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Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

15/10/2018

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd AM
Dawn Bowden AM
Lee Waters AM
Mick Antoniw AM Cadeirydd y Pwyllgor
Committee Chair
Suzy Davies AM
Vaughan Gething AM Ysgrifennydd y Cabinet dros Iechyd a Gwasanaethau Cymdeithasol
Cabinet Secretary for Health and Social Services

Y rhai eraill a oedd yn bresennol

Others in Attendance

Matthew Jenkins Llywodraeth Cymru
Welsh Government
Sarah Tyler Llywodraeth Cymru
Welsh Government

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Katie Wyatt Cynghorydd Cyfreithiol
Legal Adviser
Mike Lewis Dirprwy Glerc
Deputy Clerk
P Gareth Williams Clerc
Clerk
Sarah Sargent 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 14:30.

The meeting began at 14:30.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introduction, apologies, substitutions and declarations of interest

Welcome to the Constitutional and Legislative Affairs Committee, and a particular welcome to the Cabinet Secretary for health, Vaughan Gething. Before we do kick off, just by way of introduction, the usual housekeeping rules continue to apply. There have been no apologies for today. Are there any declarations of interest? There aren't any.

2. Bil Awtistiaeth (Cymru)—Sesiwn dystiolaeth 2
2. Autism (Wales) Bill—Evidence session 2

We'll kick straight into the Autism (Wales) Bill evidence session. As I said, welcome to the Cabinet Secretary for health, Vaughan Gething. Would you like to introduce your colleagues? 

I'm Mathew Jenkins. I'm a deputy director in the health and social services group. 

I'm Sarah Tyler, legal services. 

Okay, well, thank you very much. We have had a previous session with the Member who's taken forward the legislation, so we're grateful now for the opportunity for the Government's response. The opening issue, really, is, firstly, why you think the legislation is necessary, and, in addition to that, the Government's position on the Bill as a whole, whether it supports the Bill and thinks the Bill is required. 

A straight answer is: no, we don't believe the legislation is necessary. So, it therefore follows that the Government isn't supporting the Bill. It is possible to have legislation that isn't strictly necessary, but you can nevertheless see the utility and the value of. That isn't the position that the Government takes. We've had several statements now in the Chamber setting out the differences in view between the Government and the Member in charge of the Bill, and I know we'll go into the detail of some of it, but we don't think the evidence exists to support the Bill in general terms—there are some general points to make, as well as the specifics in the scheme of the Bill, and, indeed, there's experience in other parts of the United Kingdom where they have either had autism-specific legislation or have considered it and rejected it. So, in Scotland, they considered it and decided not to proceed. In England, they have it, and you can't see a visible improvement in services and outcomes for autistic people. 

The Member in charge said that the Bill will help tackle problems that remain by improving information, provision, training and support, and that legislation is a stronger duty and one that is also supported by the overwhelming majority of people. I wonder what the Government's view is on that particular assertion by the Member in charge. 

Well, we think, actually, the code we're consulting on does everything that the Bill would want to do, and we actually think that it's a preferable scheme that we have as well. I don't know if you want to go into some of the details of that now or in further questions. But the point about the support is a different one, because lots of people have commented on the Bill and are supportive, but there are definitely autistic people who have not supported the Bill as well, and if I were the Member in charge, I would probably make a similar statement about the level of support about the Bill, but, obviously, you'll know from the community of practice across a variety of disciplines that they're not supportive of the Bill. And we need to be clear that this isn't about saying that we don't want to improve the services, the life experience and outcomes for people. This is really about whether this legislation does what it sets out to achieve, and we don't think it will do. I think it will create an impression that services will improve by passing the legislation, and it's very difficult to see how that is. We're actually investing resources into the new integrated service that we're rolling out across the country.

The other point that I think it's important to make about the Bill is that, in terms of both remedies and the point about the scheme itself, the remedies appear to be judicial review, which, as you know, and Suzy as another lawyer in recovery knows as well, actually, is a very high bar to set. And it's true, if you run judicial review actions, they're very difficult and they're very expensive, and they're not a great way to try and improve services. So, there's actually something about, 'What do you then do?'

The broader point here about the scheme that the Bill takes is it's condition-specific legislation. So, you have to go through the bar or get over the gate to actually go into the service that it says could and should be provided. Now, that's difficult, I think, partly because there's a realistic and an honest perspective that if you have condition-specific legislation, you'll have more of it. But it's also going back to the scheme that we've taken where we're looking at the needs that somebody has, and rather than saying, 'If you don't have a diagnosis for the named condition, then you don't get support', it's actually about saying, 'What are your needs and how are they met?' A number of people have more than one condition and different needs, and it's about seeing that whole person rather than simply looking at the condition. So, I think there are some challenges about the way that the Bill is set out to try and achieve an objective that we agree upon.

14:35

Diolch, Gadeirydd. Yn bellach i hynny, mae rhai pobl eisiau gweld mwy o rymoedd, achos, fel y mae hi ar hyn o bryd, wrth gwrs, mae pobl yn cwyno nad oes digon o wasanaethau gogyfer pobl ag awtistiaeth ond hefyd nad oes grymoedd yn y lle iawn. Hynny yw, dywedwch, meddyg teulu, nawr, sydd â meddygon a nyrsys yn y gwasanaeth iechyd, sy’n gwneud y diagnosis am awtistiaeth, ond mae’r driniaeth yn y sector addysg, neu yn y sector gofal cymdeithasol; nid oes grym gan y meddyg teulu i arallgyfeirio rhywun i addysg, neu i arallgyfeirio rhywun i wasanaethau cymdeithasol, achos nid yw’n bod. Pan fydd meddyg teulu—er enghraifft, fi—yn ysgrifennu at gyfarwyddwr gwasanaethau cyhoeddus, nid oes dim byd yn digwydd; nid ydyn nhw hyd yn oed yn cydnabod y referral. Mae’r un peth efo addysg; nid ydym ni’n gallu arallgyfeirio pobl i fyd addysg achos mae o dan adain llywodraeth leol. Rwy’n gallu cyfeirio pobl i lefydd eraill yn y gwasanaeth iechyd—CAMHS ac ati, er bod hwnnw efallai’n amhriodol, achos y pwynt arall ynglŷn ag awtistiaeth ydy ei bod yn unigryw. Cyflwr emosiynol, cymdeithasol yw e. Nid yw o’n gyflwr afiechyd meddwl. Wedyn, mae’n gam ar y person, weithiau, i’w harallgyfeirio nhw i CAMHS, ond dyna’r unig le, fel meddygon, rŷm ni’n gallu arallgyfeirio.

Felly, mae yna wendid yn y system fel y mae hi ar hyn o bryd. Nid ydym ni'n gallu arallgyfeirio’r bobl hyn i un ai addysg neu’r gwasanaethau cymdeithasol. Os ydy hynny’n mynd i ddod efo’ch cod chi, grêt, ond nid yw’n glir i fi bod hynny’n mynd i ddigwydd mewn unrhyw god ychwaith, a dyna pam mae yna alwad am ddeddfwriaeth yn hyn o beth.

Thank you, Chair. Just further to that, some people want to see more powers, because, as it stands, people are complaining that there aren't enough services for people with autism, but also that there aren't powers in the right place. For example, a GP, who has doctors and nurses in the NHS, makes this diagnosis of autism, but the treatment is in the education sector or in the social care sector; the GP hasn't got the power to refer somebody to education or to social services, because it doesn't exist. When a GP—for example, when I do this—writes to the director of public services, nothing happens; they don't even acknowledge the referral. The same thing is true of education; we can't refer people to the field of education because that comes under local government. I can refer people to other areas of the NHS, such as child and adolescent mental health services, even if, perhaps, that isn't appropriate. Because the other point about autism is that it's unique. It is an emotional, social condition. It is not a mental health condition. It isn't always fair on the person to refer them to CAMHS, but that's the only place that GPs can refer them to.

So, there is a weakness in the system currently. We cannot refer these people to either education or social services. If that is going to come about with your code, great, but it's not clear to me that it's going to happen in any code either, and that's why there's a call for legislation.

I think there are a couple of points to pick up there. The first is that the challenge is in referral as opposed to whether you think, 'Well, actually, this is about how I meet someone's needs', because the recognition of meeting the needs of people is why we're rolling out an integrated service, and it's deliberately set up to be not just health, but to be health and a variety of services that are often located in local government together. The improvements that are taking place are often led by colleagues in local government, and that's a good thing.

The second thing is the point about the code. The code and the level of force that it will have will enable Welsh Ministers to intervene, because that's a scheme under the Social Services and Well-being (Wales) Act 2014, and, going back to the Bill, it has remedies around judicial review, so I don't think, from a remedies point and an intervention point of view, it helps either. And we still get back to, 'What is the right way to support someone who has a range of different needs?' And, actually, that's often about how we get services to work with each other and the person, and I don't think that is just about the power or the ability of individuals to refer into it.

To be fair, the Royal College of General Practitioners are not supporters of the Bill that's before us either, and they share some of the concerns that I have about what it will actually do to the service in having condition-specific legislation. So, that's the view of the representative body of GPs too. I'll happily send you a paper setting out the views of stakeholders and where they support each of the areas that are raised in our evidence, and there's a note going to the health committee—the committee that you chair, comrade Lloyd—setting out where assertions that are made in the Government's evidence paper are supported by a range of the organisations and individuals who have given evidence as well.

Yes, thank you very much, Chair. You mentioned earlier that the work that you're doing at the moment—the strategic plan and the code, presumably—and I'm quoting you, 'will do everything the Bill will want to do', and then you went on to say that you didn't think the Bill would achieve its stated aims. So, first of all, I wanted to ask you: does that mean, then, that the work that you're doing won't fulfil the stated aims of the Bill, either, in its non-statutory form? And on the point of remedies, one of the weaknesses with the social services and well-being Act, of course, is that that's a bit light on remedies as well. So, by claiming that in place of an autism Act, I don't think that works either as a get-out from this, because while there is still the possibility of amending this draft Bill to include some remedies, albeit at this short notice, what we have at the moment is remedy free as well. So, can you explain to me, in terms of the work that you're doing, what is in that that gives people remedy when they feel that their rights, such as they are, haven't been observed?

14:40

Not just in the social services and well-being Act, but some of the rights we're talking about here would obviously cut across the recently passed Additional Learning Needs and Education Tribunal (Wales) Act 2018, so there's—

That's the point about people with autism and their needs, and how their needs are met or not met. And, actually, there's a range of areas. Dai Lloyd did talk about the link to education services as well, so it is that whole person and each of the different areas of their life, and how that's met. Look, some of this is about if the code isn't enacted, then Welsh Ministers can intervene, and Welsh Ministers can intervene both with the code about changing what's required under that and how that directs the way that services work. So, it is actually about balance and I think it's going to be easier to use than a straight judicial review remedy.

And when I say we can meet what the Act wants to do, actually I share Paul Davies's view about wanting to improve services and improve someone's lived experience. So, on that basis, we don't disagree. It's really about whether the Bill is the right vehicle to do that, and that's the point in dispute. That's where you get into whether condition-specific legislation is the right way to achieve that or not. Will driving something that relies on a diagnosis, and then having timescales that I don't think are really achievable, help to drive improvements or not? We part company there. So, I don't think the Bill is one that will achieve its objectives. 

What we're doing with the code and what we've done with the additional investment—. In a time of austerity, the additional investment we've made in these services demonstrates the commitment and the priority to actually having a real service to deliver for people, and to understand them as a whole person and their needs, as opposed to, 'Do you meet a specific condition? If you meet that, you'll get help. If you don't, you'll go somewhere else', and I don't think that's appropriate.  

Those policy aspects, of course, are matters that are going to be considered in detail by the health committee, and I'm quite keen that we do focus on our function as a Constitutional and Legislative Affairs Committee. Just to take you back to that particular point, you made a very clear statement on 25 September 2018 about the updated delivery plan and the autism code, and you did say that, in November, you would issue a public consultation to gather views on where we need to focus the autism code. I suppose the key constitutional and legislative question is this: we have a Bill before us that sets out to achieve a number of very clearly identified objectives. What is the Government's view as to whether there is anything in the Bill that cannot be achieved by the code? And if the code were, in the Government's view, to fulfil all those functions, is there an issue in terms of the fact that it is a code, as opposed to legislation, that will in practice make any real difference?    

If we set out a code, we expect public services to provide services in accordance with it. So, you'll still have the challenge if services aren't being provided in that way, whether it's in a Bill or in regulations, about what happens and potential remedies for individual citizens. The code, of course, itself is subject to scrutiny. There will be a consultation and it will be laid before the Assembly as well, so there will be scrutiny attached to it.

Apart from putting the strategy that we already have on a statutory footing, I don't think there's anything the Bill does that we can't already do with our current set of powers, but it's really about the desirability of the scheme that the Bill sets out, and whether people would want to say it is worth putting a strategy itself on a statutory footing. But, of course, when we have a strategy and we spend money and we use our policy levers in that direction, the code supports that. So, it isn't quite the same as saying that the strategy has no force at all, because it certainly does, and it's directing the way that services are being provided, which is actually making a difference to autistic people themselves. That's the point about all this—it's about what we think the purpose of the legislation is. Don't take my word for it about what condition-specific legislation will or won't mean, because there are other people who have also taken part in the consultation who think that's a problem, so it isn't just the Government's view. 

So, from a technical point of view, is there anything you feel that could be done to improve the Bill, or do you just fundamentally think that it's unnecessary? 

There's always a way to improve legislation, even if you don't think it's strictly necessary. I don't think the Bill is necessary. I think that any condition-specific Bill is likely to have an impact on the service, and the scheme that it sets out, I think, is problematic. The purpose of the Bill is supposed to be to improve services for autistic people. It then says, however, that Ministers can decide to extend the Bill to a range of other conditions. I think that's difficult. If you look at the purpose of the Bill and how it tries to achieve that, with a diagnosis being required, I think that itself is difficult, because you would direct resources to diagnosis—that's inevitably what you would do. And then there's a waiting time, and I don't understand the logic behind the waiting time itself. And it's how that is introduced. There would be time and effort spent on that, rather than on delivery of the service as well. I could go on. But the way the Bill is structured, I don't actually think it will achieve its objective, and that, after all, is the point. And some people say it will do no harm; I actually think it will. I think it will divert attention and divert resources away, rather than helping people to meet their needs, and for them to actually be able to direct those needs where they can. I think it will actually direct resources into a funnel of diagnosis, and that itself is difficult. Again, don't take my word for it; there are a range of other people, including the Children's Commissioner for Wales, who have concerns about the way that will be done, and what that would mean, as well as practitioners themselves.

14:45

Okay. Did you want to ask—Dawn Butler. Bowden, sorry.

I've just come back from another conference. [Laughter.]

Thank you, Chair. Cabinet Secretary, the Bill does require an autism strategy to ensure continuity of service through transition from children to adult services. But, within the Bill, it doesn't appear to require that strategy to be approved by the Assembly—just to be laid by the Assembly. What are your views on that? Do you think it should come to the Assembly?

Well, I think it's one of the problems you probably could resolve in amending the Bill, but, as drafted, I think that's a problem. The code—there'll be a consultation, the code will be laid before the Assembly. The strategy, otherwise—you just say there has to be one. So, actually, I think that that in itself is problematic in the way that a statutory strategy would be set out. It's not my job, but you could, I think, amend that to have some scrutiny for it, but you still come back to whether that in itself is a good enough reason to pass the Bill. And my view is that it isn't. So I think, coming back—

We do have a strategy now, and it's a strategy we have consulted on, it's a strategy that people have commented on. I'm not at all persuaded that placing that strategy on a statutory footing is a good enough reason to pass this legislation. Even if you took everything else out and said, 'There must be a statutory strategy, and you can amend how that is laid and provided', I don't think that's a great use of our powers.

Okay, all right. Just one other question, Chair, which is around section 11, which provides for the Bill to come into force three months from Royal Assent, and for an autism strategy to be laid within six months after the Bill comes into force. Do you think that's an adequate timescale to prepare a strategy, as required by the Bill?

No, I think it's a very bad idea. It doesn't really take account of the real world and what you have to do. Look, if it must come in within three months, well, actually, within three months, you won't have all the points about the diagnosis and the scheme that the Bill will expect us to require. If, within six months, you're going to have a statutory strategy, unless we just take what we have, that can't happen. Because for us to consult, and consult properly, then it just won't be ready. That's an honest point. If we wanted to have something like this, you'd normally offer the committee an opportunity to comment, you'd have a public consultation, you'd then want to consult on the final draft of a strategy. So, we'd have a draft, then we'd have the final one, and then we'd agree that that was it. The timescale set out in the Bill isn't realistic.

So, that's a practical issue, rather than an unwillingness to do it—it's just practically not possible to do it within that timescale.

Yes. Look, the current strategy that we have, we've consulted on. The current strategy has had people who have commented on it and looked at it, and we then said, 'This is the future strategy'. If we wanted to redo something, taking account of what the Bill says, because it would require us to do things differently we'd have to consult again. And within the time frame that the Bill allows, we couldn't realistically do it.

Reit. Rwy'n cymryd nad ydych chi'n cytuno â'r Bil, ond y ffaith ydy mai ein bwriad ni ydy craffu ar fanylion y Bil, felly fe fydd yn rhaid i chi aros efo ni am sbel fach nawr. Rydym ni'n mynd i mewn i'r manylion technegol ynglŷn â phwerau wedi eu dirprwyo. A ydych chi'n meddwl bod y Bil yn taro'r cydbwysedd cywir rhwng beth sydd ar wyneb y Bil a beth nad yw ar wyneb y Bil?

Right. I take it that you don't agree with the Bill, but the fact is that we have to scrutinise the details of the Bill, so you'll have to stay with us for the moment on this. We're going into the technical details with regard to powers that have been delegated. Do you think that the Bill strikes the right balance between what is on the face of the Bill and what isn't on the face of the Bill?

14:50

A simple answer is 'no', but do you want some examples? Look, we've talked about what the Bill requires and, if you look at some of the requirements about, not just guidance, but data, for example—'Data on autistic spectrum disorder', section 6—there is the challenge there about the time frames that it sets out, but also how much of that personal data you'd want to collect and be required. And you'll see—in the other committee you'll probably go into more detail—a number of people are quite uncomfortable with the data that it's required to collect and that would be personal data itself. 

If you look at—. You have the other sections in the Bill—. Oh, the 'Duty to have regard to United Nations Principles and Conventions'—well, that's a power, but actually that just allows Welsh Ministers to say that other organisations would be subject to it and there's a challenge about what process you should go through to do that. I still think you come back to: what would you rather have on any Bill and what would you say that we want to have in regulation, but, actually, there's an opportunity to be flexible. This is part of the challenge you always face in this committee, isn't it: what do you want on the face of the Bill and what not? 

And, actually, we've been talking about what we already have in the social services and well-being Act. On some of those areas, we'd say, 'Well, actually, the data we're already collecting and requiring to be collected—at some point, you'd say, "Well, is that the right thing to collect now?"' And we're already thinking, 'Actually, we have to, but it may not be a sensible thing to say that that's what we want to do in the future.' So, even in that Act, I recognised, in being in—. I think I was a member of this committee for some of the social services and well-being Act, as well as chairing your predecessor committee at the time. There were lots of people saying, 'We want more detail on the face of the Bill', and 'Don't have a framework Bill, but actually have more detail on the face of the Bill.' Well, actually, we found, in terms of running a real service, that, actually, it has caused more of a problem than not. But, really, it's a matter for the Member in charge to try and set out his scheme as to how he thinks this will work.

Ocê. Symud ymlaen i adran 9, is-adran 1 o'r ddeddfwriaeth yma, mae hwnnw'n caniatau i Weinidogion Cymru ymestyn yr ystod o gyrff perthnasol y tu hwnt i awdurdodau lleol a chyrff y gwasanaeth iechyd. A oes angen y pŵer yna?

Okay, moving on now to section 9, subsection 1 of this legislation, it permits the Welsh Ministers to extend the range of relevant bodies beyond local authorities and the NHS bodies. Is this power needed?

I think this is part of the problematic part of the Bill, because if, say, it was me—or whatever role I may hold in the future—and I said, 'I will now make sure that there are other relevant bodies', well, if they're smaller bodies, then their ability to comply with all of the requirements in the Bill could be difficult. So, actually, I think that's troubling. Sometimes, backbench legislators are reticent about trusting the good judgment of a Minister and their civil servants to always do the right thing, and this is quite a broad power to use. It might be sensible to have some parameters about what you would need to go through and do before you decide that a particular body will be subject to all of the requirements in the Bill. If you just think about the United Nations convention, well, actually, the health service and local government, you'd say it's fair to expect them to comply with that. You might want to look at other delivery organisations and say, 'Well, is that really a fair imposition to make on them, with all of the detail within it?' So, it's worth thinking about that, but it's a pretty broad-brush power to give to a Minister and then require them to undertake.

Fy mhwynt olaf i o dan y cwestiynau technegol yma: rŷm ni dal efo adran 9, is-adran 1, ynglŷn â diffiniad anhwylder sbectrwm awtistiaeth, ac, wrth gwrs, mae'r diffiniad yn y Bil yma yn cyfeirio pobl at ddiffiniad Sefydliad Iechyd y Byd o beth yw anhwylder sbectrwm awtistiaeth. Mae'r Bil yma hefyd yn caniatáu ymestyn y diffiniad, fel rydych chi wedi'i awgrymu eisoes, at ddibenion anhwylderau niwroddatblygiadol eraill. Nawr, wrth gwrs, mi fedrwch chi ddefnyddio'r ddadl yna i ateb eich dadl chi bod y Bil yma'n rhy gyfyngedig i awtistiaeth yn unig. Nawr mae yna ymgais yn fan hyn, o fewn y Bil, i ymestyn y diffiniad i gynnwys anhwylderau niwroddatblygiadol eraill. A ydych chi yn cytuno â hynny? A fuasai gwendid yn ei ymestyn o i gyflyrau eraill o dan yr un Mesur? A ydy'r memorandwm esboniadol yn ddigon o dystiolaeth i ychwanegu'r ffaith mai dim ond awtistiaeth yw hon? Mi allai o gael ei ddefnyddio at gyflyrau niwroddatblygiadol eraill.

My final point under these technical questions: we remain with section 9, subsection 1, with regard to the definition of an autism spectrum disorder, and, of course, the definition in the Bill refers people to the World Health Organisation's definition of what an autism spectrum disorder means. The Bill also allows that definition to be extended, as you've already referred to, for the purposes of other neurodevelopmental disorders. Now, of course, you can use that argument to answer your previous argument that this Bill is too restricted to autism alone. Now there is an attempt here, within the Bill itself, to extend the definition to include other neurodevelopmental disorders. Do you agree with that? What would be the weaknesses of that with regard to other disorders? Is the explanatory memorandum sufficient evidence to support the fact that this is only referring to autism? It could refer to other neurodevelopmental disorders.

Well, I think those are fair questions to ask about the purpose of the Bill. If you look at the start, it says:

'to make provision for meeting the needs of children and adults with autism spectrum disorder in Wales'.

We then have a broad-brush section at the end that says that Welsh Ministers can decide that actually it isn't just people with autism at all, and that's part of the problem about having condition-specific legislation. This says you can decide other conditions that can get through the same gate, but we're still going back to conditions, not the needs of the person. I think that is not the right way for us to deal with legislation, because otherwise you can potentially see a way we end up trying to legislate on all sorts of different conditions to try and say these people matter enough to have a piece of legislation. That isn't the point. Every person matters enough in Wales to have their needs met. That's what we've tried to do in the social services and well-being Act. The Additional Learning Needs and Education Tribunal (Wales) Act 2018 is about the needs of the learner as opposed to, 'Tell me what condition you have and I'll then tell you where we go.'

You'll know from not just the other committee that you chair—but also the children's committee's saying, 'Well, actually, we want a broader approach on health and well-being for children and young people to meet their needs', as opposed to, 'You have to have a specific condition to gain help from somewhere like CAMHS.' That's part of what we're trying to do, and this takes us in a different direction. So, I don't think it's appropriate. Lawyers may want to have a challenge on whether, actually, that's appropriate or not, but that isn't my problem, particularly because it's not my Bill. It is my job, I think, to set out some of the challenges in that approach and how you'd actually expect a Welsh Minister to exercise that power for the power to be real and what does it actually do for the person and how their needs are met. 

14:55

Jest, ar gefn hynny, jest cwestiwn bach atodol. Wrth gwrs, un o'r problemau unigryw efo awtistiaeth ydy'r oedi cyn cael diagnosis. Rydw i'n clywed beth rydych chi'n ei ddweud a beth mae pobl eraill yn ei ddweud: y peth pwysig ydy bod y bobl yma'n cael eu hasesu a'u bod nhw'n cael eu trin. Ond pan ydych chi'n dod lawr i fy lefel i fel meddyg teulu, y broblem ydy—mae rhywbeth yn bod efo'r plentyn yma, nid ydym ni'n gwybod beth yw e, nid wyf i'n gwybod beth yw e, mi allai fod yn awtistiaeth; mae angen iddo fo weld arbenigwr i gadarnhau a oes awtistiaeth gyda'r plentyn yma. Ond, wrth gwrs, mae yna aros ac, wrth gwrs, mae pobl yn dweud, 'Duw, mae'n cymryd misoedd'. Weithiau mae'n cymryd blynyddoedd—rwy'n cael llythyrau gan bobl sy'n dweud eu bod nhw wedi bod yn aros blynyddoedd i gael diagnosis. Achos, llawr lle rwy'n gweithio, ar lawr gwlad, mae'n rhaid ichi gael diagnosis cyn ichi gael mynediad at y triniaethau a'r asesiadau. Felly, mae un yn dilyn y llall. Rydw i'n deall y ddadl y dylem ni fod yn edrych yn gynhwysfawr a jest ymateb i anghenion a thrin yr unigolyn ac nid yw'r diagnosis yn bwysig. Ond, ar lawr gwlad, mae diagnosis yn bwysig. Heb ddiagnosis, nid oes mynediad i driniaeth.

On the back of that, a short supplementary question. Of course, one of the unique problems with regard to autism is the delay before diagnosis. I hear what you're saying and what other people are saying, that the important thing is that these people are assessed and that they're treated. But, when you come down to my level as a GP, the problem is that something is affecting this child, we do not know what it is, I don't know what it is, it could be autism; they need to see a specialist to confirm whether the child has ASD. But there's a delay, and people say, 'Well, it takes months'. Sometimes it takes years—I receive letters from people who've had to wait years for diagnosis. Because, on my level, on the ground, you have to have that diagnosis before you can access the assessments and the treatments. So, one follows on from the other. I understand the argument that we should be looking holistically and responding to need and treating the individual and the diagnosis isn't at all important. But, on the ground, diagnosis is important. If you don't have a diagnosis, you can't access treatment.

Again, that's the assessment of someone's need, isn't it? It still comes back to you need to assess someone's need, because a diagnosis is supposed to help you understand their need. But this Bill talks about one group of conditions, and that's the point. It still comes back to condition-specific. The other point that I'd make is that it seems to me that what you're really saying is we need enough resources across our health and care system to promptly understand people's needs and then address them. The Bill won't do that. The Bill won't produce any extra money. The Bill will channel and direct demand in a different way, in a way that I don't think is desirable. Again, that isn't just my view, that is the view of a wide range of other people in the third sector, in a variety of medical professions, not just your colleagues in the royal college of GPs.

I go back to what I said earlier: we have actually, in a time of austerity, put additional resource into delivering the integrated autism service and the strategy to try and make that real improvement in someone's lived experience. That's where I think our focus should be. I accept completely that me saying I don't think the Bill should be passed because I don't think it's the right thing to do—that won't stop people asking questions, as they should do, of me or other Ministers in the future, as to what we're actually doing to make that difference. So, I think there's a slightly different question to ask about how we appropriately meet people's needs, rather than passing a piece of legislation that, even if it were improved, I still think would not be the right thing to do, and is not in itself going to improve outcomes and experiences for autistic people in Wales.

Rwy'n ymwybodol o'r amser, so gwnaf ei adael e fanna. 

I'm aware of time, so I'll leave it there.

Back to the Bill before us, there are quite broad Henry VIII powers in sections 6 and 9 to amend regulations. Does the Government believe that the affirmative procedure as set out is the right approach or do you think a superaffirmative procedure would be more prudent?

I don't have a particular view on the affirmative or the superaffirmative in these regulations. I think that—. I understand, having been a backbencher, and enjoyed my time as a backbencher—or at least some of the time—sitting on this committee, that there's a regular call for more superaffirmative powers to be used instead of affirmative. Again, in the social services and well-being Act, I certainly argued for superaffirmative powers to be used. In reality, when it comes to it, they're rarely used in the sense of them making a difference to the scheme that ultimately is presented and voted upon. I still think the challenge with the broad-brush powers we have, or that it's suggested that Ministers have, is whether they're appropriate powers for Ministers to have and whether this is the right scheme to use in itself. I still think that's the broader question. So, I don't have a particularly fixed view on affirmative or superaffirmative, but I'm sure that you'll come to that view without my assistance. 

15:00

Okay. We move on to another area, then, in terms of personal data, and Suzy Davies.  

Yes, thank you. We talked about section 6 a little bit earlier on. Section 6 places an obligation on Welsh Ministers to obtain and then produce an annual report, basically, on the data, but there is a relative amount of freedom on the type of anonymised data that Welsh Ministers can collect. Is that a useful power for you? Or are you happy with the level of data you produce at the moment? Would that actually help you, in your role as the Cabinet Secretary, to understand what services are needed? 

I said earlier there's been concern about the level of personal data, whether they're published anonymously or not, and a number of people are concerned about having that data collected and what the purpose of it is. And I don't understand—. The Member in charge of the Bill can explain to you why each piece of data that is on the face of the Bill is data that he thinks should be collected. 

He's not been specific for Welsh Ministers though. It's the NHS—

But the point is about—you know, when you look at the list in section 6—what we'd need to consider in doing that, and I think that there are obviously the mechanics of doing that and the resource you'd need to put into doing so. I actually think that our ability to collect data at present doesn't require the powers that the Bill sets out and the requirement to collect data in this way. I'm always interested, of course, in how we use data to help improve services but, as I said earlier, I'm not a fan of prescribing on the face of the Bill the number of areas to consider in how we discharge our functions in the Act. It says

'NHS...must collect the following data'.

I'm not always sure that that's entirely appropriate, and I gave the example earlier of where we required that in the social services and well-being Act and actually it's about, 'Well, is that now appropriate?' This comes back to the split of what's on the face of the Bill and what isn't.  

If there'd been a broader power that said the NHS must collect data to help improve the Act and they need to set out what that is, well, that would be something different. But I'd imagine the committee would then say, 'We want to see that data on the face of the Bill.' 

Okay. I'll come to that question on the NHS in a minute. My question was: is it of value to you to have an obligation to collect data—which you could choose; it doesn't just have to be the NHS data, you can get it from any body—would that actually help you in designing the next iteration of the strategy, for example? So, it's not about section 6(6); it's about 6(1) and 6(2).  

It's always useful to have the data, but it's a very broad power to say that I, or a Welsh Minister, could request that data from any body that I determine. So, I determine who the relevant bodies are and I determine what data they must provide to me. You'd have people saying, 'Well, what's the relevance of the data and what are the safeguards, if you're a relevant body, for what that data would be and what it would require of your organisation?' Actually, we tend not to find a problem in acquiring data from people who deliver services where it's useful, because, actually, those people are normally in a relationship with the public sector to deliver those services, if they're in the third sector, and, if they're in the public sector, we can get the data anyway—so far as it's useful. 

Okay, that's what I was trying to get to, was whether it's of use to you, but, from what I can hear, your relationship with public bodies is as such that you get the data that you want anyway. 

Turning to the NHS specifically, where, you're quite right, it does have specifics on the face of the Bill, have you had any feedback from the NHS about whether this is valuable to them? Did it help clarify their thinking on what they need to collect?  

I'm aware the NHS Confederation will be providing evidence to the Health, Social Care and Sport Committee. Certainly I'm not aware if this committee has the same—. 

Right. Okay. Because obviously they're two different asks, even though they're in the one section. Okay. Well, if there's no answer on that one, I've got no further questions.

15:05

Okay. Could I just come back to a couple of questions? Because this is an interesting point that we've been exploring and that is, really, the extent to which the legislation either fulfills functions or whether there's a necessity of legislation to fill those functions that policy makers have decided, or there's a desire to actually fill. In response to questions about whether, if the legislation went ahead in its current form, it would do any harm or whether it would basically not do no harm at all, I think you indicated that you thought there would be an adverse consequence. I wonder if you could just perhaps reiterate what you thought the adverse consequences were. 

I think there's a challenge about condition-specific legislation, and what that does in terms of diagnosis and the demand for diagnosis to be able to get through a gate to access services. And that's the impression that's being given: if you have a diagnosis, you will access better and improved services. I think that will deliver adverse consequences in the way it will drive resources within the service. The target time on diagnosis—I don't understand any evidence about that. There isn't any evidence that the target time chosen would actually lead to improvement, but again you'd be directing resources into that as opposed to providing the service itself as well. Now, I think that the powers that we have will allow us to deliver improvements. 

So, is it won mainly on flexibility—that a code gives flexibility whereas legislation requires you to go in a particular direction, even if—?

No, it isn't just about that. I think the flexibility of a code you can revisit at some point more easily than primary legislation is of use. But as I say, once you have legislation like this, you will direct resources in a certain way, and I don't think that is a do-no-harm piece of legislation. You will direct resource at the specific areas chosen in this legislation. So, I think they will unbalance the system and it will not be an equitable way of meeting people's needs. People that don't have that diagnosis, but have other needs, will find that resources are being channelled in a different direction, and that's troubling, I think. Again, that isn't just my view—that is the view of a range of people who have submitted evidence on the Bill itself. 

You mentioned one or two areas in respect of timescale. Obviously, one of the areas we have to consider is the efficacy of the legislation and its capacity to be implemented. You mentioned certain timescales. What were the main areas that you were primarily concerned with, which I think you indicated were probably unachievable? 

So, the strategy and the time frame for the strategy. So, Royal Assent within three months, or within three months of Royal Assent for the strategy itself to be active. Because the Bill requires us to do some things differently and the strategy would need to take account of that, you'd have to look at that internally, understand what that then looks like and then you'd want to consult on it, and then if we were going to have any meaningful consultation, I don't think you'd have that in place within the time frame that the Bill sets out, or you'd have to have such a short consultation I don't think that would be meaningful either. So, I do think there are challenges in the time frame that the Bill sets out. But also, like I said, the conversation I had with the Member in charge about the diagnosis and setting a diagnosis target, I think that is troubling as well, because there isn't an evidence base to underpin that, about why we should pick one point or another. But, again, what that does in terms of the resources available. So, the time frame he's chosen for the targets, but also in particular the time frame to actually deliver a new strategy. And, of course, there's the point we discussed earlier about whether you could amend that to make sure there was some Assembly or parliamentary scrutiny. 

Okay. That's the end of the main questions we had. Were there any other questions that Members wanted to raise? In which case, I thank the Cabinet Secretary very much for the answers and the robust answers. There will be a transcript in due course that will be sent through. Thank you for attending.  

It's always a pleasure, Mr Chair. Thank you for your time. 

3. Bil Senedd Cymru ac Etholiadau (Cymru)
3. The Welsh Parliament and Elections (Wales) Bill

We now move on to item 3: the Welsh Parliament and Elections (Wales) Bill. There is a written paper that is in front of you—pages 12 to 14. Perhaps if I could ask the clerk to report. 

This is just a paper to invite Members to note the statement on what is a Bill of considerable constitutional importance. It's just there for information at this stage. 

The anticipation—this is something we can of course discuss perhaps in private session because it may be a matter that comes before this committee. This is really just a paper for noting at this stage. Any comments I suppose we can deal with in private session subsequently, unless there's anything in particular that Members want to raise now.

15:10
4. Papurau i'w nodi
4. Papers to note

We move on to item 4, more papers to note. We have the letter from the Parliamentary Under-Secretary of State for Exiting the European Union to the chair of the House of Commons Procedure Committee. This, of course, relates to matters that we've discussed previously about procedure. Any matters from the lawyers on this? It's just another paper to note, only that this, obviously, does require us, I think, to be monitoring much more closely, or very closely, what is happening on the Westminster side as legislation comes through, to ensure that we get the maximum advance notice of what is coming forward to give us any opportunity at all to actually influence those matters.

May I note that this is an encouraging development, though, Chair?

I think it's very encouraging that the committee there has taken a stand on an important constitutional procedure and the Government has conceded, quite significantly, those points. Those will be of benefit to us. Of course, we will need to work very closely with the scrutiny committee in Westminster as well, as matters come through them, that we get notification of that. Do you have anything else to add on that?

5. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
5. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of 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.

A motion now under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting. Is that moved? 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:11.

Motion agreed.

The public part of the meeting ended at 15:11.

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