We therefore move to item 9, which is our final item, on the LCM on the Skills and Post-16 Education Bill. I call on the Minister for Education and Welsh Language to move the motion—Jeremy Miles. 

Motion NDM7876 Jeremy Miles

To propose that the Senedd, in accordance with Standing Order 29.6 agrees that provisions in the Skills and Post-16 Education 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, Llywydd. I move the motion. I welcome this opportunity to explain the background of this LCM, and to outline why I recommend that the Senedd gives its consent to provision made in the Skills and Post-16 Education Bill. I'm grateful to the Children, Young People and Education Committee for considering the LCM and for the report that they drew up in December. I welcome the correspondence with the committee Chair, and I hope that the responses respond to the questions raised by the committee. I'm also grateful to members of the Legislation, Justice and Constitution Committee for their consideration and the report published in November, and I note that the committee published a further report yesterday. 

I welcome the conclusions and recommendations made by both committees, and I would like to discuss some of those points today. Specifically, I note that both committees consider that the consent of the Senedd is required for what was clause 35 of the Bill as introduced in the House of Commons, which is now clause 31. And I believe that the clause that we're discussing is clause 32 of the Bill, as amended in the Committee Stage in the House of Commons. I don't agree with that conclusion. The main provisions made by this clause relate to further education in England, and the provision made in relation to Wales only restates and explains existing law. These changes are consequential to the provision made for England. 

Standing Order 29.1 makes an exception for related and consequential provisions, and supplementary and saving provisions, and in my view, the provision made in Wales by this clause is consequential to the provision made for England, and relates to an issue that is not within the legislative competence of the Senedd. So, this clause is not included in the legislative consent memoranda that I have tabled for consideration by the Senedd.    

I note and accept both committees' concerns about the delays with laying the initial legislative consent memorandum, and the subsequent supplementary memoranda to the Bill. On this occasion, we did not have sight of all the provisions impacting Wales until just before the Bill was introduced to Parliament. Additionally, the UK Government's devolution analysis differed from our own, and this unfortunately resulted in protracted discussions to seek to resolve matters. I'm pleased that the UK Government has, however, responded positively to our requests for amendments, and I believe that the Bill, as amended at Commons Committee Stage, now respects devolved competence in the area of education.

The only clause requiring Senedd consent is clause 15, which modifies the Teaching and Higher Education Act 1998 in a manner that impacts on the functions that have been devolved to the Welsh Ministers. Those functions concern powers to make regulations in respect of student support, and are exercisable concurrently by the Welsh Ministers and the Secretary of State in relation to Wales. The modifications only apply in respect of the Secretary of State's functions, and they leave the Welsh Ministers' functions intact. And on that basis, I ask Members to give their consent to the inclusion of clause 15 in the Bill.  

I now call on the Chair of the Legislation, Justice and Constitution Committee, Huw Irranca-Davies. 

Thank you once again, Llywydd. We have produced two reports covering the three legislative consent memoranda brought forward by the Welsh Government on this Bill. I hope that they have proved helpful to both the Minister as he has continued to navigate inter-governmental negotiations on the Bill, as well as to Members participating in this afternoon's debate.

Our first report, which we laid before the Senedd last November, summarised our consideration of the Welsh Government's original memorandum on the Bill, as well as memorandum No. 2. Now, in that report, we arrived at a number of conclusions that informed the recommendations that we subsequently made to the Minister. To date, we're still awaiting a formal response to that report from the Minister, which is obviously disappointing to the committee and the Senedd. But, the Minister may want, in his remarks, just to put something on record today by way of explanation. He's mentioned that this Bill has been somewhat convoluted, and sometimes he has had to respond in a last-minute fashion to some amendments put forward in Westminster, but it would help.

Now, Members will be aware that memorandum No. 3 was laid on 10 December, just before the Christmas recess. We did, however, manage to report on this further supplementary memorandum by yesterday afternoon. We made just two recommendations in the first report for the Minister to consider. Given the time that has now passed, these recommendations, as we've just heard, have actually been superseded by recent developments in the UK Parliament, as the Bill has been amended during its parliamentary passage. Just in passing, we note that this highlights the understandable complexity of scrutiny generally, but also the additional complexity of scrutiny here in the Senedd of legislation that originates and evolves within the UK Parliament.

Recommendation 1 in our first report asked that the Minister, in advance of the Senedd’s debate on the relevant consent motion, confirm what amendments the Welsh Government would need to see made to clauses 1 and 4 of the Bill in order for it to recommend that the Senedd provides its consent to the Bill. Of course, amendments have now been made to the Bill that have led the Welsh Government to determine that the Senedd's legislative consent is no longer required in respect of those clauses 1 and 4.

Now, whilst we do agree with the Welsh Government's most recent assessment regarding clauses 1 and 4 as amended, can we just suggest that it would have been preferable, in order to assist the Senedd's scrutiny of the legislative consent memoranda, if the Minister had provided further detail at the outset regarding the specific changes that he wished to see made to the Bill, if this were possible at that stage? Now, he may argue that he couldn't foresee it at that time, but it would be helpful to know that.

Recommendation 2 in our first report asked the Minister to confirm why the Senedd's consent should not be sought for new clause 25, which was added to the Bill at the Lords Report Stage. While memorandum No. 3 confirms that the clause was removed from the Bill by the House of Commons, the fact remains that it was a relevant clause for the purpose of our consent procedures when memorandum No. 2 was laid at the end of October last year.

Our first report also included our conclusion that, while omitted from the Welsh Government's original memorandum, the consent of the Senedd should be sought for clause 35 of the Bill. Indeed, the UK Government's explanatory notes to the Bill confirmed that the clause related to a devolved matter. As the Minister has mentioned, we are aware that this issue was raised in an exchange of correspondence between the CYPE committee and the Minister. And, as our first report makes clear, we do not agree with the Minister’s position. The Minister asserts, as he's done today, that this clause makes no change to existing law; it restates existing provision. But, as a committee, we draw attention to the wording of Standing Order 29.1(i), which states that it does not make any distinction between new law or a restatement of the existing law, only that a provision in a UK Bill is a relevant provision for the purpose of the Senedd's consent process if it makes provision for any purpose within the Senedd's legislative competence.

Given that the Bill has gone through several amending stages in the UK Parliament, as things stand, this clause, as has been mentioned by the Minister, is now numbered clause 31. Our single recommendation in our report laid yesterday reiterates the view we expressed last November, and asked the Minister to confirm, before this afternoon’s debate, why the Senedd's consent should not be sought for the clause in the Bill. He has made an explanation this afternoon, but we may need to agree to differ still after his further explanation. But I look forward to hearing any further ministerial response this afternoon to these points, and also to receiving the formal written response to our reports from the Minister as soon as possible. Diolch yn fawr iawn, Llywydd a Gweinidog.

As we have stated as a party on a number of occasions in discussing LCMs, we believe as a matter of principle that it's the Welsh Parliament that should legislate in devolved areas. And at a time when the Westminster Government is showing time and time again its desire and determination to ignore that principle, we are duty bound to ensure Wales and its Government are not pushed to the peripheries in drawing up policy in these areas. We will therefore oppose the motion.

It is crucial, at a time when sectors the length and breadth of Wales—the education sector, particularly—are finding it difficult in terms of capacity to provide services because of challenges and the effects of the pandemic, that we ensure that we do not place any unnecessary burdens on institutions and key organisations in Wales and don't cause any uncertainty or confusion to them either in terms of planning their provision. The education sector is already facing huge challenges, and we shouldn't allow any provisions in the clauses of the Bill to interfere with these organisations that are responding to the skills needs of Wales, be that specifically or in terms of general principle. The dialogue that was required between the Welsh Government and the UK Government has demonstrated the general problems in relations and the attitude that needs to be rejected entirely. The broader point is that the changes and reforms to the clauses noted as being problematic originally are not sufficient to ensure that the basis of our democracy is not undermined in a general sense—technical clause by technical clause, Act by Act.

As the Chair of the constitution committee has set out, we need further details perhaps and further assurances on the possible concerns outlined in the committee's report and the Children, Young People and Education Committee's report also. We need further details on the uncertainties that could arise as a result of these clauses for organisations and in terms of the possible diversion of resources, contrary to Welsh priorities, which could continue to be risks with the Bill as we give our consent to the UK Government to legislate in a policy area that is devolved. And mainly, as a result of the process outlined by the Minister, and which he described an explained to us this afternoon, and this urgency and this confusion that he conveys, the whole process is sure to create confusion for us in terms of the scrutiny process, and that cannot be approved of or allowed.

In conclusion, I would like to draw attention to the fact that the Children, Young People and Education Committee, as well as the Legislation, Justice and Constitution Committee have noted a number of concerns and we've heard them set out this afternoon in terms of delays in laying the LCM and the SLCM, noting the importance of adhering to the timetable set out in the Senedd's Standing Orders. In this regard, it was noted that there wasn't enough time to consider or scrutinise the LCM or the SLCM sufficiently. They don't draw attention in our Chamber as our major debates or the topical questions do, and they're rarely mentioned in headlines, but they are important and, quietly, they are weakening the voice of our democracy.

I call on the Minister for education to reply.

Thank you, Llywydd. May I just respond and thank both contributors to the debate? Just to respond to the point made by Sioned Williams, I agree that it's not desirable that the scrutiny and decision-making processes of this Parliament are reliant on the timetable of the Westminster, Parliament. I have explained how that has caused an element of delay in bringing forward these LCMs, which isn't desirable, and not one of us would want to see that, of course. But, what I would say in the context of this specific memorandum is that now, given that discussions between ourselves and the Westminster Government have borne fruit in the sense that they have responded to our requests as amendments, I'm pleased to be able to say that it's just a very slight issue that now remains on the face of the Bill and which requires the consent of this Senedd.

I thank Huw Irranca-Davies and I take the opportunity once again of thanking his committee, and the children and young persons committee, for their consideration of a number of memoranda that have featured as part of this legislation. In relation to the points that the committee made on clauses 1 and 4 of the Bill, I hope that my letter to the CYPE committee, which was copied to his committee, in late November set out sufficiently fully our view as a Government in relation to those two clauses. We will, I'm afraid, have to differ in relation to the analysis in relation to clause 31. I'm confident that our position as a Government is well founded, but I do respect the fact that he and the committee take a slightly different view in relation to that. But, again, I hope it's not a matter of such significant substance that that causes a practical challenge for him.

Lastly, I should acknowledge and apologise that the formal response to the report has not been received by the committee. I hope my comments today have set out, at least for the record today, our position in relation to that one outstanding point on the substance of the matters that were in that report. From memory, I think many of them will have been dealt with in the third memorandum, but I absolutely acknowledge that hasn't been the subject of a formal response to the committee, which I'll make sure that he does receive. Diolch yn fawr iawn. I therefore ask the Senedd to support the motion and consent to provision being made in this Bill.

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

Voting deferred until voting time.

Before we suspend proceedings for voting time, I'd like to call Carolyn Thomas to make a point of clarification for the Record. Carolyn Thomas.

Diolch, Llywydd. I omitted to declare I'm a Flintshire councillor in reference to the draft budget debate, agenda item No. 3. I apologise, and please could I do so retrospectively?

Thank you for that clarification. We will now take a short break to make technical preparations for voting time. So, a short break.

Plenary was suspended at 18:12.

The Senedd reconvened at 18:17, with the Llywydd in the Chair.