The next item, therefore, is the debate on a Member's legislative proposal, and I call on Steffan Lewis to move the motion.

Motion NDM6576 Steffan Lewis

Supported by Adam Price, Dai Lloyd, Leanne Wood, Rhun ap Iorwerth, Siân Gwenllian, Simon Thomas

To propose that the National Assembly for Wales:

1. Notes a proposal for a Welsh Continuation Bill.

2. Notes that the purpose of this Bill would be to affirm the continuation in Welsh law of all areas previously a matter of EU law that fall within the legislative competence of the National Assembly for Wales in accordance with the Wales Act 2017.

Motion moved.

I'm very pleased to formally move the legislative proposal for a Welsh continuity Bill. I want to also place on record, Llywydd, that the introduction and even enactment of a Welsh continuity Bill is not, and has never been, the preferred option of Plaid Cymru.

Indeed, I recall suggesting in the aftermath of the European referendum that the four Governments of the UK get together, perhaps using an accession in reverse template as a means of establishing how we leave the European Union and how we can accommodate the constitutional complexities of this union. That would not have been easy, it wouldn't have been a straightforward process, and it would've taken time. But, it would have been the best process, the fairest one, and it would've resulted in the UK being in a position to trigger article 50 with its eyes wide open. The UK Parliament then could have considered a far more satisfactory withdrawal Bill that would have effectively been concurrently written and agreed by all Governments of the UK. Instead, Llywydd, the UK Government have shown little but contempt for the devolved nations.

Members will recall my alarm at the now infamous paragraph 4.2 of the UK Government White Paper for what was then called the great repeal Bill, which intentionally misrepresented how the UK agrees to common EU frameworks that refer to devolved matters. Plaid Cymru correctly predicted at the time that this misrepresentation acted as a means to lay the groundwork for a Westminster power grab, and here we are with the now named EU withdrawal Bill, which is a naked power grab if ever there was one.

Clause 11 of the Bill will put new constraints on this Assembly's ability to legislate. Powers over long-devolved matters, like agriculture and environmental protection, will be seized by Ministers in Westminster. Decisions that will deeply affect the livelihoods of Welsh farmers, for example, will be made in Westminster by those who are also very keen to strike new trade deals with countries like America, Australia and New Zealand at all costs.

The UK Government have promised that the Assembly will be strengthened, offering substantial new powers, although they have been so far unable to identify a single one. Since the alarm bells have been ringing, Plaid Cymru has called for unilateral legislative action in the form of a continuity Bill, not because we wanted Wales to be under this threat, but because Wales is under this threat.

Llywydd, when I've spoken about a continuity Bill in the past, there have been a few Members here who have questioned my motives and, perhaps, suspected that it's part of a remoaning Welsh nationalist plot to stop Brexit and bring down the British state somehow. Well, I have learned in the last few weeks that life is far too short not to say what you believe and to believe what you say. I am a Welsh nationalist, and I will always believe in a European future for my country, but whether you were leave or remain, and whether you are unionist or nationalist, are irrelevant to the question of the continuity Bill. Whether to support a continuity Bill or not comes down to how you answer one simple question: do you believe that the referendum of 2016 provides a mandate to the UK Government to remove powers from this National Assembly? Plaid Cymru says it does not provide such a mandate, particularly when quite the opposite was promised to the people of Wales during that referendum.

Llywydd, timing is also important and I am at a loss to understand why the Welsh Government wishes to push this issue to the very last minute. Not one Welsh Government or Scottish Government joint amendment was accepted by the UK Government in terms of the withdrawal Bill; the UK Government even broke its own promise to bring forward its own amendments to improve the Bill at Reporting Stage. What more do they need to do to threaten Welsh devolution before we are prepared to act in defence of our hard-won democracy?

Llywydd, be in no doubt: once they have their hands on Welsh agriculture, the Welsh environment, there are measures that they will implement that may prove irreversible if ever we get those powers back. We have a window to act in the interests of our citizens and the rights and standards that they hold dear, in addition to the democratic structures that they have endorsed in two referenda. Let's take this opportunity with both hands. I commend this proposal to the National Assembly. [Applause.]

Although the UK Government's European Union (Withdrawal) Bill doesn't actually take back existing competencies from the Assembly, there is no end date for the restriction on devolved competency created by the retained EU law model it would introduce. We, Welsh Conservatives, instead believe that any common framework in any area must be agreed and not imposed by the UK Government, and further we will support this motion on the basis that it notes only a proposal for a Welsh continuation Bill.

However, we do welcome last week's statement by the Secretary of State for Scotland, confirming that amendments to clause 11 of the Bill will be brought forward in the House of Lords, and adding,

'I regret that it has not been possible to bring forward amendments at the report stage but our commitment to improve the bill remains absolute.' 

We, here, received assurance that the language used by David Mundell last week still stands.

Will the Member give way?

As the—. Yes, indeed.

I thank the Member for giving way. Do you agree that it's disappointing that they've had the Welsh Government's and Scottish Government's amendments since Novermber, they've had our committee's amendments since November—they've had plenty of time to actually look at these and produce their own amendments by the Report Stage, which was actually yesterday and today?

I'm coming to that. I share the disappointment expressed by David Lidington, which I'm going to come to.

As the Scottish Conservatives' constitutional spokesperson said last weekend,

'clause 11 of the bill needs to be amended to restore the spirit of the Scotland Act.'

And obviously, by association, legislation applying here. He said:

'There is a fundamental principle on which Scottish devolution rests and has rested since its creation 20 years ago which is that everything is devolved unless it is expressly reserved.'

He said,

'that is the principle that clause 11 needs to be amended to comply with and that is our position too.... It is relatively easily done. This does not have to be difficult.'

May I say that that is also the Welsh Conservatives' position here? 

Will you take an intervention?

We also supported the—.

Thank you for taking the intervention. Just very briefly, much along the lines of a libertarian argument on public surveillance—if you've nothing to hide, you've nothing to fear—is it not the case also that, if there's nothing to fear from the undermining of the integrity of devolution from what the UK Government are seeking to do, why not just have a belt-and-braces approach and introduce a continuity Bill as well?

I've said that we are going to support this motion—I hope that that should provide you with some reassurance—but on the basis that we note.

We also supported the External Affairs and Additional Legislation Committee's European Union (Withdrawal) Bill interim report on the legislative consent motion, including its objective 1, to remove the clause 11 restriction on the devolution settlement. And, although, despite all the work that continues on the withdrawal Bill and frameworks, the UK Government is not yet in a position to table amendments to clause 11, it's understood that the new man at the Cabinet Office, David Lidington, spoke with the First Minister on 9 January and the next day expressed disappointment that agreement had not yet been reached on amendments to devolution aspects of the withdrawal Bill. He also said that he's committed to work to reach agreement with Welsh and Scottish Ministers and that this work will intensify. The Prime Minister also repeated that commitment at Prime Minister's questions in Westminster. It would therefore be helpful if the Cabinet Secretary could update us on the further discussions that he or the First Minister have had regarding this with both the Cabinet Office and the Welsh Office. Thank you.

In the three minutes I have, I rise to support this motion. I do so because this is probably a motion on what may be the most important constitutional piece of legislation that we can bring to this Assembly. I don't have time to go into detail, so I'll sum up very quickly: there are two major constitutional issues that are coming before the House of Lords. One is the upholding of the Sewel convention, and where the House of Lords effectively acts as a constitutional wing of Parliament, that it will not legislate in the absence of a legislative consent motion from this Assembly, which, at the moment, it seems that it is impossible for us to give in the light of the Bill. And the second one is the actual support of the devolution statutes, which would require, in those areas that Parliament has already devolved, the consent of this Chamber.

The Bill in its current form—let's be very clear, it is a continuity Bill of its own, but it's a continuity Bill for the British state and one that also seeks a recentralisation of the British state. I think that, in the absence of any clear amendments from the UK Government to accept the devolution statutes and the principles that underline them about decentralisation of power, and in the absence of any guarantee on financial autonomy for this Chamber—because that's another very important area that we mustn't forget to it, the financial autonomy of the Welsh budget, which the withdrawal Bill also seeks to undermine—that means that the position is totally unacceptable. It is lamentable that the UK Government has failed, at every stage, to either engage with or to properly participate with this Government in the actual drafting of a proper constitutional settlement within the withdrawal Bill.

There is no constitutional logic to the UK Government's position, because just about every parliamentary committee and every Assembly committee that has considered the constitutional position recognises that the starting point of the UK Government is fundamentally wrong. For that reason, we are left, in the absence of any last-minute major constitutional changes by the UK Government, with the position of 'What do we do?' We can either wait and see whether the withdrawal Bill goes through in whatever format—and that isn't a guarantee by any stretch in any event—or we can say, ourselves, 'It is time for us to assert what is the correct constitutional position of this Assembly and to have that on the statute books', so that, when the Lords consider this matter, they are not just considering the issue of legislative consent and Sewel and upholding those constitutional conventions, they're also considering legislation we have passed with Royal Assent that properly sets out what the constitutional powers and authority of this Assembly are. Thank you.

Thank you, Llywydd, and thank you to Steffan Lewis for an excellent speech that summarised the situation we're facing at the moment and how late in the day it is in terms of these principles.

I want to focus on the environment and agriculture in this context. It's important to bear in mind that some of the most fundamental principles in terms of our environment have emerged from European legislation—the precautionary principle has emerged from European legislation, and also the principle that the polluter pays. Now, both of these principles are a foundation for the laws that we pass in this place in relation to the environment, and, as we exit the European Union, I'm of the view that people in Wales do want to keep hold of these principles, and the most convenient way of ensuring that is by supporting a continuity Bill.

The third thing that emerges from the environmental sphere in this area is that Welsh citizens at the moment have a right to go to the European Court of Justice in order to access environmental justice, and there have been no guarantees given or safeguarded in the European Union (Withdrawal) Bill to ensure that it would be possible to seek environmental justice as we leave the European Union. I think that that principle has been crucially important. Just today I asked a question of the Minister, Hannah Blythyn, about the fact that there was a court case against the Welsh Government in terms of air pollution. Now, we should be safeguarding the rights of citizens to challenge any Government—the Government here, the Government in Westminster—on the basis of their failings in the environment. That is secured within the current system, but we need a continuity Bill to secure that access too.

The second principle in agriculture is this: if we see that the hands of Westminster are going into our pockets for the funding that is currently safeguarded under CAP, and is twice as much as we would get under any Barnett formula arrangement—once Westminster gets its hands on that money, less and less will be transferred as part of the budget. Mick Antoniw referred to this. The current system doesn't safeguard the budget for this place, and, specifically, it doesn't secure the flow of funding that has emerged from the common agricultural policy and has provided such sustenance to so many farmers and rural communities in Wales. On that basis alone, we should argue for a continuity Bill.

I encourage the Government, as I did last week—. As I said, don't trust the Tories, and you said that you don't trust the Tories. Well, don't, then, believe that the House of Lords is a means of delivering the amendments that we need to see. Publish the Bill now, in draft form, so that we can see the way forward clearly, and publish the Bill in draft form in order to bring persuasion to bear on the Westminster Government.

It's impossible, of course, except for reasons of perversity, to oppose this motion, because it's just a 'take note' motion, but I want to make it clear that I, and my party, also support the intention behind the motion. I haven't always taken that view, because, following what Steffan Lewis said in his compelling opening speech today, I had perhaps thought originally that the purpose behind this was somehow to delay or get in the way of the Brexit process. I've now come to believe that that is not the intention behind it, and it's regrettable that the United Kingdom Government has made the Brexit process less palatable to people who were against the decision that the public made in the referendum campaign, and would like to have avoided that, but I do believe that most people who are in that position do not now want to reverse the process. I do think it's unfortunate that the United Kingdom Government, therefore, has made it more difficult to pass the EU withdrawal Bill than it need have been. I have to say that it's par for the course, in a way, because, as Simon Thomas pointed out yesterday, it's rather extraordinary that the Secretary of State for Wales, on a transparently bogus excuse, refuses to meet the Finance Committee of this Assembly.

The devolution settlement is one that I didn't want in the first instance, and that was a referendum—two referenda—where I was on the other side from those who won, but I unreservedly accept the decision of the Welsh people, and it's actually been a great pleasure to me to be here to help make that work. I've become a lot more enthusiastic about it, as a result, as well, and I see the advantages of further devolution because I see the EU withdrawal as the ultimate devolution Bill, in a sense, for bringing power back to the people. I believe in devolution of taxation, because that makes the Welsh Government more responsible, and I believe in competition between the nations of the United Kingdom in public policy terms. So, there are great advantages in this, and I want us to see the EU withdrawal accepted by as many people as possible, and indeed embraced with enthusiasm.

So, I think that the policy of the United Kingdom Government's actually quite contrary to the best interests of those of us who want to see Brexit achieved as quickly and as completely as possible. So, I am delighted to support this motion today, and to congratulate Steffan Lewis on the way that he introduced the debate, in what I thought was a splendidly succinct speech, which was also complete as well as compelling.

The Bevan Foundation published a report in 2016, after the EU referendum, called 'Wales After Brexit: An Agenda for a Fair, Prosperous and Sustainable Country'. I was particularly struck by the opening message, relevant to the debate today:

'Nobody knows what the future holds—the optimistic and pessimistic forecasts are all based on assumptions that may or may not be realised.... How our leaders respond in these extraordinary times will be critical.'

So, I do welcome the Member's legislative proposal debate, initiated by Steffan Lewis today, and I wish to start by thanking Steffan for his robust and constructive scrutiny in the External Affairs and Additional Legislation Committee of all things relating to Brexit. Having recently joined the committee, I've looked to Steffan for his extensive knowledge base, as well as attention to detail, guided as well, of course, by the Chair, David Rees. Steffan has been resolute in addressing the issues and impact of Brexit on Wales, and we've every reason to respect and support his motion today and thank Steffan for raising a question, for example, of the First Minister last week welcoming the £50 million transition funding announcement. I do see that as an example of the way the Welsh Government has shown leadership and grasped its responsibilities, which, of course, started with 'Securing Wales' Future', in partnership with Plaid Cymru, with six key objectives, which have stood the test of time since it was published.

It's against these objectives that further work has been undertaken by the Welsh Government, most recently with the paper, 'Regional Investment in Wales', providing a clear way forward for Welsh Government to exercise its responsibilities, with a call on the Welsh Government to make good on promises in the EU referendum—part of the objectives, of course, of 'Securing Wales' Future'—to ensure that Wales is not a penny worse off as we leave the EU. The plan provides the framework for utilising replacement regional funding across public, private and third sectors.

So, this does demonstrate the commitment of the Welsh Government to be constructive and responsible in terms of negotiations with the UK Government, but unwavering in its commitment to safeguard the devolution settlement. The UK Government's negative response to amendments from not only the committee but both Welsh and Scottish Governments to the EU withdrawal Bill—a naked power grab, as Steffan Lewis has described—provides no certainty that the UK Government will respect our constitutional settlement or the constructive approaches that we have made as a legislature, and the Government have made.

So, the First Minister's statement yesterday, and your motion today, Steffan Lewis, provide more than a warning to the UK Government of our position. I want to finish by referring to just one of the six objectives in 'Securing Wales' Future', which puts into context what's at risk. And, of course, Simon Thomas refers to the environmental protections. I would also, finally, like to say guaranteeing EU rights for working people, including—just one example—equal treatment of part- and full-time workers.

So, I'm glad that the Welsh Government has prepared a continuity Bill. I thank Steffan Lewis for giving us the opportunity to consider its importance today. It needs to be debated, it needs to be supported, and you have my support.

I'm proud to rise in support of my colleague Steffan Lewis's excellent presentation on the need—the absolute need—for a Welsh continuity Bill. It's the only way to save our sovereignty here in Wales. Let's be plain: we stand at a crossroads here at the National Assembly for Wales. We have lost powers already with the Wales Act. Since the last referendum, where the people of Wales overwhelmingly voted 64 per cent in favour of increasing the powers of this Assembly, we've managed to pass 22 pieces of legislation, since 2011. Had the new Wales Act been in place since 2011, we would have only been able to pass eight such pieces of legislation. We have already lost powers and we are facing losing more, which is the current pressure on the timeline of the current legislation about minimum alcohol pricing. We must get to the end of Stage 1 of that legislation by April Fools' Day; otherwise, it falls.

Following Brexit, we face losing more powers with the EU withdrawal Bill—powers that we've always had here in the National Assembly for Wales since 1999. Fisheries, environment and agriculture always came from Brussels to Cardiff. Now, all of a sudden, there's going to be a redirection—Brussels to London—with no guarantee for what's going to come on to Cardiff. That is totally and utterly unacceptable. We've had a lot of talk about respecting the results of referendums, and I do. But, let's respect the result of every referendum. That includes the one of March 2011, when the people of Wales voted resoundingly to have more powers in this place. They certainly have never voted to lose powers, and in the last Brexit referendum, they did not vote to lose powers from Wales. In fact, those on the 'leave' side were continuously going on about how leaving the EU would increase the powers we would have in Wales. Well, that's a very hollow promise in the face of a reality of the EU withdrawal Bill and UK Government doing nothing about this Government's honourable amendments to that Bill.

Steffan has proudly led us as a party, and this Assembly, in all his diligent hard work over many months on the whole complicated and vexed issue of the EU withdrawal Bill. I pay tremendous compliments to his hard work, ingenuity and intelligence in scrutinising every little last detail; a shame it is not replicated up in Westminster. Support the continuity Bill. Diolch yn fawr.

I call on the Cabinet Secretary for Finance to respond to the debate—Mark Drakeford.

Thank you very much, Llywydd. Thank you for the opportunity to respond to the debate. I'd like to start by saying on a personal level, as Jane Hutt said, how pleasing it is to see Steffan Lewis once more leading a debate on Brexit here in the Assembly. Members of the Government will support the motion, which notes the position that has been reached at the moment on the continuity Bill.

The First Minister set out yesterday our position on a continuity Bill. The UK Government's European Union (Withdrawal) Bill places constraints on the National Assembly's legislative competence, which, for the reasons just set out by Dai Lloyd, are wholly unacceptable. The Welsh Government will not be able to recommend consent to the EU withdrawal Bill as it currently stands. Not that this is at all, as Neil Hamilton acknowledged, about frustrating Brexit. The Welsh Government's preference remains that the UK Government's European withdrawal Bill is a success. We understand the case for providing legal clarity and certainty for citizens and businesses as we leave the European Union. Opposition is the same as that set out by Steffan Lewis when he said that it is not, and never has been, the preferred option of Plaid Cymru that we have to rely on a continuity Bill. But, without the necessary amendments to the withdrawal Bill that fully respect the devolution settlement, we have to prepare our position.

That is why we, along with the Scottish Government, put forward amendments to the withdrawal Bill that would have ensured that the devolution settlement was properly respected. Of course, we are deeply disappointed, first of all that the amendments were not accepted by the UK Government, and then that the UK Government itself failed to honour the promise it had made on the floor of the House of Commons to bring forward amendments at the Report Stage. We need to see firm proposals from the UK Government on amendments to the withdrawal Bill that respect the devolution settlement and that would then allow us to recommend a legislative consent motion to the Assembly.

We will now take our fight to the House of Lords. I look forward to a joint event, sponsored together by the Welsh Government and the Scottish Government, that we will hold there shortly, in which we will make our case there for the amendments that we see are necessary. And we continue to work closely with the Scottish Government on the content, on the timing, on the tactics that we will use to make sure that our joint interests in securing the devolved responsibilities of the Scottish Parliament and of the National Assembly for Wales are safeguarded in that process. If that does not happen, then the First Minister has commissioned the necessary work to prepare a continuity Bill that will provide clarity and certainty for the citizens of Wales as we leave the European Union.

We have been undertaking work on the continuity Bill. We are confident that the Bill is in a state of readiness and could be put before the National Assembly if needed. In his written—

Would there be anything to be lost, in his view, in publishing that Bill in a draft form?

Well, some of what I have to say to you is that what would be lost would be the undertakings and the agreements that we have come to with the Scottish Government to work alongside them, to act in a way that is consistent with the way that they will act. Just as they have indicated that they will send their Bill to the Presiding Officer in the Scottish Parliament, yesterday the First Minister gave an undertaking that we would submit our continuity Bill to the Llywydd here before the end of this month, unless it is clear that the UK Government will bring forward satisfactory amendments during the remaining stages of the withdrawal Bill's passage through the Parliament. 

Llywydd, I listened very carefully to what Mark Isherwood said in this debate. Those of us who are committed to preserving the rights and responsibilities of this Assembly I think should take a generous view of what the Conservative Party has said here this afternoon. I think Mr Isherwood went further than I’ve heard the Welsh Conservatives up to this point in making it clear that they, too, have real reservations about clause 11 and that they share some of the potential solutions that the Scottish Conservatives have set forward as a potential solution to that Bill. So, I think it was very good to hear that this afternoon.

I do want to say, as Mick Antoniw has said, that there is more to the withdrawal Bill than clause 11. And while the Government will be supporting the motion laid before us today, and we look to use the support of this National Assembly for continuity Bill preparation as part of the points we make to the UK Government, there’s more than clause 11 that we have to get right in those discussions. There will be a need for a Welsh continuity Bill if those negotiations and discussions do not succeed, but in the meantime, we continue to work with others to get the UK withdrawal Bill into a position where it works for the United Kingdom, it works for Wales, and we can bring forward a legislative consent motion that we could recommend to this National Assembly.

I call on Steffan Lewis to respond to the debate.

I thank all Members for their contributions this afternoon and for the many kind personal comments that have been expressed as well.

Due to my excitement earlier, I don’t think I’ve got time to go through every contribution, but I’d like to echo what the Cabinet Secretary said in terms of the contribution by the Conservative group today. I think this is a very constructive contribution. Certainly, I think it sends a far stronger message from this institution when parties from all sides can come together to say that enough is enough and there has to be genuine respect for the constitutional settlement that we all value and cherish.

I’ve had a bit of time on my hands recently, Llywydd, and yesterday spent six hours watching the debate in the House of Commons on the EU withdrawal Bill. You might be surprised that I’ve bothered turning up today; it was riveting. [Laughter.] One of the misconceptions that is repeated often is that the UK Government isn’t taking any power away, it’s just replacing the European Union with itself in terms of the confines of devolved matters. But of course, that is not true, because, as things stand now, all that changes after separation is that the European ceiling on devolved matters is lifted, but the devolved matters remain devolved. The legislation in Westminster acts contrary to that and acts in order to take those powers away, or at least places confines upon them.

On the point about the co-operation with the Scottish Government, I welcome that. I think it's disappointing that UK Government hasn't listened to both Governments in terms of their amendments. But, my understanding is that the Scottish Government could, within a matter of a week or so, submit its continuity Bill to the Presiding Officer of the Scottish Parliament. I'd like to echo what Simon Thomas said: I don't think that publishing a draft Bill or even submitting a Welsh continuity Bill now to our Llywydd would in any way undermine joint action in the House of Lords. In fact, I believe it would strengthen it, as Mick Antoniw alluded to in his contribution.

Wouldn't it just be dreadful if this place, which has spent so much time debating the merits and otherwise of the continuity Bill, and has even drafted one and had one ready for some time, is the last one to publish? We won't be on the agenda in Westminster, it'll be Scotland again. So, I would urge the Cabinet Secretary—. I don't want to pre-empt anything, but it sounds to me like we might have consensus in this Chamber today on this matter, in which case that is a very strong mandate for this Government to move swiftly. Publish the continuity Bill, bring it forward. You have the backing, I think, of a majority in this house. Bring it forward, publish it, and protect Welsh devolution, before it's too late.

The proposal is to note the motion. Does any Member object? The motion is therefore agreed.

Motion agreed in accordance with Standing Order 12.36.