8. Statement by the Counsel General and Brexit Minister: Legislation related to leaving the EU

– in the Senedd at 5:47 pm on 25 February 2020.

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Photo of Elin Jones Elin Jones Plaid Cymru 5:47, 25 February 2020

(Translated)

And therefore item 8 is the next item for discussion, and that's a statement by the Counsel General and Brexit Minister on legislation related to leaving the EU. I call on the Minister to make his statement—Jeremy Miles.

Photo of Jeremy Miles Jeremy Miles Labour

Diolch, Llywydd. I thought it would be helpful to update Members on both recent developments and prospects in relation to legislation arising from our exit from the European Union. 

I'll firstly consider the matter of the European Union (Withdrawal Agreement) Act 2020 and the implications for the Sewel convention. Members will recall that, on the twenty-first of last month, the Senedd followed the Welsh Government’s recommendation in refusing consent for that legislation. As has been rehearsed already in the Senedd, the reasons for this were principally constitutional—the threat that this legislation poses to the Senedd’s competence and the Welsh Government’s capacity to influence the forthcoming negotiations that will have serious consequences for devolved policy areas.

We did all we could to improve the Bill, both before its introduction and then working closely with Members of the House of Lords to put forward amendments that would have made it acceptable from a devolution perspective, but, ultimately, we could not persuade the UK Government.

Our decision here in the Senedd mirrored similar votes in the Northern Ireland Assembly and in the Scottish Parliament—the first time that all three legislatures had refused consent for a single piece of UK parliamentary legislation. Notwithstanding this, the UK Government pushed the Bill to Royal Assent with Parliament overriding the views of the three legislatures. This could have developed into a major constitutional crisis, threatening the foundations of devolution. However, in correspondence, the Secretary of State for the Department for Exiting the European Union described the circumstances as 'singular, specific and exceptional', and the Chancellor of the Duchy of Lancaster described them as 'unique'. There were similar comments by Lord Callanan, Minister of State at DExEU, in the Third Reading in the House of Lords and in a written statement issued by the Chancellor of the Duchy of Lancaster.

I subsequently wrote to both Stephen Barclay and Michael Gove, recognising these encouraging signs that the UK Government recognised the graveness of this step and was interpreting the Sewel 'not normally' as 'only in the most exceptional circumstances'. On this basis, I reminded them that we had called, in 'Reforming our Union', for codification of the convention by setting out the circumstances and criteria under which the UK Government might, in extremis, proceed with its legislation, notwithstanding a lack of devolved legislative consent, and called for the UK Government to engage in a further discussion of this. So, while the UK Government’s decision to proceed with the withdrawal agreement Bill without the consent of the devolved legislatures is of significant concern, it would appear that the UK Government and ourselves believe it should be ring-fenced as a special case, and we now need to build on that.

Moving on, Members will be aware that almost all EU law continues to apply in the UK during the transition period, but the Welsh Government has been considering whether powers to keep pace with EU legislation beyond the transition period are practical and necessary. We do not at this point see an urgent need to bring forward a Senedd Bill containing powers to keep pace with EU legislation at this stage. There are a number of reasons for this. 

Photo of Jeremy Miles Jeremy Miles Labour 5:51, 25 February 2020

(Translated)

Perhaps the principal one is that we have concerns as to whether providing Welsh Ministers with wide powers to keep pace with all EU legislation within devolved competence through a portmanteau Bill would be acceptable to this Senedd. It would not be consistent with the views expressed by Members in the past therefore the bar for proposing such an approach would be set high.

There are also other available means of enabling Wales to keep pace where we consider it necessary. First, Welsh Ministers already have powers to keep pace with technical modifications to EU tertiary legislation either through functions created in the EU exit SIs as part of the corrections programme or through existing domestic powers. Analysis of the availability of existing powers will need to be undertaken in response to specific EU legislative proposals as they are being developed.

For more significant EU legislation, the legislative process in the EU would provide more than enough time to enable a Bill to be introduced and passed by the Senedd if that was considered necessary.

The context for this analysis is important. The Welsh Government remains committed to the common frameworks process, which we believe should both allow and manage policy divergence between the UK and the devolved Governments, or indeed between each of the devolved Governments. We intend to follow the common frameworks process through to its end before concluding where we might need and be able to follow developments in future EU legislation. Nevertheless, I want to assure Members that we will keep the position under review.

Finally, Members should be aware that a significant body of secondary legislation will be required during this year, although we cannot quantify it in advance of knowing how the negotiations with the EU, and indeed with other third countries, will proceed. In any event, there will be demands from the usual work to implement EU law that comes into force this year; the further correcting SIs that are needed to ensure that retained EU law works in the context of the end of the transition period; and secondary legislation needed to implement the new regimes being established by UK Bills and the withdrawal agreement Act itself.

Work is already well underway to determine the amount of legislation that will be necessary to the extent that we can determine at this point in time, and I will, of course, keep Members updated.

Photo of Darren Millar Darren Millar Conservative 5:54, 25 February 2020

Can I thank the Minister for the advance copy of the statement that he shared with me this afternoon? I'm very grateful for the statement. I think it does present a very different sort of language and tone than some of the statements we've had in the past in this Chamber regarding arrangements post Brexit, and I very much welcome it. I think that it's very clear that you've considered the future legislative arrangements that might arise in some detail and you're clearly cracking on with any work that may be required as we go forward. 

I note that you have decided not to proceed with a portmanteau Bill at present, and I think that that is very wise. I don't think that there's a great deal of appetite for that sort of approach in this Chamber, and I think you recognise that, too, in your statement, which I very much welcome. It doesn't mean, of course, that we would want to accept all of the legislative changes that may happen in this period between now and 31 December. Now, I recognise the fact, for example, that there will be some pieces of legislation that will go through the European Parliament but may not actually have an impact until beyond 31 December, for example. I wonder how you're differentiating between the legislative changes that you may need to keep pace with because they will be implemented during the transition period, versus those that you may not need necessarily to implement because they will be beyond that 31 December timetable. 

As you've quite rightly said, there are already significant powers at the disposal of Welsh Ministers to be able to implement and make some technical changes to arrangements through tertiary legislation and, indeed, there will be some secondary legislation powers as well that you may be able to use in order to modify the existing regulations that apply here in Wales. I think it would be useful, perhaps, if there could be some sort of bringing together of those powers into a single document that we can be able to determine where those powers might lie in terms of the levers that you can pull without having to resort to primary legislation in order to make some changes. So perhaps there's some compendium of information that the Welsh Government might usefully be able to bring to the Chamber in order to assist the National Assembly as well, I think, in terms of the scrutiny function that we have as Assembly Members. 

I'm very pleased that you recognise the importance of common frameworks across the United Kingdom and that you're seeking to work constructively with the UK Government in order to achieve those. I recognise that, sometimes, there will be healthy debate about how those common frameworks and arrangements might work and that we clearly do need to pin down the systems that will govern those arrangements in the future in order to ensure that the voice of devolved legislatures and the voice of devolved Governments can be strongly influential and appropriately influential in the way that those frameworks are developed. Clearly, you've made a number of statements in the past about how the union should operate, going forward, and I recognise that there need to be changes, too. I think I've put on record in the past my recognition that a future arrangement should be a federal arrangement, and I'm more than happy to have a dialogue with people in any political party in this Chamber in order to try to seek those sorts of arrangements, going forward. But I do think that we need to have some clarity, really, on those powers that you already have, so if you could bring that to us, that would be very helpful indeed. 

Perhaps you can also tell us what discussions you've been having with the UK Government to date on those common frameworks. I know that there'll be future discussions taking place, too, but perhaps you can just bring us up to speed in terms of the work that might be going on between your officials and UK Government officials in that respect. 

Another concern that I have is about the capacity of Welsh Government, given the significant legislative demands that are already upon this Parliament between now and the next elections to the Welsh Parliament in May next year. What is the capacity of the Welsh Government to be able to bring further significant pieces of legislation forward that might be required, if there are significant pieces of work that might need to be done?

Photo of Jeremy Miles Jeremy Miles Labour 5:59, 25 February 2020

I thank Darren Millar for his questions and for the constructive way in which he has put them. I think in relation both to secondary legislation and the discussion around common frameworks—both of which he touched on, obviously, in his question—those have been, probably of all the areas of engagement, the ones where relationships have been most productive, and we have always sought as a Government to point to those as examples of how when all the Governments in the UK engage together constructively, as we have always sought to do on these benches, then steps forward can be taken. He will know from our previous exchanges that we have not always persuaded the UK Government of that approach, which is a matter of regret.

Nevertheless, on the question of a compendium of powers, I think the availability of the powers that need to be deployed to deal with individual aspects of keeping pace, if I can just put it in that way, will of course depend on the nature of the legislation that is brought forward. Some of those powers we already have through a combination of the European withdrawal Act and the EU withdrawal agreement Act. Some of them we have under the already existing devolution settlement, and then there'll be set of future analyses required as and when legislation comes through to ascertain whether the capacity to keep pace with those fall within the powers that we already have, perhaps through the devolution settlement. Exactly what they are at this point we can't assess, because those decisions are to be taken in the future.

There's a category of secondary legislation that will stem from Bills being passed by the UK Parliament in the context of leaving the European Union. Again, some of those we can identify at this point, but many of them we can't. So, as we stand here today, I'm sadly not in a position to say to you that we understand the full extent of that, because the decisions that govern that analysis haven't yet been made. We would like to be in a position of much greater certainty, but that, obviously, is outside our control. 

You asked specifically about the question of common frameworks. It is still our objective to get to a position by the end of this year where we've made significant progress in relation to those. There is a monthly, I believe, formal programme board between officials that keeps that under review. We are very clear that we want to be in a position, as soon as we can reach agreement, to put those into a position where they can be scrutinised by stakeholders and by legislatures across the UK, and we continue to press for progress in relation to that. 

In relation to primary legislation, as we stand here today, we don't foresee specific items coming forward but, again, that depends on what is a sadly very fluid and very changing set of circumstances that, for reasons that we don't need to rehearse here again today, are certainly beyond our control as a Government. I think we would all regret the fact that there remains a significant degree of uncertainty in that landscape.

Photo of David Lloyd David Lloyd Plaid Cymru 6:03, 25 February 2020

(Translated)

May I thank the Counsel General and Brexit Minister for his statement on legislation related to leaving the EU? May I thank him specifically for his detailed analysis of the complex and difficult legislative position that we find ourselves in in exiting the European Union? Now, you mentioned common frameworks, and common frameworks, as you've mentioned on a number of occasions in this Chamber, do mean shared governance, and, of course, require respect between different Governments. It shouldn't be a matter of the Westminster Parliament deciding and every other Parliament on these isles following slavishly in their wake, although, having said that, the outlook isn't particularly promising, as you've set out in this statement of the recent history.

This Parliament refused to give its legislative consent to the EU withdrawal agreement Act, just as did the Scottish Parliament and Northern Ireland, but yet the Westminster Parliament proceeded with the withdrawal Act, entirely ignoring all other Parliaments on these isles. Now, that doesn't sound like shared governance to me, and it doesn't sound like the views of other Parliaments on these isles are being respected either, but I do see from your statement that you have already moved on.

You have agreed with members of the Westminster Government that that was an exceptional or a unique position in terms of ignoring the views of the devolved Parliaments. But on what basis have you come to that position? Why would we believe that this couldn't happen again in future, or in all future occasions where we see powers being lost or powers being threatened, or that we will be ignored again, as you have admitted you have been ignored over the past three years, at some point in the future when we again complain, that the definition of a singular, specific and exceptional case will not be used again? What assurance can we have that this will not happen time and time again and every time that this Parliament is ignored that it will be a singular, specific, exceptional case? What assurance have you received on that point?

Now, of course, there's a great deal of legislation that will need to be passed, as you've mentioned, much of it in devolved areas, such as fisheries, agriculture, environment—all devolved to this place for 20 years. So, what influence do you have, or will you have, on the legislative process from this point onwards in these devolved fields? In leaving the European Union, we don't want to lose any powers that we have traditionally held in this Chamber and have done so over 20 years. Yes, of course, originally under the auspices of the European Union, and now under the auspices of the UK, but we don't want to see any powers lost from this place in those areas that have been devolved for 20 years.

And, finally, you also discuss secondary legislation that emerges from these processes, and you've already said that it's difficult to predict exactly how much of that will be required, but how can you ensure that there is improved scrutiny from this Senedd in terms of your work within Government as secondary legislation is passed—statutory instrument consent motions and so on and so forth? Because we've had some difficulty as a legislature in scrutinising what is happening with a broad range of SICMs and so on. So, will the system still be reliant on ordinary backbench Members in this place to push for debates on SICMs, on these secondary legislative consent motions, or will the Welsh Government be more willing and more proactive from here on in than they have been to date in facilitating debates on issues of secondary legislation without using that age-old excuse that time is short or that the burden of work is too great? Thank you very much.

Photo of Jeremy Miles Jeremy Miles Labour 6:08, 25 February 2020

(Translated)

Thank you to Dai Lloyd for those questions. While I agree with him that we need to show respect to the devolved Governments, and that respect needs to be shown by the UK Government, we as a Government have always taken every opportunity to make the case for Wales—to stand up for Wales's interest—and to be, to the best of our abilities, constructive in our approach. And that's what our approach will be in the future, and we expect the UK Government to respond in kind.

He mentioned the question of the Sewel convention—namely, what certainty we have that this a unique situation. Well, the first thing I would say is that I hope that he would agree with me that this is, indeed, a unique situation. I know that he's read the document, 'Reforming our Union', which describes in detail the steps that we believe need to be taken to reform the convention and the settlement. We don't believe that the current situation is adequate; we feel that it needs to be reformed. We've explained that we need to codify and describe in detail how discretion can be used to move ahead without the consent of the devolved Governments. We've also spoken about the need for the UK Government to consider that in taking that step. So, we are far from being in a situation of believing that the current situation is ideal, but, having said that, it’s also certainly important to underline the fact that the circumstances have been unique circumstances.

He also mentioned expanding our powers and ensuring that the devolved settlement continues to be respected. Well, that's exactly what we succeeded in doing as a Government through the inter-governmental agreement at the time of the EU withdrawal Bill. Following that agreement, we ensured that the powers that are wielded by the Welsh Government and this Senedd are expanded, and that’s an example of what can happen when we, as a Government, put forward proposals and make our case on the basis of evidence and so on.

Finally, he asked about scrutiny of the Government’s work. There’s been constant discussion with committees about how best to do that. And from the very beginning the Government ensured that we complied with the measures agreed in terms of scrutiny, namely written statements explaining the steps that we have taken and also this question of SICMs. Of course, it's open to any Member to raise a question with regard to a SICM on the floor of the Senedd, and that’s happened successfully when Suzy Davies brought that same issue before us. So, it’s a matter for any Member, as it should be, to do that. I'm sure from discussions that I've had with the committees that Members are content that they have the capacity and the information and the access to appropriate documents to be able to do that, and we saw that succeeding in the example that I mentioned just now.

Photo of Mark Reckless Mark Reckless Conservative 6:12, 25 February 2020

May I thank the Minister for his statement? When I saw the title 'legislation related to leaving the EU', I had assumed it would focus on the flow of statutory instruments and the approach we were taking to those, so I particularly thank him for the last two paragraphs that do address that issue. And if I may take into account the tone we had from Darren Millar in his response—I recall a number of similar contributions in the past with a very different tone.

But in light of that, can I reference what the Minister says about the Sewel convention? He says this could have developed into a major constitutional crisis threatening the foundations of devolution, and then references a number of things that the UK Government has done or implied that lead to this not being that. But there's another side to that, and I think that reflects the position of Welsh Government who are looking to reduce the temperature on this and find common ground with UK Government and interpret what they're doing in such a way as to minimise the extent to which they see that as a breach, and I think that is a sensible and an appropriate way of moving forward and putting this behind them.

I do however think that the precedent of that breach of Sewel is still there, and the Minister references three or four documents or speeches from UK Government that means that precedent counts for less in his mind than might otherwise be the case. May I raise one on the other side, and that relates to the comments the Minister makes about our decision here in the Senedd mirroring similar votes in the Northern Ireland and Scottish Parliaments, and the reference to UK Government overriding the views of the three legislatures? Of course, the two other legislatures were expressing the views and representing their electorates who had voted remain. Here, the people of Wales voted to leave, yet, again, with this legislative consent motion, we saw actions that were at least open to the interpretation of being of a piece with three and a half years of seeking to use such powers as we have to impede Brexit.

And the Minister refers to Welsh Government's capacity to influence the forthcoming negotiations. Isn't the key thing that reduces that capacity the fact that Welsh Government, along with Plaid Cymru, adopted a Brexit-in-name-only policy, and then when ultimately Theresa May offered them basically that, and including a customs union—and the Minister said he was happy with the withdrawal agreement and perhaps just a few points about the political declaration—when it came to the crunch, Welsh Government changed its mind, and supported what Welsh Labour and UK Labour did in not standing by that BRINO policy—with the honourable exception, perhaps, of Stephen Kinnock and one or two others—but instead saying, 'Well, we did say that before, but we're not going to stick to that, and we would prefer to have a second referendum and gamble on blocking Brexit altogether, notwithstanding that we said we would respect the referendum before'? Is that not why you do not have the purchase you would wish as UK Government leads these trade negotiations with a majority of 80?

Finally, may I speak about what the Minister says about keeping pace with EU legislation? He seems to talk as if there is the prospect of dynamic alignment with EU standards and regulations through a trade treaty. May I reinforce with him, or at least emphasise the stated position of UK Government, that there will be no such dynamic alignment. We trust they will keep to their promises. If they do, surely there will be no requirement for us to be keeping pace with EU legislation in this way, and if, as he says, there are other available means of enabling Wales to keep pace when we consider it necessary, doesn't that imply that in many areas we will be diverging from UK legislation applicable in England, in a way that will make business in Wales more difficult and less attractive?

Photo of Jeremy Miles Jeremy Miles Labour 6:16, 25 February 2020

I think I heard two questions in that contribution. One relates to the actions of this Senedd in relation to voting to withhold consent for the withdrawal agreement Bill. I'll just take the opportunity once again to say, since we seem to be going over some pretty old territory at this point, that the reason this Assembly withheld its consent was because the provisions in the Bill, which the Government recommended to the Assembly, were threatening the position of this institution as part of the devolution settlement. It was not a question of not reflecting the will of the people of Wales. The people of Wales have voted on two occasions for this institution to have certain powers, and that legislation did not respect those, which is why the Senedd withheld its consent.

On the question of dynamic alignment, it's a matter of regret to us as a Government that the UK Government has not decided to seek dynamic alignment, but we have been very clear that we do not wish to see a devolution of standards in relation to the social and environmental and labour standards that we have regarded as an asset here in Wales, and so the very purpose of looking to keep pace with regulation into the future is just to continue to be able to express our values here in Wales in defence of those rights and standards into the future. We would like to be in a position where the UK Government—as all Governments in the UK—feels that the best deal for the UK is in ensuring that those standards are maintained into the future. That's certainly the best deal for businesses across the UK and workers across the UK, and those of us who've enjoyed those standards as part of our daily life, but the UK Government is not persuaded of that, and I think that's a matter of regret.

Photo of David Rees David Rees Labour 6:18, 25 February 2020

Can I thank the Minister for his statement this afternoon? And I welcome what he has said. It is clearly important that we now address some of the issues of legislation on Brexit, because people still think Brexit is done, but we all know Brexit is not done. There are many things ahead of us, and we face some challenging times.

You indicated in your statement the question as to Sewel and the fact that the three legislatures said 'no' to the Bill, and I'll highlight my position: I voted against the Bill because it actually was a poor Bill. It didn't give what it should have given: the rights of committees in this institution to scrutinise the actions of the Government in these future EU-UK relationship negotiations. I felt that was something that should have been there, and it was taken out by the UK Government, and therefore I felt the Bill, actually, was not appropriate for this institution.

But you also highlighted that you actually sent a response to both the Secretary of State for DExEU—who is no longer the Secretary of State for DExEU, because that's gone—but also the Chancellor of the Duchy of Lancaster, so Stephen Barclay and Michael Gove. Have you had a response from either of those two to your letter? Because you indicated that you recognised it was, as they said, unique, specific, special. Have they agreed with you that it was unique, specific and special, and therefore would not be repeated again? So, it would be nice to know if you've had a response. 

You talk about common frameworks. Are you analysing current EU directives and legislation, which may now impact upon those frameworks? And, therefore, when you have the negotiations, you're going to make sure that the common frameworks are able to reflect everything properly, particularly in the sense of the inter-governmental review we're still awaiting; we don't know what that means, or what impact that will have on the common frameworks. Also, in response to the External Affairs and Additional Legislation Committee's report on common frameworks, you indicated that you would not be in a position to discuss policy issues, because there were still discussions ongoing, and you were awaiting, perhaps—30 March was one of the dates given. Where are we in relation to that, and can we expect a response by 30 March, or are we delayed a little bit further down the line, because, as you highlighted, we are approaching 31 December the more we go on, and on 31 December, this current UK Government has said, the transition ends with or without a deal? And that's a deep concern. You might have been preparing for a 'no deal' scenario prior. You may still need to prepare for a 'no deal' scenario on 31 December as well.

What discussions have you had with the European Parliament on EU legislation that actually will come before it, because you've mentioned in your statement that you expect the legislation process in the European Parliament to be long? I would assume, therefore, they know what's coming in the next 12 months. So, have you had discussions with the European Parliament to say what's going to come before them in the next 12 months? Are there things we should be aware of, and which we may wish to take consideration of in this Chamber, because it is important that we reflect upon that?

And why not bring forward legislation that will require future Welsh Governments to actually bring before the Assembly, or the Senedd, as it will be then, the reasoning as to why they may not want to bring forward any EU legislation in Wales? Because you say where there will be or will not be, but when will we know about it? When will you tell us, as Members of the Senedd, and actually say, 'Well, we don't think this EU legislation is appropriate for Wales'? And will you put that in place to ensure that future Governments will also do the same, so that no-one can basically ignore what's going on in Europe and leave us without an opportunity to discuss it and reflect upon whether it is appropriate for Wales or not?

In relation to the SIs, how many do we still have to go? It's difficult for you—[Inaudible.] It would be nice to know how many we've still got to go because, as has been pointed out by Darren Millar, we have quite a full programme of legislation coming up between now and the end of this Assembly. So, how many are left to go, and how many do you anticipate as a consequence of the transition period, because it is likely that we may have a thin agreement, which is not the full agreement the UK expects? We now know the EU's negotiating position; they've confirmed that today, and they've confirmed the strengthening of their position in relation to a level playing field. So, we also know the UK position is about to be confirmed on Thursday. So, it is important we understand what SIs will be in place, what SIs may be in place as a consequence of a thin agreement, what SIs may be needed as a consequence of no agreement, and therefore that we know the type of timescales we put in this institution. 

We do need to know about the 'no deal' scenario because I'm still fearful that it's a possibility, and what the World Trade Organization regards on that—. And, yesterday, the committee heard evidence that that could be catastrophic for us if we get to that stage. And a thin deal won't be great for us, but we need to be ready and prepared for these. The immigration Bill, or the immigration points system has just been announced. We'll have the Agriculture Bill going through; fisheries is coming through. We know fisheries is going to be a big issue in this negotiation—the French have already made that quite clear. So, where are we getting ready in our legislation process, between now and the end of this Assembly, to ensure that Wales is ready to face the next type of relationship that the UK has with the EU?

Photo of Jeremy Miles Jeremy Miles Labour 6:23, 25 February 2020

I thank David Rees for that range of important questions. On the exchange of correspondence with the UK Government, in their letters to me, they have referred to the circumstances as being unique, exceptional. So, that's language that has come from correspondence that they have sent to us, and I am sure he would join me in hoping that those circumstances are indeed unique, as they are described.

I can assure him that, in the context of the legislation being contemplated during the transition period, we are absolutely keeping abreast of the developments there. The point I was making about future developments related to longer term legislation, so that, as the processes of the European Parliament proceed, that will provide sufficient time for us to be able to identify if there are any future gaps in the powers that we would need to be able to reflect those laws in Welsh law and to take steps in the Senedd to legislate in accordance with those requirements. So, that's a slightly longer time frame.

He raised the question around the common frameworks, and absolutely it is our plan to respond to the committee within the time frame that we've set out to the committee, which is the end of March. As I alluded to briefly in the earlier response, there are regular meetings between officials across all Governments on the question of common frameworks, and so we will be in a position to provide an update within that time period. 

In relation to the sorts of issues that might not fall within the keeping pace ambit, if you like, things that we might, I guess, elect not to keep pace with—EU legislation, as he knows very well, covers a range of areas. Some of them are geographically specific, some of them are so intimately tied up to the machinery of membership of the European Union as not to be appropriate, some European law provides a range of means by which member states themselves are able to give those directions force of law and so forth. So, there's a range of scenarios in which keeping pace may not apply, if you like, which we will need to keep under review. 

I have some sympathy with him in relation to his last question. He asks somewhat plaintively how many SIs are we contemplating. I'm not in a position, unfortunately, to say to you today what that number is. Some of them will relate to implementation of legislation going through Parliament now, some of them will relate to correcting changes that arise from the change in the date on which EU law ceases to apply, so the end of this year. Some of it will relate to implementing obligations on a continuing basis throughout the transition period, and some of it will relate to implementing the outcomes of any agreements with the European Union and, indeed, with third countries. And just by describing the list, I know you will appreciate that it's today impossible to quantify with any precision what that amounts to. But there are certainly scenarios in which that could surpass the volume of SIs that we have to enact in order to contemplate a 'no deal' departure, and I know that he's aware of the Herculean task that that involved. 

Photo of David Melding David Melding Conservative 6:27, 25 February 2020

Can I just add my support to the Counsel General for the approach he's taken? I think it's fair to say, despite our occasional disagreements, that the Welsh Government, in trying to strengthen the British constitution under devolution, usually ends up in the right place. I sometimes have arguments about how you eventually got there, but I do think the work you've done with the Sewel convention is important, given that it obviously was breached, because there was not a normal circumstance. And I've never thought the word 'normal' was very helpful, and at least we now have language from the UK Government—'singular' and 'exceptional', and I think you used another adjective as well—which I do think is helpful.

But what I do support is that we move to some sort of expanded convention or codify somehow around the phrasing that you chose, in terms of it would be denied only in the most exceptional circumstances. I do think that would be a better description of the position we're in where we have to acknowledge ultimate parliamentary sovereignty in Westminster, but obviously devolution is just made a nonsense if Sewel really is in a fairly casual way defied. So, I think that's important.

I think you're right: there doesn't seem a need for a Senedd Bill to keep pace with EU legislation in the transition period. I'm completely satisfied that you can do that through the various technical powers you have and, should something major come along, then the proper thing is to bring a Bill in. I can't see anyone finding an objection to that. 

If you permit me the indulgence, Presiding Officer, I do want to congratulate my colleague Darren Millar on his conversion or avowal now of federalism. [Laughter.] I have to say it's been a lonely—[Interruption.]—it's been a lonely—[Interruption.] I do apologise, it must have been a bit of a whisper and I didn't pick it up. [Laughter.] But I'm delighted to have such a distinguished ally. I do recommend to you, Darren, and indeed to the Counsel General, if you've not already read it, my e-book available at the IWA, The Reformed Union—. Now, where did we hear that phrase? Who pinched that later? The Reformed Union: The UK as a Federation.

Photo of Jeremy Miles Jeremy Miles Labour 6:30, 25 February 2020

Well, I've been absolutely tantalised by the instalments on Twitter from David Melding's book on the future of the constitution, which I commend to all Members. On the question of keeping pace, we will keep under review whether that needs to be brought forward. Our assessment today is that isn't necessary, but we will be keeping that under review. Should that analysis change, then so might the recommendation. 

Just briefly, on the question of the Sewel convention, I think his point is that this requires reform, and there is a platform of discussions on which we now have to build for that to be reformed. As I mentioned in my statement, 'Reforming our Union' sets that out in detail. And, as a lawyer, I'm drawn to looking at the more precise formulations for that, but there is also a case for discussing whether or not we should move from simply 'not normally' to 'not'.

Photo of Elin Jones Elin Jones Plaid Cymru 6:31, 25 February 2020

(Translated)

I thank the Minister for the statement.