Mick Antoniw, AM,
Chair,
Constitutional and Legislative Affairs
Committee,
National Assembly for Wales.
21 May 2018
Dear Mick Antoniw,
SCRUTINY OF REGULATIONS MADE UNDER
THE EUROPEAN UNION (WITHDRAWAL) BILL – OPERATIONAL
MATTERS
Thank you very much for
your letter of 17 May inviting me to contribute to your
consideration of the operational matters that relate to the
scrutiny of regulations to be made under the provisions of the EU
(Withdrawal) Bill, with particular reference to the amendments made
by the House of Lords during the latest stages of the bill’s
passage.
As always, I shall be happy
to contribute as best I can. On this occasion, there is however a
difficulty in that I am committed to attending and contributing to
some events over the next few weeks which will make it difficult
for me to reply properly much before the middle of the week
commencing 4 June. I realise that this is less than a week before
your meeting with the Leader of the House, Julie James AM, and that
ideally you would wish an earlier response. Nevertheless, I shall
try to respond fully by that time if that is acceptable to
you.
In case it may be of use in
the meantime, there are some concerns with the proposals contained
in the amendments which I think need to be addressed. I must
emphasize that I have not as yet had the opportunity to study the
Lords’ amendments thoroughly and that what follows in the
attached Appendix are first thoughts based on what I have managed
to read thus far, and what I have heard and read discussed in the
media. With that caveat, I hope the points raised will be of
some use until I am able to submit a more reasoned
reply.
With my thanks
and best wishes,
Yours sincerely,
Thomas Glyn Watkin
APPENDIX
- I remain
concerned that, in redistributing functions currently exercised by
EU institutions, regulations made by Ministers of the Crown may
allocate functions, relating to matters which are devolved, to
public authorities which are not devolved Welsh authorities. If
that is done, will the allocation remain valid when the five-year
sunset period comes to an end? If it does, the Assembly will not be
able to modify or remove such functions without Minister of the
Crown consent, i.e., competence will in truth be lost. The same
problem would arise if the allocation was to a UK government
department, or if the function was made jointly exercisable by the
Welsh Ministers and the Secretary of State.
- When the
sunset period has ended, will the Secretary of State’s
intervention powers remain in place regarding any changes which the
Assembly is able to make within its competence to amend what the UK
government has done by regulations in the meantime?
- Is the Welsh
Government putting in place mechanisms at Westminster to oppose the
making of regulations to which the Assembly has not consented? Do
they intend to mobilise a coalition of opposition parties to defeat
such moves in the Commons given the UK Labour leader’s
comments on a continuing ‘power grab’?
- Where does the
convention that the Lords do not frustrate the will of the
democratically elected chamber rest where the Commons is
overturning the will of a democratically elected devolved
legislature on an issue which is devolved? There appears to be
uncharted constitutional territory here. The matter would become
particularly important if a UK general election returned a majority
government before the two-year sunset period for making regulations
had expired, thus making it unlikely that intervention in the
Commons could succeed..
- Is there a
danger that the mechanism introduced to allow UK Ministers to ask
Parliament to override the Assembly’s wishes regarding
legislative consent in this instance may form a precedent for how
the Sewel Convention may be operated in the future? In other words,
is the proposed procedure a Trojan horse? The answer to point 4
above becomes even more significant in that event.
- Is, or should
there be, a difference as a matter of convention between the
consequences in Parliament or the Lords of the Assembly’s not
agreeing to consent and refusing consent?
- Under the
principles operating behind the ‘English Votes for English
Laws’ procedures, should there be a similar procedure to
allow Welsh MPs a distinct role in votes on regulations affecting
laws which do not relate otherwise than in relation to
Wales?
Thomas G. Watkin
21 May 2018