Part of the debate – in the Senedd at 4:47 pm on 8 December 2020.
Diolch, Dirpwy Llywydd. The External Affairs and Additional Legislation Committee has undertaken detailed analysis of this Bill and sought evidence from a variety of experts. Following that work, it has come to the conclusion that the Senedd should not grant its legislative consent for this Bill.
We arrived at this view because we found that (1) the Bill is unnecessary for the management of the UK's internal market; (2) the Bill will reduce the Senedd's legislative competence; (3) the Bill will reduce the effect of many future laws passed in the Senedd, limiting the ability of the Senedd to deliver on priorities for the people of Wales; and (4) the Bill seeks to impose the UK Government's will on Wales in a way that disproportionately favours the interests of England. There are clear policy alternatives to the approach taken by the UK Government, and no convincing case for the Bill's necessity has been made.
Before moving to explain the reasons behind the conclusions we have drawn, I would like to emphasise that we have no objection to the development of a means to manage the UK internal market. We do, however, believe strongly that these means should be developed collectively by the Governments and legislatures of the four nations of the UK on the basis of co-design, consent and respect for the devolution settlements. If the Senedd does agree to withhold its consent today, and the UK Government proceeds, then this Bill would represent the imposition of the policy preferences of one nation on other nations against their will—clearly a lack of respect for this institution and for devolution as a whole. We concluded the Bill is unnecessary because there are already a range of mechanisms for managing policy divergence after leaving the transition period, including the common frameworks programme, international obligation duties in the devolution settlements, and powers that were provided by the European Union (Withdrawal) Act 2018.
In relation to the Senedd's legislative effectiveness following the introduction of this Bill, it is a statement of fact that the Bill will reduce the Senedd's competence in two ways: the Bill seeks to insert a new reservation under Schedule 7A to the Government of Wales Act relating to state aid, and provision in the Bill seeks to make it, once an Act, a protected enactment, that is making it unamendable by the Senedd in future. It's also a fact that the Bill provides no new powers to the Senedd. This was confirmed by a senior UK Government Cabinet Office official at our meeting on 12 November, who was attending in support of Lord True, the Minister of State for the Cabinet Office. Perhaps the most significant effects on devolution arise from the implications of Parts 1 to 3 of the Bill on market access, which will place a new practical limit on the effect of devolved legislation. This was confirmed by the UK Government in its original explanatory notes to the Bill, which said the Bill will, and I quote,
'create a new limit on the effect of legislation made in exercise of devolved legislative or executive competence.'
The provisions in the Bill are more limiting than the current market access principles in the EU single market, therefore reducing the freedom that the devolved legislatures currently have to develop distinctive and innovative policies. The practical effect of laws passed by the Senedd will be diminished, reducing the ability of the Senedd and the Welsh Government to deliver on priorities for the people of Wales.
Our fourth reason for recommending the Senedd withholds its consent is that the Bill seeks to impose the UK Government's will on Wales in a way that disproportionately favours the interests of England. And what do we mean by that? Well, the size of the English market compared to the other nations of the UK is such that the effect of the market access principles would disproportionately favour English policy choices over those of the other nations of the UK. Making the Bill a protected enactment means the devolved legislatures cannot amend the Bill's provisions as they relate to the nations. But the UK Government, acting as it does on behalf of England in devolved areas of policy, is not restricted from making changes to the Bill through the UK Parliament in future. The Bill provides wide powers for UK Ministers to make substantive changes to the Bill once enacted, and, by extention, the internal market, through secondary legislation with little parliamentary scrutiny.
For independent advice on monitoring the UK internal market, Part 4 of the Bill creates the office for the internal market that sits within the Competition and Market Authority. Now, this is a non-ministerial department of UK Government, with a chair and board members appointed by the Secretary of State for Business, Energy and Industrial Strategy. Again, we cannot forget that the UK Government acts for England only in devolved areas of policy, yet it retains powers to adjust the rules and appoint those tasked with monitoring the application.
As regards Part 5, financial assistance powers—and I'm sure the Finance Committee's report stresses this—the Bill gives the UK Government new powers to fund activity in policy areas devolved to Wales. We see no logical link between the requirements for such powers and the operation of a UK internal market. Furthermore, the implications of these powers on the Welsh block grant remain unclear. Again, there is an inherent imbalance in this arrangement, with the UK Government acting as the Government of the UK and the de facto Government for England-only devolved areas.