So, we move on, then, to item 10, which is the Government of Wales Act 2006 (Amendment) Order 2021, and I call on the Counsel General and the Minister for European Transition to move the motion—Jeremy Miles.

Motion NDM7574 Jeremy Miles

To propose that the Senedd, in accordance with Standing Order 25.15 approves the draft version of The Government of Wales Act 2006 (Amendment) Order 2021.

Motion moved.

Thank you, Deputy Presiding Officer. Today's debate marks one of the final steps towards the culmination of two years of discussion with the UK Government on preparing this draft Order.

In November 2018, the then First Minister wrote to the Secretary of State raising issues of concurrent functions related to statutory instruments made under the European Union (Withdrawal) Act 2018. The restrictions in the Government of Wales Act 2006 prevent the Senedd from deleting or revoking such provisions without the consent of the UK Government. Since then, a number of other pieces of legislation have led to similar situations.

Both Governments agreed the resulting increase in current functions, and the consequent increase in restrictions on the Senedd's competence, was unintended and should be corrected. The removal of these restrictions has been our priority and we are confident the draft Order delivers on the UK Government's commitment, together with ours, to make the correction. Additionally, the Order makes a number of amendments to Schedule 7A and 7B of the Government of Wales Act to remove now-redundant references to EU obligations and European parliamentary elections, following our withdrawal from the European Union. Finally, the Order also corrects some errors inserted into the Government of Wales Act by the Wales Act 2017. The details on this and the other provisions within the draft Order are set out in the explanatory memorandum that I have laid before the Senedd.

I'm grateful to the Legislation, Justice and Constitution Committee for their consideration of the draft Order and their support for the removal of the restrictions on the Senedd's legislative competence. I have responded to the recommendations and I am pleased to place them on the record again today. When I met the committee, I mentioned the need for a further Order in Council under section 109 of GOWA. The European Union (Future Relationship) Act 2020 has created further concurrent functions to which we believe a similar carve-out should also apply. We are in discussions with the UK Government seeking such a provision. I've also undertaken to keep the committee informed of developments related to concurrent and concurrent plus functions that have arisen, or arise in the future, as a result of UK Government legislation. 

Provision for making Orders under section 109 of the Government of Wales Act was made to enable the modification of the Senedd's competence without the need for further primary legislation. However, we need to be clear about what the draft Order does and does not do. This Order does not extend the Senedd's competence. Rather, it protects the competence of the institution from the unintended effects of the European Union exit legislation, as well as making some necessary corrections.

If the Senedd approves this draft Order today, and, as the House of Commons today passed this, and the House of Lords did so last week, we expect the draft Order to be presented to Her Majesty in the meeting of the Privy Council next month. I'm pleased therefore to move the motion, and I seek Members' support.

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

Diolch, Dirprwy Lywydd. As has been mentioned, we took evidence from the Counsel General on the proposed Order on 14 December 2020, and we published our report on 14 January 2021. By way of background to this draft Order, and providing some context, which has been partly outlined by the Counsel General, Members will know that the European Union (Withdrawal) Act 2018 provided UK Ministers and Welsh Ministers with regulation-making powers to amend retained EU law, whether derived from domestic primary or secondary legislation, or, in fact, from direct EU legislation, in order to correct deficiencies in retained EU law that may arise following the UK's departure from the EU. So, ahead of the EU withdrawal Bill becoming an Act, in the inter-governmental agreement between the UK and Welsh Governments, the UK Government committed not to act in devolved areas without agreement of the Welsh Ministers. 

Standing Order 30C put in place a notification process, whereby the Welsh Ministers would alert the Senedd to regulations made by UK Ministers in devolved areas under the 2018 Act. In the course of work scrutinising these statements, we became aware that a consequence of the UK Government legislating in devolved areas was the creation of concurrent and concurrent plus functions, which had the effect that we were concerned about of reducing the Senedd’s legislative competence, albeit often in very narrow fields. Now, the Counsel General has dealt with the issue of concurrent functions, but just to outline that these are functions that can be exercised in relation to Wales by both the Welsh Ministers and a Minister of the Crown acting independently of each other—that is, they're both given the same power. So, in the case of a concurrent plus power, before the Minister of the Crown can exercise the power, the consent of the Welsh Ministers is required.

Under the Government of Wales Act 2006, the Senedd cannot remove or modify the UK Ministers' side of a concurrent function without Minister of the Crown consent. Therefore, the more concurrent functions that are created, the more things that become outside the legislative competence of the Senedd, because the Senedd cannot modify or remove the Minister of the Crown's side of those concurrent functions.

So, the Order before the Senedd today, as well as correcting errors in the 2006 Act, which has been described by the Counsel General, removes these new restrictions on the Senedd's legislative competence. So, we therefore very much welcome the Order. Our report did, however, express hope that any future corrections to the statute book in the sixth Senedd as result of EU exit should be made by Welsh Government legislation.

We made two recommendations in our report and we welcome the response of the Counsel General in his letter to us of 20 January 2021, which he's referred to. We therefore acknowledge that a further section 109 Order will be required as a consequence of the European Union (Future Relationship) Act 2020, and we're grateful that the Counsel General has indicated that he will keep us updated with those developments. Diolch, Dirprwy Lywydd.

Thank you. I have no Members who want to make an intervention, therefore, I call on the Counsel General and Minister for European Transition to reply—Jeremy Miles.

Dirprwy Lywydd, I'll just, in brief, thank the committee for its diligent work in scrutinising the preparation of this Order and for its support in the course of action. Diolch yn fawr.

Thank you. The proposal is to agree the motion. Does any Member object? [Objection.] I can see an objection. Thank you. Therefore we'll move on to defer the voting under this item until voting time.

Voting deferred until voting time.

The proposal is, under Standing Order 12.24, to debate items 11 and 12 together, but with separate votes. Do I see any objections to that proposal? No.