National Assembly for Wales

Welcome to this afternoon's meeting of the Legislation, Justice and Constitution Committee. Just as a reminder, the meeting is being broadcast live on Senedd.tv and the Record of Proceedings will be published as usual. We're not expecting a fire alarm today, but if there is a fire alarm for Members present in the building and for staff, we exit via the normal fire exit and go to the safe gathering place. Could I just ask that Members ensure that all their mobile devices are switched to silent mode? We are operating through the mediums of Welsh and English today, and a sound operator is controlling the microphones, so you don't need to mute and unmute yourselves. 

And with that, we're going to move to the first substantive item on the agenda this afternoon, and it's the first of our witness evidence sessions on UK-EU governance. We'll also be carrying on with this next week as well, with two sessions. But this is our first, and we're delighted to welcome Professor Catherine Barnard of Cambridge University—lovely to see you here again on screen with us—and Professor Simon Usherwood of Open University.

And if you're happy, both of you, we'll go straight into a range of questions on this area that is of interest to us as a committee. If I could just open up with a very broad question on why we should be concerned about this. What's the importance now, in this post-Brexit landscape, of UK-EU governance? Catherine, perhaps I could start with you.

Thank you very much indeed. Thank you so much for the kind invitation. It's an honour and a privilege to be with you. On your first question about the importance of all of this, I would like to say, first of all, people voted for Brexit for a number of reasons, but in respect of Wales's influence in the wider European debate, it has been a loss, and it's been a loss because I think Wales managed to punch above its weight in respect of its membership of the various EU institutional bodies like the Committee of the Regions, and it was also able to form really quite close alliances with other small devolved administrations, states, nations, across the EU, in particular Catalunya and the Basque Country. Now, Brexit meant that membership of those bodies and all of the other working groups has gone, and so, therefore, Wales, in order to get its voice heard in Europe, let alone in Westminster, really does need to work quite hard to participate in what bodies there are. These bodies are nowhere near the robust institutions that came with EU membership, but, nevertheless, it's extremely important that Wales is there.

Thank you very much, and we'll get into some real detail of this in moment, but, Simon, is there anything you'd like to add to that?

Yes. First of all, thank you again for the invitation to speak with you. I think, just to pick up on Catherine's points, this matters now, I think, even more than it has in the last couple of years, because we're now at a point where it looks like the governance and institutional architecture of the relationship is starting to be accepted and settle down, and so we're now in a phase where there needs to be really active thought about how best to input Welsh priorities and preferences into that process. So, at a point where the London Government has maybe turned the page, or a page, I think there are lots of opportunities for the Senedd and for Wales more generally to be doing that. Particularly at this point, I think we do have some opportunities that I'm looking forward to discussing with you.

Excellent. Thank you, both, for those opening remarks, and that's a good place now to bring in Alun.

Thank you, and thank you for your time today. We've debated the overall institutional architecture on a number of occasions during the painful process of Brexit, and the trade and co-operation agreement and the structure that it's created have probably not had the attention, in many ways, in terms of the institutional structures, that a lot of the trade issues and some of the political issues around Northern Ireland have had, so we haven't really debated how they're working, and I think this is an opportunity to do so. The last time, Professor Barnard, you gave evidence to the committee, I think, was just after a lot of these matters had been agreed. So, can I ask both of you how you see these things evolving? Have the structures, the institutional structures, delivered in the way that you anticipated they would, and do you see the evolution of them in a way that is providing a greater opportunity for institutional interaction? Or do you think they're not working in a way that maximises potential?

Who would like to begin? Catherine. Go ahead.

Would you like me to start? Thank you very much indeed for that rather astute question. I think the starting point is to say that the institutional mechanism, particularly under the TCA, is very much of a kind that you find in other EU agreements with third countries—so, a range of political bodies, in the case of the TCA the partnership council, and then a number of much more specialised bodies. So, from that point of view, it really is business as usual, but business as usual in the context of a free trade agreement, which is essentially what we've got with the EU, not in terms of EU membership, which of course we've left.

The next thing I would say is that, during the period when relations between the UK Government and the EU were so difficult, particularly over Northern Ireland, the institutions did not function at all. Some of them virtually never met, and when they did meet it was brief and the agenda was pretty minimal. Clearly, the agreement over the Windsor framework has changed things significantly, and now there are much better levels of co-operation, and, dare I say it, it's extremely boring, and that is actually good news. It's good news because it's become technocratic not political, and that's what the EU is good at. Indeed, I think we should bask in gratitude that it has become boring and not political, because it does mean that things are more likely to get done without a lot of grandstanding—with deep respect to the Members here—of politicians who would like to get their voices heard, rather than necessarily getting things done at an operational level.

Then, the question is: what about Wales's voice in those institutions? The answer is that it's pretty much a mixed bag. In respect of the withdrawal agreement, as you know better than I, the Welsh Government doesn't attend the joint committee, which is the top-level political organisation, nor does it attend any of the specialised committees. I think this is a real problem for Wales, not least because the Windsor framework does have an impact on Welsh ports, on border measures, and so that is quite a significant omission. In respect of the TCA, things are a bit better because Wales does attend, but only as observers, and so this again is a way of reducing the Welsh voice. And particularly over the Windsor framework, there are going to be a lot of operational matters that need to get sorted out over the next few months—things that will directly affect Wales. And if Wales is not having a voice—and I don't think Wales had much of a voice over even the negotiations of the Windsor framework—I think this is going to cause you trouble down the line.

Simon, is there anything you'd like to add to that?

Yes, I'm not sure it's boring enough yet. I think the TCA, as much as we have got to this place post Windsor, where I think the mood music is more positive and you're seeing a proliferation of informal connections, I think the formal institutions still haven't actually picked up, notably, in their rhythm of meetings. So, typically, the sub-committees are meeting once a year, with a very few number of exceptions, and I've not seen any immediate signs that that pace has picked up. So, I think most of those institutions in the TCA still are very much in the perfunctory, 'Let's report on what's happened in the past year' kind of mode, rather than being big, substantive arenas for engaging in the boring, technocratic, governance kind of issues.

But I think Catherine again is right that this is a trade agreement and the institutions, with a number of possible exceptions, are not really purposed for more general kinds of interactions of the kind that might capture the breadth of interest that the UK as a whole, or Wales in particular, might have. So, I think we have to be a bit careful about assuming that Windsor—I'm sure we'll talk about this further—has transformed everything, because, again, the architecture is a particular kind of architecture, and the scope for representing Welsh or other sub-national interests from the UK, I think, are rather limited. So, for me, that's the key thing as we go along, that we shouldn't think about the TCA in isolation from the broad range of activities that are possible and that I think are necessary.

Thank you. I think we're all agreed on the importance of boredom and moving away from the circus that we've seen for too many years. I certainly agree with both of you on that. But there seems to be, sometimes, a vacuum, and that's less boring, if you like, and there seems to be, sometimes, that without a crisis driving the relationship, there's not much left, and that there isn't a balance between the legislator and the executive, because all the conversations we've had so far this afternoon have been about executive speaking to executive, without the legislators being involved. And it feels, sometimes, that you've got, at one level, some very specialist technical officials having conversations with other specialist technical officials about things that they've just got to get sorted, because they've just got to get it sorted, but without any real political intervention required on either side. But there's no policy work taking place. You would anticipate, at the beginning of a new relationship, if you like, a new structure, that there would be a debate and discussion about policy issues between the two institutions, or the two structures. And that seems to be missing at the moment, unless I've missed it. There doesn't seem to be that sort of ongoing agenda-driven activity, which seems to be—. It's all very much minutiae—there's a crisis, everybody turns up to the crisis, the crisis is resolved or not, and then we go back to minutiae; there's nothing in the middle. Is that a reasonable analysis?

Simon.

It's difficult, because it's at once a new relationship and an old relationship. So, typically, when we think about these kinds of instruments, it's about bringing two partners together that perhaps have been quite distant and there's a process of getting to know you, whereas, in this case, everyone knows each other very well, thanks to the UK's membership of the EU. So, the discovery side of things is not there in terms of underlying preferences. I think the problem has been, as much as anything else, that the Government in London has not been clear about what it wants from the relationship, which makes it very hard for the EU to start having that discussion. I think the view from Commission officials and from the Parliament has been, 'Once the UK can decide what it's trying to do here, then we can have some discussions about doing that.' And I think it's only really been recently that we've started to come out of that very hot phase of article 50, the withdrawal process in the narrow sense, to get to a point now where we're not arguing about basic structures, and then start thinking about where policy comes.

On those crises that you mentioned, I think we still do have some crises, but they're coming in more manageable and conventional sizes. Things like car batteries and rules of origin are crises of a kind, certainly if you are working in the sector, but it's not nearly of the structural and systemic nature that we had over the Northern Ireland protocol. So, I think you're right to say that there isn't that strategising. We're not having head-to-head meetings of the British Prime Minister and the Presidents of the Commission in a way that would provide a structural and substantial space. They have contacts on the side of other multilateral meetings, but that's not quite the same. So, you're right to say that we lack a direction, which makes it then hard to engage in that aspect of the relationship.

And Catherine, I just wonder, extending Alun's point, whether you see that this is something that could evolve, whether it's simply that we're coming out of some white-water times of getting through that, and this could evolve into something that is more proactive, is more policy focused, is more setting agendas together.

On the point about being boring, generally boring is good as far as the EU is concerned. Even when we were a member state of the EU, there was an awful lot of boring, if you remember all the discussions about comitology committees and so forth. Boring was good, and we're probably boring academics, which is why we probably like it.

On the policy work, I agree, it's probably too early, but I also think ambition should be set pretty low, because this is only a free trade agreement, and it's a pretty narrow free trade agreement at that. If you're talking about policy issues over, for example, trade facilitation, well, it's certainly envisaged in the TCA that there is greater scope for discussion about how to facilitate goods crossing a frontier. If you're talking about policy work over, for example, recognition of professional qualifications, again, there's scope for that in the TCA. But we're not talking really big, high-level policy. I think we're going to come to this a bit later on, but in terms of the TCA review, again, I think it's quite important to set ambitions pretty low there. It's not going to be a rewriting of the treaty.

If I could just say one other thing about legislature to legislature, in answer to your question. The only legislature-to-legislature format, if you can call it that, is, of course, the PPA—the parliamentary partnership assembly—and the earliest meetings of that were characterised by a fair degree of grandstanding, if I may be so blunt. But the most recent PPA was, I think, a bit better. I think what's been helpful there is that, while you in Wales have observer status on the PPA, the working groups, at least, do give you a more effective role. Again, this has got to be kept in context. If you're using the Committee of the Regions or the European Parliament as a yardstick, clearly what's happening in the PPA falls well short. But if you look at it through the other end of the telescope to see what goes on in other equivalents—between EU and Canada and the like—then this is better than nothing.

That's really interesting. Are you okay, Alun?

'Better than nothing' sounds like a euphemism for a lot around Brexit. In terms of that legislature-to-legislature role, as parliamentarians you expect to have a grip on certain things. Sitting in the legislature you understand you're not in the executive and there are certain things that you just can't do and won't do and shouldn't do and the rest of it. But you do expect to have an overview, an oversight of where we are and where policy is going and where Government is going. Certainly, my experience is there's far less transparency since Brexit. The UK Government operates in secret. It doesn't even tell its own people what it's seeking to do. It has legislated, of course, to remove parliamentary oversight from some of its trade work, which is an extraordinary thing for any Government to do. But it means that there's less parliamentary scrutiny, less parliamentary oversight than we would anticipate in other areas of policy, and certainly far less democratic oversight than there was when we were members of the EU, when the Council of Ministers was broadcast and we turned up and the rest of it. I don't know if either of you have any sort of view on this. How do we extend and develop and deepen the legislature-to-legislature relationship that can provide for greater oversight and greater scrutiny? Because at the moment as a parliamentarian I feel completely disenfranchised from all the discussion and debate that's taking place. We were having a conversation just before you joined us about the Committee of the Regions. I sit on the contact group there, and we read papers at each other but we don't actually do anything, and I think that's a really, really important missing link here: there's nothing that's happening between meetings.

Who would like to come in on that? Go on, Catherine.

Let me just start. I think the absence of transparency is absolutely shocking, and I agree with you on that. I do try and keep an eye on what's going on, and in preparation for giving evidence today, I went around trying to work out what has been decided at some of these various committees. At times, the agendas even themselves are skeletal, and it's very difficult to find at all, unless it's linked to what's actually been happening.

The first thing, in answer to your extremely pertinent question, is to say transparency is required, and, at the moment, some of it feels pretty much like the transparency of a black box. Therefore, then you have to say, 'Well, what structures do we need to put in place to try and find out what is in fact going on?' I think there are two levels of that: what's going on at the EU level, because it's still important to know what's going on at the EU level in order to see what effect quite a lot of the legislation will have extraterritoriality, i.e. legislation that will affect manufacturers and service providers in the UK, but also what's going on under the umbrella of the TCA.

In respect of the former, what's going on at EU level, of course, there's much less tracking going on than when we were a member state; that's clearly going to have to change with the Windsor framework, because the Windsor framework will require continued respect of the 300 or so laws and their dynamic updates. So, there needs to be careful tracking there. It's a role for UK Mission to the European Union; it's also a role for the relevant Government departments, and it's also a role for voluntary organisations like UK in a Changing Europe, which Simon and I are both associated with.

But in respect of the tracking about what's going on under the TCA and withdrawal agreement umbrella, as far as I can tell, there's very little public awareness, let alone careful tracking about what's going on, and it's ironic that you have to go on to the European Commission website to try and find out what's going on in some of these committees; it's very difficult to find anything about it at all on the UK Parliament website.

Pred, you wanted to come in on this as well.

Yes, just to follow up on that.

What, practically, can we do? What, practically, can the Welsh Government do, or as a legislature here who's effectively observing rather than really getting into the nitty-gritty? Are there any practical aspects that we can actually do rather than just say it's a bad thing and we can't see any detail?

I think more work needs to be done with UKMis, the UK mission in Brussels. The irony is, of course, that the Government have seen this as an opportunity to reduce the size of UKMis, or UKRep as it was, rather than to increase it, and the Norwegian experience has shown that being a non-member state, you have to work harder than a member state, and therefore you need more people. I think part of the problem is there's a capacity issue. There's a capacity issue in UKMis, there's a capacity issue in the Westminster departments, and obviously there's a capacity issue within your own devolved Government, because clearly you haven't got the resource to be tracking all of this, so you've got to essentially contract it out. One way you might think about trying to find out more is to ask organisations like UK in a Changing Europe or the Institute for Government to do some of the work for you to see if they can do some tracking of what's actually happening. But also, you need to use whatever tools you've got to try and get UKMis to speak to you more regularly.

I wonder if Simon's got any other thoughts on that, Chair.

Just to add to that, I think it's about sharing the load as well. Remember, you've got other devolved institutions in the UK that are not all in the same situation but that have allied concerns and issues, and so again, working with Edinburgh and with Belfast might be part of that co-ordination about sharing, tracking and identifying issues that are likely to be pertinent, with due respect, to your differing remits and preferences.

I think also, just thinking about trying to build links to Brussels as well, having a relationship with the European Parliament itself would also be helpful in terms of picking up issues. And then it's also worth maybe looking towards some member-state Governments in the EU, who might be doing relevant work that will help you to identify issues. I think here, the obvious example would be the Irish Government in Dublin. They will be doing their regular work as a member-state Parliament, and I think you've got some scope there to pick up on issues that might be of relevance particularly to Wales, given your position.

So, I think there is work out there; the problem, as Catherine says, is co-ordination and making sure that things aren't falling through the gaps. I think it's quite constructive that in the Windsor framework you've got this commitment from the Commission and from the London Government to engage stakeholders more systematically. Potentially, if that works, if there's a way to try and leverage London to do a similar arrangement for Wales, that might be part of the package and the overall approach towards doing this, rather than, as you say, simply finding yourself at the receiving end of something that you didn't expect at all.

Thanks, Pred. We're going to pick up on some of the issues that you might've raised already, and dive a bit deeper into them as we go along, and we might go back and forth a little bit. James, over to you.

Diolch, Cadeirydd. We've talked a bit about the Windsor framework, and you said that that coming into place has made things more boring and probably helped, actually, iron out some of the issues between the UK Government and the Commission, but what wider impact do you think the Windsor framework has had on UK–EU relations, including whether it has impacted on governance arrangements? How do you think the Windsor framework has actually enabled better communications with the devolved administrations here in Wales and also in Holyrood as well?

I would start by saying 'thank you' for the question. I think the political significance of the Windsor framework is huge. Simon can talk about that more as a political scientist, but it's absolutely clear that the fact that there was trust enough to go ahead with the Windsor framework, the fact that it had been carefully choreographed and delivered, and the fact it was actually a highly sophisticated instrument—remember, it's not just one document, but it's a multilevel package, which involves some legally and some non-legally binding measures—and the very fact that the EU has acted very quickly on the back of the Windsor framework to introduce legislative measures, which it had already committed itself to do, is all an extremely positive sign. It's also not be underestimated just the personal chemistry between the current Prime Minister and Ursula von der Leyen, and the very fact that the King was involved as well. All of this sent a very positive message that this is a very different complexion of Prime Minister, and composition of his party, than had been the case under his predecessors. So, I think all of that is extremely positive.

It's also acted, at least in theory, to unblock all sorts of other dimensions of the relationship, including much greater general engagement in a co-operative way between the UK and the EU. So from that point of view I don't think the Windsor framework can be underestimated. The problem comes in the operation of the Windsor framework. There are a lot of practical problems for all sorts of producers over the simple thing of changing the labelling. 'Not for sale in the EU' is causing a real headache for large and, particularly, small manufacturers, who have to redesign all of their labels to get that logo on, and it's a very short timescale to get it done by October.

The other disappointment, I think, is that, particularly people working in my sector, in the university sector, there was a real hope that this would unblock the issues around the Horizon programme; it seemed to be the great prize that would come if the UK Government got an agreement over Northern Ireland. And what we've seen is that, actually, the initial excitement has waned somewhat. This is a major issue for universities such as mine in Cambridge, but also universities in Wales that have benefited hugely from collaboration with colleagues right across Europe. And that takes me back actually to the question that you, Chair, kindly posed right at the beginning, which is what has been the effect of the post-Brexit arrangements for Wales. And one of them is, I think, this loss of influence, but also loss of linkages outside the framework of the United Kingdom, and Horizon would have done quite a lot to actually start the process of rebuilding. Now, all is not dead, we don't know what's going to happen yet, but, certainly, it hasn't been delivered in the way that everyone thought it might have been post Windsor.

Simon.

It's unusual—I'm usually more optimistic than Catherine. I'm not quite so sure how much this impacts. You asked specifically about governance. In terms of governance protocols, it's actually a very limited change indeed, in formal terms. We've got the introduction of the Stormont brake, but, as you know, that brake is still very much a system whereby the Northern Ireland Assembly can request the UK Government to ask for a pause on the introduction of new legislation, with numerous, numerous conditions and requirements and hurdles. Apart from that, in governance terms, the system is the system. And I think the political point and perspective for me was that this was about the UK finding a way to step back from previous rhetoric about trying to overturn or disapply all or part of the protocol, and play by the rules that are generally accepted in treaty obligations.

So, in that sense, it was a clearing of the air, a stepping back from the brink of the Northern Ireland Protocol Bill and similar pieces of legislation, but it wasn't really a full reset. Yes, there was lots of positive music, but it was clear, I think, even as it was being agreed, that this wasn't enough. We've talked a lot about the importance of trust in international relations, but trust is a necessary but not a sufficient condition. And as we're seeing with Horizon, as Catherine says, that's potentially really important for key sectors in the economy, and in societal connections, but those negotiations have got hung up on completely understandable questions around financing.

I think we're going to see the same kind of issue, and this comes back to my previous point, that the UK Government, I think, hasn't really settled on what it's trying to do here. And I think the level of investment that Rishi Sunak gave to securing the Windsor agreement, it's telling that he hasn't put the same level of investment and commitment into other areas of European policy, such as Horizon, or the other various issues that we might discuss. And again, I think that reflects understandable preoccupation with cost-benefit analysis ahead of a general election that will be coming in the next year. So, it's not to say that what he has done was wrong, or that Windsor was pointless, because I think we needed to have that, but, at best, it takes us back to where we probably should have been at the beginning of 2020, and there's not really anything in that Windsor agreement that wasn't, I think, potentially accessible at that point. But the politics in London I think stopped that happening, so we've had to do some work to regain that ground, and so, we're starting again, and then we're getting back into the normal set of issues around finances, around political capital that will always be present no matter who's in power on either side of the relationship.

Thank you. 

I wouldn't say I agree with everything that's just been said, but I think it is a positive, following the Windsor framework that, actually, the division that was being stoked around Brexit is out of the news a lot more now. There are issues to be addressed, but it's nice that, actually, the Government in Westminster are taking a more grown-up approach now, I think, to addressing these problems, not so much the rhetoric but sorting issues out so that we can actually move on with implementing the will of the British people when they voted to leave the EU, rather than trying to stoke division every 10 minutes about who is a remainer or a leaver. But, one of the last questions I have is: do you have a view on whether the UK should pursue changes to the institutional framework during the TCA review in 2025? 

I have a view, if I may, but whether the view is relevant is less obvious, because I think what's really striking is if you look at the language of the review clause—and, actually, there are several review clauses—it's a review of the implementation of the TCA, not a review of the TCA, and that's rather significant. And indeed, Maroš Šefčovič, the vice-president of the EU, talked publicly about this last week, and he was absolutely adamant that this is not about a rewriting of the TCA, but it's more of a light-touch review. Now, there may be some expectation management going on there. Stefan Fuehring, who spoke to Peter Foster just after Maroš Šefčovič spoke, was even more pessimistic about any changes. But, of course, a lot can happen between now and 2025 to 2026, not least that there might be a new Government in the UK that might help to set a slightly different agenda. But, according to Maroš Šefčovič last week, he was clear that the Commission hasn't even started thinking about what might go into the review. Now, I'm not sure that's quite true—I suspect that some background work has been going on, and that's what I've heard—but the formal position is that nothing's being done. 

In answer to your question, if there was a magic wand, obviously one of the most significant institutional changes would be to help you, which is to make sure that the devolveds have a formal role in some of these committees, at least where devolved matters are involved, or at least where there is a geographic issue that affects you, particularly over, for example, Welsh ports. But, as we also know, the complexion of the current Government is not that interested in devolved issues. And so, if the Conservatives are re-elected in 2024, then the chances of having any significant amendments to the institutional provisions in the TCA I think are rather minimal.   

I would add to that. The first basic point is that the Commission, when they have talked about it, have said that there won't be in 2025 but in 2026, so at the end of five full years of implementation. So, even the timetable I think is going to be longer than we think. But very much the message from the EU side is that this is not about renegotiation or about side agreements—it's about making sure that the system works as it stands, and their view also is, 'We still have a lot of the TCA that still has to actually be put into effect, so before we start changing it, we should know how it works in practice.' 

I think Catherine's point is a good one about changing representation, but I think, potentially, that's the kind of thing that could be done internally in the UK without having a formal renegotiation of the TCA text. If the Government in London accepted regional representation or sub-national representation in relevant committees, then that would be within their remit. I don't know that there's any specific bar on that. I think, actually, it would be potentially less likely to be done if you tried to do it through renegotiating the treaty, because then certain member states might well start to be concerned about 'Do we have to have matching things for other third country agreements? What does this say about our sub-national representation?' I'm thinking particularly about Spain here, who are very alive to precedents and implications that other people don't necessarily think are there. 

So, we shouldn't be seeing the 2026 review as a great moment of sitting down and starting all over again. I think it is much more likely to be that light-touch moment. It depends a bit on where London is at that point, regardless of who's in power—on whether they want to have a wider dialogue. And remember, the structure of the TCA is designed specifically to be flexible—that participation in other programmes, the ability to slot in new policy areas underneath the overarching capstone architecture I think means that we’re unlikely to see anyone wanting to reinvent that particular wheel at this stage. But if it helps, we have one of these reviews every five years, so we can have the discussion again in 2031.

Okay, that's fascinating. I'm really conscious of time here. We might well run out of time, but it does seem, from your answers to James, that the review as currently in front of us is fairly limited in its scope for fundamental changes, but another one will be along shortly in another five years. But I want to be a bit even-handed here, because if a Government of any perspective came in at a UK level that had a mind to go to those more fundamental changes about the TCA review, it would be within their gift to advocate for that; a Government of any political colour, quite frankly, could start that discussion going. It's just that, at the moment, it seems, to pick up Alun's point, we're still tidying stuff up rather than anything more fundamental. Don't give me a long answer on this, because I realise I've just opened a massive discussion there.

There's nothing—. If there's a clear need to change something or to have a discussion now, to take a random point in time, I think the Commission is open to having that discussion now. It's not that we have to fit into a predetermined cycle of revisions and reviews—of which, as you say, there are many—it's that there will be a picking up of issues. That's what I hear also from Foreign Office officials as well—they won't wait for the next thing that’s in the calendar, they would go there and then to discuss it. And you see that, I think, on various topics already now. 

Brilliant, thank you. Sorry, go on, Catherine. 

If I could just add to that, the whole structure of the TCA is essentially like a giant sandwich, with the governance structure across the top that we've been talking about, the remedies, the dispute resolution mechanism at the bottom, and then in between is the meat of the sandwich, and it was absolutely envisaged when the TCA was drafted that you could have supplementary agreements. So there is nothing to stop the two sides from negotiating supplementary agreements. And furthermore, it's also worth remembering that the partnership council, under article 7, has quite broad powers to make changes to the TCA as well. So there are ways forward, but of course, from the EU’s point of view, they don’t want to make significant concessions; they will need concessions from the UK in return, particularly if they think that whoever gets into power in 2024 might only have a relatively short time in office and the country has not moved in the direction of accepting a closer relationship with the EU. 

Fascinating. Alun, I'm going to return to, if we have time, issues around the PPA and so on. But do you want to delve a bit further into government?

Yes, really to take on and continue the conversation. The governance doesn't really feel very comfortable to me where I'm sitting at the moment, because, as we discussed earlier this afternoon, we don't have the oversight, we don't have the overview, we don't have access to information, we don't have any of the things that we would expect to have as parliamentarians overseeing the role of governments that are governing. So, to both of you, in many ways, how would you see the changes that we've described—? What changes do you believe would improve the architecture? What changes would improve the role of parliamentarians, largely in London as well as Cardiff or Edinburgh? And how do you see—? I understand that changes can be made, through the structures, and I'm not asking a process question about how would you see changes taking place, but what is the substance, do you think, the substance of change required that could deliver greater parliamentary oversight from Cardiff, Edinburgh and London, if that question makes sense?

I think one key thing from my perspective would be about having a clear focus within Parliament about where European issues are considered, because I think one of the things that we've seen, certainly with Westminster, is that it's everyone's responsibility and, therefore, it becomes no-one's responsibility. I think having a dedicated committee that is across the cross-cutting issues—the way in which things join up and have impacts—is one way in which you could try to do that.

Now, I appreciate, again, that there are capacity issues about how you run that, not least because the remit, by definition, will be very broad, but something along those lines, I think, is a real issue. We've seen it in the Foreign Office, where they're having to build a network across Whitehall to try to have sight of all of the issues on the civil service side, and, again, bringing in extra capacity to manage that as well as building up the interpersonal relationships.

So, I think part of the problem is that we've lost the focus that we used to have during membership, where we had clear lines of parliamentary committees and of central co-ordinating institutions. I think if you could have some kind of return to that, and, to pick up the previous comment that Norway shows the need, actually, to increase your capacity locally and in Brussels, those are the kinds of things that you could do that would really help to improve the oversight and, by extension, the opportunity to inform and influence what was going on, rather than reading about it in a circular from the Official Journal of the European Union.

Simon, can I come back to you on that, please? Whitehall hasn't got to grips with devolution yet. You know, 25 years of democracy in Wales, Scotland and Northern Ireland, and Whitehall still is demonstrably perplexed by the whole thing. How realistic is it that Whitehall and Westminster are able to get to grips with the sorts of issues that you're describing around the European Union, because what the European Union gave us was a structure within which we talk with each other? The structure has been taken away; it hasn't been replaced with anything realistic that provides the same pressure to talk, to meet, to discuss and to reach agreements. Surely, there needs to be something that is more profound in London to force cultural change, and to force parliamentarians and civil servants to actually engage in these things in a more realistic way, because perhaps it's just my age, but I'm incredibly cynical of London's ability to do anything except manage London.  

And even then—.

Yes.

Actually, I broadly agree with you. I think there is an internal problem—i.e. Westminster and the devolveds—and then you've got the supranational problem of devolveds, Westminster and Brussels. You're absolutely right: gone are the formal structures—Committee of the Regions, the European Economic and Social Committee—where you'd had influence, and they've been replaced by the civil society forum and the domestic advisory groups, which are good to have, but, of course, they are not in any way a replica of what there was before.

I would return to the point to emphasise that, of course, the trade and co-operation agreement is a technical agreement of very limited scope and ambition, and, therefore, there is a pushback argument that says, in fact, there is not a significant role for the legislature. The legislature, essentially, gave the green light for this very technocratic agreement when the legislature passed the European Union (Withdrawal Agreement) Act 2020 and then the European Union (Future Relationship) Act 2020 in a great hurry, and, therefore, delegated a huge amount of power to the Executive. But, I think your fundamental point is that devolution isn't working very well on a day-to-day basis in the engagement between Westminster and Cardiff, and Westminster and Edinburgh, and, therefore, by definition it's not going to work at the supranational level either.

Pred.

Can I just come in on that, because it's a follow-on question? It all depends on personalities, doesn't it, rather than structures, because they've taken the structure away and, therefore, you're based on inter-ministerial relationships, and when those fall apart the whole system falls apart. So, I suppose, the question would be then: how do you encourage that culture change? The same as what Alun was saying, it's to actually enshrine some of that stuff that actually makes sure those relationships happen, and regardless of the personalities involved, that they are actually discussing with each other and making some headway at least.

I agree. I think you've lost the water cooler moments, haven't you, because you're not actually in the key rooms? And so that goes back to the really basic point: you just need a bigger budget for people to be travelling a lot to Brussels and drinking quite a lot of coffee. And this is not intended as a flip remark; this is exactly what the Norwegian experience is, that they spend an awful lot of time wining and dining, or more realistically tea and coffee-ing all sorts of Commission officials and others from other embassies, just to find out what's going on and to try to point out some of the consequences of the decisions that are being taken.

Simon.

Briefly, it's worth adding that this is a problem that will only get worse, because at the moment you still have a large cohort of civil servants in the UK who have the experience of that kind of soft connection, of the insider perspective of the institutions, and, as time goes on, particularly in the next 10 years, you're going to see a significant tailing off of that expertise, which is going to make it all the more difficult to build it back up to the level that Catherine, I think rightly, says it needs to be at. You need to situate the relationship broadly and then the TCA is part of that, but it is not the primary vehicle that you need to be building. So, partly that's about working with London and encouraging them to do the things you need them to do, but also it's, I think, about not leaving it to them, and making sure that you have your own networks. So, thinking about Wales, it has plenty of connections across the EU, and working those kinds of angles potentially opens up the lines of communication, so that you get things from different places. But, again, capacity to co-ordinate that and to internalise it in a way that allows you to take effective action is going to be an ongoing challenge.

So, what are the Norwegians doing well then, because you're extolling the virtues of the Norwegian model? Is it that they have a capacity to drink a lot of coffee or—? [Laughter.]

And more. 

Yes. Are they using formal and informal—? Are there any formal places that they engage or is it all predominantly on an informal basis?

Of course, there are structures within the European Economic Area agreement that do exist, and, of course, Norway is the largest player in the EEA. But they don't have a say in the legislative process for adopting legislation, although they are consulted at an earlier stage. Of course, because they are part of the single market, they do have that particular interest, whereas we will be on the receiving end of ever larger amounts of single market legislation, and this is, I think, a point where the penny hasn't dropped.

So, to give you some examples: the digital services Act, the digital markets Act, both of which are really important pieces of legislation that have extra-territorial effect and will affect businesses in the UK. Likewise, the corporate sustainability and due diligence directive. It's not been adopted yet, but this requires companies over a certain size to monitor every element of their supply chain to check for human rights and labour law and environmental abuses. Again, this will affect British business because of the supply chain dimension. So, that's why we need to have a very active presence in Brussels and a very effective lobby. And that's why the US and China all have a very large lobbying capacity there, because they know they're affected by this legislation in the same way that we will be.

Okay. Thanks.

Thanks, Pred. Thank you very much. We're hurtling towards the last five minutes there, but I just want to return to something you touched on earlier, which was the role of the PPA, which, as you remarked, has changed significantly over the last couple of meetings there, and there have been efforts to engage the devolved legislatures within it. At the most recent one, the devolved legislatures were able to speak in a set-piece moment from the main plenary session. As you mentioned, they have involvement in workshops, but they are observers, so the meaningful engagement in terms of the agenda session, the topics, they are an observer, which is a constrained status. I just wondered whether you have a view: is that appropriate? Should it be strengthened? Because one of the things that there is certainly pushback on is that if you say that Scotland or Wales and Northern Ireland and so on can have some enhanced form of, if not delegates, then something that is like an observer status plus, then it opens it up for others in the regions of the European community to say, 'Well, we've also got a stake in that debate on that issue. We'd like to be there as Spain or Malta or whoever.' Have you got a view on the PPA, how it's evolved and where it should go? Catherine, or Simon first. Go ahead, Simon.

Again, this is a standard model for a PPA, so it's the same kind of model that we get for other third country agreements that the EU has. So, a representative sample of the European Parliament, a representative sample of the national Parliaments or Parliaments involved. In that sense, it's sticking to a model, and, again, it's that question of precedent that I think might well be a sticking point.

I think the other point is, again, whilst it has become more useful, it still remains an advisory body, so it's ability to actually shape debate, I think, will always be limited whilst it has that position within the TCA architecture. So, it's not determinant. Again, I think it's more about keeping lines open, and it's one of those places where you have the opportunity to think about things a bit more in the round. Certainly from your perspective, being able to have more representation would be positive, but, in practical terms, the impact of that, I'm not sure how much there is and whether that's the most high-priority thing to be trying for, given what's likely to be a pushback, firstly from Westminster, but also, potentially, from the EU side for the reasons you mention.

Okay, thank you. Catherine.

I would just add to that, I'm looking at the text of article 11 of the TCA, and I think it was clearly a conscious decision to say that the composition is European Parliament and Parliament of the United Kingdom, so Westminster. So, again, it was very much a centralised model. Then the more interesting question, perhaps, is: if you accept what the text of article 11 says at face value that it's got to be Members of Parliament from Westminster, then what about a greater involvement or some greater balancing of Welsh MPs, Scottish MPs and Northern Irish MPs, who can help to make the case for the devolveds? So, the question for you is: to what extent is there co-operation between those representatives and what goes on in the Senedd and, obviously, in Edinburgh?

Very interesting. Look, time is going to defeat us. We're into the last minute. Colleagues, would you mind, I think we're going to have to write to you, if you'd both be happy, on a couple of areas that we'd like to go into in more depth. But can I finish with one question? I just want a quick response from you. This Senedd now will run until June 2026, when we have the next election. So, where do you think we, this Senedd, this committee, can have the greatest impact on the agenda that we've just been talking about? Where would you direct us? Who'd like to go first on this? This is a catch-all question at the end. What should we do? Simon.

On the basis of what we've discussed, I think where you can make the most useful for you impact would be about working with other devolved institutions on pushing Westminster for more representation and involvement in the process. So, that's not about changing the formal structures of the TCA, per se, but about having pressure on the relevant actors in London to be engaging with you and to be keeping those lines of communication open, to allow you to better shape what goes on.

Very good. Thank you, Simon. Catherine.

I think you need to brush up your travel on the Eurostar, get out to Brussels and really put some effort into making a difference by meeting the relevant people from the European Parliament, who I think are sympathetic and are helpful to Wales, but also the European Commission, if they will see you. Of course, this is one of the benefits of the Windsor framework, that Commission doors are now open in a way they absolutely weren't during the dark period before that. And go and to talk to the Norwegians and see what they do.

That's very good. Two very good pieces of advice there. Thank you so much. I'm sorry we've run out of time. Sorry, colleagues, as well. But we will write to you if we've got some additional detail that we'd like to hear your views on. But thank you so much for your evidence; it really has been insightful. This is still a moving feast in front of us, but your pointers as well at the end about where we could best focus our efforts, I think, are very well made. So, thank you very much. We'll send you as normal the transcript just to check for accuracy, and, when we do write to you, if there are any other thoughts you have that we don't encapsulate in our questions that you think of, please send them to us. We'd really welcome that. 

And hope to see shortly. And we are, by the way, heading out to Brussels shortly ourselves as a committee. [Laughter.] Thank you for that.

Enjoy your moules et frites. [Laughter.]

We will, thank you.

Thank you very much.

Thank you.

Thank you. So, colleagues, we'll take a very short break now, just to allow our panellists to leave, and for our officials to swap over for the next part of business.

Croeso nôl—welcome back to this session this afternoon. Having just concluded the evidence session with Professor Catherine Barnard and Professor Simon Usherwood, we're moving now on to the next item on our agenda, which is our consideration of statutory instruments. We have one to consider today under item No. 3. It's an affirmative resolution instrument, SL(6)362, the Equality Act 2010 (Relevant Welsh Authorities) (Amendment) Regulations 2023. We have a draft report there in front of us. These regulations amend Part 2 of Schedule 19 to the Equality Act 2010. Schedule 19 sets out the public authorities that are subject to the public sector equality duty under section 149 of the 2010 Act, and the regulations replace the Higher Education Funding Council for Wales with the new Commission for Tertiary Education and Research, following the passing of the relevant Act there, the Tertiary Education and Research (Wales) Act 2022. The regulations will come into force on 4 September 2023, but, until section 23 of the 2022 Act comes into force, reference to the Commission for Tertiary Education and Research in the 2010 Act will be read as including the Higher Education Funding Council for Wales. So, that's the context of this particular SI, but our lawyers have identified three technical and two merits reporting points. Kate.

Thank you. The first technical point identifies inconsistencies between the Welsh and English texts in the headnote to the draft regulations, and the other two technical points relate to potentially defective drafting. The two merits points are seeking further information from Welsh Government in relation to the date that the regulations will come into force and the description of the public sector equality duty in the explanatory memorandum, and we're waiting for Welsh Government's response.

Thank you, Kate. So, pending that response from Welsh Government, happy to agree those points? We are. Thank you very much. Thank you, Kate.

So, we move on to item No. 4, where we have notifications and correspondence under the inter-institutional relations agreement. We have several items here, the first of which is item 4.1, a written statement from the Minister for Finance and Local Government in respect of the Common Procurement Vocabulary (Amendment) Regulations 2023. The purpose of this amendment is to update two common procurement vocabulary codes that use outdated language that is incompatible with UK-wide equality legislation. And the Minister and the Welsh Government state that there is no—. Sorry, the Minister states that there is no divergence between the Welsh Government and the UK Government on the policy for the correction, and therefore believes that making separate SIs in Wales and England would lead to duplication and unnecessary complication of the statute book. So, the Welsh Government considers it appropriate that the UK Government legislates on their behalf in this instance. 

Then we have item 4.2. We have correspondence from the First Minister in respect of the thirty-ninth British-Irish Council summit, which took place last week. He writes informing us that the theme of the summit related to housing and energy policy, and the First Minister says he will also write to us to share a communiqué following the summit, and will update the Senedd with a written statement. 

And then item 4.3. We have correspondence from the Minister for Finance and Local Government in respect of the Finance: Interministerial Standing Committee, which takes place in Cardiff later this week, on 22 June. And the Minister informs us that the focus of the meeting will be on energy security, with additional items on public spending pressures, economic outlook, NHS funding, and an update on EU replacement funding. And the Minister also states that she has requested a bilateral meeting with the Chief Secretary to the Treasury, to discuss, amongst other things, Wales-specific spending pressures and climate change resilience. And the Minister has undertaken to report back to us on the outcome of the meeting. If colleagues are happy with those—and, again, as per normal, we can always return to these in private session—

—we'll turn, then, to item No. 5, the papers to note. Item 5.1. We have correspondence from the Minister for Climate Change in respect of the Packaging Waste (Data Collection and Reporting) (Wales) Regulations 2023. And the Minister informs us that the regulations fall under the scope of the resources and waste common framework. The regulations have now been laid before the Senedd, and they'll be considered at our meeting on 3 July. 

Then item 5.2. We have correspondence from the Minister for Social Justice and the Chief Whip in respect of the Welsh Government's response to our report on the Welsh Government's legislative consent memorandum on the Protection from Sex-based Harassment in Public Bill. And this was circulated to Members on e-mail ahead of last Tuesday's legislative consent debate. 

Item 5.3, then. We have correspondence with the Parliamentary Under-Secretary of State, Lord Bellamy KC. And Members will recall that Lord Bellamy gave evidence to us on 5 December, and, following that, we've corresponded with him on a number of issues. So, Lord Bellamy responds to our latest letter of 11 April, in which we shared the evidence we had received from stakeholders, which focused on points including access to justice, increasing trust in the justice system, the so-called 'jagged edge', as well as highlighting the importance of continued engagement between the Ministry of Justice and Welsh Government and the Treasury. Members will have noted that, on data in particular, which is one of our focuses, Lord Bellamy states that consideration is being given to whether additional data can be collected and disaggregated, and he's seeking to fill in any gaps in data collection and disaggregation that could aid the effective administration of justice in Wales, and I think we'd welcome that. 

So, in noting that—and, again, we can return to this in our discussion in private session afterwards—. Unless any colleagues have anything you want to raise. Alun. 

There's one thing that is missing from this. My memory is that, at this visit, he was going to rush off to see the civil justice centre in Cardiff. 

Indeed. 

And the Counsel General has raised this—the state of the building and facilities—with us in his evidence as well. So, since both sides have raised it as an issue, it may be useful for us to return to that to find out what the Ministry of Justice is going to do to take it forward. 

It's a very good idea, and I think we touched on this in previous correspondence to Lord Bellamy as well. And I can't recall offhand whether we had a detailed response. So, I think we can return to that in private session and see if we need to follow it up again. Pred.

And based on the point before about data, it's keeping our eye on that, because it's so important that we get disaggregated data, and that we don't necessarily just wait for Welsh Government to ask for the data to be produced, but that it is actually par for the course that we get that information shared. 

Yes, absolutely. Okay. I think, then, we'll continue that discussion in private session, because I think there might be several points to pick up from what is quite a detailed letter. 

So, item 6. We are at that point where—. If I can ask colleagues if they're happy, under Standing Order 17.42, to resolve to exclude the public for the remainder of the meeting so that we can now move into private session, where we have quite a bit of business to do. Are you happy?

Yes. 

We are. We'll move into private session.