Item 5 on our agenda this afternoon is a debate on the general principles of the Law Derived from the European Union (Wales) Bill. I call on the Cabinet Secretary for Finance to move the motion—Mark Drakeford.

Motion NDM6686 Mark Drakeford

To propose that the National Assembly for Wales, in accordance with Standing Order 26.102:

Agrees to the general principles of the Law Derived from the European Union (Wales) Bill.

Motion moved.

Thank you very much, Deputy Presiding Officer. I would like to start this debate on the general principles of the Law Derived from the European Union (Wales) Bill by acknowledging the significant challenge facing Assembly Members in trying to tackle such a complex piece of proposed legislation in such a brief period of time.

Can I begin, against that background, Dirprwy Lywydd, by paying tribute to the work of both Assembly committees who have had a chance to undertake some consideration of the Bill? I was very grateful to David Rees, the Chair of the External Affairs and Additional Legislation Committee and its Members for being willing to explore a series of very important issues in the Bill on the basis of the draft Bill that was published. I think that consideration will assist Members this afternoon, and I was very glad of the opportunity to discuss it with them. 

Could I say, Dirprwy Lywydd, that I think this Assembly has been remarkably well served by the Constitutional and Legislative Affairs Committee in relation to this Bill? Not only did it undertake a detailed set of scrutiny yesterday, but it has managed to produce a report for the benefit of Members fewer than 24 hours after those hearings took place. I'm asked in that report to respond on three matters in particular during this Stage 1 debate. I'm very happy to try to do that. There are a number of other recommendations. With officials and with Cabinet colleagues, I will be looking at those recommendations very rapidly. I will write to the Chair of that committee setting out the Government's response.

The Llywydd took the Chair.

Llywydd, having said that the Bill is a complex piece of law, I should also say that, in its broad aims—indeed, in its general principles—I believe that it is clear and simple. It is intended to deal with the inevitable consequences in domestic law of withdrawal from the European Union by preserving EU law covering subjects already devolved to Wales. It will enable Welsh Ministers to make necessary adjustments to ensure that legislation covering these subjects works effectively at the point of withdrawal. 

Llywydd, the time available does not permit a detailed explanation of every provision in the Bill, but in the interests of trying to inform today's debate, I will briefly outline some of the principal propositions laid out in it.

Sections 3, 4 and 5 are critical to understanding the Bill. Their collective product is referred to as 'EU derived Welsh law', which would be the devolved Welsh equivalent to the European Union (Withdrawal) Bill's 'retained EU law'. Section 3 enables regulations to be made that contain provision corresponding to direct EU law. The power in section 3 would, for example, involve taking EU regulations and adapting them so that they work in a domestic context, and then setting them out in a Welsh set of regulations.

Section 4 provides for the restatement of domestic legislation that has derived from the European Union. For example, Part 5 of the Environment (Wales) Act 2016 makes amendments to the Sea Fisheries (Shellfish) Act 1967 to ensure the continued protection of European maritime sites. Under section 4, we would restate the relevant provisions of that Act, which derive from the European Union. Again, there may be some necessary adjustments to be made as part of that process, and in response to recommendation 1 of the Constitutional and Legislative Affairs Committee report, I can confirm this afternoon that the power in section 4 to make modifications or further provision can only be used to ensure the effective operation of the restated enactment.

I could also say, Llywydd, that as far as recommendation 2 of the CLAC report goes, we carefully reflected on the views of the committee and the Assembly more widely in preparing our Bill. This included narrowing the scope of the powers, taking specific account of the concerns raised on the breadth of powers in the EU withdrawal Bill. So, to answer directly the question posed in that second recommendation, in general, the powers in this Bill are more restrictive than the powers in the EU withdrawal Bill.

Section 5 of the Bill deals with legislation that has been under EU-related powers. The main power used for implementing EU obligations being section 2(2) of the European Communities Act 1972. That Act is being repealed by the EU withdrawal Bill. The power in section 5 will enable all legislation made under section 2(2) in devolved areas to be preserved.

Sections 6, 7 and 8 of the Bill then make provision in respect of EU derived Welsh law created as a result of sections 3, 4 and 5. They include provisions on legal challenges in respect of that law, interpretation of that law, and rules of evidence to assist courts when considering that law.

I turn now, Llywydd, to section 11 of the Bill. This provides a permissive power to enable us to maintain regulatory alignment with the European Union. Businesses have consistently told us how important continued access to the European Union market is to them, and our policy, set out jointly with Plaid Cymru in our foundational document, 'Securing Wales' Future', is well known. That is to advocate ensuring continued regulatory alignment after Brexit in order to ensure full and unfettered participation in the single market. Section 11 of the Bill will enable that to happen smoothly in the case of law within the devolved competence.

Will the Cabinet Secretary take an intervention?

Certainly.

Yes, I'll give your voice a rest; it's a medical intervention.

But referring to recommendation 3 of the excellent CLAC report, can I ask you to follow the wording in that recommendation 3, and ask you to justify, during this debate, why primary legislation cannot be used to deliver regulatory alignment on a case-by-case basis, instead of the subordinate legislation currently envisaged under this section 11?

Can I thank Dr Lloyd for that intervention? I'll address that point directly and immediately, Llywydd, because in terms of recommendation 3 of the CLAC report that asks for a justification of the powers in section 11 of the Bill, a major justification for needing these powers at this point in time lies in the volume of subordinate legislation that we are likely to face.

This Assembly will be aware of the number of statutory instruments that are made each year in Wales to implement EU directives. If you then add the numerous EU regulations, EU decisions and EU tertiary legislation adopted each year at EU level, then we will quickly have a better picture of the large number of legislative changes that would be required each year if we are to succeed in our aim of maintaining full and unfettered access to EU markets for Welsh businesses.

In order to be certain that we can deliver that continuity and that continued access to EU markets for our businesses, I believe that the powers in section 11 are necessary in the immediate future. I see further recommendations in the CLAC report about placing a time limit on those powers, and I can envisage a point in the future at which, as Dr Lloyd said, it may be possible through primary legislation to keep in line with those changes in EU law that we would wish to remain in step with in the future. In the immediate term, however, there will be a volume of work to be done where I think the powers in section 11 are justified.

Sections 13 and 14 of the Bill, Llywydd, are intended to address the issue that has come to the fore in the EU withdrawal Bill debate, namely the risk that Ministers of the Crown can be given Henry VIII powers to alter legislation within devolved competence without any input from Welsh Government Ministers or the National Assembly. These sections create a default position in which UK Ministers would have to seek the consent of Welsh Ministers when making subordinate legislation on devolved matters within the scope of EU law. As the EAAL committee correctly pointed out, we have been making this legislation over the past 20 years. Therefore, the knowledge is held here to make the sensible corrections that will be required to EU law in devolved areas. 

Can I come finally to the issue of scrutiny, Llywydd? I think I am right in saying that Schedule 2 to the Bill provides for the highest levels of scrutiny that has ever been contained in an Act of the National Assembly. Not only does this highlight the unusual circumstances that we find ourselves in, but it also demonstrates our continued commitment to the essential role that scrutiny plays in ensuring that the best possible legislation is created here.

Of course, there is another way in which legal certainty could be achieved and confusion avoided: this would be for the UK Government to legislate in a way that provides legal continuity while at the same time properly respecting our devolved settlement. The Welsh Government has made it clear throughout that this would be our preferred outcome, but Members will need no reminding that the UK Government's EU withdrawal Bill currently falls disappointingly short when it comes to respecting devolution. In conjunction with the Scottish Government, we have worked tirelessly to make the UK Government understand and focus on the importance of the devolved settlements and to agree the necessary amendments to the EU withdrawal Bill, and we will continue to work in that way right up to the last possible moment.

Llywydd, finally, in terms of this general principles debate, I wonder if I could simply read out, for Members who may not have had a chance to see it yet, just three paragraphs from the Constitutional and Legislative Affairs Committee's report, which I think sum up the reason why I believe this National Assembly should be prepared to offer its support at this stage.

First of all, the committee accepted

'that there is a need for the LDEU Bill.'

It pointed to the fact that

'Exiting the EU has raised serious constitutional questions'.

It notes that

'In its current form, the EU (Withdrawal) Bill fails to protect the powers of the National Assembly in devolved areas.'

And, against that background, the committee says,

'we accept that there is a need for the LDEU Bill to protect the powers of the National Assembly in devolved areas.'

Finally, the committee

'note that the LDEU Bill provides a means of filling the legislative void in the event that the National Assembly does not provide consent to the EU (Withdrawal) Bill.... In our view'— the committee say—

'in the absence of any alternative plan for dealing with a decision of the National Assembly to withhold consent, this'—

Bill—

'represents a sensible and responsible approach.'

I hope Members will be willing to support it this afternoon.

I call on the Chair of the External Affairs and Additional Legislation Committee, David Rees. 

Diolch, Llywydd. Since the publication of the White Paper on the European Union (Withdrawal) Bill by the UK Government in July of last year, the External Affairs and Additional Legislation Committee has undertaken some detailed scrutiny of the withdrawal Bill and its implications for Wales. In our report on the White Paper, we concluded that the Welsh Government should prepare a continuity Bill as a fallback position if the UK Government did not respect the devolution settlement in the Bill itself. We did, at that time, hold the sincere hope that this would not be necessary. It's deeply regrettable that this fallback position has now become necessary, due to the failure of the UK Government to actually draft a withdrawal Bill in a way that respects devolution and, further, following the rejection of amendments to the Bill as it proceeded through the Commons.

The external affairs committee has previously set out six objectives for amending the withdrawal Bill, which it considers necessary for the Bill to receive the consent of this institution. The task ahead of us this afternoon, of course, is to give consideration to the principles of the Law Derived from the European Union (Wales) Bill. Llywydd, to assist Members in their deliberations, I would like to briefly compare some of the objectives we identified, and how the Welsh Government proposes to match those. 

The first set by the external affairs committee is that the Bill should be amended to remove the restrictions on the Assembly’s competence contained in clause 11 of the withdrawal Bill. Our second objective was to ensure that Welsh Ministers and the Assembly are given responsibility for correcting EU derived laws in all areas of devolved competence.

The Bill under consideration this afternoon goes some way to delivering these two objectives, in that any EU laws converted into EU derived Welsh law by this Bill will fall outside the remit of the withdrawal Bill and the restrictions it imposes. However, the Bill as drafted does not automatically offer this protection to all EU derived Welsh law. It is reliant upon Welsh Ministers choosing to use the powers provided to them by this Bill to convert, retain or restate EU laws so that they are protected. That is a different approach taken in Wales to that in Scotland, where they're looking to see all EU laws in areas of devolved competence being automatically transferred. I would be grateful if the Cabinet Secretary this afternoon could reassure the Assembly that the Welsh Government would use the powers provided by this Bill to transfer all EU laws in areas of devolved competence into EU derived Welsh law, and I'll give you the reasons as to that shortly. 

The powers provided to UK and Welsh Ministers by the withdrawal Bill are extremely broad and far-reaching. For example, they include the power to amend primary legislation via subordinate legislation, called the Henry VIII powers, as the Cabinet Secretary has identified. Whilst we accept the need for these broad regulation-making powers to be given to Ministers, we also called for those powers to be more tightly drawn for Welsh Ministers, and controlled. This Bill does goes some way to meeting those stringent requirements, if they wish to change EU law when transferring it into Welsh law under sections 3, 4 and 5 of this Bill, as the Cabinet Secretary has highlighted in his opening remarks. However, there remain ways in which these could be more tightly drawn, and I urge the Welsh Government to consider this issue a little bit further.

The powers provided to Welsh Ministers in sections 9 and 10 of the Bill mirror the powers provided to UK Ministers by sections 8 and 9 of the withdrawal Bill. They would allow Welsh Ministers to do anything they consider appropriate to implement the withdrawal agreement, and to prevent breaches of international obligations. In the committee’s objective 3 on the withdrawal Bill, we concluded that the language should be tighter and amended to 'do what is essential', rather than 'consider appropriate', although I do recognise that many other experts also comment upon 'as necessary', but that still gives you tighter control than 'as appropriate'. 

Objective 4 of the committee’s report stated that the withdrawal Bill should be amended to prevent UK Ministers from amending EU derived laws in areas of devolved competence. As with objectives 1 and 2, this Bill does go some way towards delivering this objective, but it is ultimately reliant upon Welsh Ministers choosing to convert all of the EU laws into EU derived laws, because if they don't do all the laws, those they don't do will come under the remit of the EU withdrawal Bill. That means that they will then not have the powers to amend them later, because they will have been passed over to the powers under the EU withdrawal Bill. 

I welcome the inclusion of sections 13 and 14 in the Bill, which would require Ministers of the UK Government to seek consent of the Welsh Ministers before amending EU derived laws in areas of devolved competence. However, as the committee has stated on many occasions, it would be constitutionally preferable if UK Ministers required the consent of the Assembly and not that of Welsh Ministers.

Objective 6 of the committee's report called for the Assembly to be given responsibility for setting its own scrutiny procedures for subordinate legislation emanating from the withdrawal Bill. Having this Bill before us for consideration does not address that issue. However, it does allow the Assembly to decide on scrutiny procedures for subordinate legislation under this Bill. I welcome the fact that the negative procedure would not be used at all for the regulations made under this Bill and believe it's a significant improvement on what is offered by the UK, which had many, many, many negative procedures, which did not allow us an opportunity to actually scrutinise those aspects.

I welcome the Government inclusion of a superaffirmative procedure in the Bill, and I'd be extremely attentive to the views of colleagues from the Constitutional and Legislative Affairs Committee on the appropriateness or otherwise of the proposals in that regard. And can I also put on record my thanks to that committee for the work it's done in a very short timescale on this Bill before us today? 

Nonetheless, I note the requirements for providing the UK Parliament with additional information in explanatory memorandums to assist scrutiny of statutory instruments—it's actually now stronger within the withdrawal Bill. In this Bill, I ask the Welsh Government to consider emulating that point.

Llywydd, I sincerely hope that the UK Government takes heed of this Parliament's continued view on the deficiencies of the EU withdrawal Bill and acts quickly to make the necessary amendments to that Bill, though recent comments and actions do not give me much hope that that will actually take place. Then, if not, the Bill we're debating this afternoon is critical to protecting the devolved competencies of this institution, and I ask Members to support this Bill.  

I call on the Chair of the Constitutional and Legislative Affairs Committee, Mick Antoniw.

Thank you, Llywydd. And thank you for the comments that have been made by the Chair of EAAL. I do find that, after the very detailed comments that have been made by the Cabinet Secretary and by the Chair, it's a bit like being the best man at a wedding when you find that the groom has stolen your speech and made all the points that you wanted to make. But can I say that, in our committee, we treated this Bill as we would any other, and that is to maximise the scrutiny and the focus on the intention in the Bill and in terms of it achieving what it is intended to do? For that, I'm very grateful for the considerable work that's gone in from the clerk and the members of support staff of the committee and indeed the legislative drafters, because this has been a matter that's been turned around within a very, very short space of time. But I do believe the report is detailed and deals with all the key scrutiny issues that we wished to raise.

I should say at the outset that our report was not unanimous. One Member did not agree to it, and I won't pre-empt any comments my fellow Member wishes to make, so I won't say any more on that particular point. We made eight recommendations to the Cabinet Secretary for Finance, and the report, as I said, I hope proves helpful to Assembly Members in taking the necessary decisions on this particular Bill.

Exiting the EU has raised serious concerns as to which legislature should exercise powers in devolved areas once the UK leaves the EU. Until we see changes to the EU withdrawal Bill, we have accepted that there is a need for this Bill, as the Cabinet Secretary has already mentioned, and we see this Bill as providing a means of filling a potential legislative void.

In our view, the absence of any alternative plan for dealing with a decision of the National Assembly to withhold consent means that the introduction of this Bill represents a sensible and a responsible approach. We agree with the Welsh Government also that the preferred option should be to continue to protect devolution via the EU withdrawal Bill, and we do urge all parties to continue to work together to achieve an outcome whereby the National Assembly could be in a position to give its consent to the withdrawal Bill. Should agreement not be reached, this Bill becomes one of the most important Bills ever to be scrutinised by this National Assembly.

The same issues of principle apply to the regulation-making powers in the Bill as apply in relation to the EU withdrawal Bill, and these are that regulation-making powers must not be used to shift the balance of power excessively towards Governments and away from legislatures, Henry VIII powers must be clearly justified and, at the very least, be subject to the affirmative procedure, and that regulation-making powers are considered in the context of how they could be used, not the intention of their use. 

I'll just return briefly to some of the conclusions and recommendations we have made. The Cabinet Secretary has referred to some of those, and we will consider carefully his written response in due course within the course of the coming days.

Sections 3, 4 and 5 form the heart of the Bill by giving Welsh Ministers broad powers to make regulations that retain direct EU law, restate EU derived enactments, and ensure that provisions made under EU-related powers continue to have effect. We raised a number of questions with the Cabinet Secretary around the use of these powers, and, in the light of his responses, we recommended that he confirms our understanding of the use of the powers under section 4 of the Bill is correct, and he has done that, and whether the self-limiting ordinances contained in the Bill are more restrictive than those contained in the EU withdrawal Bill, and he has given assurances in respect of that.

Turning to section 7, we welcome also that the charter of fundamental human rights influences the interpretation of all regulations made under sections 3, 4 and 5 of the Bill. I'm grateful for the clarification that has been given there as well.

Section 11 contains a very wide power, allowing the Welsh Ministers to mirror EU law after exit day using subordinate legislation subject to the enhanced affirmative procedure. Section 11 therefore gives the Welsh Ministers powers, by regulations, to mirror EU law that is passed by both the European Parliament and the EU Council but that will no longer be subject to influence by the UK. Section 11 is arguably a constitutionally novel approach and one that we had concerns about as to whether or not it was satisfactory.  

In the circumstances, to first justify and then strengthen the approach, we made recommendations: first, that the Cabinet Secretary justifies why primary legislation cannot be used to deliver regulatory alignment on a case-by-case basis, instead of the subordinate legislation envisaged under section 11—and, of course, these were the points that were raised by Dai Lloyd and there's been a response, which, again, we will give further consideration to in due course—secondly, that the Cabinet Secretary should consider an amendment to section 11, if retained, to narrow its scope solely to matters that maintain regulatory alignment with the European Union, as set out in the explanatory memorandum. I'm grateful for the comments that have been given, and, again, we'll give further consideration to that. Finally, the Cabinet Secretary should table amendments to the Bill to provide a sunset clause requiring that section 11 is repealed with effect after five years from exit day unless regulations, subject to the affirmative procedure, provide otherwise. Before such regulations are made, we recommend they are informed by a review undertaken by an Assembly committee. 

Sections 13 and 14 do not provide a consent role for the National Assembly, even where UK Ministers are amending primary legislation, including Acts and Measures of the National Assembly. For that reason, we recommended in our report that he justified this approach and explained how the consent role fits with the statutory instrument consent process set out in Standing Order 30A. That's recommendation 6.

All regulations made under the Bill are subject to the scrutiny framework set out in Schedule 2, which provides for three different scrutiny procedures: the standard affirmative procedure, the urgent procedure and the enhanced affirmative procedure. We recommended that the Cabinet Secretary should table amendments requiring explanatory memoranda accompanying regulations made under the Bill to be clear and transparent in explaining, for example, why the affirmative and urgent procedures should apply, what changes are being made by the regulations and why, and the impact that the regulations may have on equality and on human rights. We look forward to the written and the detailed responses in due course, but I'm also grateful for the extent to which the Cabinet Secretary has been able to deal with some of those matters in advance of this particular Plenary session.

Presiding Officer, there is no emergency, there is no need for this Bill, and it's the opinion of us on this side of the house that this is, in fact, a bogus Bill. I have to observe that, when the Cabinet Secretary was making his speech on the principle of this Bill, seven members of the Labour group were here in the Chamber, or six apart from him. There's been a vast influx since of one additional Member coming in. Perhaps this is an emergency Bill after all—the evacuation of the Labour group from the Chamber was certainly comprehensive and efficient. But I think this really does show you what's going on here in an attempt, a pale attempt, to ransack—[Interruption.] 

Will the Member take an intervention?

Yes, well, the Minister—. Okay, okay. The Cabinet Secretary—

Cabinet Secretary, you can't just turn around and speak to the Member when he's on his feet. 

Well—. [Interruption.] No, I'm going to answer him first. The Cabinet Secretary turned around and said, 'Well, you've not got much to say, have you? Look how many of your colleagues are here.' We realise this is bogus: I've given them, my colleagues, time off because I didn't want them to have to sit through this parody produced by the Welsh Labour Government.

Can I thank the Chair of the CLAC committee for acknowledging that the report they made was not unanimous? Let me say: it's the first report of this, the fifth Assembly, not to be agreed on a consensus basis, and, in the fourth Assembly, every CLAC report was agreed by consensus. I do not agree that there has been full or proper scrutiny by CLAC. There was as adequate scrutiny as could be made in the available time, but, really, to just have the Minister in for an hour and then to spend half an hour on a report that is then not digested in draft and considered over several weeks, which is what we do to routine legislation—and we are proposing to pass constitutional, fundamental constitutional law in this manner. We're not going to have any part of this.

And, anyway, the constitutional protection we have in this delicate procedure—you know, I acknowledge exiting the EU causes many constitutional challenges within the United Kingdom, but the protection we have is the LCM process and the Government has made a great mistake in shifting from that and shifting onto the ground of the Scottish Government, where nationalism—

Will the Member give way?

—is their primary concern, not the integrity of the United Kingdom.

I did see David first. I mean, I will attempt to give way to Simon later.

I'm sure you can give way to my colleague immediately after myself, but you identify—. And thanks for the intervention. You identify the fact that you said that you don't see the need for this Bill, that it's constitutionally not appropriate, you talk about Scotland and you appeal for Scotland, but isn't it the reality—? If an LCM is defeated in this house, then what is the alternative you're suggesting to happen? Because, if I understand it right, our LCM is defeated and the UK Government accepts the LCM, we could be leaving without any kind of protection for our laws whatsoever. So, what is your recommendation that we do afterwards?

The fact of the matter is, if an LCM is rejected in the National Assembly for Wales and, presumably, at the same time in the Scottish Parliament, the United Kingdom will be in a constitutional crisis. That's why the LCM process is a proper protection of our rights and our position. What you're engaged in is a negotiation tactic, and we should not be part, as the legislature, of these games. Can I just say—? The EU withdrawal Bill is the appropriate UK legislation to proceed with this matter. It is the UK state that is withdrawing from the EU, not the home nations individually, and, as I said, this legislation at a UK level requires an LCM process. So, we do not believe that the Welsh Government's Bill can be effectively scrutinised, and we will obviously vote against the motion this afternoon. Can I just say, Presiding Officer, we have decided—

Will you take an intervention?

We have decided to take the extraordinary step of not proposing any amendments should this Bill proceed to its next stage, because we do not want to engage in the parody that inevitably would then follow. Does Dai Lloyd want to intervene?

I'm disappointed by your contribution, really, because obviously legislative committees down the years in this place, we've just been scrutinising the process. Regardless of what you think about the legislation, lots of us have been involved in scrutinising the process of a Bill that we don't actually agree with. I was disappointed that, actually, you withdrew yourself from that scrutiny process because of this preordained decision that you don't like the idea of a continuity Bill.

Can I just say, Presiding Officer, I did not withdraw myself from any process? I attended all the public session of CLAC and all but the last two or three minutes of your deliberations. I withdrew when I said that, in principle, I could not support the report. Therefore, I was leaving so that the other committee members could then proceed and agree to the parts that they then indicated in their report, and which was quoted by the Minister. I did not intervene on him to undermine, perhaps, some of the points he was making that that was a report that was unanimous—because he had not made that clear, though he didn't need to. So, I'm not accusing him of anything inappropriate. I have co-operated effectively. We all know this Bill cannot be scrutinised in anything like a proper, full fashion, and we should not be playing with legislation, certainly not constitutional legislation, in this way.

I also fear, Presiding Officer, that this emergency Bill risks undermining the negotiations that have been ongoing for several months with the UK Government. Now, I'm not naive about what goes on—I'm sure there's great resilience both sides of the M4—and I hope that does genuinely continue, because we do need an agreement at the end of this, and let's hope that we will forget this afternoon's sad episode when we get proper agreement in the future. At the moment, the UK Government is seeking agreement on UK frameworks and that process post Brexit. It's very important that the Welsh Government's case is heard fully, because establishing shared governance arrangements over common frameworks is a fundamental principle, and it's one that we do accept here. We realise that you've had some struggles in winning those particular battles, and I do not think what you're engaged in here is particularly helping. And there have been some real successes. I'd have to say the Welsh Government has already achieved a lot in terms of the amendments that were laid in the House of Lords yesterday. Now, I realise they don't go as far as you would like, and some of what you want has not yet been delivered. But it's an ongoing process that indeed continues tomorrow with the First Minister meeting with the Prime Minister, and that's the appropriate time to take things forward and see if we can reach a full agreement. 

Our position, to conclude, as I'm rapidly running out of time, is that a UK Bill is the only way to proceed; the only we can have proper clarity in this process. And we have the protection afforded by the LCM process. To have two competing statutes governing Brexit would create wholesale confusion. We need clarity, not confusion; this serves no-one's purpose. I regret that the Welsh Government has allied itself so closely to the Scottish Government. I fear this may deflect the Welsh Government from pursuing the interests of Wales to secure a clear Brexit that will strengthen the governance arrangements of the UK. I also fear that if the Welsh, and, presumably, the Scottish Bill, proceeds, then the success of the EU withdrawal Bill in Westminster will be threatened, and it's likely this matter will then appear before the Supreme Court. Confusion, confusion, confusion; let's stop this nonsense and vote against this motion.

I'm again encouraged to speak this week on the general principles of the continuity Bill following its introduction last week. Plaid Cymru will of course be voting for the general principles of this Bill, and we've been consistent in calling for this Bill. We've been calling for this Bill since at least last summer in anticipation of a Westminster power grab. In terms of content, the emergency procedure will now move very quickly, so any amendments will have to be considered over the next few days. I note the report laid by the Constitutional and Legislative Affairs Committee, and I hope that the improvements to the Bill can be made on issues like including a sunset clause, whilst maintaining the need for this Bill to become law.

Since last week's debate, where the Bill was introduced, the UK Government has admitted in an internal memo that it has been unable to rebut the claims of a power grab. In effect, UK Government officials have conceded that the argument that there isn't a power grab has been ineffective. And we know that the UK Government's amendments, which have been tabled without the agreement of the Welsh and Scottish Governments, facilitate a power grab. They do so by giving the UK Government a power to impose restrictions in areas that are devolved. When imposing those restrictions, the UK Government will have to consult with devolved administrations. The devolved administrations and Parliaments, including this Assembly, would have no final say over the UK Government's use of those powers. The UK Government would use those powers to create new UK frameworks. Those frameworks would not be co-produced, to be truly multinational frameworks, but would be made in Westminster with some devolved consultation—and that is not good enough.

Will you give way?

Yes.

I'm grateful. She will have heard, as I did, David Melding say that the LCM process that relates to the Bill would be a protection in here, but of course that gives us no protection with all these regulations made by Henry VIII powers, which only have to be consulted on with the Welsh Government—not even the Assembly. This Bill before us today is not bogus at all. It's a fundamental constitutional act of protecting our devolved settlement here, which will strengthen the Government's arms, hopefully, for negotiation. But if not, we are setting out, very clearly, how we would protect Welsh devolution. Unfortunately, the Conservatives have turned their back on that.

Absolutely correct.

The frameworks designed in this way could cover areas of critical importance, of course, to the Welsh economy. The UK Government's analysis of EU law also suggests that frameworks would be required in a host of areas related to food, farming and the environment. They could also include state aid, public procurement and geographical indicators. These are the real bread-and-butter issues at stake, on top, of course, of the issue of democracy.

The need for a continuity Bill is therefore growing rather than receding. It's critical that we develop a strong and effective Bill to protect our two referendum victories and to keep control over our own devolved powers. And in the coming days, it is vital that the Welsh Government does not back down. The position here has overwhelming Assembly support, and there should be no concession that turns back the clock on devolution. This is a debate about where power lies in this state after Brexit. Will UK frameworks be set centrally from Westminster or will they be co-produced by equal Governments, by equal nations? Plaid Cymru hopes that we in Wales continue to hold the line, because this issue is far bigger than any single political party.

This continuity Bill has seen our country, with the support of at least three of the four parties, become relevant in a UK debate. And it's worth pointing out that this isn't about whether you support remain or leave, otherwise it would not have secured the support of UKIP. This is about Wales. It's essential that the Welsh Government does not throw that supported position away, and that this National Assembly stands up for itself and for our nation.

I listened in some perplexity to the speech that David Melding gave. He seemed to be speaking in a kind of vacuum, as though the reason why we're here today has nothing to do with the United Kingdom Government. This is not a bogus Bill, and if there is a constitutional crisis looming, it comes about because something that was entirely predictable has happened because of the neglect of the United Kingdom Government to take this process seriously. We've been waiting for three months for amendments to this EU withdrawal Bill, and nothing had arrived until the last few hours. Of course, in these circumstances, the Welsh Government and indeed the Welsh Assembly must provide against the possibility that an LCM does not pass this Assembly and there is then a legislative void. It would be absurd if it were to behave otherwise. We are an Assembly that is here to pass laws and to repeal them, not to allow legislative voids to come into existence.

Theresa May and her administration have, of course, achieved the most remarkable feat of uniting parties as diverse as Plaid Cymru on the one hand, the Labour Party and UKIP in this Assembly. As the leader of Plaid Cymru pointed out a moment ago, this is not about remain or leave, because we come from the polar opposite in our views on the desirability of remaining within the European Union. The last time that this was raised in the Assembly just a week or two ago, both the leader of Plaid Cymru and I made the fundamental point that this is not just about the EU referendum; it is also about the two referenda that established devolution and brought this Assembly into existence. My position has always been that referenda are to be respected, or the results of those referenda are to be respected, whether they refer to internal United Kingdom matters or, indeed, external, and it's respect for that process that goes to the very heart of what this Bill is about. It is a Bill about democracy—again, as the leader of Plaid Cymru said a moment ago.

The reason why, overwhelmingly, I've always been in favour of leaving the EU—indeed, I opposed going into it in the first place—was because the processes of legislation within the EU are democratically deficient. As a result of repatriating these processes to Westminster or to Cardiff, Edinburgh or to Belfast, the opinion of the people, as represented by those who are elected by them as proxies, will be fundamental to the creation of law, or the repeal of law, in future. The European Union, as it has developed, created a corpus of law that was immune from the democratic process. The European Court itself, in judgments going back as far as 1963, gave itself the power to override democratic processes, and in a case in 1970—the Internationale Handelsgesellschaft case—it gave itself the power even to override national constitutions, which has never been accepted by the German constitutional court, or the Dutch, but which the European Court of Justice has always held to be fundamental to the internal workings of the EU. As a result of that, as far as the United Kingdom is concerned, whether it's a constitutional measure, which is what David Melding was concerned about, or whether it's any other form of legislation, then those who are elected to represent the people will be able to provide the scrutiny that presently cannot be applied to the laws that we have to observe, because they are made either by bureaucratic processes—because the European Commission has the sole right of legislative initiative in the European Union—or as a result of cases in the European Court of Justice, which cannot be amended or repealed by any straightforward process.

Therefore, as a result of the European Union withdrawal Bill, we will be repatriating those powers to the parliaments of the United Kingdom—and by that I mean the devolved parliaments as well as the UK Parliament at Westminster. I see that as a wholly benign process. There are, of course, short-term constitutional difficulties that this process brings about—and clause 11 of this Bill is one of them, with the issue of Henry VIII clauses. I am prepared to accept, for the short term, that this clause is necessary in order to provide ourselves with the legislative certainty that we need for the future, but it is an undesirable principle to set, generally, and I hope that there will be a sunset clause, or something akin to it, which will ensure that this will not be perpetuated for longer than is necessary.

The legislative task before us, to consider or reconsider 44 or 45 years of legislation, is vast. That cannot be conducted in a meaningful way without these extraordinary powers. Over the course of many years ahead, we'll have the opportunity to repeal and amend as necessary, but I consider this to be a vitally necessary Bill to protect the interests of the Welsh people, as well as of the British people. I see no contradiction or conflict between the two, and I regret that the United Kingdom Government has created a wholly unnecessary degree of friction in what otherwise, I should have thought, would have been regarded by most Conservatives as a wholly beneficial process of restoring democracy to the British people and the Welsh people.

I'm pleased to speak today as the Chair of the Equality, Local Government and Communities Committee. We have been considering the human rights implications of leaving the European Union over the past year. In December, we outlined a number of core principles that we identified. Our overriding priority is that there is no regression in equality and human rights protections once we have left the European Union. We called for the charter of fundamental rights to be preserved in some form after withdrawal, and note the Equality and Human Rights Commission's legal analysis, published earlier this year, which refuted the UK Government's claim that all charter rights are already protected by UK domestic law. Therefore, Llywydd, I am pleased to see the inclusion of section 7 in the Bill before us today, requiring EU derived Welsh law to be interpreted in line with the charter of fundamental rights. It is also important to us that as well as preserving the rights that currently exist, Wales continues to be a global leader and that the level of protections continue to keep pace with developments across the EU after we have left. We called for a formal mechanism to track future developments in human rights and equality in the EU to ensure Welsh citizens benefit from the same levels of protections as EU citizens. I'm therefore pleased to see the inclusion of Section 11 in this Bill, which would allow Welsh Ministers to make regulations introducing new legislation, or to modify existing legislation, to enable Wales to keep pace with any new EU legislation following our departure.

Further, Llywydd, we would call on the Welsh Government to use all available levers to ensure continued protection of equality and human rights in Wales, including considering commencing the duty in the Equality Act 2010, which requires public bodies to make decisions in a way that tackles the inequalities arising from socioeconomic disadvantage, and looks to incorporate international human rights treaties into Welsh law. As we are all aware, this was successfully achieved with the Rights of Children and Young Persons (Wales) Measure 2011.

Llywydd, I am pleased that the Welsh Government has used this Bill to help provide protection of equality and human rights. Going forward, as a committee, we will continue to follow keenly this element of the negotiations and withdrawal process. Diolch yn fawr.

The Finance Cabinet Secretary's statement on the JMC European negotiations last week, I thought, was very helpful, and we realise how important, in fact, the JMC plenary will be tomorrow. The Cabinet Secretary said in his statement that there was a positive spirit on all sides of the JMC(EN), but that the UK Government would still be tabling their amendments. And it's in that vein that we are debating the Law Derived from the European Union (Wales) Bill—the continuity Bill as we are calling it—here today.

It was very helpful to again have those recommendations from the CLAC report spelled out, giving the case for supporting the Bill, taking account, of course, of David Melding's reservations, which he's expressed today as a Member. But I also noted that Geraint Talfan Davies said this week—and I quote—that the continuity Bill is designed to ensure that a huge legislative sinkhole does not emerge under the Government of Wales if the National Assembly for Wales is not able to give its consent to the EU withdrawal Bill going through Westminster.

So, Llywydd, although I accept the political backdrop to the continuity Bill, and hope, like the Welsh Government, that the UK Government will see sense and support our amendments—the amendments of the Welsh and Scottish Governments—so favourably received in the Lords, I would also like to follow John Griffiths and welcome section 7 of the continuity Bill, which sets out how the body of the EU derived Welsh law created by the Bill should be interpreted by the courts. Section 7 states that the continuity Bill makes similar provisions to the EU withdrawal Bill, but with one notable difference, and that is that it allows for EU derived Welsh law to be interpreted in line with the charter of fundamental rights, which is not being transposed into UK law by the EU withdrawal Bill. As is clear, the continuity Bill does not purport to transpose the rights contained in the charter into Welsh law as free-standing rights, but it would ensure that, where the courts in England and Wales are considering provisions of EU derived Welsh law, they continue after Brexit to interpret those provisions in line with the rights and principles set out in the charter.

We recently took evidence in the External Affairs and Additional Legislation Committee—as, John Griffiths, your committee did—on the equality impacts of Brexit. Expert witnesses drew attention to the EU charter of fundamental rights. One of the main concerns about Brexit's impact on human rights and equality is the potential loss of the charter. If the EU withdrawal Bill goes ahead as planned, the UK will not have to comply with the charter in making laws and administrative decisions in areas previously within EU competence, such as consumer protection or workers' rights. The charter rights go beyond those in the Human Rights Act and the Equality Act, including a range of social and workers' rights, such as the right to fair working conditions, protection against unjustified dismissal, and access to healthcare, social and housing assistance. In giving evidence to the EAAL committee, Professor Simon Hoffman said he couldn't see any reason why the EU charter can't be incorporated into UK law, as was suggested by the Equality and Human Rights Commission, with any necessary amendments to make it relevant to the UK post Brexit. In his evidence to the Equality, Local Government and Communities Committee, I note that Professor Thomas Glyn Watkin described equality and human rights protection in the UK on exit day as a 'freeze-frame', while protection in EU countries could increase at a faster rate than in the UK. So, we must work to avoid that.

I'm grateful that John Griffiths has highlighted section 11. We must continue to progress with equality protection and enhancement in Wales, and I'm sure that our human rights and equalities witnesses, and the people of Wales, will welcome those provisions in our Bill today. I'm also clear that raising these issues is in line with the spirit of the clauses in our Government of Wales legislation in terms of abiding by equality of opportunity.

So, I support this stage of the Bill and I'm grateful for having the opportunity to make these points in support of section 7 of the Bill.

Yesterday, the Cabinet Secretary for Finance addressed the Constitutional and Legislative Affairs Committee about this Bill. I would like to thank him for his very open and constructive engagement with the committee.

I, too, have very strong concerns about section 11 and I do hope the Cabinet Secretary will clarify why primary legislation cannot be used to deliver regulatory alignment on a case-by-case basis instead of the subordinate legislation envisaged under section 11 as it currently stands.

One of the recommendations in the report released today by the committee is that section 11 is repealed after five years from exit day unless regulations, subject to the affirmative procedure, provide otherwise. The committee also recommends a review as to the continuing need for the powers provided by section 11—this review to be conducted by a committee of the National Assembly and involve full public consultation.      

I support this Bill in principle, but I do suggest that we as an Assembly have not had an opportunity to discuss this Bill and its implication in enough depth. Overview and effective scrutiny should never be compromised and are a vital part of our decision-making processes here in the Assembly.

I call on the Cabinet Secretary to reply to the debate.

Diolch yn fawr, Llywydd. Can I thank the three committee Chairs who've taken part in this afternoon's debate? It's immensely helpful to the Assembly to have the expert view that the different committees bring to this subject, and I think all three committee Chairs were able to set out the positions established by their committees.

John Griffiths drew attention to the charter of fundamental rights, and we have been very glad to be able to make reference to that charter in our Bill. But the real answer is for the UK's EU withdrawal Bill to be amended to make the charter applicable to all domestic law. There was a real push in the House of Lords on this matter, and the UK Minister has had to concede that he will come back to the House of Lords at Report Stage with further proposals on that matter. There is absolutely no legal reason, as Jane Hutt said, quoting Professor Hoffman, why that cannot be done, and if it was done in that way, then not only would EU derived Welsh law benefit from some of the charter's protections, but the whole of domestic law transposing EU law into UK law would all go on benefiting from the charter.

David Rees and Mick Antoniw both reiterated what has long been the position of the Government—that this Bill is our second-best choice. It's not what we want to do. We want to have an agreement with the UK Government—a neglectful UK Government, as Neil Hamilton said—who have just failed to put the necessary time and energy into coming to an agreement with us. It could have been done, it should have been done, before now. We will go on making every effort we can to secure an agreement while the EU withdrawal Bill is still alive in front of the Houses of Parliament. If we do reach an agreement, then, at whatever stage this Bill has reached, we will rely on that Bill, rather than this fallback protection. 

It is nevertheless a fundamental protection, as Leanne Wood confirmed in responding to Simon Thomas's intervention. I'm grateful for the continued and consistent support of Plaid Cymru in the development of this Bill. I look forward to some further discussions on some of the points that Leanne Wood raised, particularly in relation to recommendation 5 of the CLAC committee and a sunset clause in relation to section 11 of the Bill. 

I thought you heard a pretty compelling case from Jane Hutt as to why section 11 is necessary in the short run, because of the way it will allow us to make sure that social protections available to EU citizens that otherwise would be denied to Welsh citizens can go on being afforded to them in the future. But I will think carefully about what CLAC have said about the length of time that we should rely on this section, and I'm happy to have further discussions with those who have an interest in this matter.

I shall turn to what David Melding said. I imagine he was relying on that old political mantra that attack is the best means of defence, and if you have a particularly weak case to make, so long as you make it with sufficient brio, some people will think that there must be something in what was being said. I believe he is wrong. Many of the points he made today were not relevant to today's debate. They were very relevant to last week's decision on whether or not to take this Bill through an emergency procedure, but we had that debate and the National Assembly, by a very significant majority, agreed that, with all the compromises that that involves, it was necessary to take forward this Bill as an emergency Bill. I don't believe it's a bogus Bill for a single moment. What it does is to fill the legislative void, to provide fundamental protections, to provide certainty to Welsh businesses and public services, and I hope that Members will support it this afternoon.

The proposal is to agree the motion. Does any Member object? [Objection.] I will defer voting under this item until voting time.

Voting deferred until voting time.