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.
4.52 pm