Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee

02/11/2020

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

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

Y rhai eraill a oedd yn bresennol

Others in Attendance

Alun Davies AS Aelod o'r Pwyllgor Cyllid ac o'r Pwyllgor Materion Allanol a Deddfwriaeth Ychwanegol
Member of the Finance Committee and of the External Affairs and Additional Legislation Committee
David Rees AS Cadeirydd y Pwyllgor Materion Allanol a Deddfwriaeth Ychwanegol
Chair of the External Affairs and Additional Legislation Committee
Jeremy Miles AS Y Cwnsler Cyffredinol a’r Gweinidog Pontio Ewropeaidd
The Counsel General and Minister for European Transition
Katie Wilson Cyfreithiwr, Llywodraeth Cymru
Lawyer, Welsh Government
Llyr Gruffydd AS Cadeirydd y Pwyllgor Cyllid
Chair of the Finance Committee
Sophie Brighouse Dirprwy Gyfarwyddwr, Polisi, Llywodraeth Cymru
Deputy Director, Policy, Welsh Government

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Sarah Sargent Ail Glerc
Second Clerk

Cynnwys

Contents

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau 1. Introduction, apologies, substitutions and declarations of interest
2. Memorandwm Cydsyniad Deddfwriaethol ar Fil Marchnad Fewnol y DU: Sesiwn dystiolaeth 2. Legislative Consent Memorandum on the UK Internal Market Bill: Evidence session
3. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o’r cyfarfod ar gyfer eitem 4 3. Motion under Standing Order 17.42 to resolve to exclude the public from the meeting for item 4
5. Offerynnau negyddol arfaethedig nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B 5. Proposed negative instruments that raise no reporting issues under Standing Order 21.3B
6. Offerynnau nad ydynt yn codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3 6. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3
7. Offerynnau sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3 7. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3
8. Offerynnau sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3 - trafodwyd yn flaenorol 8. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 - previously considered
9. Is-ddeddfwriaeth sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.7 9. Subordinate legislation that raises issues to be reported to the Assembly under Standing Order 21.7
10. Offerynnau Statudol y mae angen cydsyniad y Senedd arnynt (Memoranda Cydsyniad Offerynnau Statudol) 10. Statutory Instruments requiring Senedd consent (Statutory Instrument Consent Memorandums)
11. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C 11. Written statements under Standing Order 30C
12. Cytundeb Cysylltiadau Rhyngsefydliadol rhwng y Senedd a Llywodraeth Cymru: Adroddiad Blynyddol 12. Inter-institutional Relations Agreement between the Senedd and the Welsh Government: Annual Report
13. Papurau i’w nodi 13. Papers to note
14. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod 14. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting

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

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

Cyfarfu'r pwyllgor drwy gynhadledd fideo.

Dechreuodd y cyfarfod am 10:00.

The committee met by video-conference.

The meeting began at 10:00. 

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

I welcome Members to this virtual meeting of the Legislation, Justice and Constitution Committee. In accordance with Standing Order 34.19, I've determined that the public are excluded from the committee's meeting in order to protect public health. In accordance with Standing Order 34.21, notice of this decision was included in the agenda for this meeting. This meeting is being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual. Aside from the procedural adaptation relating to conducting proceedings remotely, all other Standing Order requirements remain in place.

Can I also welcome members of the Finance Committee and the External Affairs and Additional Legislation Committee to this meeting? So, in accordance with Standing Order 17.49, David Rees, Laura Anne Jones, Llyr Gruffydd—sorry, Laura Anne Jones is unable to join us—Llyr Gruffydd and Alun Davies are joining for this morning's session with the Counsel General.

The usual housekeeping arrangements apply. If there are any declarations of interest, they can be made now or after the evidence session. I don't see any made now.

2. Memorandwm Cydsyniad Deddfwriaethol ar Fil Marchnad Fewnol y DU: Sesiwn dystiolaeth
2. Legislative Consent Memorandum on the UK Internal Market Bill: Evidence session

So, we go straight on to item 2 of the agenda, which is the legislative consent memorandum on the United Kingdom Internal Market Bill: evidence session. I welcome the Counsel General, Jeremy Miles; Sophie Brighouse, deputy director from the Welsh Government; and Katie Wilson, Government lawyer. We have an hour for this session. We've all, obviously, had previous sessions in respect of the internal market Bill, so we're particularly looking at developments since those earlier evidence sessions that the various committees have had. If I can perhaps start off by asking the Counsel General if he could provide us with an overview of the developments in relation to the Bill, and in particular the Welsh Government's current position on the current state of the Bill as it proceeds through Parliament.

Thank you, Chair, for that. Well, our overall strategy as a Government has been to amend the Bill to make it one that is capable of being consented, but I'm not myself optimistic we'll see sufficient change of direction on the part of the UK Government as would be necessary. We're now obviously seeking to get the Bill amended in the House of Lords and, in parallel with that, having official-level discussions and ministerial-level discussions as well. We can't, obviously, table our own amendments in the Lords, so what we've done is to publish our own model amendments and use those to seek to persuade peers to lay parallel amendments to those, effectively, and all of our model amendments, I think, apart from one, which was slightly changed, have been tabled in the form that we were hoping they would. We've worked with peers across all parties and with crossbenchers as well. Members of the committee will have been following the proceedings, no doubt, in the Lords and will have seen that the amendments have been getting support there—very good support, I would say. Both the Second Reading on the nineteenth of last month and the two days of committee have shown, I think, that our concerns about the Bill are very widely shared.

Alongside that, as I say, we've been having official-level discussions, ministerial discussions as well, and we've been engaging with the other devolved Governments, in particular the Scottish Government, who, whilst they don't agree with the principle of the internal market, if you like, have also been commending our amendments to the Lords. But, basically, our overall position, Chair, hasn't changed: the Bill isn't needed and it'll have a significant impact on devolution in the UK.

Thank you, Chair. Good morning, Counsel General. You said you've had discussions with Ministers and that officials have had discussions with their counterparts in Westminster. I think it's the ministerial agenda that is important because they are the ones who will drive the policy here; our officials basically respond to those policies. Can you give us an update as to what discussions you've had with the UK Government, and in particular in relation to the amendments that you are putting as models? And then, if the House of Lords does make those amendments—obviously, we are still waiting to see—what commitments or what discussions have you had with UK Government in relation to leaving those amendments there and not going back to where we were with the UK European Union (Withdrawal Agreement) Bill, when amendments were put in place and then they were taken away again by the Commons?

10:05

The discussion started with, I suppose, clarifying our respective positions in the usual way, identifying areas where the Bill needed to be amended, and, really, an attempt to probe the rationale, if you like—the reasons for provisions in the Bill. Obviously, you'll remember that we were not engaged as a Government in the development of the Bill, so some of that has been about understanding why the provisions are as they are, to be honest, initially at least.

At a ministerial level, I met with Chloe Smith, who is the UK Government Minister with carriage of the Bill on 28 September, and we tasked officials to work together after that. There have been a series of meetings following that. We then met again on 13 October to, effectively, have a stock take of where we were and, really, from my point of view, to press our top concerns, if you like. So, officials have discussed since then, but to the point you were asking—what does that mean in practical terms—the UK Government, I suppose, are interested in our amendments, at least some of them, and in, somehow, the detail of how it might work, but I've had no assurance that there'll be any action, if you like, resulting from that or from amendments in the Lords.

So, the last meeting you had at a ministerial level was 13 October, and at that point there was interest shown but no commitments to actually addressing the Welsh Government's concerns in relation to the Bill.

Well, on 13 October there was a meeting with Chloe Smith, but the internal market Bill is a reasonably regular feature in almost any ministerial meeting that I have, for obvious reasons. So, I take every opportunity of pressing our concerns, but that was the last one on the detail of the Bill, with Chloe Smith, and, yes, I didn't have any assurances that our amendments would be—[Inaudible.]

And have you had any assurances since in the other meetings you said you've had?

Counsel General, just on that point, Lord Callanan in the House of Lords has indicated quite a high degree of intransigence to any substantive amendments to the Bill. Does that cause you any concern?

My suggestion would be that it's not a very wise position to take. The range of voices in the House of Lords—I won't need to remind this committee—has been broad and deep from all parties and none, and the range of considerations have extended, as you'd expect, to the Northern Ireland protocol, but, actually, very significantly, into the risk to devolution, really reflecting the arguments we've been making. So, I think a wise Government would take heed and respond accordingly.

Diolch yn fawr, Cadeirydd, a bore da, Cwnsler Cyffredinol. A throi yn benodol i feddwl am fanylion gwelliannau Llywodraeth y Deyrnas Unedig, rŷch chi'n gwybod yn y pwyllgor yma dŷn ni'n manylu dros bethau fel hyn. Allaf i ofyn ichi beth ydych chi'n meddwl, fel Llywodraeth Cymru nawr, am welliannau Llywodraeth y Deyrnas Unedig y gwnaethon nhw eu gosod yn ystod taith y Bil drwy Dŷ'r Cyffredin, ac yn benodol cymal 3, sydd yn gofyn gofynion dull gweithredu, hynny yw, y manner of sale requirements; cymal 16(6) ar gwmpas y gofynion rheoliadol a allai ddod o fewn Rhan 2; a hefyd Atodlen 3 o welliannau i Ran 4 a'r grŵp gorchwyl swyddfa'r farchnad fewnol—y tri gwelliant penodol yna o ochr Llywodraeth y Deyrnas Unedig? Beth ydych chi'n ei feddwl ohonyn nhw fel Llywodraeth Cymru?

Thank you very much, Chair, and good morning, Counsel General. If I could turn to look specifically at the details of the UK Government amendments, you will know that this committee does look at the minutiae in these issues. Could I ask you what you as a Welsh Government think of the UK Government's amendments to the Bill that were tabled during the passage of the Bill through the House of Commons, and looking specifically at clause 3 on the manner of sale requirements, clause 16(6) on the scope of the regulatory requirements that could fall within Part 2, and also Schedule 3 and amendments to Part 4 and the office for the internal market task group? So, it's those three specific UK Government amendments that we're looking at. What's your view of them as Welsh Government?

Ar y cyfan, os ŷch chi'n edrych ar sgôp y Bil a'r rhestr o bryderon sydd gyda ni fel Llywodraeth sy'n cael eu rhannu gan eraill, mae'r gwelliannau mae Llywodraeth y Deyrnas Gyfunol wedi dod ymlaen â nhw, a dweud y gwir, yn ymylol i'r rhestr hwnnw o bryderon. Gwnaf i jest ddweud yn fras beth yw'r ymateb i'r tri phwynt yna, gan eich bod chi wedi gofyn yn benodol. O ran cymal 3, rwy'n deall mai'r bwriad yw sicrhau nad yw pethau fel minimum alcohol unit pricing yn dod o fewn cwmpas yr egwyddorion. A dweud y gwir, dyw e ddim yn diogelu newidiadau yn y dyfodol i hynny, felly os bydd unrhyw Lywodraeth yn y dyfodol yng Nghymru eisiau gwneud newidiadau i hynny, dyw'r rheini ddim yn cael eu diogelu gan y gwelliannau.

O ran cymal 16, mae hyn, a dweud y gwir, yn golygu, hyd yn oed os oes gyda chi'r rheoliadau mewn grym nawr a dŷn nhw ddim yn cael eu newid yn y dyfodol—hynny yw, yng Nghymru—a bod rheoliadau cyffelyb mewn rhannau eraill o'r Deyrnas Gyfunol yn cael eu newid, fyddai e ddim yn bosibl gorfodi pobl i gyd-fynd â rheoliadau Cymru yn y dyfodol, sydd yn amlwg yn peri pryder. Wedyn, o ran yr Atodlen, mae yna ymgais yma, rwy'n credu, i ddelio ag un o'r pryderon sydd gyda ni—hynny yw, bod y CMA a'r OIM yn atebol i'r Llywodraethau datganoledig—ond dyw e ddim yn mynd yn ddigon pell o gwbl. Mae ein gwelliannau ni yn llawer mwy sylweddol na'r gwelliannau sydd wedi cael eu cynnig gan Lywodraeth y Deyrnas Gyfunol.

Generally speaking, if you look at the scope of the Bill and the list of concerns that we as a Government have, which are shared by others, the UK Government's amendments are peripheral to those concerns. I will just tell you, broadly speaking, what the response is to those three points, as you asked specifically. In terms of clause 3, I understand that the intention is to ensure that things such as minimum alcohol unit pricing don't fall within the compass of the principles. But, in reality, it doesn't safeguard any future changes to that, so if any future Government in Wales would wish to make changes to that, then those wouldn't have been safeguarded by those amendments.

In terms of clause 16, this, in reality, means that even if you have regulations in force now that aren't changed in future in Wales, but similar regulations in other parts of the UK are amended, it wouldn't be possible to require people to comply with Welsh regulations in future, which clearly is a cause of concern. Then, in terms of the Schedule that you mentioned, there is an effort here to deal with one of the concerns that we do have, namely that the Competition and Markets Authority and office for the internal market should be accountable to the devolved Governments, but it doesn't go far enough at all. Our amendments are far more substantial than the amendments put forward by the UK Government.

10:10

Diolch yn fawr am hynna. Mae hynna'n glir iawn. Allech chi ymhellach roi syniad i ni o bryd mae Llywodraeth Cymru yn bwriadu gosod memorandwm cydsyniad deddfwriaethol atodol i adlewyrchu'r gwelliannau y mae Llywodraeth y Deyrnas Unedig wedi'u gwneud? Pryd ydych chi'n bwriadu gosod memorandwm cydsyniad deddfwriaethol atodol o'n blaenau ni yn y Senedd?

Thank you for that. That was very clear. But further to that, can you give us a view on when the Welsh Government plans to table a supplementary legislative consent memorandum to reflect the amendments made by the UK Government? When do you intend to lay that supplementary LCM before the Senedd?

Rŷn ni'n gobeithio, wrth gwrs, y bydd mwy o welliannau yn dod yn sgil cysidro Tŷ'r Arglwyddi, felly rwy'n credu ei fod e'n gwneud synnwyr i aros tan fod cynnwys y Bil wedi setlo ychydig mwy nag yw e nawr. Ond byddwn i'n gwerthfawrogi barn y pwyllgor ar hynny maes o law.

Well, we hope that there will be further amendments to the Bill following consideration in the House of Lords, so I think it makes sense to wait until the content of the Bill is more settled than it is now. But I would appreciate the committee's view on that in due course.

Diolch am hynna—clir iawn, eto. Mae fy nghwestiwn olaf i ynglŷn â'r ffordd fwy cyffredinol yr ydych chi'n ymdrin â Bil y farchnad fewnol fel Llywodraeth Cymru. Wrth gwrs, mae'r papur briffio ysgrifenedig, fel Llywodraeth, ar y Bil yma sydd wedi cael ei ddarparu i'r pwyllgor yma yn nodi nad yw'r Bil fel y cafodd ei ddrafftio yn angenrheidiol o gwbl a'i fod yn ddatrysiad sy'n chwilio am broblem. Dwi'n dyfynnu'ch geiriau chi yn fanna. Felly, o gymryd hynna, allwch chi felly egluro pam mae Llywodraeth Cymru yn ceisio diwygio'r Bil yn hytrach na'i wrthwynebu?

Thank you for that—very clear, once again. The final question from me is in terms of the more general approach you're taking to the internal market Bill. The Welsh Government written briefing on this Bill provided to this committee states that the Bill as drafted,

'is not necessary, and is a solution in search of a problem'.

I'm quoting your words there. So, taking all of that into account, can you explain why the Welsh Government is seeking to amend the Bill rather than to oppose it outright?

Jest i fod yn glir, rŷn ni yn gwrthwynebu'r Bil. Rŷn ni'n dweud nad oes angen am y Bil. Rŷn ni'n credu yn, ac yn arddel, yr egwyddor o farchnad fewnol gref ar draws y Deyrnas Gyfunol sydd â buddiannau pobl Cymru a busnesau Cymru yn sicr, ond nid dyma'r ffordd i sefydlu a sicrhau hynny. Ond y ffaith wleidyddol, ddeddfwriaethol yw bod Llywodraeth y Deyrnas Gyfunol wedi dod â'r Mesur o flaen y Senedd yn San Steffan. Felly, mae hynny wedi digwydd, a'r cwestiwn i ni fel Llywodraeth yw'r ffordd rŷn ni'n ymateb i hynny. Does dim pwynt esgus nad yw e wedi digwydd. Felly, mae gyda ni ddau ddewis: un yw i ymwneud â'r Bil a cheisio ei wella fe, er nad ŷm ni'n credu bod angen am y Bil; a'r ail yw i beidio gwneud hynny. Wel, rwy'n credu bod Llywodraeth yr Alban mewn lle tebyg, er nad ydyn nhw'n cytuno ag egwyddor y Bil. Mae angen sicrhau ein bod ni'n cael gwelliannau i'r Bil, os gallwn ni, oherwydd, os daw e'n Ddeddf gwlad, bydd angen lleihau impact negyddol y Bil, a'r Act fel bydd hi amser hynny.

Just to be clear, we do oppose the Bill. We're saying that it's unnecessary, and we believe in and support the principle of a strong internal market across the UK that would safeguard the interests of the people of Wales and Welsh business, but this isn't the way to ensure we achieve that. But the political and legislative fact of the matter is that the UK Government has brought the Bill before the Parliament in Westminster. That has happened, and so the question for us as a Government is how we respond to that. There's no point pretending it hasn't happened. So, we have two choices. One is to engage and to try and amend the Bill, although we don't believe it's necessary, and the second approach is to not do that. The Scottish Government is in a similar position, although they don't agree with the principle of the Bill. We need to ensure that we can achieve amendments to the Bill, if possible, because, if it is enacted, we need to reduce the negative impact of the Bill, and the Act as it will be at that point.

Thank you, Chair. Just pursuing this point that the Welsh Government agrees with the principle of the Bill but doesn't think a statutory vehicle is the best way of proceeding and you'd rather other arrangements, basically, on the model of common frameworks, and presumably deepening some of those and extending them, would your approach in terms of what would need to be done by the alternative arrangements be similar to what's in the amendments that you've suggested as a model for others to pick up in the House of Lords—for instance, the market regulator having a Welsh representative, and generally more shared Government mechanisms, I suppose?

Yes, that is essentially a summary of it. On the OIM, I think the five amendments we've put forward essentially match the kind of changes that we want to see, and I think there have been other amendments to remove provisions of the Bill. So, they are very four-square on what we want to see as changes and the alternative vision that we have. But on the point of the market access principle, which I think is where most of this comes into play in terms of the detail of how two different approaches meet each other, if you like, our approach in the amendments is to create time and space, if you like, for the common frameworks programme to bear fruit. We think that is the way for delivering an internal market. So, our amendments effectively switch off the broad application of market access principles, and so in order for them to be introduced, they would effectively be introduced by exception in the final analysis, if the common frameworks haven't worked, essentially—haven't been able to secure an agreed outcome between the four Governments.

So, you won't see the words 'common framework' in the amendments, but the Schedule in the first set of amendments effectively maps that ground and essentially defers the market access arrangements so that common frameworks come centre stage, if you like. That's a comparable arrangement to, as I'm sure you'll remember, the provisions that we agreed in the inter-governmental agreement, which were designed to limit the use of section 12 freezing powers. And obviously they've worked very effectively, because those freezing powers have never been used. So, it's a similar sort of approach from a technical point of view, if I can put it like that. So, the architecture of the amendment does that.

We are firmly of the belief that common frameworks can deliver a better set of outcomes, and I think we have also said, as you indicated, that if it is the UK Government's view that there needs to be a common framework to cover some part of the internal market that isn't covered, then fine, if they want to make a proposal, obviously we'd engage on that. But I think common frameworks is the way to take this forward, and the amendments basically reflect that. 

10:15

And so—and this is slightly arcane, for me to push this point, but I have a reputation of going down that track occasionally, perhaps—a statutory approach, if it had been co-sponsored by the devolved administrations and the UK Government, would that have been at least as good as the arrangements achieved through more inter-governmental methods and let's call them common frameworks, or is this something that is inherently dangerous, even if you had a well-drafted statute to deal with, for something as important as this and given the need for flexibility for a change in circumstances and the inability to anticipate all the developments that are likely to occur in such a vital area of life? Would a statutory approach have been perfectly acceptable if properly drafted?

Well, there are aspects of the common frameworks that we have said throughout may require statutory underpinning, and we've seen some of that. The product of the fisheries discussions has been to reflect some provisions in legislation. So, we've never had an in-principle objection to the use of statute to underpin aspects of the common frameworks. But you were suggesting how one might design this together in a way that did a better job; well, not that it's a helpful way of looking at it at this point, but we would have started from a different place, wouldn't we, effectively? And what we are doing now is ameliorating the excesses of the UK Government approach in this Bill. The fundamental problem is—and I know that this is a session that looks at the amendments, rather than the Bill as introduced, but just to finally address this one point—the existence of a broadly based market access principle without any reference to the devolution settlement or a need to agree is itself a disincentive to the operation of what we would suggest is a more nimble, low-bureaucracy, fast-moving, responsive way of dealing with the internal market, which I'm sure we would all think is the right outcome. 

Can I thank you for that? That's helpful. And then, finally from me, you've not suggested any model amendment to deal with Part 5 of the Bill and the Northern Ireland protocol, though I know that you don't like the protocol and the implications for international law on that. But if your other amendments, in some form, influence the Bill but nothing happened other than what is currently proposed for Part 5, would, on the basis just of Part 5, you recommend to the Senedd that consent is not given? How fundamental is Part 5 to the Welsh Government? 

It is inconceivable that the Government would recommend to the Senedd a piece of legislation that breaches international law, Chair. There's no question of that. The reason for there not being an amendment in the set of model amendments was there was never any question but that the House of Lords would bring forward amendments in this space. So, we focused our efforts on those areas where, perhaps, visibility of the issue might not be as great. And I think that set of assumptions have come to pass, really. 

10:20

Thank you, Chair. Counsel General, you've often referred to the Bill, and you've just mentioned, in response to David Melding, the question of devolution and the impact upon the devolution settlement in relation to this, and many stakeholders have actually stated that they consider the Bill to be an unprecedented attack on the devolution settlement in Wales—including yourself on that point. Given that statement, and given the views of so many stakeholders, are you confident that—and I would assume the Welsh Labour Government's amendments would address those points—those amendments will ensure that, if the Bill is amended appropriately, it will not have the same impact upon devolution as it does at the moment?

Yes, Chair, and that's essentially the point of the amendment—to track the concerns that we have about the impact of the devolution settlement and fix them within the context, obviously, of a constitutional settlement that doesn't entrench where the backstop, if you like, is Parliament, for reasons that we don't need to rehearse here. But whether it's the core market principles or whether it's the financial assistance powers or the state aid reservation, fresh reservation about state aid and subsidies, all the amendments that we put forward are designed to address those concerns, and if they were to be passed—I'm not optimistic—but if they were to be passed, we would regard those concerns as substantially addressed. 

Do you need all of those amendments to be passed to be confident that you'd do it, or is there a number you can say 'I can live with' or 'We can live with' and others you—? Which ones are essential? Which ones are not? 

We're not really in the kind of territory of hierarchy of needs here, Chair. We've got very significant issues in all parts of the Bill. Now, as I say, these may not be the only ways of addressing these concerns, so if the UK Government want to bring forward amendments that do the same job, then—. You know, we're not precious about the language, the point here is about delivering the outcome, but there is a range of outcomes. Some of the amendments we've put forward to be a little fuller perhaps, have a slightly belts and braces approach. So, in the market access space, some of them have a belt and braces approach, so certainly that is for discussion, if you like. There are very straightforward amendments in relation to both the financial assistance provisions and the state aid provisions, which I think reflect long-standing concerns amongst certainly the Government and amongst the Senedd as well. 

There were similar concerns, obviously, in the EU withdrawal Bill, and I know you had many discussions with the House of Lords representatives at that point, but amendments through the House of Lords—some were accepted, but, of course, when it went back to the Commons, they were removed again. So, you couldn't persuade the UK Government then—what gives you the confidence you can actually get the UK Government to accept those amendments now? 

Well, I hope I don't give the impression I'm confident on that, because I'm not confident. I hope, and I think there's a strong case, and I think that a responsive Government would respond to that case, but I don't want to suggest that I'm confident those amendments will be accepted by the UK Government. I think the two—. You compare it with the EU withdrawal agreement Bill. I think, I would argue, that was was a different kind of legislation in a different context. So, the Lords were obviously less likely to wish to engage with that Bill, because it was a core part of the Government's election manifesto. So, I think the level of amendment is obviously, in that context, less, if at all. I think we're in a very different place with this Bill, and I think that's evidenced in what the House of Lords is doing. There is a significant range of criticism that is coming forward in the Lords, and I expect the UK Government to listen to that.

I just wonder what will be your strategy if the UK Government remains unyielding, basically, on your amendments and concerns, and this Bill does become law. Will you seek to mitigate via inter-governmental agreement, which—? You'd be fairly practical and realistic with laws that you're not fully agreed with, but you need to influence, and ensure they operate in the best way they can, then, even if they're outside what you would have consented to. So, what would be the Welsh Government's strategy, in terms of Government to Government, so Welsh Government to UK Government, on issues that remain of real concern to you? 

Well, conceptually, our starting point is, since we want to put the emphasis on common frameworks, that inter-governmental relations and inter-governmental agreements ought to be driving it, and that's in a macro sense, if you like. But in terms of—which I think is what you were asking, really—how you correct things in the Bill that would not be satisfactory, I just think it's too early to tell, really. Clearly, there are some objections to the Bill that clearly aren't capable of being dealt with by inter-governmental agreements because they change the devolution settlement and provide powers for the UK Government in devolved areas, so obviously those are just unacceptable. But whether there are, at the margins, errors that inter-governmental arrangements might help ameliorate, I think it's obviously too early to tell at this point. The Bill is having a really tough time in Parliament, so I think we need to see what it looks like when it comes out the other end. 

10:25

Well, Counsel General, let's move on to some areas around the Northern Ireland protocol and aspects of international law. Carwyn Jones. 

Thank you, Chair. Bore da, Gwnsler Cyffredinol. Northern Ireland is a place that I know very well; I was raising the issue of Northern Ireland many years ago, at the time of the Brexit referendum, and here we are, it's still causing issues. But Part 5 of the Bill permits UK Ministers to depart from their obligations under the withdrawal agreement and other legislation in the course of implementing the Northern Ireland protocol. Now, Counsel General, I believe on 15 September you advised the Senedd in Plenary that you found the provisions of the Bill in that regard, and I quote, 'utterly repugnant'—strong words. The amendments that have been put to the Bill since then— do they do anything to change your mind?

Well, you have been raising the question of Northern Ireland from the very start, actually, at a point when others, perhaps, weren't giving it so much focus, but I think the direction of travel since then has been one that hasn't really inspired any confidence. So, the amendments that the UK Government had brought forward in this space, so allowing some element of judicial review on the human rights strands and some extra procedural protections, if you like, or reassurance, don't really change the substance of it and certainly haven't met our concerns, nor, I think, the Lords' Constitution Committee's concerns either. So, our position on this part of the Bill is we will support any amendment that takes out the provisions that breach international law. 

Thank you, Counsel General. We know that Welsh Ministers have been granted broad regulation-making powers under the 2020 withdrawal Act to implement parts of the Northern Ireland protocol within areas of devolved competence, but the Bill, if passed, says, of course, that Welsh Ministers have to have special regard to a number of matters when exercising functions for this purpose and to the movement of goods within the UK—'special regard', a strange, curious phrase that's used there. What does that mean, that phrase, in your view, and what is the overall effect of the powers that have been granted to Welsh Ministers in terms of how they might be implemented? 

Well, can I make a point first on the point that you made about the movement of goods between Northern Ireland and the rest of the UK? Obviously, as you recall, one of the issues here is, 'How do you define which goods get the easiest access, if you like, into Great Britain?', and the clarification, to the extent we've had it from the UK Government to date, raises serious questions in our mind about the possibility—serious possibility—of encouraging rerouting of trade from Holyhead through other ports in other parts of the UK as a consequence of how the Northern Ireland goods are being defined. So, we think around 30 per cent of trade through Holyhead probably could conceivably be affected by this provision; what it basically says is that products exported from Northern Ireland or in transit from Northern Ireland into other parts of Great Britain directly, rather than through the Republic, will have an easier passage, and you can just imagine the consequences of that, so we think that's a significant risk. 

On the point that you made around the special regard, in general terms, I don't think that's as likely to affect the powers that Welsh Ministers will wish to or will need to use as it will the powers for UK Government Ministers, simply because of what they relate to. We share the concerns of the House of Lords committee here, which has said, effectively, by elevating the status of a small group of things above others, then you're distorting the range of considerations that you'd want to take into account. But, from our point of view, we want to make sure that we are taking the fullest range of considerations into account before we exercise any of our functions, obviously.

10:30

A final question from me: you will know, Counsel General, that under the ministerial code, Welsh Ministers have a duty to comply with the law, including international law and treaty obligations. Now, it seems to me that if this Bill passes as it stands, UK Ministers will be able to direct Welsh Ministers to act in a way that breaches the Welsh ministerial code. Is this part of a plot by the UK Government, or is this something they haven't realised? It seems to me that all Welsh Ministers in the future might be placed into a position where they have no choice but to breach their own ministerial code. Is that something that concerns you?

Yes, and I can't imagine that Welsh Ministers would act in that way in the future, for reasons that we would all understand. But I think the point that you make is absolutely right. There's certainly, within the architecture of the Bill, a concern around this. Again, these provisions relate to quite specific areas, so how that turns out in practice is a question that remains to be seen. There are two clauses, substantively, in this area that trigger, if you like, this concern. One is around exit procedures for goods moving from Northern Ireland directly to Great Britain—we as a Government here would not have a role to play in that space—and the second is in relation to state aid, which I suppose might be one in which there is a broader set of concerns. But certainly, we share the anxiety that you raise in your question.

Just one point from me on that, Counsel General: in the debate in the Lords, Lord Callanan raised the issue of separate legislation in respect of procurement. Has there been any discussion with Welsh Government over that? Because that just seems to be another element that flows from these current discussions.

The UK Government is planning to bring forward procurement legislation, Chair. But in relation to the internal market Bill—I'll ask either Sophie or Katie to remind me if I'm misremembering here—the White Paper did have some references to procurement coming within the compass of the Bill. The provisions of the Bill when published didn't include the clauses that we feared they might, but I might ask Sophie to remind me if I'm misremembering.

[Inaudible.]—Counsel General, but I can check.

Okay, thank you. If there is anything, we'd appreciate a note on that. Llyr Gruffydd.

Diolch yn fawr iawn, Gadeirydd. Wrth gwrs, fy niddordeb pennaf i yw Rhan 6 ar yr elfen gyllidol, ac rôn i jest eisiau gwybod, a dweud y gwir, a ydych chi fel Llywodraeth wedi cael unrhyw wybodaeth bellach ynglŷn â bwriad Llywodraeth y Deyrnas Unedig o safbwynt y ffordd mae nhw'n bwriadu defnyddio'r pwerau cymorth ariannol maen nhw yn gobeithio eu cael yn y Bil. 

Thank you very much, Chair. Of course, my main interest in this is in Part 6 and the financial element, and I just wanted to know whether you as a Government have received any further information on the UK Government's intent in terms of how they intend to use the financial assistance powers that they hope to achieve within the Bill.

Yr ateb byr i'r cwestiwn yw 'na'. Dwi wedi codi'r cwestiwn fy hunan fwy nag unwaith gyda Gweinidogion. Dwi ddim wedi cael ateb i hynny. Does dim sicrwydd wedi'i roi ynglŷn ag impact yr elfen hon ar y block grant. Does dim ar wyneb y Bil sy'n rhoi unrhyw sicrwydd i ni fod ffordd adeiladol o ddefnyddio'r pwerau yma. Rŷn ni'n clywed am y bwriad o weithio mewn partneriaeth; wel, mae'n ffordd ryfedd i weithio mewn partneriaeth os ŷch chi'n ceisio tanseilio'r rheswm am bartneriaeth yn y lle cyntaf. Dwi ddim yn credu mai cwestiwn o weithio gyda ni sydd ar waith yma, ond dwi'n credu mai cwestiwn o weithio o'n hamgylch ni yw e.

The brief answer to that question is 'no'. I have raised the issue myself more than once with Ministers. I've not received a response. We've been given no assurances on the impact of this element on the block grant. There is nothing on the face of the Bill that gives any assurances to us that there is a constructive way of using these powers. We hear about the intentions to work in partnership; well, it's a very strange approach to partnership working if you're trying to undermine the principal reason for partnership. I don't think it's an issue of working with us; I think it's an issue of working around us.

Dwi'n credu bod hon yn enghraifft arall o'r ffaith mai geiriau gwag yn aml iawn yw'r honiad o gydweithio. Ond dyna fe; cawn ni weld beth fydd y canlyniad. Ydych chi yn rhagweld, felly, y bydd angen deddfwriaeth er mwyn bod yn sail i weithredu'r shared prosperity fund neu unrhyw gynlluniau eraill fyddai'n disodli cyllid yr Undeb Ewropeaidd?

I think this is another example of the fact that any claim of collaboration is an empty one. But we'll see what the upshot of this is. Do you anticipate, therefore, that legislation will be required in order to operate the UK shared prosperity fund, or any other replacement UK schemes for EU funding?

Dŷn ni ddim wedi gweld digon o wybodaeth—rôn i'n mynd i ddweud 'manylion', ond dyw e ddim wedi cyrraedd y lefel hynny, hyd yn oed—am y shared prosperity fund. Felly dyw e ddim yn bosib ateb eich cwestiwn chi yn y ffordd uniongyrchol hynny. Ond beth gallaf ei ddweud yw bod y cynlluniau sydd gyda ni fel Llywodraeth, os gwnaiff Llywodraeth y Deyrnas Gyfunol gadw'u gair—. Dyw'r trefniadau sydd gyda ni yma yng Nghymru i ddodi ar waith gynlluniau amgen yn y dyfodol ddim yn golygu bod angen deddfwriaeth gynradd i wneud hynny.

We haven't seen enough of the detail; we haven't seen any detail in terms of the shared prosperity fund. So, in a way, it's not possible to answer your question directly. But what I can say is that the plans we have in place, if the UK Government stick to their word—. The arrangements that we have in place here in Wales to implement alternative plans in future wouldn't require primary legislation. 

10:35

Mae gyda fi deimlad efallai fy mod i'n gwybod yr ateb i'r cwestiwn nesaf, achos mae thema eich ymatebion chi'n ddigon clir, ond ydych chi wedi cael unrhyw wybodaeth bellach gan Lywodraeth y Deyrnas Unedig ynghylch cynigion ar gyfer cyfundrefn rheoli cymhorthdaliadau yn y Deyrnas Unedig, ac efallai pa rôl fyddai gan Lywodraeth Cymru a Llywodraethau datganoledig eraill i'w chwarae yn hynny?

I have a feeling that perhaps I know the answer to the next question, because the theme of your responses has been quite clear, but have you received any further information from the UK Government on proposals for a UK subsidy control regime, and what role the Welsh Government and other devolved Governments would play within it?

Wel, dydw i ddim eisiau swnio'n ddiflas am hyn, ond yr ateb yw dydyn ni ddim wedi bod mewn trafodaethau ynglŷn â hynny. Dyw Llywodraeth y Deyrnas Gyfunol, wrth gwrs, ddim yn cydnabod bod gan y Llywodraethau datganoledig rôl yn hynny o beth, er bod y diwygiad buasen nhw'n ceisio'i wneud drwy'r Bil hwn i'r setliad datganoli yn awgrymu bod y setliad presennol, wrth gwrs, yn adlewyrchu ein hegwyddor ni bod hynny wedi'i ddatganoli. Mae'r Llywodraeth yn San Steffan wedi dod ymlaen ag SI sy'n dileu deddfwriaeth state aid, a dŷn ni fel Gweinidogion ddim wedi cael gwahoddiad i gytuno i hynny, ond rydyn ni wedi ysgrifennu i ddweud y dylen ni fod wedi cael gwahoddiad i gytuno, ac rŷn ni'n gwrthod rhoi ein cydsyniad gan ein bod ni ddim yn cytuno gyda'r hyn sy'n cael ei arddel.

Well, I don't want to sound repetitive, but the answer is we haven't had any discussions on that. The UK Government, of course, doesn't recognise that the devolved Governments do have a role in that regard, although the change that they're seeking to make through this Bill to the devolved settlement reflects our principle that that is devolved. Now, the Westminster Government has brought forward a statutory instrument that revokes state aid legislation; we as Ministers haven't had an invitation to agree to that, but we have written to say that we should have that invitation, and we refuse to give our consent because we don't agree with what's been brought forward.

So beth mae hyn yn ei ddweud am gyflwr y Deyrnas Unedig, te? Yn sicr, dyw hi ddim yn undeb gyfartal, ydy hi, o safbwynt y gwahanol lywodraethau a seneddau.

So what does this tell us about the state of the UK? Certainty, it's not a union of equality in terms of the various governments and parliaments.

Wel, yn y maes penodol hwn, dyw'r Llywodraeth yn San Steffan ddim wedi derbyn erioed ei fod e wedi'i ddatganoli. Ond o ran yr egwyddor rydych chi'n gosod, hyd yn oed mewn ardaloedd sydd wedi'u datganoli—hynny yw, lot o lefydd eraill yn y Bil—wrth gwrs, dŷn ni ddim yn gweld y berthynas hafal y dylai'r pedair Llywodraeth ei chael rhyngddyn nhw.

Well, in this specific area, the UK Government has never accepted that it's devolved. But in terms of the principle that you're referring to, even in the other devolved areas within the Bill, of course, we don't see that equal relationship that the four nations should have. 

Thank you very much. Just following on from Llyr's line of questioning there, the Welsh Government accepts that there may be a need for UK-wide legislation to manage any subsidy regime that exists within the UK—you're nodding, so I assume that's the case. So, for me to understand clearly, the issue is not the fact of legislation that would cover all the different countries of the United Kingdom, but the way in which that legislation operates, the way it is constructed and then controlled. I think events over the last few days have demonstrated—partly what Llyr has said—that the United Kingdom Government finds it difficult to act for the United Kingdom outside England, and sees itself as a Government of England first. Do you fear that the lessons that we've learned, possibly over the last few days, are something that, without democratic control and without legal control, we might see writ large after the potential passage of this Bill unamended? 

Yes, I do think that. I think it is in the interests of the UK and all its constituent parts to have a consistent state aid regime that applies in all parts of the United Kingdom; that certainly is our view as a Government and our preference as a Government. But it needs to be co-designed by the four Governments, and not imposed by one. We, ourselves, would have been very happy simply to retain the EU law provisions in relation to this, but even if that isn't the starting point, it needs to be co-designed by the four Governments. On the events of the last few days, what this demonstrates is that our current constitutional arrangements, designed as they are, inevitably put the UK Government in a position of conflict of interest in certain areas. It is the Government that is responsible for economic development in England. So, it is not consistent with that to also be the regulator, if you like, of a UK-wide subsidy regime. There needs to be a set of arrangements, co-designed and applied in parity across all four parts of the UK, recognising that each of the four Governments have their own responsibilities to their own territories for economic development. 

That is an interesting response, and, of course, that used to happen with the old European systems, where the Governments of the UK did work together very well. The Scottish Parliament's finance committee, I think it was, expressed a concern that the way that the Bill is worded and the current structure of the Bill may impact on the Scottish Parliament's tax-raising powers as well, because a subsidy, of course, can be a direct subsidy in terms of provision of state funding to provide an enterprise with some support over a period of time, or enterprises within a particular geographical region, but it could also, of course, be a subsidy in kind, if you like, whereby tax policy is used in order to provide competitive advantage, if you like, in a place like you represent and like I represent. So, do you, and does the Welsh Government, share the concern of that Scottish Parliament committee?

10:40

Well, you know, this is an example of the muddle that you get into if you don't engage the devolved Governments in designing this kind of legislation, really. On the face of it, you have a provision in the Bill that exempts all taxes from the provisions of it, but then, as you rightly say, it is certainly possible to think of circumstances where that might not be so straightforward, obviously, for the reasons that you give. So, there's a piece of work going on within the Government to better understand what the actual impact of that could be, and we're obviously engaging as well with the UK Government to understand that better, if you like. We haven't concluded that yet, Chair, but I'd be very happy to write to the committee with the conclusion of that further bit of thinking, if that would be helpful.

Counsel General, I just want to take you into a few wider constitutional issues. This committee would be failing in its duty if it didn't, yet again, raise issues around Sewel; a debate on these issues without mentioning Sewel would seem to me unheard of. But the early indications are that unless substantive change is made, Welsh Government will not be able to give consent to the internal market Bill. When Sewel was overridden with the withdrawal Bill, Welsh Government gave a fairly hard response to that. It then softened a bit after—I think it was—UK Government Minister Stephen Barclay's letter saying that that was really a one-off, it was a very exceptional piece of legislation et cetera, and that Sewel would be honoured. We now hear Lord Callanan again in the Lords indicating that they would override any objections from devolved Governments. Scotland has indicated again that it does not support this, and I suspect the same may well be the case for Northern Ireland. If that is the case, where does it leave Sewel and what are the implications, constitutionally, for the UK?

The first point that you made, Chair, is absolutely the right point. When we were looking at the UK Government proceeding without the consent of the three devolved Parliaments earlier in the year, it was made pretty clear, I felt, in correspondence both by Stephen Barclay and by Michael Gove—from memory—that the circumstances were exceptional and there were various other formulations that, bluntly, set the bar very high. Now, you could regard that, as I did at the time, as a positive in the sense of narrowing the scope for the UK Parliament proceeding in the absence of consent, which I'm sure we would all regard as the point of the Sewel convention. That set of circumstances does not apply in this legislation, and I think the UK Government would struggle to justify proceeding in the absence of consent from the devolved Parliaments. But the implications of doing that are extremely serious. We cannot have a position where the Sewel convention is hollowed out, effectively. We are not the only Government saying this, obviously. The Institute for Government as well as the devolved Governments has raised this, and I think we are at the point where if the UK Government proceed in the absence of consent, there needs to be a fundamental look at the arrangements that we have. Clearly, there is a need for a reform of Sewel in those circumstances. We've put forward proposals about codifying and articulating the 'not normally' principle, but I think there's a case for Sewel being amended from saying that the UK Parliament will—you know, taking away the reference to 'not normally' and effectively inserting the reference 'never'. That is the sort of reform that I think is—. We indicate that in 'Reforming our Union', don't we—the policy position that we published, I think, two years ago. So, I think we're in that territory, Chair. The Sewel convention in that context would need absolutely fundamental reform, it seems to me.

Counsel General, obviously Welsh Government wants to see success for amendments it proposes in respect of the Bill, but if those amendments aren't made, and the Bill remains substantively in the same format with, effectively, a whole series of red lines, and the UK Government chooses to override objections from the devolved Governments, what will Welsh Government do?

10:45

Well, we will make—. It'll strengthen our argument, Chair, for the need for fundamental reform. We've said—I've just articulated it now—that you cannot proceed in the current circumstances in the absence of consent. Our current devolution arrangements, Chair, are predicated on having a Government at the other end of the M4 that isn't systematically antagonistic to devolution principles. And so we need to have those principles respected. We need to have the sort of—. That strengthens the case for the kind of constitutional reform that we advocate as a Government, bluntly, and you've seen that set out in 'Reforming our union: shared governance of the UK'. It's about moving much more towards a federal system—a UK council of Ministers, a proper application of a subsidiarity principle to all areas of policy and Government initiative, based on sovereignty from the people, not Parliament, and, as I say, reform of the Sewel convention. There's a package of reforms there that will become more urgent and the case for them will be more strongly made if the UK Government proceeds in the absence of consent in the circumstances.

You said on 20 September in your statement in Plenary that we've reached the limits of the Sewel convention. I'm just wondering if you could just expand on that a little bit. It goes on a little bit from the answer you've just given, but—.

Well, it essentially is that, and I think that was the same session where Alun Davies and I were discussing the statute of Westminster's proposals for that. But what I'm suggesting in that context, Chair, is that you cannot have a situation where there is a convention that is disregarded, effectively, which is what it would be if the business of a repeat—you know, a pattern emerging of proceeding without consent. So, as I say, it makes the case for fundamental reform of the Sewel convention in those circumstances. There are a number of ways of doing that, but I just think it strengthens the case.

The Welsh Government has expressed its concerns about the widespread ramifications of this Bill, should it become law, in, in effect, limiting the exercise of devolved competence, in that it may not take it away, but the practical scope of doing some things will be much reduced. And presumably, we have in mind some major public services here that currently rest with us—housing, education, health and social care, and health and social care being perhaps the most prominent of your concerns. I think, to a layperson, it seems quite a stretch that a Bill to regulate the internal market can suddenly have such an explosive effect on domestic arrangements. Could you illustrate them so that the full extent of the danger you fear this current settlement is facing can be widely appreciated?

Certainly—happy to do that. I think, just if I may, to start, the first clue that you have that this is more than legislation to regulate the economic relationship between the Governments and the economies of the UK, the first clue that you have to the breadth of it, is in the fact that the UK Government wish to make every part of it a protected enactment, which, as the committee obviously knows, applies conventionally in areas of constitutional reform and on a limited basis. So that, I think, is the first signal of the breadth of challenge that this represents to the devolution settlement.

But, on your specific point, obviously, there will be areas where the devolution settlement is changed—the state aid and subsidies area is one that we've just talked about. So, there'll be a change to the devolution settlement on the face of the Bill. There's no question that it does that. But, even where that isn't clear on the face of the Bill, which are the sorts of things we've been talking about today, the market access principles, what it will basically mean in the area, for example, of—. Let's take the area of single-use plastics, which we've used as an illustration elsewhere; I think it's a very good illustration, because it shows in a practical way how Governments can take different approaches. So, the UK Government's position for England is that, of the nine different types of plastic within that regime, they'll be looking to ban three of them. Our policy preference as a Government is to ban all nine of them. Now, we could pass that legislation in the Senedd—the next Senedd could pass that legislation—but, in terms of how it would be enforced on the ground, it would not be available to Welsh Ministers to prevent those plastics, provided they were legally used in other parts of the UK, from being used for packaging in Wales. It wouldn't be possible to do that if the Bill, in its current form, came in. So, we'd pass the law and it wouldn't have any effect on the ground. Now, you might say, 'Well, it's a market. The consumer has a choice; tell the consumer about it and let them decide.' I don't myself agree entirely with that, but that itself wouldn't be an option open to us either, as the Senedd, because there's a provision in the Bill that effectively limits the capacity of the devolved Parliaments to require labelling to show these differences. So, there's a range of things in people's weekly shop, if you like, that would be impacted.

We've talked elsewhere, in previous sessions, about the risk of animal welfare standards being reduced and lowered. So, the risk of hormone-injected beef, for example—we could continue our policy objection to that as a Parliament and as Ministers in Wales, but not be able to deliver that on the ground, because it wouldn't be possible if this became an Act, in its current form, to prevent that being sold in Welsh supermarkets. So, there's a risk that the Senedd passes the legislation but doesn't have the levers to deliver it on the ground. Now, what that means, of course, in practical terms is that it has a chilling effect on devolved powers. Now, the Senedd isn't going to go out of its way to pass legislation that can't be enforced on the ground, I would expect. It'll create a chilling effect on the ability of the Senedd and Ministers to take action in devolved areas that we currently do.

10:50

Yes, I wish to pursue it. I think those are important points, but they are—. They spring from, I think, a—. Most people who look at this Bill, they would then see a clear link with things like labelling or the range of products that may be regulated or prohibited from our market. I was just wondering whether there are any deeper concerns, like the exercise of some planning law over housing and issues that relate to free movement of labour, but that requiring the ability to live in places and issues like that. Or, indeed, procurement processes, say, in the NHS—so, if they were affected. Or is that not a concern you have, that those areas would remain protected?

Well, certainly in the area—. There's a whole range of regulatory interventions in those spaces that might come under pressure, just by—. I reference the earlier conversation that we had about not being able to enforce regulatory requirements in Wales that don't apply in other parts of the UK. There are certainly risks in relation to the qualifications of people working in Wales and the requirements to have particular qualifications to deliver certain public service roles—so, teaching and nursing might be examples of those—childcare provision and so on. So, each of those are threatened by different parts of the market-access principles regimes as well.

We've got a little bit of time still. Llyr, any further questions you want to ask?

Not from me, Chair, because I think that the Counsel General's indicated that he's not been given much information by the UK Government about any of this.

Thank you. I'm interested in the Counsel General's response to your question, Chair, about the wider aspects of the devolved settlement. The Counsel General's just given some examples, in answer to David Melding, about how the Senedd could be constrained in exercising its powers following any adoption of this legislation, and he outlined there some means by which the Welsh Government felt that we could return to a more stable equilibrium within the United Kingdom. I'm interested to understand to what extent the Welsh Government is working on these matters and to what extent is the Welsh Government seeking to develop a shared vision across the United Kingdom on these issues. I understand the Scottish Parliament are probably in a different position. But this is the structural constitutional collapse of a democratically endorsed settlement, and I'm interested in the actions that the Welsh Government are taking in order to rebuild a settlement that is durable, fair and has the democratic support of the people of Wales.

10:55

Well, I think the point that you make, Alun, is absolutely correct, which is to say the sorts of examples I've given today, which we've given previously as a Government, about the kind of reform that we need have a more fundamentally UK-wide character to them in many ways, and it's about a stable statutory footing and a parity of funding arrangements—and we've seen that being a particular issue even within parts of England, haven't we, in the last few weeks; it affects different parts of the UK. So, we are having discussions about how a UK-wide approach might be possible to be taken.

In our own party, we both know that the nature of our party has developed a narrative around federal reform and so on across the UK, and I think that's absolutely a debate that needs to be taken forward. But it does need to have a fair funding mechanism, it does need to have a set of constitutional arrangements that are stable, and which, I would myself argue, require statutory underpinning, if that's achievable. It's the sort of things that we've been advocating for some time. The status quo isn't sustainable, and there needs to be fundamental reform along the lines that we've been arguing for as a Government.

No, I was going to follow up what the Counsel General has just said, but I think he explained it in some detail, and he knows my view, anyway.

No, thank you, Chair. The Counsel General's before the committee on Thursday. I'm sure we'll explore a few more things after reflecting upon his comments today.

Any further comments, Dai Lloyd? Well, Counsel General, listen, thank you for that. We've very efficiently gone through all the questions, and, obviously, we are still in a very transitional state with regard to this legislation and the consequences of it. There will be, obviously, a transcript of the evidence. Can I thank you very much for your forthright answers, detailed answers, and for those of your officials attending today? I think now there's an opportunity for you to leave the meeting, but thank you very much for your participation and attendance today.

3. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o’r cyfarfod ar gyfer eitem 4
3. Motion under Standing Order 17.42 to resolve to exclude the public from the meeting for item 4

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o eitem 4 yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from item 4 in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

I need to now, in accordance with Standing Order 17.42(vi), invite the committee to resolve to exclude the public from item 4 of the agenda. Do Members agree? Thank you. We now move into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 10:58.

Motion agreed.

The public part of the meeting ended at 10:58.

11:20

Ailymgynullodd y pwyllgor yn gyhoeddus am 11:24.

The committee reconvened in public at 11:24.

5. Offerynnau negyddol arfaethedig nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B
5. Proposed negative instruments that raise no reporting issues under Standing Order 21.3B

Welcome back to this meeting of the Legislation, Justice and Constitution Committee. We now move on to item 5 of our agenda, negative instruments that raise no reporting issues under Standing Order 21.3B. We have Schedule 7 to the European Union (Withdrawal) Act 2018, which provides for a committee in the Senedd to sift certain regulations that the Welsh Ministers propose to be made under the negative procedure, known as the proposed negative regulations. So, this committee's role is to consider and report on the appropriate procedure to be followed, either in the negative or affirmative, using specific criteria set out in Standing Order 21.3C.

This is just a handling matter, so we move on now to the Teachers' Qualifications (Amendment) (Wales) (EU Exit) Regulations 2020. These are regulations that make technical amendments to the Teachers' Qualifications (Amendment) (Wales) (EU Exit) Regulations 2019 to update cross-references to provisions in the Recognition of Professional Qualifications (Amendment etc.) (EU Exit) Regulations 2019, which are necessary as a result of amendments made by the Professional Qualifications and Services (Amendments and Miscellaneous Provisions) (EU Exit) Regulations 2020. Any comments or observations from the lawyers?

11:25

Chair, I'm desperately trying to attract your attention, I'm sorry.

Before we start this whole section of our committee work, I do need to declare an interest, that I'm chair of the ministerial advisory group on outcomes for children. This is particularly relevant to any regulations dealing with fostering and adoption.

Okay. I do apologise, because you did indicate earlier that you'd raise it at this stage. I should have gone straight to you. So, we note that declaration of interest.

So, on these teachers' qualifications regulations, any observations or comments from the Members? If not, on to 5.2, the Environment (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020. The purpose of these regulations is to ensure retained EU law operates effectively once the UK leaves the EU. The regulations amend the Air Quality Standards (Wales) (Amendment) (EU Exit) Regulations 2019 and the Natural Resources Body for Wales (Establishment) Order 2012. Any comments or observations? No.

6. Offerynnau nad ydynt yn codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3
6. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

We move on to item 6, then, the School Teachers' Pay and Conditions (Wales) Order 2020. This is an Order that makes provision for the remuneration and conditions of employment of schoolteachers in Wales to be determined by reference to section 2 of the 'School Teachers' Pay and Conditions (Wales) Document 2020 and guidance on school teachers' pay and conditions'. If I go to the lawyers, I think one merits point has been identified.

No, no comment on that one, Chair.

No, no comments there. Any observations or comments from the Members? If not, we move on to item 7.

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

The Health Protection (Coronavirus, Public Health Information for Persons Travelling to Wales etc.) (Amendment) Regulations 2020: you have the various papers in front of you. These regulations amend the 2020 regulations and place a requirement on operators of international passenger services coming from outside the common travel area to an airport, heliport or seaport in Wales to provide passengers with certain public health information. I think some technical and merits points have been identified. Gareth.

Yes, there is one technical point and two merits points, starting on pack page 114. The technical point seeks clarification as to how certain information must be provided, in particular whether it must be provided in writing. The two merits points note that there's been no formal consultation and there's been no regulatory impact assessment for these regulations, and the Welsh Government has not yet responded.

Okay, so we await that response. Any comments or observations? I don't see any, so we move on to the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 15) Regulations 2020. Again, we have the report, the regulations, the explanatory memorandum, a letter from the Trefnydd of 16 October, and of course the written statement of 15 October. These regulations were made on 16 October and came into force on 18 October. Gareth, any comments?

There are three merits points, starting on pack page 133. The points note the Welsh Government's justification for any potential interference with human rights, that there's been no formal consultation, and the breach of the 21-day rule.

11:30

Okay. Thank you for that. Any other comments or observations? If not, on to item 7.3, the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 16) Regulations 2020. Again, you have the various papers in front of you. These are regulations made on 23 October that came into force on 25 October. Gareth, merits points?

Just the same three merits points as the previous regulations.

Okay. Any other comments or observations? If not, we move on to made affirmative resolution instruments and the Health Protection (Coronavirus Restrictions) (No.2) (Wales) (Amendment) (No. 19) Regulations 2020. These regulations made amendments to the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020. They were made and came into force on 16 October 2020. They've since been revoked by the Health Protection (Coronavirus Restrictions) (No. 3) (Wales) Regulations 2020, which we will consider under the next item on the agenda. Gareth, merits points?

There is one technical point and four merits points, starting on pack page 164. The technical point notes an inconsistency between the Welsh text and the English text. The first merits point notes the Welsh Government's commentary on any potential interference with human rights. The second merits point welcomes the explanation provided by the Welsh Government for a policy of restricting travel from certain areas and how evidence shows that the coronavirus was moving from east to west across the United Kingdom. The third merits point notes that there's been no formal consultation. And the fourth merits point notes that there does not appear to have been an equality impact assessment published for these regulations, and asks the Welsh Government to explain what arrangements it has made for equality impact assessments. The Welsh Government has not yet responded.

Okay. Any other comments or observations, otherwise we await that response, which will come to us as a committee? 

On to item 7.5, then, which are the regulations that we referred to earlier. These are the Health Protection (Coronavirus Restrictions) (No. 3) (Wales) Regulations 2020. These revoke the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020 and its amending regulations, which include measures put in place for local lockdowns. They were made on 21 October and came into force on 23 October. They are to be debated in Plenary tomorrow. Gareth, merits points?

There are five merits points, starting on pack page 194. The first merits point again notes what the Government comments on any potential interference with human rights. The second merits point notes there's been no formal consultation, and linked to that is the recent press coverage about concerns raised by the Federation of Small Businesses about the short time period that businesses had to prepare for the new rules. The third merits point raises concerns, which have again been publicised, in respect of businesses that sell goods that can be sold and goods that cannot be sold, and what the Welsh Government intends to do about any confusion caused. The fourth merits point asks the Welsh Government for an update on the guidance it is proposing to make under these regulations. And the fifth merits point notes that an integrated impact assessment has been published for these regulations, which seems to include a thorough assessment of the impact the regulations have, in particular in relation to equality and children's rights. 

We've had a bit more time, now, to consider the regulations, so if Members are content, there are a few more things to be added to the report, in particular seeking clarity around where and how the regulations prohibit, for example, a supermarket from selling non-essential items, what can extended households do under the new rules, what is allowed regarding visiting cemeteries compared to visiting crematoriums, and one or two other things where clarification would be helpful.

Okay. Any other comments or observations there? David Melding. 

Is it these regulations that also contain signage, especially if a premises has been found to fall below the required standard and is having to improve, or is that the next lot?

No, it's these. There are examples in the Schedules as to the exact form of notices that must be displayed.

I do think this issue of consultation and the FSB's concerns are relevant here, because I don't know other Members' thoughts, but that notice that you need to improve or else, I can see from a public health point of view is very important, that that message is conveyed to the public, but you really do need very firm procedures and fair procedures when something as dramatic as that is required for your business to continue, that you have to display it and for how long and what the procedures are for reinspection and, then, having it lifted or whatever. So, I do think this issue of consultation is very significant in this area.

11:35

Any other comments? This is something I can raise, of course, obviously within the Plenary debate, and it's obviously something I'll raise in terms of our report on this tomorrow, but it is an important point that's being raised. Any other comments or observations? No. Well, thank you for that, David.

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

We move on then to item 8. We move on to the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 8) (Caerphilly) Regulations 2020. We considered these on 21 September. Really, just to note the Welsh Government's response, which has since been resolved. Any comments, Gareth, on that?

No. Any other comments or observations? No. In which case, we move on item 8.2, the Health Protection (Coronavirus Restrictions) (Functions of Local Authorities) (Wales) Regulations 2020. Again, we considered these on 21 September, and we've now received the Welsh Government response. Any comments or observations on those? They're fairly straightforward. Okay.

We move on to item 8.3, the Health Protection (Coronavirus Restrictions) (Functions of Local Authorities etc.) (Wales) Regulations 2020. Again, we considered these—. Sorry, David, I beg your pardon, sorry.

I do think the merits point about definitions would be helpful, like 'critical infrastructure', 'essential goods and public services', and particularly 'reasonable excuse'. Now, I know the Government says, 'Well, we can't interpret everything and you've got to use your judgment', but that's kind of saying, 'The public has to use its judgment and we're not guiding you.' A way to guide the exercise of judgment is obviously to give a practical example. Now, that obviously is just a practical example in a specific area and you have to infer from that to your own situation, of course, but I do think they should be saying, 'This would be an example of a reasonable excuse', so people have some idea of the magnitude of what's happening and whether that would pass or not a reasonable bar.

Yes. Any other comments? Okay, well, we can note those. We can pass those comments on; they're not unreasonable comments. And my apologies for jumping ahead and missing you on it. Is that okay to proceed in that way?

Item 8.3, the Health Protection (Coronavirus Restrictions) (Functions of Local Authorities etc.) (Wales) Regulations 2020, which, again, we considered on 28 September, and, again, a further Government response to those. Any comments, Gareth, from the lawyers? From the Members?

In which case, we move on to the Adoption and Fostering (Wales) (Miscellaneous Amendments) (Coronavirus) Regulations 2020. Again, we considered those regulations on 19 October. You've seen the Welsh Government's response. David Melding.

Yes. Just to say that I don't think it's adequate for the Welsh Government to say, 'Well, we have published the children's rights impact assessment, but it's available on the central list and we've not added it to these, the accompanying documents for the regulations.' I think that is poor practice and we should say so, and I'm still mystified why the consultations have not been published.

Any other comments on that? Happy for us to take those up, to go back to Welsh Government on those points? Okay, we'll do that.

Yes, can I just check? I don't know if Gareth—lawyer, Gareth—can say whether the extension of temporary orders from 16 to 24 was covered in the children's rights assessment, because obviously that—.

I'm afraid I haven't looked—

From 16 to 24 months. Sorry, 16 to 24 weeks for temporary orders. I shall get it right now. Because that's an increase by half again from 16, so it's a significant spell of time to, in effect, be under a temporary order for half a year, and I think there are issues there that would have needed to have been assessed. 

11:40

Are you able to answer that, Gareth, or do you want to come back at a future meeting with a response?

On that point, my understanding is that the full integrated impact assessment is in the process of being published. So, when we do see the full impact assessment, we can have a look at that point in particular. 

9. Is-ddeddfwriaeth sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.7
9. Subordinate legislation that raises issues to be reported to the Assembly under Standing Order 21.7

If there are no other comments, then, on to item 9, subordinate legislation that raises issues to be reported to the Senedd under Standing Order 21.7. We have the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020. These regulations establish a debt respite scheme for people in problem debt. The regulations are made by the UK Treasury but must be laid before and approved by resolution of the Senedd and each House of Parliament. Plenary debate in respect of these regulations is going to be on 10 November, so that will be next week. Gareth, any comments? 

Just to note that in a previous legislative consent motion debate in Plenary 2018, the then Minister for Housing and Regeneration said that any future debt respite scheme would reflect the requirements of Wales and the draft report asked the Government to explain how the current scheme does reflect the requirements of Wales and whether the Welsh Government is content that this does not come into force until May 2021. The Welsh Government response was received on Friday, after today's papers had circulated, and the response provides some helpful answers to the queries about the involvement of Welsh stakeholders and the reasons why the scheme will not commence until May 2021.

Yes, and, of course, that will be in next week's Plenary debate. Any other comments or observations on that? 

10. Offerynnau Statudol y mae angen cydsyniad y Senedd arnynt (Memoranda Cydsyniad Offerynnau Statudol)
10. Statutory Instruments requiring Senedd consent (Statutory Instrument Consent Memorandums)

In which case, we move on to item 10. These are statutory instruments that require Senedd consent—statutory instrument consent memoranda. The European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020. This statutory instrument consent memorandum relates to the European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020, which were laid before the UK Parliament on 8 October 2020. The consent memorandum was laid by the Welsh Government on 14 October and a letter in relation to the consent memorandum has not been received from the Welsh Government. The regulations were withdrawn from the UK Parliament on 20 October and new revised regulations were laid on 21 October, and it's our understanding that the memorandum will be withdrawn and replaced this week. So, Gareth, do you want to update us on that?

Well, I think one important thing that's worth noting, and I say this purely from a legal perspective, is that the interpretation of law as a result of exiting the EU is becoming evermore complicated, and while we may get used to it in time, there are now so many rules as to the way we interpret domestic law that has an European angle. 

Well, with that fine point, any other comments or observations on that? I'm sure we probably all agree with that. 

Okay, we move on to the Quality and Safety of Organs Intended for Transplantation (Amendment) (EU Exit) Regulations 2020. These regulations were laid before the UK Parliament on 12 October. The consent memorandum was laid by the Welsh Government on 15 October. They form part of a suite of four instruments, which together give effect to the Northern Ireland protocol in the withdrawal agreement. Members will note that the Minister has stated he is not minded to table a motion for debate, and, of course, you will recall that we have written to the First Minister to express concern with Welsh Government's position on not tabling motions for debate on statutory instrument consent memoranda. Gareth, any comments? 

Only a general point in that, under item 10, I notice we're considering six SICMs, and, further to the point you've just made, really, that seems to be a fairly routine way of passing legislation now and the onus is always on Members of the Senedd—backbenchers, if you like—to present a motion, which we have done in the past, obviously, from this committee, but obviously Government feels that it doesn't need to either. So, I'm just worried about how we are scrutinising what is quite complex—as Gareth has just pointed out—legislation as regards leaving Europe. I mean, we have organ transplantation here. There's a phenomenal European-wide database, and a lot of co-ordination goes on for that, and yet we're sort of nodding it through. I just put that in the context of the six SICMs that we are passing under this agenda item.

11:45

Carwyn, did you—? No? Anyone else want to come in on it? David.

There is a consistency with the Welsh Government saying that they justified the action on the grounds that there is no policy divergence with the UK Government. And, I suppose, when there are Governments of different political persuasions, then that's a bit more of a check, because a SICM is unlikely to be in an area that is quite actively contested in terms of the direction of public policy. But I think Dai's point is very valid, in that these things need to be scrutinised, and just to say, 'Well, actually, we agree with this, and therefore we will just go along with these regulations as issued by a UK Minister', is not really very satisfactory. I think there has to be perhaps a—. We have to be vigilant, then, that significant issues are not going by, and they may not even be scrutinised much in Westminster either. So, there are certainly grounds here for being a bit sceptical about this type of instrument, I think.

Any other comments? I agree with those. I think we should re-emphasise the point again on this that has arisen with regard to the scrutiny issue.

If everyone is happy with that, we'll move on to the next item, then: the Public Procurement (Amendment etc.) (EU Exit) Regulations. These regulations contain certain amendments to the Equality Act 2010. You have before you, I think, the—. Sorry, I'm just looking at my papers on my iPad. Yes, it starts at pack page 424. This SICM relates to the Public Procurement (Amendment etc.) (EU Exit) Regulations 2020, which were laid before the UK Parliament on 7 October. The consent memorandum was laid by the Welsh Government on 21 October, and the consent memorandum notes that the main objective of the regulations is to correct deficiencies in legislation arising from the UK leaving the EU. A letter in relation to the consent memoranda has not been received from the Welsh Government. Gareth, any comments?

Only to add that these regulations again give effect to the withdrawal agreement, including the Ireland-to-Northern Ireland protocol, and they also contain concurrent functions that can be exercised by both the Welsh Ministers and the Secretary of State, and this has a knock-on effect on the legislative competence of the Senedd. Again, we understand the Welsh Government is in discussions with the Secretary of State and the UK Government for a section 109 Order, which will address the impact that these kinds of concurrent functions have on the Senedd's competence.

Okay. Any other comments or observations? If not, let's move on, then, to 10.4. It starts at pack page 498. Just give me a moment on that. This statutory instrument consent memorandum relates to the Common Fisheries Policy (Amendments etc.) (EU Exit) Regulations, which were laid before the UK Parliament on 14 October. The consent memorandum was laid by the Welsh Government on 22 October to address deficiencies within the common fisheries policy legislation, again as a result of our leaving the European Union, and, again, the Minister has not stated whether she is minded to table a motion for debate. I think we will probably want to write to suggest that that should happen and if Members are agreed with that, are there any other—? Gareth, sorry; any legal comments?

Again, these regulations raised the issue of concurrent functions and the impact they could have on the Senedd's legislative competence.

Any other comments or observations?  No. In which case we move on to item 10.5, the Plant Health (Amendment etc.) (EU Exit) Regulations 2020. This SICM relates to the plant health EU exit regulations, which were laid before the UK Parliament on 15 October, and the consent memorandum was laid by the Welsh Government on 22 October. The consent memorandum notes that the objective of the regulations is to protect biosecurity and to support trade by ensuring that effective phytosanitary controls—I hope I've pronounced that right—continue to operate within Great Britain, and between Great Britain and the EU, at the end of the transition period on 31 December 2020. Again, Members should be informed that the Minister has not yet stated whether she's minded to table a motion for debate. I suggest the same course of action on that. Gareth, any comments?

11:50

Only to add that these regulations are needed to implement the Ireland-to-Northern Ireland protocol.

Any other comments or observations? In which case, we'll move on to item 10.6, the Waste and Environmental Permitting etc. (Legislative Functions and Amendment etc.) (EU Exit) Regulations 2020. This SICM relates to the waste and environmental permitting legislative functions and amendment regulations 2020, which were laid before the UK Parliament on 20 October. The consent memorandum was laid by the Welsh Government on 27 October. The consent memorandum notes that the purpose of the regulations is to, again, address failures of retained EU law to operate effectively and other deficiencies arising from the UK leaving the EU. Again, the Minister has not stated whether she's minded to table a motion for debate. I suggest that we can probably, in terms of our correspondence, raise these issues collectively. Any other comments or observations? Gareth, any—?

Again, they just implement the Northern Ireland-Ireland protocol. 

11. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C
11. Written statements under Standing Order 30C

Okay. On to item 11, then: written statements under Standing Order 30C—Standing Order 30C, and the Persistent Organic Pollutants (Amendments) (EU Exit) Regulations 2020. The Welsh Government statement gives notification that it's consented to the making of these regulations. The written statement notes that the Welsh Government gave its consent for reasons of efficiency and expediency, and to ensure the statute book remains functional following the UK's exit from the EU. Any comments, Gareth?

Could I just say, just for all the remaining items on the agenda, these are generally updating regulations that were previously made in preparation for exit day, and those original regulations were put on hold under the withdrawal agreement Act? That hold comes to an end on 31 December, so the regulations have to be updated to reflect the changes that have happened since exit day.

Okay. So, these are updating amendments. Any comments or observations? If there are none on that, the next item is the Pesticides (Amendment) (EU Exit) Regulations 2020. Again, the Welsh Government statement gives notification that it has consented to the making of the regulations, and, again, the written statement also notes the purpose of the amendments made by the regulations is to give effect to the Northern Ireland protocol. Any other comments or observations? No, I don't see any.

So, we move on, then, to the Ozone-Depleting Substances and Fluorinated Greenhouse Gases (Amendment etc) (EU Exit) Regulations 2020. The same applies to these. Any comments or observations beyond that? No, I see none. 

On to the State Aid (Revocation etc.) (EU Exit) Regulations 2020. There was a disagreement between the Welsh Government and the UK Government as to whether consent is required for these regulations, and consent has not been sought by the UK Government. Nonetheless, the statement notes the Welsh Government is withholding consent. The statement also notes the Welsh Government considers that the UK Government is in contravention of the inter-governmental agreement on the EU withdrawal Bill and the establishment of common frameworks. Gareth, any comments?

This is the statutory instrument to which the Counsel General referred during the earlier discussions on the UK internal market Bill, and that Bill seeks to put this issue beyond doubt by including state aid and subsidy control as reserved matters.

Okay. We can comment on that when we have our further discussion on the evidence session we had earlier. Are there any other comments to be made now on this? If there aren't any, then we move on to the Blood Safety and Quality (Amendment) (EU Exit) Regulations 2020. The same issues apply. Any comments or observations?

On to item 11.6, the Human Tissue (Quality and Safety for Human Application) (Amendment) (EU Exit) Regulations 2020—again, updating. Any comments or observations?

On to item 11.7, the Genetically Modified Organisms (Amendment) (EU Exit) Regulations 2020. The statement again gives notification that Welsh Government has consented to the making of these regulations for the reasons of efficiency and expediency and to ensure consistency and coherence of the statute book. Any comments or observations?

The Organic Products (Production and Control) (Amendment) (EU Exit) Regulations 2020—this is item 11.8. Again, we have the written statement and commentary, and again the Welsh Government has given its consent to the making of these regulations for the same reasons. Any comments or observations?

On to 11.9, the Food and Feed Hygiene and Safety (Miscellaneous Amendments) (EU Exit) Regulations 2020. Again, the statement notes that the Welsh Government has given its consent to the making of these regulations. Any comments or observations?

Item, 11.10: the Plant Health (Phytosanitary Conditions) (Amendment) (EU Exit) Regulations 2020. Again, the statement notes that the Welsh Government has given its consent to the making of these regulations for reasons of efficiency and expediency. Any comments or observations?

On to item 11.11, the Control of Mercury (Amendment) (EU Exit) Regulations 2020. Again, the statement notes that the Welsh Government has given its consent to the making of these regulations for reasons of efficiency and expediency. Any comments or observations?

Then on to item 11.12, the REACH etc. (Amendment etc.) (EU Exit) Regulations 2020. This is the final written statement that we have at today's meeting. It notes that the Welsh Government gave its consent to the making of these regulations for the reasons of efficiency, expediency and due to the technical nature of the amendments. It notes that the amendments made by the regulations are to ensure the statue book remains functional following the UK's exit from the EU, and that this is in line with the Welsh Government's approach to the implementation of the Northern Ireland protocol. Any comments or observations?

11:55

One quick point: these regulations deal with the import of chemicals from Northern Ireland to Great Britain. The commentary on pack page 806 suggests the Welsh Government could clarify what impact these regulations might have on the chemical industry in Wales.

Okay, so that's another point to be raised. Any other comments or observations? 

12. Cytundeb Cysylltiadau Rhyngsefydliadol rhwng y Senedd a Llywodraeth Cymru: Adroddiad Blynyddol
12. Inter-institutional Relations Agreement between the Senedd and the Welsh Government: Annual Report

If not, we move on to item 12, which is the inter-institutional relations agreement between the Senedd and the Welsh Government annual report, which starts at—. I'm not sure where the pack page is on this. Have you got that, Gareth? Can you tell us? I'm just looking for it.

Eight hundred and nine.

Eight hundred and nine. Just a moment; I'm just accessing it on my iPad.

Okay. The inter-institutional relations agreement was agreed between the Senedd and the Welsh Government in January 2019 and included a commitment from the Welsh Government to provide an annual report summarising inter-governmental relations work undertaken during the year. So, we're really just asked to note the first annual report, covering the period from April 2019 to March 2020. Any comments or observations on that? No. Okay.

13. Papurau i’w nodi
13. Papers to note

We move on to item 13, papers to note, which is a letter to the Llywydd, scrutiny of the COVID-19 regulations. Just to note the letter sent to the Llywydd in relation to scrutiny, responding to her letter of 8 October. If there are no comments on that, moving on to item 13.2—

Okay, thank you very much for that. Item 13.2, a letter from the Chair of the Climate Change, Environment and Rural Affairs Committee to the Minister for Housing and Local Government, the draft framework outline agreement for hazardous substances. We're just invited to note that correspondence, which poses a number of questions in relation to the draft framework. Any comments or observations on that? If not—I don't see any—we have a letter from the Counsel General with regard to the drafting of Welsh Bills. We raised as a committee, you will remember, a whole series of points relating to that, following our consideration of the Curriculum and Assessment (Wales) Bill. So, we note that letter. If there are any issues, we can raise them in private session.

Item 13.4 is a letter from the Counsel General on the Joint Ministerial Committee (EU Negotiations)—again correspondence to note. A letter has been sent in accordance with the inter-institutional relations agreement that we just mentioned now at item 12. Fairly straightforward correspondence. Any comments or observations? If not, we move on to item 14.

12:00
14. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
14. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting

Cynnig:

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

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

So, in accordance with Standing Order 17.42(vi), I invite the committee to resolve to exclude the public from the remainder of the meeting. The Members agree. We now move into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 12:01.

Motion agreed.

The public part of the meeting ended at 12:01.