Part of the debate – in the Senedd at 5:25 pm on 12 March 2019.
Thank you, Llywydd. We reported on the Welsh Government's legislative consent memorandum on the UK Government's Healthcare (International Arrangements) Bill in January 2019, making seven recommendations, and we are grateful to the Minister for his subsequent response to that report. And whilst we had no time to report on the supplementary memorandum, my remarks will reflect on its contents and the related correspondence from the Minister, including the Minister's letter that was received yesterday. But before I discuss the legislation itself, it is important to highlight our concerns that the Welsh Government was only made aware of the Bill just before its introduction to the UK Parliament. At a time of such constitutional upheaval, the need for Governments to work together in the spirit of trust and co-operation is, indeed, paramount.
The UK Government's initial approach on this Bill has not been as helpful as it could have been and reinforces the concerns that we raised in our 2018 report 'UK governance post-Brexit'. That being said, the letter from the Minister yesterday highlighted amendments tabled to the Bill by the UK Government, which sunset regulation-making powers in clause 2(1)(a) and 2(1)(b), and to remove the consequential Henry VIII power in clause 5(3). This is, indeed, a very positive development, and I welcome the proposed changes. And as the Minister has said, they do represent a very significant step forwards.
Turning now to our report on the LCM, our first recommendation sought a requirement on the face of the Bill for the Welsh Ministers' consent to be sought where UK Ministers exercise the functions of the Welsh Ministers in devolved areas. It's disappointing that the Welsh Government rejected our recommendation. It did so because it felt it would have greater influence over healthcare arrangements by being involved at an early stage of UK policy development. What the Bill will include is a duty to consult the Welsh Ministers, backed up by a memorandum of understanding. That memorandum of understanding provides that the UK Government will make every effort to proceed by consensus and with the devolved administrations, and that the UK Government will not normally make regulations without securing agreement from the devolved administrations. Ministerial letters should be exchanged where agreement cannot be reached and placed in both Houses of the UK Parliament, although it would appear not in the National Assembly.
We would therefore ask whether the Minister could confirm that the approach adopted could potentially allow the UK Ministers to act in devolved areas without agreement from the Welsh Government. If that is the case, and it were to happen, I would ask if the Minister could explain the implications for both policy and the Assembly's legislative competence in this area. It would also be helpful if the Minister could explain why it was not possible to secure an early engagement in the policy development and a statutory duty of consent. It would seem an appropriate safeguard to have both and be more in tune with the need for Governments to work together constructively as we leave the EU.
I also note there is no commitment, either in the memorandum of understanding or in the correspondence to us from the Minister, to provide the National Assembly with the exchange of correspondence, where agreement is not reached.
We also note that the Minister rejected the third recommendation in our report. It sought to ensure that the Welsh Ministers notify the National Assembly when they give consent to UK Ministers, exercising the functions of the Welsh Ministers in devolved areas. This is important to ensure that the National Assembly is in a position to undertake its scrutiny function, including the exercise of the relevant functions by UK Ministers in devolved areas. This recommendation was intended to reflect existing practice as regards consenting to regulations made under the European Union (Withdrawal) Act 2018. The recommendation was not dependent on that consent being a statutory obligation in the Act. It also applied where consent is provided through a non-statutory agreement. I'd ask the Minister, in his closing remarks, to confirm that it is the Welsh Government's intention to provide consent, in some form, to the UK Ministers acting in devolved areas and to commit to notifying the National Assembly when it provides that consent, as it currently does now under the 2018 Act; to commit to making available to the Assembly correspondence where agreement cannot be reached by the Welsh and UK Ministers; and to clarify over what time period he expects the arrangements to last. Our report also dealt with some important constitutional principles, namely the statutory instrument consent memorandum process. We also raised our concerns in our progress report on scrutinising Brexit regulations, and having received a response to that report yesterday, we will be considering this issue further over the coming weeks.