Item 5 on our agenda this afternoon is the statutory instrument consent motion: the Marine Environment (Amendment) (EU Exit) Regulations 2018. I call on Suzy Davies to move the motion.

Motion NDM6913 Suzy Davies

To propose that the National Assembly for Wales agrees, in accordance with section 8(1) of, and paragraph 21(b) of Schedule 7 to, the European Union (Withdrawal) Act 2018, and Standing Order 30A.10, that the Secretary of State makes The Marine Environment (Amendment) (EU Exit) Regulations 2018, in accordance with the Statutory Instrument Consent Memorandum that was laid in Table Office on 31 December 2018.

Motion moved.

Diolch yn fawr, Dirprwy Lywydd. You will see that that's a very snappy title. Members will be relieved that the purpose of this brief debate is not to examine the policy intention of the Marine Environment (Amendment) (EU Exit) Regulations 2018 or, indeed, to really challenge the assertion of Welsh Government that it's appropriate for this Assembly to agree to this statutory instrument consent motion. This is more to do with drawing Members' attention, once again, to the ability of the UK Government to sub-legislate on matters within the legislative competence of this Parliament and considering concerns about how this Parliament can maintain its own oversight of how primary legislation, material to us, is being amended by secondary legislation of another Parliament.

Until now, we've understandably focused our attention on primary legislation and related legislative consent motions, and we've encountered Bills on agriculture and healthcare that have caused committees to raise their eyebrows, perhaps. And the Constitutional and Legislative Affairs Committee in particular will have plenty to say in due course about Welsh Government choices on whether to recommend LCMs or not, as well as the quality of the information that Welsh Government provides to this Assembly to help us scrutinise those choices.

How easy is it then to lose sight of the reams of secondary legislation to which the same principles should apply? The UK Government is laying many statutory instruments, affecting many more pieces of primary legislation, in order to make retained EU law function after Brexit. And these could, and indeed do, transfer executive functions in areas where we have legislative competence to Welsh Ministers, or indeed Secretaries of State with the consent of Welsh Ministers. And because we're talking about statutory instruments, which are active in areas of devolved competence, we need to understand what Welsh Ministers are actually agreeing to on our, and of course their own, behalf.

There is a Standing Order process for this, but in reality Government decides whether we can rely on UK Government statutory instruments or whether they should introduce their own secondary legislation. At the moment, the majority of reports we get from Welsh Government is that we can just agree these UK statutory instruments, as there's no policy divergence and it makes for a clearer statute book. That's the general content of the explanatory memoranda that come to Members recommending Assembly support without the need for debate: 'Nothing to see here. Everything is in order. Why waste Plenary time?'

With so many statutory instruments coming through from the UK and devolved areas, we need, as Assembly Members, to be in a position where we can rely on ministerial judgment and avoid the need for debate. However, there are occasions, and an increasing number of them, where we can't safely rely on that judgment. And it's not that the judgment is wrong, but we don't have the evidence to support the judgment, and it's deliberately why I've chosen this hopefully rather benign example to make my point.

We're told in the Minister's covering statement that this UK statutory instrument could affect our legislative competence and Minister's executive competence because we have some legislative and executive competence in relation to the marine environment. The Minister's own motion contained a little more detail on existing powers, but nothing more on our legislative competence, except that it's subject to a few reservations. A few examples are given, but no concrete detail. It's also a negative procedure statutory instrument, limiting UK Parliamentary oversight, so the eye of scrutiny is already less than optimal.

My argument to Welsh Government is this: if you think a UK statutory instrument is fine and you want us to accept your advice without debating it, just give us fuller advice. If we have some legislative competence, identify what it is. If Welsh Ministers have various Executive powers under a number of enactments, tell us what they are. And, as you'll see, I've had to, with help obviously, draft and lay my own very similar consent motion to do this, and, as an AM, I don't have the resources to research and draw down the information that civil servants can do. Your officials do know what that legislative competence and what those Executive powers are to make the assertions in the first place. So, it's not enough to tell us what existing legislation's being amended, we need context and clarity about the effect of the change and Ministers need to be alert to that before they sign off. 

So, why does this matter? So many of these statutory instruments amend primary legislation in devolved areas and they can give powers to Welsh Ministers. And, if the only scrutiny we get is based on ministerial advice, the advice needs to be clear, comprehensive and overcome any space for suspicion of a conflict of interest, because we shouldn't be allowing other Parliaments to give our Ministers powers without us being sure that we understand how, where, why and what. I understand the irony of asking for you to consent to an SI that I've just confessed I don't really understand myself, but I hope it proves the point. Thank you very much. 

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

Thank you, Dirprwy Lywydd. My contribution this afternoon will set out the Constitutional and Legislative Affairs Committee's consideration of the statutory instrument consent memorandum for the Marine Environment (Amendment) (EU Exit) Regulations 2018. The committee considered the Welsh Government’s SICM for the Marine Environment (Amendment) (EU Exit) Regulations 2018 at its meeting on 10 December 2018. At that time, the committee noted the accompanying letter from the then Cabinet Secretary for Energy, Planning and Rural Affairs, which stated:

'Given the volume of legislation that the Assembly is considering, I do not believe that a debate on this SI would be a productive use of valuable Plenary time.'

As permitted by Standing Orders, on 31 December 2018, Suzy Davies AM laid before the National Assembly a further statutory instrument consent memorandum for the Marine Environment (Amendment) (EU Exit) Regulations 2018. The committee considered that SICM at its meeting this past Monday, and, in doing so, noted the Member's reasons for laying the SICM and tabling the motion. Thank you.  

Can I applaud Suzy Davies for tabling this statutory instrument consent memorandum and her subsequent consent motion, because—? The bigger picture, we are where we are as regards Brexit regulations and we must soldier on, and I'm not going to rehearse again our fears on this side of any Brexit power grabs. That's the bigger picture. As we've heard, Standing Order 30A states that Government must lay a statutory instrument consent memorandum and motion if a UK statutory instrument allows UK Ministers to amend primary legislation here in Wales in devolved areas. That's why it's important, and, as I said, I applaud Suzy for bringing this forward and shining a light on the importance of this. There is no particular disagreement as regards to this particular instrument in front of us, it's just being used as an example, because we do have common frameworks now to sort out the EU withdrawal legislation. An awful lot of secondary legislation, as we've heard, is coming our way.

We talk a lot about shared governance. In other words, it's not just one Government in one place telling another Government in another place what to do. Governance is meant to be shared now in an open spirit of respect and mutual confidence in one another. But, obviously, on CLAC, on the Constitutional and Legislative Affairs Committee, we do fret about these sorts of things. We fret about not just the loss of powers from this institution to Westminster, we also fret about the possible loss of powers from this legislature to our own Government. Both of those things occupy a lot of the time, and that is the framework where we're having this discussion.

So, this is about this legislature being able to hold this Government to account, and that's the importance of this little debate this afternoon, because SICMs are the secondary legislative equivalent of LCMs and we have got a recent LCM on the reciprocal health arrangements where we've seen a fairly blatant attempt by Westminster Government to broaden the scope of reciprocal health arrangements from just a simple transfer of functions—. That's what we were all expecting, a simple transfer of functions because of Brexit, a simple transfer, and we've seen a blatant attempt to broaden the scope of that, and the health Minister here, rightly, at the moment is minded to withhold legislative consent unless that particular Bill is amended along the lines of all our concerns here. So, that's the importance of this debate.

It might be a twee constitutional point, but it's a very, very important one, because the volume of SICMs coming our way is quite startling, and we have, as Suzy has said, many, many reports saying exactly the same thing, and our legislative support here is working extremely hard to keep up with it all, and we mustn't lose sight because, sometimes, things possibly can be agreed to if we don't look at dotting the i's and crossing the t's.

So, I'm grateful to Suzy so that we're able to shine a light on this. It highlights the potential, sometimes, for this Assembly legislature to be sidelined just because there isn't enough time, it's not important enough, there's too much work, and it's a Government to Government thing—well, actually, it's about this legislature. Diolch yn fawr.

Thank you. Can I now call on the Minister for Environment, Energy and Rural Affairs to speak? Lesley Griffiths.

Thank you, Deputy Presiding Officer. I thank Suzy Davies for bringing this motion forward. I did wonder if it was the detail of the Marine Environment (Amendment) (EU Exit) Regulations 2018 that you did want to look at with detail. I wouldn't call it bland, I'd call it technical, but I—. I don't think it's twee, either. I think it's a really important point that's been raised.

If I could just say the UK's withdrawal from the European Union has created an unprecedented legislative programme across all Governments in the UK; we are all working to amend EU-derived law so that we do have a fully functioning statute book at the point of exit, whenever that is, and I think it's absolutely vital that the Welsh statute book remains operable.

Our approach here reflects the real and pressing need to respond to the extraordinary circumstances surrounding Brexit, rather than any attempt whatsoever to limit or frustrate the Assembly's role as a legislature. It's been necessary to work with the UK Government on some aspects of the process of legislating for Brexit due to the sheer volume of legislation required. The UK Government's been producing its own SIs in some areas devolved to Wales, but only with the consent of the Welsh Ministers under the terms of the inter-governmental agreement. We are notifying the Assembly whenever the UK SIs to which we have consented are laid in Parliament, and to date we've notified the Assembly of 76 such instruments. The Welsh Ministers only consent to the UK statutory instruments where there's no divergence on policy between Wales and the UK, and the decisions made by Welsh Ministers are designed to balance the extraordinary set of demands created by Brexit, with the Welsh Government's commitment to provide the greatest possible practical opportunities for scrutiny of those legislative actions that have a material rather than simply a technical purpose.

Deputy Presiding Officer, I think it would be helpful for Members to recognise that, if we'd taken the decision to make all EU exit legislative corrections for devolved areas solely in Wales, it would have required 200 statutory instruments and at least four Bills to be laid in the Assembly in addition to business as usual legislation. It would only be possible to pass the necessary Bills in the available time by following the fast-track procedure, which, again, would limit scrutiny by the Assembly. Even then, even if we excluded all other business, it would have taken approximately six months of Assembly time. So, I don't think it's a matter of me believing that it's a waste of Assembly time; I just think it is very practical.

I just would like to reassure Members as well that I look at every SI on an individual basis, which, of course, you would all expect me to do. My officials provide me with very detailed advice. I've also worked very closely with the Counsel General in relation to these SIs. But I'd certainly be very happy to look at your suggestions, Suzy Davies, to see if we can bring forward more detail in the written statements we bring forward. Thank you.

Can I call on Suzy Davies to reply to the debate?

Diolch, Dirprwy Lywydd, and thank you for allowing me a couple of extra seconds on this. First of all, thank you very much to the Minister and to Dai Lloyd for their contributions. Part of having this debate was to give the Minister an opportunity to explain to us all quite what the volume of this work looks like, but that doesn't let Ministers off the hook either from giving us the fullest relevant explanation to help us be satisfied that you're doing the right thing on our behalf. So, I was delighted to hear that you said you get really the fullest advice from your officials. While we don’t necessarily want something the size of a stamp, if you could get something that's in between what we're getting now and what, perhaps, you're getting from your officials, I think that would bring some reassurance to us as a Parliament that we're doing the right thing in trusting your judgment.

And can I just apologise that you got stuck with this particular debate, because the point is a general one to all members of Government, and not just to the poor Minister who has had to respond today? Thank you. 

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.