4. What is the Welsh Government's position on using the UK Government to legislate in devolved policy areas? OQ60941

Thank you for the question. Legislation that can be made in Wales should be made in Wales. Legislation made by the UK Parliament or the UK Government must respect devolution.

Thank you very much for your answer, Counsel General. When I sat on the legislation and constitution and justice committee—I forget the name; I’ve been off it for a bit long now—we were getting concerned about, actually, how much the Welsh Government was using the UK Government to legislate in devolved areas. It’s a very serious concern because I want to see Welsh law made by Welsh policy makers here in the Senedd, and not made by people up the M4 who don’t really understand the needs of Wales. It doesn’t give us here the opportunity to scrutinise that law and make sure it’s futureproofed for us here.

One concern that we did have is about the capacity within the Welsh Government. So, can you confirm today, Counsel General, whether the Welsh Government does have the appropriate legislative and legal capacity within the Welsh Government so that we can make sure that law is made in Wales, for Wales?

Well, thank you for the question, and it’s obviously one I’ve been presented with many times by the Legislation, Justice and Constitution Committee. So, part of my answer remains the same, and that is this: the principles that I outlined in the beginning, in my first response to your question, remain. But, of course, there are many factors that begin to take us away from that.

The first of them is, of course, that we don’t have any control over the UK Government’s legislative programme. The Government introduces many Bills; at one stage, I think we had 32 UK Government Bills that were in process. Now, where those Bills overlap into devolved areas, we have no option but to engage in the legislative consent process; that’s what our Standing Orders require us to do. So, those are not choices that we’ve made for the UK Government to legislate on our behalf. Where we engage with those legislative consent processes, what we do presses very, very strongly the Sewel convention. I can tell you that engagement on the Sewel convention has been extremely difficult, because there have been, in the last couple of years, increasing numbers of breaches, so that where what should be the case is that, on an area that would affect devolved responsibilities, consent should be required, the UK Government regularly now presses ahead and says, 'No, we will consult.' Consulting has absolutely no judicial or legal status whatsoever, and in those circumstances it is a breach.

When we talk about the Victims and Prisoners Bill as one example—and we have a legislative consent memorandum coming on 30 April—that is a very classic example where engagement has taken place, it has been positive on areas, for example, with public advocates and their work in respect of devolved areas, and we were anticipating amendments that would require consent. Suddenly, there’s been a turnabout now to impose or to push through Westminster the issue of consultation only. Now, that is a breach of Sewel. There is no logic to it, and it’s difficult to understand where that sudden Intervention has come from that has suddenly changed the tone and nature of those particular negotiations. But that is becoming a very common trend.

Can I say that there are other areas, though, of course, where UK Government legislation is raising issues that we would not have the capacity to legislate on without disrupting our own legislative programme and the planning of that? And, of course, you realise the planning is not just resource in terms of the drafting and preparation of legislation; it’s also managing the flow of legislation and the time the committees have to actually deal with it. I’ll give you one example, which is the Tobacco and Vapes Bill. I think that’s a good example of an opportunity where we’ve engaged with the UK Government, where, in fact, there’s been four-nation engagement on it, and I think there are a number of other examples where that's happened as well.

So, it is very rare that we would go to UK Government to legislate on our behalf. Where it has happened, it has normally been in circumstances where UK Government is legislating in an area, and we've identified that it's not part of our legislative programme at the moment, but there would be benefits to the people of Wales were something to be extended to Wales. But that actually is very rare. The Majority of issues that go beyond our own legislative programme, where we are specifically legislating, normally arises out of the engagement with UK Government over its own legislative programme. I have to say that engagement is very, very difficult; in some areas it has improved, but there is still a fundamental weakness in the application of the Sewel convention.