11. Legislative Consent Motion on the Trade Bill

Part of the debate – in the Senedd at 5:37 pm on 12 January 2021.

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Photo of Mick Antoniw Mick Antoniw Labour 5:37, 12 January 2021

Thank you, Dirprwy Lywydd. Certainly, this Trade Bill has been a long process rather than an event, it's fair to say. We reported in July 2020 on the Welsh Government's legislative consent memorandum, making nine recommendations, and then, last month, reported on the supplementary legislative consent memorandum, making a further three recommendations. This followed three reports we prepared on the previous Trade Bill, which fell before the 2019 UK general election. We haven't been able to give consideration to the further supplementary LCM that was laid yesterday by the Government for obvious reasons. In our reports, we have expressed significant concerns, not only with the Bills, but also with the Welsh Government's approach to engaging with the UK Government on matters of concern, and these are matters we have raised during evidence sessions with the Counsel General, as he's aware.

For example, clause 1 concerns broad regulation-making powers for the Welsh Ministers and UK Ministers to implement the agreement on Government procurement. We were therefore surprised to be told that the Welsh Government had not had specific conversations with UK Ministers, given that the regulation-making power can be exercised by UK Ministers alone, without a legislative requirement to consult with Welsh Ministers or the Senedd. We expect the Welsh Ministers to ensure that Welsh democracy is safeguarded by ensuring that powers provided in a UK Bill are not excessive. This is one of the functions of the Legislation, Justice and Constitution Committee. We made three recommendations about clause 1, seeking a review of the procedure to be applied and a reduction in the breadth of the power. These recommendations have not been taken on board.

Members will know that clause 2 of the Bill concerns international trade agreements, as the Counsel General has outlined. These are agreements that could encompass a wide range of policy areas falling within the legislative consent of the Senedd, including agriculture and fisheries. Clause 2(6)(a) of the Bill allows UK Ministers to make regulations that amend the Government of Wales Act 2006. We expressed alarm that the Welsh Government had not made any representation to the UK Government about this power. We therefore recommended in our first report that the Minister should seek an amendment to the Bill to the effect that it cannot be used by UK Ministers to make regulations that amend the Government of Wales Act 2006. In our second report, we said that we were unclear why the Welsh Government did not raise this matter directly with the UK Ministers, and we requested that the UK Government would bring forward the necessary amendment. We recommended that we receive an explanation for this before today's debate, and we were disappointed that this has not happened.

The constitutional principle that the legislative competence of the Senedd should not be modified by regulations made by UK Ministers we think is a very important one that has to be defended by the Welsh Government. Clause 2(7) of the Bill would enable regulations made by UK Ministers to extend the time during which both UK and the Welsh Ministers may make clause 2 regulations for a further period of up to five years without needing to consult the Welsh Ministers or seek the consent of the Senedd. We recommended also that the Bill should be amended such that the consent of the Senedd be obtained before the ability of the Welsh Ministers to exercise executive powers in Wales if extended, and the committee felt that it was regrettable that the Welsh Government had rejected our recommendation.

In its place, the Welsh Government is relying on, as the Counsel General has recently outlined, a despatch-box commitment that it will be consulted prior to having its executive powers extended. I welcome the concessions where they have been obtained, but, as the Counsel General will know, and it's a point we've made very consistently, this position we regard as unsatisfactory, as is the lack of timely update on the status of this despatch-box commitment. I think the point we make about the despatch-box commitments, of course, is that we understand the convention and their use from time to time; it is the overall, cumulative affect of them being made on this and on other legislation that is something that causes us significant concern.

That brings me to some general observations as regards clauses 1 and 2 of the Bill and the Welsh Government's reliance on despatch-box commitments made by the UK Government about how powers will be exercised by UK Ministers. We are not content with the Welsh Government's approach of addressing the inadequacies of clauses 1 and 2 by seeking these non-legislative commitments from the UK Government. In our view, we think it's a high-risk approach and one that ultimately and cumulatively is flawed. The Bill, once enacted, will have significant and potentially long-term implications for key sectors in Wales, including agriculture, fisheries, health and manufacturing. Now, we acknowledge that the negotiation of UK-wide trade agreements remains a power reserved to the UK Government, however, the Welsh Government will be responsible for implementing those trade agreements in devolved areas in Wales, and we do not believe that non-binding inter-governmental agreements are an effective way to safeguard Welsh interests.

In terms of the EU-UK future relationship, the Counsel General in his written statement on 18 June 2020 said the Welsh Government remains

'deeply frustrated by the lack of any meaningful engagement.'

If the Welsh Government has such concerns about the quality of engagement with the UK Government and it believes that the UK Government's recent actions failed to respect the position of the devolved Governments, then we find it hard to understand why it is willing to continue entering into non-binding inter-governmental agreements with the same Government—