10. Legislative Consent Motion on the Fisheries Bill

Part of the debate – in the Senedd at 6:10 pm on 6 October 2020.

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Photo of Mick Antoniw Mick Antoniw Labour 6:10, 6 October 2020

Thank you for that. We first began our consideration of a UK Fisheries Bill as long ago as December 2018, and Members will know that the first version of the UK Government's Fisheries Bill fell due to the dissolution of the UK Parliament late last year, and that was after the Welsh Government had laid two legislative consent memoranda on that Bill, which we reported on in February 2019. The current UK Government brought forward a new Fisheries Bill in January of this year, and the Welsh Government has laid four legislative consent memoranda, and we have reported twice, first in May, and subsequently just two weeks ago. Memorandum No. 3 was laid just days before our reporting deadline, and the fourth memorandum arrived only last Thursday.

So, in our committee yesterday we discussed memorandum No. 4, along with a letter from the Minister sent to us on 1 October, and, as a result, we wrote to the Minister yesterday requesting further clarity on her letter and memorandum No. 4. This correspondence has been published, and I'm grateful for the reply from the Minister. It's important to note that memorandum No. 4 does not make it clear that the Welsh Government is seeking further amendments to the Bill. Now, these decisions will be made after this Senedd votes on the motion today. The Minister's letter provides some details about these amendments, and you can see that letter in the papers for today's Plenary meeting. We've not had time to assess the impact of these amendments. The Minister has said she will inform Senedd Members of any changes made at Commons Report Stage following the debate. I would suggest that this isn't satisfactory. In our February 2019 report, we highlighted our increasing concern with the transfer of powers from the Senedd as a legislature to the Welsh Government as the executive. This concern is amplified where powers are delegated to the Welsh Ministers through a UK Bill, which Senedd Members are not directly able to influence. In contrast, Members of the Senedd would, obviously, play a key role in the development of a Welsh Bill.

Now, originally, the Minister told us that it was her intention to bring forward a Welsh fisheries Bill in this Senedd term. With that stated intention, it's unclear why the Minister has not sought the inclusion of a sunset clause in the Bill. The Minister's reasoning was that the Welsh Government did not yet have fisheries built into its legislative programme. We raised this issue again in our two reports on the LCMs for the current Bill. In our report laid two weeks ago, we put forward a revised proposal to the Minister. Now, whilst not ideal, we see no reason why a sunset provision in the UK Bill, specifying a date of 2024, could not be accompanied by a Henry VIII power for the Welsh Ministers that would permit the extension of the sunset date by two years. Such a regulation-making power should be subject to the affirmative procedure in the Senedd and, sadly, this proposal has been rejected.

I'd now like to move on to highlight another significant issue. It is an unwelcome fact that, with each LCM we have considered for Brexit-related Bills, there have been notable disputes between the Welsh and UK Governments regarding what is considered to be a devolved matter. The power in the Bill for the Secretary of State to determine UK fishing opportunities was initially a red line for the Minister, because the power interfered with a devolved matter. However, the Minister is seeking to resolve this issue be means of a memorandum of understanding, and that has given us considerable cause for concern, not least because such agreements do not bind either party. The Minister indicated that the development of a memorandum of understanding was critical to any recommendation she may give for the Senedd's consent to be given to the Bill. Now, last week, the Minister shared with us her letter to the Parliamentary Under-Secretary of State, in which the Minister set out her preferred terms of an agreement on the use the powers to determine fishing opportunities. This agreement is in lieu of the fact that the MOU is still in development.

Now, as I mentioned earlier, there has not been time to fully analyse the correspondence that has been shared with us. However, it is not immediately clear to us that the UK Government has committed, or the status of any commitment, to the terms of the agreement as proposed by the Minister. Even with this exchange of correspondence, the fact that the MOU will not be ready ahead of the completion of the Bill's passage through the UK Parliament is unacceptable. The Senedd is being placed at a severe disadvantage in not having access to the detail of the memorandum of understanding relating to the exercise of the Secretary of State's power to determine fishing opportunities.

Moving on, the Bill provides extensive regulation-making and Executive powers to Welsh Ministers. In our report laid in May of this year, we said that it was frustrating that the LCM does not adequately identify the regulation-making powers being taken nor seek to justify why they are being taken. We were also disappointed that the Minister has provided limited information about the rationale and process for the Welsh Ministers providing consent to the UK Government to make regulations in devolved areas.

Now, before concluding, we acknowledge that the Bill extends the Senedd's competence in relation to fishing, fisheries and fish health to the whole of the Welsh zone. While we welcome this extension of competence, it could also have been achieved via a section 109 Order, which would have been subject to scrutiny and approval by the Senedd. Now, as is becoming clear on Brexit-related UK Bills, the legislative consent process has limitations, not least because the Senedd is precluded from the full scrutiny of proposed law that will eventually apply in Wales and in particular because of the need to act in accordance with timetabling in the UK Parliament. There are many examples where the UK Parliament legislating for Wales on a devolved matter may be pragmatic and reasonable. However, in the view of the committee, it's regrettable that a significant change to the law in Wales for the fisheries sector has not been made in Wales. Thank you.