That brings us to our next item, which is the motion to amend Standing Orders. I call on a member of the Business Committee to move the motion formally—Julie James.

Motion NDM6817 Elin Jones

To propose that the National Assembly, in accordance with Standing Order 33.2:

1. Considers the Report of the Business Committee ‘Amending Standing Orders: Implementation of the European Union (Withdrawal) Act 2018’ laid in the Table Office on 26 September 2018.

2. Approves the proposal to revise Standing Orders 21 and 27, and to introduce new Standing Orders 30B and 30C, as set out in Annex B of the Report of the Business Committee.

Motion moved.

Moved.

Thank you, Llywydd. I welcome the opportunity to speak on this debate about the changes to Standing Orders that arise as a consequence of the European Union (Withdrawal) Act 2018. In July, my committee reported on operational matters relating to the scrutiny of regulations that will arise as a result of the 2018 Act. We made 12 recommendations, nine of which had implications for Standing Orders.

Our report focused on three areas of the Act that enable the making of regulations by the Welsh Ministers and UK Ministers. First, we looked at the powers of the Welsh Ministers to deal with deficiencies in UK law arising from the UK’s withdrawal from the European Union, including the mechanism for a committee to sift certain regulations to see whether they should be subject to the affirmative rather than the negative procedure.

Secondly, we looked at the powers of UK Ministers to act in devolved areas and how they should be scrutinised. And, last but not least, we considered how we should scrutinise regulations made by UK Ministers to restrict the National Assembly’s legislative competence, having regard to the inter-governmental agreement between the Welsh and UK Governments.

Overall, we are content with the changes being made to Standing Orders and welcome that the Constitutional and Legislative Affairs Committee will take on responsibility for sifting regulations arising from the 2018 Act. I would, however, like to draw the Assembly’s attention to two aspects of the changes being made.  

In respect of our second recommendation, namely that criteria for sifting regulations should be published, we have since written to the Government, effectively accepting their proposal that they should be included in Standing Orders. This reflects an earlier recommendation in a report we published in February about the legislation as it was being scrutinised in the UK Parliament. 

We remain disappointed, however, that our third recommendation has not been reflected in the new Standing Order proposals. Our recommendation related to the sifting mechanisms and the circumstances in which the Welsh Government does not agree with a committee's recommendation to require the application of the affirmative procedure to the making of regulations, rather than the negative procedure. The aim of our recommendation was to require that the Welsh Government should make a statement explaining why they do not agree with a committee recommendation before the regulations are made—i.e signed into law. To that end, it sought to mirror provisions in the 2018 Act that apply to UK Ministers. The Act’s provisions did not apply to the Welsh Ministers because there was insufficient parliamentary time for the UK Government to obtain the National Assembly’s consent for the changes.

Having accepted our recommendation, the Welsh Government suggested an approach to the Business Committee, namely of laying a statement as part of the explanatory memorandum. For regulations subject to the negative procedure, an explanatory memorandum is laid after regulations are made. The Business Committee’s report on the changes to Standing Orders indicates that the benefits of our recommendation were outweighed by the practical advantages of the Welsh Government’s alternative proposal, which is now replicated in Standing Order 27.9B.

The timing of when a statement is laid may seem trivial, but the parliamentary process and trust in that process are a vital part of our democracy. There is a clear and important point of principle here, which is why it's important that this matter goes on the record. If the committee were to recommend to uplift regulations from negative to affirmative procedure, then under the proposed Standing Order, Assembly Members will only be made aware of a Welsh Government decision to reject the recommendation after the regulations have been made, and therefore signed into law. So, this potentially nullifies the purpose of the sifting mechanism. That mechanism was included in the 2018 Act as a means of preventing an excessive transfer of power from the legislature to the Executive. In our view, practical advantages of process should not be at the expense of constitutional propriety and good practice, so we have therefore sought a formal explanation from the Welsh Government for suggesting its alternative approach, and we look forward to receiving a written response in due course. We will also keep a close eye on the quality of the statements made by the Welsh Government as to why they disagree with a recommendation of the committee, if that situation arises. We note that poor-quality statements could increase the likelihood of Assembly Members tabling motions to annul negative resolution regulations. So, in the meantime, we intend to keep a watching brief on the impact of Standing Order 27.9B, and we may, if we consider it appropriate, suggest changes in the future.  

Turning briefly to two other matters, I'm very grateful to the leader of the house for advising us, in line with recommendation 4 of our report, that some 50 regulations will be required to correct deficiencies in domestic EU law, and we look forward to receiving an update on the number of regulations that will be required to correct deficiencies in directly applicable EU instruments. Planning our work programme to accommodate the increased number of regulations because of Brexit will be essential, and it is for that reason that recommendation 6 of our report suggested that we enter into an agreement with the Welsh Government about managing the scrutiny of Brexit-related regulations. It is therefore very pleasing that the committee and the Welsh Government have agreed the terms of a protocol to enable the scrutiny of correcting regulations to be as efficient and effective as possible. And I'd like to thank the Cabinet Secretary and the leader of the house for the very positive and constructive discussions that we've had, and we've been able to achieve what I think is an important, and groundbreaking for this Assembly, protocol. So, on behalf of the committee, I look forward to working with the Government on this important constitutional legislation and the challenges that we will be facing up to as a result of Brexit in due course.

The Deputy Presiding Officer (Ann Jones) took the Chair.

Thank you. The leader of the house to reply to the debate.

Thank you, Deputy Presiding Officer. Just simply to say that, of course, we hope that—. We're very happy to have worked very closely with the committee; we did indeed have a very constructive meeting about a number of these issues. On the one area that remains slightly contentious between us, we are, of course, very happy to provide an explanation to the Assembly as to our reasons, if we should decide not to follow the procedure recommended by the sifting committee. Of course we hope this will not happen. There will be numerous opportunities in the course of the discussion of the SI where an early warning system could possibly be put in place, and I am very happy to say to the Member, and to all of the Members of the Senedd, that we will keep this under close review, and should it prove to be any sort of problem, we will of course work with the committee to review the Standing Orders. But it's very much a stop-gap provision. We hope it will not happen. We consider that the inclusion of the information within the explanatory memorandum when the SI is laid will assist Members. They will have all the information in one place to decide on the response. They will have 40 non-recess days to table and lay an annulment motion, and the early warning system will list forthcoming negative resolution SIs in any event, so the committee will be able to identify those where a sifting recommendation has not been followed, should such a thing happen—which we very seriously hope it will not. So, on that basis, Deputy Presiding Officer, I commend the motion to the house.

Thank you. The proposal is to agree the motion. Does any Member object? No. Therefore, the motion is agreed in accordance with Standing Order 12.36.

Motion agreed in accordance with Standing Order 12.36.