And that brings us to our next item, which is the supplementary legislative consent memorandum on the Trade Bill, and I call on the Minister for International Relations and the Welsh Language to move the motion—Eluned Morgan.

Motion NDM7052 Eluned Morgan

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

Motion moved.

Thank you, Presiding Officer. I move the motion.

What we're discussing in this debate is a supplementary legislative consent memorandum on the Trade Bill, a Bill that will need to be in place to ensure that we can continue to trade with nations around the world following Brexit. The Bill, of course, is a UK Government Bill, but, as the UK Government is learning fast, when they negotiate trade deals in future—something that hasn't been done by the UK for almost 40 years—they'll be stepping on our toes and our powers here in the Welsh Assembly, so it makes sense for them to ask our permission when they intend to negotiate on matters that are the responsibility of the Welsh Assembly.

So, just over two months ago, the Assembly agreed that a legislative consent memorandum on the Trade Bill should be passed. Now, at the time, it appeared as if the Bill was coming to the end of that legislative journey, but since then, the Bill was amended in the House of Lords, and at least one of these amendments would have been of a nature to require us to put forward a supplementary legislative consent motion to the Senedd. But, as it appeared that the Bill might move to ping-pong, or the Commons consideration of Lords' amendment, it looked at one point like there wouldn't be enough time for further debate here in the Assembly. But, as we know, the Trade Bill has been stuck in the Lords now for a considerable amount of time and it's therefore afforded us the opportunity to consult the Assembly on the proposed amendments that are being suggested.

The story of this Bill demonstrates the point made by the First Minister about how inadequate the arrangements for dealing with legislative consent are in the process of passing Westminster legislation. In his speech of last September, the previous First Minister asked for the parliamentary process to be reformed in order to ensure a clear period during the final phases of any Westminster Bill that steps on the toes of devolved legislatures. And these decisions should be considered in detail by the UK Parliament, too.

Now, I've written to both the External Affairs and Additional Legislation Committee and Constitutional and Legislative Affairs Committee updating them on all the changes made to the Bill as it progressed. However, as the Bill has now been further delayed, presumably because of the Government's concern that it will not be able to persuade the Commons to overturn the amendment that would commit it to negotiating a permanent customs union, I'm pleased that the Assembly has been able to schedule this debate. Whilst I appreciate there's not been time for scrutiny of the Bill, I'm grateful to have an opportunity to explain more about the amendments that have been made since our last legislative consent debate.

So, since the introduction back in 2017, the Bill has undergone two rounds of scrutiny, and you, in this Chamber, have already had the opportunity to debate the provisions within the Bill that are within our competence. For this reason, I'm not here today to discuss the many provisions of the Bill that are within our competence, because those have already been consented to. The reason for the debate today and the reason that I laid a further supplementary legislative consent memorandum is that one of the proposed amendments to the Bill falls within this Assembly's competence.

Now, this amendment is not particularly substantial, nor do I expect it to be particularly contentious. However, it is within competence, and therefore this Assembly should consider it, and, I believe, grant its consent to it. One effect of the amendment in question is to disapply the previous requirement for Welsh Ministers to consult the UK Government before making regulations under the Trade Bill, if the same thing could be done by Welsh Ministers in regulations under an Assembly Act or a Measure without the need for consultation. This effectively widens devolved powers under the Bill, so, in principle, that means fewer fetters on devolved powers. This is the only House of Lords amendment that has been made in the Bill that is within the Assembly's competence. I believe it represents a sensible and appropriate change, which the Assembly should have no concerns about. Therefore, I am recommending that consent is granted to it.

More generally, while there is no guarantee that the more controversial amendment relating to a customs union will not be overturned by the Commons, and whilst this is not subject to the requirement for legislative consent, I would hope that Members would want to express its support for this goal, which is of course wholly in line with the consistent position on Brexit that the Assembly has taken. We expect the Bill to begin to ping-pong very shortly. My officials will continue to monitor any further changes made to the Bill, and I will, of course, keep you informed should further changes require this Assembly's consent.

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

Thank you, Llywydd. I report on behalf of the Constitutional and Legislative Affairs Committee, and, of course, I commend the Members of the Assembly who have waited here so patiently this afternoon for my report.

We reported on the Welsh Government’s first legislative consent memorandum in respect of the Trade Bill in March 2018. In October of that year, we reported on the regulations to be made under the Bill. We considered memorandum No. 2 in March of this year, and while we were not in a position to take evidence from the Minister, due to the tight timescales, we did produce a report and I spoke in the debate on that memorandum.

I would like to take this opportunity to thank the Minister for bringing forward this motion in relation to memorandum No. 3, following a letter from David Rees as Chair of the External Affairs and Additional Legislation Committee. We have not been in a position to take evidence from the Minister on memorandum No. 3, nor produce a report, again because of the timescales involved. I would, however, like to make a number of points, some of which were made in our report on memorandum No. 2 and which still remain relevant.

Firstly, I thank the Minister for her letter of 25 April, in which she responded to a number of recommendations made in our report on the second memorandum. While I welcome the information the Minister has provided regarding despatch box commitments that have been secured, I do again draw the Assembly’s attention to the concerns that the committee does have about the current and future application of the Sewel convention. We remain of the view that there is a need to clarify the extent to which the convention can be relied upon to protect devolved competences. In the circumstances, I would still 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.

In our report on memorandum No. 2, we recommended that Standing Order 30C should be amended to apply to the Trade Bill once enacted, and, in her letter to us, the Minister has told us that she believes that, instead, Standing Order 30C needs to be reviewed. I would be grateful if the Minister could provide some further clarity just on this point.

Throughout our scrutiny of the Trade Bill, we have raised concerns about the scope of the regulation-making powers in the Bill. Our main concern has been that the Bill allows UK Ministers to make regulations that amend the Government of Wales Act 2006. I take the opportunity to again reaffirm the constitutional principle that the legislative competence of the National Assembly should not be modified by regulations made by the UK Ministers, and whilst 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, which is obviously of concern.

On 30 April 2019, and in line with one of our recommendations, the Minister issued a written statement on the UK Trade Remedies Authority, and I note that the Minister has said that she has obtained a number of non-legislative commitments from the UK Government on how the Welsh Government will be able to interact with the authority. Furthermore, she has said that she is pleased with the progress that has been made and the commitments that the UK Government has provided. However, I would respectfully suggest that the process secured whereby the Secretary of State will consult with the Welsh Government on the Trade Remedies Authority’s recommendations at the same time as consulting UK Government departments does not respect the Welsh Government as the executive arm of a devolved nation.

Those are my comments. Thank you, Llywydd. 

Thank you very much, Llywydd. On these benches we are gravely concerned about the Trade Bill in general terms and about the broad and destructive possibilities of having new trade deals with nations such as the USA that could undermine our public services entirely, as well as the foods that we eat on a daily basis. Who knows what they will look like? We're also concerned about the loss of powers in areas that have been devolved to this place for 20 years. That is the concern about the future of the Sewel convention, as we have discussed in the Constitutional and Legislative Affairs Committee, and the Chair has just expressed those views again. We're also concerned that the UK Government is ignoring Wales and is ignoring the Welsh Government on a daily basis in the Brexit negotiations, and, in terms of scrutiny in this legislature, we are also concerned that powers are being taken from this Senedd more generally into the Welsh Government, as well as powers being taken from this place to the other end of the M4 in Westminster. We are losing powers on both sides—from the legislature itself to the Welsh Government, and from the Welsh Government to Westminster.

Now, Plaid Cymru voted against the original legislative consent motion for four specific reasons on that day, and not one of these has changed as a result of the amendments approved in the House of Lords. The amendment passed does scrap the need for Welsh Ministers to have the consent of UK Ministers before making regulations under the Trade Bill, but it doesn't deliver what Plaid Cymru has been calling for, namely to ensure a role for this Parliament in using such powers. Our concern about the impact on the Sewel convention remains, as does our concern about the possibility that the timeline for the implementation of these powers will be extended and our concern about the lack of detail as to how the UK trade remedies authority will operate. We are therefore not in a position to be able to approve this supplementary LCM today and we will be voting against the motion.

I start my contribution this afternoon by thanking the Minister for laying the second supplementary legislative consent memorandum and for tabling the motion we're debating today. As the Minister knows, and the Chair of the Constitutional and Legislative Affairs Committee has indicated, this actually comes from correspondence from the External Affairs and Additional Legislation Committee, and I'm glad we're able to debate and consider the question of consent for provisions that were inserted into the Trade Bill by an amendment at a late stage in the Westminster scrutiny process. I will try and avoid duplicating anything that my colleague the Chair of the Constitutional and Legislative Affairs Committee has said, because we have very similar views in our committee to his committee. But I want to remind Members that this is the second time during the Brexit process where we've had new provisions inserted into a Westminster Bill at the eleventh hour that require the consent of this Assembly. We regret that we were unable to consider our consent in relation to the first such instance, which was during the end of the European Union (Withdrawal) Bill's passage through Parliament, but I'm pleased we're able to do so today and that we have an opportunity to actually debate the Trade Bill amendments. I do accept the Minister's position where we have given consent to the previous aspects and we should therefore technically be looking at the amendments inserted by the Lords in that Bill.

But the practicalities of considering issues of legislative consent that arise at the end of a Westminster Bill scrutiny process does require further consideration. It strikes me that this is a weakness in the current arrangements, particularly, as the Minister has inferred, when we're in a situation of ping-pong, where it's going back and fore like a yo-yo. We don't know where we will end up, but we do need to look at where is the process of scrutiny for this Assembly if additional amendments are made and approved after we have given consent to an LCM. The whole process of Brexit has actually shown us the weaknesses in the current scrutiny process.

Now, the External Affairs and Additional Legislation Committee considered the second supplementary legislative consent memorandum yesterday, and whilst this afternoon we've heard from the Minister the details of that amendment made in the Lords, with the timescales allowed to us, clearly we have not been able to provide a report on our consideration, but we are content to say that no further substantive points of scrutiny have arisen for us based upon the amendment we considered.

I'd like to close by thanking the Minister again for laying the memorandum. It is important that this institution does have an opportunity to debate supplementary amendments to LCMs that we have already given consent to. Because otherwise, we are not having an opportunity to comment upon something that will impact upon devolved competencies. The action is as important in terms of the principle of upholding that consent convention as it is in terms of the details of the amendments that gave rise to this debate. So, please, whenever we can, continue laying supplementary LCMs, but perhaps, as an Assembly, we also need to make representations to Westminster to look at the process, so that we have that opportunity even more.

The Minister to reply to the debate.

Diolch yn fawr. I'd love to reopen the debate and discuss the Sewel convention and the interactions with the UK Government and the trade remedies and why we should support a customs union. That's not really what we're here to debate today. We've already passed the LCM motion on the Trade Bill that referred to aspects that were devolved to Wales. I am absolutely at a loss at to why Plaid Cymru would not support this amendment. This expands the powers of the Assembly. Be that as it may, I find that very, very odd, and it's clear that—  

Well, let me help you out, Minister. Thank you for taking the intervention. [Laughter.]

It's a pleasure.

Can you confirm, then, that there is no loss of powers from this Assembly in terms of our scrutinising ability if we pass this LCM? Because I think there is. That's why we're against it.

No, there's absolutely no loss. In fact, we have more powers as a result of this amendment. And so, that's why—

Government powers, not Assembly powers.

No, no—I think, if you look at it as an Assembly, you will see that there are more powers as a result of this amendment. So, I think there is an inconsistency in terms of Plaid Cymru's approach.

I agree with the Chair of the external affairs committee that the process is absolutely not acceptable. If we have a process where new amendments come in, there are no opportunities for us to revisit it. There happens to be in this case. Because there's been a really prolonged pause on this, we've been able to come back. That will not usually be the situation. So, we do need to have a better system of being able to monitor, to assess, and for you as an Assembly to be able to hold us as a Government accountable as well for any changes that we would agree to. So, I hope Members will agree to this amendment, because I think it expands the powers of the Assembly.

The proposal is to agree the motion. Does any Member object? [Objection.] I will defer voting until voting time.

Voting deferred until voting time.

Unless three Members wish for the bell to be rung, I will proceed directly to the vote.