Cynulliad Cenedlaethol Cymru

Good afternoon and welcome to this afternoon's meeting of the External Affairs and Additional Legislation Committee. And, as Members will be aware, we are operating in a virtual mode due to the current restrictions, and as such, in accordance with Standing Order 34.19, I, as Chair, have determined that the public will be excluded from the committee's meeting today in order to protect public health. However, they are able to view the meeting on Senedd.tv, which is available on www.senedd.tv, and they will be able to listen in either the verbatim mode, including Welsh, or the translated mode, which is therefore in English. We have received apologies from Alun Davies this afternoon and no substitute has been identified. 

In the event of me losing my connection—and Members will be aware that that has happened on more than one occasion—if that happens, Alun had been previously identified as the acting temporary Chair; I therefore ask the Members that you agree that Huw Irranca-Davies will act as temporary Chair, if I lose my connection, either until I return or until the end of the meeting, whichever comes first. I see that you are in agreement with that. Thank you very much. Would any Members at this point in time like to declare an interest in relation to the discussion today? Huw.

Oh, Chair, sorry, you're inviting me to put my interest. Yes, sorry. Three groups that I chair on behalf of the First Minister with a European interest—standard declaration, Chair.

Thank you, Huw. Members may be aware that Laura Anne Jones is no longer a member of the committee and I'd like to thank her for her contributions while she was with us. I'm sure Members will appreciate her contribution to the work that we have done to date. And can I welcome Nick Ramsay to the committee? I'm sure that he will complete the work undertaken by him, like his predecessors, with thorough determination. Welcome, Nick.

Thanks, Chair. Good to be with you.

We move on now to the next item of business, and the next item of business is a motion under Standing Order 17.42(vi) to exclude the public for item 3 and items 6 to 9 on the agenda. Are Members content to do so? I see nods and therefore they are. Therefore, we'll move into private session for the next item. We'll return to public session for items 4 and 5 and then go back into private session for items 6 to 9. So, let's go into private session for the next item.

Can I welcome Members back to this afternoon's meeting of the External Affairs and Additional Legislation Committee? We move on to item 4, which is an evidence session with academics in relation to Wales in the UK. Can I welcome Professor Nicola McEwen from the University of Edinburgh; Akash Paun from the Institute for Government; and Professor Daniel Wincott from Cardiff University? All three, welcome. I know you've been with the committee before, so we very much welcome your return to help us out once more. If it's okay with you, we'll do some questions. I think once we've done the questions, we'll allow you, perhaps, to expand upon some of your initial ideas, and we can go from there. Okay? I will probably decide which one speaks. Dai Lloyd first.

Seeing as I can see the screen this way, Professor Wincott first. I'm just going to go through who I can see in the picture.

Thank you very much, and thanks for the opportunity to speak to the committee this afternoon. At an overarching level, I think the removal of the general EU frameworks, within which devolution was initially designed and constructed, represents a very significant constitutional change to the organisation of the UK as a whole, and the position of Wales within that. I've talked about the EU as having provided a kind of external scaffolding for the UK state—in a sense holding it together, but also constraining the operation of the UK level, but the devolved levels as well, in a way that allowed the UK state to operate with what I think most people would say would be rather limited structures for inter-governmental relations and inter-parliamentary relations. And even those structures that had been present, particularly the joint ministerial committees, have been allowed to fall into abeyance rather than being systematically pursued. So, I think that's a very significant set of changes.

And then the form of Brexit that's been pursued is one that I think maximises the consequences of those changes. In other words, had it had a form of Brexit that kept the UK more closely linked to EU structures and processes—which, obviously, for some supporters of Brexit, wouldn't have counted as Brexit—then those challenges would have been less significant. Beyond that, though, my very strong sense is that some of the domestic legislation, particularly the United Kingdom Internal Market Act 2020 and proposals for the operation of the shared prosperity fund, go further than I think was strictly necessary to replace some of those EU structures, and, in some senses, actually don't effectively replace those EU structures but will operate in a way, if they're pursued as the face of the Act seems to suggest, and some of the messaging around the shared prosperity fund also suggests, that has a centralising logic to it, and particularly would seem to suggest that the UK Government will hold funds, and perhaps sub-state governments at various levels, whether they're devolved Governments or local governments of various kinds, will bid into a central fund and be set in a relationship of competition with one another. And all these seem to me to be fairly fundamental changes that have considerable potential to erode the institutional framework for the operation of the Senedd and the Government in Wales.

Thank you. Akash, anything to add to that?

Yes. Well, thank you, Chair, and, likewise, I'm really pleased to be back before the committee—virtually this time; I hope to be able to join you in Cardiff at some future point. So, just to add to Dan's answer, I suppose the way that I would characterise it is that Brexit, among many other things, has destabilised and undermined the idea of devolution as being characterised by a binary division between what is reserved and what is devolved. And that was a model that was never fully true in practice, of course—there was always messiness at the edges, jagged edges and so on, probably more so for Wales than for the other nations. But I think, post Brexit, that's become a completely unsustainable way of understanding the UK territorial constitution, and that's why it has opened up this debate about common frameworks, what do we put in place of EU law that intersects with devolved areas, how do we refresh and reform and strengthen inter-governmental relations that are or are highly recognised not to be fit for purpose, and what role will the devolved administrations be able to play in trade negotiations and so on going forward, where there's going to be an overlap between what the UK Government might agree on the international stage and the domestic implementation and how that affects devolved matters. So, I think, in a broad sense, yes, it has opened up that whole area of uncertainty, and that's why, obviously, committees such as your own are looking at these issues.

But I think what we've also seen—and perhaps that shouldn't come as a huge surprise—is that, in Westminster and Whitehall, I don't think there's unanimous commitment to any kind of fundamental reform to the way that devolution should operate and how inter-governmental relations should operate in this new era. And that's because I think the other thing Brexit has done is allowed Westminster, if it should so choose, not only to take back control from Brussels but to take back control from the devolved capitals as well. And that's always been, I know, the concern of people at the devolved level—that, without the constraints that Professor Wincott was just talking about of EU law, Westminster will be free to rewrite the rules of devolution at will, to some extent. I wouldn't say that’s absolutely what is happening, but, certainly, the passage of the UK internal market Act obviously without consent, the potential for the shared prosperity fund, as mentioned, to interfere in devolved areas—those are, I would say, some worrying signs of how this dynamic might play out. But I think, overall, there are some countervailing trends within the UK Government, and different departments operate in quite different ways. And I think, at the very top, there's a bit of a debate going on about how far to go down a kind of 'devolution was a mistake' hard unionism kind of approach, as opposed to a 'union of four nations, let's proceed by consent where possible' kind of approach. And I do think there are people arguing on both those sides. 

Okay, thanks. And Professor McEwen.

Hi, yes. Thanks, again, for the invitation to come and talk to you; I'm always grateful to do so. I don't want to repeat what my colleagues have said; I agree very much with all of that. I think, clearly, the internal market Act is the big development that has entered the scene to potentially have an effect on the constitutional relationships—the political relationships too—of the different parts of this UK. And we know, of course, from the Counsel General's interventions, about the effects on Welsh-UK relationships too.

In a sense, we probably won't know exactly the impact it will have on devolution as a model of government, because much of the Act is about future legislation—a way to minimise the effect of future divergence. So, in a sense, it will be the longer term before we get to know what that really means and whether or not it affects the way that devolved Governments try to achieve their policy goals if they move away from the kind of regulatory approach that they have often taken so far in order to try to circumvent the constraints of the Act—obviously, there are very, very limited options for them to do that. So, I do think that the internal market Act is a significant challenge on the authority of the devolved institutions. It may not necessarily have been introduced with that purpose; it's central purpose, and I quote Chloe Smith here, the Minister in charge, is:

'fundamentally to make sure that people and businesses can seamlessly trade, exchange, buy, sell and have on the supermarket shelves what they want to have'

all across the UK. So, it's that reification of business and people mobility, of the idea of the UK as one country, which I think has been the driving force of this, and if that affects detrimentally the authority of the devolved institutions, then so be it—I think that's the perspective from which the legislation has been introduced, but, of course, the effect of that is to fundamentally challenge their authority.

More generally—I mean, obviously, we are now in the midst of a very polarising debate between independence and union. That's been around in Scotland for a long time, but I've been struck over the last few months with the extent to which that has become a debate that is now carried out in London amongst various think tanks and things I've been asked to participate in over the last few months. And, with some honourable exceptions, including the Institute for Government, that generally hasn't been always the case. And it's a struggle, I think, for the positioning somewhere in between that of a reformed union, the kind of vision that the Welsh Government has been pushing for a number of years—it is a struggle to have that as part of that discussion, but maybe also an opportunity as well.

On inter-governmental relations—well, I'm sure we'll talk about that later on, but I agree with the others that the push at the moment does appear to be a centralising one. And it's difficult from that perspective to see the opportunities or the willingness to engage in any of the fundamental reforms or shake-up to the system of inter-governmental relations of the kind that the Welsh Government and the committees in the Senedd have been discussing for quite a long time.

Thank you. Next we have questions from Nick Ramsay.

Diolch, Cadeirydd. Good afternoon. Could I ask you: what, if any, new inter-governmental and governance structures are needed within the UK post Brexit? Who wants to take this?

Shall we do it in reverse? We'll start with Professor McEwen, and we'll work backwards this time.

So, it's partly an issue of structure, but it's also an issue of process and culture. So, what we know, looking back, is that the one forum that met regularly was the Joint Ministerial Committee (Europe), the one that met in advance of European Council meetings, and that doesn't exist anymore, because we're not in the EU, so its purpose has been removed. That leaves quite a gap in the inter-governmental machinery. All of the other forums that we have had have been very ad hoc, they don't meet to a regular schedule—which is not the be-all and end-all, but can help to build trust and build engagement on an ongoing basis. So, I do think that is important.

But it’s also about the processes and the purposes of these meetings. Are they meeting in order to share ideas, or are they meeting to co-ordinate, to co-operate, to make decisions where it's appropriate to do so? And is it all about meeting to discuss areas of devolved competence, which is what has been driving the common frameworks programme, or should they be meeting in order to discuss where devolved and reserved competences intersect, which would be more into the kind of space where inter-governmental forums in a lot of federal systems generally sit, and we're quite a long way from that. There are also issues around dispute resolution, which I know the joint review has been working through. We haven't, of course, seen any reports coming out of that review yet, so we await that eagerly to see what they come up with.

But also, beyond the machinery process, it's about culture. It's about the approach that the different institutions take: do they need to see themselves as equals around the table, or is it a more hierarchical structure, which appears to be the experience that the Welsh Government and its counterpart in Scotland have felt in a lot of the inter-governmental processes?

So, all of those things you'd like to see in the review—in the inter-governmental review.

Very much so, yes.

Yes. Okay—

Akash, do you want to add anything to that?

Yes, thank you, Chair. I agree with what Nicola has just said. I suppose I would add that—. I mean, the review of inter-governmental relations has been ongoing for some time. Something similar was first promised way back in 2014; it was re-announced several times. We keep hearing that some kind of announcement is imminent, so I, like my colleagues, await the results of that eagerly, but I'm not holding my breath, so to speak.

I suppose what I would like to see—. First of all, the memorandum of understanding that is supposedly the rulebook that guides inter-governmental relations is very, very out of date. It's clear, if you read it, it is not a description of how IGR works today, and there are references, of course, to membership of the EU, so, as mentioned, the JMC on Europe is still written in there as if it exists; it doesn't exist. And, more generally, the machinery needs refreshing. I think that's obvious, and it's fairly ridiculous that they haven't even managed to agree to edit that document to take account of things that have actually changed.

Beyond that, yes, I think more regular meetings—I think there's a need to try to bring into a single system some of the forums that exist just at the departmental level, such as the finance quads that meet to resolve issues around the operation of the Barnett formula, for example; the new ministerial forum on trade that, as I understand it, did start operating last year, but there's not much in the public domain about how that works. There's a bunch of these bodies that do operate in different ways, with little transparency, and I would like to see those brought together into some kind of more coherent structure, with more consistent reporting requirements and a process for escalation where issues can't be resolved, if necessary up to the top level of the JMC, and the JMC plenary obviously meets very infrequently now. So, I think there's a lot to be done in that respect.

There's just one final point I would make. In terms of the point about culture that Professor McEwen was just making, the way I see that is that any UK Government has a few modes of operating. It's used to operating as the UK Government on some issues; it's used to operating as the English Government, where it can just ignore the rest of the UK, on some other issues. It does in certain respects engage with the devolved Governments, but in a hierarchical way. Sometimes, that is appropriate; if you're the Treasury negotiating around budgets and so on, or if you're the Department for International Trade engaging around trade negotiations—it's clear that you're operating as the UK Government and therefore will be in a hierarchical position. But what it doesn't really have, the UK Government, is a culture of operating in partnership and around development and operation of common frameworks. That is really what we need to see emerging where the UK Government is acting on behalf of England and will therefore be working with the other three Governments essentially as one of four equal Governments, albeit first among equals in practice.

Professor Wincott, have you got anything to add?

Yes, absolutely. I agree with everything that my colleagues have said. At the same time, I think there are hints in some of what's been said that we need to think at the same time about the constitutional situation in what you might think of as relatively technical terms about how institutions and organisations might be created or improved, but also set those issues in a much wider and more fundamental constitutional context.

Akash Paun's just been talking about the UK Government being the English Government sometimes. I think we're at a moment when questions about the position of England within the UK's union are being asked in a more urgent way again, and some of that is about decentralisation or even devolution within England, but I think there are big questions about England as England, England as the largest nation within the UK, and how it's represented. Those larger constitutional debates, I think, are in a very interesting situation at the moment. I think there is a potential space for constitutional debate about fundamentals to open up, at the same time, I think, as more short-term political rivalries both within each of the parts of the UK and across the UK as a whole are at play. People are kind of scoring points against one another in a way that I think makes that more fundamental debate much more difficult to engage.

For example, I think I would be inclined to try and think about it more ambitiously than, say, a JMC plenary session as the appropriate forum within which the four territorial Governments might meet sometimes as equals or sometimes with the UK Government in a more hierarchical situation. The really fundamental question there for me is whether and how the UK Government can effectively operate as holding the ring for the debate as a whole, and in a superior position to the others, and also operate sometimes as the Government for England. In which case, albeit as very much the largest element in the mix, it would still in some sense be, in principle, in a position of equality with the other three Governments.

So, I don't resile at all from any of the things that have been said, but I think that there is a particular quality to the current constitutional moment, which means that these more fundamental questions are at least partly in play now in a way that I'm not sure they have been for some time.

I saw Huw's hand go up. I'll go back to Nick first and come back to you, Huw. Nick, back to you.

Finally from me, you've touched on this, but what new inter-parliamentary relations may be needed in response to constitutional changes taking place post Brexit?

We'll keep to the same order—Nicola.

I think there's always an opportunity for stronger inter-parliamentary relations. We saw that in relation to Brexit, where the relevant parliamentary committees worked very well together, particularly around inter-governmental relations, where scrutiny and oversight are not perhaps as they could be or should be. Sharing information and ideas is always a valuable thing to do through inter-parliamentary co-operation. But I do think that it is for each of the Parliaments to hold their own Governments and their own Ministers to account for their participation in the inter-governmental arena. So, it's absolutely fine and normal and common practice for Parliaments in one institutional tier to take evidence from Governments from another, and that's fine, it happens in both directions. But, in terms of that principle of democratic accountability that is so fundamental and central to devolution, I think that's perhaps something to bear in mind when we're thinking about inter-parliamentary co-operation.

Akash.

I think Nicola put it very well. I would just add that there have been some interesting developments in terms of inter-parliamentary co-operation through the inter-parliamentary forum and so on. I think, Chair, you were no doubt involved in that yourself. My impression of that was that that initiative was useful but fairly limited. It wasn't exactly clear for what function that body was set up beyond information exchange, and information exchange is important and valuable.

I think the issue of scrutiny of inter-governmental relations is an important one, because as we've been discussing, the more that decisions are taken jointly between the Governments through relatively opaque processes, there's a potential for the legislatures to be cut out of the process and to be presented with a fait accompli at the end of negotiations behind closed doors. So, each of the legislatures does of course have to pay attention to that, and, as Nicola says, hold their own Government and Ministers to account to ensure that they are not excluded from the process.

I'm sure, within that, there will also be value in greater joint working, maybe in more informal ways between committees, at least to avoid unnecessary duplication of inquiries, and so on. There of course have been joint sessions from time to time between the Welsh Affairs Committee and committees of the Senedd. Evidence can be taken in that way already under House of Commons Standing Orders, and I know the House of Commons Procedure Committee has recently launched an inquiry that is, among other things, looking at the scope for extending that practice more broadly. I think that's definitely an avenue worth considering.

Professor Wincott.

I'd agree with everything that's been said so far. I guess, just alluding back to my comment about the broader constitutional context, some of the more ambitious plans or schemes that are around and being discussed also involve, for example, thinking about replacing the House of Lords with a different kind of an upper chamber that would change the dynamics of inter-parliamentary relations in a fairly fundamental kind of a way, should that kind of an approach be pursued.

Thank you. Okay, Nick?

I was just going to ask, on that last bit, is that where you would have the House of Lords more as a UK Chamber, with the Commons becoming more of an English Chamber?

That's certainly one kind of proposal that's been made, although again, one would have to look in some detail at the way that policy competences were allocated across different levels of Government for that to be the case, because, at the moment, the House of Commons is still, for a significant number of functions, an England and Wales Chamber as well. So, one of the other aspects of this constitutional moment relates to those other kinds of questions about how policy competences are asymmetrically allocated across the different parts of the UK, with the single legal jurisdiction of England and Wales being a critical element that makes the Anglo-Welsh relationship quite different to the relationship between the UK level and Northern Ireland or Scotland.  

Diolch.

Thank you. Before I call Huw Irranca-Davies, just one point for Professor McEwen. You mentioned that scrutiny perhaps is more suited towards scrutinising our own Governments within our institutions and perhaps it would be more difficult for joint parliamentary scrutiny. But is it possible, if we don't have some form of formal joint parliamentary scrutiny, that the House of Commons could actually have a committee made up of all MPs from England maybe scrutinising areas that have devolved responsibilities and devolved competencies within them?

Yes, but I suppose I was thinking in particular about scrutiny of inter-governmental engagement on particular issues. So, that's where I'm referring to holding your own Government to account—it's participation in those forums. 

Thank you for that clarification. Huw.

Thanks, Chair. I've got two brief follow-ups, Chair, if I may. First of all, on the issue of scrutiny, just following up on the point that David just made to you, let me put to you that there is limited value in scrutiny if what you have is Ministers coming back from, let's say, a JMC process now—let's say they were meeting more regularly on a range of different topics—and that all we were able to do was scrutinise our own Welsh Ministers who came back to us and told us, 'Yes, we turned up, they told us what the itinerary was, they told us what the agenda was, they discussed it in front of us, and then we left, and then they wrote the minutes'. That, I would put to you, is not scrutiny at all. It's simply a report back. So, I guess what I'm saying to you is that in order to have meaningful scrutiny, there needs to be meaningful engagement at an inter-governmental level. 

I agree, absolutely. 

Thank you for that. Could I have a short follow-up with Professor Wincott? The scenario that you were painting when you described something that was beyond the JMC, which I'm genuinely quite interested in, has elements, I have to say—whether you were talking about nation speaking to nation on a more equal footing, which leaves aside for the moment the question of some of the great metropolitan regions such as Birmingham and Manchester and so on, and how they might speak on some equal footing—but you are, in effect, describing something that has elements of either a federal or confederal system when you go beyond JMCs that are given at the gift of a sovereign UK Government. Now, I'm not saying I disagree with that, but my question to you is this: if you agree that there are elements there that go beyond where we are now significantly towards elements of federal or confederalism, why on earth would a UK Government of any political perspective agree to that? 

Just to be clear, at this stage I'm not particularly advocating any of these positions; I'm trying to talk about what seemed to me to be elements in a debate that is in a different place. I guess what I was trying to do was to speak about what seemed to me to be real tensions, contradictions or ambiguities in the current moment. To be very clear, my own sense is that, even before Brexit, the UK's territorial constitutional arrangements were marked by ambiguities and silences and gaps and so on. 

So, it's not as if we had something that was very clearly set out and followed before all of this. In fact, in some senses, before the Brexit referendum, it was the ambiguities that made the UK system kind of rub along in the way that it did, which was reasonably effective. I suppose what I see at the moment, and reflecting back on your question, is a moment that contains a number of different—indeed, diametrically different—kinds of possibilities in it, so it is very difficult, if you frame the debate in a short-term way, to see why a UK Government would be interested in pursuing that sort of an approach. I mean, for some people, decentralisation or devolution within England is seen as one of the ways that you might be able to solve that conundrum, although, for me, that doesn't speak to the sense of England as a nation and Englishness as a national identity that I think underpins some of the political dynamics in England. So, I think there are new constitutional possibilities.

At the same time, if you asked me what I thought was most likely, then, in the short to medium term, I fear that what's most likely is a sort of mutually hostile stasis, a kind of sub-optimal mutual hostility. The Chancellor of the Duchy of Lancaster, to my surprise—in, I think it was, his Ditchley speech—quoted the Italian Marxist, Antonio Gramsci, at some length. He was quoting him to the effect of being at a moment when the past is dying but the future struggles to be born, and that various morbid tendencies emerge in that context. Well, Gramsci had a concept of catastrophic equilibrium, and it's a bit of a melodramatic way of putting it, but I think that sense of a mutually hostile stasis is definitely one of the things that may come out of this mix.

When Professor McEwen introduced her remarks at the beginning, she talked, and, I think, quite rightly, about the Minister in London wanting to make the UK work and that being the underlying motivation behind the internal market proposals, and I agree. That's at least a very significant part of the motivation. On the other hand, if you think about Boris Johnson the Prime Minister's remarks about directly funding the M4 bypass, that seems to me to be much more directly a political provocation. It's hard, I think, to read it in any other way, especially when you stop and think that it's difficult to see how the UK Government could, in practice, implement an M4 bypass without making use of, or finding some way of bypassing, the planning regulations that are devolved, without having the boots on the ground to make this happen in reality.

So, I think it's that kind of mix of mutual political hostility and then trying to find a way of bringing what is a very difficult situation into a new context. I've emphasised in what I've just said the mutual hostility, but I would want to balance that out by equally emphasising that I think it's also true at the same time that there are possibilities for a different kind of constitutional debate now, in a way that there hadn't been in the past. Perhaps the unsettled nature of the moment allows both those things to be possible. I'm afraid, as a simple academic, I don't have an immediate proposal for how we get beyond the mutual hostility into a position where, as it were, whatever the formal status in constitutional terms of the different parts of this island and these islands, we nevertheless end up being able to live together as effectively and harmoniously as possible, once we're through this process.

Well, thank you both for those answers. Whilst you can't always come up with obvious one solutions, painting different possible scenarios is quite helpful, I have to say. I'm going to go to Akash on a different question at the moment, but, first of all, can I just applaud you for what I think is the phrase of the day—a state of sub-optimal mutual hostility? That trips off the tongue, so I think we're going to relish using that one in future—we'll credit you each time, though.

Akash, if I could turn to you first of all, by extension from the questions we've had already, let's go into the area of common frameworks and the internal market, and where this presents us now with a working model going forward over the next 12 months, two years, three years. How would you see the common frameworks and the workings of the internal market now? How does that help us or hinder us, going forward?

Well, I think just to start with—. The common frameworks programme is another area—we've been talking about the review of inter-governmental relations—where progress has been slower than expected. It has been delayed significantly in terms of where they expected to be at this point, partly because of COVID, which is understandable, but I think also because the publication and then passage of the United Kingdom Internal Market Act 2020 without devolved consent did throw a big question mark over the common frameworks programme.

So, I do think there are some big, unresolved questions, and in terms of how the frameworks and the internal market Act will interact with each other, to some extent, we're just going to have to wait and see. The amendments that the Government, in the end, accepted in I think it's section 10 of the UKIM Act do put into statute reference to common frameworks, which I think is quite interesting. I'd be interested in Professor Wincott's legal perspective on how significant that might be. But there is provision there for agreements reached through common framework discussions and the inter-governmental systems that we hope are being put into place to oversee the common frameworks to lead to exemption or exclusions from the internal market access principles. So, I think that, in principle, is quite an important link between those two things. That obviously wasn't there in the initial version of the Bill. But then, at the end of the day, under the legislation as I understand it, UK Ministers will be required to try to reach consent over the way that they use the powers under the Act, but, if consent is not forthcoming, then they're able to proceed regardless. And that, therefore, does raise this potential for the UK internal market Act to perhaps progressively undermine the ability of devolved Governments to exercise their autonomy in what are technically devolved areas.

So, I think it's genuinely quite hard to say how that dynamic will play out, and a lot will come down to how UK Government as a whole and individual Ministers choose to use that fairly broad power that they now have under that legislation.

Thanks, Akash. Perhaps I could come to Professor McEwen. On the same broad area, but whether or not what is currently put forward in the common frameworks and the overlay of the internal market—is there sufficient in there to make this work for the benefit of all parts of the United Kingdom, or should we, as a committee, actually be pushing for something else? I know we've touched on wider inter-governmental mechanisms already, but can this work as it's currently set up or is it going to undermine—? Are we going to lead to that case, as Professor Wincott said, of sub-optimal—what is it—mutual hostility just being ongoing through this process of common frameworks as well?

I like that phrase too; I think it's very appropriate. Looking at the amendment, the inclusion of reference to common frameworks in the UK internal market Act, it seems to me to be very, very limited. It's still within the authority of the Secretary of State to determine when it may be appropriate to exclude a common framework agreement from the scope of mutual recognition principles in the Act.

Looking at the frameworks that seem to be in that category of non-legislative frameworks, which I think is probably where this applies most, they're quite technical and quite limited in a sense. This has been a technical exercise to deal with areas of EU law that fall within areas of devolved competence. I suppose one might have hoped that that could have been a jumping-off point to develop a style of co-operative government, much as many in the Senedd and the Welsh Government have suggested that it could be. It is clearly not that; it has not been the case at all.

And some of the areas—. If you look at the frameworks analysis, some of the areas that were identified as requiring a framework are swept up in the internal market Act itself—so, mutual recognition of professional qualifications, for example—then others appeared in other pieces of legislation too, including the Agriculture Bill, in areas where consent has been given rather than withheld. So, I don't see the protection of frameworks within the Act as taking this very far, and so I'm afraid to say that I don't see it as overcoming the scenario that Professor Wincott pointed out. So, I think that probably we'd be looking for a bit more to overcome some of the challenges.

Okay. Thank you very much for that. Professor Wincott, that's a good lead-in to you, as to, if you agree with that, what else needs to be done to make these common frameworks with the interplayed internal market actually work now for the whole of the UK.

Yes. Thank you for that. I agree that I think that there are some real challenges here. I suspect that in at least some of these areas there will be an appetite to try to work together effectively, but I'm afraid that I think that the structure here is unhelpful. So, when these ideas about common frameworks and the UK's internal market were floated around Theresa May's withdrawal Act, initially, the common frameworks were seen as the overarching set of arrangements, and the idea of an internal market was, as it were, nestled within common frameworks, whereas what's happened in practice is that the internal market approach has been made a priority.

The structure and approach to the internal market I think is unnecessarily—and even, in some respects, counter-productively—forceful. So, it squeezes out the space for at least some of the common framework approaches, in my view, and, if you look at the process by which the internal market Act became law, really very extensive—surprisingly extensive—and closely argued criticism of the text of the Bill in the House of Lords, made by very, very senior judges indeed, partly in the shadow of concerns about the UK Government’s declared intention to break international law, as I understand it, as part of their negotiating process around arrangements for Northern Ireland. But, effectively, what you see is the UK Government conceding on issues raised in the House of Lords, sort of selectively on the basis of what they needed to concede for political reasons, rather than viewing the whole, as an element of a constitutional architecture and thinking about how it all held together. So, the common frameworks elements I think follow on, if my memory serves me right, from some of Lord Hope’s interventions. Lord Thomas’s interventions, which were more around the financial provisions were withdrawn on the basis that the House of Lords doesn’t overrule the House of Commons on financial issues, but seemed to me to be more remote from the stated core purpose of the legislation, which as Professor McEwen said right at the outset of our discussion, is really about having effective trading relationships, and the right stuff being on supermarket shelves across Great Britain, or perhaps the UK, although the operation of the border in the Irish Sea doesn’t seem to have meant that supermarkets in Northern Ireland are currently being fully supplied in the same way as Great British supermarkets are being supplied.

So, I’m afraid I just don’t see this structure as particularly convincing if you try and view it from the perspective of, from a constitutional perspective thinking about the UK or even GB as a whole.

Thank you very much. Chair, thank you. I think, in broad terms, I’ve covered the area that I think we need to there on common frameworks, David, but over to you.

Okay. Thank you, Huw. David.

Thank you, Chair. I can’t go on to my questions without making some observation on the comments by Daniel Wincott with regard to tensions between the nations. It certainly wouldn’t bode very well if the 60 million people represented by England decided to flex their democratic power. So, I have to make that comment, I’m afraid, Chair.

But if we carry on, I think we’d all agree that the governance structures should be better consolidated, but it is, of course, early days yet. So, can we discuss the role of the Welsh Government in international negotiations? So, what are the panel’s views on what role the devolved Governments should play in UK international negotiations in future, and what governance structures in particular are needed in the UK to support that?

Professor McEwen to start with.

Thanks for a really interesting question. It goes back a little bit to something that Akash Paun was talking about earlier, where sometimes the Governments will meet in areas where it’s a matter of devolved competence, and there they might meet as equals with parity of esteem and so on, and sometimes they might meet on an area of reserved competence, and trade would be one of those. And the point of the meeting is that that area of reserved competence has an impact on the responsibilities of the devolved Governments, so it is entirely appropriate, in my view, from a constitutional perspective, that there is an opportunity for them to meet, and not just to hear about negotiations that are taking place, but to try to shape them and influence them. Even from a purely practical point of view, in the context of trade negotiations, it is surely important that whatever is negotiated and agreed can be implemented within the UK, across the UK.

Now, one way to do that would be to centralise the authority to do it, and to make sure that it happens. Another, perhaps more constructive way to do it would be to engage the devolved Governments in the discussions—in the discussion of the mandate to check the fit with areas of their responsibility, to check that the things that are talked about as potentially being agreed won't have a detrimental impact adversely on their areas of competence. So, there are a lot of models for this. The comprehensive economic and trade agreement is often talked about in terms of a model not to follow for the influence that the Walloon Parliament was able to have over blocking that process. That's a perspective; you can see that as a positive or a negative.

But perhaps a better model, I've always thought, was the one that the Canadian provinces had in relation to the Canada-EU negotiations, where they were part of the discussion—they were in the room or on the outskirts of the room, inputting into the debate on an ongoing basis to ensure that their priorities were recognised and to ensure that the concerns were recognised. And I think something like that, it would seem to me, would be appropriate. I know that it has been a bit more positive on trade in terms of the inter-governmental discussions, but it's not very transparent, so I'm not really clear on the forums that are being used, but something a bit more structured, I think, would be a good opportunity.

Professor Wincott.

Yes, again, I agree with what Professor McEwen has just said. I suppose my observation would be that the current structures of devolution aren't especially well adapted to the kinds of input that she was alluding to, and there will always be, I think, a tension between the desire of the central authorities in the UK state to want to be able to make progress on international negotiations as they see fit, and the difficulties of bringing in other kinds of voices to those discussions. I think that is a fairly basic kind of tension.

If I may just briefly, in response to David Rowlands's observation: I'm not, I hope, advocating for any particular form of new political or constitutional arrangement; I'm trying to discuss some of the debates and some of the issues that are out there. And I would say that the public attitudes evidence, as I understand it, does suggest that there is at least a kind of latent, but potentially powerful, body of opinion or attitudes in England that may come to prove powerful in any more fundamental constitutional debate we have about the next stages. And I'm not saying whether that's a good thing or a bad thing; I'm just trying to observe that I think that is an element of the current complex, but I'm saying that parenthetically. I don't want to distract from the substance of your question.

I would agree with you on that anyway, to be quite honest with you.

Akash, would you like to add anything in answering the question?

Yes, I think the general rationale for why there should be systematic and proper involvement of the devolved Governments in formulation of UK trade policy is clear. As Professor McEwen said, this is an area where, of course, the UK Government will be in the lead position. Its trade policy and international negotiations are a reserved matter, but we fully expect that trade deals, if they are to be big, comprehensive deals of the kind the Government is looking to strike, will have a significant impact on areas of devolved competence. And of course, we were talking about the internal market Act before. The internal market Act, of course, will apply to imports into the UK as well; the mutual recognition principle will apply to imports that the UK Government may allow as part of a trade agreement. So, I think there will be obvious intersection and getting the structures right is important.

In terms of what's going on at the moment, as I think I mentioned before, there is a ministerial forum for trade that was set up last year, but there is very little on the public record about that. I note that it is not even listed on the new inter-governmental relations transparency page that the Cabinet Office set up late last year. I'm not quite sure why. And it's another area where there is a promise of a published memorandum of understanding early in 2021 that I don't think has yet seen the light of day. So, it's certainly another area that's a bit of a work in progress.

Thank you. David.

Carrying on the theme of governance structures, could the panel give us their views on the effectiveness of the current ministerial forums that have been established to engage the devolved Governments in the EU and other international negotiations? And if I can go on just to add to that, for the panel's views also on what role the Welsh Government should have in relation to any working groups established as part of free trade and other international agreements, because there are a number, obviously, of these groups being established at the moment.

Akash, you've talked previously about the JMC on trade, for example. Do you want to expand upon how we may not always see it being visible, but its effectiveness, in one sense?

I'm not sure I have a huge amount to add, I'm afraid, Chair, other than, as I've already said, the body has apparently been set up, but it is due to take on a more formal status through the view of inter-governmental relations or possibly just in its own right. There is a report, by, I think, the Welsh Affairs Committee, that looked at this issue last year and took evidence on the involvement of the Welsh Government in trade negotiations, and that was the evidence that they were given—that there would be a published memorandum of understanding. I also have seen the Welsh Government and the Counsel General say that the involvement that they've had through that body has been welcome—the body has been productive and they've had a greater degree of involvement and forewarning of UK decisions than the Welsh Government had during the Brexit process. But beyond that, I'm afraid I've not really looked across the detail of how that's been operating in practice.

Okay. Thank you. Just to inform you, we are still waiting for a decision on the concordat for that information as well. We've raised this very often with the Counsel General and his predecessor. Professor Wincott.

Again, I don't have a huge amount to add. I guess, perhaps as a sort of counterbalance to some of the other things I've been saying this afternoon, it might be worth underscoring that, although the performance of the ministerial fora had been patchy and some seemed to work more effectively than others, there is, I think, some truth in the observation that some of these fora seem to work better than you'd expect in challenging circumstances. So, I think that what we know so far—and we don't know an awful lot, for the transparency reasons that I think Akash Paun was alluding to—the trade stuff is working better than I might have expected.

Professor McEwen.

I don't have a lot of insight either, and I think that's part of the problem. Broadly, I am in favour of formalising things for a whole host of reasons, but one of them is that it makes your job a bit easier, to know what's going on and to be able to scrutinise the whole process. But I'd agree with Dan as well, and I was thinking, actually, more about relationships with the Department for Environment, Food and Rural Affairs, which, over a number of years have—as far as we're aware—been broadly positive and co-operative and constructive, and you wouldn't want a formal structure to undermine that. So, I think the informal is important as well. Personally, I do think the formalisation of structures can help, particularly in those areas where you don't have that tradition of communication and co-operation to help to nurture something similar. But also, and I think it's really important to emphasise this, the oversight function that committees such as yours ought to have over these processes is really important. It's an important part of the democratic process.

Right. Thank you very much for that. I want to make one last observation. We now have 40 representatives in the Parliament that governs us, whereas we in Wales only had four in the European Union.

That's an observation David’s made, and I will add to that: there are 40 MPs in the Parliament; there are 60 Members of the Senedd in another Parliament that governs us as well.

Exactly.

Okay. Thank you, David. I suppose we're coming to the end of the session, because, I think—unless someone's got a specific question they want to ask. I see no-one adding to that. We have been so very careful to look at the way in which Wales plays a part in the UK, and yet we’ve stayed off the topic of what happens to the UK. It's a hypothetical question, I know, and that very much depends, but what are your observations of perhaps the role of Wales if—and there's a huge 'if' here, because first of all, there have to be changes, then there has to be a referendum, then there has to be action on a referendum, and the UK Government has to approve that referendum, for example, but if the Scottish people decided they wanted an independent nation, how would you see the dynamics within the UK change? And I know it's all hypothetical, I accept that, but these are questions that will be posed in the forthcoming elections, I'm pretty sure. I think it's very important to have perhaps your consideration—and I accept hypothetical consideration—of what would be the position of Wales in a reformed or different United Kingdom. And I'm going to Professor McEwen to start with, because, clearly, you’re currently based in Scotland.

Okay. I'll have a go. I think, first of all, I was going to say that we've been talking a lot about potential changes to the way that the UK is governed just now, in its current configuration—and leaving aside whether there’s a political will on the part of the current UK Government to engage with those sorts of issues anyway—but I don't think there would be buy-in across the political divide within Scotland for any of those sorts of changes until there is an independence referendum. So, because that's so dominant now and support has got to such a level that it's difficult to seek consent for any other reformed structure, however fundamental it might be, without first addressing that question—and that’s assuming that question resulted in a ‘no’ vote. Of course, it might not; it might result in a ‘yes’ vote, and that's your scenario. Where does that leave Wales? In a really, really difficult position. There is a risk, I think, that—it's always been quite difficult for Wales in asserting its status. It's been too easy, I think, for Wales to be overlooked in aspects of central Government, and the intervention of George Osborne the other week was insightful in that respect. But I think there are also opportunities, too. I've always thought that independence, were it to happen, would be, at least in part, about a reconfiguration of relationships across these islands, and I think that sort of perspective is one that is much more easily understood in Wales than perhaps it is in Westminster and Whitehall in particular. So, trying to reimagine what that would look like, I think, creates a space for a Welsh Government that could, if things continue as they are, nurture a trusting relationship with all of the Governments of these islands, and maybe play the honest broker, which is a role that Wales has traditionally been able to play in some of these more difficult discussions. So, that's the optimistic look on it, but I think—

We must keep the optimistic look in that case. [Laughter.]

I think there would be fundamental concerns, obviously, as well.

Professor Wincott.

I think this is, for Wales, really a fundamental question, and a question that is, in a sense, posed already by the state of the debate in Scotland and the debate about Scotland in Whitehall, and in particular in Westminster. I'm struck by the difference in the tone of the debate around Westminster in relation to Scotland and Northern Ireland. And looking back historically, actually, which is something in my more academic moments that I do, I'm also really struck by how little Irish independence impacted on constitutional debates and discussions about the nature of the United Kingdom. At that point, it was relatively straightforward because, formally, the state only became the United Kingdom with the union of Great Britain and Ireland. So, in one sense—although I'm sure this wouldn't happen—if there was a border poll and Ireland unified, the remaining state, even if it included Scotland, would, in principle, I guess, revert to its historic designation as the Kingdom of Great Britain, rather than the United Kingdom. And yet, in the London-focused political debate, I think there is a kind of sense of relative relaxation about the possibility of Irish unification, whereas Scottish independence, for many at the elite level, seems to strike very fundamentally at how they understand the nature of the state and its future. And in that sense, I think the condition of the debate in Scotland, to which Professor McEwen has alluded, is part of what's driving this sense of trying to rethink constitutional arrangements more broadly, and captures, I think, this sense of tension right at the heart of the current moment.

So, it's hard for me to imagine many people, or a position where someone in Wales was supportive of devolution in Wales in its current mode and didn't agree—and I think this is the official position of the Government here—that, in principle, the matter of Scotland's future is a matter for the people of Scotland to decide. I think one of the things that is making, or has the potential to make the debate within Wales more divisive, is contemplating what it might mean to be left in an England and Wales state, and trying to imagine whether devolution could work for Wales in that context. And I suspect that's driving some people to a less ambitious form of devolution or even an abolition of the devolved arrangements, and driving other people towards more of a consideration of independence in Wales. And although the polling evidence on support for Welsh independence still leaves it in a minority position and not supported by many more people that are very sceptical about devolution in Wales, I don't think there's any question that the quality of the debate around independence has changed over the last few years in a significant way in Wales. And also, as in Scotland, there’s quite a lot of evidence that there’s an age gradient there as well. In other words, that younger people in Scotland and Wales seem to have a feeling and affinity for independence that isn't present amongst older people, and that's not to comment on the economic viability or attractiveness of independence in either case, but just to make an observation about attitudes and the way that those potentially feed into that sense of sub-optimal mutual hostility that I mentioned earlier.

If I can just crave your indulgence for a moment, I do think, if we are thinking about the reconstruction of constitutional arrangements across the UK, the observation about the size of the Senedd that was made earlier by the Chair is very important. Professor McEwen has quite rightly emphasised the importance for reasons of democratic legitimacy of scrutiny across a whole range of topics, and we've talked quite a lot about inter-parliamentary relations and so on. I find it very hard to see how a Parliament, a Senedd made up of the number of Members that the Senedd has at the moment can effectively carry out all those functions in a new context, but that's a parenthetic comment.

Thank you. Akash, I give the last words to you.

Thank you, Chair. Well, there's obviously a huge number of unknowns in imagining this scenario. I do think that the loss of the union from a UK Government perspective—the loss of Scotland, shall we say, if such a referendum were to be held and won by the independence side, would be absolutely catastrophic for the reasons that Professor Wincott was just laying out, which didn't quite apply in the same way when Ireland, or most of Ireland, secured independence. It would be felt much more deeply at the heart of the British state, shall we say. For that reason, I do think it's almost impossible to predict exactly how the political dynamics would play out in that context. That would be surely a Government-destroying event, maybe a party-splitting event, depending on who was in charge. It's very hard to know what would happen in that scenario is the reality.

I think, surely, one would imagine in that circumstance there would, of course, be a debate about whether Wales should and could follow suit. As things stand, not just that public opinion data on this shows that support for Welsh independence is far weaker, but also, the fiscal situation means that making the case for an independent Welsh state, as things stand, would be a far more difficult thing to do, I suspect. But then, if Wales were to remain in a shrunken Westminster-dominated state, I think it would face the risks of being dominated by a new unitary state mentality from Westminster. But, as I say, it would really depend. The Labour Party under Keir Starmer is, of course, embarking on some kind of constitutional commission process, thinking about federal principles and so on. So, that may lay the foundations for a federal kind of relationship between the nations of the UK, whichever of the four decide to remain within the UK. 

Thank you, Akash. Can I thank you all for your contributions this afternoon? It's been very helpful and very interesting to listen to the views regarding the role of Wales in the UK in the future, the governance issues that we need to address and the scrutiny issues we need to address. So, thank you very much for your time. You will all be aware that you will receive a copy of the transcript and, if there are any factual errors you identify, please let us know as soon as possible, so we can have them corrected. So, once again, thank you for attending this afternoon. It's been very helpful.

Thank you.

Thank you.

Thank you. Diolch.

For Members of the committee, we move on to item 5 on our agenda, which is papers to note. The first of them is the paper from the Citizens Advice Cymru briefing, which is changes to freedom of movement after Brexit. We did mention this last week, and this paper has now been published in our papers. So, are people happy to note that? I see they are.

And the second one is correspondence from the president of the European Committee of the Regions, and from the president of the CoR-UK contact group. Both did this jointly to the President of the European Commission regarding the trade and co-operation agreement, and I hope we are able to discuss this under item 9 of our agenda, so at this point, are Members content to note the paper? I see they are. 

In that case, we have previously agreed that for the remainder of the items on the agenda, we will move into private session, and this will be the end of the public session for the day. So, we now move into private session for the remainder of today's meeting.