Item 11 is next. This is the legislative consent motion on the Professional Qualifications Bill. I call on the Counsel General and Minister for the Constitution to move this motion—Mick Antoniw.

Motion NDM7915 Jeremy Miles

To propose that the Senedd, in accordance with Standing Order 29.6, agrees that provisions in the Professional Qualifications Bill relating to protection of regulator autonomy and consultation with regulators, in so far as they fall within the legislative competence of Senedd, should be considered by the UK Parliament.

Motion moved.

Diolch, Llywydd. I move the motion. I welcome the opportunity to explain the background to this legislative consent motion on behalf of the Minister for Education and Welsh Language and set out why I'm recommending that the Senedd withholds consent to the Professional Qualifications Bill. I am grateful to both the Economy, Trade and Rural Affairs Committee and the Legislation, Justice and Constitution Committee for considering the memoranda, and for the detailed and helpful reports they have produced.

The Minister for Education and Welsh Language has responded to the questions and recommendations in both reports. In particular, I note that the Legislation, Justice and Constitution Committee continues to share my concerns with the existence of the concurrent powers in the Bill, a view also shared by the Senedd when a legislative consent motion on the Bill was first debated on 5 October and Members voted overwhelmingly to withhold consent to the Bill. Since this debate, the UK Government has introduced amendments to clause 1, and introduced clauses 14 and 15 to the Bill.

As you're aware, the advice to the Senedd is we cannot give approval to the Bill in its current form. Despite both the Minister for Education and Welsh Language and myself making our concerns very clear, the UK Government has refused to remove the concurrent powers given to the Secretary of State and Lord Chancellor in this Bill to legislate in relation to Wales in areas that are devolved. Llywydd, it is the view of the Welsh Government that there should be no concurrent powers in this Bill. However, in an effort to be constructive, the Minister for Education and Welsh Language has indicated to the UK Government on several occasions that he may be prepared to recommend consent to this Bill, including clauses 1, 14 and 15, if an amendment is made to require the Secretary of State and Lord Chancellor to obtain the consent of the Welsh Ministers before making any legislation in areas that have been devolved to Wales. However, it is very disappointing that the UK Government has not been prepared to make any such amendment. UK Government Ministers have failed to provide any evidence-based analysis to support their view that the concurrent powers in this Bill cannot be made subject to a requirement to obtain consent from Welsh Ministers.

They have made an informal commitment that they will not legislate in areas of devolved competence or use the powers in the Bill to undermine the devolution settlement. However, as this commitment is not in the Bill itself and is therefore not binding, it has no statutory effect. The Welsh Government is deeply concerned the concurrent powers in this Bill could be used by the UK Government to implement trade deals that in future could encompass professions for which regulation is devolved to Wales. So, in the absence of a consent requirement, changes to the regulation of these professions could be made by the UK Government without the consent of Welsh Ministers, undermining the role of our workforce regulators, the standards we set for these professions, and undermining qualification and registration requirements because of their desperation to secure a deal.

It is our conclusion that the provisions of clauses 1, 14 and 15 within the Bill fall within the legislative competence of the Senedd, and we do not recommend that the Senedd consent to this Bill as it stands. I urge all Members of the Senedd to reject the motion and deny the Bill in its current form our consent. Diolch, Llywydd.

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

Diolch eto, Llywydd. It's great to welcome the former Chair of the Legislation, Justice and Constitution Committee in his current role here today. I note the remarks he's made in opening that the Government is not minded to give consent to this LCM, but some of the remarks that I'm going to make are pertinent in case that position should indeed change subsequently.

Our report on memorandum No. 2 on the Professional Qualifications Bill was the twentieth report our committee has produced on consent memoranda, and it followed our report on the original memorandum, which was published in September, which was our committee's second LCM report. Even at that very early stage, we noted that what we perceived to be some unfortunate trends were emerging, which I'll turn to in a moment. It doesn't give us any great joy to stand here again saying that we see these trends continuing. Those worrying signals are there.

We're being presented, as I mentioned earlier on this afternoon, with UK Bills that include, as the Minister and Counsel General has just said, concurrent powers—powers that may be exercised by the Welsh Ministers or the Secretary of State in relation to Wales. And while we understand that the Minister, indeed, as he said today, is equally concerned by such powers, our most recent report on the Bill again highlights that the Welsh Government’s preferred mechanism for resolving this problem is to provide the Welsh Ministers with a consenting role when such regulations are to be made by the Secretary of State. But, Llywydd, we would argue that this, yet again, bypasses the role of the Senedd as the legislature in Wales. We, as Senedd Members, are therefore being denied a role in directly affecting the detail of primary legislation on devolved matters, and also, subsequently, in carrying out our role in scrutinising secondary legislation that will become law in Wales.

An additional and worrying trend is the combined effect of concurrent and Henry VIII powers that would enable UK Government Ministers to amend the Government of Wales Act 2006—there's a common theme here this afternoon—our principal devolution statute, without the consent of this Senedd. I sound like a broken record, but this record will keep on playing as long as this keeps coming up. The Minister agreed to our recommendation in our first report and he has indeed sought an amendment to the Bill to prevent the 2006 Act from being amended by such means. In our second report, we asked the Minister to provide an update on discussions he has had with the UK Government on this matter, and we're really grateful to the Minister for responding to our most recent report at the end of last week.

On this matter, the Minister appears to have pursued extensive discussions with the UK Government, and that's really to be welcomed. That necessary changes to the Bill have not subsequently been made is therefore even more regrettable. As things stand, regulation-making powers in this Bill, if and once enacted, could, as I've said, be used to amend the 2006 Act, and we cannot take this lightly. So, the committee decided to use this memorandum, Llywydd, and this Bill as an example case when we recently wrote to the Rt Hon Michael Gove MP in his capacity as Minister for Intergovernmental Relations. We highlighted a range of common matters, such as those I have just outlined, and asked him, given his responsibilities in this area, to give consideration from a UK Government perspective to the issues we raised. We are taking this very, very seriously.

Before closing, I will briefly mention the second recommendation in our report on memorandum No. 2. In the original memorandum, the Minister highlighted a restriction in what is now clause 16 of the Bill that he described as 'unique to the Welsh Ministers' powers'. This clause effectively imports restrictions set out in the 2006 Act relevant to the making of primary legislation by this Senedd into the regulation-making process of the Welsh Ministers. This, we would say, is not only an unusual but an unwelcome power to be taking. The Minister is of the view that assurances given by the UK Government mean that some concerns have been addressed. However, no information is provided in memorandum No. 2 as to the nature of these assurances. As far as we are aware, no changes have been made to the face of the Bill. As such, and as this proceeds, we would ask for that detail to be provided.

In his response to our report, the Minister also noted that there were concerns that the UK Government had assumed that UK Bills that confer regulation-making powers on the Welsh Ministers should always be drafted in a way that ensures that the legislative competence of the Senedd and the Executive competence of the Welsh Ministers align, and that, given that the UK Government now agrees that there are instances where such competences do not align, the Minister is satisfied with the outcome. But, Minister, we're still unclear as to how the clause does not represent a limitation to Welsh Ministers’ powers. I am aware that you have shared relevant correspondence on this with the Economy, Trade and Rural Affairs Committee and, whilst I'd welcome you saying more this afternoon, perhaps I could ask that you commit to providing a further written explanation to our committee as well as soon as possible. Diolch, Llywydd.

For me, this afternoon encapsulates the problems we have as a Senedd with these legislative consent motions. My colleague Sioned Williams will speak on behalf of Plaid Cymru on the Nationality and Borders Bill, an appalling Bill that will lead to many deaths, part of a package of Bills being passed by the Westminster Government at the moment.  

Then, we have the Health and Care Bill, a Bill that the Government here in Wales is consenting to; a Bill, as the committee Chair has said, that will give new powers to UK Government Ministers. The health Minister has called that a minor constitutional risk. That is not a minor risk, in my view, when we look at the Government that we have at the moment in Westminster—a Government that is drawing back powers and taking rights away from people. That is not a minor constitutional risk. The Minister said that if they withdraw from their despatch box commitments,

'we would play hell with them.'

But this Senedd is not a soapbox; it is a legislature, a legislature that the people of our nation have voted for. In 2011, when the people voted with a huge majority in favour of primary law-making powers for this Senedd, they had no idea that we would consent to an appalling UK Government drawing back those powers. But, that is what can happen with that Bil, and that is also what is happening with the Professional Qualifications Bill. 

That's the Bill I'm discussing at the moment. This Bill will give conferred powers to UK Ministers to make secondary legislation within devolved areas. We don't agree with it, we won't give consent on this occasion, but then again, we're more than happy to give consent to the health and social care legislation. This Welsh Government cannot have the penny and the bun. Either we're unhappy that they have powers to legislate, either we are concerned about the constitutional risk to this place, or we are not. Where are we when it comes to these?

There's this idea that we are concerned here that it's not on the face of the Bill that they won't amend primary legislation, that it's not on the face of the Bill that they won't amend the Government of Wales Act 2006, the very foundation of our devolution settlement, yet in a previous legislative consent motion, we described that as a minor constitutional risk. Well, I'm not willing to take any risk with regard to the constitution of Wales when we view this Government. There's this idea that a despatch box promise means anything—it's not binding on this current Government, and it's certainly not binding on any future Government. Why are we allowing ourselves time and time again to fall into this trap? 

I agree that many of these Bills that come before us have good clauses within them—clauses, of course, we will support—but we've got to decide: is it our role as the Welsh Parliament to legislate on behalf of the people of Wales within our current devolution settlement, or the role of the UK Conservative Government? 

We cannot hold any despatch box promise to account. They can ignore it entirely, and we can kick up a fuss—

we can play hell as much as the health Minister wants—

and they will not listen. When, colleagues, will we say enough is enough? We will not pass more powers back, or, I can tell you, by the time of the next election, we will have a very different Senedd here. Look at the figures. In the first year of the fifth Senedd, there were 10 Bills brought through the LCM process, with 80 clauses. Already in this Senedd, which isn't 12 months old yet, there are 17 Bills and almost 400 clauses through the LCM process. They are changing our devolved settlement before our very eyes. We must unite as a Senedd to oppose that. Thank you.

I now call on the Counsel General to reply to this debate.

Diolch, Llywydd. If I respond first of all to the comments of the Chair of the Legislation, Justice and Constitution Committee, and also to inform him—. I'm sure that Members are aware that, of course, within these particular clauses 114 and 115—and, of course, the reference to clause 16—there is no support in any of the devolved Governments for these particular clauses, and the same concerns and observations have actually been made in that respect. And the point that you make also in terms of the scrutiny aspect, I think, is absolutely right. It is a concern. It is an issue that arises when we deal with legislation in this particular way. You make valid points in respect of the Henry VIII powers, and you are right also that there have been very extensive—and on this and on many others—incredibly tortuous negotiations that go through clause by clause. It's important to understand the actual scale of those discussions and negotiations that take place.

It is, of course, of concern that, when you have those issues that are raised and negotiations take place, and when one of the parties refused to give any evidential base for the position they're taking—that does, of course, cause considerable concern. You're right, of course, that clause 16 is effectively anomalous in some ways, and the point that you make about the assurances are I think, again, valid. This is, of course, an LCM where we are recommending rejection, or not granting consent.

If I can just take us further on to the—

Will you take an intervention?

Oh, certainly.

Yes, if the Counsel General is content.

Thank you very much, Counsel General.

The fact that the Westminster Government won't even allow a reasonable request that the Welsh Government will consent to any changes they make, or any secondary legislation they make, within devolved areas—. Doesn't that show the complete disrespect they have for us as a Senedd?

It is certainly something that is of considerable constitutional concern, and it exposes also the dysfunction in the constitutional arrangements we have. I think there is probably common agreement on the need—that somewhere along the way, the constitution has to begin to become justiciable. Of course, we've discussed the inter-governmental review and new arrangements, which may be a step towards that. But, again, they are non-justiciable, and we have to wait to see how they work out.

If I can just refer to some of the points that you did raise, though, with regard to the laying of legislative consent memoranda, and the number of them. Of course, this isn't something that is within the choice of the Welsh Government or, indeed, of the Senedd. We are required by Standing Orders to deal with any piece of legislation that may have an impact on, or might modify, the powers of this place. So, we can't get away from the fact that they are there and we deal with them. And the number of them—. What they actually reflect is the amount of legislation coming from the UK Government.

Now, there will be times, of course, when, within those pieces of legislation, there are things that we might not have as part of our legislative programme that we would actually want to see, or we would not want to deny the people of Wales. The health Minister mentioned, of course, the hymenoplasty and one or two other areas. Of course, the simple answer is, 'Well, we'll legislate ourselves.' But the reality is, if that is our sole response every time something like that arises, then what effectively happens is the UK Government is determining what our legislative priorities are, and what our legislative programme is. Every time they come forward with a piece of legislation like that, we say, 'Oh, well, actually we quite like that, but we're going to do it ourselves.' So, we then actually have to divert from our own priorities and our own legislative programme and resources in order to do that.

So, I don't think there should be shame in actually taking good things that benefit the people of Wales in that particular way, and certainly not to put the UK Government in a position where, effectively, we are doing little more than responding to the priorities and direction of the UK Government. If we were to solely adopt that approach, that is effectively what would happen, because in all of our priorities, we would lose some of them, and we would actually be directing our resources in developing and implementing those legislative priorities in order to take up those initiatives every time they arise in a piece of UK Government legislation. So, I think we have to put that within that context.

I suppose the only other way to conclude this, really, is, of course, that I think we are probably in complete agreement on the basis that, as far as this legislative consent memorandum is concerned, consent should not be granted. The motion puts the issue of consent to the Senedd, and the Welsh Government recommends the Senedd votes against the motion and withholds its consent in respect of this particular Bill. Diolch, Llywydd.

The proposal is to agree the motion. Does any Member object? [Objection.] There is an objection, and therefore voting under this item is deferred until voting time.

Voting deferred until voting time.