The next debate is the debate on the Constitutional and Legislative Affairs Committee report on the inter-institutional relations agreement between the National Assembly for Wales and the Welsh Government. I call on the committee Chair to move the motion—Mick Antoniw.

Motion NDM6983 Mick Antoniw

To propose that the National Assembly for Wales:

Notes the report of the Constitutional and Legislative Affairs Committee entitled Inter-Institutional relations agreement between the National Assembly for Wales and the Welsh Government, which was laid in the Table Office on 31 January 2019.

Motion moved.

Thank you, Llywydd. I'm pleased to open this discussion. It was important to the committee that this agreement that has been reached, which is constitutional in nature, relating to the scrutiny of the Assembly, was made available on the floor of this Chamber so that Members became aware of it, members of the public became aware of it, because, in the difficult times that we are operating at the moment, transparency and scrutiny are extremely important, and this is a unique agreement designed to try and deal with that.

In February 2018, we issued our report 'UK governance post-Brexit', and its purpose was to examine existing inter-governmental relationships to determine whether they are fit for purpose and to assess whether they need to change. Our inquiry took place against the backdrop not only of 20 years of devolution, but also the UK’s withdrawal from the European Union and our desire to ensure that Wales's interests are not marginalised in the constitutional arrangements that emerge in the UK as a result. The final recommendation of our report was that the Welsh Government enters into an inter-governmental relations agreement with the committee to support its scrutiny of Welsh Government activity in this area.

I'm pleased therefore to be in a position today to formally welcome the reaching of just such an agreement, which is contained in the short report before the Assembly today. The agreement is a very important document. The relationship that exists between Governments in the UK is going to change if we leave the European Union. It will be vital, therefore, that Assembly committees and the National Assembly are able to scrutinise how Governments are working together for the benefit of our citizens across the policy spectrum and with regard to the establishment of common policy frameworks. We believe that the inter-institutional agreement before us today will help to facilitate that process.   

The agreement adopts the same approach that exists in an agreement between the Scottish Government and Scottish Parliament. A 2015 report published by the Scottish Parliament’s Devolution (Further Powers) Committee observed that:

'The effectiveness of Parliamentary scrutiny of IGR will depend in part on its ability to be informed of the subject matter and timetable of the discussions between governments.'

That view resonated with us, and, in particular, our belief in the need for transparency around inter-governmental relations and the mechanisms to facilitate them. We believe that the agreement delivers on these points, and I will very briefly outline its requirements, which are set out obviously in more detail in this document, which is before Members. 

The agreement establishes three principles that will govern the relationship between the National Assembly for Wales and the Welsh Government with regard to inter-governmental relations.  These are transparency, accountability, and respect for, and recognition of, the part confidential discussions play between Governments, particularly when developing policy. The agreement applies to the participation of Welsh Ministers in formal inter-governmental structures, including the Joint Ministerial Committee in all its functioning formats, the ministerial forum on the future relationship between the UK and the EU, the British-Irish Council, and various ad hoc inter-ministerial fora of similar standing that exist or may be established.

It provides two important benefits for the work of committees. Firstly, my committee and others, will receive, as far as practicable, at least one month's notice of agenda and key issues to be discussed prior to scheduled relevant meetings, unless the Welsh Government’s participation takes place at short notice. This will enable a committee to express a view on the topic and, if appropriate, to invite the Minister responsible to attend a committee meeting in advance of the inter-governmental meeting. 

Secondly, after each inter-governmental ministerial meeting within the scope of the agreement, the Welsh Government will provide relevant committees with a written summary of the issues discussed at the meeting as soon as practicable and, if possible, within two weeks. Such a summary will include any joint statement released after the meeting and information related to the meeting, including an outline of the positions advanced by the Welsh Government.

In order to monitor progress, the Welsh Government will prepare an annual report on inter-governmental relations. It will be laid before the National Assembly and submitted to my committee. The annual report will summarise the key outputs from activity that is subject to the provisions of this agreement, including any reports issued by relevant inter-governmental fora. It will also comment upon the range of broader inter-governmental relations work undertaken during the year, including dispute resolution, which is going to be of considerable importance.

As I said when we debated our 'UK governance post-Brexit' report just over a year ago now, the UK is in the midst of one of the most important and challenging constitutional reforms it has ever faced, with long-lasting implications for the operation and governance of the UK and the individual nations and regions of the UK. The UK will have to adapt its internal arrangements to ensure that a consequence of leaving the EU is not a greater centralisation of power in London. This agreement marks an important step in how we in the Assembly will scrutinise that process as it unfolds.

Before closing, I would like to express my thanks to the First Minister, the Counsel General and their officials for the positive way in which they have engaged with the development of this agreement. I'm sure that, if we continue in that vein, this agreement will bring benefits not only to the Assembly and Government but also to the citizens of Wales, the nation that we serve. Thank you.

The question for me is: how does this Assembly influence how our two Governments work together to ensure that the integrity of the devolved settlement is protected? And while I wasn't a member of this committee when the work was being done on this particular agreement, the work that I've done on the committee since then has coloured how I want to put my presentation to you together, so I hope you will bear with me in my slightly tortuous route to my conclusion.

It's an Act of the UK state that enables the retention of EU law within our state borders, and it's the same Act that permits the creation of secondary legislation, which makes that acquis function. Some of that secondary legislation, made by the UK Parliament, will often affect devolved competences. That secondary legislation can be about something as uncontroversial as replacing the name of an EU institution with that of a UK or Welsh body, or it can be as significant as giving Welsh Government powers and responsibilities that they've not had before. And, alongside that, we have a situation where both Governments are working together towards a range of agreements and concordats, such as the pan-UK frameworks, and much should be achieved by those formal inter-governmental structures, such as the JMC and the British-Irish Council and so on.

But the inevitable result of this work is that Welsh Ministers could acquire power and responsibility to themselves, or indeed the reverse and cede power and responsibility to UK Ministers, asking them on some occasions to legislate on behalf of Wales in devolved areas where expedient to do so. And that alone should make us sit up and take notice, because, while we are already familiar with the idea of LCMs for primary legislation, we're not so familiar with another Parliament making secondary legislation on our behalf and, on Brexit-related secondary legislation, there is an awful lot of it, and an awful lot of it is consented to on our behalf directly by Welsh Government.

Now this debate isn't strictly about secondary legislation, but it's a useful comparison with the situation that we are discussing, and that is this Assembly's role in scrutinising for our constituents the activities of Welsh Government in all its interactions with other Governments, but especially when those actions result in it gaining or losing powers by means other than the express permission of this Assembly, or where they result in decisions in devolved areas being taken by another Government, let alone another Parliament, without our direct scrutiny.

So, subject to the expected safeguards to protect confidentiality or engagement at short notice, it is entirely right that this Assembly recommended—or even demanded, it felt like to me—a protocol between ourselves and Welsh Government by which Welsh Government informs us in due time of inter-governmental meetings. That allows committees of this Assembly to call in Ministers in advance of those meetings to help inform them of this Assembly's preferred position on the subject in question before they attend such an inter-governmental meeting. Welsh Government then has to report back to committees, as we heard, with progress reports or details of any agreements reached or changes to existing arrangements, and that in itself allows Members here to scrutinise what Welsh Government has done—maybe perhaps a little bit too late in terms of changing what it might have done, but at least Welsh Government can be held to account for its choices on our behalf.

And that's why I started this contribution by talking about what looks like the unrelated matter of secondary legislation, because it's foreseeable in my view that some inter-governmental agreements—not all of them—will result in primary legislation made by the UK Parliament and scrutinised there. We need to be certain here that Welsh Ministers have taken appropriate steps before this to protect Wales's best interests before anything is drafted, especially if what will be drafted covers devolved matters. 

The subsequent LCM process gives Members here a level of scrutiny and influence on such UK law, and there have been reassuring noises of a Sewel nature from the UK Government about that. But, when it comes to the secondary legislation that will flow from that law, itself made on an England-and-Wales basis, our capacity to scrutinise it as we should want to scrutinise it will be sorely tested, and it's being sorely tested now, with secondary legislation under the European Union (Withdrawal) Act 2018.

We spoke only a few weeks ago about how difficult it was for the Welsh Government to prepare sufficiently detailed explanatory memoranda, and we encountered the same issue with Standing Order 30 statements. While we recognise that the Welsh Government is under severe pressure to digest and summarise this, errors or incomplete information compromise our ability to have faith in their preliminary scrutiny of what comes their way from the UK.

So, the protocols for that don't seem to be working entirely satisfactorily, which is why the protocol between this Assembly and the Welsh Government, which provides for notice and reporting, and an upstream opportunity to influence the Welsh Government's negotiation with the UK, is so important, because, after washing through a legislative process, downstream, we don't have much chance for consistent scrutiny or influence, and that should worry us. Thank you.

I’m pleased to contribute to this debate as a member of the Constitutional and Legislative Affairs Committee, and may I congratulate the Chair for an excellent summary of the situation, because this agreement is crucially important? This is an agreement between ourselves as the legislature and our Government here to ensure that we know what’s happening so that we can promote the scrutiny process.

With the background of Brexit, especially, as we’ve already heard—because what led to the development of this report was the ongoing Brexit process—there’s a natural tension. We have discussed it on many occasions—this tension between the possibility of losing powers from here to Westminster, but there’s also another tension, as Suzy Davies mentioned, of powers being subsumed from the legislature to the Government here. So, there is a risk in two ways of losing powers from the legislature to our own Government and to another Government at the other end of the M4.

So, that’s why this agreement is so crucially important, because we have seen powers lost. I’m not going to rehearse issues around the Wales Act 2017, but, of course, at the committee every Monday, as Suzy’s mentioned, we see a whole host of primary and secondary legislation coming before us because of Brexit.

Of course, there are time constraints and huge workload pressures on officials in this place, and, to be fair, in Westminster, to get everything in place in good time. But, of course, we also see that there is the potential at least, as Suzy has said, that we may lose powers. We have had a discussion this week on the use of the word ‘national’ in relation to the UK rather than Wales. I thought we’d been through all of that. In terms of legislation, we’re back to being considered a region. Well, that’s not what our national anthem says. We say, ‘Gwlad. Gwlad.', not ‘Region. Region’. Those things are important. People say that they’re only words, but every lawyer will tell you that it’s the words that count at the end of the day.

Of course, when Westminster does legislate on our behalf—we are always grateful to them for legislating on our behalf, particularly in areas that are already devolved to us and have been for over 20 years—we would also like to see that legislation being made bilingually, because we have an official language here called the Welsh language. There are a few examples that we’ve noted in the committee over the past few weeks where we see monolingually English legislation that will be implemented here in Wales.

People say, ‘Well, it’s about time constraints—you don’t need to go after the detail, Dai, stop making trouble’, and so on and so forth. But, that’s how inconsistencies happen. Of course, in using this excuse, 'Because it’s easier, of course, with all of the staff and energy in Westminster, for them to do everything on our behalf now, even in those areas that are already devolved to us'—. Well, there's a risk to that because we should be legislating in devolved areas for ourselves. There should be a Wales agriculture Bill, not relying on the UK Agriculture Bill. There should be a Wales fisheries Bill, not a UK Fisheries Bill.

We saw an LCM yesterday on animal welfare that we discussed just yesterday. Now, it would've been easy for us to make that legislation here in Wales because it was only two clauses. But we had no opportunity to scrutinise it in this place until it was a fait accompli, to use another language still. We have the capacity here, and there should be a requirement that we develop our own legislation in this place as we have those powers now, and we shouldn't use the fact that we are leaving the European Union and everything has to be done in a hurry, there's never enough time, and Westminster does everything on our behalf. But there are things that can be lost in that scenario.

We saw with the LCM on international healthcare arrangements that there's a very real possibility there, since Westminster changed its mind, that they're going to expand their powers in health in an area that has been devolved to this place for 20 years. That's not right. What was required was a simple transfer of functions. Westminster tried to add to their own powers until we in this place noticed that. So, we have to be vigilant, and this protocol is crucial in that regard. Thank you.

I wasn't going to speak in this debate because I clearly understand it's about principles, but I think it's important to understand that this is not a constitutional issue, it's actually an issue for the whole Assembly and various committees, and I think that's very important to recognise. I'm disappointed that perhaps we haven't got so many colleagues in the Chamber to actually understand that.

As Suzy Davies pointed out, the number of SIs that go through—. Now, last Monday, the common fisheries policy was an SI under Standing Order 30C, where the Welsh Government has ceded the decision to the UK Government for actually undertaking that work. When you read these SIs, you actually identify that, yes, technically, it replaces the union with the United Kingdom, but then it replaces a commission with the Secretary of State. So, actually, it's the Secretary of State that makes decisions, and very often, it also confers concurrent powers upon Ministers, which means that UK Ministers can actually take decisions on devolved areas as well. So, we need to have an understanding of what these actually mean for Wales.

I welcome this agreement between the Assembly and the Welsh Government because it is crucial that we have an opportunity before they go. And I will just give a caveat in here, when they get the agendas, because very often, when we've raised the issue, the Ministers don't get the agendas until a day before they go, and sometimes, when they get there. That's got to be unacceptable, and that's perhaps a way we, as an Assembly, can put the pressures upon our parliamentarian colleagues in Westminster to say, 'Get your act in order and get your Ministers to put these agendas in place,' because how can we hold them to account when they don't have the papers, because some other Parliament, another Government, is withholding those? But, when we do hold you to account, would you come back and tell us about it? But, we want to actually influence it; we want to actually hold you to account to say, 'Why are you doing this? What are you trying to achieve? And when you come back, did you achieve it? Why didn't you achieve it? What were the issues?' So, it is crucial that this Assembly has that opportunity, and this agreement puts a formal process in place for that to happen, and that's very much appreciated.

But what we have to also now try and do is pursue this further because we've been doing this, very often, under the auspices of Brexit. When we do leave—and I think we will leave the European Union—the whole structure within the UK is going to change. We need that recognition that the discussions our Government will have with the Westminster Government are going to be crucial for the policies here in Wales. We have frameworks we know that will be in place in agriculture. There may well be other frameworks in place, and we want to have our say and our influence as an Assembly on what's being said in those discussions. So, I welcome very much, Llywydd, this agreement, and I hope that we will ensure that it actually works for us, and we press the UK Government to actually give us sufficient time to undertake our scrutiny.

The Minister to contribute to the debate—Eluned Morgan.

Thank you very much, Llywydd, and I'm pleased to confirm that the Welsh Government does support the motion and am pleased to report that we have worked very closely with the committee to develop this agreement before us. Now, before making any cormorants about the agreement itself, I want to set this in a broader context—the challenges that face us as a result of Brexit and to say, once again, what the Welsh Government’s position is in terms of the way in which the relationship between Governments should change. Now, in some months we will be celebrating the twentieth anniversary of the first Plenary meeting of the National Assembly. The Governments and the legislatures that are devolved are now a stable and permanent part of the constitution of the UK. But, the fact that the UK is leaving the European Union leads to totally new challenges for the relationship between the countries and to the constitutional arrangements of the UK. We have to remember and consider that the systems in place were already creaking long before the vote to leave the EU. There’s no way for them to sustain the additional pressure that the Brexit process has placed upon them.

So, the Welsh Government has been in the vanguard of the calls for reform, and our calls have been echoed by the committee reports, both here and in the UK Parliament.

Now, we set out our position on these matters in ‘Brexit and Devolution’, which we published in the summer of 2017. ‘Brexit and Devolution’ argued for standing inter-governmental machinery capable of negotiating and reaching binding decisions on matters of common UK-wide interest. We recommended the establishment of a UK council of Ministers, for independent arbitration to resolve disputes, and for all of this machinery to be supported by a new independent secretariat.

The existing Joint Ministerial Committee, in its various manifestations, is a consultative body that has no decision-making responsibilities. Its operations have been unduly subject to the control of the UK Government rather than based on parity of participation, which is the principle that we’ve been looking for.

Now, when we published ‘Brexit and Devolution’, we recognised that some of our proposals would be challenging, particularly for the UK Government, and we’ve never professed to have all the answers. We’ve been clear that all four of the administrations of the United Kingdom need to work together to develop consensus about how the relations between the Governments of the United Kingdom should be conducted in the future. So, we welcome the agreement at JMC plenary in March 2018 that the Governments should jointly conduct a review of inter-governmental relations.

Now, at the latest JMC meeting on 19 December, the First Minister emphasised to the Prime Minister that the Welsh Government had hoped for more progress on the review by now. That said, we do recognise that whilst this work is of critical importance, it’s also very difficult. We need to achieve a meaningful consensus for substantive change between all four nations of the UK. Now, each of those Governments has their own political perspectives and their own distinctive takes, both on how Governments should work together and on the wider constitutional status of the UK. And you’ll appreciate, of course, that Ministers and officials across all administrations need space for confidential discussions around the review. But we, as a Government, will ensure that the Assembly and its committees are kept up to date with the review as far as is possible, whilst respecting that need for confidentiality. It’s our intention to provide a more formal update to Members as soon as we’re able.

The original instruction from JMC plenary was for a report on progress to be made to a JMC meeting in March this year. Now, I’m sure you won’t be surprised to hear that no date has been fixed for such a meeting. But I would hope that we’ll be in a position to provide an update when that meeting takes place.

Now, whilst progress on the formal review has been slower than we'd have liked, there are encouraging developments more widely. We’re achieving incremental change in terms of the willingness of Whitehall departments to formally engage with the devolved administrations in a meaningful way where there are strong interdependencies between reserved and devolved competence—where there's a force of circumstance, really, as a by-product of Brexit. There's increasing recognition, for example, that where international negotiations are likely to lead to a change in policy in areas that are within devolved competence, then it's essential to engage fully and properly with the devolved institutions before, during and at the end of such negotiations to prevent subsequent constitutional conflict.     

I think we need to be realistic here. If we try to insist that we must have a veto over international agreements—something that is not the case even in fully federal systems such as Australia and Canada—we will simply fail to achieve any progress. Rather, as a Government, we'll continue to argue forcefully for a meaningful role in negotiations and for undertakings that the UK Government will not normally attempt directly, or indirectly, to implement changes to legislation within devolved competence that we do not agree with, and for mechanisms to ensure that where we do not agree, Parliament is invited to consider fully our objections before authorising such an action.

Of particular relevance to our discussion today is the agreement by the Department for International Trade to the establishment of a ministerial forum on trade, on which I represent the Welsh Government. You'll be aware that this was a matter that was discussed with the external affairs committee on Monday this week. But the focus of this debate is the agreement that has been tabled by the Constitutional and Legislative Affairs Committee, which will set out the information that the Welsh Government will make available to the Assembly about the conduct of its relations with the other nations of the United Kingdom.

In essence, the agreement consists of two main elements. Firstly, it sets out how we will keep the Assembly updated on formal intergovernmental activity as it happens, so to speak, meaning that we will provide the Assembly with information about the participation of Welsh Ministers in informal intergovernmental structures. This covers discussions and agreements of various formats of the Joint Ministerial Committee—for example its plenary, its heads of Government format, the JMC for EU negotiations, the JMC (Europe) and the ministerial forum on the future relationship between the UK and the EU—but it also covers the British-Irish Council, and it will cover other standing or ad hoc multilateral and bilateral inter-ministerial forums of similar standing that currently exist, or may be established in the future. That would encapsulate the formal ministerial quadrilaterals that exist for finance and for agriculture, as well as new forums that are emerging across a number of portfolio areas.

Now, for these forums, the agreement requires us to provide one month's advance written notice to CLAC and to relevant subjects, where that's possible. We'll certainly meet that requirement where we can, but as other Members have noted today, we as a Government don't often receive that much notice of an agreed date for such forums ourselves. So, following the meeting, we'll provide a written summary of the issues discussed at the meeting within two weeks of that meeting taking place.

The second element of the agreement is for the production of an annual report. This will summarise the key outputs from activity subject to the provisions of the agreement, and provide commentary on broader intergovernmental relations work that is being undertaken that year.

The Deputy Presiding Officer took the Chair.

The Welsh Government is committed to securing transparency in its relations with other Governments in the UK. We agree that providing the information noted in this agreement will assist the Assembly in its crucial role of scrutinising the work of Welsh Ministers with their counterparts across the UK. We welcome the fact that this agreement recognises and respects the need for confidential negotiations between Governments. We are committed to sharing as much information as is appropriate with the Assembly, but we must allow space for confidential and private discussion and negotiations, and I know that Members understand that. We believe that this agreement has succeeded in securing the right balance between the need for transparency, to assist the Assembly to carry out its scrutiny function, as well as Government responsibilities for its relations with other administrations within the UK, and we welcome the fact that we have recognised the practicalities that will lead to decisions on how and when we can share information. So, I'm pleased to say that the Government is supporting this motion today. Thank you. 

I call Mick Antoniw to reply to the debate.

Thank you, Dirprwy Lywydd. I'm very grateful for the detailed contributions that have been made by the members of the committee and by Dai Rees, the Chair of EAAL, and also for the very detailed response from the Government.

I don't delude myself, and I think none of us do, that these constitutional and structural arrangements arouse enormous interest, either in members of the public or, quite often sometimes, when I look around the Chamber, Members of the Chamber as well. So, I can tell you that the eight minutes and 30 seconds I've got left to close this debate—I will not use all of it. I'll not subject you to it. I don't think I've ever knocked a door where a member of the public has come to the door and said to me, 'Can you tell me what the latest situation is with the intergovernmental institutional arrangements and the joint ministerial council, please?' But the very nature of these things is that they are important because they create the framework in which the power that we exercise in this Chamber on behalf of the people of Wales is actually held to account—the way in which we in this Assembly hold Government to account in an environment where we have seen considerable transfers of powers.

These are the very same issues that have led to the very important development of interparliamentary arrangements, where we meet on a regular basis with our common committees on justice, constitutional affairs—with Westminster, the House of Lords and with Scotland. We face exactly the same issues because, as we know, there has been a considerable transfer of powers—Henry VIII powers—powers that were often being exercised with very limited scrutiny. And I think everyone would mutually agree that that is not a healthy situation in a democratic Parliament, in a democratic society, but it is a consequence of what is happening around Brexit, and these frameworks have been created to maximise the opportunity that elected Members have to hold the exercise of those powers to account. And what has been very important within this process—and I give credit to the Government on this—is that there is a mutual recognition that we are in an environment where there has to be accountability, there has to be transparency to the maximum extent, and that is what this agreement seeks to achieve.

There are undoubtedly many challenges along the way, and I do not underestimate the challenges that Government faces within that. Our job as a committee and our job as an Assembly is to hold Government to account—the way Government exercises its powers—and there are some very important reasons why that must take place. For example, in the area, now, of international treaties, which I know other parliamentary bodies are looking at, we had recently, of course, the Scottish judgement in the continuity legislation issue that went to the Supreme Court, where clearly it is recognised that international treaties are reserved to the UK Government, but the implementation of those treaties in devolved areas are matters for the devolved Governments and for the bodies elected to undertake that. So, where Government now has to engage with—and we see this consistently now in Bills that are coming forward as a result of Brexit—. So, where Governments are having to engage in discussions and consultations over those periods, which will lead to binding agreements, effectively binding legislation on this Assembly, the only opportunity we will actually have is through agreements like this that enable us to actually have access to see what is being proposed, what proposals are being developed, to enable us to actually scrutinise that, to make input, and to actually give voice to the people of Wales through this Assembly in those processes.

So, it is about the accountability of the exercise of power, and this agreement is before the Assembly today to ensure that it is on record, that it is formally recognised for what it is and that that is the framework within which Government and this Assembly will operate over the coming very difficult months and, undoubtedly, years. Thank you, Deputy Llywydd.

Thank you. The proposal is to note the committee's report. Does any Member object? Therefore, the motion is agreed in accordance with Standing Order 12.36.

Motion agreed in accordance with Standing Order 12.36.