National Assembly for Wales

Bore da. Good morning. This is a meeting of the Constitutional and Legislative Affairs Committee. Just in terms of the usual handling arrangements, 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 today. All mobile devices are switched to silent mode. The National Assembly for Wales operates through both the medium of the Welsh and English languages, headphones are provided through which instantaneous translation may be received. For anyone who is hard of hearing, they may also be used to amplify sound. Do not touch any of the buttons on the microphones as this could 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 and I welcome Rhianon Passmore as a substitute for Dawn to this meeting. Are there any declarations of interest to be made? If there are none, we'll move straight on to the Legislation (Wales) Bill Stage 2 proceedings.

I welcome to the meeting Jeremy Miles, the Counsel General, together with Dylan Hughes, first legislative counsel, and Claire Fife, policy adviser.

In relation to this item, Members should have before them the marshalled list of amendments and the groupings of the amendments for debate. I just remind everyone the marshalled list of amendments is the list of all amendments tabled marshalled into the order in which these sections appear in the Bill. So, for this meeting, the order in which we consider amendments will be sections 1 to 5, Schedule 1, sections 6 to 39, Schedule 2, sections 40 to 43 and the long title. You'll see from the groupings list that amendments have been grouped to facilitate debate, but the order in which they are called and moved for a decision is dictated by the marshalled list, so Members will need to follow the two papers, although I'll advise Members when I call them whether they are being called to speak in a debate or to move their amendments for a decision. There'll be one debate on each group of amendments. Members who wish to speak on a particular group should indicate this in the usual way. I will call the Counsel General to speak on each group.

For the record, in accordance with the convention agreed by the Business Committee, as Chair, I will move the amendments in the name of the Counsel General. For expediency, I will assume the Counsel General wishes me to move all amendments and I'll do so at the appropriate place in the marshalled list. Counsel General, if you don't want a particular amendment to be moved, then just indicate this at the appropriate stage.

In line with our usual practice, legal advisers to the committee and the Counsel General are not expected to provide advice on record. If Members wish to seek legal advice during proceedings, please do so by passing a note to the legal adviser. If necessary, there can be a short adjournment for that particular purpose. If we're all content, I will move on to the legislation itself: the Legislation (Wales) Bill and deal with group 1.

This is definitions in Part 1 of the Bill. The lead amendment in the group is amendment 18 in the name of Dai Lloyd, so I call on Dai Lloyd to move amendment 18 and to speak to the other amendments in this group.

Thank you, Dai. I call on Suzy Davies to speak to her amendments. 

Thank you very much, Chair. First of all, can I just thank the Counsel General for his careful consideration of the recommendations of our report? I think it's the first time I've had a chance to say thank you for accepting so many of them.

Amendments 14 and 15 in this group are about our legislative favourite, that's clarity, and my own personal discomfort in leaving it too much to the courts to let them decide what a legislature's intention is. Can I thank you for your response to recommendations 3 and 4 about what non-legislative steps might look like? That's very welcome, but I still have these concerns about the legislative steps falling short in terms of their clarity, and I think, actually, clarity is the least we can expect in a Bill that speaks so much to interpretation. 

Dai Lloyd has already made the argument for the definition of 'accessibility' as the primary aim of the Bill, and amendments 14 and 15 are an attempt to do the same for the main legislative steps to achieve that accessibility, however it's defined. I don't think our report went as far as recommending definitions for consolidation and codification, but I am asking you now to consider that a little further, because we did say that witnesses didn't have a unified view of what codification meant, and in some cases didn't match your apparent intention as expressed in the explanatory notes to the Bill. 

So, I'm pleased that you've accepted our recommendation to publish a position statement on consolidation and codification, but I'm still left with this question of why, if you're already clear in your mind what these words mean, these key concepts, their definitions, haven't been included in the draft Bill, or even introduced at this stage via Government amendments. You've seen both my attempts at reading your mind, which have been drafted with expert help, using words from your own explanatory materials, so I'm hoping that they're not too far from accurate reflections of what you intend. And, if they don't please you today, in their current form, or if they're pretty close, perhaps, to capturing your intention but aren't quite there, I think I'd be more than happy to accept your assurance that you'd bring something different—or similar, I should say, or a more accurate amendment, anyway—forward at Stage 3. 

Otherwise, I am left with this lingering doubt about whether you are, at this stage, completely clear about what you mean by 'codification' and 'consolidation'. In which case I have to ask why you didn't wait until you were before you brought the Bill forward. It won't be the first time we've had a Bill when, perhaps, the Government wasn't quite ready to bring it forward. And the fact that you're only able to bring forward a position statement later this summer still gives me some cause for concern, which I'm pretty sure you could allay, maybe, at Stage 3, by bringing forward amendments of your own on codification and consolidation, if you're unhappy with the attempts that I've made at Stage 2.

Thank you, Suzy. Are there any other Members who wish to speak on this? In which case, I call on the Counsel General to speak.

Thank you, Chair. I'm grateful to both Dai Lloyd and Suzy Davies for explaining the thinking behind the amendments. I'll deal first with amendments 18 and 19, which, as Dai Lloyd explained, are alternatives to one another.

Turning to Suzy Davies’s amendments, amendment 14 would insert a definition of 'consolidation', consolidating the law in section 2, and amendment 15 would, as she indicated, insert a definition of 'codifying' the law. I'm afraid I don't agree the Bill should define those terms, but the reasons are slightly different for each of the two terms.

Starting with 'consolidation', there is no need, in my view, to define the term because its general meaning is straightforward and well understood. It's already been used in legislation without being defined—for example, in the Law Commissions Act of 1965, which established the work of the Law Commission—and I'm not aware of stakeholders having expressed any doubts about what the word means in the Bill. The definition in amendment 14, therefore, wouldn't take things any further than the normal meaning that the word would already have.

In addition to that, I believe the appropriate place to set out what the Assembly considers is appropriate when consolidation of primary legislation is being considered is in the Assembly's Standing Orders, which would allow for a much more detailed definition of what consolidating means, rather than the necessarily broad-brush definition, which would be under consideration at this point. The Business Committee has asked the Government and Commission officials to work together to draft a Standing Order for that purpose. 

The Business Committee has subsequently agreed the principles for the new procedure, and work is under way—well under way, I think—on developing that Standing Order for the Business Committee's recommendation. The committee has agreed that that Standing Order would come to CLAC for its consideration in detail. So, I'm sure that when the detail of those proposals emerge—and I would just say they are, as I understand it, pretty detailed—the committee will agree, I hope, that Standing Orders is the place to have that discussion around the definition.

On the question of codification, clearly there's been a lot of discussion around what codifying the law will involve, and I've set out my current thinking on that. I agree with the chair of the Law Commission, who's work obviously underpins what we are discussing today, that trying to be prescriptive about things before we've embarked on that process could be too limiting, and, actually, that problem can be illustrated by the definition that amendment 15 would insert into the Bill, which actually doesn't cover everything that I said I would regard as codification. It's limited, on the definition, to cataloguing and publishing, but misses out that important element of consolidating and adopting a structure for the law and maintaining that structure into the future, which really goes to the heart of the version of codification that I have spoken about and I envisage for the legislation. 

As Suzy Davies indicated, I've confirmed my intention to set out a position statement on consolidation, codification and the future structure of the law, which I anticipate issuing in the summer, subject to the Bill being passed. The timing would allow me to consider fully the evidence this committee has taken and the issues that Members have raised through amendments such as the ones we are debating this morning. So, I look forward to engaging with the committee on that position statement. As I've said before, accessibility of law isn't simply a matter for the Government, it's also a matter for this committee and the Assembly at large, who will play a vital role in making sure that the future of the statute book in Wales is accessible. So, although I can't support the amendments that Suzy Davies is bringing forward at 14 and 15, I hope you'll understand the reasons for that and I hope also that Dai Lloyd will agree to work with me on a version of his amendment 19 for the next stage.

Okay. I call on Dai Lloyd to reply to the debate.

Okay. The Member has indicated that he doesn't wish to move to a vote on amendment 18. As it's a lead amendment, do Members of the committee agree? And if everyone's agreed, then, that brings that to an end.

We now move on to the issue of amendment 19. Do you wish to move amendment 19?

Thank you for that.

We now move on to group 2, which is a programme to improve accessibility of Welsh law, and these are amendments 12, 1, 2, 3 and 13. The lead amendment in the group is amendment 12 in the name of Suzy Davies, and I call on Suzy Davies to move amendment 12 and to speak to the other amendments in this group.

Thank you, Chair. I move amendment 12, and introduce amendment 13, which is consequential on 12. Both of these speak, of course, to recommendation 8 of our report. Effectively, these amendments are seeking to oblige the Government to put its money where its mouth is and implement any programme, or revised programme, which it prepares under section 2 of the Bill.

Can I begin by thanking you for your detailed explanation in your letter of 3 May of why you're not minded to accept recommendation 8 and, by implication, these amendments, which were drafted before the receipt of that letter? Perhaps I can explain that the initial prompt for these amendments, apart from recommendation 8 itself, were the scars that some of us still bear from the process for the introduction of the School Standards and Organisation (Wales) Act 2013, and there, it was local authorities rather than Government who were under a duty to prepare Welsh in education strategic plans, but the then Minister vehemently opposed any obligation to implement them. And so huge resources were committed to prepare these plans in various local authorities, which in some of those authorities basically just ended up in the bin. That's just something that I want to avoid here. You've gone to a lot of effort to produce this Bill, and the proposed programmes will inevitably take a lot of time and effort, and I just want us to be certain that they will go somewhere.

Now, looking at your letter, you assert that obliging Government to implement its proposals, or revised proposals, will limit the Government's ambitions. Well, you said it. Those of us who've been in opposition for some time now—what we've observed is a long series of policy announcements, many of which are supported by opposition, actually, which then dribble away into unmonitored and unscrutinised distance, and it happens with post-legislative scrutiny too. How often have we heard from Welsh government that it has chosen the negative or no procedure for secondary legislation, because poor old Assembly Members don't have time for detailed scrutiny?

So, particularly with a Bill of this nature, which is fairly narrow in its purpose, what we're looking for is a genuinely deliverable programme of reform, which will be easy and efficient to scrutinise, and which courts would find easy and efficient to enforce. So, I think this duty is actually a helpful reality check for Government, and the Assembly will be spared all those repeated bouts of holding Government to account, only to be met with repeated failure of Government being accountable. Because, frankly, we're fed up with expectations being the Government's go-to answer when it's challenged, and part of the reason that these amendments are being introduced is to pin Welsh Government down on that accountability. Because I do think accountability has been a meaningful political question for a long time in this place, so let's use this Bill to make it a legal question. Propose something practical and reviewable, do what you say, and then there's nothing to fear. 

I take your point, however, on remedies in the letter that you wrote on 3 May. Realistically, I would ask: what is the remedy if the Government fails to comply with the section 2 duty as it is, because I don't see the Assembly pursuing you, and I'm not quite sure how an individual would show locus standi in any claim either? But remedies that are useful to our constituents in terms of equality and access to justice are things I think that concern us both, and I would say that I don't think it's been fully considered in quite a lot of Welsh legislation up to this point. You only have to think about how much rights-based legislation we have with no remedy other than judicial review. Now, this Bill is your Bill, and perhaps it's an opportunity to pioneer accessibility to justice as well as accessibility to law. I'd just like you to think about that before we get to Stage 3. 

To finish, I'll be happy to support the other amendments in this group, although I would like to understand why the mid-term review seems to have slipped through the net, unless I've missed it, because that might come back at Stage 3. 

Okay, thank you for that. Are there any other Members who wish to speak? If not, I call on the Counsel General to speak. 

Thank you, Chair, and thanks also to Suzy Davies for explaining why you've brought forward amendments 12 and 13. I'll speak first, if I may, to my own amendments in the group, and then respond to the points that the Member has made in relation to amendments 12 and 13. 

Members will be aware that for each Assembly from 2021 onwards, the Welsh Ministers and Counsel General will bring forward a programme of proposed activities to improve the accessibility of Welsh law. As has already been touched on in the earlier discussion, much of the emphasis has been put on consolidating and codifying the law, and to facilitate the use of the Welsh language. But during my evidence before the committee at Stage 1, I also spoke about the other activities we expect to undertake to promote awareness and understanding of Welsh law. For example, I've set out some of the work currently under way to improve the Cyfraith Cymru and legislation.gov.uk websites, which provide access to and explanation of the law in Wales.

The committee considers that those types of activities should be a key part of any accessibility programme, and having considered what the committee has had to say on that, I agree with the committee's view. So, amendment 1 adds add activities that are intended to promote awareness and understanding of Welsh law to the list of activities that 'must', rather than simply 'may', be included in a programme to improve the accessibility of Welsh law. Together with amendment 2, this gives effect to recommendation 9 of the committee’s report.

I also agreed with the committee’s recommendation that the Counsel General should report on progress under the programme annually, and have brought forward amendment 3 to achieve this. And on the point of the mid-term review, that will be taken into the annual report in the report of 2023, effectively midway through the term. But I want to place on the record the effect of this amendment 3. The requirement to report would only arise once the programme has been prepared. Under section 2(5) the Counsel General must lay the programme within six months of the appointment of a First Minister after a general election.

The first report would therefore be made no later than one year after the programme was laid, and annually after that.

So, if the first programme under the Act is laid before the Assembly in November 2021, then the first annual report would be made by the Counsel General in November 2022. This would continue up to, and including, November 2025. In April 2026, the first programme would end with a dissolution of the Assembly, so in the first term, there would be four annual reports in effect. Each report in this period could build on the early reports, enabling reporting on the activities undertaken in the last 12 months, and on progress of the programme as a whole. The last report of the cycle could also project forward to refer to expected progress for the remaining period of the programme. Keeping with the example, the second programme would be laid by, say, November 2026, and the first report on that second programme would take place in November 2027. That means, in effect, there would not be a formal report in 2026, but the Assembly would be appraised of progress as part of laying of the second programme in the new Assembly term, and ad hoc reporting by the Counsel General, including through the usual scrutiny methods. 

I also would like to set out, if I may, how I see the annual reporting arrangements fitting in with the other aspects of the duty under section 2. Section 2(6) allows Welsh Ministers and the Counsel General to revise the programme at any time. That can arise for a number of reasons; for example, we wish to include new awareness-raising activities within the programme. So, I see the annual report as an opportunity to draw attention to proposals for revision, although those kinds of changes could take place outside the reporting cycle. Similarly, any revision would not restart the clock for reporting purposes, so if the programme was revised in, say, July 2024, the Counsel General would still report in the November of 2024.

Given the long-term nature of the work, and looking ahead to some of the anticipated consolidation and codification programmes, I expect that some projects will be started as part of one programme and be completed during a subsequent, or subsequent programmes. So, I wish to assure Members that I don't see a limit on annual reports covering work from previous programmes to explain to Members the work that's been achieved over the course of that range of activities.

Finally, I think it's also worth noting that annual reporting doesn't, in my view, preclude any other reports on progress that the Counsel General or Ministers may want to make, and also, responding to any issues that this committee or others may wish to raise. There are some very minor financial implications of moving to a formal annual report, which I intend to set out in revisions to the explanatory memorandum if this amendment is agreed. 

Turning to amendments 12 and 13, proposed by Suzy Davies, as has been said already, these amendments respond to recommendation 8 of the committee's report, and Members obviously will have heard my views on this during Stage 1, and will have had the opportunity to consider the letter of 3 May, which sets out some of these issues that Suzy Davies mentioned in her remarks. In summary, I think that deciding whether enough progress has been made under the programme is inevitably going to be a subjective question, and involves a judgment that, in my opinion, should be subject to a political set of considerations rather than a legal set of considerations. We're taking the unusual step of imposing a clear duty on the Government to improve accessibility, and as the amendment on reporting makes clear, then subjecting ourselves to criticism, effectively, if we don't achieve that, providing the accountability that Suzy Davies emphasised as significant to her in her remarks. So, opening that up to a process of legal challenge seems to me unnecessary, and for a purpose that is uncertain. It's also important to bear in mind that measures set out in the programme will, in the most part, not be entirely within the gift of the Government. To borrow from Professor Watkins's language in Stage 1, the Government will propose consolidation Bills, but ultimately the legislature will decide on whether to pass them.

So, before I close, I want to address some of the points that Public Law Wales and the Law Society, I think, mentioned in their evidence to the committee, which was to say that, without that duty to implement, what the Government might put forward, which is echoed in Suzy Davies's remarks, would amount to a wish list—I think that was the language they used. I want to be absolutely crystal clear to the committee that that isn't the intention of the Government. As I've said—I think repeatedly at this point—we are committed to improving accessibility, and we've taken the unusual step of placing a specific duty on ourselves in order to do that. But, again, as Suzy Davies highlighted in her remarks, amendments 12 and 13 could—albeit unintentionally—have a dampening effect on future Governments, discouraging them from bringing forward ambitious programmes. And I think that is a significant concern, which we need to reflect on at this point. The whole ambition of the legislation is to be aspirational, and we need to take challenging steps if we're going to achieve that long-term ambition, which I know that we all share. So I'd urge Members, therefore, to reject amendments 12 and 13 and instead to support the strengthening of section 2, which we can achieve through amendments 1, 2 and 3.

Thank you for that, Counsel General. Suzy Davies, do you wish to reply to the debate?

Yes. Thank you, Chair. And thank you very much for a very clear and easy-to-understand response to the debate on this. As I said, we're going to be supporting the amendments that you've brought forward. But I just wanted to ask you something else about a mid-term review. Because I recognise what you say, that the effects of that will be reflected in one of the annual reports in the process of any given Assembly. I think what I'd like to do in those circumstances, then, because without having something on the face of the Bill that is open to amendments, or being open to us introducing amendments ourselves that might instruct Welsh Government to conduct a mid-term review, we have no place in which we can influence what we as Assembly Members think should be part of that review, the content of that review. And then perhaps I can invite you to maybe write to this committee with an indication of how you would see Assembly Members influencing the content of any mid-term review. Because, again, one of the concerns us opposition Members have had—if you've been here for any length of time—is that when Welsh Government marks its own homework, it leaves open the possibility of the outside world assuming that maybe you might have made lives a little bit easier for yourself. And, obviously, I'm not speaking about you as an individual, or indeed your officials, but you can see where I'm coming from. We need some sort of influence on behalf of our constituents to say what they would like to see covered in the mid-term review, and it's a principle I apply to any piece of legislation that comes before us.

You mentioned, in response to the amendments that are here before us in this debate, that you already think that there's an opportunity for Assembly Members to criticise progress against any programme that is proposed. I think you've probably picked up from what I introduced into the debate that, sometimes, criticism just leads nowhere, and that's what we were looking for here. I would say that we hold Welsh Government to account virtually every day, and don't often see changes on the back of that work. So, I think it echoes not just my frustration, but the frustration of fellow Members, sometimes.

I completely accept that it isn't your intention to have a wish list, but when you talk about something that's aspirational, it's going to sound like a wish list unless we can be absolutely certain that it's deliverable. And that was the point I was making, perhaps in a kind of probing way at this stage, to invite you to convince us that what you're going to be proposing at the beginning of any Assembly is deliverable. Because aspiration is great, but actually we want stuff that can be done. And as I mentioned in my own remarks, it's actually a waste of Assembly time if we're running around holding Welsh Government to account on aspirations that are undeliverable. So, that was one of the motivations behind me putting this amendment forward in the way that I did. So, if you just consider part of the narrative around it, rather than the amendment itself, perhaps that's something we could discuss before Stage 3.

Okay. Thank you for that. Suzy, do you wish to proceed to a vote on amendment 12?

Yes, may as well.

Okay. So the question is that amendment 12 be agreed. Does any Member object? [Objection.] Okay. So we now move to a vote. The question is that amendment 12 be agreed. Those in favour, please raise your hands. Those against, please raise your hands. There is a tied vote, so I therefore use my casting vote. So, it was a tied vote, three in favour, three against, and I use my casting vote in the negative—that is against the amendment—in accordance with Standing Order 6.20(ii). Therefore, the amendment is not agreed.

I now move amendment 1 in the name of the Counsel General.  The question is that amendment 1 be agreed. Does any Member object? I see there is no objection. Therefore, the amendment is agreed.

I move amendment 2 in the name of the Counsel General. The question is that amendment 2 be agreed. Does any Member object? As there are no objections then amendment 2 is agreed.

And then, I move amendment 3 in the name of the Counsel General. The question is that amendment 3 be agreed. Does any Member object? I see there is no objection. Therefore, amendment 3 is agreed.

Suzy, can I ask you then to move amendment 13?

Well, it's consequential on 12, so I won't move it.

Okay. So, amendment 13 falls.

We now move on to dispose of amendments 14 and 15, which were debated in group 1. Suzy, do you wish to move amendment 14?

Yes, please.

Okay. The question is that amendment 14 be agreed. Does any Member object? [Objection.] Okay, so we move to a vote. The question is that amendment 14 be agreed. Those in favour, please raise your hands. Those against, please raise your hands. There's a tied vote of three to three. As there is a tied vote, I'll use my casting vote in the negative—that is, against the amendment—in accordance with Standing Order 6.20(ii). The amendment is therefore not agreed.

Suzy, do you wish to move amendment 15?

Yes, please.

The question is that amendment 15 be agreed. Does any Member object? [Objection.] The question is that amendment 15 be agreed. Those in favour, please raise your hands. Those against, please raise your hands. There's a tied vote of three to three. As there is a tied vote, I use my casting vote in the negative—that is, against the amendment—in accordance with Standing Order 6.20(ii). Therefore, the amendment is not agreed.

We now move on to group 3, application of Part 2 of the Bill, and this contains amendments 16 and 17. The lead amendment in the group is amendment 16, in the name of Suzy Davies. So, I call on Suzy Davies to move amendment 16 and to speak to other amendments in the group.

Thank you, Chair. I move amendment 16, and amendment 17 is consequential on that, so I'll speak to them together.

First of all, I just want to make it plain that this amendment is not trying to undermine the purpose of the Bill in any way at all. It is not trying to minimise the use of Part 2 in the Bill, the interpretation of our own law. However, there is a difficulty that needs talking through, and I can see in your response in your letter of 3 May to recommendation 1 that you wanted to give this particular subject a bit of extra thought as well, Counsel General. The Solicitor General’s letter has just given me confidence that it wasn't just me and Keith Bush who thought that there might be an issue here about which a set of interpretation rules should apply to wholly Welsh-made secondary legislation made with powers flowing from primary legislation made for Wales, or England and Wales, by Westminster on devolved matters.

Welsh-made legislation, including secondary legislation, will be subject to Part 2 of the Bill. Primary legislation made in Westminster remains subject to the Interpretation Act 1978, if I understand this correctly. So, the question for me is: if the primary legislation was made on the basis that the meaning of certain words was settled using one set of rules, should not those same words be accorded exactly the same meaning in any secondary legislation? The risk being that the original legislative attempt of the primary Act might be compromised if it is implemented through secondary legislation that gives the same words slightly different meaning.

I've absolutely no idea of the practical implication of the break in this DNA link between the parent and child currently made possible in the Bill. Divergence of interpretation may be so minimal as to have no real-life effect whatsoever. Whatever risk there is, I think, is likely to disappear over time, as old statutes, whatever their origin, get consolidated into new, made-in-Wales primary legislation, but that’s going to take some time. But, the risk there is and it is the legislative intention of the primary lawmakers, expressed with the 1978 Act in mind at the time, that, logically, should be the determinant of the use of the same words in secondary legislation that is its offspring.

Now, what I don't know is how the UK Parliament looked at essentially the same question when the 1978 Act was being introduced—how it dealt with applying that law to pre-existing legislation, even if it does that. So, I need to give this myself further thought before Stage 3, and I hope that this debate will help concentrate my mind, because I really want to hear from you on this, Counsel General, bearing in mind that your response to recommendation 1 in your letter on 3 May suggested that you needed to give this some thought as well.

Thank you, Suzy. Are there any other Members who wish to speak? If there aren't, I call on the Counsel General.

Thank you, Chair. I listened carefully to the arguments that you've put forward and the points that you've raised. You've seen the letter from the Solicitor-General to me on 25 April, and I mentioned in my response on 3 May that what I was looking to consider was the terms of that letter rather than any issues that I felt that it raised afresh. Although it's not clear, I think that, like Suzy Davies proposes, the Solicitor-General is confining his remarks to Part 2 of the Bill, just to be clear. I'll be responding to that letter in due course and I'll make sure the committee and the Llywydd have a copy of that letter.

The Government does not share the views of the Solicitor-General that the Bill is outside the National Assembly's competence, nor do we agree that the Bill has the potential to cause confusion or legal uncertainty as to how certain legislation should be interpreted. She mentioned the evidence of Keith Bush, and I should just say that didn't raise any questions of competence, it was about the application of the extent of the Bill.

So, the Government does not therefore consider the Bill should be amended in the way that the UK Government has proposed, and for the same reasons I'd urge Members not to support amendments 12 and 13 today. Given the questions that Suzy Davies has asked, I think it might be helpful for me to set out our position on the record in more detail. 

Firstly, the Solicitor-General argues that Part 2 of the Bill relates to reserved matters. That is really to deny that the interpretation of legislation, which isn't listed as a reserved matter in Schedule 7A of the 2006 Act, is a distinct subject to which legislative provisions may themselves relate. That argument seems to be based on an unrealistic view of what Part 2 of the Bill does. It doesn't reflect either the purpose of Part 2 or the way in which questions of statutory interpretation have been regarded by the UK Parliament and others in the past.

Part 2 is about how legislation works, rather than about the subject matter of legislation, whatever that is in any particular case. Part 2 does not relate to any of the specific matters reserved by the paragraphs in Schedule 7A, nor does Part 2 contain any provisions that are about any of those specific matters.

The Solicitor-General then argues that the application of Part 2 to subordinate legislation that relates to reserved matters is an impermissible modification of the law on reserved matters. I don't agree that Part 2 modifies the law on reserved matters. The Government of Wales Act limits the Assembly's ability to modify existing law on reserved matters—that is, actual pieces of legislation about reserved matters. But, Part 2 of the Bill will not do that.

The coming into force of Part 2 will leave the substantive law on reserved matters the same as it was immediately before Part 2 came into force. That's the substantive effect of Part 2 of the Bill. It won't modify any existing subordinate legislation that the Welsh Ministers have made about reserved or devolved matters. It will apply only to whatever subordinate legislation they make in the future, and only to the extent that they determine at the time.

Suzy Davies made the point about the effect of secondary legislation having different meaning from primary legislation. That does happen. And the point of it happening is to ensure that the subordinate legislation is accessible on its own terms. That's the principal objective there. 

So, Part 2 simply sets out presumptions about what the Welsh Ministers mean when they make subordinate legislation. Those presumptions are subject to anything in context or in the express provisions of the subordinate legislation that may require a different outcome. So, they're presumptions about meaning that can be changed by context or express provisions in legislation.

The third argument of the Solicitor-General is that Part 2 modifies section 107(5) of the 2006 Act, which provides, effectively, that the Assembly's powers do not limit the powers of the UK Parliament, which I think echoes the other point that Suzy Davies was making about the relationship between primary and secondary legislation. I don't agree that the power of the UK Parliament to legislate for Wales is affected in any way by the application of Part 2 of this Bill to Welsh subordinate legislation made under Acts of Parliament. Nothing in Part 2 will apply to Acts of the UK Parliament or affect their meaning, nor does Part 2 limit the power of the UK Parliament to confer functions of making subordinate legislation, or to confer those functions on whatever terms are considered by it to be appropriate. Those things aren't affected.

Members will also be aware that the Solicitor-General is concerned that the Bill would frustrate the aim of simplifying the understanding and interpretation of laws that apply in Wales. It's not clear to me how that can be the case. I've asked for examples, and they have not been provided. We've always made it clear that certain intricacies, if you like, will arise from having an additional Act on the interpretation of legislation, but the current situation is already complex. So, we've developed a straightforward model for when Part 2 applies, which is that, if an enactment has been made in Wales after a certain date, it'll be interpreted by reference to Part 2, and not the existing 1978 Act. So, that delineates clearly, by reference to a certain date, which set of provisions will apply.

The committee obviously took evidence on the approach to application, and stakeholders expressed a range of opinions. I note that the committee considered, on balance, that the Bill's intended application had been drawn appropriately. I agree with the committee's opinion. So, I've listened to the points that you've made this morning, and I've obviously taken account of the matters raised by the Solicitor-General. I remain of the view that section 3 and Schedule 2 should not be amended in the way that is proposed, and I trust that Members will continue to support the application of Part 2 to legislation that is made in Wales by the National Assembly, the Welsh Ministers and other devolved authorities.  

Suzy Davies, do you want to reply to the debate?

Yes, just briefly. I'm almost kind of regretting mentioning the words 'Solicitor-General's letter' because I wasn't actually speaking to the whole of that letter, just to this very specific point about the relationship between a parent piece of primary legislation and the subordinate legislation that flows from that—and the obvious point, really, that any words in the primary legislation would have been interpreted under the interpretation Act and the option that is now available through this Bill, or which is pushing in that direction, to interpret those words differently when it comes to secondary legislation. That's the very confined argument that I was making. So, I'm not trying, as I say, to undermine this Act and what it does in any way it all.

I also went on to say that the practical implications of that will probably be tiny. But, I just needed some way of reassuring myself that the difference between primary legislation made on one side of the Severn bridge and secondary legislation made on this side of the bridge won't diverge when the specific wording always had an intention that was defined through the 1978 Act. I don't think that there's likely to be any huge rush to do this, just to be deliberately awkward, but it could arise, and that's the very narrow point I was making. If I'm wrong, that's great.

Chair—

Thank you. Suzy, do you wish to—

I'm more than happy to take an intervention.

Would it be helpful if I just addressed that specific point?

Certainly. Please.

Yes, because I'd like to put this one to bed.

Let's address it.

Just on that specific point, that is already permissible, of course. Secondary legislation can have different meanings. Words can have a different meaning from primary legislation, provided it's within the enabling power. That's the key point. On the question of divergence, in a sense, that is inherent in the purpose and point of devolution, isn't it? Powers having been conferred may then be exercised within the scope of those powers. So, I think that those two points, I hope, help alleviate the concerns. 

Do you want to reply to that?

Yes. I'm really grateful to you for that. You did mention it earlier. My concern on that is how that's kind of managed, because the primary legislative intent doesn't necessarily then get reflected in what happens with the secondary legislation—sometimes, many years down the line. So, that's what the purpose of that was—to see how confined that divergence could be. While we should have the ability to make our own laws here, if we are still relying on a primary piece of legislation from years ago, the sooner that we get on with consolidating it, the better, and I might ask you a question on that in a different group. Thank you. Thank you, Chair.

Okay. If I can ask Suzy now: do you wish to proceed to a vote on amendment 16?

I will move it—have a vote on it. 

Okay. The question is that amendment 16 be agreed. Does any Member object? [Objection.] Okay. In that case, the question is that amendment 16 be agreed. Those in favour. Those against. That amendment is rejected.

We now move on to group 4, equal status of texts of bilingual legislation. That contains amendments 4, 5, 7 and 11. The lead amendment in the group is amendment 4 in the name of the Counsel General. 

Unless the Counsel General indicates otherwise, I will move that amendment in your name and call on you to speak to this amendment and to your other amendments in this group. 

Thank you, Counsel General. Are there any other Members who wish to speak on this? Is there anything further, Counsel General, because, if not, can you just confirm that you wish to proceed to a vote on amendment 4?

Yes, please, Chair.

The question is that amendment 4 be agreed. Does any Member object? There are no objections, therefore the amendment is agreed.

I move amendment 5 in the name of the Counsel General. The question is that amendment 5 be agreed. Does any Member object? There are no objections, so amendment 5 is agreed.

We now move to group 5, definitions of words and expressions, and this relates, of course, to amendments 9 and 10. The lead amendment in the group is amendment 9 in the name of the Counsel General.

I move amendment 9 in the name of the Counsel General and call on the Counsel General to speak to this and to his other amendment.

Thank you, Chair. The amendments in this group make technical improvements to the drafting of two of the definitions in Schedule 1 to the Bill. Those are the definitions that will apply generally to Assembly Acts and Welsh subordinate instruments unless there is a different intention.

As you know, legislative counsel always keep the drafting of a Bill under review, even after it has been introduced in the Assembly, and these amendments result from that process of considering whether there are any ways in which the drafting of the Bill could be improved. They don't change the effect of the Bill at all, but they ensure that its effect is expressed more simply.

Amendment 9 changes the part of the definition of 'Wales' that refers to the sea, to make the definition more accessible and consistent with other legislation that refers to the sea. When we consulted on the draft Bill, we explained that reproducing the effect of the definition of 'Wales' in the Government of Wales Act was not easy. That definition relies on the Interpretation Act 1978 to define the landmass of Wales, and the 1978 Act in turn relies on repealed provisions about local government boundaries from the Local Government Act 1972. We have improved on that approach in the Bill by referring directly to the counties and county boroughs of Wales.

The definition of 'Wales' also includes the territorial sea. For that part of the definition, the Bill follows the wording in the Government of Wales Act and refers to the fact that the boundaries in the Dee and Severn can be drawn by an Order made under that Act. On reviewing this part of the definition, we have identified some ways in which it could be improved.

The main change made by the amendment is to remove the general reference to the fact that the boundaries of the Wales in the sea can be drawn by an Order under the Government of Wales Act and replace it with a specific reference to the particular Order that does this. We think this approach will be more helpful for people who need to identify the precise boundaries of Wales in the Dee and the Severn, not least because the Order that draws those boundaries is the first transfer of functions Order that was made under the 1998 Act, and readers might find it difficult to work out that this Order still has effect in 2019.

Amendment 10 removes some wording at the end of the definition of 'writing', which we have decided is not necessary. The definition refers to various ways of presenting words in visible form, and ends by saying that,

'expressions referring to writing are to be interpreted accordingly'.

This matches the definition in the Interpretation Act 1978. However, section 8 of the Bill provides that statutory definitions apply to different grammatical forms of the defined terms. Section 8 applies to the general definitions in Schedule 1, and it means that the definition of 'writing' will apply to related words like 'write' and 'written'. The wording at the end of the definition of 'writing', therefore, does not do anything more than this, and so we are satisfied that it should be removed to avoid duplication.

As I've said, these improvements will not change the effect of the Bill, but they clean up some of the drafting, and if there are any opportunities to clean up the drafting of the Bill as it proceeds, we should take those opportunities.

Thank you for that, Counsel General. Are there any other Members who wish to speak on this? If there aren't, Counsel General, do you wish to proceed to a vote on amendment 9?

Yes, please.

In which case, the question is that amendment 9 be agreed. Does any Member object? There are no objections, so amendment 9 is agreed.

I now move amendment 10, in the name of the Counsel General, and the question is that amendment 10 be agreed. Does any Member object? If there's no objection to that, then amendment 10 is agreed.

We now move on to group 6, which is the power to replace descriptions of dates and times in Welsh legislation. The lead amendment in the group is amendment 6 in the name of the Counsel General. 

I move amendment 6 in the name of the Counsel General and call on the Counsel General to speak to this amendment and his other amendments in this group.

Thank you, Chair. The main amendment in this group is amendment 6, which extends the power in section 36 of the Bill. Amendment 8 is consequential and removes a provision that will not be needed if amendment 6 is agreed. 

Section 36 of the Bill enables Welsh Ministers to amend Welsh legislation by replacing a description of a date or time with a reference to the actual date or time once it is known. For example, a reference to the date on which an Act comes into force could be replaced with the actual commencement date once it is set. This does not change the effect of the legislation that is amended but expresses its effect more clearly.

At present, section 36 would allow the Welsh Ministers to amend Assembly Acts and Measures, and subordinate legislation made under them, and any other subordinate legislation made by the Welsh Ministers in relation to Wales. Amendment 6 would allow them to amend one further category of legislation, consisting of any other enactment so far as it has been amended by Welsh legislation. For example, an Assembly Act might amend an Act of the UK Parliament by adding a new section that contains a reference to the date on which the Assembly Act comes into force. Once that amendment had taken effect, section 36 would not currently enable the Welsh Ministers to amend the new section in the Act of Parliament to set out the actual commencement date. Amendment 6 would ensure that they could do that. We think, on reflection, that it would be useful to be able to make this kind of amendment, and, in fact, section 42 of the Bill already contains a specific power to make this kind of change. The Bill will insert a new section 23B into the Interpretation Act 1978, which refers to the date on which Part 2 of the Bill comes fully into force, and section 42 gives a power to amend the new section 23B to set out the actual commencement date of Part 2.

Rather than dealing with this issue on a case-by-case basis in the way that section 42 does, we now propose to deal with it generally in section 36 of the Bill. Using the power in section 36 will make a modest contribution to improving the accessibility of legislation, and we therefore think the power should extend to all legislation made here in Wales, including where Welsh legislation has amended other types of legislation, and I hope Members, therefore, will be able to support both amendments.

Before I close my comments, Chair, if I may, I would like with your agreement to thank Members for the work of the committee leading up to and including today, and for the careful and detailed considerations that Members have given to the amendments tabled and also the substantive matters raised by those amendments.

As the Bill has been amended, I will take the opportunity of updating the explanatory memorandum to reflect those changes, and I also intend to include additional information with that memorandum, reflecting the work of the Finance Committee and this committee during Stage 1. I would then table a revised memorandum ahead of the Stage 3 proceedings.

Looking ahead to those Stage 3 proceedings, I intend to table a couple of technical amendments to Part 2 of the Bill, dealing with the interpretation of references to EU legislation that is retained in domestic law after EU withdrawal, assuming that happens, and I'll also, if I may, confirm that I will take up the invitation that Suzy Davies made in relation to group 2, to respond to her closing remarks by writing to the committee. Diolch yn fawr.

We note those comments. Are there any other Members who wish to speak? If not, Counsel General, do you wish to proceed to a vote on amendment 6? The question is that amendment 6 be agreed. Does any Member object? No objections, so amendment 6 is agreed.

We now move to dispose of amendment 7, which was debated in group 4. 

I move amendment 7 in the name of the Counsel General. The question is that amendment 7 be agreed. Does any Member object? There are no objections, so amendment 7 is agreed. 

We now move to dispose of amendment 17, which was debated in group 3. Do you wish to move amendment 17?

No, it was consequential. 

So, that amendment falls.

We now move to dispose of amendment 11, which was debated in group 4.

I move amendment 11 in the name of the Counsel General. Does any Member object? There are no objections, so that amendment is agreed. 

We now move to dispose of the final amendment, amendment 8, which was debated in group 6.

I move amendment 8 in the name of the Counsel General. Does any Member object? I see no objections, therefore amendment 8 is agreed.

That completes Stage 2 proceedings. Stage 3 proceedings begin tomorrow and the relevant dates for Stage 3 proceedings, I think, are due to be published in due course. Can I thank you, Counsel General, and your officials for attending and for all your answers and the information, and in particular the final comments, which we noted? Thank you very much. 

Thank you, Chair. 

I now move a short, five-minute comfort break, and then we can move on to the remainder of the agenda, if that's agreed. 

So, we reconvene the meeting of the Constitutional and Legislative Affairs Committee. We move on to item 3, now, of the agenda: instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3. We have the Regulated Services (Penalty Notices) (Wales) Regulations 2019, and you have before you the reports, regulations and explanatory memorandum. The Regulation and Inspection of Social Care (Wales) Act 2016 reforms the regulation and inspection regime for social care in Wales and provides the statutory framework for the regulation and inspection of social care services and the social care workforce. These regulations prescribe the details of a penalty notice system and the offences for which a penalty notice may be given. Are there any issues to be raised? 

Yes, there are two technical reporting points, starting on pack-page 1. The first point notes an incorrect cross-reference. The Welsh Government response, which I believe has been circulated to Members, accepts the error and will make an amendment before the regulations come into force on 1 July 2019. 

The second point notes that the Welsh text in the Schedules to the regulations describing the offence 'contravention of, or failure to comply with, requirements to have in place specified policies and procedures' is ambiguous. Due to the way it is drafted, it is not clear whether the failure to comply is in relation to the requirements to have policies and procedures in place, or in relation to the policies and procedures themselves.

The Welsh Government response sets out that the description of the offence in the Schedules is only intended to be a general outline and not intended to be a substitute for the reader looking at the specific statutory provisions that created the offence. However, readers shouldn't have to look at the specific provision to understand what the appendix is talking about. Furthermore, the English text is clear, without having to refer to the specific regulations, and so the Welsh text should be equally clear. 

Okay, thank you for that. I just invite Members to make any comments or observations.

Well, can we note that point, really? We have been speaking all morning about equivalence between Welsh and English provisions.

Okay. We note that and we move on to item 3.2: the Education (Student Support) (Postgraduate Master's Degrees) (Wales) Regulations 2019. These are regulations that provide for the making of loans to eligible students who are ordinarily resident in Wales for designated postgraduate Master’s degree courses that begin on or after 1 August 2019. Any points?

Yes, from my colleague.

Yes, please.

First, apologies for not wearing a jacket. [Inaudible.] I'm a stand-in, so to speak.

We have a heatwave outside. It's understandable. [Laughter.]

There are two technical points and one merits point. The first technical point is quite detailed in nature. It relates to the possibility that there's inappropriate sub-delegation. I can expand further on that if the committee wishes. In essence, though, it relates to a power or a discretion that is retained to the Welsh Ministers in relation to fitness to receive support. The point is raised because the enabling powers themselves, whilst providing, in general terms, for full determining eligibility for support, they don't set out any criteria as such, objective criteria, that seek to fetter any discretion of the Welsh Ministers. This point has been raised in Westminster also under similar regulations, and I felt it appropriate to raise this point as a technical point in relation to these also.

Any observations, other than that we ought to be raising that issue—the fact that there is a legal issue that arises in respect of the objective criteria application and we ought to at least investigate that and get a response specifically on that?

Yes.

Yes, and can I note as well that this is negative procedure and there are quite a lot of observations that have come up, not least on merit, let alone technical, and that's something we should be alert to as well?

Yes, and I'll just inform you, of course, we haven't received a Government response yet, so this matter may come up at our meeting next week if a response is received.

Okay.

We move on to item 4: statutory instruments requiring consent in relation to Brexit. We have the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019. Should the UK leave the EU without an agreement, the UK's access to EU security, law enforcement and criminal justice tools and measures will cease and the UK would no longer be bound by the EU regulatory regimes. So, the purpose of these regulations is to make amendments to the UK's domestic statute book, including retained EU legislation to address deficiencies that arise from the UK ceasing to be an EU member state.

There's a letter from the Minister, which is at pack-page 216, which notes that regulation 124 makes an amendment to the Local Government (Miscellaneous Provisions) Act of 1982, which she considers to be within the legislative competence of the National Assembly, but she only became aware of regulation 124 after it was laid before the UK Parliament. The Minister states that, under the inter-governmental agreement, she believes that the consent of Welsh Ministers should have been sought, however the UK Government does not agree with this position. For the avoidance of doubt, the Minister states that she wrote to the Minister of State for Policing and the Fire Service to give retrospective consent to the regulations. Members may wish to note that the Minister has stated,

'unprecedented pressures...did not allow for the usual time in considering more subjective elements of the devolution settlement.'

But she was

'content that the UK Government has acted in good faith'.

The instrument was made on 28 March 2019. Any comments?

Only that the legal advisers have not identified any legal reason to seek a consent motion under Standing Order 30A.10 in relation to these regulations.

Okay. Any comments or observations?

An observation, really. We're always told that legislation is passed, with everybody's good intent on both sides, without recourse to an excuse of the pressure of time or workload or whatever. So, obviously, we've accepted that as well, but, then, from time to time, it's trotted out as a reason why certain things don't go according to the book. It's worth making that point, because we're alive to that, because the excuse of workload and time pressures is not meant to be used; it's meant to be the validity of the legislation. 

No, and we can note that point in particular.

Can I just ask you to repeat what you said that legal advisers haven't found a reason—?

Yes. So, the Government is not laying a motion to debate the statutory instrument consent motion in the light of the extremely minor nature of the amendment, and legal advisers have not identified any legal reason to seek a consent motion in relation to these regulations.

Okay. So, you're saying that the UK Government was right in asserting that we didn't need a SICM or—?

No, just that the amendment was so minor. So, if you want to look on—

So, it's just to do with the amendment. That's what I'm trying—

Yes.

Yes, that's fine.

That's fine. I just wanted to clarify, for my understanding. Thank you.

Right. We move on to item 5, then: papers to note. A letter from the Chair of External Affairs and Additional Legislation Committee with regard to the attendance of Ministers at Monday committees—that, really, is just to be noted.

Item 5.2 is a letter from the Counsel General on the Legislation (Wales) Bill. We're just invited to note the letter from the Counsel General, which sets out the Government's response to the committee's recommendations on the Legislation (Wales) Bill, and, of course, that was something that was circulated, so it's just to note that. It's been overtaken by events. 

A letter from the Chancellor of the Duchy of Lancaster: engagement between UK administrations. Again, a letter to be noted. If there's any matter on this, we can defer this to private session. Okay.

We move on to item 5.4: a letter from the Chair of the External Affairs and Additional Legislation Committee to the Minister for International Relations and the Welsh Language—Trade Bill: legislative consent. So, we have the letter there that notes the EAAL committee's view that a further supplementary legislative consent memorandum should be laid, and, of course, Members will be aware now that a supplementary legislative consent motion has been laid. Perhaps we could defer this to private session. 

Item 5.5: a letter from the Llywydd regarding the application of Standing Order 30A. Another item to note, and if necessary we can raise this in private session.

A letter from the Counsel General: joint ministerial committee—EU negotiations. That's a notification to us. We'll obviously get a report on the outcome of that meeting in due course. Noted.

Item 5.7: Welsh Government interim response to the Law Commission's interim report on planning law in Wales. There's a written statement and interim response, and we're invited to note that, the objective being, obviously, simplifying and consolidating planning law, the case for a planning code, and the scope of the initial consolidation exercise. Defer that to private session?

Yes.

So, then, we move on to item 6. I'll ask the committee to resolve to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi). Do Members agree? Agreed.