12. Legislative Consent Motion on the Nationality and Borders Bill

Part of the debate – in the Senedd at 5:36 pm on 15 February 2022.

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Photo of Huw Irranca-Davies Huw Irranca-Davies Labour 5:36, 15 February 2022

Diolch, Llywydd. It's a pleasure to follow my fellow two committee Chairs. And can I just say, on the fifth occasion that I've risen this afternoon, my thanks to the committee clerking team and colleagues as well for their consideration of these matters? And can I just note in passing the spirited defence by the Counsel General earlier on the Professional Qualifications Bill, which was really interesting, and we'll return to this? He's always willing to be very engaged with the committee and I'm sure we will explore these matters further.

So, in my final contribution this afternoon, we turn to the Nationality and Borders Bill LCM. If people aren't tired of my voice by this stage, heaven help us. We made one recommendation in our consideration and report on this. We noted the clauses that the Minister considers require the consent of the Senedd and we also noted that UK Government does not believe that the Senedd's consent is required. Our report agreed with the Minister that the consent of the Senedd is indeed required for these clauses and acknowledged also that she does not recommend that the Senedd gives its consent to these clauses being included in the Bill.

Our report expressed concerns, for example, that regulations under the Bill can impose functions on devolved authorities in relation to social care and that neither the Welsh Ministers nor the Senedd will be required to provide consent in such circumstances. Fellow Chairs and their committees have picked up on these as well. We are equally concerned at the powers available to the Secretary of State to make regulations that could amend primary legislation by the Senedd, without any requirement for its consent. As far as we are aware, there are no limitations on these powers—it's again a theme I'm returning to—such that they could be also used to amend the Government of Wales Act 2006 by means of regulations. As I've indicated previously in my contributions this afternoon in respect of other LCMs, we just believe that such an approach is constitutionally unacceptable.

But what makes the situation more complicated is—as I alluded to at the start of this contribution—the fact that the UK Government does not consider that the provisions of the Bill fall within the competence of this Senedd. Now, so far as the UK Government is concerned, this debate is unnecessary and Senedd consent is not required, even though, in our view and that of the Welsh Government and of other committees, the Bill impacts the devolved area of social care. So, in light of these observations, our single recommendation, in three parts, asked the Minister to update the committee on various matters before today's debate. And we're very grateful for the detailed response we have received from the Minister.

The first part of our recommendation asked for an update on her discussions with the UK Government as to whether the provisions of the Bill fall within the legislative competence of the Senedd. The second part asked the Minister to explain whether, as part of her discussions, she has sought amendments to the Bill relevant to our concerns about the regulation-making powers being given to the Secretary of State to act in devolved areas, and which potentially permit the amendment of the 2006 Act.

In her response, and at the risk of repeating some of what the Minister indicated earlier, the Minister has told us how she'd repeatedly raised concerns with the UK Government, including jointly with the Scottish Government, but had not received any satisfactory assurances in response. And she also explained to us how the Home Office did not engage with the Welsh Government over concerns regarding age assessment because of their stance of it being a reserved matter, meaning there was no opportunity available for them to pursue amendments, including in relation to our concerns about the powers being given to the Secretary of State.

She also noted that, as recently as 8 February, the Home Office wrote to say that the UK Government position remained unchanged, such that all the Bill’s clauses were within reserved competence and no legislative consent motion is required for the clauses related to age assessment. So, we do share the Minister’s clear disappointment and frustration at the lack of constructive engagement with the UK Government on these issues, not least because further promised correspondence explaining the UK Government’s stance in more detail has not been received. We would be very grateful to receive copies of any further correspondence on this issue, given our interest—ongoing interest—in inter-governmental relations.   

And that brings to me the third part of our recommendation, which asked whether the Minister will be engaging the dispute resolution procedures in line with the final package of reforms announced in the recently published review of inter-governmental relations. In response, the Minister said she would indeed give further thought to managing this through the new machinery, and, again, we as a committee look forward to being kept in touch with developments on this very important matter. Diolch yn fawr iawn.