7. Legislative Consent Motion on the Levelling-up and Regeneration Bill

– in the Senedd at 4:53 pm on 17 October 2023.

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Photo of David Rees David Rees Labour 4:53, 17 October 2023

(Translated)

Item 7 is the legislative consent motion on the Levelling-up and Regeneration Bill, and I call on the Minister for Climate Change to move the motion—Julie James.

(Translated)

Motion NDM8378 Julie James

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

(Translated)

Motion moved.

Photo of Julie James Julie James Labour 4:53, 17 October 2023

Diolch, Dirprwy Lywydd. Today's debate has been rescheduled a number of times as we respond to a continued ping-pong in amendments to the Bill. Firstly, I want to thank the committees for their consideration of the legislative consent memorandums. While the UK Government has failed to meet its manifesto promises of replacing EU funds in full and no power being lost to Wales, Welsh Ministers continue to seek a co-decision-making role on agreeing the outcomes and how funds supporting the levelling-up agenda should be spent. This helps to ensure policy coherence and avoid duplication. The levelling-up missions in Part 1 of the Bill are high-level aspirational outcomes linked to specific areas: education, health, transport, employment and economic development—areas I regard as within the legislative competence of the Senedd. The Senedd could pass equivalent provisions to those contained within Part 1, because of the objective of levelling-up to significantly reduce geographical disparity in the UK, and that is not a reserved matter.

Through the Well-being of Future Generations (Wales) Act 2015, we already have a set of integrated, long-term goals, designed to enhance the economic, social, environmental and cultural well-being of the whole of Wales for current and for future generations. These were developed by the people of Wales for Wales and agreed by this place. In my view, the amendments tabled by the UK Government on 4 July 2023 on Part 1 improve upon the position set out in the original revised LCM, laid on this Bill on 25 November 2022, to the extent that I can now recommend that the Senedd gives consent to the Bill. Our concerns about the implementation of this duty, its interaction with funding allocations and how the UK Government will discharge their duties to have regard to the role of the Welsh Ministers and the Senedd remain. We would expect to utilise the inter-governmental arrangements for Welsh Ministers to be engaged in this agenda. This helps to ensure policy coherence and avoid duplication.

Dirprwy Lywydd, turning to the other main provision within the Bill, the Bill proposes replacing the existing system of environmental assessment, namely environmental impact assessment and strategic environmental assessment, commonly referred to by their acronyms EIA and SEA. These processes were derived from the respective European directives, while primarily transposed through regulations made under the European Communities Act 1972. Now the Act has been repealed on leaving the European Union, there are no longer enabling powers available to make comprehensive amending regulations. However, the case for a framework of environmental legislation has not changed. It is vital we ensure standards of protection remain, and the assessment frameworks need to be kept up to date across the wide range of devolved areas of agriculture, marine, land drainage, water resources, highways, ports, forestry, transport and works, and planning. The Bill enables us to amend assessment regimes to keep them up to date, which is vitally important because consent regimes in England and reserved consent regimes across Wales will move to the environmental outcomes approach, whether or not devolved consents stay with SEA and EIA. It is therefore important that the Welsh Ministers have the regulation-making powers to use, should we need them, to ensure cross-jurisdictional projects are adequately accommodated, even if it means accepting a concurrent-plus approach.

This Bill started in a deeply unsatisfactory state, containing placeholder provisions, which gave the Secretary of State powers to legislate within devolved competence. The only acknowledgement of devolution was the requirement for the Secretary of State to consult the Welsh Ministers prior to making planning data and environmental outcome report regulations. As a result of Welsh Government engagement with the UK, the consultation requirements have been amended to provide the Welsh Ministers with the ability to make regulations in devolved areas, and limits the ability of the UK Government to legislate in devolved areas by requiring prior consent.

I fully recognise and share Members’ frustrations with the number and timing of the many amendments to this Bill, which have hindered scrutiny of the proposals. In considering whether to bring forward the environmental outcome report approach within individual sectors, I will be expecting full engagement with Welsh stakeholders. Given the safeguard of the consent mechanism, I consider the use of concurrent-plus powers in this case to be both pragmatic and consistent with our principles for UK Bills. This approach will enable delivery of the potential benefits of the Bill, as set out in my supplementary legislative consent memorandum, avoiding contradictions and uncertainty in the law, and to enable smooth consent routes for cross-jurisdictional schemes that may be required. Dirprwy Lywydd, I therefore do recommend Members support the motion to give the Senedd's consent to the Bill, and I move the motion. Diolch.

Photo of David Rees David Rees Labour 4:57, 17 October 2023

(Translated)

I call on the Chair of the Legislation, Justice and Constitution Committee, Huw Irranca-Davies.

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour

(Translated)

Thank you very much, Dirprwy Lywydd, and I thank the members of my committee. We have produced four reports on the Welsh Government's five legislative consent memoranda for this Bill, with our final report being laid after our committee meeting yesterday afternoon.

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour 4:58, 17 October 2023

Now, we realise this Bill has seemingly exercised and tested the Minister and her team. The progress of the Bill has truly exercised our committee, and it's tested some of the principles that we hold on to quite dearly on behalf of this Senedd. The Minister referred to, in her opening remarks, co-decision making between Governments. We understand that, but co-decision between Governments can, sometimes, mean bypassing scrutiny within this Senedd.

So, in total, our reports drew eight conclusions, made 38 recommendations, reflecting the extent to which, as the Minister has said, the Bill has changed since its introduction to the UK Parliament some 17 months ago. But it also reflects our concerns with some of the quality of some of the memoranda, and a lack of clarity on some issues.

Now, in our first report covering the first two memoranda, which is pertinent to today as well, a majority of Members concluded that Part 1 of the Bill, relating to the levelling-up missions, requires, indeed, the consent of the Senedd. And there was the unanimous agreement that all other Parts of the Bill making provision in devolved areas require the Senedd's consent.

Our nine recommendations in that first report sought clarity on a number of issues and, in particular, two recommendations sought information on why the Minister was seeking executive powers for the Welsh Ministers relating to planning data and environmental outcomes reports. Now, in making these recommendations, we noted the Minister's statement of her being open to persuasion on amendments to the Bill in these policy areas and 'that would benefit Wales but would also protect our devolution settlement'. Our report highlighted that amendments to the Bill providing such executive powers would occur at the end of the UK legislative process and, therefore, they would receive minimal scrutiny through the legislative consent process. As a matter of principle, we stated that any potential benefits for Wales on planning data provisions and environmental outcome reports would be best realised through a Welsh Government Bill subject to full scrutiny by this Senedd. This would be better than negotiations between Welsh and UK Governments and subsequent tabling of amendments in the UK Parliament late on in the legislative process, which bypasses that meaningful Senedd scrutiny.

So, in places, we didn't find the response to our first report to be satisfactory, and we pursued concerns in our second report, which focused on memorandum No. 3, and we made six further recommendations.

Our second report noted the Minister’s confirmation that the Welsh Government would be able to bring forward primary legislation covering planning data provisions and environmental outcomes reports. However, some of the additional commentary of the Minister in that letter appeared to suggest that the barrier to using a Welsh Government Bill was that it did not feature within the First Minister's legislative programme for that year, or a suitable vehicle did not exist within that programme. Now, we expressed concern at the implications of this suggestion that the Welsh Government would consider UK Bills can be used to make provision in devolved areas in these circumstances. Now, this is an issue that we said we will continue to monitor and probe because of its wider implications for not only how law is made for Wales, but also the principles of devolution.

Memorandum No. 4 was laid during the summer recess and our third report, published in early October, made a further 23 recommendations. This is an unprecedented number, Dirprwy Lywydd, at the end of a legislative consent process. The Minister has provided a detailed response, but it came in just after 3 p.m. today, so unfortunately we simply cannot address fully the issues within that and the response from the Minister. However, a brief initial analysis suggests there are some areas of concern that I think, Minister, we'll probably write to you again on. Responses to recommendations 18 and 22 are such examples. But, for today, and for this scrutiny process, it is important to note that making a decision on this Bill in the absence of timely information does place Senedd Members at a disadvantage.

Now, the reason for the 23 recommendations in our third report was the lack of information in memorandum No. 4 on some significant issues. We concluded that memorandum No. 4 had not reached a satisfactory standard, and our concerns were in two broad areas. Firstly, the Minister has changed her position and is now recommending consent for Part 1 of the Bill on levelling-up missions, but there's little in-depth explanation for this change. Now, this is particularly important given the Minister’s previous correspondence, and indeed today, that the Well-being of Future Generations (Wales) Act 2015 already covers some provisions in Part 1 of the Bill and that, in quotes:

'It is not for UK Government Ministers to set targets for these matters in Wales, nor to report on achieving these to the UK Parliament.'

And, of equal importance, we note the views of the Counsel General, who said in June that Part 1 of the Bill, in quotes,

'represents an inappropriate intrusion into the legislative competence of the Senedd.'

So, recommendation 7 asked whether the Welsh Government still held this view, and I cannot see, Dirprwy Lywydd, that the Minister's letter this afternoon addresses this directly, so I hope the Minister can address this point in her closing remarks. My apologies, Dirprwy Lywydd; because I had the letter late this afternoon, I'm trying to respond to a couple of points there, if I have your latitude. 

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour

Diolch yn fawr iawn. 

Moreover, the Minister emphasised in memorandum No. 4 that the Welsh Government is still of the view that the Senedd could pass equivalent provisions to those contained within Part 1 of the Bill, and referenced the need to use inter-governmental arrangements and co-decision making in relation to the levelling-up agenda.

So, the Welsh Government’s changed position raises important questions, including, 'How does the Senedd subsequently scrutinise these matters?' Twelve of our recommendations are aimed at seeking answers to those questions. So, the Minister's response, received this afternoon, is going to take some unpicking, Dirprwy Lywydd; it simply isn't possible to consider it in the time available, or to address the issues in this speech. 

But the second area of concern, the subject of six recommendations, was on the acquisition of these concurrent plus regulation-making powers for Welsh Ministers, right at the end of the legislative process, in relation to planning data provisions and environmental outcomes reports. There's no information provided in memorandum No. 4 about the scope of each power delegated, the policy intent for each power, or when the powers will be used. So, it means that the UK Parliament, rather than the Senedd, will be responsible for delegating powers to the Welsh Ministers and deciding the scrutiny procedures that should apply to these regulations laid before the Senedd by the Welsh Ministers. So, the Senedd’s scrutiny function is again bypassed and replaced by what will be, in effect, a 'take or leave it' provision on a legislative consent motion. We just don't believe, Dirprwy Lywydd, that this approach represents an adequate substitute for the scrutiny and law-making function of this Senedd.

So, in conclusion, whichever reason the Welsh Government may have for taking this approach in this instance, this is now the result. So, our LJC committee, Dirprwy Lywydd, must continue to analyse and to comment on this, to be vigilant and flag these issues for Members' consideration, and be consistent in urging the Government to reconsider this approach, in its generality as well as in this instance. Diolch yn fawr.

Photo of David Rees David Rees Labour 5:05, 17 October 2023

I allowed the extension on that contribution because I felt it was important we heard from the Legislation, Justice and Constitution Committee on this matter, but I'm sure all other contributors will keep to the five-minute limit.

Photo of David Rees David Rees Labour

(Translated)

I call on the Chair of the Climate Change, Environment and Infrastructure Committee, Llyr Gruffydd.

Photo of Llyr Gruffydd Llyr Gruffydd Plaid Cymru

(Translated)

Thank you very much, Dirprwy Lywydd. The Climate Change, Environment and Infrastructure Committee has published three reports on the Levelling-up and Regeneration Bill, covering the first four memoranda. After being laid on 6 October, memorandum No. 5 was referred to us on 10 October. The reporting deadline for report submission was 16 October, but it was impossible for the committee to meet that deadline. Our reports on the memoranda focus on the clauses relating to planning data and environmental outcome reports, which are of particular interest to the committee.

When the Bill was introduced, these clauses provided powers to the Secretary of State to make regulations for Wales in areas of devolved competence rather than the Welsh Ministers. In the committee's first two reports, we concluded that we weren't in a position to make a recommendation to the Senedd on the matter of legislative consent, given that there were ongoing inter-governmental negotiations to ensure that the clauses fully reflected devolved competence.

Memorandum No. 4 was referred to us on 12 September. This memorandum included amendments to the clauses relating to planning data and environmental outcomes reports that were made during the Report Stage in the House of Lords. The clauses, as amended, are a marked improvement on what was included in the Bill as introduced. However, we noted in our report that there were two points that caused us concern. Given these concerns, once again, we concluded that we weren't in a position to make a recommendation on the matter of consent.

Photo of Llyr Gruffydd Llyr Gruffydd Plaid Cymru 5:07, 17 October 2023

So, our first point of concern relates to the use of concurrent powers and the bypassing of Senedd scrutiny of planning data and environmental outcomes reports regulations made by the Secretary of State on behalf of the Welsh Minister. Now, this issue has already been covered by Huw, so, in the interests of time, I won't go into further detail other than to say that we share the concerns that he expressed.

The second point of concern relates to the requirement on the Welsh Ministers to have regard to the UK Government's environmental improvement plan when making environmental outcomes reports regulations for Wales. Now, the plan sets out how the UK Government will improve the natural environment in England; it has no relevance to Wales. In comparison, the Scottish Ministers and the relevant Northern Ireland department must have regard to environmental improvement plans for their respective nations. In our report, we asked the Minister to explain whether, and, if so, why, she believed the requirement on the Welsh Ministers was appropriate. Now, since we reported, the Bill has been amended so that the Welsh Ministers must have regard to Wales's national natural resources policy when making environmental outcomes reports regulations. This is, of course, to be welcomed. This amendment was covered by memorandum No. 5, which, as I've already said, the committee was not able to consider.

Dirprwy Lywydd, I'd like, once again, to highlight the worrying trend of amendments to clauses for which consent is required being made at the end of the legislative process in the UK Parliament. This provides limited opportunity for Senedd committees to consider fully the implications of the provisions for which consent is being sought for the development and delivery of future Welsh policy. I'd like to draw Members' attention to the Minister's response to our latest report, which we received just this morning, which we've asked to be published alongside today’s Plenary agenda, and I hope that it'll help inform Members' decision on whether to give consent to the Bill. Diolch.

Photo of Alun Davies Alun Davies Labour

I'm grateful to you, Deputy Presiding Officer, for this opportunity to comment on this LCM. I have to say—I may as well be absolutely honest with the whole Chamber—when I made the speaking request, I did assume that the Government would be asking us to vote against it. So, I place myself in a somewhat invidious position of having to both speak against it and vote for it—[Interruption.] I've done it before, the Member says, and it is a tradition in this place, I hope; I've tried to create that. But I think it's important that we do not simply accept these legislative consent motions, but we actually debate the issues that are around them. When levelling-up was launched by I think it was Boris Johnson, when he was making up with Michael Gove, he was very clear. 'Levelling up', he said,

'is a moral, social and economic programme for the whole of government.' and he was very clear about that. It's interesting that he used the word 'moral' programme; it's not something you associate easily with Boris Johnson. And he was very clear that it was something that united Government, both in its actions and decisions, but also in what it does, how it thinks and how it takes those decisions.

So, the Bill that we're debating this afternoon isn't simply about a programme, but it's about how decisions are taken on that programme, and I commend the Minister on the work that she's done in negotiations with the UK Government about ensuring that Welsh Ministers are involved in those decisions. I accept the points that have been made by both committee Chairs that this place also needs to be involved in those. But there's a more fundamental point at play here, isn't there? If you read the White Paper on levelling-up, published some years ago, it starts off with an executive summary that says what a successful place the United Kingdom has been, and then it gets to the heart of the matter. It says that there are more geographical disparities within the United Kingdom than in any other country that would be in any way comparable with the United Kingdom. And then it lists what those disparities are, and it goes through almost any demographic comparator that you can use, whether it's on health or the economy or social indicators. Every single one of them has a range of disparities, and we all know that, in some parts of the United Kingdom, we have concentrations of wealth and that the policies of the United Kingdom Government are there to generate not only more wealth, but to maintain wealth in that place, and that levelling-up was a means by which crumbs are deposited from that table into other areas. I'll take an intervention.

Photo of Gareth Davies Gareth Davies Conservative 5:12, 17 October 2023

Would you accept, with those points you made, that the difference in political colours in devolved nations can play a part in that process of the levelling-up agenda being somewhat complicated through political indecision and political differences between parties that act as obstacles to achieving levelling-up funding, rather than if it was directly administered by the UK Government?  

Photo of Alun Davies Alun Davies Labour

The Member is still quite new to this place, but my advice to him would be that, if he's going to intervene on some of these issues, he should read the White Paper that I'm describing, and you should read it before you intervene. Had you read it, then you would know that the UK Government didn't make that comparison in the White Paper, and that's not what the UK Government were saying. The UK Government were referring to England as much as they were referring to disparities across the United Kingdom. You need to listen to what your own Government in London is saying. You—[Interruption.] No, listen to that. Don't interrupt. Listen to that. Listen to it, because I've read it and I've understood it.

And let me say this: I believe—and I say this as a matter of sorrow as much as anything else—that levelling-up is dead. It's dead. I don't believe that the UK Government were ever committed to it, but the moment they took the decision on HS2, it died. And it died because every single one of us knows that if that money was required to deliver a transport programme, or any other programme of that sort, and if that money was required in London or the south-east of England, the money would have been found. And the reality is that the UK Government would not deliver that programme, and will not deliver that programme, because it doesn't matter to them because it's not something that is being delivered in the south-east of England or in London. We have a UK Government from London for London, and that is as true for the people in England as it is for those of us sitting here. That is something that we need to address. 

So, Minister, I obviously support—[Interruption.] Okay, fine, fair enough. I'll take the intervention.

Photo of Darren Millar Darren Millar Conservative 5:14, 17 October 2023

You've made a point about regional disparity. What about the regional disparity here in Wales? What about the fact that north Wales is constantly overlooked when it comes to investment by the Welsh Government? And wouldn't you prefer that the Welsh Government do some levelling up across our country, rather than criticising the efforts of the UK Government to level up across the UK? 

Photo of Alun Davies Alun Davies Labour

A more uncharitable figure would argue that perhaps the representatives from some constituencies aren't as strong as others. But I don't believe—[Interruption.] I don't believe—[Interruption.] I don't believe the point—. I don't believe that the point that the Member is making is a valid point. But there's a more fundamental point than that, of course, because within Wales we don’t have the financial structures and mechanisms and means of delivering redistribution in the way that you do across the United Kingdom. And over the last, say, century, the United Kingdom has created more wealth than almost any other comparable country in the world. It has also created more inequality than any other comparable country in the world, or certainly in Europe, and it is the lack of the redistribution of wealth, the creation of inequality, that is the point that I seek to make this afternoon.

But I’m testing the patience of the Deputy Presiding Officer twice in one afternoon, and I’ve learned that I shouldn’t really do that. So, I’ll finish with this point: whatever the legislation that is passed through the Westminster Parliament, whatever the agreements that have been made in this negotiation, whatever the vote this afternoon, levelling-up will not address inequality and will not deliver the redistribution of wealth that we require in the United Kingdom. I believe that we should, as a Parliament—and, I hope, the Welsh Government as a Government—make the case to the United Kingdom that we need more fundamental reform of the United Kingdom state and the United Kingdom Government, and the institutions of that state and the institutions of that Government, to ensure that we have real redistribution, real addressing of inequality, and a levelling-up that will be worth the term, and worth another White Paper

Photo of Adam Price Adam Price Plaid Cymru 5:16, 17 October 2023

To follow Alun Davies, it certainly is true, if you look at evidence around the world, at states that have successfully lowered the economic gap between the different parts of their state, then actually redistribution of economic opportunity, wealth, goes hand in hand with redistribution of political power as well. We see it in the case of Germany, for example, to a large extent, and in other places as well. And, indeed, that is reflected, ironically, in the levelling-up missions. It’s the twelfth mission, which is 'Empower local leaders and communities', but of course it’s only referring to devolution within England, because as far as we are concerned in this place, this is not a levelling-up Bill for us, it is a levelling-down Bill, which takes away power and actually inhibits us from doing the kind of economic regenerative work that is necessary in order to drive up prosperity in every part of Wales. And in that—[Interruption.] Yes, go on.

(Translated)

The Llywydd took the Chair.

Photo of Gareth Davies Gareth Davies Conservative 5:17, 17 October 2023

All I would say on that point is that there is devolution in England as well, and I was mentioning it to Alun, the fact that you've got city mayors in different parts of England, regional mayors, some of a different political ideology. So, the point I was making was more that there are political obstacles that are naturally in place because of those devolution—. It's not an argument against it; it's just making the point that that is a political reality, even in England.

Photo of Adam Price Adam Price Plaid Cymru 5:18, 17 October 2023

Yes, but the point is that this Bill and the legislative consent memorandum that has come before us now, they run roughshod, they undermine our democracy here, and they actually undermine our ability to drive up economic opportunity for all of our people. And that's why it's disappointing that the Government has changed its mind.

It's strange in the light of—as the Chair of the Legislation, Justice and Constitution Committee said—the comments of the Counsel General in relation to this Bill. And the fact is that we're making a decision in the dark, here, aren't we? The Business Committee asked the LJC committee to bring forward a report, and there are 23 recommendations in one of those reports actually asking for further information because of a lack of clarity from the Government in the memorandum. We got that response 90 minutes before the Minister got up. Who here has had the opportunity to actually understand what we are actually being asked to vote upon?

One of those responses refers to the reason why the Government changed its mind. It essentially says that there was a necessary fetter now on the UK Government because the Government had negotiated a report that has to be put before Parliament, which will set out the consultation that it has had with the Welsh Government, and through the Welsh Government, presumably, with the Senedd, and it has to have due regard. Well, you know, the right to be consulted is also the opportunity to be ignored. And in the same letter the Minister goes on to express the Government's continuing frustration with how unhelpful the attitude of the Government is in relation to the shared prosperity fund or the programme announced in terms of town regeneration, which completely ignored the Welsh Government, and various other aspects or examples of how the UK Government continues to ignore the rightful role of this place in actually speaking up for the people of Wales.

So, why on earth, then, was the Government convinced by simply the responsibility to produce a report to the—? What will that report say? 'We consulted with the Welsh Government, we didn't agree with them and we decided to carry on'—that's what we're going to get. So, I would ask the Minister whether she could put on record, because it's one of the questions of the committee that wasn't answered, actually, in your letter, whether you still regard Part 1 of the Bill as 

'an inappropriate intrusion into the legislative competence of the Senedd.'

That's what the Counsel General said only a few weeks before the meeting that happened that appears to have changed your mind. Do you now take a different view from the formulation that the Counsel General put before us when he was making his remarks?

Photo of Rhys ab Owen Rhys ab Owen Plaid Cymru 5:21, 17 October 2023

We've heard on several occasions concerns in this place regarding the LCM process; we've heard many of them stated again this afternoon, and the Chair of LJC and Adam Price have eloquently set out the scrutiny deficit surrounding this LCM. Unlike Alun Davies, I'll be speaking against and voting against this LCM, but I will start on a positive note. I was very pleased that the Minister has managed to amend the Bill so that Wales is not bound to a UK-wide environmental improvement plan. The idea that we'd be bound to the anti-green policies coming from Westminster is frightening, and it's crucial that we keep our hands on the powers over the environment.

However, I'm very concerned that this Bill continues the trend of centralisation of decision making to UK Ministers; in this case, to the levelling-up Secretary. Yet again, we see the terrible practice of Henry VIII clauses being used. This is poor law making that not only causes major constitutional issues, but makes the law far more uncertain and takes away crucial scrutiny power. They were created by the infamous King as a way to undermine Parliament, and their use today is an erosion of the powers of our legislatures in the United Kingdom. Like their namesake, can we please consign Henry VIII clauses to the history books?

Local authorities have raised concerns that under section 94 they will be forced into complying with the national development management policy rather than providing their own local plan. The initial draft of the Bill allowed no legal limit for the level of interference from the UK Government, and while I'm glad that an amendment has been passed to allow for public and parliamentary scrutiny, the power still rests, ultimately, in the hands of the Secretary for levelling-up.

Now, the levelling-up Secretary has insisted that this Bill will be for the benefit of the people of Wales. Well, I have some major concerns about that, especially as that was promised to us with regard to the high speed 2 line. Despite the numerous levelling-up programmes we've had since Brexit, the Welsh budget has still been cut by nearly £1 billion. I'm sure we can all agree with Adam Price that this feels much more like levelling down rather than levelling up.

Finally, Minister, I was very disappointed to see that this Bill fails to repeal the cruel Vagrancy Act 1824. As a young barrister, I often saw homeless people being prosecuted in our magistrates' courts simply for trying to survive. The Bill merely asks the Secretary of State to assess the impact of the Bill. Minister, surely—surely—we don't need any further assessments. This is totally at odds with your recent announcement to this Senedd. I hope we can all agree that an Act that continues to punish homeless people in Wales and in the UK should also be consigned to the shameful pages of our history books. Diolch yn fawr.

Photo of Julie James Julie James Labour

Diolch, Llywydd. I thank all the Members who've made their contributions today. From the start, I've been very clear that the process by which the UK Government has gone about making this Bill has complicated matters significantly. It's hampered my ability and the committees' ability to consider the changes and has generally not been a happy experience all round.

From the outset, I've been clear that provisions on the new environmental outcomes report and planning data do have potential benefits for Wales, and I was clear in the committees that I could be persuaded, if the Bill could be modified, that that was the right way to go. The proposals absolutely started in a deeply unsatisfactory state. They contained placeholder provisions that gave the Secretary of State powers to legislate within devolved competence, and the only acknowledgement in that first situation was the requirement for the Secretary of State to consult with Welsh Ministers prior to making planning data and, indeed, the new EOR regulations. What we now have are provisions for Wales on EOR that respect the devolution settlement and ensure that we can continue to provide new legislation in this area. This has been a long and tortuous route. It has been fraught with difficulty. I want to apologise to both committees for the lateness of the response, however, it's driven by the problems we have with getting any kind of response from the UK Government, and by the lateness of all of the consultation processes on this. So, this has not been a happy process at all.

Just in terms of the environmental outcomes reports, I'll just go through, Llywydd—bear with me, I'm sorry, because there were a lot of points made on this matter. The regulation-making powers for environmental impact assessments and strategic environmental assessments were primarily found in section 2(2) of the European Communities Act 1972. Without that Act in place—it is now repealed—many of our systems will simply stagnate. That is just not an acceptable position to be in. The EIA and SEA regimes cut across a wide range of devolved areas, and I did say in my contribution at the beginning that these included planning, forestry, agriculture, highways, land drainage, marine works and minerals, just to name a few. Given the extensive nature of the provisions, the potential problem of having no primary legislation is real; it is a real danger. We cannot be put into that position. We don't have any availability in our legislative programme to take forward our own legislation in the frame available to us, and therefore, if we do not accept this opportunity, there will be a gap. This does not prevent the Senedd from making later regulations that are better suited to Wales, but it does stop us having an absolute gap in the regulations. And that's the persuasive point as far as I'm concerned.

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour

You make a really good point. We can't fathom the reasons why, beyond that there isn't a gap at the moment, perhaps a parallel Bill couldn't have been brought forward, but it may be a range of reasons. You hold out the potential of bringing forward something that will be better in future, that will replace that scrutiny back here. But the same thing might apply in the future, that there isn't a gap because there are other pressing legislative issues to deal with. Isn't that a danger as well?

Photo of Julie James Julie James Labour

Absolutely. That's a fair point, isn't it? But if this regime worked, then we wouldn't need to do that. If it doesn't work, then there'll be a pressing need to do it. What we have absolutely is we face a gap that is real and present, and that, I cannot fix. So, this is a way to fix that. It may turn out to be a stop-gap fix; it may turn out to be a permanent fix, depending on how it works, but the opportunity is there to change it in the future.

And just to press the point, we can't ignore the new environmental outcomes report approach, because the UK Government will apply it to reserved consent regimes, such as nationally significant infrastructure projects consented on an England-and-Wales basis under the Planning Act 2008. So, this will happen, whether we consent to it or not, and the process in which we engaged has put us into a much better position than we would have been otherwise, and that was the point that I was making. It's not that I'm happy about it—I'm not.

There are three other issues, though. There are real issues that, if we create differences across the border for infrastructure investment projects, that is a real problem. So, 'alignment', I suppose, is the word we want; we want alignment. There may be nuanced differences on this side of the border, but for cross-border projects—many of them are cross-border projects and electricity transmission is one of them, for example—we do not want any such problems to dissuade investment in Wales. We are really fighting for investment in the grid in Wales, for example, and we do not want investors to be put off by that. So, just having a gap in the legislation would not suit at all. And then it makes sense to avoid duplication and additional processes, so as this rolls out, we'll be able to see what we can do to enhance it, and we have, of course, our own infrastructure Bill going through the moment as well.

The provisions in this Bill provide for an overarching power to make provisions in respect of environmental outcome reports to accompany strategic plans and relevant project consents. They do provide a framework, with powers to set environmental outcomes and a subsequent requirement for a report to be prepared for relevant plans and project consent applications that are specified in the regulations that will follow. It will be slightly clearer than the current system anyway, which has current multiple regulations for those kinds of projects, but we will support any new system with a comprehensive set of guidance and training here in Wales to ensure the smooth transition and to help our stakeholders. So, it's very important that we negotiated that consent from the UK Government.

We are also subject to constraints on the Espoo convention on EIA, the Aarhus convention on information, and any international trade agreements. So, actually, we will be forced into a similar system regardless, because we must be compliant with our other international obligations, irrespective of what we call them or who drafts them. I make no bones about it, Llywydd, this is a compromise position. It is a better position than we would be in if we don't do it, it's not the position I would have liked to have been in, but, in the end, it's a pragmatic approach.

The other point I just wanted to make is that we really wanted to make sure that this provided us with the power to make regulations in areas within the legislative competence of the Senedd. The Secretary of State can only make regulations in devolved areas with our prior consent. We don't need to give that consent, we can make those regulations here. It does give us an additional position that we did not have in the first place, so I just wanted to be clear about that. We've made sure that amendments made to the Government of Wales Act mean that this can be done without requiring UK Government consent, which was a long and tortuous conversation, it has to be said. In my view, Llywydd, that does protect the Senedd's legislative competence, which I was clear that I wanted to do.

And then, just on the levelling-up missions, because that will be mostly about the environmental outcome reports, we continue to seek a co-decision-making role in agreeing the outcomes and how funds supporting the levelling-up agenda, including the shared prosperity fund, should be spent to avoid duplication and to ensure policy coherence.

It is our view that the Senedd could pass equivalent provisions to those contained in Part 1, and, therefore, it is our view that Part 1 of the Bill does require the consent of the Senedd, which is why we're here. I am content that the amendments tabled by the UK Government on 4 July 2023 improve on the positions set out in the original revised LCM laid on this Bill on 25 November. They clearly indicate a recognition of the role of Senedd Cymru and the Welsh Government in the devolved areas covered by the levelling-up missions and respond to the concerns we have consistently expressed to the UK Government on the Bill. They do place several consultation and due-regard obligations on the UK Government when setting, reporting, revising and reviewing the statement of levelling-up missions and associated methodology. They do require a Minister to report to Parliament on how they have had regard to the role of Senedd Cymru and the Welsh Government, which will be subject to parliamentary scrutiny—

Photo of Adam Price Adam Price Plaid Cymru

Without revealing the exact content of any legal advice you've received, what is your understanding of the justiciability of that 'due regard' phrase?

Photo of Julie James Julie James Labour

I take your point. Of course, due regard can be, 'We've had regard to it, we've decided to do it anyway.' We had long conversations with UK Government Ministers about how we might protect the position of the Welsh Parliament and of the Welsh Government in terms of having to take into account our issues on it. I'm satisfied that in having to write a report to Parliament that sets out why we have a problem—because that's the only reason why they'd be doing it; if we didn't have a problem, there'd be no such report—they would themselves have to go through a process that made them think about why they weren't able to look at that, and, of course, it does expose that to parliamentary scrutiny. I think we would probably be able to develop a similar process here that would enable us to express a view on it. It's not perfect, I completely agree, but it's a great deal better than where we started, and if we don't do this we will have a gap in our legislation, which is much worse. I accept it's a compromise.

Llywydd, I will conclude there, because there are a large number of detailed points made, and I concur with most of them, but in the end, this is a compromise position, and on balance, we think it’s better to have consent for this LCM, and so have the concessions that were given by the UK Government, than not to have it. So, on that basis, I recommend the motion to the house.

Photo of Elin Jones Elin Jones Plaid Cymru 5:35, 17 October 2023

(Translated)

The proposal is to agree the motion. Does any Member object? [Objection.] Yes, there are objections. I will therefore defer voting under this item until voting time.

(Translated)

Voting deferred until voting time.