapter, and then there is a committee that relates to that. So, there are ways in which the UK Government and the devolved Governments then can share information on developments on regulation through that mechanism. It's also part of, in one sense, good policy development to be keeping an eye on what is happening internationally, or, indeed, at the EU level. And there, of course, we do also have our Welsh Government office in Brussels, which is able to give us information at times on some of the key developments that are happening there. So, there are ways where, in certain areas, we can, but the wider context is as the Counsel General outlined.
Okay. Thank you very much.
Thank you very much. Sorry, Alun, you didn't want to come in on that, did you? No. [Interruption.] [Laughter.] Alun, over to you.
You've described the inter-governmental relations at the moment and the somewhat chaotic processes that characterise them in terms of legislation. Is there any good news?
Okay. [Laughter.] Well, I will try and make your day via some good news, and that is that the Interministerial Standing Committee has had its first meeting and is looking forward to its second one, belatedly after two postponements. It is discussing a lot of the issues around how the inter-government is going to work, and also things like the cost-of-living crisis and issues around that.
There are a large number of inter-ministerial groups that have now been set up. I think that there are about 12 that have been set up. Their terms of reference are either in the process of being completed or have been completed. There are another three inter-ministerial groups that are in the process of being formed. The FISC, the finance—. What does 'FISC' stand for?
The Finance: Interministerial Standing Committee.
There we are. The Finance: Interministerial Standing Committee—the acronyms grow and grow as we go through—has met. I think that it's had the first meeting with the Minister for Finance and Local Government. There were still issues being discussed, really, just around the actual construction of the secretariat. There's not really much to report there, other than that those discussions are under way.
And of course, precisely how the disputes process might work and what we might bring to it, or when we might bring something to it, et cetera, that is still very much embryonic as well, but it is there and there is agreement to it. Obviously, there are issues that might arise that we might want to consider: what would be the first and most important issues if there were to be inter-governmental disputes that we would bring to it?
Okay. So, glimmers of sunshine.
As I say, it's embryonic. There is progress being made.
'Embryonic' is a great word, Minister. It doesn't really say much at all, does it?
Well, it's in a formative state at the moment, with progress—
That's what 'embryonic'—. Yes. [Laughter.]
—with progress being made. But, the evaluation of what that progress is—. I'm sounding like an episode of Yes, Minister now, aren't I? [Laughter.] It's too early to say.
'Too early to say.' Yes, it does sound like a script. Let's look at two aspects of that: the secretariat and disputes resolution. Those are two areas that the committee took an interest in at our last conversation on these matters. Many members of the committee wanted to see a bigger secretariat, not a smaller secretariat—a secretariat with a greater status, rather than a secretariat that, you know, essentially books flights and hotel rooms. I would have suggested that, if a disputes resolution process is to be effective, it needs to have two things: it needs to have teeth, so that the UK Government can't escape; and, secondly, it needs to be sustained by a very powerful secretariat that's able to support the process that holds Governments to account.
So, could you go back to those two matters, Counsel General, and perhaps give us a little bit more on the approach that you are taking towards creating the secretariat, and secondly, whether you think that this committee's view on dispute resolution is one that you would agree with, and whether the Welsh Government would take that view or a different view?
Well, I will bring someone in, in a minute, but the starting process, really, is that the secretariat needs to be able to do what is necessary to resource and support the inter-governmental arrangements. Whether that is by topping all the resources into a secretariat itself, or a way of feeding through the use of resources within each of the Governments themselves, might be one way of looking at it. All that I can say on that at the moment is that I know that those negotiations are under way.
I will bring someone in in a minute, but I just wanted to say something about the dispute resolution process, because that is the one that I think is going to require attention and one, certainly, where I will want to report back and discuss in due course. The issues around what the terms of reference are for the disputes process, how precisely it will operate, and who will do it and so on, are going to be really quite key, and then the evaluation of, really, the first few cases that actually go through that. Of course, the fact that there is a disputes process one would hope would mean in due course that you get fewer disputes, because if they know there is a mechanism resolving it then agreement tends to be reached. There is very little more I can say on that. But, in terms of discussions on the resources of the secretariat, as I understand it, really, it is something that is in inter-governmental discussion, and there's probably not a great deal more that we can add to that. Is that about right?
Yes, there are official-level discussions that have been happening, and actually I think there are some coming up later this week as well. I think as soon as those have got to a situation in which we've got a degree of consensus on the way forward then we'd look to update further. It's just that at this point in time they haven't yet reached an agreement across the Governments. The discussions are going on around the right way of performing recruitment, the governance model related to the secretariat, but it's just that, at this point in time, those haven't yet got to a situation where there is agreement yet across the four Governments.
There are two areas, aren't there, where disputes resolutions are really critical. One is in terms of legislation, if you reach disagreement around a Sewel issue and you're unable to resolve it. The second is about money, of course. There have been two disputes over the years that have received a significant amount of public attention; first of all, the HS2 issues, and then secondly the Olympics, of course, where Governments of different colours took decisions, neither of which were particularly good decisions for Wales and the Welsh Exchequer. So, how would you see a disputes resolution process that is able to—how shall I put this gently—put the Treasury in its place?
Well, that's a difficult one, isn't it, because—
It's a defining one. It's a defining one, isn't it?
—the Finance: Interministerial Standing Committee, of course, is an entity in itself, rather than part of the inter-governmental arrangements. So, the Treasury certainly has its own status within this. I mean, the issue of HS2, ultimately, isn't it, is a political one, but the point you're asking is, 'Are any of the disputes processes the sort of process where you could refer a particular issue, such as HS2, to it and it would determine the outcome?' The answer to that is, 'I don't know.'
Okay. That's fine.
Okay, thank you, Alun. We can return to some of these areas. I think you've given us a fair heads-up that it's still a work in progress here, so I'm sure we'll come back to this. It was something that's of interest to House of Lords and House of Commons committees as well, about how this beds in.
So, we'll go on to Rhys, then, and you're going to take us on to the not unvexed area of the United Kingdom Internal Market Act 2020.
Yes, and I think, Cwnsler Cyffredinol, I've asked you this question twice before, and something similar to 'I don't know' was the answer those times. It's about the update on our leave to appeal—sorry, the Welsh Government's leave to appeal—as has been called on the internal market Bill. Do you have an update on where we are with that?
Yes. Well, the first thing is, of course, that it's not leave to appeal on a decision on the merits of the case; it's a question of whether the appropriate way of doing it is whether the court is in a position to actually take a decision on the legal point and effectively make a sort of declaration as to what the law is or says, as opposed to testing it against an actual piece of legislation. So, we have filed the request for leave to appeal to the Supreme Court. We are chasing the Supreme Court for as early a date as possible, and beyond that all I can tell you is that we don't yet know.
Diolch yn fawr, Cwnsler Cyffredinol. I thought that was going to be your answer. Now, of course, we do have two pieces of legislation that would be a practical use of the internal market Act, and one is the single-use plastics. Do you know why the Senedd wasn't consulted with regards to the exclusion of single-use plastic before the Welsh Minister gave her consent? In fact, we as a committee only found out, if memory serves correctly, from a letter from the Minister to the environment committee, so we weren't—. Do you know why that happened, and will that happen again? Or can you give us assurances that in future the Senedd will be consulted and we will have an opportunity to debate these important matters?
Yes, just to say, on the issue of exclusions within the common frameworks and to exclude certain items from the common frameworks, I think the—. Our position, of course, is that we have only consented on a without prejudice basis, because we don't accept that the internal market Act actually changes our devolved responsibilities, and, of course, that is the issue that we are going to be testing in the Supreme Court. The pressure obviously came from the other nations and so on who wanted the exclusions from the internal market, and we could either seek, I suppose, to block that, or, on the basis that we're saying, 'Well, it doesn't apply to us and we're going to prove so in the Supreme Court in the not too distant future', we're not going to obstruct something positive that was happening. The decision, of course, is a matter for Government. I'm not quite sure why the notification was when it was. My understanding is, I think, once the proposal came forward, there was only 30 days in which to do it, and I think this is the first one that's come forward, and, ideally, we'd want them to give the notification at a much earlier stage, or as early as possible. But I think—. That's my understanding as to what happened. I don't know if—[Inaudible.]
Okay. Thank you.
There we are. James, we'll go on to you, please.
Yes, thank you, Cadeirydd. Minister, you mentioned this earlier, and I just want some analysis, really, of what the Welsh Government have taken on the Genetic Technology (Precision Breeding) Bill, and what impacts that's going to have on Senedd legislation. If you could just outline to the committee what analysis you've done on that from the Welsh Government, we'd be grateful.
Well, there has been analysis and, of course, the Minister has looked at it and I think has written to their counterpart at UK Government on this, setting out the concerns that we have, and that is that, if the Bill were to go through in its current format, it would mean that genetically modified produce could come into Wales or Scotland as long it was approved in England. That is, it would basically drive a coach and horses through any standards issues that we had, in terms of our own position in respect of genetic modification.
So, it's at that early stage, where that is not something that we would want to consent to. It may have broader constitutional implications and so on. It is an issue also in terms of why this is not being dealt with through the common frameworks, so there are a whole variety of issues that are there. Do you have any more information on that?
I don't think so at this stage. Nothing further.
No. I think that's where we are. I've seen the letter from the Minister about setting out our objections to and concerns about that. I understand that Scotland have a similar concern about that, and this will be—. This could potentially could be one of those areas that goes into a dispute process if it's not resolved.
Yes, because, as I said, the UK Government didn't take this through the relevant common frameworks process, so it does bring into question, doesn't it, and raises very much concerns about the effectiveness of the common frameworks process. How do you think that could be worked up or changed in the future, because, if they're not working on this, how are we going to get them to work in the future?
Well, that's the question, isn't it? The common frameworks are a co-operative arrangement between four Governments on how they're going to work and regulate the internal market—where there might be exclusions, where there might be divergence, et cetera, to have processes within those frameworks to actually resolve that. So, it raises the question of why bring a Bill such as this that actually then bypasses those common frameworks. So, those are, I think, issues that are being raised on an inter-ministerial level at this stage that may have broader constitutional issues that we'd want to be concerned about and it's obviously an area that does need very close attention, and I will certainly be applying my mind to it very closely, in conjunction with the Minister.
Yes, because the Scottish Government have obviously got issues with the divergence from the EU and consumer information and how that can relate to potential trade in the future for our businesses right across the country. Do you share those concerns?
Well, I do, because what it means is that you will end up with produce coming that may be in contravention of the genetic modification policy of either Scotland or of Wales, for example, but there will be no way of actually identifying what that actually was, even within the labelling of the produce, let alone the ability to actually restrict it. I mean, if it's not labelled, how do you actually restrict it per se in any event? So, it is a significant issue that one would hope will be resolved in discussion between Governments, but, if not, may have to be advanced beyond that. Certainly, it's one of those that begins to fall within that category, isn't it?
It's going to be a big Bill that will be a big test case for everything that's been set up, isn't it? So, yes. Diolch, Cadeirydd.
Thanks, James. It just strikes me that, with the failure of this particular one to actually go through the framework that's been set in place—so, if you like, it's a falling-at-the-first-hurdle one—in light of our earlier discussion on the inter-ministerial machinery that's now been put in place, how would this be fed into that, if you wanted to? Would it go into the thematic committees? Would it be taken on the standing committee on inter-ministerial governance, which looks at the overall relations?
Well, it would work within the framework. Within the framework, there would be an inter-governmental meeting, there would be one—. Our team would say, 'This is what we want to do. We want to actually diverge from the framework.' There's a requirement, I think, within the framework, then, to produce evidence, to then seek agreement on that and how that divergence might actually be achieved, if at all. The problem with the Bill, in my understanding of it, and I've not had the Bill in front of me, is that it would, effectively, bypass that. And that is the concern we'd have, that, very early on, as the common frameworks are developing, you would have a move of this particular type that seeks to bypass what should be the correct process for dealing with this issue.
So, in your mind at the moment, bearing in mind that part of the remit of the Interministerial Standing Committee is this oversight of inter-governmental relations—that's part of its responsibilities—are you keeping a little black book of things like this that, in September, October, at the next meeting, you will say, 'We want a discussion on this and a range of other things', to see how this is going and to tighten things up a little bit?
The answer is 'yes'. It's probably going to be a rather large black book, perhaps, by then, but the answer is 'yes'. And this was—. The Interministerial Standing Committee meeting that was due to have taken place last week, this was one of the items that was specifically going to be raised within that.
Okay, thanks. I've got one other questions in terms of common frameworks, which is: how do you think we can avoid the role of the Senedd and stakeholders here in Wales being bypassed? Because the joint decision making through common frameworks has great potential if it works very well, but what does it do to law making and policy making here in Wales?
Well, I think the common frameworks that are operating mean that you'll have inter-governmental meetings that are taking place specifically within the individual frameworks, and the outcome of those issues that emerge will, obviously, have to be reported to the Senedd. Once they're reported to the Senedd, there would then be a process of scrutiny. That's how I would understand that. There would be questions on it and there would need to be statements on it. And also there would be, I think—certainly when I gave evidence to the Lords on this, I think it's within the frameworks—an overall review of them. The frameworks at the moment have still all got to be signed off; they're being scrutinised at the moment. So, the way the mechanism is operating is something that is in front of committees at the moment, and the reporting back from the committees of those frameworks will go to the Minister who'd be required to set them off. So, I think that is the process within those frameworks, that you certainly have the opportunity at the moment, or the committees have the opportunity, to ensure that they will enable them to do their job in terms of being able to assess, to scrutinise and to be aware of what is happening and what Governments are doing. Beyond that, obviously, the process becomes different.
Okay. Thank you. We'll probably follow some of these areas up in writing with some more detail as well, but that's helpful. Could we turn to the Northern Ireland Protocol Bill for a moment, and just ask what currently is the Welsh Government's position in respect of the Northern Ireland Protocol Bill?
Okay. Well, our position is one where we have discouraged the UK Government from going down this particular road. We think that the best way of resolving it is through a process of negotiation. It creates a particular constitutional problem for us, I believe, if it is in breach of international law, because we will be asked to give consent to the legislation, and whether we can actually consent to something that effectively legitimises unlawfulness, and I think that's certainly something that I've been applying my mind to at the moment. The UK Government's position, of course, is that it will be in breach of international obligations, but is arguing the legal principle of necessity as justifying it. My understanding is that the European Union will take this matter to the European court for a determination as to whether that is valid, and if the ruling of that was that it was not valid, then it would mean that the UK Government position is one of international unlawfulness. The UK Government's position has been set out, saying that they believe that it is within international law and that necessity justifies that, but that remains to be tested. There's no doubt, though, that the Bill as it is will transfer enormous powers to Ministers and it will have an implication for the devolved settlement, and I think we just have to work through it very, very closely in detail to fully understand the implications of those powers, how they might work and what the constitutional implications are as well, let alone and aside from the broader implications of impact on constitutional stability and the position in Northern Ireland.
We appreciate as a committee that these are still relatively early days and you have to get good sight on this and work through the detail of it, but your initial view is that this could be contrary to international obligations and international law, which puts Welsh Government in an unusual position—you as a Minister in an unusual position—because, certainly, I assume that your intent is to put this forward for legislative consent with a recommendation—yea or nay. But should the UK Government then consider that it's appropriate, out of necessity, to proceed with it regardless of consent, and that you form a view with your legal advice, based on other legal advice, that this breaks international law, what's your initial assessment of what that means for you and for Welsh Government?
Well, I think my initial assessment at the moment is that the appropriate course of action is that if one of the parties to the Northern Ireland protocol is in disagreement with action being taken, that the European court becomes the arbiter or the correct interpreter of the legal position. Depending upon what the outcome of that is, I think that that is where we will take guidance from initially. But, this is one of those things where it's just too early to say; we're just going to have to review and see what happens, what arguments are put forward and what judicial processes are actually engaged. I think we move on from that, really. It's not appropriate to give a determination, we're not a court, et cetera—
—but we are aware that there are serious issues that have arisen that have been identified. We do not think that this is the best way for the UK Government going forward, but we have to wait and see how it plays out and what legal actions there may be.
I fully understand that. Could you give us any heads-up at all, or anything that you might know at the moment about timelines around this Bill coming forward, and just confirm to us that your intention would be to provide a legislative consent memorandum? And if you do know anything about the timelines, is this going to be presented before recess?
Certainly, there will be a legislative consent memorandum, because we've already had the indication that the UK Government have said that this requires legislative consent. So, clearly, there are aspects to it. So, I've started reading through the Bill, and, of course, it does give UK Government Ministers powers to override Welsh legislation. So, that clearly triggers our specific involvement in it. Do we know any more about the timeline on it?
I don't, no.
We did have a meeting with one of the—. As the Counsel General said earlier, we didn't have sight of this Bill at all before it was introduced. We did have a meeting with a member of the Bill team, as part of a regular series of meetings on other topics, last week, and they were unable to give any firm details of the timeline. But I think the intention is to progress it through the Commons fairly rapidly, I would say. So, there may be some more information about that in the near future, I think. That was the indication given to us, anyway.
Okay. Thank you very much. We won't push any further on that for now, because I think this is an evolving matter.
It's the same with the EU retained law legislation as well, that we understand that that is going to be tabled before the summer, but we'll wait and see.
Okay. Now, we're doing just about okay on time, incredibly. So, Alun, we are going to have time to turn to the matter of justice.
Yes. You've been very clear, Counsel General, and we're grateful for your clarity, in terms of the way in which you would like to see the recommendations of the Thomas commission taken forward, and I think Welsh Government has accepted all of the recommendations addressed to it, and has also endorsed the overall findings of the Thomas commission in terms of the way forward for the administration of justice in Wales. It's fair to say that the UK Government hasn't shared your enthusiasm for these matters. We've discussed before the conversations that you've had with the UK Government, and they've been quite short and sharp, I think is a reasonable way of characterising them. Are you pursuing these matters? To what extent do you think progress is being made? And to what extent do you think that progress is being made in the legal world, shall we say, outside of the ministerial offices of the UK Government?
Yes. Well, you're right, I thought we'd made progress with Lord Wolfson, when he was the Under-Secretary of State for Justice, and had a number of very positive meetings with the Minister for Social Justice and me, and, importantly, whereas the previous response had been very much one of, 'We will not discuss anything that is not devolved, et cetera', and all sorts of complications over how that would work, certainly Lord Wolfson opened the door in terms of saying, 'Well, let officials start engaging now on the Thomas commission recommendations more broadly.' Of course, his resignation from Government brought that to an end.
Lord Bellamy has now been brought in to take over that particular function. Lord Bellamy had had engagement with the courts on the criminal legal aid review. I've had exchanges of early correspondence, where he's indicating that he looks forward to discussing the recommendations of the Thomas commission. So, I'm hoping that the process of discussion will begin to advance and that officials can engage, because I'm fairly confident that, certainly at official and legal level, if there is that engagement, the interconnectivity of devolved responsibilities and the administration of justice, particularly in the areas of youth and probation and so on, are just so glaringly obvious that it should never really be within the domain as to, 'Is this reserved—isn't it? How is it best delivered?' And there's no logic to me on all the integrated services not being integrated with those particular areas. We'll have to wait and see how that actually develops, and, as things are, we work in other areas, together, to try and produce the best results that we can. But, I mean, I will certainly report back once I've had further discussions with Lord Bellamy, and we see how we can explore those further. But I think the case is extremely strong.
Of course, the one area where we will definitely be moving forward, at some stage, with legislation, will be in the area of tribunal reform. That is an important area of justice that is already devolved, but clearly needs to be put on to a sound judicial, structured footing now.
Do you have a timetable for that piece of legislation, or the legislation needed?
The First Minister makes the statements on the legislative programme. He is due to make a statement on 5 July on the legislative programme, but you note within the justice paper that there is a statement that we will be legislating. It's a question as to how and when within this term we can put that together and implement the recommendations of the Law Commission.
I can see 5 July parties happening up and down the land in anticipation. They'll be watching it like the US primaries coming in there. We've—
I think it's in respect of the year 2 legislation. You don't want to give all your presents away in one go. [Laughter.]
We're going to come to James on the sustainability of the legal sector.
I don't really want to get drawn in on the devolution of justice, I think there are far more learned people than I to make decisions on that matter. So, what I'd like to know, though, Counsel General: within devolved competency areas, how are the Welsh Government going to identify priorities in their work to support the sustainability of the legal sector here in Wales?
We are already very engaged with the legal sector in respect of issues around training, over legal apprenticeships and so on and support for that, and the support that we've been giving in terms of developments around cyber technology, and so on. So, that's ongoing work, and, of course, the establishment of the Law Council of Wales, I think, has been a very important step forward, because that brings together a whole swathe of parts of the legal profession within Wales to look at those particular issues of what the needs of the legal profession are, and I think will gradually grow into the issues around the legal economy.
I've been arguing for quite some time that I want to see the legal economy grow. We want to see more commercial work, more international work, issues like that being dealt with, but the issue is the one that I raise consistently, which is that in order to do that, you have to have a decent court to do it in, you have to have a court that people see, that has some sort of stature as a court that would attract those sorts of cases. I think the failure of the Ministry of Justice to improve the court facilities in Wales, certainly the Cardiff civil justice centre, is a scandal, to be honest, and one of the arguments might say that there is no way, if it was a devolved matter, we would actually get away with allowing that to happen.
So, it's an economic benefit, but also in terms of the scale of legal support in particular communities and so on, so that communities have access to lawyers, to solicitors, to representation, that people know what their advice is and so on. That is, really, I think, what growing the legal economy is about. It's all those different areas, but it's also about the accessibility of people to the law, as well.
There we are. Well, we are nearly out of time here. Just one thing for clarification, Counsel General, we think you mentioned earlier on that you'd written to the UK Government in respect of the genetic technology Bill. We think we heard that right—
Not myself. I think the Minister has.
Right. If so, we're not sure that we've seen that. I wonder if it would be possible to get it to us. We know that the Scottish Government have done so, and we've seen that on public record. If it would be possible to share that correspondence, that would be excellent.
Chair, can I ask just one question?
Go ahead. Yes, absolutely.
It's about the president of Welsh Tribunals. I understand from colleagues within the legal profession that the process has begun now, there have been expressions of interest to replace Sir Wyn Williams, and the role is a very—. It shows how bonkers the devolution settlement is, because the Welsh Tribunals are devolved tribunals, but, of course, the UK Government have a role in appointing a new president. How are the discussions going with the UK Government with regard to reforming that role? Because for whoever follows Sir Wyn Williams, if those reforms go through, it's going to be a very different position that will require a heck of a lot more time commitment. So, how are those discussions going with the UK Government with regard to the reforms to his role?
I had, last year, a meeting with the Lord Chief Justice and with the First Minister, where we were really talking about that role, and, of course, we were very glad of the work of Wyn Williams as president of the tribunals, but also the extension to his term, which is really facilitating taking us through to the next stage, which is not only the appointment of the new president of tribunals, but also being able to do more work on the Law Commission report in terms of what the status of it is, because I see the recommendations of the Law Commission significantly boosting the status of that particular role and its importance, particularly if there's an additional appellate structure as well. So, the process is open at the moment, but, obviously, I'm not involved in the process itself.
Thank you very much. Well, Counsel General, we've run out of time, but thank you very much to you and your officials for being with us today. We've covered a lot of ground. We'll send you the transcript for accuracy, as normal. There will probably also be several areas that we'd like to follow up in writing with some detail that will flow from this. I suspect that, in the autumn, this session might feel very different because a lot of the areas we've covered will be tested in the coming months, but it's been a good session today to get your feel for a wide range of areas, so we do appreciate your time. Thank you very much indeed.
So, as you take your leave, could I suggest to colleagues that we take a short comfort break for a few minutes, and we'll reconvene as soon as we all get back in here? So, we will suspend the session.
Gohiriwyd y cyfarfod rhwng 14:31 a 14:40.
The meeting adjourned between 14:31 and 14:40.
We are now resuming our meeting this afternoon of the Legislation, Justice and Constitution Committee. We've just concluded the session with the Counsel General, and we move now on to the remaining business that we have in public, and we begin with, under item No. 3 on our agenda today, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. And we have three of these, the first being item 3.1, SL(6)205, the Transition from Primary to Secondary School (Wales) Regulations 2022. Our Senedd lawyers have not identified any points for reporting in this.
We also have item 3.2, SL(6)208, the Food and Feed (Fukushima Restrictions) (Revocation) (Wales) Regulations 2022. And, again, there are no points for reporting there.
And also we have item 3.3, SL(6)206, the Curriculum and Assessment (Wales) Act 2021 (Consequential Amendments) (Primary Legislation) Regulations 2022. And, again, there are no points for reporting. Could I ask, colleagues, are you happy with the clear reports there, to note them and agree them? We are. Thank you very much.
Then we'll move on to item No. 4, instruments that do raise issues to be reported to the Senedd under those Standing Orders, 21.2 and 21.3. So, we turn to item 4.1, where we have SL(6)207, the Novel Foods (Authorisations) and Smoke Flavourings (Modification of Authorisations) (Wales) Regulations 2022. Now, this instrument amends retained EU legislation to make provision on regulated food product authorisations in relation to Wales, and our lawyers have identified five technical points and one merits point for reporting. Gareth.
Diolch. Three of the technical points seek clarity from the Welsh Government on various points. For example, there's a cross-reference there to a specific piece of retained EU law, but it isn't clear how that retained EU law applies in this case. Also, in a couple of places, the regulations talk about young children and children under three, and it isn't quite clear what distinction is being made there. There are also two reporting points about relatively minor errors in the name and description of two of the novel foods. And, finally, there is a merits point noting that the regulations authorise five novel foods, but the explanatory memorandum says that six novel foods are being authorised. The Welsh Government has not yet responded.
Excellent. Can I ask, colleagues, are you content with that report and those points? And, Gareth, any actions that flow from that, we're happy to hand over to you on that.
Under item 4.2 we have SL(6)209, the Meat Preparations (Wales) (Amendment) Regulations 2022, and we have a draft report on that. Now, these regulations extend the existing temporary suspension of the requirement for meat preparations imported into Wales from EEA member states, the Faroe Islands, Greenland and Switzerland to be deep frozen. Gareth, you've identified two merits points for reporting.
The first merits point queries the name given to these regulations, because the name doesn't quite follow the usual naming convention. And there's also a merits point that notes there's been no formal consultation, but there has been engagement with stakeholders across Great Britain.
Thank you very much for that. Happy to agree those points? We are. Thank you, Gareth, for that.
That takes us on to, then, item 5, common frameworks, and we have several points of correspondence here. First of all, item 5.1, we note the letter from the Chair of the Health and Social Care Committee to the Deputy Minister for Mental Health and Well-being, setting out the committee's views and recommendations relating to the food compositional standards and labelling provisional common framework. And the letter also requests a response to the committee's recommendations in respect of the public health protection and health security, the blood safety and quality, and the organs, tissues and cells provisional common frameworks by 29 July 2022. Are we happy to note that?
Then we have correspondence from the Chair of the Health and Social Care Committee to the Minister for Health and Social Services in respect of the provisional common frameworks. It links to the correspondence in the previous item, 5.1. Are we happy to note? We are.
On to item No. 6, then, which is the inter-institutional relations agreement. We have here, under item 6.1, correspondence from the Counsel General and Minister for the Constitution in respect of the Interministerial Standing Committee due to be held on 29 June, and just to note that this meeting's been rearranged from 16 June, so there's a little bit more time here, as the First Minister's letter of 9 June had set out. So, just of interest—we will return to this in private—within the letter it says,
'I anticipate the discussion will focus on UK legislation and the cost of living crisis.'
So, are we happy to note that for now? We might want to return to discuss it in private discussion. We are.
We then have correspondence from the Minister for Finance and Local Government advising of the Minister's hosting of the Finance: Interministerial Standing Committee, which took place the day after the letter, on 15 June. Happy to note? We are.
We go on to correspondence, and the written statement, indeed, from the Minister for Finance and Local Government summarising the outcomes of the inaugural meeting of the Interministerial Group for Housing, Communities and Local Government held on 24 May 2022. Are colleagues happy to note? We are.
And item 6.4, correspondence from the Minister for Economy in response to a letter from the Chair on 19 May, with some explanation of some issues that we raised. We might want to return to that in private, but if you're happy to note for now. And just in passing, it's good to see that we are having that transparency around the inter-ministerial standing committees for the Senedd and for this committee.
And then we have several papers to note. I'll run through them and please just shout out, colleagues, if there's anything you want to flag up now. First of all, item 7.1, we have the written statement from the Counsel General and Minister for the Constitution listing the appointees to the expert panel for the independent commission on the constitutional future of Wales. Then we have item 7.2, correspondence from Lord Bellamy QC, the Parliamentary Under-Secretary of State for Justice, which outlines Lord Bellamy's formal acceptance of the invitation to attend this committee's meeting on 19 September 2022. That's very welcome and I'm sure we'll return to that in private. Are we happy to note those two items? We are.
bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).
that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).
Cynigiwyd y cynnig.
In which case, under Standing Order 17.42, can I ask colleagues if they're happy now to go into private session? We are. We'll wait for the lights to turn red.
Derbyniwyd y cynnig.
Daeth rhan gyhoeddus y cyfarfod i ben am 14:48.
The public part of the meeting ended at 14:48.