5. 4. Statement: The EU (Withdrawal) Bill

Part of the debate – in the Senedd at 3:44 pm on 19 September 2017.

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Photo of Carwyn Jones Carwyn Jones Labour 3:44, 19 September 2017

Members will be aware of our legislative consent memorandum that was published last week. That memorandum sets out in detail those aspects of the Bill that require the Assembly’s consent, and describes very clearly why we don’t accept the Bill in its current form. I don’t propose to rehearse those arguments in detail again. Rather, I’d like to focus on the constructive solution, which the amendments published represent, a solution to a problem entirely of the UK Government’s own making, and one which could have been avoided had there been any genuine attempt to engage with the devolved administrations on the content of this Bill. We don’t bite. It would have been much easier for us to have had this discussion some time ago.

Let me first be very clear about our overall approach to the matters that the Bill seeks to address. To make the first and obvious point, bringing forward these amendments is not about challenging the principle of Brexit. They don’t challenge the referendum result, but we must have a Brexit that respects devolution and these amendments are designed to secure that. We’ve always recognised the need to prepare our laws for EU withdrawal, and agree that legislation is necessary to provide clarity and certainty for citizens and businesses as we leave the EU.

We agree that it makes sense for EU law to be converted into the various laws of the UK at the moment of withdrawal, and that the legislation to enable this to happen is best enacted for the whole of the UK in the Westminster Parliament. And we agree that Ministers need delegated powers to make the very many technical amendments that will be necessary to ensure that the law continues to work properly. We’ve always accepted there will be areas of policy that will require agreement across all four Governments to ensure that, when we’re outside the EU, we do nothing to inhibit the free flow of trade within the UK. And we explained how this matter should be approached in our policy document, ‘Brexit and Devolution’, which presents a clear and workable approach, which both respects devolution and answers the questions of how to ensure a level playing field across the UK in respect of policies where, to date, EU regulatory frameworks have provided this.

But, the Bill as it currently stands simply isn’t fit for purpose. It wouldn’t secure the transfer of all EU law onto the UK statute book: the exclusion of the charter of fundamental rights is a glaring and politically driven omission. It would give UK Ministers extraordinarily sweeping powers to amend primary legislation, and it represents a fundamental assault on devolution. It would replace current constraints on this Assembly’s legislative competence, which will fall away as a consequence of the UK leaving the EU, constraints that, it should be noted, apply equally to the UK Parliament, which no more than we can legislate in ways that are incompatible with EU law, with a new set of constraints that would apply only to the devolved institutions and would be controlled by the UK Government.

So, we’ve worked with the Scottish Government to develop a set of amendments that will seek to address the Bill’s shortcomings as they relate to devolution. I’ll describe briefly what these amendments seek to achieve, but before I do so I need to say yet again that this is not about seeking in any way to frustrate or reverse the process of EU withdrawal. To those who continue to peddle this canard, I simply extend an invitation to identify which of our amendments would, if accepted, have such an effect.

Llywydd, the amendments we’ve published seek to achieve four objectives. Firstly, they remove the new restriction placed on the competence of the devolved legislatures and Governments that puts beyond our powers all of the retained EU law being converted into domestic law. This is a wholly unnecessary provision that cuts across the principles of the devolution settlement. As I’ve already highlighted, the Welsh Government has put forward a constructive alternative to this restriction, with the UK and devolved administrations agreeing common frameworks where needed in the interests of the UK as a whole. Had they chosen to engage with us on this, the already infamous clause 11 might not have been necessary.

Secondly, the amendments prevent the wide-ranging delegated powers given to UK Ministers from being used to amend the Government of Wales Act 2006 or the Scotland Act 1998, or require the devolved administration’s consent to do so. It can’t be right that Acts of such constitutional significance should be amendable by UK Ministers without the agreement either of the devolved legislatures, nor indeed the UK Parliament itself, under the existing well-established rules and conventions.

Thirdly, they require UK Ministers to seek the consent of the devolved administrations if they use their delegated powers in areas of devolved responsibility. We recognise that there may be circumstances where, for practical reasons, it makes sense for UK Ministers to use their powers in this way, but we cannot accept that they should be able to do so without our consent.

Finally, the amendments remove restrictions on the delegated powers granted to devolved administrations so that they’re brought in line with those granted to UK Ministers. There is no basis for placing limitations on the powers of devolved administrations that do not also apply to UK Ministers. Let me be clear, however: this doesn’t mean that we want the sweeping powers contained in the Bill as currently drafted. Like many others, we’ve got concerns about the breadth of the powers and the limited scrutiny of their use that the Bill provides for, and will willingly give our support to amendments brought forward in Parliament to ensure that the powers given to the UK Government and ourselves as Ministers are appropriate.

Llywydd, yesterday I spoke at an event arranged by the Institute of Welsh Affairs to mark the twentieth anniversary of the devolution referendum. There’s a bitter irony in the fact that I stand here today making a statement on a UK Bill that represents the greatest threat, I’d argue, to our devolution settlement since the day that referendum was won. I very much hope, then, that the UK Government will think again about its approach to the devolution aspects of this Bill.

I hope that they, and all Members here, will recognise that these amendments represent a constructive contribution that would deliver the clarity and certainty that we all agree is necessary, whilst respecting the hard-won devolution settlements of the UK. It’s not about stopping Brexit; it’s about protecting the interests of the people of Wales. We are ready and willing to work constructively with the UK Government to reach agreement on the Bill, but if they continue to plough on regardless, they’ll spark a constitutional crisis that they don’t need and we do not want.