Therefore, we will now move to debate item 11, which is the legislative consent motion on the Trade Bill, and I call on the Counsel General and the Minister for European Transition to move that motion. Jeremy Miles.

Motion NDM7541 Jeremy Miles

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

Motion moved.

Thank you very much, Deputy Presiding Officer, and I move the motion. I'm pleased to introduce this legislative consent motion and the supplementary legislative consent motion related to the UK Government's Trade Bill.

This version of the Bill was first introduced in the House of Commons in March 2020 and has a lot of similarity to the previous version of the Bill that fell in the last Parliament—the Trade Bill in 2017-19. The 2019-20 Bill recently completed Report Stage in the House of Lords on 6 January, and the current version of the Bill contains amendments made during the Lords' as well as the Commons' stages.

Following its introduction back in December 2017, the 2017-19 version of the Bill underwent many rounds of scrutiny. The Senedd initially approved the legislative consent motion on 12 March 2019 and subsequently on 21 May 2019, in light of two supplementary memoranda. I'm back before you today in relation to the current 2019-2021 version, which contains some provisions that were in the original Bill, along with some additional amendments that require further consideration by the Senedd.

Eluned Morgan, on behalf of the Welsh Government, laid an LCM on 2 April 2020 in relation to the following provisions in Part 1 of the Bill. Clause 1 confers powers on UK Ministers in devolved authorities, including Welsh Ministers, to implement the provisions of the agreement on Government procurement, to reflect the fact that the UK is now an independent party to this WTO agreement, following the end of the transition period. Clause 2 confers powers on the Welsh Ministers and devolved authorities, including Welsh Ministers specifically, to implement international trade agreements with third countries, corresponding to certain kinds of existing EU third country agreements. Clause 3 is now contained in clause 11 of the Bill; this clause provides for different types of provision that could be made in regulations made under clauses 1 and 2.

Clause 11 also gives effect to Schedules 1 to 3. Schedule 1 places restrictions on the exercise of the Welsh Ministers' powers. Schedule 2 makes provision for the procedure that is to apply to regulations made under clauses 1 and 2. Schedule 3 contains exceptions to restrictions in the devolution settlement. Consent was also sought for clause 4, which is now contained in clause 12 of the Bill. This provision outlines how certain terms within Part 1 of the Bill should be interpreted. As this provision needs to be considered alongside clauses 1, 2 and 11, the Government considers that consent is required for this provision. These are all related to the April 2020 LCM.

I have laid two supplementary legislative consent memoranda. The first was on 4 November 2020 in respect of the following provisions that relate to the collection and sharing of trade information and that were contained in Part 3 of the Bill. These are now contained in Part 4 of the current version. Clause 21 allows specified public authorities, including Welsh ports and health authorities, to disclose information to a Minister of the Crown for the purposes of facilitating the exercise of a Minister of the Crown's functions relating to trade. Clause 22 makes it a criminal offence for a person to disclose identifiable personal information in breach of the requirements in clause 21.

A further supplementary memorandum was laid on 11 January in respect of Part 3 of the Bill, as it was amended at Lords Report Stage. Clauses 15 to 18 and Schedule 6 provide for the establishment of the Trade and Agriculture Commission as a statutory body, whose role is to provide independent advice to the Secretary of State on relevant provisions in new free trade agreements. In addition, a number of non-Government amendments have been passed at House of Lords Report Stage that may be overturned when the Bill returns to the House of Commons for consideration of amendments.

The Senedd's consent is also being sought for these provisions; the Welsh Government is content with each of the amendments and would prefer the Bill to include these clauses in its final form, but recommends consent to the Bill whether or not they are retained: clause 3, which relates to parliamentary approval; clause 6 in relation to health, care or publicly funded data processing services; and clause 8 in relation to standards. These, between them, are the provisions for which consent is sought.

The Senedd has previously consented to substantially similar provisions contained in clauses 1 and 2 of this Bill in the original version of it, which was debated in the Senedd on 21 March and 12 May 2019. There are, however, some key differences. For example, the power to implement the Government procurement agreement in clause 1 can now be used to make provision in consequence of a dispute. This seems a sensible improvement. Some of the restrictions placed on devolved authorities have been removed, meaning that the Welsh Ministers will still have the power to amend retained EU law in circumstances where it falls within the scope of any freezer regulations, which could be made by UK Ministers under section 109A of the Government of Wales Act 2006, and which would otherwise restrict the Welsh Ministers' competence to amend this category of legislation. That's also an improvement to the original Bill. 

I would like to thank the Legislation, Justice and Constitution Committee and the External Affairs and Additional Legislation Committee for their detailed scrutiny of the Bill. A number of legislative consent memoranda have obviously been laid against the different versions of this Bill, and I am grateful to the committees for their consideration. I recognise there are significant challenges in co-ordinating both the Senedd and UK Parliament timetables, and whilst my predecessor and I have made every effort to provide updates to Members as the Bill has progressed in its different forms through Parliament, I readily acknowledge the challenge. The Bill's timetable has been difficult, with several UK Government amendments requiring consideration at very short notice, and delays occurring, unfortunately, at almost every stage.

Whilst some of the recommendations put forward by the scrutiny committees have not been accepted, I want to reassure the Senedd that I have acted to address recommendations where it has been possible to do that. One of the key concerns has been our willingness to accept despatch-box commitments. We have had some limited success in securing a change to the face of the Bill in relation to the data sharing provisions in clause 8, which now expressly includes the devolved authorities as one of the bodies that the relevant trade-related data can be shared with by HMRC. But, in light of the difficulty overall in achieving changes to the face of the Bill, we have looked at other options to secure assurances from the United Kingdom Government. Despatch-box commitments are, admittedly, an imperfect, but, nevertheless, legitimate technique used by Ministers in all devolved Governments to hold the UK Government to account, and this position has, of course, as Members will be aware, been accepted previously by the Senedd. I commend the motion to the Senedd.

Can I now call the Chair of the External Affairs and Additional Legislation Committee, David Rees? David Rees, are you there? No. We seem to have lost the Chair of the External Affairs and Additional Legislation Committee. Therefore, can I call on the Chair of the Legislation, Justice and Constitution Committee, Mick Antoniw?

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—

Can I ask you to wind up, please?

I am winding up now. Members will be familiar with these concerns of ours. So, in closing, if I could just say how disappointing it was to hear a Welsh Government Minister say that in rejecting one of our recommendations it was extremely unlikely that the UK Government would take these seriously into consideration. We don't think this is an appropriate approach.

I see we have the Chair of the External Affairs and Additional Legislation Committee back with us, so I'll call David Rees.

Diolch, Dirprwy Lywydd, and I do apologise, my Wi-Fi dropped out just at the crucial time as it happened. I'll therefore keep my comments as brief as possible. In a sense, the Chair of the Legislation, Justice and Constitution Committee has reflected many of the views we have, and my brief remarks will focus on the prism through which it forces us to consider the question of legislative consent.

Before I move on, I understand the position the Minister has found himself in with the LCM originally being laid back in April, a supplementary in November and the second supplementary only yesterday, and that was based upon the fact that amendments were made only last Wednesday. It does really highlight that significant provisions for the Trade and Agriculture Commission were only brought to our attention by the means of that supplementary legislative consent motion laid yesterday, and it is, therefore, important that we have opportunities of actually scrutinising the Bill properly.

I think this Bill has highlighted that the legislative consent process does not allow us the sort of interaction with legislation that we are having under scrutiny, and I think that, more than in any other Bill, has been highlighted, because this has been in place for so long, but here we are, still discussing it on a day when the latest amendments were made last Wednesday and we still don't even know if they'll be accepted in the House of Commons yet, because that's not finished, that stage. 

But the consideration of the Bill that we had obviously highlights the very difficult position we have and the balancing act that is required of us when we consider the legislative consent motion, because on one hand there is an issue that we may have concerns about, as in our first report, which highlighted an issue that, actually, the Bill has not addressed some of those points; but, on the other hand, we do recognise the need for legislation of this type for a degree of continuity for businesses, workers and consumers now that we've left the transition period. So, it's a blunt instrument that gives us a binary choice: accept it all or reject it all, and I think that highlights the concerns over LCMs, in one sense. 

Now, without revisiting our concerns in detail, I will remind Members—and the Chair of the LJC Committee highlighted this—of the dependence upon despatch-box commitments, as opposed to actually amending the Bill, as we actually called for, to ensure us that the powers granted by the Bill will not be used in the ways in which we had foreseen. And I think that's a very important point. We are too heavily dependent upon such commitments made by Westminster Ministers without actually seeing those changes in the Bill itself, which could have been achieved. Now, that's what the LCM convention does provide us with, unfortunately. It does not measure continuing functions as it should, it limits the ability of both Welsh Government and the Senedd to influence UK policies as such and the legislation that affects us in the devolved administrations. And I think, perhaps I'll extend a little bit, that we are very cautious because this regard shown by the UK Government to the Senedd's last LCM, which we opposed, and it was totally rejected by the UK Government and the majority of Members in Westminster who voted to support the Bill that we had actually said 'no' to. I think this highlights the issue about the LCM procedure. 

Now, we need new and robust constitutional safeguards for the sake of good governance of the UK as whole, something I know Members have heard many times in this Chamber. But to be clear, on a more positive note, the Counsel General, before the committee yesterday, highlighted the fact that there have been different approaches in the trade agenda and arena, and I think, in the future international trade agreements that will be had, that type of approach needs to be followed far more, and we look forward to seeing a concordat, which I will highlight should have been signed 12 months ago, but we're still waiting for it to be signed. So, it is important and it needs to be done, but we do recognise that there has been a move in a different direction. So, there's inconsistency even within the UK Government's approach at the moment, and this inconsistency needs to end. 

We do see a role for the Senedd as well in the future scrutiny of international agreements, and the amendments laid—the Counsel General highlighted today—also include, if you think about it, consideration should be made of regulations we make for changes to any standards we wish to make as well, so that they are considered in any international agreement. And there's no reflection upon that, it's just UK standards, not Welsh or Scottish standards. So, we need to ensure that. We do see a role for the Senedd, but as far as consideration of this Bill is concerned and the questions about legislative consent it poses, it does remind us we need more than oral commitments from UK Government Ministers, we need amendments to Bills. And I would hope that, in future, we get a very strong message sent to the UK Government that that is what is wanted. Diolch.

I think it's a high-quality debate, this, and can I commend the contributions of two excellent Chairs of the committees that I'm a member of, Mick Antoniw and David Rees? They've set the issues neatly before us, because the UK Trade Bill has many flaws, not least that it asks much of the devolved Parliaments yet fails to recognise our democratic right to approve trade agreements reached on our behalf and whose implementation we would govern. Devolved Parliaments must have their approval sought and the right to veto, but this Bill will not give us that right. As a result, Plaid Cymru will vote against this LCM. 

The COVID-19 crisis has proved we need to take a new approach to trade policy for our country. We must consider not only our international priorities and our deep commitment to our environment but also the interests of our communities, businesses and institutions. To achieve this, trade policy must come closer to home. There must be a greater role for our Parliament to make it our trade policy, more resilient and with stronger commitments to climate action. The UK Trade Bill under question today does not do that. Westminster still clings to its one-size-fits-all policy, the size that fits the south-east of England. It's this approach that has created the greatest regional inequalities in Europe, and has amplified divisions between the nations of the United Kingdom.

With the value of Welsh goods exports alone totalling £17.7 billion for the year ending June 2019, international trade is the lifeblood of our economy, allowing Welsh firms, organisations and public bodies to access a global market that draws in investment, income and jobs. Yet the UK Government, despite its abysmal record on negotiating with the EU—to which Wales exported £10 billion of goods and services in 2019—denies our Parliament the right to approve trade deals struck in our name. Our function, it seems, is merely to try to manage the outcomes of these trade deals; we have to lump it.

This Bill fails to address the concerns that trade could negatively impact the climate and environment. Indeed, the UK Government refused to create legally binding trade standards to protect production and quality in areas such as agriculture, as we've heard. We should be taking stronger measures to ensure trade does not come at the cost of the natural world by building into trade agreements conditions relating to ecosystem protection and climate targets. Together with a greater focus on building a domestic circular economy to reduce demand for imported raw materials, measures such as these could reduce significantly the carbon footprint of Welsh trade. Our Parliament must have a say if we are to have any hope of negotiating trade deals that address the growing gulf in our society that respond to and encourage Welsh businesses to export and ensure that our domestic economy can recover from COVID-19. Anything other than equal say is further proof that the UK has learned nothing from the divisions of the last few years and is wilfully ignoring their causes.

The Welsh Government's attitude towards this Bill, though, and securing Welsh interest has been shockingly inadequate. Indeed, the then Minister for international relations, as we've heard, who was previously responsible for this Bill, rejected many of the recommendations put forward by the LJC committee in their first report on this LCM and the tortuous journey it's been on. One of the reasons given for this was that the Minister felt that the UK Government was in a strengthened position with its 80-seat majority since December's election. It was, therefore—and I'm quoting directly here—

'extremely unlikely that any representations the Welsh Government should make to the UK Government on this matter would receive serious consideration.'

So, we didn't bother making any. There we have it, in plain text: Welsh Labour raising the white flag before even making any effort to fight back against Westminster to stand up for the interests of Wales. What better advert for Welsh independence?

Now, the Counsel General admits in the supplementary LCM that—and I quote again—

'Devolved areas may be heavily impacted by future trade agreements'.

If this is the case, why are the Welsh Government content with securing commitments, as we've heard from the UK Government, that are, in the Welsh Government's own words, non-legislative and non-binding? The Sewel convention is patently ignored, inter-governmental agreements and despatch-box promises not worth the paper they are not written on, as LJC and external affairs committees both said, and we've heard in the eloquent presentations by both Chairs this afternoon. For how much longer will Welsh Labour continue to put their faith in Tories and Westminster, whose track record on promises broken is there for all to see? Plaid Cymru will vote against legislative consent on the Trade Bill. Diolch yn fawr.

I welcome this motion today and welcome the fact that the Trade Bill is another legislative step to embed Brexit, which, after all, was the biggest constitutional change on any ballot paper in Wales since the vote for devolution. I note this is the second time an LCM on the Trade Bill has come before this Chamber, reflective, I believe, of a rapidly evolving situation in the UK Parliament and reflective of the trade negotiation process with the EU. I thank the committees for their detailed considerations of the LCMs, and I note some disquiet in the report about the use of inter-governmental agreements and despatch-box commitments, and I share that concern, not due to any visions of Wales being done down in any way, but because the approach is messy and relies on too many variables. I understand that we may well hear—well, we've usually heard the term 'power grab' from Plaid, but they didn't use it today—but I would remind those tempted to use those kinds of words that while we were under the jurisdiction of the EU, this place and the Welsh Government appeared perfectly happy to accept any terms deemed necessary by the EU with no meaningful democratic route to query or influence. And now, in the last few days, we see a deal struck between the EU and China. Would we, or our constituents, be happy with that development? COVID aside, the human rights record of the Chinese Communist Party is totally deplorable and should not be rewarded in any way.

As you may have predicted, I will be voting in support of this LCM today, but before I close, I would like to place on record my thanks to the former Minister for international relations for her hard work and pragmatism in getting to this point. It is very much appreciated. And Mr Miles, thank you for supporting this as well today. Diolch yn fawr.

Thank you. I have no people who wanted to intervene on the debate, and therefore can I call the Counsel General and Minister for European Transition to reply to the debate? Jeremy Miles.

Diolch, Dirprwy Lywydd, and can I thank Members for their contributions to the debate? I think many of the contributions were important contributions to the reflections of this Chamber on some of the challenges that are inherent in the consent process when trying to marry the parliamentary timetable in Westminster with the needs of our Senedd here in Wales. I hope I can address some of those key points, at least, in the closing remarks.

On Mick Antoniw's point about the role of Government in standing up for the democratic accountability of the Senedd, I absolutely agree with him that that is one of the roles of Government, and I hope that Members will acknowledge that this Government has never been shy of not recommending that the Senedd consent to legislation that we do not think is in the interests of the Senedd and the people of Wales, and indeed, most recently refusing to participate in what was a mockery, in parliamentary terms, in Westminster, of the consent in relation to the future relationship agreement. We have always taken the view that consent ought to be sought where it's sensible to do that, and that circumstances in which legislation is brought forward in Parliament are a proper consideration in that process.

Mick Antoniw also made the point about the breadth of some of the powers in the Bill, and I would absolutely accept that the language in some of the provisions around the powers to Ministers both in Westminster and in the devolved Governments is broader than we would ordinarily wish to see. I would be content myself with much tighter language. That being said, I think the particular circumstances of the uncertainty around the basis on which we have been operating around Brexit, in the negotiations and in the end of the transition period, I think do provide some justification for a slightly different approach in relation to this, but that isn't to resile from the broad commitment to making sure that powers are appropriately narrowly defined in legislation.

In relation to the points Mick Antoniw made about clause 2.6, the point he made is about seeking amendments to the Bill in order to protect the Government of Wales Act and other constitutional legislation. Welsh Government did, in fact, seek amendments to the Bill in relation to that, albeit in the House of Lords rather than in the House of Commons, on the basis of what I think is a sensible judgment that that was the better route to success. Obviously, that route also, unfortunately, did not succeed. I have, in fact, written to the committee with an explanation of that. I think I took it from Mick Antoniw's remarks that that letter may not have been received, so I will, in fact, check to make sure that's the case, but certainly an explanation was given to the committee in relation to the circumstances around clause 2.6.

Both Mick Antoniw and David Rees have made points of great significance, I think, around the role of despatch-box commitments and non-legislative mechanisms, if you like, to provide clarity and reassurance. David Rees mentioned that those are sought when amendments could be achieved; actually, the case is customary that they are only given when we have failed, effectively, to get commitments on the face of the Bill. So, there is absolutely recognition, I'd imagine, amongst all devolved Governments that they are an imperfect solution to the problem, and we would prefer, obviously, to see amendments on the face of the Bill. But his contribution acknowledged, I think, that that isn't always possible.

As one final point if I may, Dirprwy Lywydd, in relation to the supplementary LCM that was tabled yesterday, obviously, that was very shortly before this debate. I don't myself think that the amendments referred to in the Bill meet the threshold that the Standing Order presents, but they arguably do meet the lower threshold that Ministers sometimes take into account in bringing forward an LCM. I felt that, on balance, given that the debate was happening in relation to other questions of consent, it was in the interests of full consideration by the Senedd to bring forward those further amendments, even though they are slightly more arguable in terms of whether they trigger the LCM. But I thought that it was in the interests of the Senedd to have those in front of it today as it considers this motion, and I hope that the Senedd will approve the motion in the terms laid. Diolch yn fawr. 

Thank you. The proposal is to agree the motion. Does any Member object? [Objection.] Object? Yes, okay. Therefore, we will defer voting under this item until voting time. 

Voting deferred until voting time.