Constitution, Europe, External Affairs and Culture Committee

Meeting date: Thursday, March 2, 2023

Official Report 638KB pdf

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Devolution Post-EU

Item 2 is to begin to take evidence on our new inquiry, which is focused on how devolution is changing post-European Union and how devolution should evolve to respond to the challenges and opportunities of the new constitutional landscape.

We are joined virtually by Huw Irranca-Davies MS, chair of the Legislation, Justice and Constitution Committee, Senedd Cymru; William Wragg MP, chair of the Public Administration and Constitutional Affairs Committee, House of Commons; and Baroness Drake CBE, chair of the Constitution Committee, House of Lords. We welcome you all this morning and wish a belated happy St David’s day to our Welsh colleagues who are here today.

I will begin with an opening question, and then we will move to questions from committee members. The committee’s view is that there are fundamental concerns that need to be addressed in relation to how devolution works outside the EU. In particular, we have highlighted tensions between open trade and regulatory divergence within the UK internal market, tensions with the devolution settlement and tensions in the balance of power between executive and legislature in each of the four Parliaments across the United Kingdom. What are your views on the conventions and rules that may need to evolve to meet those challenges, particularly to ensure parliamentary scrutiny of decisions?

I invite Huw Irranca-Davies to open.

Thank you very much, convener. It is a delight to take part in the inquiry along with colleagues from other committees.

I think that we would agree with your analysis that there is a tension, but it can be a positive tension. We are trying to work through some of the difficulties that have been caused by the exit from the EU, and that affects a range of issues in the devolution settlement, such as the balance between the powers of devolved Governments and those of the UK Government. We have issues to work on—I will not call them concerns, although they are, in that we have reflected them in our various reports. They include the effective operation of intergovernmental relations, issues around legislative consent, how divergence will work, how effective common frameworks are and the impact of aspects such as the UK internal market on the operation of devolution post leaving the EU.

The Retained EU Law (Revocation and Reform) Bill, which is progressing, we understand, causes us great concerns. I am sure that we will return to that, but it is not simply the unknown aspects of its scope and detail but the speed at which it is being taken through. In Wales, we have particular concerns about that bill.

We have observed that the overall law-making framework post-EU has seen an increased use of concurrent powers—Henry VIII powers—and ministers taking on delegated powers. In effect, that diminishes the role of scrutiny by the Parliaments of the UK, and that has coincided with the greater complexity of making law in the post-EU framework.

All of those are immense challenges. They are not insurmountable, but it requires two things: good will between partners in the UK Governments and legislatures, and formal mechanisms to make it work. It is a challenging environment at the moment.

Thank you. I invite Baroness Drake to comment.

Good morning, everyone. Thank you very much for inviting me.

There were three elements to your question: the strains on the devolution arrangements between Government and the devolved Administrations; the scrutiny issue; and trade. On the first one, the Constitution Committee agrees with you that, certainly post-Brexit, one has started to see more strains in that relationship. We have certainly been tracking that and looking at it more. One of the issues that come up is the use of secondary legislation more and more in areas of devolved competence or legislation. We have made some strong observations on that point, saying that it is constitutionally dubious to use secondary legislation more and more to intervene in or change devolved legislation or devolved settlements and that there should be tougher rules around that so that, where secondary legislation is used, consent should still be sought. Also, where secondary legislation has Henry VIII powers, so that it can change devolved legislation, maybe there is a case for putting the requirement to consult or seek legislative consent in statutory form. We have said quite a bit about that, and we are monitoring it. It is not only an issue in the context of the relationships between Westminster and the devolved legislatures and Governments; we are seeing a general problem of Governments using secondary legislation more and more and taking scrutiny away. We see that as a UK problem.

The second issue is scrutiny. As a general principle, scrutiny is good but, because of the tensions that we have seen post-Brexit, we in the Lords have been asking for more scrutiny on the whole area of relationships and use of powers by the UK Government and Parliament. We have asked whether, in Lords procedures, at the introduction of each bill to the house, there could be memorandums from the Government detailing the issues around the relationship, the need to consult and the need for consent to what is happening. We have also asked—it has been agreed in principle but not operationalised—whether we can tag every stage of a bill as it goes through the house, on committee days as well, to get an update on what is happening around seeking consent for any devolved issues.

The third area is trade. Obviously, that is a reserved matter, but we said that, because of the interests of all the nations in trade issues, there should be engagement and involvement in the negotiations and discussions on trade. However, we recognise that it is a reserved matter.

I invite Mr Wragg to comment.

Thank you very much for your kind invitation. It is nice to see you again, albeit virtually, after my committee’s visit to the Scottish Parliament earlier this year. I am wearing the Scottish Parliament tie, to ingratiate myself with my audience. That said, I will give a slightly different view from some of the things that we have we heard so far.

I always think to myself when I hear the phrase “devolution settlement” that it does not look particularly settled to me. There is always an inherent tension. A lot of the issues that we have already started to discuss this morning began before we left the European Union. They have remained unaddressed largely since 1998. That is because of the absence of effective and needful intergovernmental relationships and, indeed, interparliamentary relationships. In a wider UK context, with England representing 80 per cent of the UK population, the absence of England from that devolution framework is striking.

On the balance of power between the legislature and the executive, as a confirmed back bencher in the House of Commons, I absolutely share the concern about the need for parliamentary scrutiny. I am often suspicious of the increasing drive to use secondary legislation and the introduction of framework bills, if I can turn to that, as primary legislation to allow ministers down the line to do X, Y and Z. I therefore share that concern.

My overriding sense is that we are never going to take politics out of politics, but we can hold divergent views on constitutional matters. I am a unionist—it will not surprise anyone to hear that, I hope—but that does not mean that it is not possible to have decent intergovernmental and interparliamentary relations. It might, however, be possible to nip in the bud much earlier a lot of—how can I put it?—the more celebrated differences.

Thank you. I will move to questions from members.

I will go first to Mr Irranca-Davies. The committee has been looking at the impact of the changing understanding of the Sewel convention, if I can put it as diplomatically as that, on our situation in Scotland. It is something on which the Welsh Government has commented. Will you say something about how the situation in Wales has developed, from the Senedd’s point of view, particularly in the light of, I understand, the seven instances in which the UK has legislated without the Senedd’s consent?

That is correct. We have significant concerns about what has often been referred to by members of my committee, by other Senedd members and even by ministers as the dysfunction of the Sewel convention. That is a common theme that is seen not only by us but by other committees, including some in the Lords and the Commons.

In the sixth Senedd, we have seen a massive increase in the number of UK bills since the EU exit, including those that go greatly into devolved areas. Since 2016, the UK Parliament has legislated massively in areas of devolved competence, but it has also legislated without the Senedd’s consent in seven bills, as you said, including legislation that implemented the UK’s departure from the EU and legislation on post-Brexit arrangements. The Welsh Government recommends that the Senedd withhold consent from all or part of five bills that are currently being considered. There is another tranche coming down the line, including the Retained EU Law (Revocation and Reform) Bill. Our committee tends to run the rule over all the bills that come down to Wales. We express a view on consent only in rare circumstances. Normally, we provide very factual analysis and highlight issues for the Senedd to consider, but occasionally we have expressed a view on consent when we have seen it as being of great significance. Yes, we see more of this, unfortunately.

By the way, I take William Wragg’s point, as a fellow committee chair, that there will always be political differences and that there will be some bills in which there will be almost a choice to be made, if you like, to lay down the law on where the power lies, but if you look over the history of devolution, you will see that that has been a rare challenge, and often it has resulted in a challenge to the Supreme Court. We are now seeing consent being bypassed as almost a matter of fact, and that is a worry.

I will return on that point, if I may. Again, comparing notes, I note that some of the debate in this committee has been about what the Sewel convention means and what “not normally” means. Is the Sewel convention still viewed in the Senedd as being in the realm of real things?

There is now a high degree of scepticism in the Senedd and in Wales about whether the Sewel convention is functioning properly. How can it be, when “not normally” is becoming a regular means of bypassing the consent of the devolved legislatures? The not normal is becoming almost normal.

09:15  

I should have said to the panel that, if you want to come in on any of the questions that have been directed to someone else, you can indicate that by putting an R in the chat function. I am not sure what the R means; it might mean raise a hand. Our clerks will be monitoring that and will bring you in as best they can.

Welcome, panel. I have a question for the entire panel, but I will start with Huw Irranca-Davies, if that is okay. I am interested in the role that you see for committees in your respective institutions in addressing some of the challenges and issues with regard to devolution in a post-EU environment. What, if anything, can be done to strengthen the role of committees in that regard?

From our perspective in Wales, one of the interesting facets of the post-Brexit landscape is that it has significantly ramped up interparliamentary engagement. That engagement had already been there, partly because of the transition towards Brexit. From chatting with my predecessor on the committee, my perception is that that engagement has gone even further. It is taking place on a bilateral basis of correspondence and engagement between committees and officials to flag up issues of joint concern between devolved Parliaments but also with UK parliamentary committees and chairs of committees.

We also have a real belief that there is now a need to strengthen the mechanisms of interparliamentary work on a collective basis. We have the interparliamentary forum, within which there is great scope to develop more formal mechanisms and to formalise the way we scrutinise, beyond coming together periodically to discuss broad issues of concern or opportunity. Although intergovernmental mechanisms are being strengthened—the mechanism is being put in place for new intergovernmental machinery—we are yet to see them fully tested and fully bedded in.

We are pushing, with success, the Welsh Government to be more transparent to committees and to the Senedd in how it relays information back to us on what is being discussed in the intergovernmental committees. We think that there is a higher strategic level where the parliamentary committees and chairs should be able to come together on a UK basis, not least on some of the issues that impact on devolved competences and fall squarely within them but also on issues such as the role of Parliaments in expressing the view from Wales, Scotland and Northern Ireland in trade agreements and so on—recognising that they are a retained function. There is something here about bringing together a much more formal structure at a UK level. I am genuinely excited about the potential for that, but we need to move now to match what is being done at an intergovernmental level.

As a follow-up, how might capacity for those increased functions affect your ability to fully scrutinise?

That is a very good question. The committee has expressed concerns about our capacity here in Wales, both in Welsh Government terms and in terms of parliamentary scrutiny. I cannot evidence this in a quantitative way but, for one reason or another, our clear perception has been that our capacity in Wales is stretched and does not match the capacity in the Government in Whitehall or in the parliamentary structures in Westminster. We have very good people, but we are small in quanta. We need to develop the quantum of expertise and the level of expertise in our civil service and Government but also in our committee research and our ability to analyse.

We wonder about that, and it is something to talk about, not just in a Welsh context. We can have that discussion and argument and we can push for more resource, because we are worried that, otherwise, we will be stretched too thin and things can be missed, particularly with things such as the REUL bill coming forward but also generally with the number of legislative consent motions that we are now dealing with in relation to England and Wales legislation.

We also need to have a discussion, perhaps, at a higher UK level about how, across the UK, we make sure that we have sufficient capacity in Government and, from my perspective, in our scrutiny functions. It is a concern of ours, because we can see it being stretched.

Thank you. That is helpful.

I will move to William Wragg. What are your reflections on the post-EU environment and how your committee is handling that?

Discussions such as this are always a bit of a busman’s holiday, because we are keen enthusiasts of debating constitutional matters. That is—dare I say it?—not necessarily an enthusiasm that is shared by all our colleagues in our respective legislatures. There is an extent to which we are taking a horse to water but are not necessarily able to make it drink. I have found that to be particularly the case in interrogations of the common frameworks.

There is certainly a key role for the interparliamentary forum. I am looking forward to playing host to it at Westminster in a few weeks. As Huw Irranca-Davies mentioned, the transparency of the intergovernmental meeting is important. My committee was able to do very little scrutiny previously because we did not even manage to get hold of agendas beforehand; we had to poach them from the Welsh Government website in order to be informed of what might be discussed. That said, the Welsh Government supplied us with a communiqué at the end of the last one. Welcome as it was, it did not say a great deal—perhaps in the best tradition of communiqués.

It is important that individual members of our respective Parliaments take an interest in order to show that there is a real appetite for scrutiny. We can go on demanding more and more scrutiny, but I dare say that unless we do it in a meaningful and targeted way, it can be absolutely pointless.

I am obviously conscious that the House of Lords is not an elected body and that it has to recognise the primacy of the House of Commons. Where we can contribute in this area, however, is through the scrutiny that we undertake and our making issues and tensions transparent. More and more, the House of Lords is focused on that across its committees. I speak only for the Constitution Committee, but we also have the Common Frameworks Scrutiny Committee and the International Agreements Committee, which will pick up on issues in the relationships between the nations. That is where we can add value.

For example, in our recent report on the Retained EU Law (Revocation and Reform) Bill, we have drawn out the issue of the common frameworks not being undermined through the approach that the Government wants to take on retained EU law. Our International Agreements Committee has been pushing the Government and seeking replies on a range of issues that are of importance to the nations. We are doing more scrutiny and are keen to put those issues on the agenda.

I take William Wragg’s point about intergovernmental relations. In a sense, one does not want to keep rushing to the courts to resolve issues—first, because that is not my usual constitutional style and, secondly, because it does not necessarily lead to the best outcomes in the longer term. How intergovernmental relationships work in trying to mitigate tension is important. We share the concerns that William expressed, in terms of the Parliament, about the level of transparency that is being provided about how the intergovernmental relationships work and where the opportunity to question and scrutinise is. One example is how effective the dispute resolution process in intergovernmental relationships is. That is quite an important area that needs more transparency and more discussion.

As has been mentioned, we also have the interparliamentary forum. There are lots of opportunities. It is a question of how we lever them sufficiently to deal with the problems that we know we face.

I have a simple point to add to Baroness Drake’s contribution. Some things have rubbed up against each other in a way that did not have to happen. Ours and, I suspect, other committees set great store by the potential of the common frameworks procedures: they have great potential. The frameworks have started to come forward. There were issues to do with the slight variation in quality among the common frameworks, which are being picked up by the Lords’ committee.

Let me give you one example. I mentioned the Retained EU Law (Revocation and Reform) Bill. When we look at how dispute procedures and the common frameworks work when, for whatever reason, an accelerated piece of law is coming through, there is a real issue about the sheer extent of retained EU law that is covered by the bill and the ability of Governments to make full use of dispute avoidance, resolution processes, intergovernmental machinery and all that, as well as the common frameworks. Sometimes, in the immediate post-Brexit few years, we have been in the strange situation whereby really good mechanisms that are being put in place are being challenged to work effectively because other things are tramping across them.

Good morning. I start by asking whether you think that the Sewel convention should be more binding in its effect. The committee has heard evidence that there might be practical ways to achieve that. My colleague mentioned the definition of the word “normally” in the Scotland Act 1998, for example. There could be greater certainty regarding the conditions under which Westminster could override refusal of consent. There could be a body to consider or report on a justification for overriding, or there could be a requirement for affirmative support in both the House of Commons and the House of Lords. Those are among the ideas that have been put to us.

I wonder whether that is a matter to which you feel greater attention needs to be paid. What are your thoughts on those types of reforms and are you thinking about others?

Yes, is the very straightforward answer. The Sewel convention as it exists currently is out of date because of the extent to which what is not normal is becoming normal. There is a feeling of impotence in some respects. The Sewel convention was always based to a large extent on the fact that “not normal” is genuinely not normal, but there was an understanding between Governments and institutions on how it would work. When what is not normal becomes more routine, the devolved institutions—especially the devolved Parliaments—wonder what the debate is and why, when they say that they do not consent and produce evidence for why there should not be consent, that is just bypassed. In effect, scrutiny is transparent but totally ineffectual. We would like something more formal to be put in place.

09:30  

House of Lords committees have made some interesting proposals, and interesting proposals have been made in, for example, the Brown report—I have forgotten its full name—whereby there would be not only transparency but some sort of challenge. The second house would say that not consenting cannot just be trampled over, and that notice must be taken and there must be a pause—a significant pause. We would like that because, at the moment, we feel slightly impotent.

Just to be clear, are you saying, from the Welsh perspective, that it would be useful to codify that in legislation—I presume through the Wales Act 2017?

It could be through the 2017 act or another measure that could come forward, but formalising and codifying that is the game that we need to be in. The situation has gone beyond old-fashioned agreements, understandings and conventions—they are not working.

Okay. Thank you very much.

I turn to Baroness Drake. Please can you give a House of Lords perspective.

Thank you. I will pick up two issues. First, to develop Huw’s point about “not normally”, I note that we have been saying that it should be exceptional for the United Kingdom Government to proceed without consent and that it should make it clear what the circumstances are, what has made them exceptional and why it has not been possible to get consent.

However, on controlling that through accountability and scrutiny, we have proposed not going beyond the existing constitutional settlement but—I can speak only for the Lords—about providing accountability through introducing disciplines whereby ministers have to report on what effort is being made, what is happening at each stage and the reasons why. That should be the subject of more scrutiny through formal procedural requirements—perhaps through “The Cabinet Manual” and other documents that underpin how things operate—to have greater discipline around what “not normally” means in practice and when things can be moved towards being “exceptional”.

There is also the matter of secondary legislation. We are concerned to ensure that there is not a perceived undermining of the Sewel convention by too readily resorting to secondary legislation. Maybe a requirement to consult, under the Sewel convention, when there is a Henry VIII power in secondary legislation should be considered.

Do you see any advantage to structural changes in Westminster committees? Are the committees set up to allow scrutiny of overriding of the Sewel convention? Would innovation be needed there?

I will be careful what I say, because this is a personal view. The Lords committee structure probably could do that; we do not have the demands on our time that MPs have on theirs. I think that our committee could do that, but we would need procedures and processes for handling business in the House of Lords to make it clear that, at every stage of every bill, we would have visibility of the issue, if there is an issue.

Thank you.

Finally, can I get a perspective from Mr Wragg?

Speaking of demands on time, it is no demand on my time to be here this morning. In fact, I am missing out on the parliamentary away day; I am not sure whether I am grateful to the committee or not.

Leaving that aside, on “not normally”, one has to question whether we have been living in normal political times. I contend that we have not. Whatever one’s view on the outcome of the referendum on the EU, it has been seismic, and its institutional implications are seismic. We must look at it in that context. We also have to understand the context of the Sewel convention when it was debated in the House of Lords during the passage of the Scotland Bill, in that what followed was Labour Administrations in all the constituent Administrations of the UK—disregarding Northern Ireland, of course. Therefore, I suspect that practical working relationships were, on the whole, better than they might have been had the Administrations been headed by different political parties.

My personal view—I cannot speak for my committee—is that I favour a political rather than a legal resolution to the problem. Wiser heads than mine have suggested various means of the dispute resolution. All such things ultimately come down to this question: if the dispute cannot be resolved, who resolves it? That remains the unanswered question.

I suppose that our institutions need to be resilient in relation to the political circumstances in which they find themselves.

I have one other question before I come back to the convener. I think that it was Rhodri Morgan who talked about the importance of devolution as a laboratory for policy innovation. I am interested to hear your perspectives on that. Is the current state of affairs in the UK having a chilling effect on policy innovation, given the ability of the UK Government to override particular policy innovations, or are things in a healthy state? I ask Huw Irranca-Davies for the Welsh perspective.

It would be unfair to say that the current situation is having a chilling effect, because devolved Governments and legislatures have confidence now. We, in Wales, after 21 or 22 years of devolution and—[Inaudible.]—Government of Wales legislation, have the confidence now to properly engage with the UK Government and to challenge it when we think that challenge is due. However—this is a big “however”—if you look at the legislation that we have recently considered on single-use plastics and agriculture, you will see that, although there is not a chilling effect, there are real tensions between what is, we believe, firmly within devolved competences and what could be impacted by, for example, the United Kingdom Internal Market Act 2020. So, it is not that there is a chilling effect, although the situation is being tested.

If a UK Government minister were here, they might say, “Yes—we think that this goes right up to the edge”, because in Wales we are taking a slightly different approach to the approach of the UK Government on single-use plastics. We are probably also, in the Agriculture (Wales) Bill, taking an approach that is different from the approach England.

I have talked about the complexity of post-EU law. It tests some things, including how UKIMA works. Does it have a chilling effect? No—because a chilling effect would suggest that devolved Governments and Parliaments are more cautious about what they put forward. What it means is that we are on new ground. The complexity of post-EU legislation means that we will bang up against each other more regularly until we see where the boundaries lie and where the devolved Governments and legislatures can push at the boundaries a little in order to establish fully where their competences lie. Single-use plastics is a great example.

Absolutely. I take from that that we are in testing times, but there is no chilling effect. What are the perspectives of Mr Wragg and Baroness Drake on that?

I am taken by the laboratory metaphor. If you will forgive an ad lib comment from me: it depends what you put in the test tube in the laboratory and whether it sedates everything else. What needs to be explored further is whether differences—there can be differences—are reconcilable within the constitutional framework of the United Kingdom. That is, ultimately, the conundrum that is posed to us. How we resolve that without the “laboratory”, as Mr Morgan described it, is probably—[Inaudible.]

Again, to develop from Huw’s thoughts, I think that the Lords, or certainly the Constitution Committee, is sort of saying that devolution can provide, in terms of intergovernmental structures, an opportunity for policy experimentation and shared learning, as opposed to there being a command-and-control situation. That is the case if a positive attitude is applied?if parties come to the table with a desire to work on the problems, to look at what works best, to consider what innovative or best practice could be brought to bear and to begin to experiment and look at what would be better.

We have not dwelled too much on intergovernmental relations, but it is an area on which the Constitution Committee thinks that, with more transparency and discussion, and more open sharing of experiences, we might be able to come through with innovative structures that would not only deal with tensions in the post-Brexit era but would facilitate better practices and better progress.

Thank you for those perspectives.

Mr Wragg, I do not want to put words in your mouth, but I think that you said that recent things that have happened with the Sewel convention have been in response to the unusual political times that we are living through. I do not disagree that we are living through unusual political times. However, do you have any reaction to, or comment on, the fact that, in this Parliament, one of our concerns is that the changes in respect of the Sewel convention are but some of the changes that are happening around us in what many of us see as being a radically different UK Government view of the powers of the Scottish Parliament?

This is all happening in the context of the United Kingdom Internal Market Act 2020 and the REUL bill, with implications for devolved law on an industrial scale. The context is also that, for the first time since the days of Queen Anne, I think, UK ministers have intercepted a bill before it got to the royal desk. Do you see that as part of a slightly bigger context than concerns about the Sewel convention.

I think that that is linked to political tensions and, frankly, to political deficits. Therefore, the question is whether seeing the matter through the prism of an undertaking that has been given by the House of Lords in—[Inaudible.]—is any longer a—[Inaudible.]—way of viewing it. Is the convention a strain or is it completely redundant? That, I think, is open to debate.

In all this, as I argued about section 5, the debate is, as I say, constitutional. The particular issue that I mentioned is therefore a matter for the Supreme Court. Obviously, there are political events connected to the UK’s leaving the European Union. Nonetheless, I contend that, despite the differences in political views, the matter is highly constitutional.

09:45  

Good morning to the panel. It is very nice to see some familiar faces.

My question is also about the Sewel convention. The clear view of the committee is that

“the Sewel Convention is under strain”.

However, it is also important to reflect on the fact that there are still many instances of the Scottish Parliament agreeing to consent. There are also specific instances of its consenting to what might be called Brexit or post-Brexit legislation on fisheries and farming.

To what extent is this about political differences, particularly as a result of the political pressures of Brexit? Are we simply seeing tensions arising over something that has essentially been incubated since the start of devolution, but is only now manifesting itself?

I will start with Huw Irranca-Davies, because I am particularly interested in his experience of consenting or not consenting and where that is happening.

Your point about political differences is valid. As a former UK minister, I recognise that, from time to time, there will be reasons why Governments choose to take a different ground, and that will be reflected in the development of legislation and the way in which it is taken through. We all have to accept that.

Your ancillary point was about whether there is something specific going on with the post-EU operation of government. There is, as there are bills coming through at pace because of the post-Brexit agenda. The Government wants to do things that it has the entitlement to do, but that knocks very hard against not only devolved competences but our ability to scrutinise effectively what is coming through.

From a Welsh perspective—a devolved perspective—legislation is very often dealt with at a gallop and without consultation between Governments. To go back to Baroness Drake’s point, good intergovernmental working can sometimes resolve some issues before they happen. When legislation is being dealt with at a gallop and there has not been that involvement, that similarly impairs our ability to do effective scrutiny.

We have already talked about the Sewel convention. I refer members to the work that my predecessor committee presented to the House of Commons Procedure Committee. It considered aspects of the Sewel convention. I think that tensions have probably been exacerbated since then.

One point that I want to raise in particular is that it is not simply a question of relationships between Governments. We cannot just—[Inaudible.] There have to be formal procedures. However, in the post-EU situation, we have more complexity. From a Welsh perspective, we are doing things more at a distance, sometimes through UK Parliament-instigated legislation that is linked to the post-EU matters. Alternatively, there is an increasing propensity to do England and Wales legislation and, by the very fact of that, we end up with less scrutiny in Wales and, very often, less time to do scrutiny. That is an issue not just for us as scrutineers; it is an issue for members of the public and stakeholders in Wales. They get less grip and less opportunity to input into that.

When the devolution settlement was made, it was done in one political environment, but political environments evolve and change. That is not unique to the devolution settlement. I can think of other aspects of our constitution and—[Inaudible.]—that have caused stress and strife over the past few years. That is why behaviours and—[Inaudible.]—and transparency and scrutiny are so important generally in moving things forward politically and constitutionally.

A big issue that put stress on the devolution settlement was that, when that settlement was first concluded, secondary legislation was used largely to implement EU laws and directives but, once Brexit happened and there was going to be a huge repatriation of powers from the EU, secondary legislation started to be used to do many more things than might have been anticipated at the point of the devolution settlement.

We are in the different situation of not being in the EU, and we have to operate in that environment. Some of the strains should—I hope—ease as part of the repatriation is embedded and settled, although some of that will continue to be controversial. That is a major source of the stress, because it cuts right across areas that people thought were settled. Leaving the EU has brought a whole new dynamic.

The House of Lords Constitution Committee is not proposing—not that it could anyway—a rewrite of the constitutional settlement on devolution, but it is saying that that change brings with it a need to raise the bar on transparency, scrutiny and how intergovernmental working and the integrity around seeking consent operate.

You will have gauged from my answers so far that I probably agree with the premise of the question in that, although there may be structural issues, quite a lot of what we have been discussing is to do with the nature of politics; the nature of having different mandates in different parts of the United Kingdom perhaps; a debate over reserved matters; and the necessity for legislation, given the repatriation of a raft of powers and areas of influence following our departure from the European Union. All of that has created an inevitable tension.

However, much of the rancour that may have come through into more concrete views could have been avoided by proper engagement based on the transparency to which Baroness Drake alluded and, above all, the behaviours of ministers. I have to wonder whether some of the disputes that we have seen could have been avoided. I am speaking across the board, of course; I am not looking to blame only UK ministers. Some of the issues that we have seen boil over may have been more easily settled had there been—[Inaudible.]—engagement earlier in processes.

Thank you for those answers.

I have a similar question, although it is more about intergovernmental relations. Obviously, a new system of IGR—the three-tiered approach—has been set up. Can anything be learned about problem solving from the recent agreement on the Northern Ireland protocol? I appreciate that that is a very different situation, which involves the UK and the EU negotiating, albeit on Northern Ireland. Does anyone on the panel have reflections on the negotiations, the ability of personalities to drive an agreement, and whether that is assisted by a mechanism of intergovernmental relations?

It is in the nature of politics and of moving forward that they will be heavily influenced by behaviours and cultures. You have to believe that you need to move on a consensual basis to solve what are fundamental issues for the country. If you do not have that in your armoury, it gets difficult. You need a cultural context that says, “This is a problem for the UK. It is a problem for a nation within the UK, but that means it is still a UK problem, because every nation matters. We have to find an agreed way forward.”

In a sense, that is very much the responsibility of Parliament as well, but it is really important. If you can create a culture of constructive desire to move forward on a consensual basis on things that seriously matter, that will be really important. Politics is politics, and people disagreeing is healthy politics and healthy democracy, but there are moments in time when you know that, for the wellbeing of the four nations and the country, you have to try to proceed on a more constructive and consensual basis.

I absolutely agree that, when intergovernmental relations are working well, that leads to far better proposals for legislation and far better scrutiny. We have seen good examples of that. The Northern Ireland protocol was mentioned—that may be one example. Even in the existing situation in Wales and the UK, bearing in mind that we are trying to make the UK as a whole function very effectively and to have collaboration and co-operation, when the approach works well, it can work really well. That has to be at the official level and about relationships between ministers, but it cannot simply be on that understanding; the approach also has to be fully transparent. Increasing transparency is the thing that we need to drive collectively. What is being discussed? When is it being discussed? What are the outcomes of those discussions, and how can we, as scrutineers, engage with it? There are good examples of how that can work.

However, when it goes wrong, a couple of significant problems are presented to us. When we have poor intergovernmental working—we have seen examples of where it has been impaired—the Welsh Government is not in a position to answer the questions that we put with sufficient timeliness and clarity and to the satisfaction of the Senedd. The additional issue is that, when intergovernmental relations are not good, timely and effective, we are more likely to end up with provisions that will be of concern to the Welsh Government and the Senedd when we get to scrutiny.

The simple answer is that good intergovernmental working really helps to mitigate some of the problems that we currently see. The question is: how do we make that common, rather than some of it being good and some of it being poor?

My observations of recent negotiations regarding Northern Ireland are that they are an outcome of hard work, respect and trust. Quite often, consensus in politics is not the most exciting thing, but it is probably one of the most necessary things. We live in an age of big man—or, indeed, big woman—politics, in which everything seems to have to be entirely binary in arguments, and there have to be winners and losers. I am afraid that, in the context of devolution, that will not be a winning formula. There probably are lessons to be learned from the recent negotiations regarding Northern Ireland.

Thank you for coming. Mr Cameron trumped me with his final question: I had been going to ask whether any lessons had been learned from the recent engagement between the UK Parliament and Europe about Northern Ireland.

10:00  

I would like to bring the discussion back to one of the points that Mr Irranca-Davies made about how we can ensure that we get the right scrutiny in a timely manner. All Parliaments have different timetables, and as Mr Golden highlighted in his question, each Parliament has different resources. Therefore, I am interested to hear about how we in the devolved Parliaments can ensure that we are able to feed in properly, in a reasonable manner, and that, in doing so, we are shown respect by the UK Government.

From listening to the panel’s responses, I have been struck by the fact that the newer Parliaments in the United Kingdom are pushing for change, but there is a feeling that Westminster might be less willing for change to happen. I might be wrong in that perception, but I am interested to know the panel’s thoughts on how we get over that. Mr Irranca-Davies, can I start with you?

We are not alone when it comes to transparency and better mechanisms. As committees, we have to push, and not only in devolved institutions—we must harness the collaboration of the House of Lords and House of Commons committees that are also pushing on the issues of transparency, timeliness and good intergovernmental working. We need to keep pushing on that, and we need to see where the balance lies between informality and what the First Minister of Wales referred to in a different context as that “regular, reliable rhythm” of meetings and engagement at a ministerial level as well as official level. We also need to really push that out into the public domain so that our stakeholders, as well as our committees and our legislatures, can see it.

We must also play a role in pushing on some of the trickier issues that we have been discussing this morning, including the way that the United Kingdom Internal Market Act 2020 impacts on devolved legislatures and even—funnily enough—the Northern Ireland protocol. We are waiting to see how the recent negotiations on that work their way through. We need to push so that we get full transparency on the devolved aspects of such arrangements or of trade agreements.

I raise the example of Northern Ireland because our committee took an interest in the subject of the protocol because of the impacts on, for example, Welsh ports, Holyhead and trade through Wales. The Welsh Government requested that it attend the joint committee to discuss that, and we would have asked it to tell us what it wanted to discuss and what the outcomes were. However, the Welsh Government was declined the opportunity to be on the joint committee that discussed that. We need to keep pushing for greater transparency and greater accountability, and that is a service to Government as well. There is a will to do it, and as chairs and committees, we need to work together to ensure that the maximum transparency is in the public domain.

In a devolved context, we are really concerned about the amount of England and Wales legislation, including secondary legislation, that goes through, sometimes—I point my finger at the Welsh Government as well—with the Welsh Government’s apparent willingness for that to happen. That means that it—[Inaudible.] We sometimes have a difficulty in explaining this to Government. It says that it will bring the legislation back as an LCM, but we say that an LCM is not the same as a consultation with stakeholders in Wales or as having the ability to run it through committees here in Wales. We have an in-principle position that it is better to do stuff that is significantly within devolved competences in the devolved legislatures.

I agree with your final statement. From our perspective, in the evidence that stakeholders in Scotland have given to us, they have said that that is an important way for them to get the Scottish perspective—in your case, it is the Welsh perspective—through. That leads on to the issue of transparency with the people of our respective nations and making sure that they understand what changes could be happening to them and how they get their say on that.

Baroness Drake, is there anything that you would like to add on that?

Yes. Led by the Speaker of the Lords, there is a focus in the Lords on wanting the Lords agenda to embrace devolution issues more and to capture, understand and apply our scrutiny responsibilities to issues in each of the four nations. That is very much a thought process in what we are trying to do. More and more, the committees of the house are picking up or seeking to look at the implications for the different nations of agendas that fall on their tables. The Constitution Committee certainly does that.

Therefore, anything that improves engagement is important. We have the interparliamentary forum. It has started gently, with people feeling their way, but we hope that that can build up into a more effective body. It is important that people want that engagement and put it high on the agenda, and that they recognise—this is certainly the case from a Lords point of view—that we need to look at the four-nation perspective on things, which we seek to do more and more. I have to say that my colleagues on the Common Frameworks Scrutiny Committee are ferocious, and I am impressed by their focus on the issue.

How we approach scrutiny and transparency is also important. We are not the Commons, but to the extent that we scrutinise and can, through what we do, increase transparency, that has to be a positive.

You have touched on this in previous answers, Baroness Drake, but I wonder whether you would again, for the record, give your thoughts on how it might be made a bit more difficult—I might not have paraphrased that correctly—for the UK Government to avoid seeking devolved consent.

The issue that we have been airing is the use of secondary legislation to change matters in areas of devolved competence, particularly when that secondary legislation contains Henry VIII powers, because, strictly speaking, the Sewel convention does not apply to secondary legislation. With the way in which secondary legislation is now applied, partly as a consequence of Brexit but also for other reasons, consideration needs to be given to applying that convention—in practice, in spirit or whatever—to elements of secondary legislation, particularly when there are Henry VIII powers. We should not just rest on saying, “Well, it’s secondary legislation; we don’t need to,” because that is not of constitutional good order.

Thank you. Mr Wragg, do you have anything to add?

I have a reflection to make on the undoubted importance of devolved government in those nations of the United Kingdom that have it and the understanding that comes with that. One wonders whether that understanding is shared throughout the whole of the United Kingdom—I am thinking of England when I say that. That is not a malign thought; it is just a matter of fact and a reality of everyday political life that might percolate through to people. There is an issue around UK ministers and what hat they are wearing—in other words, whether they are acting with their UK hat on or with their Welsh hat on, if I can put it like that. There is an element of—[Inaudible.]—around that.

When it comes to enthusiasm for change, I might gently push back on that. That sounds like a very positive thing that everybody can get behind, but it can also simply be a difference of political opinion. I would not want the two to be conflated in that way.

I want to come back to William Wragg on that question. The point about what is party political, what is constitutional and what the cross-overs are is really interesting. You mentioned the issue of respect and trust. How do you embed that in the process?

To what extent will your committee look at legislative consent motions when devolved concerns are expressed at a parliamentary rather than an intergovernmental level? To what extent is that on your radar? To what extent do MPs on your committee challenge the Government when looking at an issue in the round? I am thinking about the Retained EU Law (Revocation and Reform) Bill. On one level, that is very controversial, but our stakeholder input shows that people are unhappy on a different kind of scale. How would you handle something like that?

It is certainly something that we would consider. I would never want to give the impression that I run the committee with a rod of iron and dictate which way we go. When you look at members of my committee such as Ronnie Cowan or John McDonnell, you can see that I have some keen interrogators of the policy. We would certainly be open to looking at that.

Frankly, I would also want to have a conversation with you and your counterparts in the other devolved nations, because it is all very well for my committee to embark on scrutiny, but there could be a risk that we could be accused of doing, at a committee level, what some have accused the UK Government of doing, which is interfering and overstepping our remit. There would need to be quite significant collaboration or at least consultation with committees such as the one on which you sit.

When something is clearly a devolved issue, to what extent will you actively consult committees in the devolved legislatures in order not just to understand the politics of the situation, but to gain interparliamentary awareness, so that committee members can identify what the devolved tensions are in a formal way?

I am open to suggestions on how that might best work. I do not have the model in mind. Sessions such as this one are an example of that engagement, where respective chairs or committee members appear before one of the committees. PACAC has been grateful to have had that opportunity, too. Later this month, we will visit the interparliamentary forum, where that could be discussed. The issue requires discussion and consultation, rather than me simply suggesting a model for how we might do it.

That is helpful. I will leave that with you and your committee to think about. When you compare our report with the Senedd committee’s report, you can see that there are a lot of cross-overs. There is quite a range of people on our committee.

I will follow up on that question with Huw Irranca-Davies. I was very interested in your committee’s report, because of the cross-overs with what our committee thought. I want to hear your comments on solutions for interparliamentary and intergovernmental relations. I will start with interparliamentary relations, because you talked about your committee engaging directly with counterpart committees. What are the key lessons for developing solutions in respect of devolution across the UK?

That is a really good question. In the post-EU landscape, that is really fertile ground. In my opening remarks, I mentioned that the situation that we find ourselves in has led to an increasing propensity for committees such as ours and yours to liaise with other committees across the UK to see where there is common ground. Furthermore, we have actively sought to make our reports available to Westminster committees with an interest in such matters, including, where relevant, the committees of Baroness Drake and William Wragg.

We also take the opportunity to write directly to ministers to make them aware of such matters. Earlier in today’s evidence, a colleague made the point that there is sometimes a difference across Whitehall in how aware people are of the impact that various legislative proposals will have on the devolved Governments and legislatures.

10:15  

We definitely have a role, and we are trying to step up to the mark, within the resources that we have. For every piece of work and every report that we do, we ask ourselves where we should present it in order for it to have the greatest possible leverage. In a sense, we do not have a formal mechanism for doing that. I echo Baroness Drake’s comment on the future of the interparliamentary forum and that we should look at how that work could be strengthened. However, that is on a high-level basis. Meanwhile, with everything that we do, we try to think whose desk we should land it on so that they can use the powers and the platform that they have to bring it to the attention of the UK Government and the UK Parliament.

That is very interesting and helpful for our report. What about the intergovernmental solutions that you have suggested in your report? In particular, you mention two potential solutions—a formal dispute resolution procedure and an independent secretariat—to strengthen intergovernmental work. Were those proposals agreed on a cross-party basis in your committee?

Yes, they were. To its credit, my committee, which is small, reflects the Senedd as a whole. It is a four-person committee, and members park their politics outside the door, listen to the evidence and take a genuine approach to deciding what is right not only for the UK to function as an entity but for the accountability that we try to deliver in the Senedd. Both proposals were signed up to by the whole committee.

We really welcome the potential of the new intergovernmental machinery, including the moves to provide an independent secretariat and a dispute resolution procedure, although the dispute resolution procedure has not been tested yet. One of the challenges that we put to Welsh Government ministers relates to the point that we now have not infrequent disputes presented in the public domain between the UK and Welsh Governments. Why are those not being tested through the committee structures that have now been set up as part of the intergovernmental machinery or through the dispute resolution procedure? When will they be tested? We might have some significant disputes coming up. I do not know whether one will be to do with single-use plastics, which I mentioned, but there might be others.

There needs to be something powerful behind the dispute resolution process. Ideally, in good intergovernmental working, with the machinery that is now being put in place but is yet to be fully tested, you would not want things to be escalated to a dispute resolution process, but it is there for a good reason. That procedure needs to be good, strong and binding.

Our report makes clear our thoughts on those issues, and there is cross-party consensus on them.

That is very useful. I wanted that clarified because, given the tensions, working out whether people agree with one another is significant when making recommendations.

Do you want to say a bit more about transparency? How would we deliver that or make it work in the different legislatures, as well as across the UK? I am conscious that the retained EU law issue makes that particularly challenging for us all, but what would be your key recommendation as a committee?

There are particular challenges relating to retained EU law, so I will put that to one side for the moment. That issue has created challenges in relation to transparency, accountability, legislative workload and competence—the full gamut.

Generally, in relation to how we deal with interministerial work as parliamentarians in committees, we have had some breakthroughs with the Welsh Government, which has been very good, by and large, at increasing the amount of information that it provides to us in advance of meetings with regard to what has been discussed and what has been on the agenda. That happened to such an extent that, on one occasion, we grasped the opportunity and made our own submission to the Government. We said, “You have seen our report on X, Y and Z. We would like you to raise these issues on legislative competence and so on.” Fair play—that was then discussed.

However, we need to keep on pushing, because I know that that level of transparency has not been experienced universally by committees. There is a challenge for parliamentary committees and Parliaments in getting hold of material about agendas, what has been discussed and what the outcomes have been.

Another aspect is about how we do this at a high level. As yet, that has not been resolved. Baroness Drake touched on some of the work that is going on—I understand that there have been discussions about speakers’ conventions, for instance—but how do we strengthen high-level, UK-wide fora so that we have the opportunity to test jointly what you are being told in Scotland, what we are being told here in Wales and what William Wragg’s committee is being told and to sit together to scrutinise ministers? I do not know what the exact mechanism might be to allow that, but I suspect that we need to consider whether we have UK mechanisms for transparency.

That is useful, and it provides a nice link to my final question, which is to Baroness Drake. Will you talk about how you are able to provide scrutiny? What is your committee’s role in ensuring that the concerns that devolved legislatures express are taken on board when the House of Lords provides scrutiny? Have you any thoughts on how the system could be made more effective and transparent?

In various reports, we made a series of recommendations. We worked through them and achieved them all. We said three things on scrutiny. In the Lords, there is a question mark over secondary legislation, as it, strictly speaking, does not engage the Sewel convention, but for any bill that does, we would want it to do so in situations of significance. First, we recommended:

“On introduction of a bill to the House of Lords which engages the Sewel convention, the Government should submit a memorandum … about the devolution implications”

and

“explain what engagement has taken place with the relevant devolved administrations.”

We would therefore get a memorandum that detailed the state of play on that issue when the bill was introduced in the house. That might address such questions as, “Where is the point of disagreement?” or “What are the tensions?”

Secondly, we have asked that our procedures in the house give the granting or refusal of consent greater prominence in our business so that, at each stage of the bill process—be it second reading, committee stage or report stage—there will be a tag with an update on what is happening on consent issues. That has been agreed in principle, but it has not yet been implemented. If it is implemented, we will try to embed in front of us an awareness of the issues that are impacting on the other nations. Not all bills would trigger that process, but it would apply to those that did.

We also mentioned maximising what could come out of intergovernmental frameworks. Operational documents such as the devolution guidance notes, “The Cabinet Manual” and the “Guide to Making Legislation” should reflect what the intergovernmental framework is trying to achieve. That would mean that there was consistency and there was not just one group of people sitting in a room, as it would flow through, culturally, to other areas.

We are also interested in understanding more about how the dispute resolution process is working. My understanding is that it has not been particularly tested, but I am not sure why that is the case. That is another area.

Those are the sorts of things that we are pursuing.

What kind of feedback have you had from the different Governments on those issues? To what extent are Governments prepared to provide for intergovernmental discussions, negotiations and transparency?

I would say that discussions are in progress. We have had some responses, but these things keep moving forward.

The sense on our committee is that these major challenges, particularly following Brexit, have not really been experienced before. On the issue of safeguards, in relation to the Sewel convention and the “not normally” principle, to what extent is there an awareness of the significance of that convention regularly being overridden? What is your committee’s view on that?

There is certainly an awareness of that in the House of Lords. The use of secondary legislation to determine policy, which therefore takes scrutiny away from Parliaments, is quite a big issue in the house at the moment, but it does not apply just to devolution. There is a general feeling that that is an issue. We have been engaging with the Government and asking for more discussion on that issue as a general theme, as well as its application in relation to the devolved Administrations.

We also take the chance to reiterate points with every bill. For example, we spent some time talking about the implications of the Retained EU Law (Revocation and Reform) Bill for the common framework settlements. We try to stay with those themes. We follow them through in each bill, and then we continue with engagement. We are interested in issues relating to “The Cabinet Manual” generally, and devolution is part of that. We have had quite a few exchanges, and there should be a new draft of that manual coming out soon.

We would be interested in seeing that. I am very interested in the point that you made about the Retained EU Law (Revocation and Reform) Bill. Were witnesses from different parts of the UK involved in the work that your committee did on that bill?

We do not take evidence on every bill that we deal with, because, given the flow of bills, we have to get our view out quite quickly before the committee stage, but we take legal advice. We have legal advisers, and we expect them to highlight any implications for the devolved nations as well as for the UK as a whole, so, if there is anything that we want to consider, that will be before us when we comment in constitutional terms on the bill. It might be that there are no implications or that there are some highlighted for our consideration. We try to mainstream that into our thinking when looking at a bill, and we are doing that more and more.

That is very helpful.

I am afraid that we are tight for time this morning, so I will have to draw our session to an end. I thank all the witnesses for their attendance. The deputy convener and I are looking forward to the next meeting of the interparliamentary forum in the coming weeks.

I suspend the meeting briefly to allow for a change of witnesses.

10:28 Meeting suspended.  

10:31 On resuming—