The next item on our agenda is the legislative consent motion on the Direct Payments to Farmers (Legislative Continuity) Bill, and I call on the Minister for Environment, Energy and Rural Affairs to move the motion, Lesley Griffiths. 

Motion NDM7231 Lesley Griffiths

To propose that the National Assembly for Wales, in accordance with Standing Order 29.6 agrees that provisions in the Direct Payments to Farmers (Legislative Continuity) 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.

Diolch, Llywydd. I welcome the opportunity to explain the background to this LCM. The Direct Payments to Farmers (Legislative Continuity) Bill, the direct payments Bill, was introduced by the UK Government on 9 January 2020. This Bill provides the Governments of all four nations the legal basis to continue operating the direct payments scheme in 2020, giving our farmers much-needed stability in this period of uncertainty as the United Kingdom prepares to leave the European Union. 

The withdrawal agreement Bill, if passed by the UK Parliament, when read together with the withdrawal agreement, will disapply the direct payments regulation and other related EU legislation governing the 2020 scheme here in the UK. The direct payments Bill will incorporate EU legislation governing the direct payments scheme in 2020 into domestic law, and provide time-limited regulation-making powers to amend the incorporated legislation, ensuring it is operable once the UK has left the EU. Not only will this allow us to continue making payments to farmers in 2020, it will also allow us to continue to monitor, audit and enforce cross-compliance standards. 

To ensure the legal powers needed are in place by exit day, the UK Government has introduced the direct payments Bill through an expedited process, with Royal Assent expected to be given by 31 January. As a result of this compressed timescale of parliamentary passage, the LCM for this Bill has not been able to undergo committee scrutiny. However, in deciding whether to recommend legislative consent for this Bill, I've taken into consideration the comments raised by the Climate Change, Environment and Rural Affairs Committee and the Constitutional and Legislative Affairs Committee during their scrutiny of the UK agricultural Bill. 

The provisions in the direct payments Bill are limited to direct payments regulations applicable to the 2020 scheme year only, and are essential to the immediate continuity of direct payments support to the agricultural sector after Brexit. Given the time available, I believe the UK Bill is an appropriate vehicle to achieve this. As the purpose of the direct payments Bill relates to agriculture and the common agricultural policy, I'm of the view it makes provision regarding devolved matters. However, I am content these provisions should be made in the Bill for Wales, to ensure we have the necessary powers in time to continue supporting farmers through the direct payments scheme.

As we have made clear to the UK Government, our recommendation for the Senedd to withhold consent for the withdrawal agreement Bill was based on specific concerns with that particular Bill. This recommendation, or the Senedd's decision, does not affect wider inter-governmental relations. I would, therefore, ask Assembly Members to support this LCM for the direct payments Bill, and I move the motion.   

I call on the Chair of the Climate Change, Environment and Rural Affairs Committee, Mike Hedges. 

Diolch, Llywydd. I am pleased to be able to contribute to today's debate on behalf of the Climate Change, Environment and Rural Affairs Committee. Before turning to our views on the LCM, I'd like to point out that we had very little time to consider and report on it. Within the time available, it wasn't possible to consider the LCM or the Bill's provisions in any great detail. That said, what we do know is the Bill will enable the Welsh Government to continue to pay farmers in the form of direct payments in the immediate post-Brexit period.

Since the outcome of the European referendum, the committee has taken a keen interest in the future of agricultural support following Brexit. In our report on the previous UK agriculture Bill, we highlighted the unprecedented uncertainty facing Welsh farmers in the run-up to Brexit. We have been clear about the need to provide stability for farmers by ensuring the continuation of direct payments in the immediate post-Brexit period. We know that the Welsh Government plans to introduce a new system of financial support for farmers, and we look forward to scrutinising the Government's final proposals when they emerge.

But any new system is still some way off. Until then, farmers will need to rely on the system we will inherit from the European Union, of which direct payments is a very big part. The Bill will enable the Welsh Government to continue to provide direct payments to Welsh farmers as we leave the EU. With the Brexit deadline a matter of days away, to not legislate is not an option—including provisions in the Bill is pragmatic and necessary. The committee therefore finds no reason to object to the Assembly agreeing the legislative consent motion associated with the LCM, and I would hope that all Members would do so, because to not do so would be catastrophic for Welsh farmers.

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

Diolch, Llywydd. We considered the legislative consent memorandum for the Direct Payments to Farmers (Legislative Continuity) Bill at our meeting on Monday of this week, and we laid our report yesterday. Given the limited time available to us, it was not possible to look in detail at the LCM and the proposals in the Bill. However, we have made three conclusions. Before speaking about our first conclusion, I want to briefly note the regulation-making power in clause 3. Clause 3, which relates to the retention of EU legislation, has five regulation-making powers, all of which permit the modification of primary legislation and are, therefore, Henry VIII powers. We welcome the fact that clause 3 regulations will be subject to the made or draft affirmative procedure. 

The Deputy Presiding Officer (Ann Jones) took the Chair.

Our first conclusion relates to the regulation-making powers in clause 6(1), which can be exercised by Welsh and UK Ministers. It is a Henry VIII power, but the regulations will be made under the negative procedure. Our long-standing position is that regulations that permit the modification of primary legislation should be subject to the affirmative procedure. Our first conclusion reiterates this point.

The Henry VIII power in clause 6(1) is also relevant to our second conclusion, which relates to amending the Government of Wales Act 2006, an issue that was raised yesterday during the debate on the LCM for the EU withdrawal agreement Bill. We're concerned at the apparent lack of any limitation on the face of this Bill in terms of preventing the amendment of the 2006 Act. This is particularly important because the Henry VIII power in clause 6(1), a power that could be used to amend the 2006 Act, can be exercised by regulations subject to the negative procedure. Our second conclusion repeats our established view that any modification of Schedule 7A or 7B to the 2006 Act should be achieved via the process set out in section 109 of that Act.

Our third conclusion relates to the UK Ministers making regulations in devolved areas. At present, Standing Order 30C applies to UK Ministers making regulations in devolved areas under the European Union (Withdrawal) Act 2018. Our general view is that Standing Order 30C should be extended to apply to regulations made by UK Ministers in devolved areas with the consent of Welsh Ministers under any Brexit-related Act. Our third conclusion reflects this position.

Before closing, I would like to mention the sunset provision applicable to regulations made under section 3. We acknowledge that the regulation-making powers in clauses 3(1) and 3(3) to make provision appropriate to prevent or remedy any deficiency in retained EU law governing the CAP direct payments scheme will sunset on 31 December 2020. We noted that the Minister's called this an important safeguard. However, I would just draw attention to clause 6. The regulation-making powers in clause 6 are not subject to such a time limit. 

Thank you, Deputy Llywydd.

Thank you. Can I call on the Minister for Environment, Energy and Rural Affairs to reply?

Thank you, Deputy Presiding Officer, and I thank both Mike Hedges, as Chair of the Climate Change, Environment and Rural Affairs Committee, and also Mick Antoniw, as the Chair of the CLA committee, for their comments. I think Mike Hedges explained very succinctly why this LCM was required and I thank him for his support.

In relation to Mick Antoniw's comments, I have read your report that came from your meeting on Monday, and if I could just say, in relation to the Henry VIII powers, I do note that you prefer an affirmative procedure, but given the very narrow scope of the power and that any consequential provisions made are likely to concern highly technical issues, we do consider the negative resolution procedure is appropriate.

In relation to the sunset provision applicable to regulation-making powers, again, given the very limited scope of the power in clause 6(1), which is just really to address any consequential matters arising from the other provisions in this very narrow Bill, a time limit on the power is unwarranted in this instance.

Regarding your third conclusion about UK Ministers making regulations in devolved areas, I hope I explained in my opening remarks why we did this, but in relation to Standing Order 30C being extended, that would be a matter for the Business Committee, Deputy Presiding Officer, but it does remain the Welsh Government's intention to ensure the Senedd's attention is drawn to any regulations made by UK Ministers in devolved areas with the consent of Welsh Ministers. Diolch.

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.