Item 12 on the agenda is the Statutory Instrument Consent Memorandum on the European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020, and I call on the Counsel General and the Minister for European Transition to move the motion. Jeremy Miles.

Motion NDM7475 Jeremy Miles

To propose that the Senedd agrees, in accordance with Standing Order 30A.10, that the Secretary of State makes the European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020, in accordance with the draft laid in Table Office on 2 November 2020.

Motion moved.

Thank you, Deputy Presiding Officer. I welcome this opportunity to explain the background to this statutory instrument consent motion relating to the European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020. I’d also like to thank the Legislation, Justice and Constitution Committee for their scrutiny work on this issue and for the report published on 12 November.

The memorandum laid before the Senedd on 2 November, along with the written statement, summarises the provisions of the regulations and notes changes to primary legislation that we seek consent for. This is a very technical statutory instrument without any policy implication. The aim is to ensure that the UK statute book works coherently and effectively following the end of the transition period. It clarifies how certain terms, including EU-related definitions, should be interpreted in domestic legislation after the end of the transition period.

These regulations include amendments to primary legislation that are within the legislative competence of the Senedd. They amend the Interpretation Act 1978 and the Legislation (Wales) Act 2019, in relation to the interpretation of references to relevant separation agreement law.

This is a new body of law, defined by section 7(c) of the European Union (Withdrawal) Act 2018. It captures domestic law created by the withdrawal agreement with the EU, the related EEA EFTA separation agreement, and the Swiss citizens' rights agreement, under domestic implementation of those agreements. The amendment to the Interpretation Act sets out how references in domestic legislation to an instrument that has effect as relevant separation agreement law are to be interpreted. After the end of the transition period, references to instruments that have effect as relevant separation agreement law are to be interpreted as those instruments that are applied and have effect under the terms of the withdrawal agreement or the EEA EFTA separation agreement, or the Swiss citizens' rights agreement.

The regulations also make equivalent amendment to the Interpretation and Legislative Reform (Scotland) Act 2010 and the Interpretation Act (Northern Ireland) 1954. The Ministers of devolved Governments do not have equivalent powers to UK Ministers to make the relevant consequential amendments. As the amendments need to be made by the end of the transition period, a United Kingdom statutory instrument is the only realistic way to make the necessary amendment. There is no divergence between the Welsh Government and the UK Government on the amendments. Furthermore, making the necessary consequential amendments in one instrument helps to promote the accessibility of the law during this period of substantial change.

It is on this basis that the statutory instrument consent motion is placed before you for approval, and I move the motion.

Thank you. Can I call the Chair of the Legislation, Justice and Constitution Committee, Mick Antoniw?

Diolch, Dirprwy Lywydd. The committee considered the statutory instrument consent memorandum for the European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020 at our meeting on 9 November, and we laid our report on 12 November. We noted that the objective of the regulations is to ensure that the UK statute book works coherently and effectively, following the end of the transition period. The regulations, as has been stated, aim to achieve this objective by amending the Interpretation Act 1978 and the equivalent interpretation Acts passed by the devolved legislatures, including the Legislation (Wales) Act 2019, passed by the Senedd last year, in relation to the interpretation of references to relevant separation agreement law.

The regulations also amend the European Union (Withdrawal) Act 2018, to provide for how existing references to EU instruments that form part of relevant separation agreement law and existing non-ambulatory references to direct EU legislation should be read following the end of the transition period. The regulations also make new interpretation provisions in the light of the European Union (Withdrawal Agreement) Act 2020, to remove uncertainty about which version of an EU instrument applies. In addition, they make consequential amendments to the European Union (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) (EU Exit) Regulations 2019.

Now, Members may appreciate that this sounds a complex task, and it is. On this point, and before closing, I would like to add a note of caution and concern regarding how complicated the interpretation rules for the Welsh and UK laws have become as a result of these regulations, and as a result of EU exit more generally. This is not a political statement, it's a fact of exiting the EU and disentangling over 40 years of law.

My final comments relate to the approach being taken by the Welsh Government to the Senedd granting consent to the UK Government to make a statutory instrument that amends primary legislation in a devolved area. This is an area that has concerned the committee on a number of occasions now. Our committee has, for more than two years, consistently raised concerns with the Welsh Government about its handling of statutory instrument consent motions. We welcome the Welsh Government's decision to bring forward a motion today in relation to these relevant regulations being made by the UK Government. However, the Welsh Government is choosing which instruments are to be subject to the consent process and those that are not. This means that in many cases, the Welsh Ministers are agreeing to the UK Government amending primary legislation in devolved areas and consent for that decision is not being provided by the Senedd. In the vast majority of cases, we are finding ourselves in the position where the Welsh Government is saying that the only way consent from the Senedd may be sought is where a Senedd Member intervenes. We again repeat that, in the view of the committee, this is neither appropriate nor within the spirit of Standing Order 30A and it unnecessarily draws the executive into conflict with the legislature. We will be writing on this matter again to the Llywydd to seek a resolution of this important constitutional matter. Diolch, Dirprwy Lywydd.

Thank you. I have no speakers and I have no Members who wish to make an intervention. Therefore, I call on the Counsel General and Minister for European Transition to reply to the debate. Jeremy Miles.

Thank you, Dirprwy Lywydd. I thank Mick Antoniw for his contribution on behalf of the committee. I echo the points he makes about the increasing complexity of Welsh law as a consequence of some of these amendments, which need to be introduced just to make the statute book function effectively. And I know the committee understands that making the amendments in one set of regulations contributes at least to the extent that it's within our control to do so—to keep the complexity to a minimum. 

I acknowledge the point that he makes about the introduction of opportunity for Members to debate motions on consent. It is of course open to Members to bring those motions in the usual way. The alternative to the mechanism that we are proposing here, of course, in the absence of Ministers' powers to make these amendments ourselves in Wales, would, in practical terms, have been primary legislation on a comparatively narrow issue here for the statute book in Wales. But I commend the motion to the Senedd, Dirprwy Lywydd.

Thank you. The proposal is to agree the motion. Does any Member object? I see no objections. Therefore the motion is agreed in accordance with Standing Order 12.36.

Motion agreed in accordance with Standing Order 12.36.