Item 10 is the next item, the legislative consent motion on the Health and Care Bill. I therefore call on the Minister for health to move the motion—Eluned Morgan.

Motion NDM7913 Eluned Morgan

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

Motion moved.

Diolch yn fawr. Today, I'm recommending that the Senedd consents to the legislative consent motion on the Health and Care Bill. This is a large and complex Bill, which, whilst mostly applying only to England, contains some provisions that do apply to Wales, and a number of provisions that require the legislative consent of the Senedd. Some of those areas, such as medicine information systems, obesity and international health agreements contain provisions that we would want the citizens of Wales to benefit from.

In the legislative consent memorandum laid on 1 September and the second memorandum laid on 17 December, I could not recommend consent to the Bill as I had concerns that, as drafted, the Bill would, in some areas, adversely impact on devolved competence. However, following negotiation with the UK Government, we've brought the Bill to a position where I'm able to recommend consent as set out in my third memorandum, laid on 28 January. Time, I'm afraid, doesn't allow me to run through each of these clauses that engage the legislative consent process today. I will instead outline the UK concessions to our main areas of concern and where the UK has extended provisions to Wales at my request.

Firstly, a number of the Bill clauses enabled the Secretary of State to exercise powers in relation to Wales in certain areas within devolved competence. In three of those areas, arm's-length bodies, professional regulation and mandatory reporting, we've secured important concessions from the UK Government to require the consent of Welsh Ministers before the Secretary of State makes legislation under those provisions within areas of devolved competence.

On international healthcare agreements, the Bill has been amended to enable the Welsh Ministers to make regulations in devolved areas for the purpose of giving effect to such agreements. And a memorandum of understanding on the engagement of the devolved Governments in the development of new and revised reciprocal healthcare agreements has already been agreed and been provided to the scrutiny committees to aid their consideration of the legislative consent memorandums on the Bill. 

On medicine information systems, the UK Government has agreed to consult with the Welsh Ministers before the Secretary of State makes legislation under those provisions within areas of devolved competence. Now, this consultation will also be supported by a memorandum of understanding, developed and agreed with the devolved Governments, setting out the detail of how the consultation will be carried out.

My second broad area of concern has been the powers contained in a number of clauses—149, 144 and 91—that enable the Secretary of State to make consequential amendments to provisions in a Measure or Act of the Senedd Cymru. Now, whilst we may have concern about these, they are in fact standard clauses, and it is a fact that we similarly take powers in Senedd Acts to make consequential amendments to UK Government legislation. The UK Government has provided examples of how these powers may be used. The amendments likely would be of a minor nature, for example, the changing of the name of an English organisation that is referred to in Senedd legislation.

On 9 February, Lord Kamall made a despatch box statement on how these powers might be used. In the light of all the assurances given by the UK Government, and the despatch box statement, I regard the risk presented to Wales by these provisions to be acceptable. Other notable concessions have been negotiated in relation to UK-wide patient medicines registries, where we have secured important amendments regarding the collection and use of Welsh patient data.

Finally, the UK Government has also agreed to my request to extend a number of important provisions to Wales. These include criminalising virginity testing and the related practice of hymenoplasty. I'm sure that all Members will support the outlawing of these abhorrent practices in Wales. Taken together, I'm now satisfied the Senedd can give its consent to the Bill. Diolch yn fawr, Llywydd.

I now call, first of all, on the Chair of the Health and Social Care Committee, Russell George.

Thank you, Presiding Officer. I speak today in my capacity as the Chair of the Health and Social Care Committee. Our view on the provisions set out in the report are listed in the report that we've presented, but I would draw the Minister's and Members' attention to a couple of areas. First of all, clause 87, which provides for the establishment of a UK-wide medicines information system. Data ownership, and, of course, sharing are sensitive matters and the rights of safeguarding must be in place to protect, of course, Welsh patients' personal and medical data. So, the Bill has been amended to require consultation with the Welsh Government on any regulations or directions relating to medicine information systems affecting Wales. So, I agree with the Minister that this is welcome. But the inter-governmental memorandum of understanding to underpin this consultation is still to be agreed, as I understand, so we would welcome, I think, further information from the Minister about the anticipated timescale of the MOU.

Clause 135, added to the Bill in November, seeks to learn lessons from the COVID pandemic, and it makes provision to enable controls to be applied in a future pandemic or public health emergency to the supply of medical products used for vaccines or the prevention and treatment of diseases that could become pandemics. So, these measures are sensible, but we would welcome assurances from the Minister that the powers can and will only be used when a public health emergency or a pandemic has been declared, and that any use of the powers could be accompanied by appropriate or adequate remuneration for pharmacy contracts.

I turn to provisions, or the powers, in clauses 91, 144 and 149 for the Secretary of State to make consequential amendments, including to legislation passed by the Senedd, without consent. It would perhaps have provided greater and more transparent protections for the devolution settlement in the longer term if the consent requirements had been included on the face of the Bill, but we note that the UK Government has shared information about how such powers would be used, and agreed to make a despatch box statement on this matter. So, I would be grateful, if I've understood this right, if the Minister could confirm whether the agreed statement has been made in the House of Commons or whether she is content that the assurances provided by the UK Government have reduced the constitutional risk to an acceptable level.

And finally, on the LCM process itself, as a committee, we do have concerns about the increasing use of LCMs as a mechanism for legislating on matters that are devolved to Wales. And as a matter of principle, it risks, of course, undermining the Senedd's role as a primary law-making body in areas of devolved legislative competence. So, as a matter of practicality, with limited time available for scrutiny, especially when provisions are added by amendment late in the day, it increases the risk, of course, for unintended or unforeseen consequences that might otherwise be identified and mitigated through scrutiny. So, we've made a number of recommendations in this area that are included in our report. Thanks, Llywydd.

The Chair of the Legislation, Justice and Constitution Committee next. Huw Irranca-Davies.

Thank you, Llywydd. We have produced two reports covering the three consent memoranda that have been laid by the Minister on this Bill. The first of these was completed last December, and the second was laid only yesterday afternoon. 

Now, given the number of recommendations contained within our second report on memoranda No. 2 and No. 3, we did provide the Minister with an early copy so as to better inform this afternoon’s debate, and I thank the Minister for formally responding to our report this morning as well.

Llywydd, our report on memoranda No. 2 and No. 3 was, just to note, our twenty-third report now on legislative consent memoranda. This is my third contribution this afternoon. So, with your invitation, Llywydd, I will speak in the three separate debates on legislative consent motions today for three distinct UK Bills, such is now the extent to which the UK Government is indeed legislating on devolved matters.

Our first report included eight recommendations to the Minister. In our second report, laid before the Senedd yesterday afternoon, we have indeed acknowledged the progress that's been made since last December, whilst we also make some further recommendations to the Minister.

I will not go through each of our reports on the memoranda in detail, but they are available to Members if they wish to read the points we've made and our concerns in full before voting this afternoon. However, I will turn to highlight just a handful of significant matters.

Let me start at the end of our second report. Many of the provisions in the Bill have been included at the request of Welsh Government. Now, while we have made some recommendations in our reports to address our concerns in some areas, they are no substitute, we would argue on our committee, for the ability of Senedd Members to test and improve legislation by means of tabling amendments to Welsh Bills introduced to the Senedd—the point that was picked up by my fellow Chair.

We're aware of the challenges that the Welsh Government do face, which, indeed, we are investigating as a committee, but that shouldn't overshadow the constitutional risk to the devolution settlement that arises from the continued and cumulative use of UK Bills in devolved areas to deliver Welsh Government policy objectives.

Indeed, the Minister has acknowledged and accepted that that constitutional risk does exist. It's in black and white in memorandum No. 3. This Bill contains broad Henry VIII powers, powers that would enable the Secretary of State and the Lord Chancellor to amend Senedd Acts and Measures, as well as, indeed, the Government of Wales Act 2006, without the consent of the Senedd.

The Minister has accepted an assurance from the UK Government, from a despatch box commitment, to satisfy her concerns regarding the use of these powers, and we heard that. But despatch box commitments, despite being part of the toolbox of government, are not binding. They're vulnerable to change, they do not provide a role for this Senedd. While the Welsh Ministers consider them to be an appropriate compromise, we do, respectfully, not share that view.

The Minister has stated that the agreed outcome of negotiations between the Governments has resulted in, and I quote, a 'minor constitutional risk'. In our view, this conclusion, and the Minister’s acceptance of it, indeed, isn't acceptable. Elements of the Welsh devolution settlement should not be put at risk because a UK Bill is being used to legislate in a devolved area.

So, we asked the Minister to explain and quantify what is meant by this 'minor constitutional risk', and, Minister, you outlined this for us in the third memorandum. We do note what you had to say on this in the letter we received this morning. You've provided an update that the despatch box commitment, which I've just referred to, has now been made. However, we feel you've still not fully clarified what that constitutional risk is, which you brought to the Senedd's attention, other than stating in the Siambr this afternoon that that risk is 'acceptable'. So, Minister, I wonder if you could please say more in your closing response on this risk and perhaps provide a fuller written explanation to the committee as soon as possible.

In our second report, we repeated a recommendation from our first report that the Minister should seek an amendment to the Bill so that its powers cannot be used by UK Ministers to make regulations that amend the Government of Wales Act 2006. Senedd Members can see the importance of this. So, we asked the Minister to confirm that she has sought such an amendment and provide an update to the Senedd on the latest position.

So, Minister, we do find it disappointing that you've confirmed to us that you've not approached the UK Government to request that such an amendment be made, and we'd be interested in the reasoning behind not making that approach, because there is an important point of principle here that is relevant: how one Government intends to use powers at any one time could be very, very different from how a future Government may use them in years to come. I would, therefore, encourage you, and the committee would encourage you, to reflect further on this matter.

Finally, I'd like to address clause 136 of the Bill, which relates to the implementation of international healthcare agreements. The position here now is an improvement when compared to the Bill as first introduced to the UK Parliament last year. This clause previously gave regulation-making powers exclusively to the Secretary of State to implement healthcare agreements for Wales. Amendments to the Bill mean that the Welsh Ministers will now also have these powers, and that's a welcome development. But, having now been given these powers, it is our view that the Welsh Ministers should be the ones to exercise them. Where they do not, and instead they ask or they rely upon the UK Government to do so, meaning that the Senedd would be circumvented once again, the Welsh Government should provide a detailed explanation to the Senedd in advance of such regulations being made—not 'should' but 'must', we would argue—and explain why it's not been legislated for in Wales. So, I hope that the Minister in her response can confirm that this is her intention now and can give us that assurance. Diolch yn fawr iawn, Llywydd. 

I would like to explain why I and Plaid Cymru will be opposing forcefully this LCM. This is a very wide-ranging Bill that it refers to. It contains elements, as the Minister said, that she is eager to see being extended to Wales. I certainly don't have any opposition to seeing the sharing of legislation across these isles, for example, in an area such as making it illegal to test someone's virginity. Of course we support taking that particular step, but, as a health committee, when we look at the content in that way, we also note time and time again how uncomfortable we feel with regard to the use of this process.

We welcome the words of the committee Chair, Russell George, in concluding his contribution, that there is a concern expressed time and time again in committee about the impact of these LCMs on the integrity of devolution. The more the Welsh Government consents, the more I fear that the United Kingdom Government is empowered to do more, to take further steps to undermine the integrity of the devolution settlement as it stands—a settlement that has been supported by the people of Wales—because of the need to ensure that the most detailed scrutiny possible is undertaken here in Wales on the issues that are relevant to our population, and, yes, on issues where we may very well wish to follow the same direction as our friends in other parts of these isles, but that scrutiny has to happen here in Wales.

We have to have the time to undertake that scrutiny. We can't have the time when following a piecemeal process of legislative consent of this kind. And, as I say, in terms of the content and intentions of elements of this Bill in Westminster, yes, we can agree with those, but we can't ignore the undermining that's happening here, and that is why it's very important that we oppose robustly this attempt that's one of an increasing number of attempts across all policy areas of the Senedd. I'm grateful to the Chair of the legislation committee for noting so clearly that he, like me, doesn't consider this a small constitutional risk. The impact of these measures taken together does lead to a genuine risk to the future of devolution, and unless we as a Senedd stress clearly our concerns about that, then who will?

I now call on the Minister for health to reply to the debate. 

Thank you very much, Llywydd, and thank you very much to Members for their contributions to this debate, and a particular thanks to members of the Legislation, Justice and Constitution Committee and the Health and Social Care Committee, and thank you particularly for your reports. I am pleased that we were able to respond to those this morning.

You have heard that the despatch box commitments have already been given, and what was given there is some detail of exactly what is meant by the kind of constitutional interpretation that they were thinking of. So, it's mainly changing the name of an organisation—if they were going to do that in England, that they'd change the name. So, they gave some examples, and that's the whole point of getting that despatch box commitment, because then you can hold them to account, because it's been said on the floor of the house, and you've got something to appeal against, effectively. So, I take your point, that just because you get a commitment from this Government, who knows what Government there may be in future, but you can appeal, as the Member will know, to what is said on the floor of the house to get a better sense of what is meant by the kind of conditions around those agreements.

We have had strong negotiations with the UK Government throughout, and that has led to a number of important amendments. On this occasion, may I say that we did negotiate? We've had a lot of our own way, we've come a long way, and they have understood our arguments, and I'm pleased that that's been the case. In terms of the—

—consequential amendments, I understand that this is not an ideal way to make law. We all understand that. But we're not in a position, always, to get the perfect, and so, of course, there is a constitutional risk for Wales. The question is: how much of a risk are you prepared to take? At the beginning of this process, it was a constitutional risk too far, and that's why I would not have recommended that we accept the LCM. Now, I think we have had enough assurances so that the constitutional risk is smaller.

But also I think we shouldn't miss the opportunity to give protection to the people of Wales, especially when you see something like criminalising virginity testing. Why wouldn't we want to sign up to that? Do we really want to wait for years and years and years until we can get that into a legislative process here, while England forges ahead? No, I'd rather get on with it and get on the bus with them on that particular issue. So, there are occasions. Now, of course I understand that that means it's difficult for you guys to scrutinise—I get that, I understand it—and so, I don't think you'll see us doing that too often, and—. I think you're anxious to come back in here, aren't you?

Intervention, Huw Irranca-Davies.

Diolch, Llywydd. Minister, I accept the way that you're explaining this, that there is a balance here between the real priority of putting in place good policy that the Welsh Government and the people of Wales would want to see against a balance, which she explained, minimising the constitutional risk. But, perhaps an additional assurance would be, to the Senedd Members, that should there be an unexpected use of the powers that are contained here, in terms of the 2006 Wales Act, or a future Government chose to misinterpret the assurances that had been given at the despatch box by a Minister, that it would be the intention of this Welsh Government to defend this institution and the constitutional settlement robustly.

Well, I can give that assurance, absolutely. Of course we would want to do that. So, I can give you that assurance, and if we saw them taking advantage of the situation, we would play hell with them. So, I think I can give you that assurance. And also I'm happy to give you the assurance that, in terms of international agreements, if those were to happen, then we would be able to give some advance notice to the Senedd. So, I hope that gives a certain assurance to you and your committee.

So, thank you very much, and I do urge Members to support this motion. Thank you.

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

Voting deferred until voting time.