National Assembly for Wales

Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

27/11/2017

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd AM
David Melding AM
Mick Antoniw AM
Nathan Gill AM

Y rhai eraill a oedd yn bresennol

Others in Attendance

Bethan Roberts Llywodraeth Cymru
Welsh Government
Janine Hale Llywodraeth Cymru
Welsh Government
Tracey Breheny Llywodraeth Cymru
Welsh Government
Vaughan Gething AM Ysgrifennydd y Cabinet dros Iechyd a Gwasanaethau Cymdeithasol
Cabinet Secretary for Health and Social Services

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Alys Thomas Ymchwilydd
Researcher
Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Gareth Pembridge Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Tanwen Summers Ail Glerc
Second Clerk

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Dechreuodd y cyfarfod am 15:00.

The meeting began at 15:00.

1. Cyflwyniad, Ymddiheuriadau, Dirprwyon a Datganiadau o Fuddiant
1. Introduction, Apologies, Substitutions and Declarations of Interest

Good afternoon and welcome to the Constitutional and Legislative Affairs Committee. Welcome to our witnesses and to the Members and any members of the public.

Just a few handling items: in the event of a fire alarm, Members should leave the room by the marked fixed exits and follow instructions from the ushers and staff. There is no test forecast for today. All mobile devices are to be switched to silent mode or off. The National Assembly for Wales operates through both the medium of Welsh and English languages. Headphones are provided through which instantaneous translations may be received. For any who are hard of hearing, these may also be used to amplify sound. Do not touch any of the buttons on the microphones as this can disable the system, and ensure that the red light is showing before speaking. The interpretation is available on channel 1 and the verbatim on channel 2. 

So, the first item: any apologies and declarations of interest? I see there are none. To declare myself in respect of the final item—the Agricultural Wages (Wales) Order 2017, which is at the end of the agenda, for which I will vacate the chair in due course. 

2. Bil Iechyd y Cyhoedd (Isafbris am Alcohol) (Cymru): Tystiolaeth gan Ysgrifennydd y Cabinet dros Iechyd a Gwasanaethau Cymdeithasol
2. Public Health (Minimum Price for Alcohol) (Wales) Bill: Evidence from the Cabinet Secretary for Health and Social Services

Item 2: we're dealing with the Public Health (Minimum Price for Alcohol) (Wales) Bill—evidence from the Cabinet Secretary for Health and Social Services, Vaughan Gething. Welcome to the meeting. Would you like to introduce your staff? 

Good afternoon. I'll let them introduce themselves, from left to right. 

I'm Bethan Roberts, one of the lawyers working on the Bill. 

Hello, I'm Tracey Breheny. I'm deputy director, Welsh Government substance misuse policy. 

Hello. Janine Hale from knowledge and analytical services. 

Okay, thank you very much. We'll start off with a number of questions. David Melding. 

Cabinet Secretary, can you tell us what discussions you've had on whether this Bill falls within the Assembly's competence?

Obviously, this was a matter of discussion within the Government and between Governments over a period of time. You'll be aware of the history of this piece of legislation and the consultation that took place previously, the public health White Paper, then the draft Bill in 2015-16 when I was the then Deputy Minister for Health. We have believed for some time that this particular piece of legislation is within the competence of the Assembly. We believe that is likely to change with the passage of the Wales Act 2017 and, obviously, the recent judgment by the Supreme Court on the Scottish legislation reinforces our view that this legislation is within the competence of the National Assembly for Wales. 

And did the Supreme Court judgment affect some of your judgments on competence? Obviously, the broad thing was it didn't break trade law and could therefore go ahead, but were there other issues of competence involved in the judgment? 

Well, it reinforced our view about competence where we are now. I think it's also worth pointing out that some of the factors that the judgment pointed to, which were helpful in determining that it was within competence, were the way in which the legislation was structured and set out. So, the fact that there's a sunset clause, the fact that there's a review built into the Bill as well—those were helpful parts as well. So, I personally don't have any particular concerns about competence, and our disagreements with the UK Government really have been about the way in which they deliberately trammeled the ability of the Assembly to act in this area in the passage of the Wales Bill. The language has been definitely restricted. You'll know, of course, in the last term there was cross-party support for this legislation. And there was also just a disagreement about whether it was the right policy approach as opposed to competence.   

And have you discussed with the UK Government their view on competence because, as you say, under the Wales Act—it will cease to be within competence April next year? Do they accept that, until then, it is within our competence? 

Well, they haven't raised any substantial concerns about competence with the current framework that we're operating under. As I say, there is, though, a clear policy difference about the right approach, but that's been going on for several years and you'll be aware—

We're not concerned about policy—it's the constitutional propriety of it. 

They haven't really, as far as I'm aware, raised any constitutional challenges; they simply disagree with our choice, which is a different issue. 

So, anyway, as a result of the Wales Act you've basically got to get everything through Stage 1 by—is it 1 April? I can't remember. 

Are you confident that that will be done with all proper propriety and not rushed, and will be fully completed as a proper Stage 1 process?

15:05

Given that we're starting now in November and where we've been before on not just having a previous White Paper discussion where this was raised, but a draft Bill that there was consultation on as well, I'd say there's absently no reason to think that, between now and the end of March, we should not have enough time to properly conclude Stage 1 in the Assembly. I don't say that everyone will agree, but we should properly have concluded Stage 1 by that point.

Thank you. Cabinet Secretary, I just wondered how the balance of what to include in regulation and what to include on the face of the Bill was determined. How did you come to that conclusion?

Well, we need to set out the purpose of the Act on the face of the Bill, clearly. We've deliberately drawn up a short Bill as well. I don't think we needed to have an overly lengthy Bill. There's also the balance of what is better explained either in a memorandum or in regulations. For example, we made a deliberate choice, unlike [correction: like] in Scotland, to keep the price itself off the face of the Bill. I remember being a backbencher and now in this part of life in politics, and in previous times people would ask Ministers, 'Why have you put this much detail on the face of a Bill?'—

Well, indeed, but then there's a choice here about something where you would expect that, over time, if this regime is to be successful and take account of evidence and understand whether (a) the evidence you had about the initial setting of the level still makes sense a period of time afterwards, and if we put that on the face of the Bill, we'd have to pass primary legislation to change it, or to take a regulation-making power for Ministers to be able to change the face of the Bill, which legislators in almost all Parliaments have an issue with and don't like the Government taking power to change the face of a Bill. We've opted for something here with minimum unit pricing itself—the central part of the Bill—where we've taken a regulation-making power but put it in the affirmative, so Members positively have to vote for it as well.

That's the same actually in the operation of the sunset clause as well. So, if Welsh Ministers want to continue that, then there has to be a positive vote to continue with the minimum unit pricing regime. So, I think we're trying to get the balance right, and I understand that, of course, there'll be a testing of the way in which we've made that choice at this point, and that's the point of having proper scrutiny of the Bill to understand that we get that right.

And if Nathan doesn't go further on this issue: should the MUP be on the face of the Bill?

No, I thought it was something specific on this point.

Obviously, you've mentioned 50p per unit in section 1(3). Is that something that you're going to be going for—50p? How often do you think that you'll be changing this? Is it something where you envisage trial and error with the minimum unit price? What's your thinking behind that?

There are two points to make here. The first is the evidence base for setting the minimum unit price at the time. We have the previous study from Sheffield university in 2014, which showed a range of public health benefits. That is, after all, the point of having a minimum unit price, because of the significant public health benefits that we think will accrue to the population of Wales. But we are updating that evidence, and will have more published this week, I think, on Wednesday and then something in the new year as well. So, Members will again transparently see the evidence base on which the Government is acting to underpin the policy as opposed to the, if you like, constitutional propriety in David Melding's earlier elegant phrasing. So there's something there about updating the evidence. And, of course, in setting the minimum unit price, we want to understand it at the first point, but at any point in the future, the Government, assuming the legislation is passed, would want to update that and want to again think about the evidence once the regime starts.

The reason why 50p is mentioned on the face of the Bill is that there are examples of how to calculate the price rather than the setting of the price. And, actually, that would remain the same whether the ultimate minimum unit price was 60p or 35p. You'd still go through the same formula to arrive at the answer as to what the minimum unit [correction: delete 'unit'] price should be. So, that's an illustrative point on the face of the Bill to show how it's calculated, rather than the choice that we made about where it's most effective to pitch the minimum unit price at the start point and then subsequently thereafter.

Okay, thank you. Did anybody want to come in on that?

The policy of how much it should be, obviously, is not for us. But you're in the slightly unusual position that what is a regulation-making power at the moment to set the price is also the major part of the Bill. That's a fairly rare situation. By putting this in regulations, it would mean that no-one could put an amendment down saying that the MUP should be 80p or 75p to capture a much broader group of drinkers who may not have addiction dependency problems, but they're certainly consuming alcohol at a level that will have a health impact. None of that debate can take place because of the—. Well, it could take place in a general narrative sense, but it couldn't in terms of trying to alter the legislation because of the vehicle you've chosen. And don't you think it might have been better to have had the price on the face of the Bill initially, and then a power to review that every three or four years, or whatever? And that could be done by the affirmative procedure. Would that not lead to a much more thorough debate on the central principle of this Bill, which is how much a unit of alcohol should at a minimum cost?

15:10

I can understand the argument you're making, but, actually, I think we're doing the right thing and going the right way about it, because we're passing a Bill with 50p as the illustrative example. So, lots of people are already talking about the price. We've got the study that reported in 2014 that gave us an evidence for that. We have updated evidence that will be available in the public domain, some this week and some in the new year again. So, as we run through this legislation passing, there will be a healthy debate around what should be the level of the minimum unit price at the outset. And then, in any event, assuming the Assembly passes the Bill and it becomes an Act, we will then have a period of time to commence the Act's provisions as well. So, there will be debate through that time about what the actual pricing should be. We'll need to give notice to people, of course. We won't simply pass the Bill and on day one, say, 'That's it, we're off and running.' The other part, of course, is that in the debate we're having, we're having this in the real world, in real time, as opposed to an academic exercise. And because Scotland are proceeding in any event, we'll have real-time evidence there as well. So, I think that there won't be avoiding any debate, even if we wish to. 

It will give the legislature less power because it won't be able to say that the price should be, reflecting on the various evidence, obviously, set at, instead of 50p, say, 70p. If you go through the affirmative resolution route, you have a take it or leave it power there in the legislature, but you don't have an amending power to actually set a price. So, unless the Government comes forward with the price you want, you're never going to be able to set it at that level. 

Well, I think it may be helpful to put it this way: not just during the passage of this piece of legislation will there be a debate about what the price should or shouldn't be, whether there should be a price in the first place, then if there is to be one, what it should or shouldn't be, and what evidence the Government takes account of. So, that will be very clear and transparent through the passage of this piece of legislation. If the Assembly passes the Bill, we'll then have a period of time within which we'll then activate a minimum unit price. And I would expect, again, that there will be a very open and transparent debate. We'll have the experience of Scotland, and, you know, during that—

I don't doubt that, but the legislature will not have the power to set the price. It would only have the power to say, 'On this evidence, we accept or reject the Government's proposal.' 

No, and that's it, and that's the choice that's being made. But, look, when it comes to it, we'll then have another consultation as well, just to check out about our proposals, and that's consistent with the way Scotland are going about their first setting of it, and they've had a debate in their Parliament as well. So, I don't think there'll be any shortage of debate if a legislature is to practically try and influence the decision the Government makes, but this is the choice we've made about an affirmative process.

Did you actually consider putting the minimum unit price on the face of the Bill, or was that decided as not the course of action fairly early on?

Yes, there was some consideration about it, because, actually, it's still the challenge of how you then change the face of the Bill, and I'm acutely well aware that legislatures typically don't like Ministers reserving powers for themselves to change what is on the face of legislation.

Can I just ask you on that though? You've obviously referred to Scotland and the Supreme Court judgment has clarified a lot of issues that might have been raised, certainly as far as the legal position goes. But, lessons to be learnt from the debate in Scotland, particularly over the mechanism.

Yes. I actually think it shows that we've done the right thing, in taking a regulation-making power rather than having it on the face of the Bill. What's most helpful about the Scottish decision is that it reinforces the approach we're taking about having a review period that sets it on the face of the Bill, having a sunset clause as well. They're helpful things about the choice of competence. And I think it does show we made the right call in going about it in the manner in which we have, and also, the point about the broader questions about competence, the Supreme Court agree it's a proportionate means of achieving a legitimate aim.

Just one more question. What consideration have you given to using the superaffirmative procedure for the central provision of this Bill?

Well, as ever, when Ministers come before the Assembly and suggest a particular means by which legislation should be achieved, particularly regulation-making powers, there's almost always a testing of, 'Well, should it be negative or should it be positive or should it be positive or superaffirmative?' I've been in your position as well. I still think that the affirmative procedure that allows the legislature to have a vote and for the Government to have to bring its case is the right way to go about it. Others will, of course, have their view, but I'm perfectly content that this is the right way to proceed.

15:15

I'm going to ask a couple of questions just with regard to the sunset clause, and why you felt that the sunset clause was necessary, and the duration of that sunset clause.

There's something about testing the period of time over which a review should take place. So, it's linked to a five-year review on the operation of minimum unit pricing after it's introduced. So, there's an opportunity to review transparently and to make available to the public, and not just legislators, the initial impact of the piece of legislation on public health, and then to require the Government to make a choice about whether the regime should continue, because we'll have some evidence about the impact, about whether there are any adverse consequences at that juncture. We can then say, 'Well, is this still the right regime to continue?' So, again, there's something about showing that it really is a proportionate way of achieving the legitimate aim. Again, in that sense, it mirrors the provisions in the process that Scotland are undertaking and, again, it was commented on in the Supreme Court judgment.

With regard to the commencement Order, there is no procedure that applies to the commencement Order, yet section 28(2) does permit the Welsh Ministers to include saving, transitional or transitory provisions. What is the purpose of those? What use might be made of those particular powers?

Any transitional or transitory or saving provisions made in such an Order would have to be in connection with the coming into force. We haven't drafted the commencement Order as yet and so the decision would be taken at that time, if there were anything. The Bill, for example, does tap into an existing regime, so it's linked very closely to the licensing regime. So, consideration would be given to whether anything needed to be done in relation to existing practices. But it would have to be within the scope of that power, so linked to the commencement.

Okay, and then one final question: why does the Bill not contain an overview section?

It's a short piece of legislation and the point and purpose of the Bill is really clear, so I don't know how much an overview would add to it: we're clear what we're doing and why. In a bigger piece of legislation, I understand that an overview might help. For things like the Social Services and Well-being (Wales) Act 2014, as it now is, you could understand the preamble that existed there, but actually I just don't think it's necessary for a piece of legislation with fewer than 30 clauses.

The objects, I suppose, are very clear and you've also got the advantage of the whole of issue of competence and so on having been dealt with by the Supreme Court and the setting up of the parameters as well.

Indeed. I think it's very clear what we're doing, and why.

Diolch, Gadeirydd. Yn dilyn ymlaen, yn gyntaf, o'ch pwynt chi am drosolwg a hefyd y sgwrs flaenorol ynglŷn â'r pris isaf am uned o alcohol, wrth gwrs, y ddeddfwriaeth yma, isafbris am alcohol ydy hwn, nid yw jest yn ddibynnol felly ar y pris isaf am uned—mae yna fformiwla, wrth gwrs, onid oes? Mae gwerth pwysleisio hynny: fformiwla sydd yn dod yna trwy luosi cryfder canran yr alcohol gan ei gyfaint a hefyd yn cael ei luosi gan y pris isaf am uned. Felly, nid jest mater o isafbris uned alcohol yw hwn. Efallai y buasai'n well pwysleisio hynny mewn unrhyw arolwg, os ydym yn mynd i osgoi'r fath drafodaeth o hyn ymlaen, achos nid jest am bris uned o alcohol yw e—mae yna fformiwla sydd yn gymysgedd o dair elfen: cryfder canran alcohol, ei gyfaint o, yn ogystal â phris isaf uned.

Roeddwn i'n mynd i ganolbwyntio felly ynglŷn â materion technegol manwl ynglŷn ag eglurder a darllenadwyedd y gyfraith. A allaf ofyn yn y lle cyntaf pam mae adrannau 1, 3, 5, 6 a 6(3) yn cynnwys enghreifftiau fesul cam ar wyneb y Bil ac yn y nodiadau esboniadol, ond nid yn adran 7? A oes yna reswm penodol dros hynny?

Thank you, Chair. Following on, first of all, from your point about an overview and also the previous conversation about the minimum unit price of alcohol, this legislation, this is a minimum price of alcohol and it doesn't just rely therefore on the lowest price per unit—there is a formula, of course, isn't there? It's worth emphasising that: the formula comes from multiplying the strength of the alcohol by its volume and it is also multiplied by the lowest price per unit. So, it's not just a matter of minimum pricing of alcohol per unit. Maybe it's worth emphasising that in any sort of overview, if you're going to avoid this sort of discussion in the future, because it's not just about the price of a unit of alcohol—there's a formula that is a mixture of three elements: the volume, the strength and the lowest price per unit.

I was going to concentrate, therefore, on detailed technical issues regarding clarity and the accessibility of the law. Could I ask you first of all why do sections 1, 3, 5, 6 and 6(3) include worked examples on the face of the Bill and also in the explanatory notes, while section 7 does not? Is there a specific reason for that?

Yes. To try and make clear the point that you raised at the start about worked examples of how you would work out the minimum unit [correction: delete 'unit'] price, I think that's helpful because that is the essential point and purpose. Whereas, in terms of the supplementary parts of it, we actually think that that might be helpful explained further on, and I don't think that's actually that complex, to be honest. I don't think we really need to have an extra part on the Bill there. Like I said, I think this is really quite clear: what we're doing and why, and how we want to go about it, and the calculation of the minimum price, are there for all to see.

15:20

Bellach, ar yr un math o bwynt, beth ydy statws deddfwriaethol ac effaith ddeddfwriaethol y testun yn adrannau 1(3), 5(6) a 6(3) yn y Bil?

Further, on the same sort of point, what is the legislative status and legislative effect of the text in sections 1(3), 5(6) and 6(3) of the Bill?

Again, this is about providing clarity on how the regime would operate to set the minimum unit [correction: delete 'unit'] price. As I said earlier in answer to questions from Nathan Gill, this is not saying, 'This is what the price will be', but, 'This is how you would work out the price by using the multipliers that you've already identified in section 1'.

Ocê. Symud ymlaen, ynglŷn â geiriad a allai o bosibl fod yn fwy clir yn adran 2, a fyddai'n bosibl defnyddio geiriad symlach ar gyfer 'dygir' yn is-adran 3 ac 'amherthnasol' yn is-adran 4? Rwy'n credu taw 'adduced' ac 'immaterial' ydyn nhw yn y Saesneg. Rwy'n cymryd bod yna ddiffiniad clir o'r geiriau yna—neu a ydy'n bosibl defnyddio geiriau symlach?

Okay. Moving on to wording that could possibly be clearer in section 2, would it be possible to use simple wording, for example, for 'adduced' in subsection 3 and 'immaterial' in subsection 4? I think 'adduced' and 'immaterial' are the words used in English. I take it that there is a clear definition of those words—or is it possible to use simpler words?

This comes out of one of those areas about what your view is on how legislation should be drafted. The word 'adduced' is quite common use for lawyers and for courts, it's got certainty around it, and that's part of the challenge about who you're writing the legislation for. I don't think it really affects the operation of the regime. I think that people who are subject to the law, retailers, will understand perfectly what the law requires of them. I actually think the word 'immaterial' is pretty common and easy to understand. I don't quite understand the need to simplify that. But, you know, the Chair will know, and I will know from times past, when I had a proper job, before I became a politician, that courts understand perfectly what it is to adduce evidence. It's not that unusual a term when you're coming to actually enforcing and making the powers real.

Rwy'n deall y pwynt, ond, wrth gwrs, rydym ni'n symud i ardal newydd efo deddfwriaeth yng Nghymru, ac roedd y Cadeirydd, o dan ei rôl flaenorol, yn arwain y gad yn fan hyn ynglŷn â gwneud deddfwriaeth Gymreig o hyn ymlaen yn fwy dealladwy i'r person ar y stryd, ac wedyn, yn dilyn—nid jest i'r rheini sydd yn cael eu cyflogi yn llawn amser mewn llys barn, felly, ond i'r person arferol ar y stryd. Dyna ydy pwysigrwydd eglurder a darllenadwyedd y gyfraith. 

Yn adran 3, yn dilyn o hynny, a gaf i jest gofyn hefyd beth a olygir o dan adran 3(1) wrth

'ymadraddion cysylltiedig i gael eu dehongli yn unol â hynny'?

Mae yna ddau ohonyn nhw yn fanna ynglŷn ag ymadrodd a allai gael ei ddehongli mewn mwy nag un ffordd. 

I understand the point, but, of course, we are moving to a new area with regard to legislation in Wales, and the Chair, in his previous role, has led the way in this regard in making Welsh legislation more understandable and accessible to the person in the street, and not just for those who are employed full-time in courts, but for the regular person in the street. That's the importance of clarity and accessibility of law.

In section 3, following on from that, I just wondered what is meant in section 3(1) by

'related expressions are to be construed accordingly.'

There are two of them there with regards to related expressions being construed accordingly. Could they be interpreted differently?

No, and this is actually about trying to provide certainty; so, not just about the common phraseology for adducing in legislation, but also it's directly linked to the Licensing Act 2003 as well. We want to have certainty between the two different pieces of legislation.

When it comes to 'related expressions to be construed accordingly', this is actually the way in which you talk about the supply of alcohol. So, alcohol to be supplied, that has been supplied. It's actually about saying, 'Look, anything that is about the supply of alcohol and the different ways that the verbs and nouns are used—actually it means the same thing'. So, we're trying not to have to redefine every single time that there's slight variation in how 'the supply of alcohol' is used in the Bill. And I don't think that makes it unclear or inaccessible, to be fair, but, you know, I understand that it's quite right that we are asked these questions about the choice of words that are used on the face of the Bill.

Can I just come in on those particular points? I wasn't completely clear about the answer in terms of the legislative status in respect of the formulas as they're set out. Do they have a legislative status? If so, what is it? Or is it purely just a descriptive paragraph?

They're illustrative, to show how we would go about using the powers set out in the Bill. So, we illustrate how the minimum unit [correction: delete 'unit'] price would be calculated by reference to the price, the strength and the volume, and we then illustrate what that would look like. Again, I think that the examples themselves are pretty clear, actually. We've seen lots of infographics in the media outlets saying, 'This is how you would now go about calculating the minimum price for alcohol of this strength', and I think that's quite important, actually. We're more and more used to seeing—if you buy bottles or cans, you see the number of units in there. And so, that tells you something. It should be fairly easy then to understand how much would this cost under a minimum unit price regime. And I think there's clarity in the way that's been set out here, which, again, should make it clear for anyone—a lawyer or not.

15:25

Yes. It wouldn't, though, have been necessary to have had it on the face of the Bill. It could well have been in the explanatory memorandum, and that would have been sufficient. It was a choice to put it on the face.

Yes, it was a choice, and, again, this is part of the choice that we make about when to put things on the face of the Bill and when not. If we'd put it in the explanatory memorandum, we may well have faced questions at this committee about, 'Well, why didn't you put it on the face of the Bill? It's a short Bill, why not have it there?' So, there's a choice that we make.

Can I just then ask you again just for a little bit more clarification on the—? Specific references were made to the terms 'adduced' and 'immaterial'. They aren't necessarily objective terms—they're very much subjective, or evidence-based, terminology. Do you think they're the most appropriate terms that should be used, or do you think there's a drafting issue there?

No, I still think they're entirely appropriate phrases that provide certainty in the legislation, the read-across with the Licensing Act, but also I just think that the word 'immaterial' is pretty straightforward. I don't think that is using a technical or obsolete phrase that only has meaning in a piece of arcane legislation. I think that's a phrase that is widely used within normal conversation.

Well, I wouldn't say you'll remember the eighteenth century, but, you know—[Laughter.] Like I said, it's a phrase that is used in particular in the Licensing Act, and we don't want to have to redefine what we mean by using a different phrase in different pieces of legislation that need to complement each other. And, like I said, there's a broader debate about what phraseology should be used in drafting legislation. I do understand that, and I, myself, and every other Minister will get asked that in this committee, I'm sure.

Well, that's it; I don't want to be pedantic on the point. It may be something that'll be explored later.

Dai, do you have any further—?

Yes. Really, I just wanted to ask you a question about the fact that you're going to be seeking consent from the Crown generally, and specifically from Her Majesty the Queen and the Prince of Wales. And I just wondered why it is that you thought that this was required.

Well, it's not just a belt-and-braces approach, but, actually, it's entirely possible there'll be Crown premises, or premises owned by the Duchy of Cornwall, that will also be licensed premises, where sales will be made. And if the Crown and the Duchy of Cornwall are exempt, then, potentially, those premises would not be subject to the minimum unit price. There is at least one Crown premises that is also selling alcohol. I'm sure the committee would like to have a fact-finding trip there. But it's to make sure that we don't end up having anomalies creep through, but recognising that there are some real examples that fall within this category as well.

Okay. And can you give me the timescale of when you think that the Queen and the Duke of Cornwall will actually sign this?

I couldn't honestly tell you, but, to be honest, in the passage of legislation, it's never been a problem before. We don't anticipate it being a particular problem. And I'm sure that the Crown, following a good news day today, will not wish to have a particular problem on an area of legislation like this.

It's a relief to hear all the pubs called 'The Prince of Wales' will be captured by your approach. [Laughter.]

Can I just look at some of the potential human rights issues? And I just wondered: did you give it an overall human rights impact check, and do you want to talk about that process a bit?

Well, this was one of the main points in the challenge from the Scotch Whisky Association—the challenge to the Scottish legislation—about the interference with a range of different rights. So, yes, we've thought about it. We think it's human rights compliant. The human rights that are engaged are not absolute rights, and the European Court has accepted that as well. So, this is going back to the Supreme Court judgment: is this a proportionate means of achieving a legitimate aim and within the latitude afforded to states and legislatures? And the Supreme Court definitively said, 'Yes, it is.'

Okay. That clearly relates to the central policy intent. I just wonder about how it would be enforced then, because you're obviously relying on existing legislation in terms of local authorities as enforcement agents. And, therefore, section 16 of the Bill will allow enforcement action on a warrant whereby a person can enter a dwelling with additional persons and equipment. 'Additional persons and equipment' is quite a wide term. How will you ensure that that's not abused and used in a way that would not be thought proportionate perhaps?

Well, it's a similar phrasing to some of that used in the recent Public Health (Wales) Act 2017, as it now is, and there's something here about understanding that there's an understood enforcement regime. We're not going to create an entirely separate regime with a new body; these are local authorities exercising their powers, well understood, and they will already have relationships with all of the premises that we're talking about. I think that's important, and it shouldn't be a surprise, therefore, in the way they would go about their duties, because off-licences and licensed premises understand this already, and they engage with them on a regular basis already. So, I don't think there's any mischief or mystery here. We're trying to set out the most simple regime that is consistent with our most recent piece of legislation as well.

15:30

So, it fits in with the existing body of law that's quite analogous in the way these enforcement powers are exercised, and that's, primarily, the safety in terms of how it would be used in your opinion. Did you consider using a tighter phrase than the warrant can be exercised with persons and equipment 'as the officer considers appropriate'?

Now, 'appropriate'. I mean, why not 'necessary'? That would be the obvious alternative there, wouldn't it, which would be more restrictive to having to exercise your duties, and 'appropriate' is sliding a bit wider, perhaps.

Well, again, this comes back to what barriers and bars you want to set for enforcement action to take place. It's the same formulation we've used in the public health Act about how enforcement powers are to be exercised in practice, and it still sets a bar for the officer to act within. They've still got to exercise their powers within a proportionate and legitimate manner. So, I'm quite comfortable with what is appropriate. For example, you couldn't have an officer deciding that, for a laugh, he's going to take one of his mates with him. That certainly wouldn't be appropriate. So, it's actually about how they exercise their powers under the Act. 

Can I ask you why not? Because, the way it's drafted, if the officer thinks it's appropriate, that extensive power is purely in that—it's not qualified in any way.

Well, it's still got to be how they exercise their powers under the Act, and appropriate to the way in which they exercise their powers of enforcement, and that's the point. So, it's directly relevant to how they exercise the enforcement powers, as opposed to deciding, 'Well, I fancy doing something.' That isn't then—. I think that doesn't get over being appropriate in relation to how you exercise legal powers provided to you by legislation.

I think the only point there, though, is that these are extremely extensive powers, but the power isn't very clearly qualified. Do you think 'appropriate' might be something that would need to be looked at in terms of being perhaps more specific or more qualified? I mean, as it stands, he could have a friend with him who he thinks is 'appropriate' to tell about things, but there's no criteria as to who that person might be or what their relevance might be.

We still come back to sections 14 and 15, where the warrants would be granted, and so it's about those powers that the officer will be exercising. So, 'appropriate' people would have to be in relation to how they exercise those powers, rather than, 'I fancy taking a friend to work.' That's entirely different, I think. That gets away from what you need to do to exercise the powers provided to you within the piece of legislation—the powers of entry and the warrants that you can then be provided with. So, I think there is a proper link that provides real safeguards for businesses and people who will have those warrants enforced with them. And, again, this is similar to the language we've used in the public health Act that we've recently just passed as an Assembly. 

The officer executing the warrant would not even have to introduce the accompanying person or say why that accompanying person is considered to be there and that action is appropriate. I mean, that's loose again, isn't it? You're running a pub or a shop somewhere and suddenly a local government officer arrives and has got a couple of people with them, and there's no explanation what they're about. There are potential human rights implications with that, aren't there?

On that, as the Minister has said, there are a number of safeguards built into this legislation itself, but it's also linked into—I'll make sure I get this correct—the Police and Criminal Evidence Act 1984 (PACE) Code B, which, again, provides for a number of requirements, one of which would be that an officer entering would have to introduce themselves and anyone they have with them. So, it's—

15:35

Right. And you think these local government officers are going to be so familiar with PACE and when they're given their training on this new Act they're going to do all the additional work to go and look up PACE and get fully informed about that. Wouldn't it be just crisper and more direct to put it on the face of the Bill?

Well, they'd be using that same legislation [correction: framework] to govern the trading standards and other regulatory functions that they currently undertake, so, as this Bill is kind of linked in very much to that for its enforcement and implementation, we don't envisage there would be an issue with that, but we would pick up the issue of guidance and training in the bespoke guidance that we'll issue.

Yes, but in the sense of how they exercise their powers, that's not new, and the recognition—. So, that's the point about a consistent regime of enforcement that the officers will understand and the businesses they engage with will understand. Also, if there are people who are not familiar with that—if they're not established businesses—well, they're used to doing that in the exercise of their more general powers as trading standards officers about how they enter premises and enforce the law.

Do you think this might warrant a slight expansion within the explanatory memorandum then, in terms of the exercise of powers? Is that something that you'd consider?

Well look, we can consider it. I'm happy to revisit the explanatory memorandum to see that it's sufficiently clear, not just for people who are interested in scrutinising the Bill but of course those people we would expect to exercise these powers in real time.

Okay, are there any other questions to be asked? I think that probably reflects the relatively short nature of the Bill and the fact that so many issues have been determined by the Supreme Court. If there are no other matters to be raised under this, thank you very much for your attendance. In due course, you'll be given a transcript for accuracy. Thank you for coming along.

3. Papurau i’w Nodi
3. Papers to Note

We now move on to the next item, which is papers to note. Item 3.1, which is the Welsh Government written statement—the update on the commission on justice in Wales. Previously, we'd had the Welsh Government's statement about the establishment of the commission and the appointment of Lord Thomas, the retiring former Lord Chief Justice, to chair it. What we have now really is the membership of that commission. So, that's to note, but if there are any comments on it—. It is quite an impressive panel, I have to say. In that case, we'll move on.

Item 3.2, on A Stronger Voice for Wales, a letter from the First Minister. That's the letter from the First Minister dated 20 November 2017, and then the Chair's letter to the First Minister dated 23 October 2017. So, you're invited to note the letter from the First Minister in relation to the 'stronger voice' inquiry.

I welcome the fact that he anticipates that there will be a regular reporting mechanism to the Assembly and its committees on the outcomes of Joint Ministerial Committee meetings, but I don't know if we could try and follow that up and see whether we could get some detail, because, obviously, the 'how' of that is quite important.

It can go in the report.

Yes, you've suggested that it can go in the report. Perhaps we'll consider that when we actually finalise the report as well.

Item 3.3: European Union (Withdrawal) Bill, a letter from the Chair of the External Affairs and Additional Legislation Committee to the Cabinet Secretary for Finance. Again, it's to be noted and for us to consider the letter from the Chair. Okay, is that noted?

Yes, they were.

Item 3.4: the European Union (Withdrawal) Bill legislative consent memorandum, a letter from the Llywydd dated 23 November 2017. Members are invited to note the letter from the Llywydd. Is there anything on that letter in terms of—we have to respond by—? 

Tomorrow morning.

The letter asks whether the committee could consider the proposal in the letter about reporting on 13 December 2017 and provide feedback in time for Business Committee to return to this matter on 28 November.

15:40

That's satisfactory, isn't it? It means we've got to, obviously, meet and discuss on the Monday. Is that okay?

The response, yes—that it's acceptable.

Item 3.5 is the Private Water Supplies (Wales) Regulations 2017, and the Welsh Government response. Noted.

4. Cynnig o dan Reol Sefydlog 17.42 i Benderfynu Gwahardd y Cyhoedd o'r Cyfarfod
4. Motion under Standing Order 17.42 to Resolve to Exclude the Public from the Meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

Right. Item 4 is a motion under Standing Order 17.42 to resolve to meet in private. Agreed? Okay, we'll move into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:41.

Motion agreed.

The public part of the meeting ended at 15:41.

Explore the National Assembly for Wales