Part of the debate – in the Senedd at 4:30 pm on 2 May 2018.
In short, the agreement is wholly consistent with the reserved-powers model embedded in the Scotland Act and the Wales Act 2017, and in some respects it strengthens that model, as I'll explain. The second point to make is that frameworks will be identified and agreed through a collaborative inter-governmental process, underpinned by Sewel. Originally, Members will recall, the view of the UK Government was that frameworks would be drawn up and determined entirely by the UK Government. Again, we see an enormous move away from the position they originally adopted. This process will now develop the draft regulations that specify which EU powers will be frozen. And let me be absolutely clear: we have not agreed to any restrictions on devolved competence. So, it would be wrong to claim that the current EU powers over the 26 policies in the annex to the agreement will now sit in Westminster. The reality is that the Bill and agreement themselves do not give anything away. It's the draft regulations, which have yet to be developed, that will propose preserving the existing EU restrictions in relation to some elements within those 26 areas—some elements, not all of them in their entirety.
Now, crucially, those draft regulations will come to this Assembly for our consideration, and to decide whether we give our consent to these restrictions before they are laid before the UK Parliament. That agreement then applies the same principle as currently applies to primary legislation affecting devolved matters. In effect, what Lord Callanan's amendments do is to extend the Sewel convention to secondary legislation in a way that's not happened before. So, in fact, it's an extension of devolution. It means the UK Government will not normally proceed to put the draft regulations before Parliament if the Assembly has refused consent. Now, some will say, 'not normally', but that is simply what the current devolution arrangements say. That's what the Acts that provided devolution to the people of Wales following the vote said—it's expressed in exactly the same way in the Scottish devolution settlement. So, all that does is simply use the same approach and language that has already been established as part of the devolution process. Whether that should continue in the future is a debate that I think needs to be had, but that is where, constitutionally, we are. So, it takes Sewel a step forward. Sewel, remember, is something that applied originally to primary legislation. It has, in effect, been extended now to secondary legislation as well.
Now, if, in extremis, the UK Government wished to press on with regulations in the absence of consent—which it can do legally, we all know that, because of the sovereignty of Parliament, whether we agree with that or not; I happen not to agree with that, but that's for a different day—well the UK Government can't just present its own views, but the views of the devolved legislatures are put before the UK Parliament. The fact that this legislature would have refused consent is considered by the UK Parliament. So that puts the UK Parliament in a position where it doesn't just have to listen to the view of the UK Government.
The third point: of course, what will happen now is that, on the face of the Bill, sunset clauses will be there, yes, in terms of the power to create regulations two years from Brexit day, and any regulations made for a maximum of five years. So, any restrictions on competence therefore are temporary. Now, Members asked the question: can the sunset clause be extended? Well, in the sense that the UK Parliament can do what it wants, theoretically that's possible. But there is an agreement now, and something that is far more tangible and real, that that will not happen. In fact, there's also another pressure on the UK Government that provides us with the comfort that we need that we will not see an extension of the sunset clause, and it's this: the agreement places further important restrictions on the UK Government in this way, because it gives an unequivocal guarantee that UK Ministers will not bring before Parliament any legislation for England making changes to retained EU law in framework areas. It means we're all on the same level playing field, and one of the issues I argued strongly with David Lidington in the negotiations I had with him was that it is not fair that England should have freedom that is denied to Scotland, Wales and Northern Ireland. This removes the freedom. So, actually, there's every incentive now for the sunset clauses to be shortened, because it's not in the interests of the UK Government acting in relation to England to be restricted in the same way as we would be, but in a way that they wouldn't have been without this agreement. They could have done whatever they wanted, whereas there'd have been restrictions on the other Governments in the UK, and that's an important change. It establishes a level playing field in order to retain, yes, the current EU frameworks—we need that—but until such time as new frameworks are negotiated and agreed. So, we see there a strong incentive for the UK Government to agree frameworks long before the five-year maximum term, because otherwise they can't make changes in England, for example to reform agricultural policy in England.