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Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

14/01/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Carwyn Jones AM Yn dirprwo ar ran Dawn Bowden
Substitute for Dawn Bowden
Dai Lloyd AM
Mandy Jones AM
Mick Antoniw AM Cadeirydd y Pwyllgor
Committee Chair
Suzy Davies AM

Y rhai eraill a oedd yn bresennol

Others in Attendance

Dr Catrin Fflur Huws Prifysgol Aberystwyth
Aberystwyth University
Dr Charles Mynors Comisiwn y Gyfraith
Law Commission
Henni Ouahes Comisiwn y Gyfraith
Law Commission
Nicholas Paines QC Comisiwn y Gyfraith
Law Commission
Professor Thomas Glyn Watkin Tyst
Witness
Sir Nicholas Green Comisiwn y Gyfraith
Law Commission

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

Cynnwys

Contents

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau 1. Introduction, apologies, substitutions and declarations of interest
6. Offerynnau negyddol arfaethedig nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B 6. Proposed negative instruments that raise no reporting issues under standing order 21.3B
4. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3 4. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3
5. Offerynnau sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.2 neu 21.3 5. Instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3
10. Papurau i’w nodi 10. Papers to note
2. Bil Deddfwriaeth (Cymru): Sesiwn dystiolaeth 2 2. Legislation (Wales) Bill: Evidence session 2
3. Bil Deddfwriaeth (Cymru): Sesiwn dystiolaeth 3 3. Legislation (Wales) Bill: Evidence session 3
7. Offerynnau Statudol y mae arnynt angen cydsyniad: Brexit 7. Statutory Instruments requiring consent: Brexit
8. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C 8. Written statements under Standing Order 30C
9. Datganiadau ysgrifenedig diwygiedig o dan Reol Sefydlog 30C 9. Revised written statements under Standing Order 30C
12. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod 12. Motion under Standing Order 17.42 to resolve to exclude the public from the meeting
11. Offerynnau Statudol y mae arnynt angen cydsyniad: Brexit: Trafodwyd yn flaenorol 11. Statutory Instruments requiring consent: Brexit: Previously considered

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 13:02.

The meeting began at 13:02.

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

Welcome to the Constitutional and Legislative Affairs Committee. Item 1, by way of introduction—there are a number of housekeeping matters. In the event of a fire alarm, Members should leave the room by the marked fire 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. The National Assembly for Wales operates through the medium of both the Welsh and English languages; headphones are provided through which instantaneous translations may be received. For any that are hard of hearing, these may be also used to amplify sound. Do not touch any of the buttons on the microphones as this can disable the system, and ensure the red light is showing before speaking. Interpretation is available on channel 1 and verbatim on channel 2. I've had apologies from Dawn Bowden—Carwyn Jones AM has stood in.

Just as a very preliminary matter, we had the very sad news over the weekend of the loss of one of our fellow Assembly Members, Steffan Lewis. I just wanted to mark that there. There will be obviously more substantive tributes during Plenary tomorrow. Steffan was an individual who had made a substantial contribution to the constitutional debates that were taking place, particularly around Brexit, particularly around the legislative framework and the continuity Bill. He will be very, very sadly missed and is a very real loss to the National Assembly for Wales. Our thoughts remain with his family and his friends at this deeply difficult time for them.

2. Bil Deddfwriaeth (Cymru): Sesiwn dystiolaeth 2
2. Legislation (Wales) Bill: Evidence session 2

We move on to item 2, and I welcome the members of the Law Commission attending today—Sir Nicholas Green, chair of the Law Commission, Mr Nicholas Paines, Queen’s Counsel, of the Law Commission, Mr Henni Ouahes of the Law Commission and Dr Charles Mynors of the Law Commission. We've obviously had a growing relationship with the Law Commission, particularly since the 2014 Act and particularly as the legislative programme of Welsh Government and the Assembly increases, and issues arise from that. I think we very much value our previous meetings and the co-operation that we've had with the Law Commission, which will obviously develop and continue in quite a number of areas. Sir Nicholas, I understand you'd like to make an opening statement. 

Mr Chairman, thank you very much indeed. Perhaps I could just formally record that we would like to add our condolences to those of the committee, which have already been given on this sad news.

Mr Chairman, members of the committee, good afternoon. I'm very pleased to be able to attend on behalf of the Law Commission to give evidence and to answer questions. Can I make a few short introductory observations? 

First, we consider that the Legislation (Wales) Bill represents and reflects far-sighted and enlightened legislative practice. We endorse the observations of the Counsel General as to the importance of legislation of this type. In broad terms, our experience is that a good codification exercise can reap real benefits, not only in terms of improving the position of individual citizens, but also in terms of administrative savings. By way of illustration, a recent codification exercise that we have completed in relation to sentencing is estimated to be capable of saving up to £0.25 billion over 10 years. 7

The second point is that the central principle of accessibility found within the Bill is not one that is defined. Personally, I don't see this as a particularly difficult problem. Both in our report on form and accessibility of the law applicable in Wales and in the Counsel General's speeches and evidence, the basic ingredients of accessibility are described. We would summarise them as follows: first, the use of understandable language in Welsh and English; second, the removal of out-of-date and obsolete provisions that otherwise foster confusion; third, the removal of unclear and inconsistent terms and definitions; fourth, the bringing together of legislation and, to some degree, common law rules and case law, into a single instrument or into a series of instruments; fifth, the drafting of legislation so that it can be readily amended without leading to a proliferation of different instruments on a topic or subject; and sixth, making legislation readily accessible via digital means—what the Counsel General described in one speech as 'navigability'. Now, these are, in my view, general principles of accessibility. In Wales, there is the added important dimension of making legislation available and understood in the Welsh language.

The third point is that the process of securing accessibility is a long-term project. The Counsel General described it as generational, and I think we would agree. It's also a process that needs to be addressed pragmatically. For instance, it may not always be possible to bring together all the legislation into a single measure or a code; there may need to be a group of instruments. And the speed at which accessibility can be achieved will inevitably depend on political and financial resources.

Fourthly, and the final observation I'd like to make by way of introduction, what in my view is impressive about the Bill is that it encapsulates in simple terms a clear duty on the Counsel General to keep the law under review, and a duty on the Counsel General and the Welsh Ministers to prepare a programme of reform to improve accessibility. These are bold duties, and they create a motor for perpetuating the accessibility. Now, we have, of course, noted that some organisations that have submitted evidence to you have called for the legislation to be bolder and more rigorous. In particular, the Association of London Welsh Lawyers expressed concerns that the duties in the Bill were, as they described it, a recipe for inactivity and procrastination. Well, I do hope this is unduly pessimistic and, indeed, I believe it to be so.

So, Chairman, those are the observations we'd like to make by way of introduction, and we're very grateful for the opportunity to be here to answer your questions. 

13:05

And we're grateful for your attendance. I'm grateful for your submission as well, because your submission also deals with the origins of this particular legislation in your report on the form and accessibility of law in Wales, which is really where this thought process began to develop. You address that in your paper, and you say,

'we noted the need for the law to be clear and accessible',

and you

'surveyed the reasons why the law in Wales had become inaccessible',

with partly similar issues relating to the UK as a whole, but, of course, devolution legislation was compounding the issue. And, again, the policy objectives of the Bill in the explanatory memorandum I think reiterate those points about the developing complexity of the law and I think refer to the UK statute book being vast and unmanageable, and, of course, one of the objections being to avoid that happening with the Welsh legislative law book as it develops.

Just on the point of accessibility generally, many of the comments orientate obviously towards those who practice within law, those who give advice. On accessibility in terms of members of the public in terms of understanding law, being able to access it—and we live in a world where there are considerably more restrictions in terms of the sort of advice that might be available than was the case in the past—I'm just wondering what your views are in terms of how this may contribute to the person in the street having improved accessibility. What are the advantages within that context?

13:10

I think the advantages are very substantial indeed. We all know that there's been a very substantial reduction in legal aid available to individuals who need to know what their rights and, indeed, their obligations are, or need to know how they present themselves before a tribunal or a court, and there are many other citizens who need to know how to conduct themselves in their business and in their ordinary lives. We also know that law has proliferated. As I understand it, within the Assembly, you have 56 Measures or Acts and approximately 2,500 statutory instruments. In the general law, there are some 5,000 Acts and 80,000 statutory instruments. In relation to any one topic, whether it be social security or housing, there is a vast amount of complex, technical legislation, most of which is inaccessible to the ordinary person. We feel strongly that this sort of exercise of improving accessibility is intended to and should have a real impact upon individuals' lives. So, we think it's very important. 

Okay, thank you very much. We'll go straight on to Suzy Davies. 

Thank you, Chair. First of all, can I just say that I welcome your remarks about the proliferation of secondary legislation. I think that's very helpful. It's great that we have some primary legislation to try and deal with the whole issue of accessibility, but what else do you think that we as Assembly Members as well as Welsh Government might be able to do to improve accessibility?

Over and above introducing this Bill?

This legislation. Maybe it's a question not for you, but I think I'd like to know. 

As a follow on from the Bill, something that we're interested in more generally within the commission is digitalisation of legislation, making legislation, to use the Counsel General's word, navigable and accessible through digitalisation. That is something that I think is probably implicitly covered by the Act. It's one of those activities that the Assembly can encourage. But there's a great deal of money that needs to be spent on the way in which legislation is implemented through digital means and then monitored. We are looking at a number of projects across our own workbook about how you monitor legislation once it's in force to see whether it's effective, and that's the sort of thing that is plainly important. Our remit in terms of this particular project was to look at legislation rather than look, for example, at education or encouraging academics or encouraging the writing of textbooks. Those are the sorts of things that Lord Thomas is looking at. So, I'd be chary about expressing a view on those matters. I don't know if you think there's anything—

It can be an informal view. It's just that, as Assembly Members, obviously, we want the people in Wales to engage with the work that we do as much as possible, and if you have any views on that, we'd be delighted to hear them, even if they're not about the legislation. 

Sorry, in terms of—?

Even if it's not about legislation. If you feel that's going too far, that's absolutely fine. 

Education is plainly important in bringing rights and obligations to citizens' attention. Legislation is the start of the process; you then have to ensure that individuals who are subject to it become aware of it. As a judge, when I was a presiding judge before I went to the Court of Appeal, I was constantly involved with judges who were dealing with individuals as litigants in person. It's a huge problem. Most of these people don't understand their rights and they are therefore more likely to argue 20 or 30 points instead of the one point that might actually be the winner for them. They didn't have the ability to sift through and work out what was the good argument and what was the bad argument. So, education and making people aware of their rights and their obligations is really part and parcel of this, but, in a sense, it's a little bit beyond our remit.

13:15

Well, I understand that. I was wondering if perhaps—things like law clinics—we should be looking at ways of making law easier to get to first hand.

If you'd like me to say that the Government should pour money into the legal system and the judicial system, into citizens advice bureaux, then I'd love to say that.

Well, I don't mind saying it. Thank you.

You mentioned in your opening remarks that understandable language is one of the key elements of this, and we've already raised some questions in Plenary about the meanings of the words 'consolidation' and 'codification' themselves. I'm wondering if you had any particular views on this. I'd like to start with consolidation, if I may, because that, on the face of it, appears the easier of the two words to define. But, in your evidence you said—and, in fact, in your opening remarks you said something along these lines—that as well as just reiterating law, it's an opportunity to clarify meaning, omit obsolete provisions—and streamline procedures is the one I was interested in. Because what do you see as the role of this Assembly in that? Who is that role to be left to? Because, of course, legislatures introduce—oh, sorry, it's introduced by government, mainly, but we make the law. We should be the ones responsible for streamlining it, or the procedures.

There are two main points here. First of all, I think the Bill, to my mind, is very clever. It is not a Bill about codification; it's a Bill about accessibility. Codification is one aspect, albeit a very important aspect, of accessibility. But accessibility is not just about bringing everything together, but it is about using the right language by making sure it's accessible, making sure it's navigable, by digitalising it. It's a lot more than just bringing it together into a small clump or group of pieces of legislation, and that's what I actually like about the Bill. It starts with a broader principle than mere codification and consolidation. The thrust is accessibility, which, to my mind, is exactly the right starting point.

Now, what can the Assembly do? Well, the Assembly can make a start with this legislation, and, as we say, it's probably a generational project. You can develop expertise and experience in codification and simplification techniques. You are one of the first assemblies—we think there's legislation of a similar type in New Zealand—and we're not certain of many other places in the world that have embarked upon such a project, so you would be doing seminal learning, seminal development of experience. We do believe it's important to develop a mechanism for easy adoption of codes, particularly those that are technical and don't involve substantive changes to the law. In Westminster, we have the Law Commission special procedure, which enables some Bills to go very easily and quickly through Parliament, provided they're not changing the law. Something along those lines, we think, would be sensible.

We think that the legislative officers, or the officers who are dealing with the drafting, have got to be properly resourced. Our own Parliamentary Counsel are always saying that they have far too much work and not enough people, and if you're going to embark upon a codification exercise, it's a major exercise. It's a large, resource-driven project. But we have our own impact assessments, which indicate that the cost of doing that is vastly outstripped by the economic savings that can be generated, as well as other societal benefits.

Well, I think you've hit on my point, and I'll leave it at this, if that's okay, Chair. You're absolutely right—this is going to be about drafting, and perhaps redrafting, of existing laws by, in this case, Welsh Government lawyers. Already there are not that many of them in this Brexit environment at the moment, but we have even fewer at Assembly level, and, of course, we need to be scrutinising this work, which is why I asked what you think the role of the Assembly should be when it comes to—to quote you—'streamlining' procedures under the legislation. Because, as you might expect, we would be very nervous of Welsh Government just changing things, law we have made, without us having the necessary oversight of it, however minor it may be.

I think our experience in Westminster would be that it's perhaps not that big a problem. When we're putting through our own draft legislation we spend quite a lot of time negotiating with the parliamentary Bills officers as to whether this is appropriate or not for the special procedure, and that will involve discussions with Ministers, civil servants, so everybody has a good idea of what it is that we're proposing to take through the special procedure. No-one's blindsided. People will only allow us to use the special procedure if it is genuinely technical and uncontroversial. If in fact it's controversial, then it may be that it goes through as an ordinary Bill, subject to parliamentary scrutiny. So, in practice, provided it's a process of dialogue and discussion about what it is you're trying to get through, we don't experience a problem.

13:20

Okay, that's helpful to know, because I'm quite keen on it being the Assembly that decides what's technical and controversial, and not Government. 

Yes. Well, the Government will—. If Government has an obligation to pass legislation through the Assembly, then it has to negotiate upon the basis that what is being put through is not controversial. If you agree, then, no doubt, you use the special procedure. If you don't agree, then you may decide that something else is required.

If I could add just one point, in our report on the form and accessibility of the law in Wales, we did discuss the question of Assembly Standing Orders—somewhat diffidently, because it's very much a matter for the Assembly. But we sketched out a possible regime that would have built-in safeguards so that it was, at the end of the day, the Assembly who decided that a Bill did not need to be scrutinised by it on the floor of the Chamber.

Good afternoon. I have three questions I'd like to explore with you, if I may. The first is on containment and fit when it comes to legislation. For most legislation, the title will be self-explanatory and it'll be easy to determine which code that legislation should fit into—so, for example, the social services Act, social services; any planning legislation, planning. But, of course, there are some Bills that become Acts that don't fit very easily. So, for example, the well-being of future generations Act—where does that fit? If, for example, at some point, the Assembly wished to take through legislation dealing with improving the life chances of looked-after children, well, that would involve, of course, not just social services, but education and health as well.

So, what sort of approach do you think would be the most useful? Would it be one where any new legislation would appear in one code, or would it possible for legislation to appear in more than one code, because it relates to more than one field of responsibility that the Assembly has?

As a general principle, we would advance, as good practice, the smallest number of instruments to encapsulate a subject, and that would tend to suggest you don't duplicate legislation across different codes or different groups of instrument. And we recognise that it's not possible necessarily to have one statute—there may be a statute plus some statutory instruments—but the smaller the number, the more accessible the law itself.

Now, we note that the—. We already have the draft taxonomy of codes, and I think there are 16 purported codes or proposed codes with 64 topics or subjects within them. I have to say, when we looked at this and studied it, we were mightily impressed that, actually, already the Assembly had begun to drill down into what might be the appropriate taxonomy for codes, and it's really quite a sophisticated piece of work. No doubt, it can be subject to much further refinement. This is very much a judgment call for you as to where you place a particular topic, but we haven't seen anything like this anywhere else in another jurisdiction, this taxonomy, so it's really quite an impressive start.

I'm not certain there's an easy answer. It may be that, in code B, you would simply have 'For subject matter relating to children, please see chapter x of code A or statute A'; you could have a cross-reference. But I think we would endorse the principle that the smaller the number, the better. At the end of the day, this is a skill that the Assembly will learn about and you will develop your expertise in it.

Okay. Thank you for that. The second question is to do with the draft taxonomy. In the draft taxonomy itself, there is paragraph that says:

'Therefore a Code would not (generally) be one legislative instrument but rather a collection of enactments under a unifying overarching title.'

Just to take your view on what a code actually means to you—whether it's a code in the sense of what we see in some civil jurisdictions like France, where there is a code, a criminal code and a code for areas of civil justice, where everything is part of that code and the code itself is the fundamental legislation, which is added to over time, or are we talking here about something that looks more like a catalogue, where in any subject area all the legislation is accessible by looking in that subject area but not necessarily something that codifies all the laws under one statute, in effect, or one code? Really, I'm just wondering what your views are in terms of which of those would be the most effective in terms of ensuring accessibility. Is it, on the one hand, a code that would be a legislative instrument, which is added to over time by legislation and by secondary legislation, or is it basically a resource, a catalogue, where, if you want to know what the law is on planning in Wales, then there is a list of enactments in that particular section of the code, or within that code, that you can look at. Which do you think makes it more accessible?  

13:25

I don't think a catalogue makes it more accessible, because that's simply an index. You go to it, you see that item No. 17 is to be found somewhere else—you go to item No. 17 and it starts, in the traditional way, cross-referring to five other pieces of legislation. You've then got the problem of proliferation, which we're in fact trying to solve. If we take, by way of example, the work we've done on the sentencing code, that brings together all the substantive law into a single instrument, so that, if you want to find out the law on sexual offences, you'll go to part X, if you want to find out the law on something else, you go to part Y, but it's all in that same instrument.

Now, is it going to be comprehensive and exhaustive? I think the answer's 'no'. It'll be very substantially comprehensive but it might, for example, not codify all of the common-law principles that apply on a subject. I notice that, even in the draft taxonomy, it refers to this being essentially legislative material. Now, again, we don't particularly think that's problematic, because our experience over the last 50 years is first that attempts to codify the common law are very difficult indeed and they often don't succeed, secondly, because most law of concern to individuals is in statutory form—for example, consumer law, employment law, environmental law, housing, highways—so that, if you codify or bring together that law, you're going to capture the preponderant part of everything that impacts upon an individual and their conduct in their life. So, it's perhaps a good common-law, Anglo-Saxon, pragmatic approach. There's no perfect solution, but we consider that a measure that brings everything together in one place and covers the vast majority of the law is, really, a pretty good start. 

Well, thank you. My third question was along those lines, and that is that the Government has said it's not looking to codify common law. And I agree with what you've just said. I think you can codify common law but there are relatively few common-law offences these days, in reality. To me, the common law is more about principles and remedies, and you have common law on equity, both about remedies in many ways, and trying to codify those, when we share those principles with so many other jurisdictions, I think is usually problematic. There is a limit to how much information you can give people, because, yes, they will take information from statute but it doesn't mean they know how the courts work or the principles upon which the courts will take those decisions. But you've answered the question—

I suppose the exception to that would be when you have an authoritative ruling of a superior court on the meaning of a statutory provision, which clarifies it and is accepted that this is now the law on that statutory provision. So, bringing that into the code may be sensible for transparency reasons. 

One point, on that, just for, I think, clarification of that—. We all remember Halsbury's laws and statutes, which seemed to go for mile after mile of shelving and so on, and doubling in size every couple of years, but the one bit that may cause some confusion within the draft is precisely what a codified piece of law might look like, particularly if we're looking at, I suppose, two concepts: one is that you put it all in one place, but the other one is that you consolidate it but also take the opportunity to update, and I think you referred to this in your evidence, of actually removing all the antiquated parts, the irrelevant bits and pieces, so what you actually have is an up-to-date and modern piece of legislation without all the trappings of years gone by that have accumulated to that. The options are left open within the legislation as to precisely how that might occur. What is your view on the relationship between codification and consolidation?

13:30

We would, as a general principle, I think endorse the view that, if you're going to spend the resources and the time on an exercise of codification, it is worth modernising the legislation as you go along by removing all the inconsistencies, removing the obsolete measures, if you can, by improving the language. It really goes cap in hand with the process of codification. Now, there's always going to be an issue about resources. If you decide you want to change the law as opposed to streamlining it and improving it, then that might take much more resource because you may need to consult and do research in order to come up with a new answer. That's a value judgment for the Assembly to take, whether you just what we would describe as technically improve the legislation, or whether you substantively improve it. And they're not precise terms in and of themselves. What someone views as a technical improvement, for example, by improving a procedure under an Act, may be viewed by someone else as substantive. 

Yes, and I suppose that process is going to be a balance in terms of time, resource, the existing legislative programmes and so on.

No more questions. Okay.

One of the issues—. Well, let's take it on to one other area, and that is, I suppose, the imminence of this process, because one of the points that is being made is that the demands of Brexit, the demands of the need for reform in a whole series of areas, are actually a distraction from this process—this legislation is actually a distraction from that. As most as anything for the record, the importance of this process, starting now—how would you describe the importance of this and where that fits in with all the other priorities in terms of legislative reform that we have? 

We view it as very important. This is fundamentally an exercise in best practice. Legislation doesn't get simpler; it gets more complicated. Brexit is going to—assuming it goes ahead—vastly increase the complexity of the task. We're talking about up to 1,000 new statutory instruments coming into the statute book as law is repatriated from Europe. There will then want, presupposing, to be some sort of a discussion between devolved Governments and Westminster as to how those new powers are divided up. So, life is going to become more complicated, not simpler. If you have in place a mechanism that can deal with that now, you're very well-prepared to make what is going to hit us all that much easier. So, we would view this as simply getting your ducks in a row, if you like, legislatively. And, after all, it's not a terribly long or complicated Bill—the first parts of the Bill, before the interpretation section.

One of the questions that inevitably appears with respect to every piece of legislation is: what do you think might be the criteria and how we might actually evaluate the success or the effectiveness of what we're actually doing. Do you have any contributions or views in respect of that aspect of this legislation?

Yes. The question, 'How to measure success?' is very difficult. Assuming—as, I think, we do—that everybody thinks there is considerable value in pursuing this, then we would view, from our perspective, at least, success as including the following: making the start, not delaying it because of Brexit or other matters. And we think Part I of the Act does this. As I said, there are three powerful, important duties contained within Part I of the Act, which we think is a very good start. We think the Assembly developing its experience and expertise in this area is also important, and that will occur over time. Having a mechanism for introducing codification legislation would also be good progress. Making progress with codes—the taxonomy drafted, we think, is an excellent start. The work that is ongoing in relation to planning law will be an acid test of how this works; it will give you an opportunity to evaluate and learn from the experience. And you should be able to gauge public reaction over time. There are increasingly sophisticated qualitative and quantitative survey techniques to find out whether citizens understand law, can use it more easily. So, we're very early days, but we do think there are ways in which you can measure the success, and we don't see why it shouldn't be a resounding success.

13:35

The legislation actually provides for a specific duty on the Counsel General. The duty has been described as being important because it ties in future Governments insofar as you can tie them in to a consistent process over a period of years. One of the dangers, of course, is to start a process, as we've seen has happened in the past at UK parliamentary level, and to ensure that that continues. Now, that was something you did address, I think, within your report. I was just wondering if you wanted to just elaborate on that particular aspect.

Yes. We view the oversight of this by the Assembly as very important. The traditional role of an Assembly or a committee such as this is to analyse, monitor, nudge, cajole, call to account and pose the pertinently impertinent question. And that's something that an Assembly and a committee such as this ought to be doing. The one thing that there isn't in the Bill is a duty on the Counsel General, or the Ministers, to report on the operation of the Act on a continuing basis. And if you ought to be in a position to exercise proper supervisory control, it really is a matter for you to decide whether you wish to see, in the Act, this additional duty on a continuing basis. There's the duty to put forward the programme at the beginning of each term of an Assembly, but there isn't a duty, explicitly, to come back and impose—. There's a reporting obligation on progress—that's right—in section 2(7). That could be beefed up. Perhaps the answer is that it depends upon how you view that obligation and how rigorously you apply it. Or whether you wish to add substance to the word 'report', but—

Thank you, Chair. Yes, obviously, there's a difference between reporting and reviewing, isn't there—

—which I think is what you are hinting at here? Were we to look for a stronger version of this and look for a review clause rather than simply reporting clauses, who do you think should be setting the terms of evaluation? Effectively, I'm asking you: should the Government mark its own homework or should the Assembly set the criteria on which this should be evaluated?

That's a very loaded question, if I may say so.

You asked me to be impertinent, so I am. [Laughter.]

It's a leading question. Well, I think, logically, if you stand back and try and address it as a point of principle, I would imagine that the Assembly should be able to form its own views as to how it wishes to appraise or evaluate a programme. There may be some obvious criteria: the number of codes brought forward—their extent, whether steps have been taken to measure quantitatively or qualitatively whether they've been effective. I doubt there's much mystery about the sorts of things you'd want to look at.

No, but thank you for answering the question. Thank you.

It seems to me there's both the quantitative and the qualitative side to this. The quantitative one is: how much work the Welsh Government does by way of producing code Bills, and, obviously, that's a matter of how much money can be made available to it for the purpose. But then, on the qualitative side, you may want to consider: how much of an improvement is this Bill on the legislation it replaces? You were asking earlier, Chairman, what a code will look like. I can't show you one now, but in a year's time, the Office of the Legislative Counsel will be producing a planning code based on our recent report on the planning system. And, if you look at our report, you'll see we made more than 100 recommendations for the removal of bits of dead wood and general streamlining. And you will, I hope and confidently expect, find the Bill, when it reaches your hands, refreshingly easier to read and understand than the morass of legislation that exists at the moment on the Westminster and Cardiff statute books.

I'm sure we all look forward to a refreshing planning Bill. [Laughter.] I'm sure that many of us can't wait for that— 

I use the term in—[Inaudible.]

There's one important point about a refreshing planning Bill, which is something we're trying to do a lot of work on within the Law Commission generally, which is about measuring success. Planning is, par excellence, the sort of measure that, if simplified, if it succeeds in creating legal certainty, can stimulate inward investment. It can accelerate planning decisions that mean that people are more likely to invest in Wales than elsewhere. So, we are very interested in the fact that good legislation can have positive economic benefits. And that's something that we're doing work on within the commission, but it's also something that the Assembly could do work on or make an assessment of—whether developers consider that this will stimulate investment in Wales, for example.

13:40

That does come back slightly to the point you made earlier about codification and so on not being about cataloguing the law. Do you think the legislation is sufficiently strong, or do you think it's a matter that has to be left for, I suppose, discretionary operation and practice as the learning experience develops? I suppose, basically, do you think the legislation is perhaps too loose in respect of what is proposed by way of codification?

There's no definition of codification or accessibility, and that, I think, is a legislative choice. There is sometimes a danger in being too prescriptive too early, and trying to define terms might actually limit them. If this were a court and I were a judge looking at the interpretation of this, I would be looking at what was the admissible extraneous material—you know, what had the Counsel General said, what had the Law Commission said. I think you would find agreement that codification is intended to be a streamlined process of bringing everything together, not a cataloguing, and I think a court would work out pretty quickly what was meant by those terms. Now, if that's the case, I can't see anything wrong with the Assembly and the legislator taking the view that this is how it wants to proceed, not in a prescriptive way, but using broad terms that are sufficient to evolve as time goes on. I don't particularly have a problem with that at all.

Just some final points, and I will ask if there are any final questions that anyone wish to ask. One of the issues, of course, that's arisen with the development of the National Assembly as a legislature is, of course, the use of the Welsh language and the role that plays and, of course, the development of the Welsh language in terms of a whole area of terminology. And, of course, it raises all sorts of issues in terms of pre-existing legislation, interpretation and hence, partly, the need for this particular piece of legislation. I was just wondering what your views are as to the extent to which this will actually consolidate the use of the Welsh language within the legal profession and, I suppose, even within communities that are predominantly Welsh speaking in terms of the development and use of the Welsh language within the courts and the encouragement of, I suppose, the law and the Welsh language within the whole cultural policy of support for and development of the Welsh language.

There is a statutory duty on the Welsh Ministers and the Counsel General to include in proposed activities 'facilitating' use of the Welsh language. So, point 1 is that there is a statutory duty, if the Bill is enacted, to achieve that. It comes back to a discussion we've had earlier about the extent to which the Assembly may wish to vigorously enforce these sorts of obligations, and that, then, presupposes a dialogue between the Assembly and the Government over how that is going to be achieved and whether or not what is being done under the aegis of this Act is sufficient to do that. These are short words—they're not elaborated upon—but on the face of it, that's incorporated into the architecture of sections 1 and 2. Plainly, from the perspective of Wales, this is fundamentally important. It's always debatable whether you want it more express, but it is there. It's a matter for you whether the word 'facilitate' is sufficiently strong, perhaps.

Yes, okay. Thank you for that. Are there any other questions?

Is there anything else that you would like to add, in conclusion? I think we've come to the end of the questions that we can ask within, really, your statutory remit—we're very conscious of that.

There was one fairly technical question that was posed to us about whether within the Act there should be some provision addressing the question of judicial interpretation when there is a conflict between an English language and a Welsh language version. That's something that we addressed in our formal report, and we were against including anything specific on that. We actually think that judges are pretty good at getting to the bottom of what the legislature intended, when you've got conflicting words or conflicting texts. And, after all, we've had some 40 to 50 years' experience of this with legislation from the EU. As judges, we've become well used to looking at a French version or an Italian version and being given guidance by the parties as to what different language versions mean. I think that it would be dangerous to try and prescribe in advance what techniques a judge should or should not use. I think one trusts the judges to get to what the legislature intended by use of a particular word.

13:45

Probably impossible.

It may also be worth noting that, in the course of preparing the final report on the planning project, we came across several examples where there was one English word used that had four different meanings in Welsh, depending on which—the English word itself had four meanings, and depending on which of those was intended by the legislator, you had a different Welsh word. So, we recommended that it should be first of all split in English, precisely so that it could be translated more accurately into Welsh. So, the process of the bilingual element of it does actually improve the quality of the legislation both for the English and for the Welsh. So, we are very much aware of that.

Thank you very much. Well, thank you for attending. A transcript of the evidence will be made available to you. If you feel that there are any matters, on consideration afterwards, that we haven't asked or that you want to make comments on, we're happy to receive correspondence or communication on that. And just to say we very much appreciate the relationship, the work that you're doing and your coming down today to give evidence to us, which has been extremely helpful. Thank you very much.

Thank you. We stand ready to work with the Assembly and with the Government on all of these matters, so thank you very much.

3. Bil Deddfwriaeth (Cymru): Sesiwn dystiolaeth 3
3. Legislation (Wales) Bill: Evidence session 3

We now move on to the next session, item 3 on the agenda, which will be the evidence of Professor Thomas Glyn Watkin and Dr Catrin Fflur Huws.

Good afternoon. We're on item 3 of the agenda, which is the further consideration of evidence in respect of the Legislation (Wales) Bill. I welcome Professor Thomas Glyn Watkin—and congratulations on your recent award of Honorary Queen's Counsel—and Catrin Fflur Huws. I think just by way of starting off, one of the areas—. Did you want to make any form of opening comments before we go into questions? You're happy just to kick straight off.

Firstly, thank you for the written evidence, which has been very, very helpful. One of the areas, of course, that we've been considering with regard to this piece of legislation is the part of the motivation that has regard to the accessibility of law, and of course the explanatory memorandum makes significant points about that, about the extent to which the issues of accessibility have arisen and the extent to which accessibility and complication of the law increases, particularly as the programme and the body of Welsh law increase as well, both at primary level and secondary level. I wonder if you have any comments on the broader issues of accessibility and how this legislation actually addresses some of those issues. Whoever wants to—.

13:50

Mae cwestiwn hygyrchedd yn golygu sawl peth gwahanol, a beth sydd yn aneglur a beth sydd, efallai, eisiau'i drafod ymhellach yn y Ddeddf yma ydy'r syniad o beth ydy'r ystyr o hygyrchedd a fwriedir? Fe allai fod yn hygyrchedd o ran hygyrchedd dwy fersiwn y ddeddfwriaeth; fe allai fod yn hygyrchedd o safbwynt eglurder y termau a chysyniadau'r gyfraith ar bwnc penodol wedi'u crynhoi i mewn i un Ddeddf, yn hytrach na bod ar draws sawl darn o ddeddfwriaeth; ond fe all o hefyd olygu argaeledd a pha mor gyfredol yw'r ddeddfwriaeth mewn gwahanol ffynonellau masnachol, megis LexisNexis a Westlaw, ond hefyd ffynonellau sydd ar gael am ddim i’r cyhoedd. Felly, mae’r hygyrchedd yn gallu cwmpasu’r gwahanol elfennau yna yn ogystal â deunydd eilaidd, er enghraifft, ar gyfer gwefannau cynghori neu werslyfrau i fyfyrwyr. Mae’r rhychwant o beth yn union a olygir gan ‘hygyrchedd’ yn rhywbeth sydd angen bod yn fwy manwl ynghylch beth ydy’ch cysyniad chi o hygyrchedd er mwyn mesur llwyddiant. Ydy’r gyfraith wedi dod yn fwy hygyrch ai peidio?

The question of accessibility can mean a number of different things, and what isn't clear and perhaps needs further consideration in this legislation is this concept of what 'accessibility' means and what is meant by it in the legislation. It could be in terms of the accessibility of the two versions of the legislation; it could be accessibility in terms of clarity of terms and concepts on any specific issue all brought together in one piece of legislation, rather than existing across a number of different pieces of legislation; but it could also mean the availability and concurrence of the legislation in various commercial sources, such as LexisNexis and Westlaw, but also those sources that are available free of charge to the public. So, accessibility can encapsulate those various different elements as well as secondary materials, for example, for advice websites or textbooks for students. So, the range of what exactly is meant by 'accessibility' is something that needs to be defined in greater detail in terms of your concept of accessibility in order to measure success. Has the law become more accessible or not?

Professor Thomas Glyn Watkin 13:51:49

I think there are various levels of accessibility that have to be addressed. The focus here clearly is upon the accessibility of legislative text, which is rather different from the accessibility of law to the citizen. Most citizens who are looking for a statement of the law want a complete statement, not just legislation, but also any relevant case law, et cetera, and they're not likely to start looking at legislation as the first source. However, moving towards a consolidated or codified version will undoubtedly make it easier for the citizen who does turn to legislation as the source to actually find out what the law is, because it would just be simpler to navigate. I think that is important. But one mustn't lose sight, also, of the fact that it's important for there to be secondary sources that make the law understandable and accessible in its entirety.

Do you think the legislation, as drafted, is too oriented to the first part of that? That is, the profession, those who use the law regularly, rather than the citizen, where broader issues of accessibility come in, one, in terms of the point you make about understanding and availability, the other is assistance with that particular process, and then the processes of legal process. Comment was made earlier in the session, of course, about the impact of changes to legal aid over the decades.

Professor Thomas Glyn Watkin 13:53:36

My own view would be that you have to start somewhere on what is a very large task, and it strikes me that this is an excellent place to start. If one can sort out the statute book, then, that should facilitate other things following, such as commentary, et cetera. So, I think it is the best place to start, it's an excellent place to start and it's one that will facilitate further work. It's also, I think, in fairness, the only place that a Government or a legislature can start, because the secondary work has to come from outside. So, I think this is the appropriate thing to do as a first step.

Mae o yn rhywbeth sydd angen ei wneud. Yr hyn y byddai gennyf i gwestiynau yn ei gylch a phryderon yn ei gylch fyddai'r ffaith bod cyfraith Cymru a Lloegr a chyfraith Cymru fel rhywbeth ar wahân—dydy o ddim bob amser yn ffitio i mewn i fylchau twt ar wahân. Mae cyfraith landlordiaid a thenantiaid yn enghraifft, efallai, o hynny. A bydd Deddf Rhentu Cartrefi (Cymru) 2016, pan ddaw o i rym, yn enghraifft o gyfraith ar landlordiaid a thenantiaid sydd yn cydblethu hefo agweddau, er enghraifft, o Ddeddf Cyfraith Eiddo 1925, ac felly mae'r eglurder ynghylch ai'r Bil yma yntau'r Interpretation Act 1978 fydd yn berthnasol yn y cyd-destun penodol. Felly, mae hynny'n rhywbeth, dwi'n teimlo, sydd angen mwy o eglurder yn ei gylch o—beth ydy'r rhyngberthynas rhwng y ddwy Ddeddf mewn amgylchiadau penodol? Mae o'n ymddangos yn syml yn y ffordd y mae'r Bil yn ei osod o allan, ond dwi'n meddwl bod yna fwy o gymlethdodau yn dod ohono fo na sy'n ymddangos ar wyneb y Bil hwn.

It is something that does need to be done. Now, the issue that I would have some questions and concerns about would be the fact that England and Wales law and Welsh law, as a distinct thing, don't always fit into tidy, separate niches. Tenants and landlords legislation is an example of that, perhaps. And the Renting Homes (Wales) Act 2016, when it is enacted, will be an example of law on landlords and tenants that dovetails with aspects of the Law of Property Act 1925, and therefore clarity as to whether it's this Bill or the Interpretation Act 1978 would be pertinent in that specific context, and therefore that's something that I do feel needs greater clarity in terms of the interrelations between the two pieces of legislation in very specific circumstances. It appears to be simple in the way the Bill sets it out, but I do think that there is greater complexity emerging than would perhaps appear on the face of that Bill. 

13:55

Thank you, Chair. Obviously, we're looking at a law to try and help us understand law better at the moment, but do you think there's anything outside law that both the Welsh Assembly itself and indeed Welsh Government could be doing to improve accessibility of law, particularly for the citizen as opposed to other lawyers?

Professor Thomas Glyn Watkin 13:56:24

The issue here comes back, I think, to the question of what sort of secondary sources can be encouraged in order to explain what the law is, even after it's been consolidated or codified. There is, I think, and has been, a major obstacle to the development of academic commentary on the law in Wales. That has been the impact, in my view, of the various research assessment exercises, currently the research excellence framework, on the way that research concerning Wales is rated, or perhaps more accurately, fears within the academic community about how research relating to Wales is rated. I think if the Assembly had some competence to legislate with regard to the work of the research councils that carry out those assessments, it would be beneficial, because it would allow the Government and the Assembly to put in place, for example, a duty to have due regard to the particular needs of Wales in certain areas, of which the law is one, but only one. And I think if the research councils were required to have due regard to the needs of Wales, and in the instance that we're looking at here, the development of a legal culture within Wales, I think it would encourage academics in Wales to write about the law in Wales in English and in Welsh and thereby supply the badly needed secondary commentary that is currently lacking. If you compare, for example, the way in which the academic community responded to our becoming a member of the European Community in the 1970s with numerous academic texts to the lack of academic texts that have emerged since devolution, then I think that speaks volumes for what the difference is.

Ocê. Dydy hynny ddim yn help o gwbl i'r rhai sydd eisiau cael gafael ar y gyfraith yng Nghymru ar hyn o bryd, er enghraifft trwy law clinics neu Citizens Advice a phethau tebyg. Oes yna ryw ddolen yna?

That's no help at all to those people who want to get a hold of and access to law in Wales at the moment, for example, through law clinics or Citizens Advice and so on. Is there a link there?

Either of you—I don't mind.

Dwi'n meddwl bod yna fwlch eithaf amlwg yn y lefel wybodaeth sydd yn Lloegr o gymharu efo beth sydd yng Nghymru. Felly, mae gwefannau cyngor gov.uk, er enghraifft, y cyngor mae pobl yn ei gael o fanno, y cyngor mae pobl yn ei gael o wefannau cynghori megis Citizens Advice, o werslyfrau i fyfyrwyr, er enghraifft, yn canolbwyntio yn eithaf amlwg ar 

I think there's quite an apparent gap in the level of information in England as compared to the situation in Wales, so advice websites, gov.uk for example, the advice that people receive there, and can access from websites such as Citizens Advice and from student textbooks, for example, do focus quite clearly on:

'This is the law in England', 

neu yn canolbwyntio gan gymryd, 

or they focus assuming that 

'This is the law in England and Wales', 

heb ymwybyddiaeth bod cyfraith Cymru a chyfraith Lloegr yn bethau sydd ar wahân mewn rhai meysydd. Felly, byddwn i'n argymell fel man cychwyn fod gwefannau fel www.gov.uk yn gwneud yn fwy eglur,

without an apparent awareness that Welsh law and English law are separate and diverge in some areas. So, I would suggest as a starting point that websites such as www.gov.uk should make it clearer that 

'This is the law applicable in England. To access the law applicable in Wales, go to—'

a bod yna linc i wefan y Cynulliad ar yr un pwnc, achos mae yna dueddiad i ganolbwyntio:

and that there should be a link to the Assembly website on the same issues, because there is a tendency to focus on:

'This is the law in England', 

a dim byd o gwbl ar y gyfraith yng Nghymru. Felly, dwi'n meddwl ei fod o'n rhywbeth sydd yn effeithio yn fwy ar bobl sydd yn ysgrifennu deunyddiau yn Lloegr, achos mae yna anymwybyddiaeth sydd yn pryderu rhywun bod pobl ddim yn gwybod bod y Cynulliad hyd yn oed yn bodoli a beth mae'r Cynulliad yn ei wneud. A dwi'n meddwl bod y pwyslais yna yn rhywbeth sydd angen ei newid—bod y Cynulliad yn gallu deddfu, bod y Cynulliad yn deddfu ar y pynciau yma ac, o ganlyniad, bod y gyfraith a/neu'r polisi yng Nghymru a Lloegr yn wahanol. 

and to make no reference at all to Welsh law. So, I do think that it's something that does have a greater impact on those writing materials in England, because there is quite a concerning ignorance in England, that people don't even know that the Assembly even exists and what the Assembly does. And I do think that that is something that needs to change—that the Assembly can legislate and does legislate on these issues, and, as a result, the law and/or the policy in Wales are different to England. 

14:00

Diolch. Yes, I think it's fair to say that it's patchy on gov.uk. It depends on the department a little bit, I think. Can I just turn, then, to consolidation and codification? We've just heard from the Law Commission that they weren't enthusiastic about including many more definitions in this Bill, but they are very central concepts, aren't they? Well, certainly, 'codification' can mean two things. Can we start with consolidation, though—what your views are and what that actually could look like? I don't know if you had the opportunity to listen to their evidence, but are we talking about using the word 'cataloguing', or are we talking about streamlining and getting rid of obsolete bits of law as we go along as well? And if so, who determines how that is done? Should it be the Assembly? Should we be going through everything with a fine-toothed comb as well, or is it a matter for Government about what should stay and what should go? 

Professor Thomas Glyn Watkin 14:01:54

My understanding of consolidation is that it brings together under one roof, as it were, the relevant legislation on a particular topic, and in so doing would obviously remove the things that were no longer pertinent. It would revise the language in order to bring the thing into an integral whole, but of itself, would not, as it were, design the structure under the roof within which the consolidated law would fit. And codification is one choice of how you then systematise and rationalise what you have consolidated. So, consolidation brings things together; codification is the choice you make about how you then order it. To a certain extent, although the two things go hand in hand, it is necessary to consolidate before you can really see how, if at all, you wish to codify.

My own hope would have been that there would be, as well as a consolidation, an attempt to rationalise and systematise the way in which the consolidated law is then presented, and that, I think, is what will actually increase accessibility. Merely getting rid of the spent enactments, merely bringing together the relevant enactments in one volume, rather like the volumes that legal publishers produce on property statutes or family law statutes, et cetera—that's a code of a sort, I suppose, because it's how we'd refer to the property legislation of the 1920s, it is basically a sort of code of property law, but made up of several statutes. Or is one going to go a stage further than that, and move to the more rationalised, systematised sort of code that you have in other European countries of a different legal tradition? 

I think the concern I'm trying to tease out here is that if there are any changes that are actually made to the wording of existing statute, whether that's by putting it into a new statute or bringing it up to date in some other way, who should determine those changes? Because, as I mentioned in the previous evidence, with the legislature, it's our dutiy to make any changes to existing legislation would be my argument, but, of course, we're talking about thousands of statutes, potentially, here. Certainly, it's 50-odd for Wales already just from here.  

Professor Thomas Glyn Watkin 14:04:20

If I can just respond to that quickly by saying that I think the way in which this Bill sets about it is one way of doing so, and a good way of doing so. It says it's for the Government to propose but for the legislature to decide, so, therefore, the Government is committing itself, by placing itself under a duty, to bring forward programmes for such codification. Ultimately, of course, how that duty is exercised will be for the Assembly to determine. 

Dwi'n meddwl bod yna, mewn ffordd, ddyletswydd hefyd ar y Senedd yn San Steffan, achos os ydy San Steffan yn deddfu ar gyfer Lloegr yn unig, felly yn deddfu mewn ffordd sydd jest yn berthnasol i Loegr, er enghraifft, ar addysg, gan adael deddfwriaeth mewn bodolaeth sydd, o'r herwydd, ond yn berthnasol i Gymru, yna mi ddylai fod yna ddyletswydd i ailenwi hwnnw 'The Education (Wales) Act 1996' neu beth bynnag, fel bod yr eglurder yna nad yw Deddf mwyach yn berthnasol i Loegr ac yn ond yn berthnasol i Gymru oherwydd bod y gyfraith yn Lloegr wedi newid. Dwi'n meddwl y byddai hynny'n creu fwy o eglurder.

O safbwynt crynhoi deddfwriaeth, yna mae o'n fater o, 'Wel, beth ydy blaenoriaethau y Llywodraeth? Beth sydd angen canolbwyntio arno fo?' O ran addysg, er enghraifft, mae nifer o Ddeddfau addysg sydd yn berthnasol i Gymru yn cynnwys deddfwriaeth ers cyn cread y Cynulliad Cenedlaethol, ond hefyd deddfwriaeth sydd wedi cael ei greu yma yng Nghaerdydd. Ac felly mae'r patrwm a'r pictiwr o beth ydy'r gyfraith ar addysg yn wahanol iawn, gyda'r effaith bod Deddf megis Deddf Addysg 1996 efo diffiniadau megis 'school' a 'pupil', ond mae'r termau yna'n golygu pethau gwahanol ar gyfer Cymru ac ar gyfer Lloegr. Felly, mae beth yw 'school' yng Nghymru yn golygu un peth, ond, yn Lloegr, mae e'n cynnwys ysgolion rhydd ac academïau ac yn y blaen. Mae'r cysyniad o pwy sydd yn ddisgybl mewn ysgol yn cynnwys ystod gwahanol o oedrannau. Ac felly byddai crynhoi Deddfau felly i ddweud, 'Wel, yn Lloegr, mae'r term 'school' yn golygu hyn, ac, yng Nghymru, mae'r term 'school' yn golygu hyn—. Byddai'r broses o grynhoi hynny yng Nghymru yn gwneud y gyfraith yn llawer mwy eglur i'r bobl sydd yn defnyddio'r gyfraith honno. 

I think there is also a duty, in a way, on Parliament in Westminster as well, because if Westminster legislates for England only, and so legislates in a way that is only relevant to England, for example, on education, leaving legislation in place that is, as a result, only relevant to Wales, then there should be a duty for that to be renamed 'The Education Wales Act 1996' or whatever, so that that clarity is there that legislation is no longer relevant to England and is only now relevant to Wales because the law in England has changed. I think that would create greater clarity. 

In terms of consolidating legislation, then it is a matter of knowing what the priorities of the Government are with regard to what needs to be focused on. In terms of education, for example, a number of laws with regard to education in Wales include legislation since before the creation of the National Assembly for Wales, but also legislation that has been created here in Cardiff. And so the pattern and picture of what education law is is very different, with the effect that legislation such as the Education Act 1996 has definitions such as 'school' and 'pupil', but those terms mean different things for Wales and for England. So, what a 'school' is in Wales means one thing, but, in England, it includes free schools and academies and so on. The concept of who is a pupil in a school includes a different range of ages. And so consolidating legislation in that regard to say, 'Well, in England, 'school' means this, and, in Wales, 'school' means that—. The process of consolidating that in Wales would make the law much clearer for the people who use that particular law. 

14:05

Diolch. Bydd mwy o gwestiynau ar hynny, rwy'n siŵr. 

Thank you. There will be further questions on that, I'm sure. 

I just wanted to follow through on that point. Can I just go through that, because this is an issue that arose during the last session with the Law Commission and is one that I think we need to try and put to bed one way or another? The legislation, as it's drafted, seems to put codification and consolidation within the same camps rather than the very distinct areas there are. Professor Watkin, in your written evidence, probably you're the most forthright in terms of, I suppose, criticism of that approach, if I'm interpreting it right, and the whole process of, as you codify, you also consolidate, but you also, to some extent, reform to modernise. You see that as being something that's quite essential, rather than what might amount to little more than a chronological publishing of the legislation in one place. Is that a fair summary of what you're saying—and I think what you're saying, Catrin, as well—that the legislation needs to be be clearly understood as being the latter rather than the former?

Professor Thomas Glyn Watkin 14:08:52

I wasn't entirely clear, having looked at all the documents, as to what the end point was meant to be. That may be a perfectly good thing at this stage, not to commit oneself to what one particularly wants to see at the end of the process, but to keep options open. 

But, having said that, I was somewhat disappointed by what was presented in the draft taxonomy, because that did seem to be a plan for how you consolidated and what needed to be consolidated under certain topics, and didn't take that further step of how you then rationalise and systematise it into a form that is readily accessible, a form that one assumes would be rolled out then across all of the relevant codes so that there would be a common approach, which would, in itself, lead to greater understanding and accessibility. But it may be that this is an early point, and people don't want to commit too soon to where they want to go.

As I say, I'm 100 per cent behind this as a first step, but I did rather think there could have been a bit more vision as to the direction, if not the end point, that one wanted to reach. 

14:10
Professor Thomas Glyn Watkin 14:10:02

Aspirational.

Aspirational. Is that a fair summary of your views on this?

Yr hyn y byddwn i'n ei holi—a dwi ddim yn cynnig safbwynt o ran ateb, ond yr hyn y byddwn i'n ei holi ydy, er bod Cymru a Lloegr yn wleidyddol ac yn ddeddfwriaethol efo gwahaniaeth, mae'r proffesiwn cyfreithiol o fewn Cymru a Lloegr yn parhau i fod yn broffesiwn lle mae yna lawer iawn o groesi ar draws y ffin. A'r argraff dwi wedi ei chael ar sawl achlysur gan y proffesiwn ydy ofn cyfraith Cymru a rhyw deimlad o, 'Cyfraith Cymru yw hwnna—dwi ddim yn gallu gwneud hynna', er bod y broses o ddarllen a deall y gyfraith yn beth y mae cyfreithwyr yn cael eu hyfforddi i'w wneud. Felly, y cwestiwn sydd gen i ynghylch y broses o godeiddio ydy: a ydy hynny yn creu sefyllfa lle y bydd o'n creu mwy o ofn a mwy o anwybyddu cyfraith Cymru, oherwydd bod edrychiad y gyfraith honno yn wahanol, o godau, yn hytrach na'r hyn sydd yn fwy cyfarwydd? Rŵan, o ran yr ymateb i hynny, wel, fe allai'r ymateb fod yn, 'Wel, dyma beth ydyn ni'n ei wneud; mae Cymru a Lloegr efo deddfwrfeydd sydd yn wahanol, dyma beth mae'r Cynulliad yn ei wneud—deallwch o, deliwch efo fo, dyna ni.' Ynteu ydy o yn fater o fwy o anogaeth, lle mae angen i strwythur y cyfreithiau barhau i fod yn debyg, oherwydd bod Cymru a Lloegr, fel awdurdodaeth, yn parhau i fod yn awdurdodaeth unedig? A dwi ddim yn sicr beth ydy'r safbwynt ar hynny—mae'r ddwy safbwynt â chryfderau a gwendidau, i'm meddwl i.

The question I would ask—and I'm not expressing a view in terms of giving an answer here—is that, although England and Wales are politically and legislatively separate, or have differences, the legal profession within England and Wales continues to be a profession where there is a great deal of crossover across the border. And the impression that I got on a number of occasions, in speaking to the profession, is one of fear, a fear of Welsh law, and a feeling of, 'Well, that's Welsh law—I can't deal with that', although the process of reading and understanding the law is something that lawyers are trained to do, of course. So, the question that I would have about the codification process is whether that is going to create a situation where it will create greater fear and apprehension and even more of a tendency to ignore Welsh law, because the Welsh law looks different, it it codified, rather than being the more familiar form of English law. Now, in response to that, well, the response could be, 'Well, this is what we do; England and Wales have legislatures that differ, this is what the Assembly does—understand it, deal with it, and that's it.' Or is it a matter of giving greater encouragement, where the structure of law needs to remain similar, because Wales and England, as a jurisdiction, continues to be a single jurisdiction? And I'm not entirely sure what the view on that would be—both have strengths and weaknesses, in my thinking.

So, you have a general concern that there may be unintended consequences in the perception of Welsh law that need to be addressed.

Just to finish quickly, then, for both of you actually, do you think it might have been helpful, then, if the Welsh Government had done a sort of draft illustrative code for us to have a quick look at, so it would have clarified the direction that they're going in and perhaps would have helped flush out any of the unintended consequences? Just as a sort of a 'this is what it could look like' sort of approach.

Ie. Ie, byddai hynny yn—. Mae'r syniad o sut y mae cod cyfreithiol yn y cysyniad Cymreig, o'i gymharu â'r syniad Almaenig, er enghraifft, efallai yn rhywbeth i fod yn ymwybodol ohono fo.

Yes. Yes, that would be—. The concept of how a legal code is in the Welsh context, as compared to the German context, for example, is something that one should perhaps be aware of. 

Yes, just on a random code—it didn't matter particularly which one it was. Do you think it might have helped, or—?

Professor Thomas Glyn Watkin 14:13:30

The draft taxonomy is obviously meant to be a step in that direction. I think going further than that—as I said, I would like to see some more information about the direction of travel. I think, beyond that point, it won't be, 'This is what it would look like'—there would be choices about what it would look like. And I think what's been avoided at the present time is making those choices upfront. I think, possibly, that's a sensible choice.

If I can come back to what Catrin just said about the position in England and Wales, it is of course possible that codification of the law in Wales will make it more understandable and more readily accessible to lawyers in England and could well prove a catalyst for things to happen on the other side of the border. And one might hope that that would be the case, that, if the codification proved a success in Wales, then that would open up Welsh law, rather than just make it—

Croeso nôl, Mr Watkin—mae'n bleser eich gweld chi eto yma.

Gaf i ofyn cwestiwn ynglŷn â chymal 8 o'r Bil ei hunan? Rŷch chi wedi dweud, ym mharagraff 22 o'ch tystiolaeth, a 23, fod yna bryder i chi ynglŷn â'r ffordd y bydd hwn yn cael ei weithredu a hefyd ei ddehongli. Roedd yn nodedig iawn eich bod chi wedi ffeindio darlith yn 1966 gan Professor David Daube—roedd hwnna'n siarad am Ladin, byddwn i'n meddwl, a'r problemau o ddehongli Lladin, termau cyfreithiol Lladin, yn Saesneg. Dwi ddim yn mynd i fynd i mewn i unrhyw fath o ddadl gyda chi ynglŷn ag asiant enwau, gweithred enwau. Ond y pwynt yw hwn, ontefe: rŷch chi'n dweud fan hyn yn y paragraff efallai bod dim eisiau cael dehongliad fel rhan o'r Bil ei hunan a bod hwn yn rhywbeth a allai gael ei osgoi. Y cwestiwn fyddai gyda fi felly ydy: beth yw'r ffordd i ddatrys hwn? Os rŷch chi'n teimlo bod hwn yn rhywbeth fyddai'n broblematig iawn yn y pen draw, beth yw'r ffordd i'w ddatrys e nawr, ac mewn ffordd hefyd i ofyn sut maen nhw'n gwneud hwn mewn awdurdodau eraill? Yng Nghanada, er enghraifft, maen nhw'n cyd-ddrafftio deddfwriaeth. Sut mae'r mater hwn o ddehongliad a gwahaniaethau yn cael ei ddatrys yn y gwledydd hynny?

Welcome back, Professor Watkin—it's a pleasure to see you again.

May I ask a question about clause 8 of the Bill itself? You've said, in paragraph 22 of the evidence, and 23, that you have concerns about how this is implemented and interpreted. It was notable that you've found a lecture in 1966 by Professor Daube, which talks about Latin, and problems of interpreting Latin, Latin legal terms, into English. I'm not going to go into a debate with you about names, verbs and so on. But you say here in the paragraph that perhaps there's no need to have interpretation as part of the Bill itself and that this is something that could be avoided. The question I would have therefore is: how can this be solved? If you feel that this is something that would be problematic ultimately, what's the best way to solve it now, and also how do they do this in other authorities? In Canada, for example, they co-draft legislation. How is this issue of interpretation and differences dealt with in those countries?

14:15
Professor Thomas Glyn Watkin 14:15:56

Y broblem rwy'n gweld yna, a'r broblem roedd David Daube yn codi ynglŷn â geiriau yn Saesneg a Lladin, yw'r ffaith bod enwau weithiau yn llawer mwy cyfyng na'r berfau sydd yn mynd gyda nhw. Mae e'n rhoi'r enghraifft o 'bakes' a 'baker' yn Saesneg, ond hefyd gallech chi ddefnyddio, fel enghraifft, 'ymgymryd', ond dyw hynny ddim yn mynd—dyw pawb sy'n ymgymryd ddim yn ymgymerwr. Yn Saesneg, yn glir, os ŷch chi'n deddfu yn erbyn rhywun sydd yn soliciting, dyw hynny ddim yn taro solicitors o gwbl. [Chwerthin.] Gallwch chi—. A dyna'r fath—

I see there the problem that David Daube raised about words in English and Latin—that the nouns are far more restrictive than the verbs that accompany them. He gives the example of 'bakes' and 'baker' in English, but you could also use the term 'ymgymryd', but that doesn't mean that everyone who is undertaking is an undertaker. So, in English, clearly, if you're legislating against someone who is soliciting, that doesn't affect solicitors at all. [Laughter.] You could—. And that's—

Professor Thomas Glyn Watkin 14:16:36

Dyna'r fath o broblem sydd eisiau ei osgoi.

Beth rwy'n credu yw'r broblem yma yw, os ydych chi'n edrych ar gymal 8, mae adran 8 yn dweud lle mae gair yn cael ei ddefnyddio; mae yna eiriau eraill sydd yn 'grammatical forms and modifications', fel mae'n ei ddweud yn y Saesneg, sy'n cael eu dehongli yn unol â'r ystyr yna. Wel, yn wir, beth sydd ei eisiau, wrth gwrs, yw eu bod nhw'n cael eu dehongli yn y modd yna pan fo yna fwriad i'w dehongli nhw yn y ffordd yna. Os ydych chi'n defnyddio enw fel 'baker' neu 'ymgymerwr' neu beth bynnag, dŷch chi ddim yn bwriadu defnyddio fe yn yr un ffordd ag efallai byddech chi'n ddefnyddio’r ferf. Mewn ffordd, mae'r cymal fel y mae yn creu problem, ond bydd y cyd-destun yn datrys y broblem fwy neu lai bob tro. Ond pam creu problem? Oherwydd mae modd ei ddatrys? Ac onid yw'n well osgoi'r broblem yn y lle cyntaf?

Those are the kinds of problems that we need to avoid.

I think the problem here is that if you look at clause 8, section 8 states where a word is used. Then there are other words that are 'grammatical forms and modifications'—that's the terminology used—that are interpreted in accordance with that meaning. What you need, of course, is that they're interpreted in that way when they are intended to be interpreted in that way. If you use a noun such as 'baker' or 'undertaker' then you perhaps wouldn't use it in the same way as you would use the verb. So, the clause as it is creates a problem, but the context would resolve the problem on almost all occasions. But why create that problem in the first place? Because there's a way of solving it? And isn't it better avoided in the first place?

Professor Thomas Glyn Watkin 14:17:42

Wel, os ŷch chi'n edrych ar beth yw bwriad y Ddeddf, rŷch chi'n mynd i weld a yw'n taro ar bawb sy'n 'ymgymryd' neu dim ond yr 'ymgymerwyr', gadewch inni ei ddweud. 

Well, if you look at the intention of the legislation, you will see whether it is affecting everyone who is 'undertaking' or only 'undertakers', shall we say. 

So, felly, gadael y dehongliad i'r llysoedd, fwy neu lai.

So, you leave the interpretation to the courts, more or less. 

Professor Thomas Glyn Watkin 14:17:57

Mwy neu lai, ynte—i'r darllenydd. Rwy'n credu efallai fod y cymal yn mynd yn gam rhy bell wrth siarad am

More or less, yes—to the reader. I think that perhaps the clause goes a step too far in referring to

'grammatical forms and modifications of the word or expression.'

Dwi ddim yn siŵr os yw enw fel 'baker' yn 'grammatical form or modification' o'r ferf neu'n air cwbl wahanol sydd yn gysylltiedig â'r gair arall. Rwy'n credu bod rhywbeth wedi mynd ar goll yn y cymal ac y dylid ailystyried y cymal yna ac efallai ei gyfyngu fe ychydig i'w wneud yn gliriach beth mae'n ei feddwl. Mae'n gweithio'n ffein os rŷch chi'n edrych ar bethau yn Gymraeg fel treiglad meddal neu beth bynnag, ac rwy'n credu efallai dyna'r bwriad sydd tu ôl i'r cymal, ond rwy'n credu ei fod yn mynd gam yn rhy bell, ac nid y cymal yn unig ond y nodiadau esboniadol. Oherwydd, yn y nodiadau esboniadol yn y Saesneg, yr enghraifft sydd yn cael ei roi yw 'walk, walking, walker'—a'r 'walker' wnaeth greu ofn i fi a fy atgoffa i o'r ddarlith David Daube roeddwn i'n ei defnyddio wrth ddysgu cyfraith Rhufain flynyddoedd yn ôl. Dyna pam rwy'n cofio'r erthygl a'r pwynt mae'n ei wneud, oherwydd mae'r pwynt yn bwynt cryf. Rwy'n ofni ei fod yn mynd gam yn rhy bell, felly.

I'm not sure whether a word such as 'baker' is a 'grammatical form or modification' of the verb or an entirely different word that is linked to the other word. I think something has gone amiss here in this clause and we need to restrict that clause slightly to make it clearer. It works fine if you look at things in Welsh such as soft mutations and so on, and I think that's perhaps the intention underpinning this particular clause, but I do think it goes a step too far, and not just that section, but also the explanatory notes. Because in the explanatory notes, in English, the example given is 'walk', 'walking', 'walker'—and it's the 'walker' that caused me some concern and reminded me of the David Daube lecture I was using in teaching Roman law years ago. That's why I remember the article and the point it makes, because it's a strong point. I fear it goes a step too far in that regard.

Yn yr un sefyllfa—wrth gwrs, mae'r gair sy'n cael ei ddefnyddio yn y Saesneg, 'walk', wel, does dim gair am 'walk' yn Gymraeg. Wel, os rŷch chi'n dod o ddyffryn Aman, 'wâc', ond mynd am dro, cerdded—fyddwn i ddim yn 'mynd am gerdd'. So, felly, mae hynny'n broblem. Hefyd, un o'r enghreifftiau—roeddwn i jest yn gwrando yn gynharach ar y dystiolaeth, a'r enghraifft o'r gair 'school'. Wrth gwrs, yng Nghymraeg, 'ysgol' yw 'school' a 'ladder'. Nawr, yn synhwyrol, oes yna eisiau felly cael cymal fel hyn i ddehongli lle mae synnwyr cyffredin yn dangos yn glir beth yn gymwys yw ystyr y gair a'r ffordd y dylai'r gair yna gael ei ddehongli. So, beth rŷch chi'n ei ddweud yw does dim ei eisiau fe—ei fod yn gam yn rhy bell, ie?

In the same situation—of course, the word that's used in English, 'walk', there's no word for 'walk' in Welsh. Well, if you're from the Amman valley, it could be 'wâc', but 'cerdded' is 'to walk'—I wouldn't go for a 'cerdd'. So, that's a problem. Also, one of the things I heard in earlier evidence was the word 'school'. In Welsh, it's 'ysgol', which is both 'school' and 'ladder'. Now, do we need then to have a clause like this for interpretation where common sense would demonstrate clearly what the meaning of the word is and how it should be interpreted. What you're saying is that it's not required—that it's a step too far. Is that the case?

14:20
Professor Thomas Glyn Watkin 14:20:12

Mae'r cymal fel y mae yn mynd yn rhy bell. Os gellir ei gyfyngu i ddweud pethau fel berfau, buasai hynny'n well, yn fy marn i. Yn amlwg, mewn rhai enghreifftiau, buasech yn gweld bod y ddwy iaith yn mynd yn bell i ddatrys y broblem, yntê. Cymerwch air fel 'compose' yn Saesneg. Mae 'composer' yn mynd gyda 'compose' a 'composition' hefyd. Trowch at y Gymraeg: 'cyfansoddi', 'cyfansoddwr', 'cyfansoddiad'—rŷch chi wedi mynd yn awr at 'constitution', yntê, a dim byd i wneud â 'composition'. Ocê, byddai'n glir o'r ddwy fersiwn beth sy'n digwydd, ond dyna'r math o broblem dwi'n gweld y mae'r cymal yn ei chreu fel y mae.

The section as it is goes too far. If you were to limit it to say things such as verbs, then it would be more effective in my view. Clearly, there are certain examples where you would see that the two languages would go a long way in resolving the problem. If you take a word such as 'compose' in English, 'composer' goes with 'compose', as does 'composition'. If you turn to Welsh, cyfansoddi', 'cyfansoddwr', 'cyfansoddiad', you have now gone to 'constitution' and it's no longer anything to do with composition. Yes, it would be clear between the two versions what was going on, but that's the kind of problem that I see this section creating as it's currently worded.

So, your view is, possibly, that clause 8 might be superfluous.

Professor Thomas Glyn Watkin 14:21:17

Too widely drafted.

Do you think that the current rules set out in the Interpretation Act 1978 work perfectly well? Is Part 2 of the Bill necessary? 

Byddwn i'n dweud 'ydy' achos pwrpas y Ddeddf hon ydy agweddau ar ddeddfu sy'n berthnasol i Gymru fel rhywbeth ar wahân i Loegr. Agwedd sydd angen mwy o ystyriaeth arni ydy cymalau megis cymal 12, achos mae cymal 12 yn codi cwestiynau ynghylch pa gyfraith sydd yn berthnasol o ran cyflwyno dogfennau. Ai'r gyfraith berthnasol ydy'r lle lle anfonir y ddogfen ynteu'r lle lle derbynnir y ddogfen? Felly, mae'r cwestiynau yna yn gwestiynau lle mae yna bethau sydd yn berthnasol yn arbennig i system gyfreithiol wedi'i datganoli ac sydd ddim yn berthnasol mewn system sydd heb ei datganoli.

I would say 'yes' because the purpose of this legislation is to consider aspects of legislating that are relevant to Wales as something that is separate to England. The aspect that does need greater consideration is clauses such as clause 12, because clause 12 does raise questions about what law is relevant in terms of submitting documents. Is the relevant law the place where the document is sent from or where it's received? So, those questions are ones where there are relevant issues, particularly to a legal system that has been devolved and which aren't relevant in a non-devolved context.  

I don't understand this. Why can't all the law throughout the UK be exactly the same, which is like it should be? And then, if there are any words that are any different, why can't they just be put down in a small briefing at the end of a paper or something, so that the law is exactly the same throughout the whole of the UK?

Professor Thomas Glyn Watkin 14:23:30

You've got a problem there insofar as there are three distinct legal systems within the United Kingdom, of which England and Wales is one. There would be considerable differences in the meaning of terms between Scots law, which is a civilian system in part, and the law of England and Wales, and Northern Ireland, which are common law systems. And, of course, there are increasing divergences between the law in England and the law in Wales, as Dr Huws has already described. In addition to that, you have the fact that, in Wales, law is made bilingually. That has, as the Law Commission has recognised, consequences for the manner in which it will be interpreted. Given that it has consequences for the manner in which it will be interpreted, a separate interpretation Act would appear to be something that is both considerable and proper.

Right. Do you think that using 1 January 2020 as the start date for applying the rules set out in Part 2 is a good approach?

Professor Thomas Glyn Watkin 14:24:40

Well, given that there are going to be statutes that will continue to be governed by the Interpretation Act 1978 and the new Welsh interpretation rules, a line has to be drawn somewhere. I think the reason for drawing it at the start of a year is a good one, insofar as you've only got to look at the date in order to know which interpretation Act will apply. It may well be that there will be other changes in the offing at that time, for example, a change of the title of this institution, which would also be helpful. 

14:25

So, in that case, will it create added confusion if there are two sets of interpretation rules applying to legislation made in Wales? The 1978 rules apply to legislation passed before 1 January and the Bill rules apply to the legislation passed after 1 January 2020. 

Professor Thomas Glyn Watkin 14:25:42

It adds an element to the difficulty of interpreting legislation. It's a necessary step, I think. As time goes by, the balance between what is governed by the 1978 rules and what is governed by the Welsh rules will change, and there may well come a time when you can totally abandon one, and consolidation and codification will obviously advance that cause further. But I think, insofar as there has to be a dividing line, the start of a year is a better one than, let's say, the end of March. 

Ie, diolch yn fawr, Gadeirydd. I'r rheini sydd yn y lleiafrif ar y pwyllgor yma sydd ddim wedi astudio'r gyfraith mewn unrhyw fanylder o gwbl, mae hyn, mae'n rhaid i mi ddweud, yn ddiddorol iawn.

Yn nhermau Rhan 2 o hyn, ynglŷn â dehongli, ac, fel dŷch chi wedi dweud eisoes, mae pethau yn mynd yn wahanol yma yng Nghymru—. Yn nhermau dehongli a diffiniadau yn benodol felly—dwi yn Rhan 2 o'r ddeddfwriaeth ac yn adran 5 o dan 'Diffiniadau o eiriau ac ymadroddion'—beth sydd gyda ni, wrth gwrs, yn Atodlen 1 ydy sawl tudalen, mae'n rhaid i mi ddweud, o ddifiniadau. Chwe thudalen, dwi'n credu, o wahanol ddiffiniadau, pethau perthnasol. Mae'r rhestr yma i'w gweld yn hir ac yn astrus efallai. Fyddech chi ddim yn meddwl y buasai'n fwy tryloyw efallai pe bai pob diffiniad felly yn cael ei gynnwys ar wyneb pob Deddf y Cynulliad, yn lle bod mewn un lle yn fan hyn? Efallai buasai pobl yn eiffeindio hi'n anodd i'w ffeindio nhw yn fan hyn. Dŷn ni'n sôn am hygyrchedd. Rwy'n gwybod bod rhai o'r diffiniadau yma yn weddol amlwg, fel 'Banc Lloegr' ac ati, a 'blwyddyn ariannol' a phethau, ond y ffaith ydy eu bod nhw yn fan hyn a dŷn nhw ddim ar wyneb Deddfau eraill. Beth dŷch chi'n meddwl am y cysyniad yna, sef efallai ei bod yn anodd i bobl eu ffeindio nhw os dŷn ni'n disgwyl iddyn nhw ffeindio nhw yn nghefn un ddeddfwriaeth newydd fel hyn? 

Yes, thank you very much, Chair. For those of us who are in the minority on the committee, who haven't studied law in any detail at all, this is, I have to say, very interesting.

In terms of Part 2 with regard to interpretations, and, as you've already said, things are diverging here in Wales—. With regard to interpretation and definitions in particular—I'm in Part 2 of the legislation and in section 5 under 'Definitions of words and expressions'—what we have in Schedule 1 is several pages of defined terms, I have to say. Six pages I think of relevant definitions. There is a list, which appears to be an exhaustive one. Would it not be more transparent perhaps if each definition was included on the face of each Assembly Act, rather than being in one place here? Perhaps people would find it difficult to find them here. We're talking about accessibility. I know that some of these definitions are clear, such as the 'Bank of England' and so on and 'financial year', but the fact is that they are listed here and they're not on the face of other Acts. What do you think of that concept, that it might perhaps be difficult for people to find these definitions if they're expected to find them in the back of one new Bill like this? 

Wel, amcan deddfwriaeth fel hon ydy diffinio termau sydd mewn sawl achlysur yn gyson ar draws sawl Deddf. Mae yna enghreifftiau lle y gall Deddf roi diffiniad gwahanol i'r Ddeddf ddehongli a dweud, 'Wel, yn y cyd-destun yma, mae'r term yma hefyd yn cynnwys y cysyniad yma.' Felly, i fynd yn ôl i'r enghraifft yn gynharach, gallwch chi ddiffinio term fel 'school'—'ysgol'—a dweud 'Wel, dyna ydy'r diffiniad, ond mewn Deddf benodol fe all 'ysgol' gynnwys, er enghraifft, coleg addysg bellach neu ysgol feithrin', a bod y diffiniad wedi'i deilwra ar gyfer un Ddeddf. Ond mae termau fel 'diwrnod gwaith' yn mynd i fod yn gyson ar draws gwahanol ddeddfwriaeth ac mae angen yr eglurder yna fel bod pawb yn deall yr un cysyniad o beth yw 'diwrnod gwaith.' 

Well, the objective of legislation such as this is to define terms that appear a number of times consistently across a number of different pieces of legislation. There are examples where an Act can provide a different definition to the interpretation Act, and say, 'Well, in this context, this terms also includes the given concept'. So, to return to the example mentioned earlier, you can define a term such as 'school'— ysgol—and say, 'Well, yes, that is the definition, but in a particular piece of legislation 'ysgol' could include, for example, a further education college or a nursery school', and that the definition has been tailored to a particular piece of legislation. But terminology such as 'working day' will be consistent across several pieces of legislation and you do need that clarity so that everyone understands the concept of a 'working day'. 

Felly, y rhestr yma sy'n gosod y safon aur am bob diffiniad, ie, buaswn i'n cymryd o'r ateb yna? Oes yna unrhyw un o'r diffiniadau yma sy'n peri gofid i chi, felly? Ydych chi'n berffaith hapus efo pob diffiniad yn fan hyn, gan mai rhain sy'n mynd i sefydlu'r safon felly o ddiffiniad am ba bynnag derm yw e? 

So, I take it from that response that it's this list that sets the gold standard for every definition? Are there any of these definitions that cause any concern to you? Are you perfectly content with every definition here, as these are the ones that have established the standard for definition? 

Mae o yn gyson fel term canolig, ond fe all termau fod yn wahanol mewn rhai cyd-destunau. Dwi'n edrych, er enghraifft, ar 'mis' yn fan hyn. Ie, mae mis calendr yn gwneud synnwyr ar gyfer y rhan fwyaf o gyd-destunau y gall rhywun ddychmygu. Ond fe allwch chi ddychmygu sefyllfa lle mae rhywun angen diffinio mis fel mis lleuad, ac os oeddech chi'n deddfu ar agwedd o hynny mewn rhyw fodd, byddech chi angen diffiniad—'Wel, nid y diffiniad arferol o fis ydyn ni'n golygu yn fan hyn; dŷn ni'n defnyddio diffiniad gwahanol'. Fe allech chi ddweud, 'Wel, mae'r ddeddf honno'n goresgyn y Bil deddfwriaeth, fel sydd yn digwydd efo'r Interpretation Act 1978 ar hyn o bryd. 

It is consistent as a median term, but terms can differ in certain contexts. I'm looking at the word 'mis' or 'month' here. Yes, a calendar month makes sense for most contexts that one could imagine. But you could imagine a situation where one needs to define the word 'month' as a lunar month, for example. If you were legislating on anything that was related to that, you would need that different definition, therefore you wouldn't be looking at the usual definition of 'month', you'd be using a different definition. You could say that that piece of legislation would supercede this Bill, as happens with the Interpretation Act 1978 at the moment. 

14:30
Professor Thomas Glyn Watkin 14:30:38

Os caf fi jest ychwanegu rhywbeth at hynny, i ddweud, wrth gwrs, mae'r Atodlen yn rhan o'r Bil, felly mae'n agored i'r Cynulliad, y ddeddfwrfa, i newid diffiniadau. Wrth gael y diffiniadau mewn deddf o'r fath yma ac nid eu rhestru nhw bob tro, rŷch chi'n cau lawr y posibilrwydd o bobl yn newid y diffiniad yn un man a ddim yn ei newid e mewn lle arall. Felly, mae yna fantais, rwy'n credu, wrth eu cael nhw mewn un lle yn y modd yma. Y peth arall yw, wrth gwrs, gyda thechnoleg fodern, fe ddylai fod yn bosib, pan fyddwch chi'n troi at ddeddf ar-lein, i gael hyperlink sydd yn mynd â chi at y diffiniad yn syth. Dyna'r fath beth y dylem ni fod yn ei weld ar gyfer hygyrchedd, rwy'n credu, yn y dyfodol—sicrhau bod gan bob deddf y math yna o linc at y diffiniad sydd wedi cael ei benderfynu.  

If I could just add something to that, which is to say that the Schedule is part of the Bill, so it's open to the Assembly, the legislature, to amend the definitions. In having the definitions in legislation of this kind and not listing them every time, we close down the possibility of people changing the definition in one place and not in another. So, there is an advantage in having them in one place. The other thing as well, with modern technology, is that it should be possible, when you turn to legislation online, to have a hyperlink that takes you to the definition immediately. That's the kind of thing that one should see for accessibility in future—ensuring that all legislation has that kind of link to the definition that has been decided upon. 

Okay. We've asked about—to move on—. Can I just check, we are slightly over time, so are you okay for time? 

I have to catch a train at 15:21. 

At 15:21.

Okay. We'll move on very quickly now then. We've dealt with clause 8. Suzy Davies. 

Perhaps we can have fairly swift answers to this one, then. Is now the right time to bring this Bill in? The Assembly's already overloaded with Brexit stuff. What do you think? 

Professor Thomas Glyn Watkin 14:32:15

I think it's something that needs to be done. 

Well, other things, then—let's put it that way. [Laughter.]

Professor Thomas Glyn Watkin 14:32:20

It's something that needs to be done. There probably would never be a good time to do it, so it's best to get on and do it. I noticed in the explanatory memorandum that reference was made to Lord Scarman's disappointment that the Law Commission had not been able to undertake the sort of codifying exercise that it had wished in the 1960s. I think the Law Commission recognises that here in Wales we have possibly a golden opportunity, given the size of our statute book, to undertake this work. Quite frankly, I think now is the best time; tomorrow is not a good time.

In which case, perhaps I can ask you this, then: what will success look like and who should be responsible for designing the evaluation for what 'good' looks like? Should we need a review rather than a reporting clause, for example? Should it be the Assembly that decides on what terms we evaluate the success of this, rather than Government, for example? 

Ie. Dwi'n meddwl bod y ffaith bod dyletswydd gan y Cwnsler Cyffredinol i adrodd ar hyn yn creu ansicrwydd ynghylch beth ydy mesur llwyddiant. Mae yna ddyletswydd i gadw'r gyfraith dan adolygiad, ond dyw'r ddeddf ddim yn manylu ar beth sydd yn cael ei gadw dan adolygiad, sut mae llwyddiant yn cael ei fesur a beth yw hygyrchedd, fel soniais i yn gynharach. O ran beth yw mesur llwyddiant, mae o'n dibynnu pwy ydych chi'n holi, yn y ffaith bod mesur o lwyddiant yn gallu golygu gwahanol bethau i wahanol bobl, ac felly un o'r pethau rwy'n meddwl sydd angen ei ystyried yn y ddeddf yma ydy ar gyfer pwy mae'r ddeddfwriaeth—ar gyfer y Cynulliad, ar gyfer y cyhoedd, ar gyfer ymarferwyr y gyfraith. Ar gyfer pwy? O hynny, bydd hi'n haws canfod beth ydy mesur llwyddiant y Bil a sut i ganfod a ydy'r llwyddiant yna wedi cael ei gyrraedd. 

Yes. I think the fact that the Counsel General has a duty to report on this does create some uncertainty as to what the measure of success would look like. There is a duty to keep the law under review, but the legislation doesn't provide details as to what is kept under review, what success would look like, how that success would be measured and what accessibility means, as I mentioned earlier. In terms of measuring success, it does depend who you ask, in the sense that the measure of success can mean different things to different people. So, one of the things that I think needs to be given consideration to in this legislation is who this legislation is for. Is it for the Assembly, the public, law practitioners? Who is this legislation for? In doing that, it'll be easier to decide what success will look like in the context of this Bill and how we can find whether the Bill has been successful. 

A'r Llywodraeth neu'r Cynulliad—pwy ddylai fod yn gyfrifol am gynllunio pa fath o gwestiynau y mae'n rhaid i ni eu gofyn i fod yn siŵr bod gan bobl Cymru fwy o hygyrchedd, er enghraifft? 

And the Government or the Assembly—who should be responsible for planning what kind of questions we need to ask to ensure that the people of Wales have greater access, for example?

14:35

Byddwn i'n tybio mai rôl y Cynlluniad fyddai o.

I would assume that it would be a role for the Assembly.

Grêt, diolch. Proffesor Watkin.

Great, thank you. Professor Watkin.

Professor Thomas Glyn Watkin 14:35:19

Dwi'n cytuno, fwy neu lai, â beth mae Catrin wedi'i ddweud.

I agree, more or less, with Catrin's comments.

Ocê, diolch yn fawr. Diolch, Cadeirydd.

Okay, thank you. Thanks, Chair.

If I could just come in there very quickly, because time is expiring, so just one final question. We may need to write to you with one or two others. We're very, very aware of the fact that we are slightly over time. In terms of the implications of this legislation for the growth in the use of the Welsh language, not just within the legal framework, but also within the courts and in terms of the general usage of the Welsh language, do you see this legislation making a contribution towards that particular objective?

Dwi'n ffeindio bod o braidd yn od nad yw'r Ddeddf yn trafod mwy am y sefyllfa lle mae yna anghysonder rhwng fersiynau Cymraeg a Saesneg o ddeddfwriaeth. Nid o ran pa un sydd drechaf neu pa un sydd yn cymryd blaenoriaeth, ond yn hytrach o safbwynt yr egwyddorion sydd i'w cymryd lle mae yna anghysonder. Felly, rhai o'r mecanweithiau yng Nghanada, er enghraifft, ydy i ystyried mai'r dehongliad sydd yn ffafrio'r defnyddiwr unigol yn hytrach na'r wladwriaeth sydd yn cymryd blaenoriaeth. Yng Nghanada, mae'r sefyllfa, o fewn y cyd-destun troseddol, yn ffafrio'r diffynnydd yn hytrach na'r wladwriaeth, ond hefyd maen nhw'n ystyried oes yna ffordd o unioni'r ddwy fersiwn fel bod y ddwy fersiwn yn gywir. A dyna ydy'r dyhead, wrth gwrs—bod modd edrych ar y ddwy fersiwn a dweud, 'Wel, mae yna ddehongliad sydd yn cwmpasu'r ddwy fersiwn.' Mae yna achosion yng Nghanada—. Achos Daoust, dwi'n meddwl, sy'n cyfeirio at y sefyllfa lle'r oedd y fersiwn Ffrangeg yn gulach na'r fersiwn Saesneg. Y fersiwn Saesneg oedd y fersiwn a fwriedid gan y Senedd, ond roedd y diffiniad yn y fersiwn Ffrangeg yn gulach a, gan hynny, nid oedd y diffynnydd yn gyfrifol, ac felly roedd y llys yn cymryd y safbwynt, 'Wel, y dehongliad yna ddylai fod yn gywir yn y cyd-destun yma', ac os oes angen cywiro'r Ddeddf, yna mater i'r Senedd wneud hynny ydy hynny, fel bod y fersiwn Ffrangeg yn cyd-fynd â'r fersiwn Saesneg a fwriadwyd.

Ac mi fyddai hynny yn rhywbeth sydd yn od—bod o ddim yn cael ei gynnwys yn y Ddeddf yma o ran beth ydy'r ffordd o ddehongli a beth ydy'r agweddau dehongli pan mae yna anghysonder rhwng dwy fersiwn y Ddeddf.

I find that it's slightly odd that the legislation doesn't make greater mention of situations where there is inconsistency between English and Welsh versions of legislation. Not in terms of which version should take priority, but in terms of the principles that are to be taken into account where there is inconsistency. So, some of the mechanisms in Canada, for example, are to consider that it's the definition that favours the individual user rather than the state that should take priority. In Canada, in terms of the criminal context, it favours the defendant rather than the state, but also they consider whether there's a way of reconciling the two versions so that both versions are correct. And that's the ambition, of course—that both versions could be looked at and one could say, 'Well, there in an interpretation that encompasses both versions.' There are cases in Canada—. I think it's the Daoust case that refers to a situation where the French version was narrower in scope than the English language version. The English language version was the one intended by the Parliament, but the definition in the French version was narrower and, as a result, the defendant was not responsible and so the court took the stance, 'Well, it's that interpretation that should apply in this particular context', and if the law needs to be amended or corrected, then it's a matter for the Parliament to do that, so that the French version corresponds to the English version as intended.

It's strange that it's not included in this particular legislation in terms of the way of interpreting and what the attitudes towards interpretation are when there are inconsistencies between the two versions of the legislation.

Professor Thomas Glyn Watkin 14:38:32

I'm not sure that I entirely agree with Catrin on that. I feel quite strongly that the right bodies to determine how to interpret bilingual legislation are the bodies that interpret it, and that it should be left to the courts to work put how they will respond to those challenges as they will be doing the work, as it were, at the coalface.

There is one issue on which I am concerned, and that is the effect of consolidation upon the statutory rule that the two versions are to be treated as of equal standing where they are made or enacted at the same time. And it's not clear, I think, from the rule in the Government of Wales Act what exactly that would mean in terms of consolidated legislation, because insofar as you're saying you're not changing the meaning by consolidating, does that mean that it's the meaning of the English original that must prevail? That, of course, would be a disservice to those who use the Welsh version. And I think that's possibly a question that needs to be looked at, and it's not, clearly, within the competence the Assembly to resolve it. 

That's certainly a matter to be looked at in any consolidation legislation as it approaches.

Can I thank you for your evidence? I think time has beaten us. It's been extremely helpful. There will be a transcript of the evidence coming through to you. If there are any items that we've not covered that you'd like to add to, then please do make that contribution. And if there are any other items that we've not considered, we will, obviously, put those to you. Thank you very much for attending.

We'll take just a five-minute break now.

14:40

Gohiriwyd y cyfarfod rhwng 14:40 ac 14:46.

The meeting adjourned between 14:40 and 14:46.

14:45
4. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3
4. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

We move back into open session. We are on item 4: instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We have the Fostering Panels (Establishment and Functions) (Wales) Regulations 2018. The purpose of these regulations is to impose requirements on fostering service providers, both local authorities and independent providers, in relation to the establishment and functions of fostering panels. Are there any comments or observations? Okay. So, we note that. 

Moving on to affirmative resolution instruments, item 4.2: the Adult Placement Services (Service Providers and Responsible Individuals) (Wales) Regulations 2019. Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 introduces a new system of regulation of care and support services in Wales, replacing that established under the Care Standards Act of 2000. The Act introduces a new concept of regulated services, and section 2 of the Act defines regulated services. Are there any comments to report on that? So, that's noted.

5. Offerynnau sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.2 neu 21.3
5. Instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3

On to item 5, then: instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3. Negative resolution instruments: the Local Authority Fostering Services (Wales) Regulations 2018. Section 94A of the Social Services and Well-being (Wales) Act 2014 provides that regulations may make provision about the exercise by local authorities of functions conferred on them by regulations made under section 87 of that Act. Regulations made under section 87 of the 2014 Act may make further provision about children looked after by local authorities, including regulations about the placing of children with local authority foster parents. Are there any comments?

Yes. There are two inconsistencies between the English and the Welsh texts, both of which have been accepted by the Welsh Government. The Welsh Government says it will make the necessary amendments at the next available opportunity, but there's no commitment to do that before 29 April, which is the date these regulations come into force, and there's no explanation as to whether it's the English text that's correct or the Welsh text that is correct.

Okay. In terms of handling that, we've drawn it to the attention of Government, Government have accepted it, and they've agreed to make changes. In terms of the technical nature of those irregularities, are there any issues?

No. Okay. Noted.

Okay, we now move on to 5.2: the Regulated Advocacy Services (Service Providers and Responsible Individuals) (Wales) Regulations 2019. You have before you the report, the regulations, and the explanatory memorandum. These regulations are made under the Regulation and Inspection of Social Care (Wales) Act 2016, and set out the regulatory requirements and related provision for providers of regulated advocacy services and for those persons who are designated as responsible individuals for such services. The regulations impose requirements on service providers and responsible individuals in respect of advocacy services. Any comments?

There are three reporting points in the draft report: (1) service providers are required to appoint responsible individuals—that is, individuals who ensure the regulated services, in this case advocacy services, are managed effectively—and, where a responsible individual is unable to fulfil the duties, the service providers must ensure that the regulations are still being complied with. The requirement in this case is to comply with parts 3-15 of the regulations but there are some really important duties and requirements in part 2 of the regulations. The draft report asks why is there a requirement to comply with parts 3-15 and not parts 2-15. And the Welsh Government acknowledges there's an error, and an amendment will be made at the next available opportunity, but, again, no commitment to do so before these regulations come into force. 

14:50

And there's a second point, which relates to regulation 10 and the duty of candour. Service providers are required to act in an open and transparent way with people who receive advocacy services and their representatives, but there's no duty to act in an open and transparent way with the commissioning local authority. The draft report asks why there is no such duty, and the Welsh Government response explains that specific consideration was given to these points and provides an useful explanation of how, in the context of advocacy services, the inclusion of such a duty might create a conflict with a service provider's prime function of representing and advocating the views of individuals. 

And there's a third point—the final point—which relates to the use of the term 'commissioning authority', which is not defined in the regulations. While this would usually be a very minor issue, because it's not difficult to work out what is meant by 'commissioning authority', in this case, the words apply in the context of a criminal offence and that's why the draft report seeks clarity. The Welsh Government response confirms that 'commissioning authority' should read 'service commissioner', which is defined. And, again, they've said they will make an amendment at the next available opportunity, but, again, no commitment to do that before these regulations come into force. 

We hear relatively frequently, when primary legislation is being introduced, that a Government wants to retain flexibility and introduce clarity through secondary legislation. It's one of the main reasons we hear for not having particular definitions on the face of Bills, for example. Here, we've got an example of where we have secondary legislation and there's still a lack of clarity over what a particular term means, and while I read what the Government says, and it may actually solve the problem in this case, I do think we should remain alert to it, particularly as, in their response, they say that the current term will be understood in the overwhelming majority of cases. That is not the same as all cases, and so there's obviously a small minority where local authorities aren't the commissioning services under this particular piece of legislation. So, I just want to put it on the record that this is exactly the type of thing we need to keep an eye on, because if anything, law should be clear. Thank you. 

That is a very valid point and, of course, these are items that, hopefully, are going to accumulate in terms of the broader report in terms of some of the issues that are actually arising. We didn't feel there was time to bring that preliminary report today, but probably we'll be considering it, hopefully, next week, subject to the scale of the agenda. Any other comments, observations?

In which case, we are now on—it's item 5.3, isn't it? The Regulated Fostering Services (Service Providers and Responsible Individuals) (Wales) Regulations 2019. The Regulation and Inspection of Social Care (Wales) Act 2016 introduced a new concept of a regulated service. A 'fostering service' is a regulated service defined in the 2016 Act as meaning any service provided in Wales by a person other than a local authority, which consists of and includes the placement of children with foster parents or exercising functions in connection with such a placement. And what these regulations do is to impose a requirement on service providers and responsible individuals in respect of fostering services. Any comments? 

Yes, there are three reporting points here again. The first relates to the words 'prospective foster parent' used in the regulations. The draft report seeks clarification as to what is meant by 'a prospective foster parent', not least because one criminal offence depends on the wording. It's a criminal offence if a service provider fails to give a guide about the service to any prospective foster parent. The Welsh Government response says the term has been used in legislation since 2003, and has not caused any difficulties, and no-one has queried the use of the words. The Welsh Government also says that the words have the plain English meaning of

'a person who proposes to become a foster parent in the future, but who has not yet been approved as such.'

I'm not sure how much that explanation adds to the original wording around prospective foster parents.

And in the second point, again, a similar question arises, seeking clarification around the meaning of the words 'allegation' and 'serious criminal offence'. Again, clarification is sought because this relates to a criminal offence, and, in this case, it's a criminal offence if a service provider does not notify the police of any

'allegation that a child placed with foster parents has committed a serious offence'.

Again, the Welsh Government says the words have been used since 2003 and no concerns have been raised, and, again, the Welsh Government says the words of the plain English meaning were a 'serious offence' is an

'offence which is important and deserving of attention',

which, I'm not sure, again, adds anything, really, to the definition. And it isn't quite clear—it doesn't explain what kind of offence that a child could commit that is not important and is not worthy of attention.

And there is no explanation as to what 'allegation' means. Does it include an allegation made in a school playground by a schoolteacher, on social media, et cetera? Given that both of these two reporting points relate to the clarity of criminal offences, Members may wish to accept the point has been made and Assembly legal services can dig around a bit more into criminal law and report back to the committee if there are any concerns.

14:55

Well, just to reinforce what I said before, particularly as these relate to criminal offences, using a plain meaning, any one of us is a prospective foster parent. So, I don't accept what the Welsh Government says about that in way of response.

Two points from me: one is, I think it's perfectly in order to say that the meaning is contained in a different piece of legislation, in which case, just refer to it in this legislation, that bit's okay, and the second point about whether it's not caused any problems in the past, have we had any explanation about whether it's actually been tested by the courts at any point?

I'm not aware if it's been tested, but, again, it's something we can look into.

It also is an unacceptable answer, the fact that it hasn't caused a problem so far. We're talking about more focus on this type of legislation. So, we note that, and draw attention to Government in respect of that and, again, our comments in terms of not being happy, really, with the response that we've had on that.

And there's one final, third point, about it. Again, another inconsistency between the English language and the Welsh language. The draft report accepts that this should not cause any confusion in practice, but, nevertheless, it is an error, and the Welsh Government has acknowledged this and committed to correcting the error, again, at the next available opportunity.

Okay. So, we've got quite a growing number of items where the 'next available opportunity', obviously, begins becoming increasingly important. 

6. Offerynnau negyddol arfaethedig nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B
6. Proposed negative instruments that raise no reporting issues under standing order 21.3B

We'll move on, then, to item 6: proposed negative instruments raising no reporting issues under Standing Order 21.3B. We have the Equality Act 2010 (Statutory Duties) (Wales) (Amendment) (EU Exit) Regulations 2019. These regulations amend regulation 18 of the Equality Act 2010 by removing a reference to the public sector directives. So, a technical amendment. Noted? Are there any comments?

In which case, 6.2, the Livestock (Records, Identification and Movement) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These make amendments to subordinate legislation that applies in relation to Wales in the fields of the recording, identification and movement of livestock. Noted? Okay, we note that.

Item 6.3: the Radioactive Contaminated Land (Modification of Enactments) (Wales) (Amendment) (EU Exit) Regulations 2019. These are regulations that correct minor technical deficiency. Any comments? Noted.

Item 6.4: the Animal By-Products and Transmissible Spongiform Encephalopathies (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. Again, addressing deficiencies in domestic legislation arising from the withdrawal of the UK from the EU. Noted? Any comments, observations? 

Okay, we note that.

Item 6.3: the Radioactive Contaminated Land (Modification of Enactments) (Wales) (Amendment) (EU Exit) Regulations 2019. These are regulations that correct minor technical deficiency. Any comments? Noted.

Item 6.4: the Animal By-Products and Transmissible Spongiform Encephalopathies (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. Again, addressing deficiencies in domestic legislation arising from the withdrawal of the UK from the EU. Noted? Any comments, observations? 

7. Offerynnau Statudol y mae arnynt angen cydsyniad: Brexit
7. Statutory Instruments requiring consent: Brexit

On to item 7, then, statutory instruments requiring consent: the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2018. You'll see there's a letter from the Minister for the environment there, a written statement and statutory instrument consent memorandum. The objective of these regulations is to make minor and technical changes to the Conservation of Habitats and Species Regulations 2017, the Conservation of Offshore Marine Habitats and Species 2017, the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 and the Wildlife and Countryside Act 1981. These changes are necessary to ensure that conservation of habitats and species legislation will continue to be operable in the United Kingdom after the UK leaves the EU, and they address deficiencies in retained law. Any comments?

15:00

Just to say a general point for all of these regulations under agenda item No. 7: these are regulations made by the UK Government that amend primary legislation within the legislative competence of the Assembly, which is why the consent process applies.

Just one observation from me again: the sentence in the covering letter from the Minister that the Government doesn't believe that this is a productive use of Assembly time, when obviously it's up to the Assembly to decide what it's—

And that's an oft-repeated paragraph—it's always there.

Yes, yes, and I think our response to that is again a repeated one as well, as are, again, the constant replies to all these items under 7.2, which I'll now take us through, namely the Public Procurement (Amendment) (EU Exit) Regulations 2019, which make amendments to a suite of procurement-related legislation, but amendments to which this statutory instrument consent memorandum relate are technical amendments to section 155(2) and (3) of the Equality Act 2010, and they're required to ensure that the provision of the Equality Act 2010 can continue to operate effectively post EU exit. Any comments, observations?

We then move on to the Farriers (Registration) and Animal Health (Amendment) (EU Exit) Regulations 2019. The regulations make amendments to the Farriers (Registration) Act 1975 and the Animal Health Act 1981, again addressing failures of retained EU law to ensure effective operation post Brexit. Noted? Okay.

We then move on to the Veterinary Surgeons and Animal Welfare (Amendment) (EU Exit) Regulations 2019. These regulations make amendments to the Animal Welfare Act 2006. Section 29 of the Animal Welfare Act 2006 makes provision for an inspector to carry out an inspection in order to check compliance with regulations under section 12 of the Act with regard to the promotion of welfare, implementing thereby any EU obligations. Any comments or observations?

We move on then to item 7.5, the Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019. The objective of these regulations is to address again failures of retained EU law to operate effectively. Any comments, observations?

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

In which case, we move on to item 8, written statements under Standing Order 30C. The Greenhouse Gas Emissions Trading Scheme (Amendment) (EU Exit) Regulations 2018. This is a written statement relating to the Greenhouse Gas Emissions Trading Scheme (Amendment) (EU Exit) Regulations 2018. I think there are some comments on this and on item 8.9 as well.

It's the next one.

Is it the next one? Okay. Any comments, observations on that?

In which case, we move on to the Pesticides (Maximum Residue Levels) (Amendment etc.) (EU Exit) Regulations. Again, this is a written statement relating to the Pesticides (Maximum Residue Levels) (Amendment etc.) (EU Exit) Regulations 2019. Now, there are some comments on this.

Yes. It's worth noting that these regulations raise an issue that was also raised in the committee last week, which is that functions transferred to a public authority that is not a devolved Welsh authority—in this case, the Secretary of State—cannot in future be amended by the Assembly, even if it is in a devolved area, without the consent of the UK Government.

It's noted again.

Item 8.3: the Pesticides and Fertilisers (Miscellaneous Amendments) (EU Exit) Regulations 2019. Again, there's a written statement relating to the Pesticides and Fertilisers (Miscellaneous Amendments) (EU Exit) Regulations 2019. No comments, observations? Noted.

We move on to item 8.4: the Common Agricultural Policy (Rules for Direct Payments) (Amendment) (EU Exit) Regulations 2018. Again, another written statement. Any comments or observations? No.

In which case, I go on to item 8.5: the Waste (Miscellaneous Amendments) (EU Exit) (No. 2) Regulations 2019. Any comments or observations? No.

The Marketing of Seeds and Plant Propagating Material (Amendment etc.) (EU Exit) Regulations 2018: a written statement relating to the marketing of seeds and plant propagating material. Noted? Yes.

Item 8.7: the Plant Health (EU Exit) Regulations 2019. Again, a written statement relating to the Plant Health (EU Exit) Regulations of 2019. Noted.

Item 8.8: the Recognition of Professional Qualifications (Amendment etc.) (EU Exit) Regulations 2018. Noted.

The Ozone-Depleting Substances and Fluorinated Greenhouse Gases (Amendments etc) (EU Exit) Regulations 2018. Noted?

15:05

Yes. This is, again, another example where the Welsh Government has consented to UK Government making regulations that could impact on the Assembly's legislative competence in future. By allowing the Secretary of State to exercise certain functions in devolved areas, the Assembly will need the UK Government's consent to change those functions in future.

9. Datganiadau ysgrifenedig diwygiedig o dan Reol Sefydlog 30C
9. Revised written statements under Standing Order 30C

That takes us on to item 9: revised Written statements under Standing Order 30C. The Air Quality (Amendment of Domestic Regulations) (EU Exit) Regulations 2018. You'll see a letter from the First Minister of 3 January, a letter to the First Minister on 11 December, and a revised statement and commentary. Now, there are some issues identified there. No? Okay.

On to item 9.2, then: the Air Quality (Miscellaneous Amendment and Revocation of Retained Direct EU Legislation) (EU Exit) Regulations 2018. This is a revised written statement relating to the Air Quality (Miscellaneous Amendment and Revocation of Retained Direct EU Legislation) (EU Exit) Regulations 2018. Noted?

It's one identifying a number of areas, there, that—

Well, how they've changed their systems and how they double-check stuff before it gets—

Absolutely. I think attention has been paid, obviously, to the representations that have been made to this committee, and obviously that's important to note.

10. Papurau i’w nodi
10. Papers to note

Item 10: papers to note. Item 10.1: a letter from Jane Hutt, Assembly Member for the Vale of Glamorgan, relating to—I think it's the valuation tribunal panel. Is that right? I think that's just a letter to be noted.

Well, who is going to be doing anything about it, though?

Good question. Do we have any more information on it? Sorry—Gareth.

I think this is a matter more for the Welsh Government rather than the committee. The committee did consider the Valuation Tribunal for Wales (Amendment) Regulations 2017 back in October 2017. Those regulations amended the 2010 regulations and also the Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005, and the committee considered them with a clear report. But I think the issues raised in that correspondence are probably more a matter for the Welsh Government. And if Members are content, we'll write back on that basis.

On to item 10.2: a letter from the Minister for Environment, Energy and Rural Affairs—the Carcase Classification and Price Reporting (Wales) Regulations 2018. A letter from the Minister to be noted. Any comments? No.

Item 10.3: legislative consent memorandum on the Healthcare (International Arrangements) Bill. A letter from the Minister for Health and Social Care and a legislative consent memorandum. To note, a letter from the Minister. Perhaps we can raise any issues on this in private session if there's anything on it.

Thank you.

Item 10.4: Legislation (Wales) Bill—a letter from the Counsel General. Again, I think that's one to be noted and raise comments there following—

Item 10.5: Autism (Wales) Bill—a letter from Paul Davies dealing with a number of issues that we raised within our consideration of the Bill. Noted?

11. Offerynnau Statudol y mae arnynt angen cydsyniad: Brexit: Trafodwyd yn flaenorol
11. Statutory Instruments requiring consent: Brexit: Previously considered

Item 11: statutory instruments requiring consent. Brexit: previously considered. The Marine Environment (Amendment) (EU Exit) Regulations 2018—a letter from the Cabinet Secretary. The committee considered the Welsh Government's statutory instrument consent motion for these regulations at its meeting on 10 December. In accordance with Standing Order 30A.3,

'Any member, other than a member of the government, who intends to table a statutory instrument consent motion in relation to a relevant statutory instrument must first lay a statutory instrument consent memorandum, but must not normally do so until after a member of the government has laid a statutory instrument consent memorandum in respect of that statutory instrument.'

Suzy Davies has laid a statutory instrument consent memorandum for these particular regulations, so, consequently, these come before this committee. I don't know if there's any issue with—. I mean, we have to consider this. Is there any issue as to why we can't consider it with the Member remaining in the room? 

15:10

I'm happy to go out, although the purpose of laying this has been explored here before. 

And I happen to agree, so we'd all be leaving the room because we've had—[Inaudible.] 

I think the point is that we could note and, obviously, the matter will arise at the Assembly. It's just a question of whether we want to give any more detailed consideration to it. In which case, obviously the separation of powers requires probably Suzy to—

Under this item, Members are perfectly okay to note that the SICM has been made. The committee has been given a draft report to consider in private. At that point, Suzy, you may want to step out of the room while the committee considers the report on the SICM, but at this point you're okay.  

Shall we consider it in private now, to deal with it, because it's the last item before we go into private session? So, as soon as we've done that, we can invite you back again. 

We'll deal with this in open session. You have the SICM before you. We've previously looked at the Marine Environment (Amendment) (EU Exit) Regulations 2018. We know that the Member has really raised just concerns in terms of when and when not consent memoranda are laid. So, in many ways, it's a constitutional point being made in terms of drawing the attention of that to Government. I don't see any problem with the report that's been given. If we note it now, it will come up in the Assembly business in a matter of course this week. 

This week. 

This week. So, it will be dealt with there and the Member will be able to speak, and any of us that have any comments to make on this, we can do so as well within that. Any comments or observations beyond that? 

12. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod
12. 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.

In which case, we can go into private session now, and invite Suzy Davies to come back. 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:12.

Motion agreed.

The public part of the meeting ended at 15:12.

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