Cynulliad Cenedlaethol Cymru

Good morning. In the absence of the Chair of the Constitutional and Legislative Affairs Committee, the first item of business this morning is the election of a temporary Chair for CLA. I therefore call for nominations for a temporary Chair.

Diolch. I therefore declare that David Melding has been appointed temporary Chair of the Constitutional and Legislative Affairs Committee for the duration of today's joint meeting. 

Thank you. And perhaps I can start by, David, just recording apologies from Dafydd Elis-Thomas from the CLA committee and Huw Irranca-Davies. 

Thank you, David. Can I welcome Members to this morning's joint session of the Constitutional and Legislative Affairs Committee and the External Affairs and Additional Legislation Committee, in which we'll be taking evidence from the Secretary of State for Wales and the Under-Secretary of State for departing the EU?

Before we go into the formal business, can I remind Members please to ensure that your phones are turned off or on silent, or any other electronic equipment that may interfere with the broadcasting? The meeting is bilingual. Therefore, if you require translation from Welsh to English, simultaneous translation is available on the headphones via channel 1 or amplification on channel 0. There are no fire alarms scheduled for this morning, so, if one does occur, please follow the directions of the ushers. Can I also indicate that we have received apologies from Dawn Bowden, Jeremy Miles and Eluned Morgan from the EAAL committee, and we welcome Jane Hutt and Rhianon Passmore who are acting as substitutes today. And we've received apologies from Mark Isherwood. My apologies from Mark.

Can I also, at the start, give my congratulations to Jeremy Miles and Eluned Morgan on being appointed to the Welsh Government? I wish them well. They have worked and been extremely helpful as members of this committee, and I look forward to opportunities when we may actually be questioning Jeremy Miles in our role as the committee in relation to some of the matters. [Interruption.] Sorry about that.

Can I therefore go into the next official session? We will now have the witnesses brought forward to us, where we'll go into consideration of the European Union (Withdrawal) Bill and the implications for Wales. The evidence session is with representatives of the UK Government. Can I welcome members of the UK Government, Alun Cairns, Secretary of State for Wales, and Robin Walker, Under-Secretary of State for departing the EU? Can I welcome you both and thank you for your time? It is important that we identify some of the areas relating to the EU withdrawal Bill that affect Wales, and I'm sure you are aware that both committees have been looking at the particular Bill.

Before we go into some detailed questions related to that, I hope to just ask perhaps four simple yes/no—and I hope you keep to 'yes/no'—answers, because the details will come afterwards. I'll start off with the Secretary of State for Wales. Following our publication of our report into the White Paper on the then great repeal Bill, back in June, can you confirm, yes or no, whether you've made representations to the Prime Minister regarding that report?

Yes, because it's part of the ongoing communication between—

A simple 'yes/no.' [Laughter.] 

Yes—

Thank you.

—because it's part of the ongoing communications.

Can I ask the next question, yes/no—perhaps Robin Walker will be able to answer this one—is the UK Government looking to amend clause 11 of the Bill, yes or no?

Well, I can't pre-empt Committee Stage in the Commons, but we'll be looking very carefully at all the amendments that have been put forward.

So, can I ask—as yes/no—is the UK Government looking to accept amendments to clause 11, yes or no?

Well, we've said we will look very carefully at all the amendments. Clearly, we have a Committee Stage to come—

'Yes/no' will be fine. 'Yes/no' will be fine.

The third one: based upon the considerations the Scottish and Welsh institutions will be having on the legislative consent motions and the Bill, if the Welsh Assembly and the Scottish Parliament refuse consent to the Bill, will the UK Government proceed with the Bill? Yes/no.

I remember the time when the Wales Act 2017 was going through Parliament and lots of people predicted that we wouldn't get an LCM on that basis, and I genuinely believe, by positive engagement on an ongoing basis, that that will give us every prospect of gaining a legislative consent motion. So, that's the model I'd go back to, but it's only by that constant engagement and dialogue will we tease out these issues that all the administrations may have.

Thank you, but we will, as I said, be looking very much at the detail. I was just wondering, in the hypothetical scenario that refused consent occurred, would the UK Government still wish to proceed with the Bill. It's a simple yes/no.

Well, with the greatest respect, Cadeirydd, I think it's a hypothetical situation, because I've got every focus on doing everything possible to get an LCM.

Okay. Okay. Finally—a yes/no—you've obviously received copies of the Scottish and Welsh Governments' amendments, and I'm sure you've reflected upon those. Again, do you think those amendments are something that can actually enhance the Bill, yes or no?

Again, I have to come back to the fact that we can't pre-empt Committee Stage in the Commons, but what we will do is respond to those amendments in full. We respect the fact that they've been drafted very carefully by the Governments and, so, therefore, they deserve proper consideration. 

Thank you for those answers—a bit more than a 'yes/no', but thank you for those answers. [Laughter.] 

Could I therefore move on to some more detailed questions? Perhaps I will pass over to David Melding to lead off on those detailed questions.

Well, thank you, David. Good morning, Secretary of State and Under-Secretary. You'll be relieved I'm not after 'yes/no' answers, but, when you hear the questions, perhaps you'll regret that. I think it's fair to say that, in the correspondence that the Constitutional and Legislative Affairs Committee has had, and also David's committee, with the relevant departments, but particularly exiting the EU, there's been quite a delay—tardy, really—in terms of the response. I just wonder if you think that's an appropriate way to engage with the Assembly.

First of all, can I thank the committee for its detailed consideration of these issues and the correspondence that we have had? I recognise there have been a number of events that have taken place over this time that have meant that we couldn't necessarily respond as quickly as we would like. Those include, of course, the Prime Minister's Florence speech and a number of developments with regard to negotiations. But I do plan to respond, informed by the evidence session today, and I hope I'll be able to send you a response shortly. I think it is unusual for a UK Government department to respond in detail to a report from one of the devolved committees, but I think, in the case, it's the right thing to be doing. And so it is something that—. I apologise for the fact that a number of events have meant that we haven't been able to respond immediately to the correspondence there and to reports, but we will be providing a response, and I think that reflects the importance with which we are treating this process.

Do you think the UK Government ought to be more active in getting the responses of the Assembly or are you pretty much waiting for us to submit correspondence? We are in such an unusual constitutional situation. Do you think—

As I say, we will be active with regard to responding, and I think it is something that we are keen to have a proper dialogue on. I know Alun has been keeping up the pressure for there to be the best form of dialogue.

Cadeirydd, if I can add—. Last week, I think—at the end of last week, hopefully, the letter or email will have gone to offer an invitation to every Assembly Member, because we are conscious that our relationship is with Welsh Ministers on a regular basis and officials to officials, but it's only right that Assembly Members also have the same sort of opportunity to engage, and a letter should have gone at the end of last week—if it didn't, it'll go today—to every Assembly group or group leader offering technical briefings from officials at any stage to clarify any points that they may have in terms of where the UK Government sit on some of the points and where the motivation lies behind the clauses specifically.

And then is this approach to be speedier and involving the Assembly further up the policy pipeline, is that then likely to extend to the real flagship Bills that will underwrite the frameworks—environment, farming, regional aid, whatever they are? Is that going to be the culture when those Bills are dealt with?

Well, those Bills would need legislative consent motions, presumably—

Yes, but will there be engagement is what I'm asking, effectively, with the Assembly?

Well the way in which Bills, up until now, that need legislative consent motions always—. There's always engagement, certainly with the Welsh Government very closely, and I know that these committees, that the Assembly committees, will pay due consideration to those. I think there's certainly—. I would be keen to look at any option as to how we can better engage and, obviously, we'll carefully consider any proposal that the committee or you, Mr Melding, might have.

If we can move on—. Oh, sorry—

Rhianon had a small supplementary.

A small supplementary. In regards to your role, then, as a conduit between the representations of this place and the UK Government, I note that you've stated that you were baffled by the UK Government's approach to the Bill. So, how effective is your role in terms of being able to take on board the representations of this place? You've already referenced the delay in responses.

Well, I have the privilege of sitting on the Exiting the European Union Committee, where the Prime Minister's rightly cautious or positive [correction: cautious but positive] about the engagement with all parts of the UK. I sit on the Joint Ministerial Committee that Mark Drakeford attends on behalf of the Welsh Government. I think it's an ongoing dialogue, and the First Minister and I've agreed to hold a joint session in terms of considering some of the framework issues in detail, which I think is another positive step in our engagement to show that the closer that we are, the better the understanding is in order for me to be able to help champion and communicate those issues that need addressing.

So, just to follow that up, why did you state that you were baffled?

I don't think—. He wasn't baffled. That relates to our Cabinet Secretary for Finance.

Yes. Back to David.

Secretary of State, I think you told the CLA Committee that you regard an important function in the office as to advise the Prime Minister on the constitutional and political situation in Wales. I wonder: did you convey the possibility of the sort of reaction that we have had, which has been, you know, one of real reservation, despite most opinion here recognising there's a need for frameworks? The way all this has been approached has caused great misgiving—I think it's fair to say across the political spectrum.

Well, I think it's—. It wouldn't be in one communication because there's a genuine interest and a genuine dialogue across the exiting the European Union committee to do the right thing, and some of the evidence of that would be that the Bill was shared with the Welsh Government almost two weeks before the publication. And that was quite a step because there was a risk of experiencing the wrath of the Speaker, because Members of Parliament legitimately could have said that this Bill should be presented to Parliament before being presented to a Minister in another Government. But it's part of the engagement that we want to pursue and we want to continue with on an ongoing basis, and this committee is part of that process.

Has the political reaction here in Wales surprised you, or do you think it's the sort of turbulence that you'd expect in this sort of process?

It's difficult, because there are two levels. On the day of the publication of the Bill, I spoke with the First Minister, although, as I said, they'd had it almost two weeks beforehand, and we came to a view that we would work together to improve the Bill, as he would see it, and I said that we would carefully consider all of the proposals that he and the Assembly Members would make. So, that, I felt, was a positive statement, and then I was quite surprised, sometimes, by some of the public comments that have been made as well.

So, part of this is the turbulence of politics, but I genuinely believe that there's a will, and the last Joint Ministerial Committee was extremely positive. The Prime Minister, the First Minister and I met last Monday, and a few weeks before that, we met with the First Secretary of State. Again, these have been positive engagements and I don't want to understate those, because they go to show the attitude of both Governments to do the right thing and come to a place where we give every prospect of a legislative consent motion.

Finally from me, just to finish this particular point, in that engagement—. It was sighted a week before it was actually presented to Parliament, so the Welsh Government got a chance to look at it, and, presumably, in the discussions you'd been having on a bilateral basis before that with the First Minister. In that pre-presentation to Parliament stage, was the Bill changed at all?

The communication of the Bill, or the passing of the Bill to Welsh Government and Welsh Government officials was more to do with technical aspects to ensure that—. Let's be honest; the Welsh Government will understand devolved legislation the best, and on that basis, we wanted to ensure that the technical aspects were apparent and were suitable in terms of the publication.

Yes, I believe that—. Apologies that my Welsh isn't quite up to replying directly. The Bill was, as you know, shared with the Welsh Government 10 days before introduction. That was the starting point for increasing the intense discussions between the UK and Welsh Governments at both ministerial and official level. I believe we have embarked on a shared endeavour to ensure certainty and continuity, but more importantly than that I think is the fact that it was our stated intention, both from the White Paper before this Bill and in the Bill itself, to increase the powers for each of the devolved administrations. I think it's very important when we have this discussion and debate about particularly clause 11 of the Bill: there needs to be a recognition that that contains the Orders in Council procedure for releasing further powers to each of the devolved administrations. It's our intention that that should be used substantially during this process, and so that is something that we see as very important in assessing the whole impact of this Bill.

'I am baffled by the way in which they have set about turning friends into enemies.'

Perhaps not just yourself, but perhaps Robin Walker and perhaps David Davis might decide to come one day as well.

I'm sure he or I would be delighted to come, again, making sure that we can find the time to do so, because I think it is very important that we continue to update on this process. I'd certainly be happy to play my part in both relaying that message and, if necessary, in coming back myself.

You've both stated that it is your anticipation and your desire to devolve—I think one of you used the term—'substantial new powers' to the National Assembly for Wales after separation from the European Union. I wondered if you could give some examples of what additional substantial powers we can expect.

I think it's important to recognise there is the JMC process, which is in place to discuss the powers that are returning, where we need to preserve common frameworks, and, crucially, also where we will not need to. I can't pre-empt that process in terms of setting out—

But how do you know they are going to be substantial, with due respect?

Because I think the clear intention of the Government, as we set out in our White Paper, is for powers to sit closer to the people across the UK—and that means both at UK level but also at the devolved level—than ever before. I think there is certainly scope in this for there to be areas where we agree common frameworks aren't required, and therefore significant powers—which aren't currently held by devolved administrations, because they're in areas that are currently commonly held at the European level—will be coming through to them. I know this is something where Alun's been giving some thought as well.

Can I thank you for the question? There's a lot of work ongoing, and that's been the basis of the last JMC meeting and the meeting that we had with the First Secretary of State and the First Minister just some weeks ago. There was a commitment for officials to intensify the understanding of the 64 areas of law. I'm presuming, Cadeirydd, that you've seen the 64 areas of law. I've got copies if you need them.

Beneath those 64 areas, there will be many functions and many regulations that fall into that. So, it's not just 64 areas, because there will be various elements below that. The First Minister and I have committed jointly to work with some stakeholders to establish what they want out of it, because it's about doing the right thing for business as well, to ensure that we offer the greatest certainty and continuity in what is quite an uncertain period as we negotiate to leave the European Union, as I said to Mr Lloyd.

Let me present it in this way: the Florence speech by the Prime Minister has broadly been received quite well, I think, from the First Minister and from many people. We want to avoid any cliff-edge scenario, but also we want to avoid any cliff-edge scenario in the UK as well. And on that basis, with the 64 areas of law, we need to understand exactly the functions that work below that in order to deliver the greatest certainty and continuity to business, so that the UK market continues to operate.

Many of these areas of the 64 areas might not need much agreement, some will need memoranda of understanding, there will be some that will need maybe protocols or concordats agreed between the different administrations, and that's the sort of areas that we're teasing out at the moment. So, it's a bit early to say yet what exactly, but we're making good progress in terms of mutual understanding of where it is right for businesses in Wales to want to have that continuity of regulations.

I appreciate those answers, but, just very quickly, to follow up, it was you who used the term 'substantial new powers' for the National Assembly, and it seems from your answers that actually it hasn't been identified whether they are substantial or not. I think it's quite clear that what would happen after separation, assuming that we leave the single market and the customs union is that—. What would happen with devolved functions is that the European frameworks will be lifted upon them, and the competencies of the National Assembly stay the same in terms of the issues, but that the limits of the regulations would disappear, in which case there aren't substantial new powers, it's just that we get to set the regulatory frameworks, and in which case I'm trying to understand what exactly you mean by substantial new powers for the National Assembly. Surely it's not possible to say whether there would be substantial new powers in the first place.

Well, as I mentioned, we're still working through the 64 areas of law—

So you haven't identified substantial new powers that could be devolved.

Well, we expect the powers of the Assembly to be extended, because the powers at the moment that operate in Europe, as they return to the UK—. The retained EU law will then, as part of that transitional process, as we work through the 64 areas, identify areas that will be available for transfer to devolved administrations or for which there will be no need for any legislation in order to come through it, and even if there is a need for legislation thereafter, of course, that would require a legislative consent motion anyway.

So again, it goes to show that the better partnership working that takes place, the better understanding we have—but also the right thing to do for business and industry and communities. Because if you're an employer, if you're operating an industry that it affected by these 64 areas of law, the worst case scenario for your business could be to have four different regulators around the UK. I'm not saying for a second that that is the case.

So, we're trying to offer the greatest continuity and certainty to industry, as well as having a process in place where we can have retained EU law that applies to the whole of the UK, which prevents that cliff edge here, as we're seeking in the right way to prevent a cliff edge in our negotiations with the European Union.

But can I confirm—? I understand what you’ve just said, but it’s been often said by both our First Minister and the Scottish First Minister that they want it agreed—they don’t want to be in that situation where there wouldn’t necessarily be four situations, but they want to agree the frameworks, and the current Bill as drafted takes away their ability to agree the frameworks, but introduces the possibility of having imposed frameworks. That’s one of the concepts that’s been highlighted for the last several months.

I don’t really agree with that painting of the current Bill, because I think the drafting of the Bill makes it very clear that the Orders in Council process, which requires not only the approval of Parliament, but also the devolved legislatures and Assemblies, would be used to release those powers. I think the crucial element here is the Joint Ministerial Committee discussions that Alun has spoken about, which have already made good progress in agreeing the principles. I think the next step with that is to do the deep dive, to go into the specific areas and make sure that there is agreement on both where common frameworks are required and, crucially, I think, from your perspective, where they are not required. That should then allow for that process to be put into place to release those powers, and to ensure that powers are coming to each of the devolved legislatures. That’s certainly our intention, and it has never been the intention to use this process unnecessarily to hold that process up. It’s something that we’d like to see happening, as I said to the Exiting the European Union Select Committee the other day, on a time period quicker than any of the existing sunset clauses within the Bill. I think it’s something that we can move forward with well before the Bill kicks into effect.

Cadeirydd, can I also add that, as we make progress in going through the deep dives, as Mr Walker mentioned, about the 64 areas of law—and there’s a mutual understanding of what is right, and in terms of the process, I hope that that will give confidence both to Welsh Ministers and to Assembly Members of the direction of travel in terms of what’s likely to happen? I think that when we get to that position then there will be much more confidence in the process, and I think that that, again, will deliver the continuity and certainty that we want for business and for industry and communities as well as then a recognition, hopefully, by Assembly Members and Members of Parliament and the Scottish Parliament and Northern Ireland Executive, if that’s reformed, that there is no agenda of doing anything different other than what we’ve talked about.

I appreciate that, and confidence in processes is slightly different from confidence in Bills that are laid out as they stand, and could be interpreted differently. I think that’s the concern we’ve often raised.

But we’ll go into further questions on perhaps some of the clauses within the Bill that we have deep concerns about, and which we have raised with you. Perhaps we can start off with Suzy.

Right, yes. Thank you. Welcome, both. You probably—I hope you are already aware of our concerns regarding clause 11, and I won’t rehearse them again. I’m just wondering if you can give me your personal views on the remarks made in the Miller judgment to the effect that, were it not for the EU withdrawal Bill, or a similar piece of legislation, the powers currently held in the EU in devolved areas would be returned to the devolved legislatures straight away. Do you agree?

I think, obviously, the Miller judgment was focused on the need for legislation to trigger the article 50 process, and we’ve responded to that, obviously, by bringing forward the legislation, which was supported by a very substantial majority in Parliament. But the view, if we were not in a scenario where we had attempted to reach some kind of agreement on common frameworks, I think is that there would be the risk of huge legislative uncertainty, and what we actually need to ensure is that we have continuity and certainty in every part of the United Kingdom and in each of the devolved administrations and legislatures. So, what we’re attempting to do through this Bill is to make sure that the powers are there for each of the devolved legislatures to take the action to protect their own statute books and to protect the legal situation; that the powers are there for the UK to do that where there are common frameworks in place; and through clause 11 that we can make sure not only that we have the approach to allow common frameworks where they are needed, but also, very importantly, that we have an approach to agree where they’re not needed, and therefore release powers to each of the devolved legislatures. That Orders in Council procedure, as you’ll know, is something that is already reflected in the constitutional settlement through the Scotland Act as a mechanism for releasing powers to devolved administrations. So, I think it’s something that respects the existing nature of the devolution settlement, as indeed did the agreement reached at the JMC the other day, rather than something that seeks to change it.

Well, thank you for that answer. It's not quite what I asked, it's essentially to see if I can establish between you both whether you recognise that the powers basically belong with the devolved institutions and the purpose of the Act, for all the benign reasons you've put out or explained today, means that there is, albeit a temporary, recovery of those powers in order to give the certainty and continuity that you've both mentioned. I'm trying to work out whether the certainty and continuity for devolution is rubbing up against the need for the certainty and continuity for business and the communities, as you mentioned earlier.

Well, I think we—

I'm not saying it's an insolvable problem, but I'm trying to get to whether you see that there is—

Well, I think the answer to your question is in the last statement that you've said, in that we continue to work through the detail of those 64 areas of law that apply to Wales—111 in relation to Scotland because the devolution settlement is different—and it's clearly in the interest of Assembly Members and Members of Parliament to have an industry that can operate cross-border and that there are regulations to work and operate in an effective and efficient way. So, as we're working through those 64 areas of law—. As the First Minister and I have agreed to jointly chair sessions that will go through with industry as well as to what they want out of this, rather than maybe just looking at the political narrative only—I think that is absolutely important, because clearly it's not our intention at all to take decision-making powers away from the Assembly from what they have now, but it's also about delivering something efficient so that we don't have that cliff edge within the UK and that's what the Bill is focused on doing. 

No, no, and I understand that's the point that you've raised before. Bearing in mind that you've just said this is about certainty and continuity, for the good reasons you've said, we still have this issue that it doesn't fit very well with the current constitutional set-up. In those circumstances, and it sounds to me as if there's a temporary aquisition of powers—and you've pretty much said that today, for the reasons that you've said—why isn't it then clearer on the face of the Bill that actually this is just a temporary situation? I don't think the Orders in Council quite cover it. 

Well, I think—. We've responded to feedback that came from the Assembly, from Welsh Government and other organisations, the Scottish Government, as well as industry, and if you notice the difference from the White Paper to what the Bill spoke about as retained EU law, well, retained EU law is effectively taking the European frameworks and applying them to the whole of the UK.  

You'll get questions on frameworks later, so there is no need to develop it too much.   

But the purpose is that that then in itself is not adding or taking away powers from any administration—it's about maintaining that certainty and continuity so that if it's right that we want as much certainty—. We don't want a cliff edge in our negotiations with the European Union, we don't want a cliff edge either in the UK, and the Bill is about taking retained EU law. It's purposely being phrased as retained EU law to try to give confidence that this is not what has been accused in the press wrongly of what the UK Government approach is in this. 

Have you got a particular reason why the handing-back process, though, isn't clearer on the face of the Bill? I don't doubt from what you've said that the intention is to do that, but it's just not clear from the Bill. 

Well, I would slightly take issue with what you've said about the Orders in Council process, because it is a very clear process for handing back. It is—

It's only 'may' though, it's not 'must'. 

But I can tell you that absolutely the intention is for it to be used, and the intention, as I said earlier, I think is for it to be used relatively quickly. I think it's something that should be—. Of course, the Bill also in other areas and in clause 10 does create powers for devolved administrations and legislatures to take their own actions in their own territory, which is right because that's what we have to do to respect the constitutional settlement that exists between us, and what we have set out to do, wherever possible in the Bill, is to provide that reassurance that that will be protected. I think Schedule 3, Part 2, sets out the envisaged corrections that are needed to the Government of Wales Act 2006 specifically to provide that reassurance, but we're not talking about sweeping policy changes here, we're talking about changes, which are necessary to keep the legislation functioning properly as we exit the European Union. Of course, that comes back to what all of this is about, and what the Bill as a whole is about, which is actually not making great changes—it's about locking in to place the existing rules and ensuring that our statute book in all parts of the UK continues to work. So, I think the crucial point about powers is that this Bill does provide the mechanism for releasing them from common frameworks, as well as the mechanism for maintaining those common frameworks as we come out of the European Union, where they are required.

Thank you. That was a useful answer. I think the reference to the Schedule was helpful there.

Can I turn to something very specific, then? You recognised the concern of UK Ministers having slightly different powers to amend law—well, a considerable difference in some cases—but different powers from this place and the Scottish Parliament to amend retained law. There is an imbalance, because when we’re talking about the UK Parliament, we’re also talking about the English Parliament, and every time the UK Parliament has the opportunity to amend law in a way that Scotland and Wales can’t, the implication is that the Parliament, in its capacity as an English Parliament, has powers that we don’t, here in the Assembly or in the Scottish Parliament. Do you have any concerns about the way that the drafting of this section at the moment, whether intentional or otherwise—? Does it imply that the UK Parliament, operating as an English Parliament, has greater powers to modify law than Scotland or Wales does?

Well, that’s certainly not an intention, because we want retained EU law, we want to work through the 64 areas of law quite quickly, we want to be able to come to an agreement with all of the administrations—64 in relation to Wales—as to what and how we will operate with MOUs, and which limited number need legislation, for example. The quicker that happens as a transitional process, then that suggested imbalance won’t exist, because it’s part of a process in order to transfer the powers.

It's an issue that was raised, I think, by the Constitutional and Legislative Affairs Committee. Am I right in saying that?

We both raised it.

But, of course, we haven't had formal responses to that yet. Is that what the response is likely to look like? You can see what our concern is.

I can see the concern, and I think this is something we need to consider very carefully in terms of the approach. As you appreciate, and as Alun has pointed out, the approach to this Bill is very much focused around where we need a common UK framework and then where we will not need that, and powers can be released under that. I don’t think there’s any intention there to create any sort of advantage or different approach towards England to the other parts of the union. But, obviously, we do have the Committee Stage coming up, and that’s something that we will look at very carefully during that process, because we have a number of amendments, I think, that have already been tabled along these lines. So, I can’t pre-empt the Government’s response to any of those, but I think it’s very important that we are clear that this is about how we look after the interests of the whole of the United Kingdom, and that means listening to the devolved legislatures and the devolved administrations in the way that we do that. There’s absolutely no intention anywhere to do less listening or to have the legislative process working against them in any way.

So, you're saying there is scope—let’s just put it like that—within the process that’s going through Parliament at the moment for any concerns about an unequal arrangement between England, Scotland and Wales—. There’s potential within the legislation to remove that concern.

If that’s something that is raised at the Committee Stage, we will certainly give it proper consideration, and I think it’s something that we are very clear in our intent here, which is to serve the interests of the whole United Kingdom and make sure that every part of the United Kingdom has the statute book in the right place as we exit the European Union, and so, certainly, there’s no intent there to go against that. But if we can provide greater reassurance, we’ll look at if there’s any way we can do that.  

If you can capture that in legislation, I think we'd all be reassured.

I want to bring David Melding in, and then Nathan Gill.

I would say, from the dialogues that I’ve had, that point—the point you’ve made—hasn’t been highlighted as a priority of the administrations thus far, but, clearly, I think we’ll look carefully at any suggestions that are made in this area.

Secretary of State, when you gave evidence to CLAC on 25 September, you acknowledged this point that decisions made for England have a big effect on the policy room that is left for action in Wales and Scotland. The fear simply is that any changes to retained EU law will be driven by priorities that are in England, because that’s what, domestically, Westminster focuses on, because in the devolved world, obviously, you don’t have responsibility for those issues in Wales and Scotland. It seems that you need something more rigorous to counterbalance that threat than the current one, 'Well, we'll talk to people and do our best to avoid any of these unintended consequences, where basically a decision is made to change retained EU law on the basis of English priorities, which may not be shared in Wales and Scotland.'

If I may, the first point in terms of the premise of that question is that we're going to take lots of decisions to change retained EU law. If you look at the restrictions on the powers under this Bill, they're very much focused on correcting where the law no longer works as a result of our exit from the European Union. It's not about making changes. So, the starting point would be: where there is a decision to depart from the acquis and move away from that, that would need to be done by primary legislation rather than through the powers in this Bill. That, of course, is why, in a number of areas, the Government has already announced a programme of primary legislation. I think that's a slightly separate issue to the discussion of the issues under this Bill, and very much the intention of these is to provide continuity and to actually write in the existing functioning of the statute book. So, there should not be, I think, significant risk of a great debate under the powers of this Bill about where we're going to be changing EU law. The powers are very constrained in that respect, but it's certainly something that—. I think we will consider very carefully what this committee has put forward in that respect, and look very carefully at this issue in Committee Stage.

But in reply to that, you could get around this just by ensuring that powers for Welsh and Scottish Ministers are analogous to the English powers with those qualifications, as you just said, in terms of how restricted they are.

I think an important point has been made, and we will obviously look carefully at that, but I would also say another element of reassurance will depend on the agreement that we'll hopefully get with the European Union, so that any changes to the retained EU law would have to be in line with the agreement of our exit plan with the European Union. So, that in itself is an added complexity, and an added restriction, if you like, because on what terms will we trade, for example, and if you take state aid rules as a specific example of part of the 64 areas of law. So, Mr Walker is absolutely right that it's not the intention to change the retained EU law.

I hear a lot of emphasis on continuity, and also—. You know, it's obvious that there needs to be this common framework, but I think one of the things that the First Minister brought up was the need for us to look at the fact that there are smaller countries within the United Kingdom. Once we have this common framework or a UK single market—if you want to use EU terminology—then basically there is a real possibility that England, being the biggest and most dominant area within the United Kingdom, can just run roughshod. I think that's the fear of which you need to have knowledge and accept, that in this institution—and certainly in Scotland as well, and Northern Ireland—there's a fear of the bigger neighbour. So, what are you going to do in order to address that, and have you listened to and even considered a single UK market where possibly a Joint Ministerial Committee or a joint ministerial council would have equal say within the way that these new laws, which are coming back to us, are going to be applied equally throughout the United Kingdom?

Well, I'm hoping that, as we work through the 64 areas of law that relate to Wales and the 111 that relate to Scotland, there will be well-advanced discussions and reassurance and agreements in place as to how that law will be transferred, and how that law will work. On that basis, I think that in itself will then provide a certainty and continuity within the United Kingdom, so that a business operating on either side of the border can buy or sell their products without having different regulations on each side.

But do you think that's a long enough framework? Is that something that you consider that is actually going to last beyond this Government and into Governments and into the past? How far forward are you looking with this?

Well, I think the process that is envisaged in the Bill clearly is a temporary one, because the Bill itself only deals with the period running up to our exit of the European Union and then powers for the two years afterwards to make sure that the statute book remains in place. The broader process, I think, that will be unlocked through the JMC, is actually an increase in devolution as a result of this, which I think was always our intention. It was written into our White Paper. That is actually where I think the history of devolution to date rather mitigates the picture you're painting of England always being the bigger player and sort of grabbing back powers. The history of devolution to date has actually seen the powers increase in Wales and in Scotland and that is a process which we think this process can continue to support.

Sorry, I don't mean that the powers being grabbed back are an issue; it's making changes in law to actually benefit English farmers over Welsh farmers or using the size as a way of distorting what we now have as a common market. 

I think what this Bill envisages is an approach which either through the Orders in Council powers in clause 11 where there's an agreement that there's not required to be a common framework, the powers would go to the respective devolved administrations and then, of course, the UK Parliament would be acting on behalf of England, or a process where there is an agreement on common frameworks, and then the UK Parliament would be acting on behalf of the whole of the UK, continuing to engage with and consult with each of the devolved administrations and legislatures, and I think that's—. The UK is not just, you know, England; it is very much all parts of the United Kingdom, and when the Parliament takes action on those, it must listen to and engage with all parts of the United Kingdom. So I think that's a distinction I would draw, is that clause 11 allows for both of those approaches, and where the Orders in Council are put into effect to pass on a power, that will then fall within devolved competence, and in that case, the UK Parliament when it takes action will be acting on behalf of England with regard to England-only legislation, but where it continues to be legislating on behalf of the whole of the UK, we will absolutely continue to pay attention to each of the devolved administrations in the way that we do that. 

We've moved on to common frameworks, so Jane Hutt has got a question on common frameworks, then I'll bring Steffan in following that. 

Yes. I mean, I think it's important to know how talks are going in terms of common frameworks, particularly because of our concerns about clause 11. And actually, can I say, Robin, that I'm very pleased to hear that you're going to respond to the letter from this committee because one of the six objectives is to remove the clause 11 restriction on the devolution settlement? So that's a pretty big bullet in terms of our discussions today and your views on that. But I am aware, and it's good to hear that the principles were discussed at the JMC, but the First Minister has stated that the Welsh Government's objection to clause 11 remains despite the agreement in terms of those principles to underpin common policy frameworks. So, I mean, do you think there's an issue there because of our—? You know, how is that going to pan out? Common principles, but, you know, hitting up against our real concerns about clause 11 and, indeed, the First Minister's concerns. 

Well, I take an element of confidence—or optimism—from the recent discussions: the meeting with the First Secretary of State; the JMC; and the meeting last week with the Prime Minister. And, clearly, there's a will on both sides to work closely in order to come to an agreement and, as I've said earlier, the further understanding we have of those 64 areas of law, how they will operate afterwards, how we envisage it, I'm hoping will give greater confidence and reassurance then, so that the objections will be proved not to have been worthy.

I mean, it is very fundamental in terms of our concerns about clause 11, and obviously we've had discussions already—useful discussions and questions—about how this is going to operate in terms of the common frameworks. 

Well, can I also put back to you then that for any business, farmer or anyone operating under any of these regulations as they exist, they want the certainty, and the retained EU law is an effective way of delivering the certainty, but also respecting the devolution settlement because it gives us the opportunity, in preparation for the time that we leave the European Union, to have a clear understanding of what the intentions are in each of those areas of law, so that a business that is already deciding what their investment intentions will be over that window, on that basis, if we can say to them that the retained EU law will remain as it is and the respect to the devolved settlements will then be on the basis of, 'This is how we will treat it according with the principles that were agreed at the last Joint Ministerial Committee' demonstrates an element of confidence that is building? Clearly I don't want to overstate it either, but I think that there's a general will on both sides to come to a mutual understanding—in the interest of businesses in Wales, don't forget—and I think that Wales could, arguably, be at more of a risk because of a smaller population. And on that basis, we need to protect Wales's interests and businesses' interests in Wales as well.

Can I just clarify? I think it's important to clarify. There's no-one here questioning the importance of retaining EU law, but it's a question as to who, then, has the powers over the devolved competencies, relating to those EU laws? That's the issue. It's not about retaining it; it's about who has the powers.

I mean, it is about trust and respect, obviously, in terms of the following—. Could I just move on, also, to the issues that we've already aired today, about the Orders in Councils process in the Bill? I think already, Secretary of State, you have said, 'This is not going back to the old LCO process,' which we're very relieved to hear about, and to give evidence to CLAC.

But you will be aware, of course, about our concerns in terms of whether this could reintroduce a conferred-powers element to the Welsh devolution settlement. So, we want your response to that. I know the finance Cabinet Secretary has raised this concern, that it could move into a type of conferred-powers model in terms of how it would operate. So, how would it work? Can we try and pin that down?

I think it's a good question. In the first instance, I think we need to accept from April of next year, where the Presiding Officer, the First Minister and I've agreed, that will be the principal appointed day when the new Act fully comes in force. So, that will be when the reserved model is operational here in Wales, which is a positive step.

It takes us much closer to the Scotland—or takes us to where the Scotland approach has also been. But Scotland is probably more developed because the reserved model has been there much, much longer. But let me give you an example where the powers to hold a referendum in Scotland, for example, were transferred to the Scottish Parliament and the Scottish Government through Orders in Council. So, it's a tried-and-tested model, even where the reserved model exists, the Orders in Council are a tried-and-tested model in terms of transferring the power thereafter.

And I'd just add to that, the withdrawal Bill does nothing to affect the constitutional arrangement with regard to reserved or conferred, and that is a process that is firmly in—.

That's obviously something where we go back to a question of trust in not only our powers and our competencies. So, it's crucial to clarify.

Just to move back to the question on the shared frameworks for post-separation UK. Are you able to put on record whether you believe now that we are actually moving beyond the simple binary reserved or conferred powers, or reserved-powers model, and that, actually, we are going to have to move to a shared-powers model, particularly when it comes to joint frameworks between the different nations of this state?

I would say that we have the reserved-powers model in place, as of 1 April next year. A major step forward compared to—

I'm not asking you that, I'm asking you, are we moving towards—and you know full well what I'm asking—are we moving now, due to our separation from the European Union, to a point where there has to be a new element to UK constitutional workings, which is a shared-powers model? 

I don't know quite what you mean by that. If you're talking about a federal structure, I don't think that is something—no, we're not moving towards a federal structure. I think we've got the Wales Act, which received a legislative consent motion from the Assembly, so, accepted that it was a positive move in terms of the direction from where we've come from with the conferred-powers model.

That gives a clear line of where responsibilities lie. The return of retained EU law, we will work through those 64 areas, and we will come to an agreement of how they work. But I'm always alive to the fact that 50 per cent of the Welsh population live within 25 miles of the England and Wales border. And, therefore, we always have to be sensitive to those cross-border issues and that's why legislative consent motions are in place in order to ensure that when it does cross the competence of the Welsh Assembly, then, clearly, we want to pursue an LCM.

Let me elaborate just a little further. Perhaps I didn't make myself clear enough. When we separate from the European Union, no single Government in this state will have superior jurisidiction, presumably, over rural affairs and agriculture, but all Governments in this state will agree that it makes sense to have a common framework, as has been reflected in the communiqué. In which case, won't there be a council of Ministers or a JMC model where the UK Government representing England, as far as rural affairs and agriculture are concerned, and the Welsh Government for Wales and the Scottish Government for Scotland and hopefully an Executive in Northern Ireland come together to agree a shared common framework. So, that's a powers shared model rather than a binary reserved or devolved model.

Let me explain it—. Let me respond, then, in a different way. From the retained EU law, there are only two things that can happen to them. They'll either be devolved by agreement in terms of how that will happen and how that will operate, and those that need legislation, and you mentioned agriculture, but let's presume more—let's take a hypothetical assumption that we will need a Bill for agriculture. On that basis—

There's one coming in.

—because it's—

There is one. There is a Bill coming in on agriculture. It's not hypothetical; it's actually coming. [Laughter.]

On that basis, we would need a legislative consent motion. Now, as—

Right. Sorry, this is the point. I'm glad for that clarity because what it means then, though, is that you envisage, post separation, that the UK Parliament will legislate on behalf of the whole of the UK on frameworks and that you'll consult and listen to us and it'll all be lovely and we might get a copy two weeks before you publish, but, ultimately, it'll be the UK Parliament that will legislate on issues that relate to devolved matters so far as frameworks are concerned. So, it'll be Mr Gove's department in London that acts not just on behalf of England on a devolved matter but on behalf of the whole of the UK.

Well, I wouldn't have presented it that way. We don't know what will be in the Bill, clearly, at this early stage, but Parliament will only be successful in getting its Bill through if we work on the basis that we will want to get to a legislative consent motion agreed. We had that discussion over the Wales Act 2017 that I talked about, where it was predicted that we wouldn't get it, and it was only by jointly working on the issues that were contained and the challenges that are there on the same basis that relates to the withdrawal Bill. So, with a future agriculture Bill, clearly, we would be working with the Welsh Government and, I would say, with Assembly Members and committees in order to get to that position where there is an agreement because we would want to get an LCM as part of that process. So, I think that gives added reassurance that the retained EU law is either transferred in that interim process through agreement, and that's the sort of work that we're doing now—.  There will be a smaller number of areas of those 64 that may need legislation, but, clearly, that would need a legislative consent motion. We would want to get to a legislative consent motion in order to get that agreed, which would then be—. If it's as you define it, you might choose to describe it that way. I probably wouldn't describe it that way. I'd talk about it in a way in which we've got a constructive working relationship and dialogue with devolved administrations.      

Well, again, just to go back to this point, the principles outlined in the communiqué potentially create the impression that we could have a new structure in the United Kingdom where the Ministers from all of the Governments come together to agree frameworks and then those frameworks are proceeded with after they have been agreed, but what you seem to be suggesting to me is that any future frameworks actually follow the same legislative process, through the British House of Commons and the British Parliament and that we feed in as sort of consultees to the process.

I think what the communiqué set out was a respect for the existing devolution settlement. I don't think it sought to change that. I don't think it sought to alter it in any way, and I think that the framework for the existing JMC is one of inter-governmental contact to discuss these common frameworks, but that is not something that is necessarily seeking to alter the devolution settlement in either direction.

Can I just—with one final—

I'm conscious of time, so one very quick one.

Just very finally, then, paragraph 4.2 of the White Paper you published for the Repeal Bill described the situation as you see it in terms of where competency should lie post separation. It detailed that, at the moment, EU frameworks are negotiated on behalf of the United Kingdom by the UK Government alone, but that obviously isn't the case because, at the European Council, they're done jointly. So what I'm trying to get at here is: is there going to be that similar joint approach to UK frameworks after we leave the European Union?

And I think we would say that UK frameworks after we leave the European Union will continue to show respect to the position of the devolved administrations and legislatures.

Right, okay. I’m conscious of the time, and we’ve already used our hour that was allocated. We’re only halfway through our questions, to be blunt, and I was just wondering whether you are on a tight schedule.

We are, because we have an expert panel session where stakeholders are going through some of the 64 areas of law to tell us how they would like them to be operated on thereafter.

In that case, clearly we’ll have to come to a conclusion, unfortunately, because, as I say, there are areas of scrutiny that affect the Assembly very much, particularly in subordinate legislation, which we need to address. The ministerial powers, clause 7, which we just touched on a little bit—we haven’t really touched on it—we still need to address. I’m sure you can appreciate, therefore, the many areas where we’d still like to enquire with you.

Can I suggest, Mr Rees, that we can easily communicate in writing, and those questions can be posed? We could easily respond to those questions, and if we can find—

I appreciate that. We will have to do that, it looks like, but as you can see from the questions, some of the questions are very involved and will take a long time to answer back, and you are proceeding to the Committee Stage next week, I understand.

Indeed. The first two days.

And therefore we would want to try and get as much information as we can. So, we will write to you with some further questions. But I just have a couple of concerns I wanted to raise. I don’t want answers, clearly, because we haven’t got time. But I am concerned, when you talk about the 64 areas of law, which you’ve talked about, which you’re evaluating and identifying, and yet we’ve got this bit of law that seems to be depending upon those 64 areas of law that you highlight. So, I’m just expressing my concerns that we are seen to be introducing a law, or Bill, that has yet to be clarified because you haven’t yet identified other parts that feed into it. So, again, are we rushing something where we don’t need to rush something? I appreciate the concerns for certainty for businesses and other areas, very much so, but also I feel that—thank you for the answer, but I still feel that there’s a gap there as to understanding the role of the Assembly and other institutions that evolved regarding the competences that exist now within those areas.

You’ve highlighted very much the frameworks and that you want to ensure that there are common frameworks, and that everybody has that certainty. I don’t think anybody in this institution has ever said that they would not want that. You keep talking about—it’s not your intention, we accept that, but the drafting of the Bill, unfortunately, doesn’t always reflect that intention clearly enough, and perhaps you would want to reflect upon that. That’s why some of the amendments that have been suggested try to put clarity and a reflection of those intentions in the Bill. I would hope, therefore, that you would take those views very strongly when you come into discussion at the Committee Stage, and maybe, Mr Walker, ask the Government whether it will look very carefully at those amendments, and whether it would consider changing clause 11 in particular, and some of the other amendments that we’ve put forward, to ensure that parity exists between the institutions across the UK, to meet the devolved settlements and to ensure that we all have the same agenda: to get the best deal we can for the UK, the best deal we can for our nations, and make sure that we operate within a single framework afterwards. So, take that one simple message back for us, if you can; we’d be grateful. Perhaps we’ll meet again in the future.

You’ll obviously receive a transcript of the events and, any factual inaccuracies, please let us know as soon as possible. Thank you again for attending.

Thank you very much.

Thank you very much. Thanks for your time.

I now suggest that, under Standing Order 17.42(vi), we resolve to exclude the public for the remainder of the meeting. Are Members content? Therefore we move into private session. Thank you very much.