Item 8 is the legislative consent motion on the Trade (Disclosure of Information) Bill, and I call on the Counsel General and Minister for European Transition to move the motion—Jeremy Miles.

Motion NDM7529 Jeremy Miles

To propose that the Senedd, in accordance with Standing Order 29.6 agrees that provisions in the Trade (Disclosure of Information) Bill in so far as they fall within the legislative competence of Senedd Cymru, should be considered by the UK Parliament.

Motion moved.

Thank you, Presiding Officer. I move the motion. I'm pleased to bring forward a legislative consent motion in respect of the UK Government Trade (Disclosure of Information) Bill. Whilst this LCM relates to a new Bill, the content is familiar, as it largely replicates data collection and sharing trade information provisions within the Trade Bill. I laid a supplementary consent memorandum relating to those provisions in November. I'd like to thank the Legislation, Justice and Constitution Committee for their recent report on the Trade Bill and the External Affairs and Additional Legislation Committee for their ongoing and very valuable scrutiny work.

This new, stand-alone legislation was laid by the UK Government yesterday, as the Trade Bill is now unlikely to pass or receive Royal Assent until early 2021. The Bill has been discussed in the House of Commons today. The UK Government's aim is for the Bill to be passed in the Lords tomorrow, so that it can receive Royal Assent shortly thereafter.

The Bill contains provisions that would enable Her Majesty's Revenue and Customs to share data with public or private bodies in order that they can fulfil their public functions relating to trade. It also provides a legal gateway for public sector organisations to share trade-related information with the UK Government. This would capture information on flows across borders, something that is critical, irrespective of whether or not the UK secures a deal with the European Union, as there will potentially be border disruption in either scenario. These provisions will enable the UK Government's Border Operations Centre to manage and monitor disruption to the UK's borders. The intention is for the Bill to only provide a bridging mechanism until the Trade Bill itself is passed.

The memorandum laid before the Senedd earlier today sets out the provisions for which consent is sought. Clauses 2 and 3 of the Bill contain provision that is within the competence of the Senedd, and, whilst they are not contentious, it is important that the Senedd should consider them, and, I believe, grant consent. It is the Welsh Government's view that it is appropriate to deal with these provisions in this UK Bill, as the Bill covers both devolved and non-devolved matters. Legislating via a UK-wide Bill is the most effective and proportionate legislative vehicle for creating data-sharing arrangements in relation to trade. I therefore move the motion and ask the Senedd to approve the legislative consent motion.

The Llywydd took the Chair.

I call on the Chair of the Legislation, Justice and Constitution Committee, Mick Antoniw.

Thank you, Llywydd. As the Counsel General has explained, the Bill provides data-sharing measures that are required as the UK prepares for its new relationship with the European Union. These provisions were previously included in Part 3 of the UK Trade Bill, as has been outlined. However, as we know, the Bill's passage through the UK Parliament has been delayed and the Government has introduced this Bill, containing the same disclosure information as was previously included in the Trade Bill.

The Legislation, Justice and Constitution Committee reported on the Welsh Government's supplementary legislative consent memorandum, that's memorandum No. 2 on the Trade Bill, on 4 December 2020. We agreed with the view of the Welsh Government that clauses 9 and 10 of that Bill, which are the new clauses 2 and 3 of the Bill we are considering today, require the Senedd's consent.

Specifically in relation to the regulation-making power in clause 2(9) of the Bill, this is a Henry VIII power in that it enables regulations to be used to amend the list of specified public authorities in clause 2(3). Such regulations will be subject to the affirmative procedure. Furthermore, a statutory instrument consent memorandum will be required in accordance with Standing Order 30A should a Minister of the Crown make provisions in relation to Wales by amending the list of public authorities in clause 2(3) to include non-reserved authorities.

I note the Welsh Government's reasons for making the relevant provisions for Wales in the Bill. The LCM says that:

'To ensure benefits can be accrued in Wales, we sought assurances from the UK Government'.

Paragraph 11 of the LCM states:

'The Welsh Government considers that it has previously received sufficient assurances from the UK Government in response to these requests and that they will apply to this Bill as they did to the Trade Bill. To confirm this, the commitments will be restated, either in the Houses of Parliament or within a Ministerial letter.'

After outlining commitments given by the UK Government in October, the legislative consent memorandum says in paragraph 13:

'We believe the assurances previously provided are sufficient, once they have been restated'.

Now, in our reports on the LCM and the supplementary LCM related to the current Trade Bill, we've expressed concerns about the lack of clarity around these despatch-box commitments and sought clarification from the Welsh Government. It would therefore be helpful if the Counsel General could explain what discussions he has had with the UK Government about the despatch-box commitments as they apply to the Bill we are considering today. In addition, can he also say whether he expects the commitments to be made in the UK Parliament during its consideration of the Bill or by letter at a later date? The Welsh Government is aware of the committee's concerns regarding the repeated use of varying forms of inter-governmental agreements, whether they be memoranda of understanding or commitments spoken at the despatch box. So, we remain apprehensive at the increasing use of such non-binding agreements, but also at the collective impact of the number of these, as they composite and, in our view, impact on the clarity and probity of the devolution settlement. Thank you, Llywydd.

I'm pleased to take part in this debate. Now, we are talking about legislative consent for the Trade (Disclosure of Information) Bill, not the actual full Trade Bill, because, as we've heard from the Counsel General, events have overtaken and there's a particular timetable with the end of the year approaching, which means that we are debating a Bill here that is largely technical in nature, as we've heard from both the Counsel General and the Chair of the legislation committee. Now, as a member of both the committees—both the legislation committee and the external affairs committee—I am grateful to both of those committees for involvement in the deliberations both on the Trade Bill and obviously on this LCM for the Trade (Disclosure of Information) Bill today. 

Now, as has been pointed out by the Chair of the legislation committee in his detailed analysis, which I share, yes, this particular Bill is just about disclosure of information and the free sharing of information between Governments, but, obviously, as has been alluded to, the provisions of this Bill are dependent at least in part on assurances to Welsh Government given by despatch-box promises at Westminster. Now, I remain very critical of such despatch-box promises, as I outlined last week in the LCM debate on the internal market Bill. I've said it several times: the Sewel convention, it seems to be forgotten about; inter-governmental agreements are not legally binding, they're unenforceable, and despatch-box promises even more so. It is just a Minister standing up in Westminster and promising. I would contend, as the Chair of legislation has said, that they are in fact completely unenforceable. It has been said once, it also—we are dependent, or Welsh Government is dependent, on Ministers in Westminster reiterating that despatch-box promise again, and we look forward to confirmation of that. But, in general, despatch-box promises are completely unenforceable, dependent on trust in a Government in another country. So, as a result, Plaid Cymru will abstain on this legislative consent motion. Diolch, Llywydd.  

The Counsel General to respond to the debate—Jeremy Miles. 

Thank you, Llywydd, and thank you to those who've contributed to the debate. May I just say that I am aware of the discussion on that kind of assurance, but we have been able to assure ourselves that the pledges made are meaningful in this context? May I just confirm that the assurances provided in the context of the equality issues in the earlier Bill have been repeated in Parliament in the context of this Bill, so I don't see any problems with asking the Senedd to give its consent to this Bill. We are meeting an important demand in doing that, namely enabling the UK Government to operate our borders more effectively, and that will be important in the context of leaving the European Union, either with a deal or without.

The proposal therefore is to agree the motion. Does any Member object? [Objection.] Yes, there is objection and therefore I will defer voting under this item until voting time.

Voting deferred until voting time.

And we are about to move to voting time, so we will take a brief break to prepare for the vote.

Plenary was suspended at 18:55.

The Senedd reconvened at 19:01, with the Llywydd in the Chair.