National Assembly for Wales

This is a meeting of the Constitutional and Legislative Affairs Committee. We move onto item 1, just to start with, and to say that the usual housekeeping rules will apply. We are now a committee that is officially down to four Members. So, there are no apologies. We have full committee attendance. Are there any declarations of interest? If there are none, we'll move straight on in the agenda to item 2.

That takes us on to the Town and Country Planning (Blight Provisions) (Wales) Order 2019. This is an Order that applies in relation to sections 149 to 171 of the Town and Country Planning Act 1990. These are sections that allow the holders of certain interests in categories of land to require an appropriate authority to acquire their interest. One such interest is the interest of an owner-occupier of a hereditament—in this context, land that can be inherited—where the annual value of the hereditament does not exceed such amounts as set by the Welsh Ministers, and this Order increases the value limit from £34,800 to £36,000 in relation to Wales. Any comments? Any observations?

I see there are none, so we move on to item 2.2, the Prescribed Objects for Intimate Piercing (Wales) Regulations 2019. Part 5 of the Public Health (Wales) Act 2017 makes it an offence for a person in Wales to perform or make arrangements to perform an intimate piercing on a person under the age of 18. Currently, however, that prohibition only relates to intimate body piercings involving items of jewellery. These regulations will bring within scope of the offence in section 95 of the 2017 Act an intimate piercing involving any object that is not jewellery. There will be a Plenary debate on this instrument taking place on 9 July. Any observations or comments? 

We move on, then, to item 3 and the Electricity (Offshore Generating Stations) (Miscellaneous Amendments) (Wales) Regulations 2019. You have before you a report, regulations and explanatory memorandum. These regulations make amendments to the Electricity (Offshore Generating Stations) (Applications for Consent) (Wales) Regulations 2019 and the Electricity (Offshore Generating Stations) (Variation of Consents) (Wales) Regulations 2019. Of course, these are in response to items that we raised at a previous meeting, so they effectively replace the term 'national newspaper' with 'newspapers circulating in Wales, England and Northern Ireland' and they remove reference to the 'Department of the Environment' and replace it with 'a district council' in Northern Ireland, where applicable. Any comments? 

Only to note that the draft report suggests welcoming those changes.

Okay. Any observations? No. In which case we can move on.

The Education (Student Support) (Postgraduate Master’s Degrees) (Wales) (Amendment) (EU Exit) Regulations 2019. Again, there is a report, regulations and an explanatory memorandum, which everyone has seen. These regulations make amendments to the Education (Student Support) (Postgraduate Master’s Degrees) (Wales) Regulations 2019 to reflect the withdrawal of the United Kingdom from the European Union and to ensure that students who would have been eligible for support under the 2019 regulations immediately before exit day will continue to be eligible for support on and after exit day. We have previously considered a letter from the Minister for Education at last week's meeting, which set out why these regulations are being made using powers under the Teaching and Higher Education Act 1998, rather than using powers under the European Union (Withdrawal) Act 2018. Any comments? Observations? No.

So, we move on to item 5, written statements under Standing Order 30C. This is quite an important one here. The European Grouping of Territorial Cooperation (EU Exit) Regulations 2019. The statement made by the Welsh Government states that

'The purpose of the amendment is to correct deficiencies in legislation arising from the UK leaving the European Union relating to participation in European Groupings of Territorial Cooperation.'

I'd perhaps go straight over to the legal advice on this. There are a number of matters that I do want to raise on it subsequently, but—.

While the Welsh Government statement correctly explains the effect of these regulations made by the UK Government in a devolved area, the statement does raise an important policy question. The question is why have certain functions been given to the Secretary of State and not the Welsh Ministers. For example, if a devolved Welsh authority applies to become a member of the European groupings of territorial co-operation, which is a group designed to promote cross-border co-operation, then even if the Welsh Ministers consent to the application, the Secretary of State can still reject the application made by the devolved Welsh authority. The draft report suggests seeking clarification on why the power to reject applications by devolved Welsh authorities was not given to the Welsh Ministers. 

Okay. Comments and observations?

I take it this could be defined as a loss of power. I take it Welsh Ministers can do this sort of thing at the moment—or not?

I believe it might be done at the EU level at the moment, and now it's coming back to a combination of Welsh Ministers and Secretary of State. 

So the answer could be that Wales isn't a state and therefore can't—

Can I set out my concerns on this? My concern is that there are a number of territorial and regional bodies that we participate in. We participate in them at the current time with our membership of the European Union. Many of them relate to territorial areas, geographic areas to do with trade, to do with fisheries, to do with agriculture, to do with transport and so on. Now, the concern that I have with this is that what this automatically assumes is that all these issues, all the representation in respect of these that we have at the moment, effectively go straight back to Westminster in the sense that, if a Welsh body wants to join one of these, well they can't join without our consent, but equally they can be blocked from joining at UK Government level. Now, it seems to me that that actually goes contrary to the underlying constitutional principle that we've discussed all the way through. So, it might be a body that involved local government. The WLGA might wish to join, the UK Government could block it, as indeed we could. The question is why it is that the Secretary of State would have that power to do that when effectively we might want to join inter-regional organisations in our own capacity as a National Assembly or a Welsh Government in an area that is a devolved matter. It just seems to me that there's a conflict there that we should be drawing attention to. So, that was the immediate thing that jumped out to me. Because I think that, in that context, it therefore in devolved areas undermines our devolved capabilities. Not so much our devolved powers, but our devolved capabilities in which to engage. So, that's my outline; are there perhaps any comments that you may have on that?

I think that's what I was trying to say, but obviously you outlined it far more elegantly, Chair, than I attempted to. But that's the sort of concern I have, yes. 

It seems to me the options would be probably to write as we did on the state aid issue to Westminster, but also to seek clarification from Welsh Government as well—whoever the appropriate Minister or First Minister is—for an explanation as to that analysis and interpretation.

And what representations they've made as well. 

Absolutely. Because the report as it is is basically saying that this is fine, and it is to make it all workable, et cetera, but it seems to me—why is it any more workable if you're actually providing an additional block?

It is the case with some EU bodies that the formal nomination for Welsh members does come from the UK Government. The Committee of the Regions is one, where, if I remember rightly, the nomination goes from Welsh Government to UK Government, and the UK Government then makes a formal nomination. But that's a matter of rubber stamping, in effect. Now, that was the case then, but I don't see why that should remain the case if the UK's not a member state. That's what I can't understand. There may be a reason for it, but they haven't explained it. 

That's actually my point—there doesn't seem to be a logic there as to why, in an area where you wish to pursue your devolved capabilities, there is a Westminster block on doing that in a post-Brexit environment. There may be sorts of agreements that are reached in respect of certain areas to do, for example, with issues around state aid or common frameworks, but there's certainly no clarity as to why that is the case here. So if we draft appropriate letters, both at Westminster level, as we did before, and also to Welsh Government, and then we'll report back.

Yes. Agreed.

Yes.

Okay. We'll move on, then, to item—. Sorry, was there anything you wish to add? No.

Item 5.2: The REACH etc. (Amendment etc.) (EU Exit) (No. 3) Regulations 2019. We've a statement there, and commentary. These are regulations that amend the REACH (amendment) regulations. It inserts a new transitional provision relating to applications for authorisations to use chemical substances of very high concern, which gives UK companies a window of opportunity to apply for authorisations after exit day to ensure the chemical industry and supply chain is not disrupted. Any issues on that? No comments or observations?

In which case, we move on to item 6, papers to note: a letter from the First Minister, 24 June 2019, in relation to his attendance at the British-Irish Council. Do you note that?

Noted.

Item 6.2: a letter from the Counsel General, 25 June 2019, in relation to the Senedd and Elections (Wales) Bill. This is a letter that we had circulated last week. Shall we defer that to private session, if there are any issues there?

Yes.

A letter from the Counsel General to the Solicitor General: we're invited to note the letter, which, again, was circulated last week. This is in relation to competence issues. So, refer that to private session?

Yes.

Under item 7, then, in accordance with Standing Order 17.42(vi), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree?

We move into private session, then.