Item 4 is next, which is the legislative consent motion on the Northern Ireland Protocol Bill, and I call on the Minister for the Constitution to move the motion—Mick Antoniw. 

Motion NDM8132 Vaughan Gething

To propose that the Senedd, in accordance with Standing Order 29.6 agrees that provisions in the Northern Ireland Protocol 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, Presiding Officer. I move the motion. It is a huge concern and disappointment to have to address this Bill. Despite the myriad of changes in the UK Government over recent months, little has changed. Little progress appears to have been made, and we remain with the prospect of this ill-judged and irresponsible Bill becoming law. The UK's international reputation has already been harmed so much recently that I'd hoped UK Ministers would have had the wisdom not to cause even more harm with his absurdity. I still hope that the latest Prime Minister will have the sense that his predecessors were bereft of, and find the wisdom and statesmanship that is required to make genuine progress. 

We have brought forward this motion so that the Senedd can consider issues around the Bill and to decide on whether to give consent. Members will see that we, in the memorandum, state that the reasons for refusing consent are good reasons in terms of both the law and constitution. Members will also see that the Welsh Government believes that the Senedd's consent is required for the Bill. This is true of the whole Bill, apart from clause 1. I see that the Legislation, Justice and Constitution Committee's report agrees with us in general terms. 

But let us, first of all, look at the claimed policy objectives of the Bill and the context. The main aim of the protocol was to prevent a hard border on the island of Ireland. That continues to be the aim. They said that the protocol was a new pragmatic and effective solution to a complex problem. The then Prime Minister, Boris Johnson, was given great praise for this.

The protocol makes specific arrangements for Northern Ireland to safeguard the Belfast agreement, the Good Friday agreement. It ensures that businesses in Northern Ireland can still have unfettered access to markets in the European Union and the rest of the UK. It also safeguards the EU single market, and, surprisingly, less than five months after agreeing the protocol and bringing it into international law as part of the UK Brexit agreement with the European Union, the UK Government stated that it created barriers that were unacceptable to traders within the UK internal market. 

The Deputy Presiding Officer (David Rees) took the Chair.

Brexit was always going to require a border somewhere between the EU single market and the UK internal market, yet successive UK Governments that supported Brexit have naively and stubbornly refused to acknowledge this point. I of course accept that any agreement can be the subject of technical review and, indeed, the UK and the EU have entered into formal and informal discussions on technical changes to the protocol, and these must continue. Regrettably, the UK Government has decided that it needs to have powers through this Bill to make changes to the operation of the protocol in domestic law. It seems to believe that the existence of such powers gives it a stronger position in negotiating changes to the protocol with the European Commission, and yet 52 of the 90 Members of the Northern Ireland Assembly elected in May, from three parties, wrote in June to Prime Minister Johnson to oppose this Bill.

The UK Government's approach is tactically naive and politically inept. The UK Government's approach has real disastrous consequences for Wales and for the trade and co-operation agreement, which envisages the UK associating to the Horizon research programme. Its predecessor programmes have hugely benefited the Welsh and wider UK and European economies over decades. Many research programmes at Welsh universities have been funded through it, yet our continued participation in the round of programmes and funding that has already begun is now jeopardised through this Bill. The Commission has been unwilling to proceed with UK association to the programme, most likely because of the bad faith caused by the Bill. We, along with universities and businesses across the UK, have pressed them to reconsider their approach, but the ultimate cause is this Bill. 

Now, I'll address the specific arguments for not recommending consent. Firstly, the Bill may well, in all probability, breach international law. Notable legal scholars have commented that the UK Government's international law defence of necessity for breaching international obligations is not only weak, but even hopeless, as described by the former head of the UK Government's legal department. We are unwilling to recommend consent to a Bill that has the potential to breach international law on an unjustifiable basis. As set out in the memorandum, this has serious implications for Welsh Ministers' obligations to comply with the law, including international law and treaty obligations under the ministerial code. I note that the Legislation, Justice and Constitution Committee shares these concerns regarding the UK Government's position. In our opinion, it would be ethically and constitutionally wrong for this Government to recommend consent to legislation that is in itself potentially unlawful.

Secondly, many of the regulation-making powers drafted in the Bill are so broad that they lack any real clarity of purpose, and this has significant potential implications for Wales and for our devolution settlement, both in the sense that we cannot fully understand the nature and potential scope of the powers that could be conferred on Welsh Ministers, nor can we properly assess the extent to which Ministers of the Crown powers could be used to encroach on devolved matters. This is clearly not transparent, it is certainly not good law, and it's certainly a threat to fundamental constitutional principles and our devolution settlement. I note that the Legislation, Justice and Constitution Committee also shares concerns over the extremely wide delegated powers in this Bill.

Thirdly, I should reiterate that, yet again, the Welsh Government was given no role. We were given no role in the drafting of this Bill and, just as with the United Kingdom Internal Market Act 2020 and the dreadful Retained EU Law (Revocation and Reform) Bill, we disagree with the UK Government's tactical approach. It should continue constructive negotiations with the European Commission on the ongoing technical issues. I do not want the Welsh Government and the Senedd to be party to any further damage to the UK's international reputation. I'm pleased that all three Senedd committee reports on the memorandum, despite the relatively limited time for consideration, address concerns about the possible damage to UK-EU relations and stress the need for a negotiated settlement. I am grateful for their diligence and support and for the important work done to scrutinise the legislative consent memorandum and the Bill. Diolch, Dirprwy Lywydd.

I call the Chair of the Culture, Communications, Welsh Language, Sport, and International Relations Committee, Delyth Jewell.

Thank you, Dirprwy Lywydd. The Culture, Welsh Language, Communications, Sport and International Relations Committee has considered this legislative consent motion. We as a committee were concerned about the lack of time that we originally were given to consider its full implications, because the Bill, as we've already heard, will have far-reaching implications. And although we were ultimately given an extension, the timetable was changed after our committee reported on legislative consent, and due to the seriousness of the issues that emanate from the Bill, we as a committee wanted to take our time to hear more evidence from stakeholders, including Welsh Ministers and Westminster Ministers. However, this was not possible, unfortunately, due to the original timetabling.

Although I understand that the expedited legislative process for this Bill was partly responsible for the timetabling, it's also true that the Welsh Government has been sitting on this LCM for longer than usual. We as a committee acknowledge the reasons why this happened, but, despite this, we felt that the time allocated to us to scrutinise the LCM was the bare minimum, as compared to the time that the Welsh Government had to consider it. As we've already discussed and heard, we are very aware of the reasons why this happened, but we would want to note that, in the future, we do feel as a committee that it would it be vital for the Government to allocate sufficient time to committees to be able to scrutinise LCMs in full, particularly those with so many serious implications.

The committee has a number of serious concerns relating to the LCM itself. As we've already heard, the far-reaching delegated powers contained within the Bill cause us concern as well. As drafted, the Bill would enable Ministers of the Crown to make any changes they deem appropriate to the Bill both in the future and in retrospect. Any subordinate legislation under those powers could modify this place's legislative competence or, indeed, make changes in devolved areas without the involvement of our Senedd or Welsh Ministers.

But, away from any constitutional questions, our committee has concerns that relate to our international relations remit. We note that the Bill poses a risk to the UK's international reputation and credibility in international law. We agree with the Welsh Government that the Bill represents a

'gross failure of diplomacy and statesmanship'.

Wales's reputation could well be affected by association, and we are concerned that the Bill marks a deterioration in UK-EU relations. That could affect how the Welsh Government's international strategy is delivered, and could indeed negatively affect Wales-EU relations. Because of our particular areas of interest as a committee, we are also concerned about how this Bill could impact Wales-Ireland co-operation. There could be a great many unforeseen consequences arising from this legislation. We are, again, dismayed that so little time has been given for a more thorough scrutiny process. And we would add our voices to those urging both parties to seek a negotiated solution to those issues raised by the protocol. Diolch yn fawr iawn, Dirprwy Lywydd.

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

Diolch, Dirprwy Lywydd. We laid our report on the Welsh Government's memorandum in respect of this Northern Ireland Protocol Bill on 9 November, and my thanks to our clerking team and also Members for their consideration and diligence.  

Our report expressed our concern with the Bill, for many reasons. Firstly, on introducing the Bill, the UK Government said it envisages the non-performance of its international obligations. We are therefore concerned with the Bill's potential to break international law, as the Minister has indeed said. The UK Government is relying on the doctrine of necessity to justify its approach. The Welsh Government has stated that it believes that this is a 'very controversial' way of escaping international obligations, as noted by the Minister in the memorandum. Many legal commentators also point out that invoking the doctrine of necessity in these circumstances is a weak defence that is unlikely to succeed.

As the lead committee for international agreements, we believe that adherence to them is of paramount importance. We also agree with the Counsel General that the potential breach of international law by the Bill creates a constitutional problem for this Senedd, because we are being asked to consent to something that effectively legitimises unlawfulness.

As the Senedd will know, my committee does not normally make a recommendation as to whether the Senedd should give its consent to provisions within UK Bills. However, due to the profound constitutional implications of this Bill, we believed it was right to do so in this instance. All of our members except for one believed that the Senedd should withhold its consent to the Bill. We come to that conclusion because a decision by the Senedd to consent to this Bill could contribute to a breach of international law, and would mean the Senedd acting incompatibly with its international obligations. This would, without doubt, go against the spirit of the devolution settlement.

We also share the Minister's concerns that recommending consent to the Bill would call into question Welsh Ministers' adherence to the ministerial code, which includes a specific duty on Ministers to comply with international law and with treaty obligations. If Welsh Ministers are expected to exercise the regulation-making powers under the Bill, doing so could amount to repeated breaches of that code.

Turning to those regulation-making powers in particular, we noted that the House of Lords Delegated Powers and Regulatory Reform Committee called all the powers in the Bill, in quotes, 'super Henry VIII powers'—a striking observation. They gave them this name as the powers within the Bill allow Ministers to make any provision that could be made by an Act of Parliament, including modifying the Bill by regulations after it is enacted. So, we agree with them; the extremely wide delegated powers in this Bill are concerning. They would allow UK Ministers to effectively make any changes they wish to the Bill in the future—including retrospectively—without any role or involvement for Welsh Ministers or indeed for this Senedd.

Our concerns in relation to the wide delegated powers in the Bill remain the same regardless of whether those powers are exercised by UK Ministers or subsequently in the future by Welsh Ministers. Of further concern to us is the fact that it is not yet known which new delegated powers for the Welsh Ministers may be created as a consequence of the Bill, or which procedures may be applied to those powers, and that UK Ministers will make all those decisions.

It is also unclear to us, frankly, why all this is necessary, since the withdrawal agreement's own mechanisms have not yet been fully explored, and that includes article 16 of the Northern Ireland protocol, which allows the UK and EU to take temporary safeguarding measures if the protocol leads to certain difficulties or to trade diversions. We are concerned, as has been expressed by the Culture, Communications, Welsh Language, Sport, and International Relations Committee, that the UK Government's approach is likely to have a negative impact on the UK's relations with the EU.

Turning to specific clauses within the memorandum, we agree with the Minister that the clauses listed in the memorandum fall within a purpose within the legislative competence of the Senedd. However, we also believe that clauses 6, 7, 11, 18 and 24 of the Bill fall into that category too. The memorandum states that clauses 2 to 4 and 13 to 15 of the Bill modify the legislative competence of the Senedd. We agree with that assessment, but we also believe that clauses 8 and 20 modify legislative competence as well. We do not believe that clause 12 requires the Senedd's consent, and I know that's a view that's not shared by the Minister, so we'd welcome any observations on that, Minister.

Before I bring my remarks to a close, I would like to raise the committee’s disappointment once again with the UK Government’s poor engagement with the Welsh Government ahead of the introduction of legislation that affects areas of devolved competence. We recognise that this was one of the reasons why the memorandum was laid 15 weeks after the Bill’s introduction. However, we also nevertheless believe that the Welsh Government could itself have acted sooner to allow for more sufficient scrutiny by Senedd committees, especially considering the Bill’s international and constitutional implications, picked up by my fellow Chair. Diolch yn fawr iawn.

I'm disappointed, I have to say, but not surprised to hear that the Welsh Government will be voting against this legislative consent motion today. And of course I rise to contribute to this debate as both an Irish and a UK citizen, and someone who has been a long-standing member of the British-Irish Parliamentary Assembly, whose committee on European affairs I actually chair. So, I've given some long consideration to this legislation before us, and I've come to the conclusion that it is, reluctantly, necessary to support it, because the truth is that the UK Government has been working very hard at trying to negotiate a reasonable solution to some of the problems that the protocol has thrown up on the island of Ireland and between the UK and Northern Ireland in terms of trade.

And I think that the Bill that we have before us, should it be enacted—should it be necessary for it to be enacted—will actually deliver on the most important issue that we all need to be cognisant of, and that is that we must protect the Good Friday agreement. We will be marking the twenty-fifth anniversary of the Good Friday agreement next year. That has given us peace and stability in Northern Ireland over the past quarter of a century, and we need to ensure that the bedrock of peace and stability, that agreement, is fully upheld as well in the future. And of course, one of the important aspects of that is to avoid this hard border on the island of Ireland, and I believe that we can do that if we implement the principles in this Bill, whilst still safeguarding the UK market and ensuring the integrity of the UK's own internal market as well.

There have been over 18 months now of intense discussions with the EU without agreement, and the UK Government would, of course, far rather a settlement that is negotiated between the EU and the UK, but unfortunately the refusal to budge on the EU side has meant that it's necessary to try and bring forward an alternative solution. So, this Bill, I believe, will fix those practical problems with parts of the Northern Ireland protocol, which have come about as a result of parts of that protocol. It will protect the parts of the protocol that work, and those unintended consequences that have arisen as a result of the implementation of the protocol can be dealt with.

There are four key areas, principally, that the UK Government is trying to address. The first is the burdensome customs processes that businesses are facing across Northern Ireland and in the UK; the second is inflexible regulation; the third is tax and spend discrepancies between Great Britain and Northern Ireland; and the fourth is around governance issues. It's going to introduce green and red channels to remove unnecessary costs and paperwork for businesses trading within the UK, whilst ensuring that full checks are available for goods that end up entering the EU. It will give businesses the choice of placing goods on the market in Northern Ireland according to either UK or EU goods rules. It will ensure that Northern Ireland can benefit from the same tax breaks and spending policies as the rest of the UK, including VAT cuts on things such as energy-saving materials and COVID recovery loans. At the moment, they can't do that because of the EU protocol. And of course it will normalise governance arrangements so that disputes are rightly resolved by independent arbitration and not by the European Court of Justice. 

I've heard many references to this issue of whether this will amount to an unlawful breach of international law. The position of the UK Government is clear, and it's published in detail its legal position and the legal advice that it has received, and that is that the legislation is lawful under international law on the basis of the doctrine of necessity. It supports the balance provided for in the Good Friday agreement, which is, of course, as I say, the paramount thing that needs to be protected here, whilst dealing with these issues, the small number of problems that the protocol has thrown up. And we know that if we don't deal with these problems that are exhibiting themselves as a result of the implementation of the protocol, that it will continue to feed community tensions in Northern Ireland. The reality is that those community tensions that currently exist and that have been causing the Executive not to be formed since the last elections in Northern Ireland are largely as a result of this protocol, of these barriers, if you like, which have been put up in the Irish sea. So, we need to address them; we need to do it in a fair and balanced way. I'd rather there was a negotiated settlement, as would the UK Government, but that is clearly not possible at the moment, and bringing forward this Bill will hopefully bring an end to the impasse and deal with these issues once and for all.

Thank you, Counsel General. That's one stance that is contrary to what we feel as a party, and we will also be opposing today.

Minister, as you will already know, Plaid Cymru opposes the use of legislative consent motions as a matter of principle. We believe that decisions on devolved matters should always be debated, scrutinised and approved by Senedd Cymru, the Welsh Parliament, rather than being made by the UK Government on our behalf. Such practices undermine devolution. The nature of this legislative consent motion emphasises the validity of Plaid Cymru’s stance, as it calls on the Welsh Government to be part of measures to unilaterally disapply elements of the Northern Ireland protocol, in contravention of international law. And this is despite the fact that the UK Government agreed to these commitments fewer than three years ago as part of Boris Johnson’s 'oven-ready' post-Brexit deal—a description that appears more unfortunate every day, bearing in mind the hash that this Conservative Party has made of governing the UK.

Minister, Plaid Cymru opposes consenting to this LCM for three reasons. First, as I have already mentioned, the Bill in question is an attempt by the UK Government to abnegate its commitments under international law. Although the UK Government has tried to justify this course of action on the basis of the doctrine of necessity in international law, a number of legal scholars have disagreed strongly with such a rationale. This demonstrates once again that the UK Government hadn’t fully understood the terms of the deal signed to great fanfare back in December 2019, or that it had no intention of ever honouring it in the first place.

Minister, I’m sure that you’ll agree that the UK Government has destroyed any credibility it had with the international community over the past few years, but, here in Wales, where our politics is a deal more mature and responsible, our Senedd’s good name need not be impacted by Westminster’s rash behaviour, and this Bill is but one example of that.

Secondly, far from safeguarding the Good Friday agreement, as the UK Government has cynically suggested, this measure has heightened tensions on the island of Ireland, first caused as the Conservatives pursued a hard Brexit. The idea that this measure somehow sustains the principle of cross-community support is undermined by the fact that parties in favour of implementing the protocol won a sweeping majority of seats in the most recent Northern Ireland Assembly election. Instead of striving to respond to the Brexit disquiet on the island of Ireland, this Conservative UK Government has placed the Good Friday agreement in greater danger than at any time over the past 24 years.

Finally, we must consider the implications of this Bill from the Welsh point of view, and the potential damage that could be caused to Wales’s vital collaboration networks with Ireland. As our nearest European neighbour, Wales’s relationship with Ireland plays a significant part in the Welsh Government’s international strategy with regard to trade and culture. It is, therefore, crucial that this Senedd conveys a clear message to our Irish friends and colleagues that we reject any measures that could harm our close bonds of collaboration. As well as this, as the Counsel General has already mentioned, the fact that the Welsh Government was not consulted when this legislation was drafted, despite its clear relevance to Wales, suggests the Westminster Government’s lack of respect towards devolution. It also underlines how empty their rhetoric is when they say that the UK is a union of equals. 

For these reasons, Plaid Cymru strongly opposes this legislative consent motion, and we are pleased that the Welsh Government shares our view on this issue.

I call on the Counsel General and Minister for the Constitution to reply to the debate.

Diolch, Dirprwy Lywydd. Thank you to all the Members who've raised points in this debate. I know there clearly is a stark difference and disagreement over this. I think what we all do recognise, though, nevertheless, is the fundamental importance of this issue to peace in Northern Ireland, and also to economic and trade well-being.

If I could just address a couple of the points that have been raised. The point has been made in respect of the 15-week period between the Bill's introduction and the laying of the legislative consent memorandum. I think it's probably not completely fair—I think the Minister for Economy did, in his letter to the Llywydd on 27 June, explain that laying the LCM would be delayed because of the absence of meaningful engagement. Clearly, there are very complex issues that had to be given careful consideration—and the summer term, the state funeral and so on. But I do recognise, as always, the importance of trying to ensure that the Senedd has the period of time that is necessary for scrutiny, and I don't take that away. It's something that's always very much in mind. Obviously, there were difficult circumstances.

In terms of the point Darren raised, my concern is that I don't think you can solve what is a political problem by means of legislation. I think attempting to do so not only will aggravate tensions, but create new and additional tensions, and it doesn't resolve the matter.

Probably the best summary I can give is just to give two quotes that I think summarise very succinctly the issues and reflect the Welsh Government's position. The first one is from Baroness Ros Altmann, who is a Conservative former pensions Minister who participated in the Committee Stage debate on 25 October. She said:

'The problems with this Bill are far deeper, more fundamental, and indeed more important, than Brexit. This is about right and wrong, about protecting parliamentary democracy and about the values that our country believes in and holds dear—the importance of keeping our word, trustworthiness, honesty, integrity. This Bill drives a coach and horses through these things: it seeks to tear up an international agreement signed recently, supposedly in good faith.'

And then the House of Lords Delegated Powers and Regulatory Reform Committee's seventh report on 7 July:

'The Bill represents as stark a transfer of power from Parliament to the Executive as we have seen throughout the Brexit process. The Bill is unprecedented in its cavalier treatment of Parliament, the EU and the Government’s international obligations.... We are...at a loss to understand why the Government have introduced a Bill which has failed in so many ways to accord with the principles of parliamentary democracy'.

I read through the Bill again today, and there's a phrase in there,

'A Minister of the Crown may, by regulations, make any provision which the Minister considers appropriate'.

That appears in 13 sections of the Bill—

Will you take an intervention?

Yes, I will.

I'm grateful for that. Your own leader in the UK Parliament, Sir Keir Starmer, has accepted this—and I quote. He said:

'I’m not pretending there aren’t issues and challenges with the protocol'.

He accepts it needs to change, and yet he's offered absolutely zero in terms of what he would change and how he would achieve that change. Can you tell us: how would you address the problems with the protocol that your own leader accepts exist?

Well, first of all, I wouldn't have introduced the Bill, because the Bill drives a coach and horses through the whole concept of international and legal obligation. Secondly, if it was really so desperate that you had to do something, it would have been to invoke article 16, as the Chair of the Legislation, Justice and Constitution Committee said, because this would enable safeguarding measures to take place and would enable negotiation to take place. I think the Bill is a reflection of a knee-jerk reaction, a political and ideological response to a particular voice in Northern Ireland, and I think you'll come to rue it if you proceed with this particular Bill.

If I can perhaps just conclude, the Welsh Government cannot support consent for this Bill. It is legally flawed, tactically disastrous and it brings the UK's international standing further into disrepute. I therefore ask all Members to withhold consent for this Bill. Diolch, Dirprwy Lywydd.

The proposal is to agree the motion. Does any Member object? [Objection.] Thank you. I will therefore defer voting under this item until voting time.

Voting deferred until voting time.

That brings us to voting time. Unless three Members wish for the bell to be rung, I will move immediately to voting time. The first vote this afternoon is on item 3—

Can we ring the bell?

Are there three? Okay. Thank you. Let's ring the bell, then. We'll reconvene in five minutes.

The bell was rung to call Members to the Chamber.