5. Debate: The General Principles of the Law Derived from the European Union (Wales) Bill

Part of the debate – in the Senedd at 4:05 pm on 13 March 2018.

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Photo of Mark Drakeford Mark Drakeford Labour 4:05, 13 March 2018

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.