The next item is a statement by the Chair of the Constitutional and Legislative Affairs Committee on the European Union (Withdrawal) Bill, and the National Assembly's decision in relation to subordinate legislation procedures. I call on the Chair of the committee, Mick Antoniw, to make his statement.

Thank you, Llywydd. Six weeks ago, on 7 March, this Assembly debated the Constitutional and Legislative Affairs Committee’s report on the 'Scrutiny of regulations made under the European Union (Withdrawal) Bill'. Our inquiry that preceded that report considered the appropriateness of the scope and nature of delegated powers provided in the Bill to UK and Welsh Ministers, and the procedures that should to be used to scrutinise that delegated legislation. Given the Bill’s passage through the House of Lords, the report focused on amendments that we believed should be made to the Bill, and addressed questions that were raised by the Secretary of State for Wales in a letter to the Llywydd on 16 January.

Our report made seven recommendations, four of which recommended amendments to the EU withdrawal Bill. And for that reason, we believed it important and appropriate to seek the National Assembly’s views on those recommendations, and therefore the motion asking the National Assembly to note the committee report also requested that it endorse recommendations 1, 2, 4 and 7. And, on 7 March, that motion was agreed unanimously—there were no objections.

Consequently, on 22 March, the Llywydd wrote to the Secretary of State for Wales drawing his attention to the recommendations within our report, and that he receive the letter as formal notification of the National Assembly for Wales's position on what amendments should be made to the Bill in respect of procedures for the scrutiny of subordinate legislation made under its provision.

Members may not be aware that, subsequent to the events that I have summarised, the Leader of the House and Chief Whip formally responded to the committee’s report. In addition, the First Minister wrote to the Secretary of State for Wales in relation to both our report on the EU withdrawal Bill and the Bill’s sifting committee provisions. In both pieces of correspondence, the Welsh Government reject recommendation 2 of our report—that the recommendation of the sifting committee should be binding, save where the Assembly resolves otherwise.

On 17 April, I wrote to the First Minister to seek clarification on the reasons for the approach the Welsh Government has adopted. In particular, I have asked whether he could explain why, having advised in a letter to the Secretary of State for Wales on 5 February that matters relating to the sifting committee were for the National Assembly to determine, he subsequently wrote to the Secretary of State on 29 March rejecting a recommendation that had been unanimously endorsed by the National Assembly about the operation of that sifting committee. The First Minister has responded to my letter of 17 April this morning, for which I am grateful, and I note the comments that he has made.

I recognise that, during the Plenary debate, the leader of the house told the National Assembly that the Welsh Government was reserving its position on recommendation 2, pending thorough consideration. However, the leader of the house did not seek to amend the motion to reflect that position, which, as previously stated, was then unanimously endorsed by the whole house.

Without prejudicing the will of the Government—or without prejudicing the will of any Government—the National Assembly for Wales should not find itself in the position where it expresses a formal, all-party position that is then subsequently, or very soon after, called into question within correspondence of which the Assembly as a whole is not aware.

I've made clear to the First Minister in my letter to him that, as a committee, we are concerned generally at the transfer of power from legislatures to executives. The approach the Welsh Government has adopted on these matters undermines the prerogative of the legislature. Equally, it confuses the roles of parliaments and governments and makes proceedings here harder to understand for members of the public, to the detriment of devolution.

To make matters worse, the approach of the Welsh Government and the confusion around roles has now regrettably found its way into a UK Government supplementary memorandum on delegated powers in the EU withdrawal Bill. The memorandum was published on Monday this week, and states,

'The Welsh Government, having sought the views of the National Assembly for Wales, has requested the sifting committee procedure should apply where the Welsh Ministers lay negative instruments under their Schedule 2 powers.'

It would therefore appear that the UK Government has been influenced by the views of the Welsh Government rather than the National Assembly in making decisions on the procedures that should apply to the scrutiny of regulations made by the Welsh Ministers. I therefore welcome the letter I received this morning from the Llywydd, indicating that she shares the committee's concerns and will be giving further consideration to this matter. 

Can I thank Mick Antoniw for seeking to defend the prerogatives of this Assembly so strongly? I think it's another example of Executive overreach. We were told at the dawn of devolution that we would do things differently. We would take what was best in the British parliamentary tradition, but we would ensure that we had openness and scrutiny, especially over—irony of irony—secondary legislation. And now we see the Welsh Government commit a deeply hostile act.

They weren't prepared to argue their case in open sight, despite the fact that this is a very long-standing principle that the Constitutional and Legislative Affairs Committee has had, in terms of that we should really be setting the procedures for this type of subordinate legislation and other vital matters. But, really, not to argue the case, to allow a motion to proceed and not oppose it, but then, in a calculated way, to petition the UK Government not to act on our recommendation. And, indeed, we don't even know that they told them what our recommendation was because it was a very strange reply we received in terms of the comment that was read out by Mick Antoniw. 

As I said, this is part of a general trend by the Welsh Government when it seeks to set and mark its own homework in terms of the procedures that should apply. And, then, the other defence is, 'Well, Ministers are following the Counsel General's guidelines', as if the Counsel General is in charge of what sort of procedures the legislature should apply in its scrutiny of legislation. It really is a remarkable tangle, and now we have it in this most important part of the constitution when we're repatriating so much law that had previously been passed over to Brussels. 

I really think it's shabby. Can I just assure Mick Antoniw that in all his efforts, as Chair of the Constitutional and Legislative Affairs Committee, to take this matter forward and hold the Government to account, he'll have our full support?

Thank you for those comments, and they very much reflect, I think, the views I hope I've expressed, although we've not had the opportunity obviously to have a detailed discussion of what happened. When the report was presented, I actually went off message and made a very specific comment that I thought was important, and that is: it is not for Government to determine the mechanism for its own scrutiny. It is a fundamental part of the legislature. And I think the Government's response at that time was actually supportive of that. It is recognised. It is almost the rule of law of parliaments. So, this statement is not so much to do with the actual issue of the binding nature of the role of a sifting committee; it is actually about the principle whereby Government agrees, we all agree, that it is for the Assembly to determine the scrutiny of Government, and where that has been breached, it is certainly my role as the Chair of the Constitutional and Legislative Affairs Committee, and its members, to actually stand up and draw attention to the fact that this is a matter of principle.

I recognise the points that were made and I recognise the comments that have been made by the First Minister in the letter to me, but time I don't think is a justification for that sort of breach. I note that when the Constitutional and Legislative Affairs Committee was asked to scrutinise, for example, the continuity Bill at very short notice, Members went to considerable lengths to ensure that they were available and put the time in to actually carry out that process. So, this is a matter that I think is very important that it does not happen again.

Can I welcome the statement by the Chair of our committee, the Constitutional and Legislative Affairs Committee, Mick Antoniw? I wholeheartedly agree with the sentiments expressed and those expressed by David Melding, a fellow member of the Constitutional and Legislative Affairs Committee.

This is a serious matter—absolutely serious matter—because, and I won't go over the history again, but obviously there's always a tension between governments and their individual legislatures. We'll hear, doubtless later on this afternoon, of the tension of powers lost between here and Westminster, but this is an issue of powers lost between us and the Government—a power grab internally, if you like, between Welsh Government and the Assembly itself.

Recommendation 2 that was passed unanimously here says that,

'The recommendation made by the sifting committee under recommendation 1 should be binding, save where the National Assembly resolves otherwise. This requirement should be reflected on the face of the Bill.'

I've got to say that that is not the most radical piece of legislation we've ever passed in this place. We've agreed unanimously and it puts the onus firmly on the National Assembly for Wales, where it should properly reside, in terms of the importance of scrutiny in this place. It is difficult enough performing scrutiny to a detailed degree as it is, with the various pressures on us, and obviously only about 40 or so Assembly Members can legitimately take part in that scrutiny process, and then when things are taken away from us, which we thought were previously agreed, that does not stack up.

Also, in correspondence, it has been embarrassing, not just for CLAC, but also, I would contend, for Llywydd here, when the position has been agreed and the Secretary of State then discovers that actually that agreed position of the National Assembly has been overridden by the First Minister here without recourse to this National Assembly for Wales. So, it is a moot point to ask what value we can place on unanimous votes placed and passed in this legislature when the First Minister can subsequently, and without warning, reject one of the main recommendations that had been passed unanimously, as Mick Antoniw has said.

The other important point, as regards the EU withdrawal Bill itself, which doubtless we will be discussing more in the next statement, is that the primacy of Welsh Ministers over the legislature here in the Senedd, as regards the sifting process, has found its way into the UK Government's supplementary memorandum on delegated powers in the EU withdrawal Bill itself. This is totally unacceptable and it undermines the decision-making processes of this Assembly, of which we are all proud members.

I seek reassurance. I note all the communications that have gone back and forth and the apologies, but at the end of the day, this is plainly just not good enough and it's a poor signal of the way the rest of the negotiations are going on as regards the totality of the EU withdrawal Bill, if we cannot get this situation correct.

The Constitutional and Legislative Affairs Committee, we can respond in an emergency. We did that within a day with the continuity Bill, despite David Melding, to be fair, on a policy ground—even though that is not a legitimate concern for CLAC—not being totally involved in that procedure. We managed to turn it around in an urgent situation in a day. So, the First Minister's argument about the urgency of the situation trumping our recommendation does not hold water, and I look forward to further discussions on the matter. Diolch yn fawr. 

Thank you for those comments. This is a matter of constitutional principles with regard to the separation of powers. We know we have all had serious concerns about the very serious transfers of powers and the way in which powers will have to be exercised as a result of the withdrawal Bill and the developments around Brexit. We have all expressed the very serious concerns and recognised the real challenges and dangers that exist with regard to the exercise of Henry VIII powers.

The reason for bringing this statement today is very simple: this is a significant matter and the danger is if it was not challenged at this stage there would be a precedent established. So, my hope is that that principle of separation of powers is recognised and also that what did happen should not be a precedent in respect of any future matters, particularly when we come to the issue of the exercise of Henry VIII powers. 

I thank the Chair of the committee.