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Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

03/12/2018

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd AM
Mandy Jones AM
Mick Antoniw AM Cadeirydd y Pwyllgor
Committee Chair
Suzy Davies AM

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
Katie Wyatt Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Ruth Hatton Dirprwy Glerc
Deputy 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 meeting of the 3 December 2018. The usual housekeeping rules apply. I've had apologies from Dawn Bowden AM and from Lee Waters AM. In terms of declarations of interest, are there any? If there are none, we then move straight on with the agenda.  

2. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3
2. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

Item 2: instruments that raise no reporting issues under Standing Order 21.2 or 21.3. Paper 1:a statutory instrument with clear report—the Non-Domestic Rating Contributions (Wales) (Amendment) Regulations 2018. Are there any comments on that? 

No, so we note that.

Item 2.2—the Non-Domestic Rating (Small Business Relief) (Wales) (Amendment) Order 2018. This is an Order that provides for a rate relief scheme, which applies to certain categories of hereditament. This Order increases the maximum rateable value of hereditaments meeting the childcare conditions set out in article 8 of the 2017 Order to £100,000. The effect of the amendment made by the Order is to exempt all hereditaments meeting the childcare conditions from the payment of non-domestic rates. Any comments on that? 

3. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3 ond sydd â goblygiadau o ganlyniad i ymadawiad y DU â'r UE
3. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3 but have implications as a result of the UK exiting the EU

We move on to item 3: instruments that raise no reporting issues but have implications as a result of the UK exiting the European Union. Item 3.1—the Beef and Veal Labelling (Wales) (Amendment) Regulations 2018. These are regulations made in exercise of powers contained in section 2(2) of the European Communities Act 1972. The regulations make technical amendments to the Beef and Veal Labelling (Wales) Regulations 2011 to reflect provisions in EU law regarding electronic identification of bovine animals and the labelling of beef. Any issues to be identified there? 

Only to note this legislation is another example of the type of law that will be retained EU law after exit and it could be an area where there might be common frameworks forthcoming. 

Could I just ask—there's nothing about the protected characteristics in this, like Welsh lamb and stuff?   

Not in this. This is just the form of the labelling.  

4. Offerynnau Statudol sy'n gofyn am Ganiatâd yn unol â Rheol Sefydlog 30A - Ymadael â'r UE
4. Statutory Instruments requiring Consent in accordance with Standing Order 30A - EU Exit

Item 4.1: the Human Tissue (Quality and Safety for Human Application) (Amendment) (EU Exit) Regulations 2019, and you have a letter from the Cabinet Secretary for Health and Social Services. You have the Government statement, the consent memorandum, regulations and explanatory memorandum. Now, this is the third EU exit-related statutory instrument consent memorandum that the Welsh Government has laid before the National Assembly. The purpose of the regulation is to correct deficiencies into primary and secondary legislation relating to human tissue arising from the UK leaving the European Union. The regulations insert a new section into the human tissue regulations of 2007 relating to the traceability, quality and safety of imports, the notification of serious adverse events and reactions and various technical requirements. The new regulations state that the appropriate authority may prescribe the requirement in these areas, and the 'appropriate authority' is defined in relation to Wales as

'(i) the Welsh Ministers; or (ii) the Secretary of State acting with the consent of the Welsh Ministers'.

And in his letter, the Cabinet Secretary explains that he is not minded to table a motion for a debate about this statutory instrument. He says he has reached the decision

'on the basis that this SI is restricted to making corrections to the deficiencies in law that will arise as a result of the UK leaving the EU.'  

Any comments on that?

Yes, just one question. Do Welsh Ministers get any new powers as a result of this? My understanding is 'no', but I'd appreciate that to be confirmed.  

I think if there were new powers it would be a matter of concern to us and we would want to note it. 

Can we get back to you with the answer to that? 

Yes, because if that's the case then perhaps we should actually ask for separate regulations so that we can debate it. 

Can I just also confirm, given that there's much talk about organ donation in here, and the organ donation system is different in Wales—

—that these regulations do not impinge on that, because it's a basis that the regulations are the same, just to make sure that that is actually the same, because we wouldn't want the organ donation opt-out undermined either?

14:35

No, I don't think it affects the organ donation opt-out regime here in Wales.

But the point you've raised, Suzy—we'll bring it up at the next meeting next Monday. So, if there's any issue there, we'll make sure it's on the agenda then, okay.

Okay. Item 4.2, Quality and Safety of Organs Intended for Transplantation (Amendment) (EU Exit) Regulations 2019—a letter from the Cabinet Secretary for Health and Social Services. Again, you have the Government written statement, the consent memorandum, regulations, explanatory memorandum. And this is the fourth EU exit-related statutory instrument. The regulations insert a new section into the Quality and Safety of Organs Intended for Transplantation Regulations 2012 in relation to the procedures for the transmission report and other information relating to organs. Any comments on that?

Just the same point, really. It will be a running theme through this.

We'll look into that and the common point. If we're happy with it, if there is an issue on it, then we'll bring it back; if there isn't, we won't. Is that okay?

Oh, absolutely, and if you could just apply it to all the ones that are in this section—save me saying it every time.

Absolutely. I think it's a matter of course, isn't it?

5. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C
5. Written statements under Standing Order 30C

Item 5, written statements in accordance with Standing Order 30C, EU Exit—I think there are a number of these. The Leghold Trap and Pelt Imports (Amendment etc.) (EU Exit) Regulations 2018, a statement and commentary. This is a written statement relating to leghold trap and pelt imports. Any comments? No. On to the Equine (Records, Identification and Movement) (Amendment) (EU Exit) Regulations 2018. Any comments? The Blood Safety and Quality (Amendment) (EU Exit) Regulations 2019. Any comments? No. Item 5.4, the Organic Products (Amendment) (EU Exit) Regulations 2018. No. Item 5.5, the Zoonotic Disease Eradication and Control (Amendment) (EU Exit) Regulations 2018. No. Okay, item 5.6, European Structural and Investment Funds Common Provisions Rules etc (Amendment etc) (EU Exit) Regulations 2018—again, a statement and commentary. Any comments?   

6. Papurau i’w nodi
6. Papers to note

Okay. We go on to item 6, papers to note. We have a letter from the Llywydd regarding Assembly reform legislative competence. There is a letter that is before you within the papers relating to the issue of the reservation of equal opportunities and the Assembly's electoral arrangements. In March 2018, the Secretary of State wrote to the Llywydd, copied to us, in the context of potential deficiencies in the Government of Wales Act 2006 that will need correcting by means of a future section 109 Order. This is likely to be the Order referred to in the Llywydd's letter. Any comments?

Okay, item 6.2, correspondence between the UK Parliament and UK Government regarding the flow of instruments under the European Union (Withdrawal) Act 2018. There are two papers there, papers 28 and 29. One is a letter from the Chair of the Procedure Committee, the European Statutory Instruments Committee and the Lords Secondary Legislation Scrutiny Committee to all departments regarding the flow of instruments. The other is a letter from the leader of the house and Chris Heaton-Harris MP responding. So, we're just invited to note that correspondence and note that the number of EU exit statutory instruments is now likely to be around 700 rather than the previously thought 800 to 1,000 and that around a quarter of these will involve legislating on behalf of the devolved administrations. As you will know, I wrote to the leader of the house on this on 15 November seeking an update, and we're still awaiting a response. Any idea when that response is going to be—? Okay. Soon, no doubt. Any comments?

Only that we'd already had a frequency profile, I think, hadn't we, of when we were likely to be getting these. Are we anticipating that that will change significantly? So, it's not the end of the world if we don't hear from the leader of the house speedily, then.

I don't think so, no. I think the letter that was sent to the leader of the house was in response to one that the First Minister had sent to the External Affairs and Additional Legislation Committee, suggesting there were around 50 instruments to be made by Welsh Ministers and about 150 to be made on behalf of Welsh Ministers by the UK Government. So, it's just seeking clarification of that information and any further updates.

14:40

Okay. We move on, then, to item 6.3, a letter from the Cabinet Secretary for Finance—inter-parliamentary forum on Brexit. You're invited to note that letter. 

Chair, while noting, can I highlight the paragraph at the bottom of the page there, which should be a matter of concern in terms of current events?

Right, just a moment. Let's get to that. Which page is that on?

The last paragraph:

'We remain disappointed and frustrated by the lack of meaningful engagement more widely. We were not shown or provided the detail of the draft Withdrawal Agreement or the political declaration before it was published, despite the fact that the UK Government cannot speak for the whole UK on many of the issues covered—many are in areas within the devolved competence of Welsh Ministers and the National Assembly for Wales.'

I think that just needs highlighting while we're noting it.

No, I think it's absolutely right. I think that accords with evidence that the Cabinet Secretary has given elsewhere and I think in the Assembly itself, and, of course, will be the subject matter of debate tomorrow, no doubt, as well. The next inter-parliamentary forum, in fact, is in mid January, and that's being hosted by the House of Lords; we can let you know the exact date when it takes place.

Item 7, then, the motion under—well, in accordance with Standing Order 17.42(vi), I invite the committee to resolve to—. Sorry, have I missed an item?

No. Could I just update the committee?

Regarding new powers, I've found the answer. The European Commission currently has powers around the quality and standards of human tissue and organs, and those same powers have been transferred to the Secretary of State and the Welsh Ministers—the same powers to maintain the same quality and standards.

That's the intention.

Well, can I just come in on the back of that, then? I think there is a question about whether we can just let the UK Government do this for us, then.

Welsh Ministers have the powers as well in relation to Wales. Yes.

No, no, I understood—that's what I meant. So, if they're going to pass the legislation that gives the Welsh Ministers the powers, we, at the very minimum, need to be at least aware of that.

The role of this legislature, I think, is—. We would be concerned.

So, even if they are mirror copies of each other, the UK legislation and any potential Welsh Government regulation, at least we should see it so we know that Welsh Ministers are getting these powers in the first place.

Do you have any particular proposal in terms of—? Just noting this, or—?

Well, I'm kind of challenging what the Cabinet Secretary is saying—that it's okay, these two pieces of legislation—were there to be two—would be the same, therefore we don't have to worry about it. But I'm saying, as a legislature, we should know about it.

Oh, sorry. I beg your pardon, yes. No, that's absolutely right. Well, can we take that up?

A letter to the Cab Sec to that effect would be good, from the committee.

Yes. Well, in fact, to all departments in Welsh Government. So, we're not saying, 'We must have two separate regulations for this', but you can't just take it as read that this legislature is happy for this to go through on the nod.

These are statutory instrument consent memorandums, so, therefore, under the relevant Standing Order, any Member may table a motion to seek the Assembly's consent. So, that may be one option if you wanted to—

Do you think this is a super urgent one? Because if it's not, we could do this as a test case. We're not going to have a lacuna in the law in the meantime, are we?

Under the Standing Orders, I believe it has to be done within 35 days of—

There's not going to be a gap in the law if we do that, is there? We've got until March.

No, I don't think so. I'd have to check the nature of the instrument, what procedure it was subject to. I would think, actually, it's—

It's subject to the affirmative procedure.

It's affirmative procedure, so there'll be a—

We don't have timescales of when exactly it will be debated in—

The issue in this case is not so much what's being transferred, because we would assume, under the position that we've adopted, it would automatically come back to us, but the fact of the matter that it has been bypassed.

Yes. We are being asked for the UK to do this on our behalf, and being asked to do it without—

Yes. I mean, the whole thing will take about three minutes, I would imagine.

I'll give you some—I'll give you a background note about the procedure.

Shall we come back to that? [Interruption.] Shall we come back to that? Shall we come back to that in private session now?

14:45

We'll just have a chance to quickly look at it. Let's get through—let's get into private session, and we have one or two other items to do. We'll get through the report there, then we can come back to that.

7. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod
7. 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.

So, in accordance with Standing Order 17.42(vi), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree?

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:45.

Motion agreed.

The public part of the meeting ended at 14:45.

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