National Assembly for Wales

This is a meeting of the Legislation, Justice and Constitution Committee. We move straight on to item 1. There are no apologies today. The usual housekeeping rules apply. Are there any declarations of interest?

If there aren't any, then we move straight on to item number 2. The Adoption Agencies (Wales) (Amendment) (No. 2) Regulations 2020: we have a copy of the Welsh Government's statement on 22 February 2020. These are regulations that amend the Adoption Agencies (Wales) Regulations 2005. The effect of the amendment is that, when an adoption agency is determining the suitability of a couple to adopt a child, the agency must have proper regard to the need for stability and permanence in their relationship. The Welsh Government issued a written statement in relation to both this instrument and the Adoption Agencies (Wales) (Amendment) Regulations 2020, and there is to be a Plenary debate in respect of this instrument on 17 March. Any observation or comments?

If there aren't any on that, we then move on to a number of items that we'll take together. The Education (Student Support) (Miscellaneous Amendments) (Wales) Regulations 2020: you have before you the regulations, explanatory memorandum and letter from the Minister for Finance and Trefnydd to the Llywydd on 13 February 2020. This is an instrument that amends a number of regulations relating to student support. These regulations amend the definition of the term 'end of course' and make amendments in relation to the calculation of household income. There are a number of merit points that have been identified.

Yes, there are four merit points, starting on pack-page 5. The first notes a breach of the 21-day rule. There's a letter from the Trefnydd on pack-page 17 that explains it's due to an administrative error. The result is that the regulations were laid before the Assembly 18 days before they came into force, rather than 21 days. As the Trefnydd's letter states, this has no material effect other than bringing the regulations into force a little sooner than anticipated.

The second point is about the citation of one of the powers that enable the Welsh Ministers to make these regulations. The enabling power is section 22 of the Teaching and Higher Education Act 1998. The draft report asks whether the Welsh Government could have been a bit more specific about which bit of section 22 was being used to make these regulations. And the Government's response was received after today's papers, so Members should have a hard copy there. The Welsh Government's response is very clear and helpful, noting that the way section 22 is drafted means that it's better to cite site section 22 as a whole, and that there's no need to specify a particular subsection. Indeed, the Welsh Government says that citing, for example, subsection 2 would be inaccurate. The only issue that arises is that the three sets of regulations arising under today's agenda items 3.2, 3.3 and 3.4 are also educational regulations that are made under that same section 22, but each of them does specify subsection 2 as an enabling power. So, that's not to say that any of these regulations are invalid in any way, but there's some inconsistency between the approach in these regulations and the approach in the regulations under agenda item 3.2, 3.3 and 3.4.

The third and fourth points relate to a small lack of clarity in the explanatory memorandum around reassessing household income, for the purposes of financial support for students. The draft report asks the Welsh Government to confirm there's no change in current practice around reassessing household income, and the Welsh Government has confirmed there is no change.

Okay, thank you for that. I will make some comments on the 21-day rule breach when we get to the end of the next couple of items, but are there any comments or observations on that?

In which case, we move on to items 3.2, 3.3 and 3.4, which really are all directly interrelated. The instrument amends a number of regulations to make provisions for the annual uprating of student support, and there's obviously a merit issue there again.

Yes, in brief, there is no coming-into-force date in the original regulations, under agenda item 3.2. The Welsh Government moved quickly to correct the error. The regulations under agenda item 3.3 remake the original regulations, and the regulations under agenda item 3.4 revoke the original regulations, and this led to a breach of the 21-day rule in order to correct the error quickly, and the letter from the Trefnydd at pack page 40 sets out the whole story.

So, that's really just for noting unless there's any particular observations. On the 21-day breaches, we've had 12 such breaches since September 2019. Our intention there is really just to write to draw the attention of Government to that, my main concern being that, really, these breaches shouldn't be normalised as though they are taken without any specific response. So, my intention is to put together an appropriate letter to that effect, if that's okay with the committee. 

Agreed.

Okay. We have a number of other items. We have the Adoption Agencies (Wales) (Amendment) Regulations 2020. These are regulations that amend the Adoption Agencies (Wales) Regulations 2005 to make provision relating to the exercise by adoption agencies, local authorities and registered adoption societies of their functions in relation to the adoption under the Adoption and Children Act 2002. They are to be read in conjunction with the Adoption Agencies (Wales) (Amendment) (No. 2) Regulations 2020. There is a drafting error, I think. There's a technical point in the report. 

Yes. One technical point on pack page 75: the regulations cross-refer to regulation 26(b) to (e) when they should cross-refer to 26(b) to (f). The Welsh Government accepts the point and is considering how to correct this error at the earliest opportunity. 

Item 4, then: letters to note. We have the letter from the Minister for Housing and Local Government with regard to the Local Government and Elections (Wales) Bill. I think Members are invited to note that. The copy of this we had at the end of the last meeting. So, this is really just to formalise that. So, unless there's any comments or observations, we'll move on to item 4.2.

Again, a letter from the Minister for Finance and Trefnydd: competence for a vacant land tax in Wales. We have a letter from the Minister dated 3 March 2020. So, again, that's a matter to note the letter, which notes that a formal request has been submitted to the UK Government for the devolution of competence for a vacant land tax in Wales, and that will be, I presume, under the Wales Act 2014. Any comments on that?

If not, on to item 4.3. We've had a letter from the Counsel General on the inter-institutional relations agreement. The first report will be covering the period April 2019 to March 2020. It's going to be laid in September. Now, you see the letter that's there. The Counsel General himself has recognised the inadequacies of the way the agreement has operated. I'm a little bit surprised it takes from March to September to actually lay the report—some six months. But, other than that, are there any comments or observations? Obviously, we will have the report and we will need to consider that carefully. It's an important agreement and important with regard to the scrutiny process. 

We'll move on to item 5, then. So, in accordance with Standing Order 17.42(vi), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree? 

Okay. So, we can now move into private session.

This is the reconvened meeting of the Legislation, Justice And Constitution Committee. We're continuing our inquiry, which we started on 29 July 2019, into Wales's changing constitution. I welcome to this committee the Secretary of State for Wales, the Rt Hon Simon Hart, and you have with you Mr Geth Williams, deputy director of policy and constitution in the Wales Office. Thank you for attending this committee in what is a very important area of consideration at the moment, and that is the impact of Brexit, amongst other aspects, on the UK's constitution and the relationship between Wales, UK Government and the issues around that.

If I might just start off the questioning, if you're happy with that? Obviously, leaving the European Union has had a significant constitutional impact. I'm wondering if you could outline for us how you see that impact on the devolution settlement, and how it impacts in respect of your office within the Wales Office, with the Assembly and with the UK Government?

Thank you very much, Chair. Can I also start by thanking you for extending the invitation? I'm sorry; I should apologise in advance for the fact that we've only got a relatively limited amount of time, but as we explained outside, we can always follow this up with further visits, letters; all the usual things. Geth has got more experience in this area than me, so feel free to ask him the really difficult questions. But I will start off by saying that I think I share your view that the last few months and years have changed the relationship that we've hitherto had, and that there has been significant pressure and attention put on the devolution settlement.

What I also want to say, which I know I've said to a number of people in the room privately over the last few months: it is absolutely my intention and the intention of the UK Government to make sure that the relationship we have with the Government here is collaborative and positive, and that where we have identified issues with perhaps pinch points where pressure has been applied, that we are able to rectify those. And I think that so far, notwithstanding the obvious example over the withdrawal Act, so far, I don't see any particular reasons why we can't revert to the—I think—probably quite healthy and positive relationship that was held before. So, I hope that that is of some encouragement.

One final point: I think you asked a question about how do I think that the EU exit may have impacted. We could spend all day talking about that subject, but I would say this: that I think that we are all getting used to a situation where it's going to be, in a sense, a closer relationship between UK Government and Welsh Government. There is this transition, to use that word, from a relationship that might have historically always been about the relationship with the EU. That is the big change for me; it's going to be the relationship changing from that with the EU to UK Government, and that will be a test, I suspect, for all of us.

Thank you for that. The European Union membership obviously provided a sort of constitutional umbrella that, now it's removed, exposes, I suppose, a degree of constitutional dysfunction in the relationship that's obviously been highlighted. The inter-parliamentary forum, which has become quite a significant liaison body during the Brexit process, represents nearly all the key constitution legislation committees in Westminster, the House of Lords, in Scotland, and in Wales as well. On at least three occasions, I think in 2018, it issued the same statement, which is that:

'We recognise that the current system of inter-governmental relations in the UK is not fit for purpose and that there is an urgent need for substantial reform in the context of the Brexit process.' 

Now, that is almost universally accepted now at the parliamentary level—an accepted mantra. I'm just wondering whether that is something that you recognise, and that you agree with, and how it might be addressed. 

I would go as far as saying that these constitutional arrangements are always in need of review and update. I remember sitting in one of my first ever jobs, back in 2010, on the Constitutional Reform Select Committee at the time, under the chairmanship of Graham Allen, and that was created along with the coalition Government at the time and it expired when the coalition Government went in its own direction. And to some extent I think that was a pity, because I think the idea that there is a final resting place for these arrangements is wrong. I think that's fundamentally wrong, so actually, we should always be reviewing the relationship, irrespective of what the political circumstances might be at the time, because I think one of the attractions of our constitutional settlement, whether you look at it in a Welsh context or a UK context, is the fact that it's ever-evolving, and if it doesn't evolve, then it becomes out of date instantly. So, when people say, 'We're going to bring this to a conclusion', I don't think that necessarily is the right objective. We should constantly look to refresh and update, but it will never be concluded, nor should it.

One of the recommendations that's been made, of course, is in respect of the way in which the Joint Ministerial Committee actually operates, and the lack of any dispute resolution mechanism, which means that, when issues arise that are contentious, whether they be related to constitutional or other matters relating to the devolved relationships, there's no real mechanism for actually resolving any of that, and there were therefore proposals put that there should be significant reform to the way that works. Has the Wales Office been involved in any way in discussion of that? Because the only message that's come out is that there was going to be a democracy review. There's obviously the Lord Dunlop review as well, which we're just awaiting. But I'm wondering what engagement the Wales Office has had within any of those processes or discussions.

Just to refer to Dunlop, I agree we're all waiting for that. I think you're probably in a very similar position to me in respect of what that may or may not contain. As far as Wales Office involvement, for me, the answer is 'no', but I've only been in post a few months. Geth might have views about what occurred before that. 

So, there has been an inter-governmental review ongoing for almost two years now. That was instigated by Joint Ministerial Committee Plenary. It will report back to JMC plenary at the next meeting. It is a review being undertaken by all four UK administrations. Some would say progress has been slower than many would like, and many would like to see it come to an active conclusion. Some quick wins have already been implemented, such as JMC meeting in the various capitals rather than just in London, and the chair of JMC rotating around the four Governments rather than being held by the UK Minister the whole time. So there is work ongoing. It hasn't reached a conclusion. 

Okay. Carwyn Jones. 

Thank you, Chair, and welcome to this committee and the Assembly, Secretary of State. I have experience of the JMC that goes back to the middle of the last decade, and I remember at the time that the dispute resolution process was developed, there was a suggestion at that time there should be an independent body, and it was members of the House of Lords who would act as a kind of independent adjudicator for disputes between Governments. That never came to anything because of the objections of the Treasury at the time, and I make the point that my own party was in Government at that point, so I don't make a political point—but that's what went wrong. 

There are two things that strike me as problematic with the JMC that need to be resolved. The JMC effectively is an opportunity for devolved Governments to come and shout at the UK Government. There's nothing constructive about the JMC, particularly Plenary. We sit this side, the UK Government sits that side, we raise grievances, the UK Government nods, and nothing ever happens. It's a shame, because I think it puts all Governments in bunkers where those Governments don't need to be. It could be a far more effective body if people sat and agreed things. That was something I was familiar with 20 years ago as rural affairs Minister. We'd meet as Ministers every month and we'd agree the UK's line for the EU Council of Ministers. So it is possible to do it.

Secondly, of course, I've already mentioned the dispute resolution process where, if you're in dispute with the UK Government, the UK Government resolves the dispute and decides whether there's a dispute at all in the first place, which we saw with the money that went to Northern Ireland. So, on those two particular points, I'd be interested in your views about how we get a dispute resolution process that, on paper, looks very robust, but, in practice, hasn't worked out that way. And, secondly, how the JMC can be turned into a proper ministerial council rather than what it's tended to be over the last few years, which is an opportunity to raise grievances without anything really being resolved.

I've been to three, I think, or maybe two, of various meetings, and some of what you say I recognise in the couple I've been to. To some extent, I—. Where I'd disagree is it seems to me that it is a dispute resolution body in its own right. That's how—. If I hadn't heard the manner in which you sort of—. That's how I saw it. I saw it as a means by which the devolved administrations could come together in order to try and resolve particular issues.

I think I have a bit of a problem over the potential for some kind of independent arbiter in this, because I think there is a democratic element to that that makes me uncomfortable, that, if the politicians can't reach agreement, who are obviously directly accountable to voters, then the idea that we could somehow hand that down to somebody who perhaps doesn't possess that degree of democratic accountability, worries me a bit. So, I'm not disappointed—without having much experience of the history of it—I'm not disappointed that we didn't go down that line, from my first hearing of how you described it.

However, if the observation here is that it is as you describe, which is an opportunity for devolved administrations to have an opportunity to complain and that UK Gov is simply acting as a lightning conductor—which are my words, not yours—then, of course, who isn't going to sit in this position and say, 'Well, look, is there a better way of doing that?' But I would stop short, as I say, of committing to the full monty approach, which is to get somebody else in because we've failed in our duties as politicians to be able to reach agreement.

Can I give you just one example of the problem, which is, where there is a disagreement with the UK Government, the UK Government can do what it wants, really, and this is true whatever party's in power. Just to give you one example: when Northern Ireland received £1 billion, a substantial amount of that money should have attracted a Barnett consequential, in my view, because some was for health, some was for education. The Scottish Government and the Welsh Government at the time, raised a dispute as part of the JMC process, and the dispute couldn't go anywhere because the UK Government said, 'There is no dispute. We don't recognise there's a dispute'. So, the difficulty is, as you can see, that the question—not just the question of how a dispute is resolved, but whether or not there's a dispute in the first place—is entirely in the hands of the UK Government, and nobody else has got any ability to change it.

I do understand—I do understand the charge. I think something similar was done over HS2. I seem to remember there was an HS2 dispute along similar lines about Barnett consequentials. But, to some extent, there's nothing unusual, as I say— forgive my naivety in this—there's nothing unusual about that. The ones I've been to, and the meetings I know about, are always about that kind of thing. As long as this institution has been in place, there have been disputes of that nature. But it just strikes me that, if democratic accountability is to mean anything at all, then we have to have an ability to argue as elected politicians. And if one or other institution—in this case, UK Government—reaches a conclusion that, actually, the claim that £1 billion should have been Barnettised is disputed, ultimately, it is for the accountable politicians to reach a view that not everybody else will agree with. That's where we were, and I'm not quite sure that what you're suggesting, unless I missed something, would alter that.

Can I—

One more and then I will—

Bearing in mind—. Sorry, bearing in mind, bearing in mind that I suspect—[Interruption.]

If you can be succinct.

Apologies, Chair, but bearing in mind that there are, as we've discovered, over things like the prorogation of Parliament, occasionally opportunities where the courts might opine as that final point of arbitration.

If you went to court and you had a dispute with another party in a courtroom, it would surprise you, wouldn't it, if that party was also the judge. That, from our perspective, is where we are. And the judge decides not just on the merits of the case, but decides whether there's a case at all. So, the difficulty with the system—. I'm not saying there's a—. I don't expect you to give an answer now, clearly, but the difficulty with the system is that the UK Government is both a party and a judge, and that in itself makes it hugely difficult in terms of transparency and in terms of having faith in the system. 

Well, my own reaction to that question is that we're getting into a very interesting philosophical argument about where democratic accountability and the function of government ends and the interference of the judiciary, if that's the right word, and/or some other third party, an unaccountable arbiter, begins. I don't read the situation as quite as severe as you do, but I don't suppose that's a surprise to either of us, I guess. 

No. Perhaps if I could just pursue that, the one area that does concern, because you talked about parliamentary democracy—the interparliamentary forum, which, effectively, represents almost all the parliamentary scrutiny committees across, is absolutely adamant that the system doesn't work, it needs substantial reform and it's not fit for purpose. Now, that must be a constitutional cause for concern that is beyond a relaxed process. Will the UK Government's democracy review be looking specifically at those issues?

I don't actually know. Gethin might. 

Well, the terms of reference for the review haven't been agreed. I'd go back to the inter-governmental review, which the Welsh Government is part of—the UK Government, the Scottish Government and now the Northern Ireland Executive as well—and we need to await the conclusions of that review. 

Okay, a review that hasn't yet had its terms of reference decided. Okay. Well, that's one point. Do we know when the next JMC is actually going to take place?

I don't, no. 

We don't, either. 

Sorry, it's not been set, actually. 

If I move on, can I move on to just a couple of questions on Sewel? And I know Suzy Davies will follow on from these. The withdrawal agreement Bill, when it went through, obviously sought legislative consent, which was denied by all three Parliaments and Assemblies within the UK. Do you consider that perhaps Sewel is now out of date and needs a complete refresh?

No, I don't, and nor did I get the impression, by the way, that some of the Ministers in this institution thought that either, when we were going through that painful and, in many respects, regrettable period. The expression 'not normally' came into being at around that time and I have to say that, in the conversations I've had privately with your colleagues and privately with mine, the view was that these were exceptional/unique circumstances and that the fact that we couldn't reach the agreement that I suspect we all wanted to reach was a matter of regret but it did not represent the death throes of Sewel or the relationship that we have with this institution, I'm pleased to say. And legislative consent motions have been subsequently granted that demonstrate that perhaps we are getting back on course and that the expression 'not normally' was an accurate one. 

I certainly know, in the correspondence from the then, I think, Brexit Minister, Stephen Barclay did refer, as you said, to the issue of consent in that legislation being related to specific, singular and exceptional circumstances. We do have coming before us, though, arising out of that process, the Agriculture Bill, the Fisheries Bill, the Environment Bill. We anticipate receipt of the Private International Law (Implementation of Agreements) Bill, the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, and a trade Bill, which had been previously introduced but, obviously there may be another version coming through. Certainly, a number of these are going to require legislative consent. I'm just wondering if you were able to give indication that the Sewel convention will now be fully applied to those pieces of legislation, so that, if consent isn't granted, those devolved aspects won't be proceeded with. 

It will. Just as it was last time, so it will be next time, that we will, as UK Gov, seek legislative consent in the normal way. Ultimately, that decision is for elected colleagues of yours here. Clearly, we hope that they will reflect on where we are in the Brexit process, reflect on the result of the 2016 referendum, reflect on the result of the 2019 general election, before reaching a view as to whether they grant or deny legislative consent. But for me to prejudge—which isn't quite what you're asking—what that might be I think would be dangerous. We intend—I intend—to respect the process, but we also intend to respect the result of the referendum in as positive a manner as we can. 

Are you able to say what 'not normally' therefore means within the context of the Sewel convention? 

I don't think anybody's been able to define that expression, other than—

Isn't that the problem?

—other than it applies to circumstances that are not normal, and a withdrawal from a relationship such as that with the EU represented after 45-odd years cannot be described in any circumstances as run-of-the-mill politics or normal, and it is from there where the expression came. We all around this table have a different way of interpreting what 'not normal' means, but, as far as I'm concerned, it's major exceptional circumstances like that, which are unlikely ever to be repeated again, hopefully. I can't—. I couldn't define it any more accurately.

Okay. One final point before I move on to Suzy Davies. Within that context, then, without some form of justiciability, isn't Sewel, effectively, a fatally-wounded convention? 

I don't think so. I don't think so, and I think that the conversations I had, as I say, with colleagues, ministerial colleagues, in this building suggested to me that there was an ambition that we share in UK Gov to get back on course as far as the protocols of Sewel are concerned. There was no question in those conversations to me that it was dead and needed to be rebirthed in some other form. 

Thank you for that. On to Suzy Davies. 

Okay. Thank you. Welcome, Secretary of State. Those words of Stephen Barclay, 'specific, singular and exceptional', you suggested that those can come within the definition of 'not normally' as it's ordinarily understood, even if that's not an exclusive definition of it. Does it make sense to decide beforehand whether a piece of legislation is not normal before asking for legislative consent? 

That's a very interesting question—which is normally code for 'I'm not absolutely sure what the answer's going to be'. I think—. To me, it always seems dangerous, in the business we are, which is trying to wrestle with complicated, technical, emotional issues, to try and prescribe definitions too rigidly before or during the passage of legislation. So, I'm—. And the public, quite rightly, often get rather infuriated that we can't be more black and white about our interpretations or our ambitions. But, for me, there is a reason for that, because you'd simply become a hostage to fortune very quickly. So, I think these things have to—they have to evolve, and who would have anticipated six months ago where we would have been with this whole process, and especially the legislative aspects to it? And I think if we'd attempted to settle in advance how we defined those particular stages, we would have found ourselves absolutely boxed in and I'm not sure that would have helped the process, and also the process of restoring public confidence around this. So, I err in favour of keeping the definitions as wide as possible for as long as possible.  

Well, yes, I recognise that there's some jeopardy in just assuming that LCMs may not be necessary for certain pieces of major legislation, but would you accept that there might be different interpretations of what 'not normally' may mean—you did suggest that you did earlier on—and, in particular, that the UK Government and the devolved Governments may have quite different views, in which case we get back to this question of dispute resolution and who's best placed to do that? Is the JMC the best place to decide that level of interpretation of what is actually a very significant arbiter of what happens to a piece of major legislation? 

I agree with the fundamental comment, because I've already made it, that the definition will mean something different to a number of different people. Is the JMC the right body? I think the JMC is the right body for the disputes to be aired and for that information to become public amongst the participants of JMC. Resolution is probably never going to be properly achieved in the one hour or two hours that that grouping is sat round a table like this. It is much more likely to be resolved by what goes on in the margins and in between, which involves officials from this and other institutions and those of UK Government answerable to elected Ministers or similar. I don't think that process is necessarily so flawed that it needs to be destroyed and reinvented. As I say, that's not just a UK Government thing, in the conversations I've had with your colleagues here, they're not even making that suggestion. So, it seems to me that we need to be careful about fixing something that not everybody believes to be broken. 

For the withdrawal agreement Bill—indeed, for any Bill—I think it's important to note we are only seeking the Assembly's consent for provisions within the legislative competence of the Assembly, not for the Bill as a whole. 

I accept that, I should have made that clear. If that's the position, and it's one you've reinforced actually in this session—. Here in Wales, at the moment, we've had our legislation Act, where we're focusing a lot on codification of quite a lot of our laws, if not our conventions. Do you think there's any space, as this is an area of convention that crosses governmental boundaries, for codification to be of help in this situation, without going as far as being justiciable? 

I'm going to give an equally irritating answer to that question as I think I gave to the earlier one about flexibility. Having sat through many months of an inquiry into the codification of the relationship between local and national government, it became very clear that, what seemed like a very tidy way of resolving that blurred line that sometimes exists between local and national government, the solution to the problems that were highlighted didn't necessarily lie in codification.

It wasn't always clear what they did lie in, but actually, in evidence, it was made fairly clear to us, from those who would have been most affected by it, that codification actually restricted the ability to remain flexible and fluid in the decision-making process and the relationship process. So, that is one reason why successive Governments in Westminster have always been reluctant to go down that line.

It just feels slightly instinctively sometimes that, when we are wrestling with apparently impossibly complicated subjects around which it is really, really testing to get a consensus or resolution, the easy option is always to say, 'Let's scrap this system and come up with another one; let's codify this; let's enshrine it in law; let's find an independent body under an independent chair who will do all of this really difficult work for us so we don't have to.'

I have real problems with that—real problems with that—because I think that the responsibility lies with us because we are directly accountable. And I think there was, as we know, significant public and political debate around the role of the judiciary in all of this—the prorogation case was the classic one that brought that to the surface. So, at the risk of being unhelpful, I think I'm some way off being persuaded that that is the right answer to the right problem. 

No, you've been very helpful in being clear on your position, so that's great. In those circumstances—and I'll finish with this, if I may, Chair—in which way can the Parliaments involved in this, rather than the Governments who are involved in exercising the convention, be assured that the Sewel convention is being observed in a way that is understandable?

And then, secondly, if nothing's going to change on this score, where the Parliaments can be of influence, of course, is on the devolution guidance notes—which we expect to see now, post Brexit, but we haven't seen yet—there will be a level of influence there that may resolve some of these problems.

Can I pass the second part of that question to Geth, on the guidance notes?

By all means.

But on the first—

The reassurance to Parliaments.

Yes. I'm not sure I can necessarily give that reassurance in a way that you can rely on, because I think it's so dependent on relationships, and it depends very much on how the next stages of EU exit legislation goes, in Westminster as well as here. Can I go further than that? I think there are, for me, measures in place that we can possibly improve on. JMC is a case in point. I don't think all of the participants in the JMC would necessarily say that it is a perfect forum, but it's one that has evolved and is evolving, and I think, to me, it seems—. In the couple that I've attended, it is quite interesting to see, for example—. Dare I raise the expression 'shared prosperity fund'? Discussions between the devolved nations around that in that forum have, I've found, been incredibly refreshing.

As far as guidance notes, can I just pass the ball to the right?

Yes, by all means.

Thank you, Secretary of State. The devolution guidance notes do need to be updated. They've been written at different times, different purposes, even in different decades, in some cases. We have been waiting for the dust to settle, if I can put it like that, on EU exit before beginning this work. The work hasn't yet started. It will need to start this year. In terms of a role for the Assembly, the devolution guidance—

All Parliaments, not just the Assembly.

For all Parliaments. The devolution guidance notes are, at the end of the day, guidance for UK Government civil servants in terms of how to work with devolution. We in the Wales Office have worked very closely with the Welsh Government to agree the last devolution guidance note, DGN 18. We expect to do the same again. But we haven't engaged Parliament, because it is internal guidance.

Parliaments like to scrutinise Governments, though. I'll finish on that. Thank you.

Dai Lloyd—sorry, Carwyn, please.

I'll come in after.

You've got your turn later. Dai Lloyd.

Thank you very much. On the appropriateness of use, I think that part of the conversation we've had in here this morning has been around dispute resolution and the flaws in it. So, when we identify a forum that has hitherto been, I suspect, reasonably effective in handling dispute resolution, I think we should recognise that. And as far as I'm aware, there isn't a particular concern, let alone a public concern, about the appropriateness of use. It is of some reassurance that there is at least something there that can help us in that process without necessarily compromising the democratic accountability that I referred to earlier. In terms of my personal involvement, I think I can sum that up by saying 'extremely limited'. Is that fair to say? [Laughter.] So far.

The Wales Office and the officers of the Secretary of State for Wales will always look at the progress in developing agreement. The two main parties should normally be the Welsh Government and the lead UK department. It would have been Cabinet Office for the EU withdrawal Act, for example. It would have been DEFRA for the WTO clause in the Agriculture Bill. But we are closely involved as it's developed, and we will be consulted and asked for our view.

I just think it better defines process. So, where there's a lack of clarity on a specific process, or where the two Governments see a process as working differently, the agreement provides an agreed way forward for that process to work.

Correct: they don't.

At the end of the day, these are agreements between two Governments. They define how the two Governments work together. So, I don't think, necessarily, the legislatures have to be involved. If the Assembly wished to be involved, I think it would be a matter between the Welsh Government and the Assembly to agree.

If I may jump in as well on that? We're frequently asked similar questions by backbenchers in Westminster on a whole range of parallel-sounding scenarios. I agree, by the way, as a fundamental principle, that you should have that opportunity in as many areas as you possibly can; just as, when I was a backbencher, it seemed to me entirely reasonable that we should. I'm less familiar with the processes here than I am in Westminster, but I'm assuming that you can get the Counsel General, and those who do make decisions, in front of this committee and shine a torch in his face too, from time to time. I imagine that's exactly what you do.

I'm always quite open about this. Scrutiny comes in many ways. I don't think it necessarily has to be on the floor of the Chamber or the House. It doesn't necessarily always have to be something that is votable on. It can come in all sorts of different—in our world, through other committee structures, both formal and otherwise. Actually, I've found, in my role on four different select committees, that that was probably as good a system of achieving accountability as anything. Particularly when we made the move, which I think was around 2010, from appointed to elected select committees. I think that the relevance and credibility of those committees, as well as their independence, went through the roof.

Now, not every change in the parliamentary procedure has necessarily been warmly greeted as a step forward, but I have to say, I think that really was some of the best work in Parliament and some of the most stringent scrutiny applied to UK Government. It's actually more often than not been through the select committee route, rather than through necessarily a debate on the floor of the House, which can be quite carefully choreographed and organised. So, I'm sympathetic; as a backbencher for most of my career, I'm very sympathetic with that.

Geth will deal with that. 

No, we don't. 

'Other priorities' is always an excuse we use when we can't think of another one. Do you want to add to that? 

The report should be published this month. I'm not aware of the specific reason for the delay. 

By the way, I should say, Chair, that the House of Lords also provides very good independent scrutiny of Government activity. I can recommend it. [Laughter.]

We do work very closely with the relevant committees there as well, and there's been a lot of co-operation on the constitutional issues. Carwyn Jones. 

Thank you, Chair. Could I just go back to Sewel? We all accept that Sewel is a convention that, in itself, is not justiciable, but, of course, as part of Sewel, the UK Government has declared for many years that it would not normally legislate in a devolved area without the consent of the devolved administrations. There is a question mark as to whether that might be justiciable if it can be brought under the realm of legitimate expectation, but we're not going to debate that today. But there is a point that arises here and that is: when is the decision taken that a situation is 'not normal'? And we have a definition, because we know that the then Secretary of State for Exiting the EU, Steven Barclay, said that the European Union (Withdrawal Agreement) Act 2020—the circumstances surrounding that Act were 'specific, singular and exceptional'; a narrow definition. The first question would be, from my perspective: can we have faith, then, that that will not apply to the offshoots of that Act, namely the Agriculture Bill and the fisheries Bill, that if the EU withdrawal Bill is truly so exceptional that Sewel is overridden, the process will not be followed with the Bills that arise out after the Act? 

I think this is a really interesting question because—and it's partly what Suzy Davies was alluding to as well. I think, in this particular instance, 'not normal' emerged as the theme as it became more obvious that the LCM wouldn't get through this place, and indeed through the Scottish Parliament. So, I don't think there was a particular plan, to describe it as such, in order to soften the inevitable blow. I think, as we got into the process, it became obvious that that's what the decision of you and your colleagues was going to be. Then, I think, we—. And there was a certain dialogue around this, by the way, with colleagues of yours, about how that was handled in order to keep Sewel intact and to make sure that the democratic mandate of UK Government was honoured at the same time as the democratic rights of this institution could play out as well, and that was quite a difficult balancing act. I don't think it was a case that, right at the beginning—well, I know it wasn't the case, right at the beginning—a decision being taken, 'Right, this is going to be too hot to handle and therefore we need to prejudge the outcome with some kind of expression that excuses us from what the consequences of that might be.' So, that was definitely not the case.

Now, your second question, though, about can we therefore give—tell me if I'm misquoting you here—some kind of assurance as to what's going to happen during the remaining process, I don't think I can, and I probably definitely shouldn't give you that assurance. However, the process, and whether, if you like, those bits of consequential legislation, if I can describe them as such, are covered by the same expectation, I think that's something I'd quite like to give a bit more thought to, and possibly report back to the committee. I think it is quite a key question and I don't want to give a false expectation or the opposite. 

Can I just add to that? Of course, the Sewel convention is written into statute. 'Not normally' is actually written into the legislation itself. If Government takes a decision that this is a 'not normal' situation, why does it then go through the process of actually seeking legislative consent?

I think my answer to that would be that it is entirely right and proper that we should seek to proceed with these things with the legislative consent of this Parliament, in a sense whether or not it is actually required by law. It would, as you rightly say, to some be possibly quite tempting to bypass this whole problem by saying, 'We don't need to do this, therefore we won't do it. So, why are we subjecting ourselves to this level of pain when there is no legal reason to do so?' That would have been quite a tempting route for some, not me, to go down. I think that we would have rightly been criticised by this place and by voters in Wales if we had taken what, as I said, could have been written up as being quite a cavalier attitude. I think it was proper that we went down that—. I actually think, given what the outcome of the referendum was, and given, to some extent, what the outcome of the general election was, it was regrettable that this institution took a view that arguably challenged a view that had been taken by voters. I think that was a shame, but I can understand why it was done. So, we will continue, whether or not we need to, to attempt to do this via the proper routes in the proper way, and we will use all the persuasion at our disposal to try and encourage your colleagues to support it.

Sorry, Carwyn, I intervened. 

No, not at all. I don't expect you to give an assurance along those lines today, clearly. But I do note, of course, what Stephen Barclay—not you, but Stephen Barclay—said, that the circumstances were 'specific, singular and exceptional'. A one-off—I précis, but a one-off. So, the concern that we would have is that the circumstances surrounding the withdrawal Bill itself were so unique, and that meant that on one particular occasion Sewel wasn't followed in the normal way. What I wouldn't want to see, personally, is that then being rolled out again for any of the other legislation, such as the fisheries Bill, such as the Trade Bill and so on. But we've explored that.

On the issue of deciding when something is 'not normal', if those words were included in an Executive power, then a Minister would be expected to consider what 'not normal' means, and if there was a judicial review, to demonstrate to the court that it had been taken into account when a decision was taken, and that the definition given was reasonable, which in legal terms—as we know, 'reasonableness' is a pretty high hurdle to overcome. What I'm having difficulty with here is that there was no process in place for deciding when something is not normal. There seems to be an organic process that has developed, and the problem with that, I think, is this—if it had been decided that this was not a normal situation, then why proceed with seeking the consent of the devolved institutions? You've answered that question by saying—I don't want to put words into your mouth, but that it was a matter of courtesy, perhaps. But the difficulty with that, isn't it, is that then the impression is given that if it was fine until that point, and at the point when the LCMs were not agreed to, that it was at that point that the situation became not normal, which implies that if a devolved Parliament refuses an LCM, then that gives rise to a situation where something is not normal? This is the problem. I'm struggling here with when a decision—. It can't just develop, surely, over time? But there has to become a point when a decision has to be taken as to when something is not normal and it has to bite on a set of circumstances or a circumstance, and all I can see, at the moment, is the rejection of the LCM, but that then gives rise to something being not normal. Sorry, it's a long question.

Yes, but also if it was predefined as not normal—[Inaudible.]—it doesn't necessarily preclude colleagues who do laws here giving it approval, does it, just because it's not normal? Are you encouraging me to reach a conclusion that because it's not normal you can't possibly agree to it? 

No. Leaving aside the decision itself, I may now be looking at it from a strictly legal perspective, but you wouldn't seek—. The process might be, for example, that if the UK Government took the view that the situation was not normal, it would simply inform the legislatures who took the view that the situation was not normal and, therefore, it was going to legislate and ask for views on that. But if, for example, the UK Government, as it did on this occasion, asks a devolved legislature to approve an LCM, at that point, the situation must be normal, because that is the normal process. It's then rejected, at which point the situation becomes not normal. So, the point I'm trying to make is that it appears that the rejection of an LCM, for any circumstances, gives rise to circumstances that are not normal. 

Okay—[Laughter.] You can have the last point, because we're not going to resolve Sewel today, but we'd like to—.

I'd quite like to explore this in greater detail, but possibly not in here, because also what might be considered to be normal by UK Government, in that it could be argued, I think perfectly well, that we were in very unusual circumstances—. In anybody's judgment, withdrawal from the EU was a unique and not normal set of circumstances, and, therefore, we were anticipating, maybe naively, but we were nonetheless anticipating, that the views of this institution would be in line with the 54 per cent of voters who'd elected to leave the European Union. And therefore, it could be argued that, irrespective of the strongly held, passionately held, views of Members, leaving the European Union was a decision that the people of Wales had taken. And therefore, what was being sought was entirely normal, and then it only became 'not normal' as a consequence of you and your colleagues deciding to possibly pursue a different course.

Yes, if I might just add there, just for the record, because we do need to move on, as I understand it, with the legislative consent motion, it was relating not to the primary objective of the legislation, but those peripheral areas, which were devolved matters, and it was there, which is why there is that concern about Sewel being overidden in relation to those.  

I absolutely accept that, but I think, in terms of public perception, it could have been seen as being a means—. Had we said, 'Okay, fine, well, we're going to have to stop the process now, because colleagues in Cardiff have decided that—'. Had we done that, it would have been seen as quite an effective way of actually frustrating Brexit, which, clearly, voters in Wales and the rest of the UK had decided was not the course of action that they wished to pursue. 

There was a genuine hope, at the far end of the M4, that the Assembly would give consent, precisely because we were seeking consent for specific provisions in the Bill that were within devolved competence, not for EU exit as a whole, not for a general policy. 

Carwyn, do you want to ask the questions about the democracy and rights commission? 

I have two questions left. The first one is quickly about the Dunlop commission. That's designed to look at union capability, as I understand, apart from the grammatical difficulties surrounding that, I suppose, about just what it means? What does it mean, union capability? What's the view in Government as to what that might mean?

I have absolutely no idea what union capability means. But I do know what I think was and is being sought by Dunlop, which fits neatly with the strengthening the union and levelling up agenda that we've heard much about from the Prime Minister, which is to try and ensure a way in which the nations can interact in a way that is economically positive, and which respects the nature of the devolved settlement. Everything I've seen and heard about, which is mainly through the press, I might add, has not conflicted with that view at all. So whether that expression 'capability' is what I would have chosen—possibly not. But I see Dunlop as being potentially positive for all of us. 

I think it's a question of: does the UK Government put the union at the centre of its decision making?

Okay, succinct questions. We've only got a few minutes left.

One of the questions I wanted to ask about Dunlop is what input you have had into it, but from the sounds of it, nobody's talked to you about it.

That's not completely right. It might be right as far as I'm concerned, because Dunlop was commissioned and largely completed before I took office. Geth might have another view.

Lord Dunlop did discuss his review with the Secretary of State's predecessor.

Final question: the Constitution, Democracy and Rights Commission, in my view grandly named, but it looks like an expression of annoyance with the courts more than anything else, and the fact that the courts have become involved, in the view of the UK Government, in areas where the courts should not have gone. The Constitution, Democracy and Rights Commission: now, if we look at the constitution, it's inevitable, I would argue, that it's bound to have to look at the constitution when it comes to devolution. Have we any idea, beyond what's already been published, which seems to be the Government's relationship with the civil service, with Parliament, with courts—all in Whitehall—do you anticipate that there'll be anything else that will form part of this?

I'm not concerned that this is going to fudge the relationship or indeed create a complicated judicial situation in terms of our relationship with the courts. Again, I'll say what I said earlier on—I'm not sure that's quite what you were saying, but I see this as fairly non-contentious and quite a dry area of constitutional activity. I don't think it's something that poses a threat to the relationship that we're trying to establish, or indeed the relationship we're trying to explain to voters as in the best interests of economic growth. I don't see it that way.

The final question. The terms of reference of the commission are in the Conservative Party manifesto, and it talks about the relationship between the Government, Parliament and the courts, it talks about the functioning of the royal prerogative—for some reason—and amongst other areas, it says that it's looking to review judicial review, if I can put it that way. There's nothing in there about the way that the UK constitution works; more, it would appear to me, in terms of trying to find a way to make Parliament more powerful.

I don't have a problem with Parliament being the final law-making institution, and it has been described as the highest court in the land for good reason. I think there has been some public concern about the fact that democratically taken decisions might be called into question by judicial review, and there will be that issue, to say, 'What's wrong with that? It's a check and a balance that's of democratic value.' One of the concerns I have about that is it's only open to people who can afford to go down that road, so it tends to favour the very wealthy rather than the very vulnerable. If that is injected into our democratic system, I think that is negative rather than positive. We have to be absolutely accountable, without fear or favour, to everybody, and I don't think, as I say, being able to rely on a sort of judicial interference at significant cost will actually enhance that important democratic right.

Thank you for that. It almost leads us into a debate on legal aid, but we'll move on. Can I just ask a very specific point? The justice commission, the Commission on Justice in Wales—Lord Thomas's commission, you will be aware of—will your office be responding, will you be responding formally to that?

The answer is 'yes'. It is, of course, in the gift of the Lord Chancellor, but he and I are in fairly regular discussion, as you might imagine, about what the UK Gov reaction might be.

And do you have any timescale?

No, but it's relatively soon; I think I can probably go that far.

I'm very wary we've come to the end of the time. Thank you very much for the detailed answers that you've been giving to a lot of very complex questions. There will be a transcript, of course, of the evidence that you've given today. Thank you for your attendance, and I hope you make your next commitments in time.

Thank you very much indeed. It's much appreciated. Thank you.

Thank you very much.

In accordance with Standing Order 17.42(vi), I now invite the committee to resolve to exclude the public for the remainder of the meeting. Do the Members agree?

Yes.

Okay. We'll move into private session, then.