That allows us to move on to item 7, which is the LCM on the Energy Bill. The Minister for Climate Change, Julie James, to move the motion.

Motion NNDM8349 Julie James

To propose that the Senedd, in accordance with Standing Order 29.6, agrees that provisions in the Energy Bill in so far as they fall within the legislative competence of the Senedd, should be considered by the UK Parliament.

Motion moved.

Diolch, Llywydd. I move the motion. I'm grateful for the opportunity today to move this motion on the UK Energy Bill, and to the Members for agreeing to suspend Standing Orders to enable us to proceed today. I fully appreciate the challenges this Bill has created for effective scrutiny from the Senedd. The Welsh Government is fully committed to doing all that we can to ensure our legislature gets the opportunity to properly scrutinise UK legislation that engages the Sewel convention and requires Senedd consent.

I want to set out from the outset the challenges demonstrated in the past week alone as reflective of our experiences to date. There were nearly 150 pages of amendments published last week, which UK Government pushed through Parliament in a single day session. Despite our request, the UK Government refused to reschedule the Bill's timetable to allow the Senedd to meaningfully consider these amendments. The supplementary legislative consent memorandum laid yesterday is the result of incredible efforts to ensure that those matters could be highlighted to the Senedd. However, I am under no illusion that this is an effective demonstration of the legislative consent process, nor of good law making. I have made that clear to the UK Government in no uncertain terms.

This has been an incredibly difficult Bill to develop a Welsh Government position on legislative consent. As introduced, the Bill was incomplete and then paused for several months as the UK Government responded to the energy price crisis. The Bill has been developed incorporating the views of various Secretaries of State and Prime Ministers. Boris Johnson resigned as Prime Minister the day after the Bill was introduced into the House of Lords, and we are now on the fourth Secretary of State for this Bill. I have made repeated requests to the UK Government to delay the progress of this Bill. This would have enabled the required scrutiny to take place, and would also have facilitated the much-needed inter-governmental working on the detail of this Bill as it was developed. While the provisions in the Bill are required to help achieve a net-zero energy system, there is no immediate risk to our energy security from delaying this Bill. This is a matter entirely at the discretion of the UK Government. We have always been playing catch-up on this Bill. The UK Government did not engage us in the required detailed policy work necessary for the Bill. The Bill was only shared with us the evening before it was introduced, and there was clearly no consideration for how the overall Bill would be delivered with the devolved Governments.

Llywydd, we have always been committed to working in a way to reach collective inter-governmental agreement. The Bill before us today is important in that it establishes the required regulatory framework for a number of key technologies that will play key roles for our energy security and for achieving net zero. Part 1 of the Bill establishes an economic regulation and licensing regime for the transport and storage of carbon dioxide, with the Office of Gas and Electricity Markets, Ofgem, as the economic regulator. Part 2 enables the Government to implement and administer carbon-capture business models. However, the Bill as drafted, and Parts 1 and 2 in particular, provide for broad regulation-making powers for the Secretary of State. As a matter of devolved competence, concerning the matters of environmental protection and waste, which include decarbonisation measures such as carbon dioxide capture, transport and storage, the Secretary of State must seek the consent of Welsh Ministers before regulations should come into effect. This is not provided for, apart from in Clause 2. 

To be absolutely clear, I am in agreement that CCUS is likely to play a significant part in decarbonising industry in particular. On the need for appropriate regulations to support implementation, Welsh Government policies align with the UK Government. However, I am keen to ensure that the scale of CCUS in Wales is the minimum required, and that CCUS in not in itself deemed as a new industrial opportunity that could risk locking the UK into continued and avoidable use of fossil fuels. That is why we need to ensure new regulations support our policy priorities in Wales and that the Senedd has scrutiny of any new regulations coming forward. With the Bill we have before us, none of that is provided for.

Parts 4 and 8 of the Bill provide for new regulation-making powers with respect to low-carbon heat schemes and heat networks. Again, a number of the clauses in those parts make provision within the Senedd's legislative competence, yet the Bill provides for a requirement for the Secretary of State to consult or notify Welsh Ministers before new regulations come into effect. This is not an adequate reflection of devolution, and does not provide us with the necessary safeguards we have sought.

For Part 13, again, our policy is aligned. I agree we need to streamline and accelerate offshore wind consenting, and I'm committed to working in partnership to ensure there is a level playing field across the UK. However, on the matter of a marine recovery fund, we do have a disagreement on devolved responsibilities. We have set out our position that the Senedd has legislative competence to make a Senedd Bill for a fund for all energy infrastructure projects 300 MW and below in the Welsh inshore region. We believe this is a matter of environmental protection. It is important to highlight that, outside that one example, there is no disagreement between us and the UK Government on where the provisions in this Bill engage the legislative consent process.

In response to our recommendation that the Senedd withhold consent to this Bill, the UK Government offered the very limited consent processes we see in the amended Bill, specifically to clauses 2 and 293. If they agree that consent mechanisms are appropriate for those clauses, why not the other clauses in the Bill where broad regulation-making powers are introduced in areas of devolved competence? It is clear, including through my one-and-only meeting with the UK Government Minister then responsible for the Bill, that the UK Government are not interested in respecting the devolution settlement when it comes to implementing future policy on matters concerning the Bill. Their argument is that the only way to deliver cross-border regulation in a way that avoids regulatory divergence is through the UK Government regulating, even if those regulations are within the devolved competence of the Senedd.

Llywydd, this is, unfortunately, a UK Government that does not want to work with devolved Governments, and instead believes processes of consultation and notification are satisfactory safeguards of our constitution. I fundamentally disagree with that view. I could not be clearer that I want to work on a basis of seeking to reach agreement to provide appropriate cross-border regulation that our industry and our citizens need to help us achieve net zero. I've argued the case for the UK Government to work with us. I've asked for the Bill to be delayed so that we can agree a solution that respects this Senedd and our legitimate devolved responsibility.

Finally, I have reminded the UK Government of their own stated commitment to the Sewel convention and that under no circumstance would it be appropriate to pass this Bill without the consent of the Senedd. Such action would demonstrate a complete lack of consideration of the most fundamental principles of devolution. Llywydd, in drawing to a conclusion, I therefore recommend that Members withhold their consent to the UK Energy Bill. Diolch.

The chair of the Legislation, Justice and Constitution Committee, Huw Irranca-Davies.

Thank you, Llywydd. My committee has managed to report on the first three legislative consent memoranda for the Energy Bill. As the Minister said, No. 4 was laid just yesterday.

I note at the opening of my remarks that the Minister explains that she has asked for a delay with the UK Parliament so that we can have proper consideration of this, and that request has been withheld, because that's very pertinent to what I'm now going to say.

Llywydd, a moment ago I did say that my committee has reported. It is a report we’d have wished to write on very, very different terms, particularly as we have been unable to provide a detailed analysis to help inform Members' consideration of the consent motion being voted upon this afternoon. So, I'm going to expand on this point, and I hope the Minister might be able to expand a little on this in her closing remarks.

As soon as was practically possible after the Minister's first memorandum was laid, we issued an invitation for her to come along to our next meeting, which was on 10 July—the final meeting of the summer term—such were our initial concerns about the approach to the Bill, including from the Welsh Government, and the Senedd's subsequent role in the legislative consent process. We thank the Minister for recognising those concerns and agreeing to attend at very short notice just before we all headed off.

Members will likely know that the Bill was introduced into the UK Parliament on 6 July 2022. I'll repeat: 6 July 2022. The Welsh Government's first legislative consent memorandum was laid before this Senedd almost 51 weeks to the day after that date. Now, this is unprecedented. The Minister has put some reasoning behind that, but look, furthermore, the memorandum laid before the Senedd at that late juncture was based on the very first version of the Bill introduced to the UK Parliament almost a year earlier. The Bill by this point had been extensively amended already.

So, when the Minister gave evidence to us on 10 July, she told us a number of things, and I need to briefly summarise this. Minister, you told us that not a single scrap of Welsh Government involvement in the development of the Bill or detailed discussions with the UK Government had happened—not a single scrap. Minister, you told us that the Bill had been drafted without any nod, in your words, to devolution whatsoever. You told us that the first and only meeting, which you repeated today, that you'd had with the UK Minister on the Bill, was in May of this year, with Minister Bowie, and that he, in your quotes,

'Showed no appreciation that any kind of devolution settlement existed.'

Now, I'm repeating your words for very specific reasons, because they were clearly of concern to us. It was alarming, I have to say, for this committee to hear of such poor communication with the UK Government, particularly on devolved matters. So, we undertook to write immediately to Andrew Bowie, the UK Government's Minister for Nuclear and Networks. He did reply very quickly, and he told us that he doesn't recognise the remarks made by the Minister, and that, let me go into some detail here, the Bill respects the devolution settlement, that UK Government civil servants, he says, actually shared draft clauses of the Bill, held deep-dive sessions with Welsh Government officials in advance of the Bill's introduction, and that his officials have sought weekly meetings with the Welsh Government officials since the Bill was introduced. Now, Senedd Members will note there the stark contrast between the information presented by the Minister and that presented by Minister Bowie to our committee.

Now, look, it's not our role as a committee to act as an examiner of who said and who did what and when, but the differences of view are stark. We have simply concluded, however, that the contradictory chronology of events and explanations about co-operation is really concerning, and it does suggest, at best, that the democratic role of this Senedd has not been given adequate consideration during the development of this Bill, wherever the cause may lie. Now, the Minister has also referred in the opening remarks, as she said to us, about the multiple changes of personnel in the UK Government as a problem. We note that, but we simply observe, Minister, that the same challenges confronted Ministers in Scotland as well, but that did not delay them laying the LCM at an early point. So, the delay in laying the required legislative consent memorandum just isn't acceptable; it severely undermined the ability of Senedd Members here to effectively scrutinise the Bill and its impact in Wales.

It is unfortunate that we have to conclude, Minister, as a committee, that we're not convinced by the reasons for the delay being put forward. Now, we do acknowledge the Minister's remarks that she both regrets and is concerned that the timing of the Bill's final stages in the UK Parliament means the Senedd has no meaningful opportunity to consider the position on consent—bear in mind that, no meaningful opportunity; that's where we are—but we do not believe it's appropriate to make those comments solely within the context of constraints of the UK parliamentary timetable. The lack of opportunity has been caused, we would argue, primarily, by the delay in laying the original first legislative consent memorandum, and it's something for which Welsh Government and the Minister needs to be accountable and take responsibility, indeed.

The Minister will want to emphasise the other important aspects of policy in this Bill, and where Welsh Government has disagreement with the UK Government over the detail and substance of the UK Energy Bill. These are important matters, and they deserve greater scrutiny by this Senedd, and that's what we're arguing for. Indeed, should more time have been available to us and to other Senedd committees, we would have been able to give proper consideration to a number of important matters.

Can I just conclude on two or three matters?

I am not going to stop the Chair of legislation when he's talking about scrutiny by the Senedd, so, yes, you carry on.

I am really close to the end. I really am. Thank you. Diolch yn fawr, Llywydd.

So, we would have been able to give proper consideration to a number of important matters, including, for example, the overlap between the Energy Bill and the Minister's own infrastructure Bill. We would have liked to further consider the Minister's comments on the laying of multiple legislative consent memoranda, which is a genuine issue. And the Minister knows that the view of my committee is that delays in laying such memoranda impede the ability of this Senedd, let alone our own committee, to understand the Welsh Government's approach.

So, Llywydd, I think it's very evident from my remarks that the committee is very concerned with the approach taken in respect of this Bill, and for us it raises questions over the overarching wider processes within Welsh Government regarding the timely laying of legislative consent memoranda, and we do believe Welsh Government should learn lessons from its handling of this Bill to ensure that this shouldn't happen again. Welsh Ministers have to ensure that the Senedd is presented in a timely manner with the necessary information it requires to perform its democratic role. Diolch yn fawr.

Chair of the climate change committee now—Llyr Gruffydd.

Thank you very much, Llywydd. I find myself in a rather curious position today, contributing to this debate when the climate change committee has not had an opportunity to consider the LCM or an opportunity to report on it. We had intended to consider the LCM and agree on our report in tomorrow's formal committee meeting, and that would have allowed us to meet the Business Committee deadline of 15 September, but bringing forward the debate on the LCM today has put paid to that, of course. My contribution will be short, as a number of the most important points have already been covered by Huw Irranca-Davies, and it is good that his committee has managed to report on the LCM in time for today's debate.

As has already been mentioned, the LCM was laid on 29 June, just shy of a year after the Energy Bill was introduced in the UK Parliament. According to the Minister, the blame for this sorry mess lies firmly at the door of the UK Government. Fair enough. But I'm afraid that the Welsh Government must take some responsibility. Minister, if the Welsh Government had laid the LCM within a reasonable time frame, the committee would not have been denied the opportunity to play a full and proper part in this legislative consent process. When the LCM was first referred to the committee, we wrote to the Minister to ask whether the Bill would impact on the ability of the Welsh Government to develop and deliver energy and climate change policy in the future that meets the needs of Wales, and if so, how. Our letter and the Minister's response, which was received at the end of August, have been published alongside today's agenda. But, of course, the committee hasn't had an opportunity to consider the response or come to any conclusions on the matters relating to policy. Given the motion that is before us today, I'm sure that Members would be keen to know whether any of the concerns that the Minister outlines in her letter have been addressed, and if not, what the next steps are in terms of Welsh policy in the future.

Llywydd, the committee has previously expressed the view that there are fundamental problems with the LCM process, and today, of course, the position we find ourselves in underlines that once again.

How do I follow this one, really? When we hear conflicting perspectives put forward about whether UK Government have liaised with Welsh Government and vice versa, it doesn't inspire confidence, and I'll certainly, from the UK Government perspective, be writing to them, because we have to have this open dialogue on any LCMs that come forward.

So, overall, I do welcome the fact that the Welsh Government is supportive of the broad policy intent of the Energy Bill. The policy scope of this Bill is wide, covering everything from carbon capture, hydrogen production to energy code governance reform, heat networks, regulation and offshore wind electricity generation. The Minister has highlighted, in her letter to the CCEI committee, a concern that the Bill, as drafted, provides for broad regulation-making powers to the Secretary of State, with a requirement to only consult with Welsh Ministers if regulations contain provisions that would be within the legislative competence of the Senedd. The UK Government's intent to co-operate is clear, so I see no need to create a potential barrier by creating a requirement for consent. Concerns have also been raised that the ability of Welsh Ministers to use all the appropriate levers within its competence at the right time to forge a path to net zero is limited by the Bill, as currently drafted. However, the Bill will strengthen the UK's ability to achieve net zero.

Now, I'm sure none of you will disagree with the aim of delivering a cleaner, more affordable and more secure energy system for the long term, and that is what this Act will do. More so, there is no reason why the Welsh Government and UK Government cannot work together—and I say this numerous times. You may have different political parties each side, but, at the end of the day, we should all be working to represent our constituents, irrespective of party. In fact, UK Government officials have, we were told—but we're told otherwise now by our colleague Huw Irranca—been already co-operating with you, and, apparently, and whether the Minister can just confirm on this one that they've already shared draft clauses, where possible, and they've held a series of deep-dive sessions with your Welsh Government officials on each measure well in advance of this Bill's introduction. More so, UK Government officials apparently have sought to engage their counterparts extensively about the Bill, including seeking weekly meetings with the Welsh Government since the Bill was introduced. In addition—allegedly, apparently, whatever—there have been many conversations, meetings and e-mails between Welsh Government officials and UK Government officials who lead on the Bill's individual measures.

So, even now, I'm questioning myself whether Andrew Bowie MP, Minister for Nuclear and Networks, is correct when he states that:

'The Welsh Government’s delay in laying the Legislative Consent Memorandum has not helped our discussions. Indeed, the Memorandum presents the first instance I have seen which sets out the Welsh Government’s concerns with the Bill in full. As the Memorandum only covers the Bill as introduced, I still do not know the Welsh Government’s position on large parts of the Bill which have been amended. Close engagement between UK and Welsh Government officials has mitigated these shortcomings to an extent and has allowed for a package of amendments to be shared at official level.'

So, really now, all that remains for me to ask, Minister, is which of those statements that I've read out there are incorrect? How are they incorrect, and what are you doing as a Welsh Government to actually go back to the UK Government and address the situation? I assume this will be on the agenda for tomorrow in our committee meeting, but, frankly, it's really disconcerting as an elected Member to hear one thing from one Government and another one from another. So, I think we're all—. Well, I'm very concerned about it. Thank you.

Diolch, Gweinidog. This is concerning. The Minister had acknowledged in a letter to my colleague and Chair of the climate change committee recently that the Bill's provisions, when they come to Wales, will affect the Government here's ability to develop future energy and climate change policy that meets our needs in Wales. Now, this is yet another example—it is a particularly egregious example—about how LCMs have become a tool for Westminster to bypass the devolved administrations. They often ignore our concerns, they steamroll over our objections, and that's why Plaid Cymru believes resolutely that this undermines the principles of devolution. It disregards the democratic will of the people of Wales, it poses a significant threat to the powers of our Senedd.

Devolution was a hard-fought victory for the people of Wales. It has and it means that there is a mandate that exists to make decisions closer to home, ensuring that Welsh interests are put first. Now, LCMs, when they are abused, as is the case here—that undermines the core principle there. It makes a mockery of our devolution settlement, and we've become so used in the past few years to this happening. That's not how these things are meant to work, but it's become the norm. Plaid Cymru believes in a robust democratic system where elected representatives have the authority to make decisions for their constituents. LCMs do not reflect this ideal. They allow Westminster to impose its will without sufficient scrutiny or accountability. Too often, LCMs result in legislation, as we've heard in this example, that is not tailored to the specific needs and interests of Wales. What might work for other parts of the UK may not work for us. So, we reject this LCM that's before us today, and we would urge other Members to do the same.

Jenny Rathbone. 

Can I withdraw? Thank you. 

Yes, of course you can. Joyce Watson.

Diolch, Llywydd. I agree, actually, with Huw and with Llyr and others that it's unfortunate, hugely, that the committee has not had an opportunity to form a view on legislative consent. And the point here, and it's been made several times, is that the Majority of the levers relating to energy policy are indeed already reserved. We should have had a wider opportunity than the one that has been afforded us, and that is simply reading the memorandum laid by the Welsh Government in June and all the subsequent supplementary documents that the Minister has given us sight of.

There is a problem here, of course, and Delyth outlined it nicely. We do have the powers already. This is trying to take them back. And the point here is, when we look at the Tories at the moment, and their inaction on the net-zero scrutiny group, they're just looking to block onshore wind and solar development at every single turn. So, if we were to approve this, what exactly are we approving? Because even the party who is governing, who is trying to impose this on us, can’t agree with themselves. So, there's a big, big issue here. I’m not sure—and I don't want to do anybody an injustice—but I thought that Janet Finch-Saunders did say—and if I've misunderstood, please tell me—that we can ask for permission. But the point is we have the permission. We are not going to go, every single time we want to do something where we already have the powers given to us by a clear mandate on devolution, to Westminster and say, 'Please, do you mind if we do—?' whatever we've already had a mandate given to us on behalf of the people of Wales. That's not devolution at all.

So, those are the comments I want to make. It is disappointing that we're here, and it is somewhat confusing, I have to say, from what we’ve heard from Huw Irranca.

The Minister for Climate Change to reply.

Diolch, Llywydd. Forgive me, Llywydd; I'm just going to go through the history again because I do think it’s important, and an apology is due from the Welsh Government as well, just to be clear. But I do want to put that in context, and I did do that in the committee, as you said, Huw.

It is important to recall that this Bill was first introduced when Kwasi Kwarteng was the Secretary of State for the then Department for Business, Energy and Industrial Strategy. The UK Government then paused work on the Bill to rush through the Energy Prices Bill, so the timing of that was that they introduced the Bill at the beginning of July—6 July, I believe, from memory—and then, by 7 September, they were pausing it. Now, we could have put an LCM in at the beginning of September, but at that time we were having a correspondence with your committee and others about the fact that we kept putting multiple LCMs up on the same Bill. So, I do feel we’re a little bit stuck between a rock and a hard place there. So, in trying to comply with the ‘don’t put 14 LCMs up on a single Bill’, we’ve now fallen into the ‘we didn’t put one up fast enough’ on the draft Bill. So, hands up, we didn’t. But I do think, in fairness, we were actually trying to put an LCM that encapsulated the Bill as we thought it would be presented rather than a sequential set of LCMs. I came to the committee, we discussed it, and we then did put up a set of sequential LCMs. So, I’m happy to apologise that we didn’t put that first one up, but I do think you should acknowledge that we were actually trying to comply with an earlier problem of the sequential LCMs. So, I’ll just leave that little bit there.

And then, in terms of the communication from the UK Government, well, you know, truth is an interesting thing, isn’t it? I absolutely agree that they consulted us on clauses in the Bill, but not the Bill. So, what I’ve said to you is that we kept having clauses in isolation given to us, but not within the context of the Bill. Well, there’s a very limited amount of work you can do on a Clause that isn’t within the context. The Bill itself we were never given. So, yes, there were deep-dives on this bit of the Bill, but how can you work with that when you don’t know what the overall context is? Why didn’t they share the whole Bill with us? I’ve made these points repeatedly to them.

The other problem is that there are Henry VIII powers in it. So, trying to get behind the policy intent for giving the Secretary of State sweeping powers so that we could or couldn’t consent to that is really problematic. So, trying to engage the officials with what exactly is it that the Secretary of State intends to use these powers on—in exactly the same way as your committee would respond to me if I was trying to do that here, well, we have the same difficulty with that.

So, I absolutely do regret the lack of scrutiny possible on the LCMs, but this was laid yesterday, so in what universe was I able to do anything other than put us in the position that you're now in? I don't want to be in that position either. We asked for the Bill to be delayed; they were refusing to do that. 

Over recess, we've responded to an exceptional amount of amendments, and we are where we are. So, it's been impossible to move it. But there are some real fundamentals here as well. The Bill was a skeleton on introduction. It was clearly not complete. A series of discussions were ongoing at introduction, so even the UK Government was accepting that this was not a complete Bill at introduction. We then had to understand both the intent and analyse the extent of the provisions and try and understand whether it did actually engage the devolution settlement. The UK has consistently argued all the way through that this is to do with electricity and, even where the policy has quite clearly engaged with both waste and environment, they've tried to argue that, because the overarching issue is the generation of electricity, that somehow that doesn't engage the devolution process. Well, I would say that that was sophistry of the worst sort, and I think Delyth pretty much set out my view on that as well. So, we are not happy with that and we don't agree with it. And so an ongoing discussion ensues. So, the Minister who wrote to you is absolutely right, an ongoing discussion did ensue. What he didn't tell you was it was us saying, 'Don't be ridiculous, that's devolved.' So, the nature of the discussion is also important. 

We also had—. We had no full text of the Bill before it was introduced. We had small extracts shared in isolation, but the full text, which is 346 pages, was shared the evening before it was published. And it's now infamous in the Welsh Government that you are summoned to speak to a Minister of the UK Government for a 15-minute conversation and that must happen at 6.30 p.m. on a given night because they're clearly about to announce something the next morning and they've hitherto forgotten to tell you about it. That happens, I'm afraid, rather more frequently than you'd imagine. So, he is right, they did tell us, but what was I supposed to do with it at 6.30 at night, 346 pages? So, truth on both sides, I think, but the import of the truth is rather different.

You can hear that I'm cross about it, and I'm cross about it for this reason: it's not necessary. We broadly agree with the policy direction here. We agree that the UK needs to do this together. We agree that we need these provisions. This is not necessary. All the UK Government actually had to do was understand devolution from the start, engage with us properly and then ask for our consent—not consult us, ask for our consent in devolved areas. Now, they've conceded that consent in some areas and not in others, and it's a mystery to us why we have not had that conversation with them. And I'm afraid that's why we're not recommending consent to this Bill, because in two very important areas that I laid out in my original opening we disagree. And what I am most fundamentally upset about is the idea that somebody causing environmental damage in the Celtic sea pays into a fund that goes into the Treasury and that that somehow does something about the degradation to the environment. I don't believe that anyone in this Senedd, including you, Janet, thinks that's an adequate environmental protection. And on that basis alone, I do not like this Bill and I do not recommend that the Senedd gives its consent. Diolch.

The proposal is to agree the motion. Does any Member object? [Objection.] There is objection. We will therefore defer voting until voting time. 

Voting deferred until voting time.