The next item, therefore, is the legislative consent motion on the Trade Bill. I call on the Minister for International Relations and the Welsh Language to move the motion—Eluned Morgan.

Motion NDM6986 Eluned Morgan

To propose that the National Assembly for Wales, in accordance with Standing Order 29.6 agrees that provisions in the Trade Bill, in so far as they fall within the legislative competence of the National Assembly for Wales, should be considered by the UK Parliament.

Motion moved.

Thank you very much. I move the motion. Thank you for the opportunity to explain further the background to this motion on legislative consent on the UK Trade Bill. The objective of the Trade Bill is to ensure that our trading relations can continue and that procurement markets remain available to us. It’s worth noting that the Bill will achieve four things. First, it will provide regulation-making powers to Ministers of the Crown and devolved authorities in order to put the World Trade Organization trade agreements in place. Secondly, the Bill will provide regulation-making powers to Ministers of the Crown as well as devolved authorities, and this will mean that international trade agreements with third countries that already have trade agreements with the European Union can continue. Thirdly, it will establish a trade remedy authority to provide a new trade remedy framework for the UK. And finally, it will be a gateway for data sharing between the HMRC and other private and public bodies.

I want to be clear from the outset that the main purpose of the Trade Bill is to ensure the continuity of trade and to safeguard the membership of the UK in the Government procurement agreement. It doesn’t relate to the process to agree trade deals in future. We have stated clearly to the UK Government that no process or lack of process that relates to trade continuity programmes will set a precedent for the role that we wish to play in negotiating new trade agreements. And it is worth highlighting that the relationship between Wales and the UK Government in terms of new trade deals isn’t included in the scope of this Bill, and we will deal with this separately.

Despite that, I welcome the amendments passed in the House of Lords, and these make it clear that when future trade agreements are discussed, there will be a role for the UK Parliament and for devolved authorities too, so that they too can participate in negotiations on trade agreements for the future.

We have explained clearly in our policy, our trade policy, what our requirements are in terms of participating in these negotiations. And I’m pleased to say that the discussions on the establishment of a ministerial forum on international trade and a concordat on the issue are progressing well. Of course, I will provide an update to the Assembly on these negotiations at an appropriate time.

Now, I have put in place two legislative consent memorandums for this Bill. The supplementary memorandum tabled last week notes the latest information on the matters that require consent.

I think it's fair to say that when this Trade Bill was first introduced, we had a significant number of concerns. Some were within the scope of our legislative consent, and some were not. And as a result, we made clear in our first LCM that we would not at that time recommend legislative consent. Now, these concerns were echoed by the External Affairs and Additional Legislation Committee and the Constitutional and Legislative Affairs Committee. Now, at the time, the Welsh Government was locked in a wider dispute with the UK Government about the European Union (Withdrawal) Bill and the potential threat it posed to the exercise of devolved competence. Now, the resolution of that dispute through the conclusion of the inter-governmental agreement, endorsed, it must be said, by a significant majority of this Assembly when it gave its legislative consent to that Bill, paved the way for progress on this Bill. 

Now, overall, we're pleased with the progress that has been made on the Bill because of the amendments, in addition to the non-legislative despatch box commitments that have been made since its introduction. In particular, and with our agreement, the UK Government tabled amendments to reflect the amendments made in the European Union (Withdrawal) Act 2018. Now, in respect of our other proposed amendments, we secured despatch-box commitments for—again, the exact same nature pertains to these as were made on the EU Withdrawal Bill.

Now, the UK Government have made a commitment that they will not normally use the powers in the Bill in areas of devolved competence without the consent of the devolved administrations. The UK Government has also committed to consulting with Welsh Ministers before extending the sunset clause.

Finally, although outside of our competence and, therefore, the scope of this consent memorandum, the UK Government has made a number of commitments on the new trade remedies authority. Whilst we fully accept that the TRA is an independent body, we believe there is a need to ensure that the Welsh Government has a clear means to engage with the TRA, and I'm pleased with the agreement that we've reached over the TRA, which goes beyond our initial ask of the UK Government.

Now, in relation to the non-legislative commitments, I would, of course, have preferred these to be on the face of the Bill. However, the approach we've taken mirrors the hard-fought agreement that we reached with the UK Government in respect of the European Union (Withdrawal) Act 2018. I have every expectation that the UK Government will deliver on its commitments.

I realise the Bill has been controversial as it's passed through Parliament, and that, with opposition amendments still being tabled, there's a possibility further changes could be made to the Bill. Should this be the case, I will, of course, make the Assembly aware. However, the Bill is now nearing its final stages in Parliament and I would urge Members to support this LCM.

Chair of the External Affairs and Additional Legislation Committee, David Rees.

Diolch, Llywydd. Can I thank the Minister for her contribution this afternoon, because it has clearly set out some of the points that are important? It is important to stress that this is not about future trade agreements—this is about the trade agreements that are currently in place between the EU and other nations and how they're transferred over to the UK.

The external affairs committee has been following the developments of the UK Government's policy for international trade, and we've taken steps as a committee to develop expertise and understanding of the possible implications for Wales of the UK's approach. We've also started work to scrutinise the implications for Wales arising from those international agreements that are being carried over, having considered around 20 in the past fortnight—and several of these will rely on the Trade Bill being approved.

As a committee, I will start by saying that we do recognise that the Trade Bill, or at least some other form of legislation along similar lines, is needed to ensure that we have a smooth transition from the trading relationships we currently have through our membership of the EU to any relationships we have when we leave the EU. Acknowledging this, we also have a range of outstanding concerns, however, regarding the drafting of the Bill insofar as it seeks to legislate over devolved areas.

A year ago, we published our first report on the Trade Bill, and we were in agreement with the Welsh Government not to approve consent on similar lines, but we actually had a few extra concerns to add. That was very much—I think we saw the Bill being written very much in the same vein as the EU withdrawal Bill at the time, and those changes that were in the EU withdrawal Bill hadn't been transferred to the Trade Bill at that point in time.

The amendments to the Bill addressed some of our concerns—not all. Concurrent powers is a clear one that we have concerns about, because we believe that, actually, the Bill has exacerbated the use of concurrent powers under the European Union (Withdrawal) Act 2018; I'll focus my contribution on that today.

Members will know that the external affairs committee, the Constitutional and Legislative Affairs Committee and the Llywydd have all expressed concerns over the Welsh Government's approach to legislating for Brexit, insofar as much as the primary and secondary legislation related to Brexit is being routed through the UK Parliament more than the Assembly, and that's mainly at the Welsh Government's request. Now, I understand that the Welsh Government often states that it's a capacity issue, but it is still a fact.

We have previously opposed the granting of concurrent powers in devolved areas in the European Union (Withdrawal) Act 2018, because we were concerned that it would diminish the role of this Assembly in the process of legislating for Brexit. We've taken the same position in relation to the Trade Bill, so we are consistent in our concerns. We took this position last year, we've had the opportunity to observe how the EU withdrawal Act powers have been used and we've seen significantly more of the correcting statutory instruments that engage the Assembly's competence being made in London rather than Cardiff. The CLA committee has reported that some of these instruments have made substantive policy changes and that they've not just been used to make technical changes.

Further, since the original LCM was laid, the new devolution settlement for Wales, set out in the Wales Act 2017, has also come into force. Under this settlement, the Assembly is restricted from removing or modifying UK ministerial powers in devolved policy areas where those powers are concurrent with the Welsh Ministers' powers, or where the Welsh Ministers need the consent of or to consult with UK Ministers before they can exercise those powers. Therefore, every time a new concurrent power is created, or a Welsh ministerial power is made subject to consent or consultation with UK Ministers, future Assembly legislative competence is restricted. 

Now, these three developments—the use of concurrent powers to limit the Assembly's role in legislating for Brexit, the use of concurrent powers to make substantive policy changes, in contradiction to the Welsh ministerial commitments and inter-governmental agreement, and the change to the devolution settlement, have led to a continuation of our concerns around the granting of concurrent powers in the Trade Bill. We concluded that our original concern about the provision of concurrent powers was well founded and still stands in relation to this Bill.

Now, we did read the legislative consent memorandum from the Minister and the amendments to that Bill, and we concluded that perhaps the Minister found herself in a similar place to us: observing relatively unsatisfactory progress against some of the demands for changes to the Bill, yet having to acknowledge the need for legislation if we are to exit smoothly from the EU—we acknowledge that.

I think it's important to highlight that where we have greater concerns is far more on the role of this institution as the Assembly, and ensuring the ability of this Assembly to scrutinise the processes and decisions being taken. We've continually reported against those concerns, and we will continue to do so if we see them. And our consideration of the Trade Bill illustrates the often unsatisfactory balancing act that is required when considering questions of legislative consent, because we can't actually change something; it's a simple binary decision on an LCM—we either approve it in its entirety or we reject it in its entirety. So, that is one of the concerns. That's nothing to do with this Bill, but it's still an issue we have. 

There has been progress made; we recognise that. Some of the amendments sought by the Welsh Government have been agreed by the UK Government—some of them based upon commitments rather than actual text at this point in time, because, as you said, they're despatch box commitments. But they're still not actually on the face of the Bill. So, we do have deep concerns. 

I hope, in closing, that the Welsh Government has heard our concerns about the use of concurrent powers and the gap in scrutiny that's being created as a consequence of that, and will ensure that we do a lot more scrutiny here rather than pass them on to Westminster.

Chair of the Constitutional and Legislative Affairs Committee, Mick Antoniw. 

Thank you, Llywydd. We reported on the Welsh Government’s first LCM in respect of the Trade Bill on 16 March 2018, and in October 2018 we also reported on the regulations to be made under the Bill. We considered the supplementary legislative consent motion at our meeting last week. We were, of course, not in a position to take evidence from the Minister due to the tight timescale for reporting. We laid our report on the supplementary legislative consent motion yesterday, and there are a number of points that I wish to highlight.

We have noted the comments of the Welsh Government regarding the exercise of concurrent powers in clauses 1 and 2 of the Bill, and the commitments it has obtained. These commitments do, as the Minister has commented, appear to mirror the principles set out in the inter-governmental agreement on the European Union (Withdrawal) Bill. We would welcome a commitment from the Minister to either publish a document setting out these commitments in full, or to secure an appropriate amendment to the existing inter-governmental agreement.     

We do, however, draw the Assembly’s attention to the concerns that we have expressed on the differences of interpretation between this committee and the Welsh Government about the inter-governmental agreement. In particular, our concerns centre on a difference of opinion with regard to what constitutes new policy and to potential unintended consequences arising for the legislative competence of the National Assembly, some of which have already been identified.  

There are also concerns about the application of the Sewel convention as it applies to the consent of devolved legislatures in respect of UK Government Bills. The status of Sewel and the reliance on it in legislation that intrudes on devolved areas of competence is a matter of concern to which the committee is paying increasing attention. The Sewel convention provides that the UK Government will not normally legislate in devolved areas. It is our view that there is a need to clarify what this means and the extent to which it can any longer be relied upon to protect devolved competences.

For that reason, we would welcome clarification from the Minister on whether there are any exceptions to the commitment that UK Government Ministers will not normally use the powers in devolved areas without the Welsh Ministers’ consent. We ask this because such an exception is highlighted in similar requirements set out in Part 5 of the devolution guidance note relating to parliamentary and Assembly primary legislation affecting Wales.  

Standing Order 30C sets out certain requirements in circumstances where the Welsh Ministers consent to UK Ministers acting in devolved areas under the European Union (Withdrawal) Act 2018. In line with the principles that have resulted in the adoption of new commitments relating to the Trade Bill, we believe that Standing Order 30C should be amended to apply to the Trade Bill once enacted. 

We raised concerns about the scope of the regulation-making powers in the Bill in our report on the Welsh Government's original LCM and in our report on the scrutiny of regulations made under the Bill. Our main concern was that the Bill allowed UK Ministers to make regulations that amend the Government of Wales Act 2006. Any such regulations that amend the 2006 Act could modify legislative competence of the National Assembly. Further, such regulations could only be made by UK Ministers and would be laid before the UK Parliament only. Whilst such regulations would now be subject to the affirmative procedure, we do repeat the constitutional principle that the legislative competence of the National Assembly should not be modified by regulations made by UK Ministers.

While there have been assurances that regulation-making powers will not be used to modify the legislative competence of the Assembly, those assurances are, of course, not legally binding. We also note the non-legislative commitments obtained in relation to the activities of the trade remedies authority. However, there is a lack of clarity about the role of this new body and what information the Welsh Government will make available to enable the Assembly to scrutinise the activities of that authority. 

We note that the Welsh Government has not yet tabled a written statement announcing full details of the commitments secured and providing information about the operation of the trade remedies authority, and we do believe it should do so as soon as possible. Thank you, Llywydd.  

Plaid Cymru will be voting against allowing legislative consent for the Trade Bill today. Before I outline our reasons for this decision, I'd like to say that members of the public listening to this debate might well be forgiven for thinking its subject matter is quite abstract. Talk of LCMs, Standing Orders and conventions may seem like they're not accessible, but these principles and conventions could have very real, concrete consequences for our democracy and the relationship between this legislature and Westminster, not just for this Assembly but for Assemblies in the future. So, we have to get it right.  

But, to return to the matter in hand, the first reason we will be voting against allowing legislative consent is that we—as others have already expressed—have grave concerns regarding the Bill's potential impact on the Sewel convention. As drafted, it allows UK Ministers to make regulations that amend the Government of Wales Act 2006. The UK Government has already demonstrated it is willing to ignore Sewel by forging ahead with the withdrawal Bill against the will of the Scottish Parliament. We are not satisfied with the vague, non-binding assurances that have been provided that UK Ministers will not seek to alter the legislative competence of the Senedd without consent—normally. Plaid Cymru cannot vote in favour of a course of action without legal guarantees that the UK Government will not legislate in devolved areas.

Moreover, and secondly, we have concerns too that the powers proposed for Welsh Ministers have been framed too widely, giving them the potential power to make regulations wherever they deem appropriate. The international relations Minister's justification in her letter to the Chair of the external affairs committee that these broader powers may be useful in the future does not assuage our concerns, as a decision on whether to exercise such powers should be taken following consideration by the Assembly, not individual Ministers. That, after all, is how this legislature is meant to operate.

Thirdly, we find it unacceptable that there exists a possibility that UK Ministers could extend the time limit by three years, using powers conferred within the Bill, in perpetuity. They could do this without the Assembly having a formal role in scrutinising the decision to extend their powers again. A non-legislative commitment has been given, but once again this does not provide sufficient protection and it remains unacceptable. 

Finally, there is a serious lack of clarity in relation to how the proposed new trade remedies authority would operate in Wales and its potential impact on devolved policy areas, a point that has not been addressed by the Minister. Again, commitments have been made but they're non-binding. We don't believe that commitments promising a consultative role are sufficient and feel there should clearly be Welsh and Scottish representation on the new UK trade remedies authority.

To conclude, Llywydd, Plaid Cymru cannot consent to an LCM that has the potential to constrain this Chamber's powers and deny our nation a voice, and we will be voting against. Diolch.

The Minister to reply to the debate—Eluned Morgan.

Diolch yn fawr. I'd like to thank you for the opportunity to discuss what is actually quite a complex Bill. It's quite difficult, I think—you're absolutely right—for the general public to be able to access this kind of debate. But you're absolutely right: these are important debates, and it is important that we get this right, because there are potential implications for us in the future.

I think, really, what we need to remember is that what we're talking about in this LCM is the trade continuity Bill. What we're talking about are agreements that have been made between the EU and other nations around the world. We want some of those to continue, and, if that's the case, what we need are technical changes. We need the UK Government to be able to transfer those over. They have promised us that they're not going to make any changes; it'll just be technical in nature. That's what we're asking, this is not about future trade agreements, and we've made it absolutely clear that that is a different conversation, that we are having that conversation—it's actually quite constructive, and they are agreeing to some very profound changes in terms of the way that we interact with them in future. So, I think we mustn't get the LCM mixed up with future trade agreements.

It's not perfect, because, actually, the constitution of the UK is not perfect. So, obviously, in particular at this time, we've got to be practical, I think, and understanding of the way things need to change. Of course I understand that the Assembly would want a role in scrutinising, and I think it's important that we look at ensuring that there's as much transparency as possible so that the Assembly can scrutinise what comes from the UK Government. The trade remedies authority is actually nothing to do with this LCM, but what's happened is that they've gone much, much further than they needed to. They've actually really interacted with us in an area that is not a devolved area of responsibility. But I would be more than happy to provide a written statement on where we've got on that.

On the sunset clause that was referred to, there's been an agreement—and, yes, it was a despatch box agreement, but I think we've got to understand that there is a precedent for despatch box agreements being things that you should be able to count on, and that was given in terms of any extension to the sunset period being extended. Now, if this doesn't pass, despite the fact that, actually, the UK Government has done everything that we ask them to, I think we have to think about what the consequences of that would be. We are less likely to be able to influence in future. And what we're talking about at the moment, when we are in this constitutional flux as a result of coming out of the European Union, is that, actually, we need to build some trust up between all the different parts of the United Kingdom. And we are starting to prepare for a post-Brexit world, and if we were to reject this, their having made all those concessions, I think it would potentially diminish our opportunity to influence on important matters like trade deals for the future.

The Sewel convention—we have to understand that, yes, of course, it is about 'not normally' legislating, but if this is going to work, and we understand the nature of the constitutional agreement on Sewel, then it's got to be one that is done on mutual respect, and it's got to be—an attempt for us to go against something where they've done everything we've asked them to do—. If we are to reject an LCM after they've done everything, then you've got to ask what does that relationship look like in future.

I don't think we need everything on the face of the Bill. I think it's absolutely right that what we've got to here is a compromise where the UK Government has gone a very, very long way in our direction, and I do hope that this Assembly will be accepting the LCM later today.

The proposal is to agree the motion. Does any Member object? [Objection.] Therefore, the motion is not agreed, and I will defer voting on this item until voting time.

Voting deferred until voting time.