Government of Wales Act 2006 (Amendment) Order 2021

Baroness Bloomfield of Hinton Waldrist Excerpts

Wednesday 27th January 2021 Grand Committee

Moved by

[Baroness Bloomfield of Hinton Waldrist]

That the Grand Committee do consider the Government of Wales Act 2006 (Amendment) Order 2021.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, the draft order makes changes to the Welsh devolution settlement by amending Schedules 7A and 7B to the Government of Wales Act 2006 in light of the EU exit. This includes removing references that are no longer relevant now that the UK has left the EU, and modifying consenting arrangements in relation to concurrent powers and in relation to the controller of plant variety rights. The order also corrects some minor errors in both schedules. I shall take each element in turn.

Noble Lords will be familiar with the need, in light of our exit from the EU, to amend references to the EU and its institutions as they appear throughout the statute book. A number of such references appear in the list of reservations in Schedule 7A to the Government of Wales Act 2006. For example, at paragraph 20, the schedule reserves powers to the UK Parliament to legislate over elections to the European Parliament; clearly such a reference is no longer necessary. While the majority of the EU references in the Government of Wales Act 2006 were corrected through the European Union (Withdrawal) Act 2018, it amended only the list of reservations where there was a direct read-across to the devolution settlement for Northern Ireland. The Government committed to correcting the remaining references in Schedule 7A through this order to enable the Senedd to have a direct say over the amendments. I make it clear that our approach to these changes is that they are devolution-neutral. Removing these references will not result in the Senedd gaining any additional competence, nor take away any powers that it currently has.

As well as making corrections to the schedule that are necessary as a result of EU exit, we are also taking the opportunity presented by this order to rectify a small number of minor errors in Schedules 7A and 7B which have come to light since the Wales Act 2017 gained Royal Assent. These errors have not affected the competence of the Senedd and their correction will similarly be devolution-neutral.

I now turn to matters related to the consent requirements in Schedule 7B to the Government of Wales Act 2006. Paragraph 11 of the schedule prevents the Senedd from modifying or removing functions of a Minister of the Crown that relate to a qualified devolved function without the UK Government’s consent. A qualified devolved function is defined as one conferred on the First Minister, Welsh Ministers or the Counsel General and is to any extent exercisable concurrently or jointly with the Minister of the Crown or only with the consent of, or following consultation with, the Minister of the Crown. The need for UK government consent was put in place to protect the concurrent and joint functions set out in Schedule 3A to the Government of Wales Act 2006.

EU exit, however, has resulted in many more concurrent functions being established both through statutory instruments made under the European Union (Withdrawal) Act 2018 and in the UK Government’s programme of primary legislation. This approach was taken to allow for UK-wide approaches to be implemented in a number of areas, principally where powers have returned from the EU. The Welsh Government have raised concerns, however, over the Senedd’s ability to break these concurrent arrangements in future in light of the restrictions that I have already outlined. The UK Government agree that, in these circumstances, the consent requirements are not appropriate.

This order therefore provides that the consent requirements do not apply where the Senedd seeks to remove, or confers a power to remove, a function of a Minister of the Crown that is exercisable concurrently with Welsh Ministers and established through one of the enactments specified in the order. These specified enactments are: statutory instruments made under Sections 8 to 8C of the European Union (Withdrawal) Act 2018, the European Union (Withdrawal Agreement) Act 2020 or in regulations made under it, the Direct Payments to Farmers (Legislative Continuity) Act 2020, the Coronavirus Act 2020, the Fisheries Act 2020, the Agriculture Act 2020, and the Act of Parliament that will result from the Trade Bill, currently in ping-pong. I should make it clear that this carve-out applies only where the Senedd seeks to remove the function of a Minister of the Crown and thereby break the concurrency. It will not apply to any wider modifications that the Senedd may wish to legislate for.

Also, in respect of the Fisheries Act 2020, this carve-out from the consent requirement does not apply to the removal of a Minister of the Crown function to regulate British fishing boats, excluding Welsh fishing boats, in Welsh waters. This is consistent with the protections for the Secretary of State’s wider concurrent functions to regulate fishing boats of a devolved Administration outside that Administration’s waters. The Department for Environment, Food and Rural Affairs has committed to carry out a review of concurrent fisheries functions to consider whether these arrangements are indeed still appropriate.

Many of the concurrent functions that have been established through the specified enactments provide that the relevant Secretary of State can exercise them only with the consent of the Welsh Ministers. A number also require the Welsh Ministers to consult or to seek consent of a Minister of the Crown before exercising them.

Restrictions in paragraph 8(1)(c) of Schedule 7B provide that the Senedd cannot confer, impose, modify or remove functions specifically exercisable in relation to a reserved authority without the consent of the UK Government. Welsh Ministers’ ability to give consent to the Secretary of State, as well as requirements to consult or seek the consent of a Minister of the Crown, constitutes a function in relation to a reserved authority. As a result, this order also provides that these restrictions do not apply when the Senedd seeks to remove a concurrent function of a Minister of the Crown established through the specified enactments. The Government believe that it is appropriate that the relevant Minister is informed of plans to remove their functions. As such, under the provisions of the order, the Welsh Government must consult the relevant UK Government Minister before a Senedd Bill can remove such a function.

The order also makes changes to the consent arrangements in relation to the Controller of Plant Variety Rights. The Controller of Plant Variety Rights is the UK-wide body responsible for administering UK plant breeders’ rights. Intellectual property as it relates to plant varieties is a devolved matter. However, as the controller operates on a UK-wide basis, and therefore undertakes functions for England, Scotland and Northern Ireland which are outside the Senedd’s competence, it is classified as a reserved authority under the Welsh devolution settlement.

As I have already noted, Schedule 7B to the Government of Wales Act 2006 places restrictions on the Senedd’s ability to impose, modify or remove functions of reserved authorities without the consent of the UK Government. There are however a small number of reserved authorities that are carved out of these consent requirements because they exercise a mix of devolved and reserved functions. These include the Electoral Commission and the Food Standards Agency. In the light of the devolution boundary in this area, it is appropriate that the Senedd be able to modify the devolved functions of the Controller of Plant Variety Rights without needing the consent of a UK Government Minister. The order therefore adds the controller to the list of mixed function authorities.

The order is the result of significant and very positive engagement between both Governments and has been laid before the Senedd for its approval. I beg to move.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I thank all noble Lords for their valuable contributions to the debate this afternoon, particularly for the gracious remarks many have made towards the statutory instrument and the close and collaborative work between the Welsh and UK Governments that has resulted in it. I take the comments made by the noble and learned Lord, Lord Thomas of Cwmgiedd, and yes, it is arcane, but it is also very complex and it has taken me many hours to master. I am hoping, like him, that future legislation reflecting the devolution settlement is a lot less complex.

The order makes a number of amendments to Schedules 7(a) and 7(b) of the Government of Wales Act 2006. It enables the Senedd to remove concurrent powers, established in specified enactments, without needing the agreement of the UK Government. This directly addresses the concerns raised by the Welsh Government. It also clarifies the schedules by removing references that are no longer relevant following the EU exit and provides for a number of corrections where they are necessary.

I will endeavour to answer a number of the questions asked by noble Lords. I turn to the noble Lord, Lord Hain. I am particularly grateful for his kind words because I am well aware of his seminal role in the Government of Wales Act 2006. I am also very pleased that we removed the toehold that he feared we might try and retain. I note his comments on future dealings with the Senedd and will continue to pass these up to my “olders and betters” as he termed them.

As to his point about UKIM, the provisions in the Act will help the UK internal market, which will be of benefit to Wales. It should not be views as a threat to devolution. The Act merely seeks to maintain open borders for trade within our United Kingdom and it has the broad support of Welsh business. The Minister’s powers to spend in relation to specific devolved areas enables the Government to spend in Wales on UK-wide priorities and does not impact on the powers of the Senedd or the Welsh Government. The Act confirms the renewed status of subsidy control. State aid was previously, of course, an EU-level competence.

The noble Lord, Lord Thomas of Gresford, asked whether I could confirm the point about fisheries. The UK Government will not interfere with fisheries policies. The continued application of the consent requirements in relation to functions to regulate British fishing boats in the Welsh zone is consistent with the position under wider fisheries legislation, in which the Secretary of State retains concurrent powers in certain cases to regulate fishing boats of a devolved Administration fishing outside that Administration’s waters. Defra has committed to carrying out a review of concurrent fisheries functions to consider whether these are appropriate. The order will not affect the ability of Welsh Ministers to regulate Welsh fishing boats in Welsh waters. The noble Lord also asked whether Welsh Ministers and the Senedd can continue to exercise their functions unimpeded by the UK Government, and the answer is absolutely, yes, they can. This order facilitates that by enabling the Senedd to cease certain concurrent functions without requiring the UK Government’s consent.

The noble and learned Lord, Lord Thomas of Cwmgiedd, did not actually ask me any questions but gave a lot of interesting background. I share his hope that the four nations will now move forward together in a more collaborative way, as we have seen in this statutory instrument. The noble Lord, Lord Wigley, asked about the removal of obligations under EU law. I can confirm that it will be the Senedd Cymru that will deal with all such non-reserved matters. In the 66 areas now transferred from Brussels to Cardiff Bay, it will be up to the Senedd to choose how they exercise those powers. I also confirm that all such EU obligations have been reconstituted into UK law, unless specifically amended by Westminster or the Senedd.

I acknowledge the tone of the noble Baroness, Lady Humphreys, and her regrets. I am therefore doubly grateful for the supportive comments on this instrument. I look forward to all the areas she mentioned seeing continuous support as we all work together to strengthen the union and continue to try and level up those areas that have been left behind. The power provided in the UKIM Act makes sure that the UK Government can invest UK taxpayers’ money in Wales. It will support Welsh people and businesses to recover and grow.

There will also be the new shared prosperity fund from 2022 and additional funding for 2021-22 which will total £220 million across the UK, enabling pilot projects to be launched. Wales will not be worse off; EU structural funds have a substantial tail of funding over the next three years. As that funding tails off, the shared prosperity fund will increase.

The noble Baroness, Lady Hayter, asked whether further corrections are needed as a result of exit and whether the Welsh Government can make those corrections themselves. The answer is yes, if those corrections are in the devolved areas. The Environment Bill will include the equivalent provision to this order; it will be done by amendment. I share her frustration that it has been postponed but, to preserve the Bill, it was deemed appropriate that it be put off until early summer. The absolute goal is that it must obtain Royal Assent before COP 26 in the autumn.

I welcome the productive work that has taken place between the two Governments in the preparation of this order. I commend it to the House.

Motion agreed.