National Assembly for Wales

Welcome, Members, to this virtual meeting of the Legislation, Justice and Constitution Committee. In accordance with Standing Order 34.19, I've determined that the public are excluded from the committee's meeting in order to protect public health. So, in accordance with Standing Order 34.21, notice of this decision was included in the agenda for this meeting, published last Thursday. This meeting, however, is being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual. So, aside from the procedural adaptation relating to conducting proceedings remotely, all other Standing Order requirements for committees remain in place. We have a full committee; there are no apologies today.

Just a couple of housekeeping arrangements: Members, ensure that mobile devices are switched to silent mode; Senedd Cymru operates through the medium of both the Welsh and English languages; interpretation is available during this morning's meeting; Members are reminded that the sound operator is controlling the microphones and, as such, there's no need to mute and unmute yourselves during the public meeting. Are there any declarations of interest? I can't see that there are any at all.

In which case, we move straight on to instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We have the Community Health Councils (Constitution, Membership and Procedures) (Wales) (Amendment) Regulations 2020. These are regulations that amend the Community Health Councils (Constitution, Membership and Procedures) (Wales) (Amendment) Regulations 2010. These regulations are being made in response to the suspension of the public appointments process in Wales due to the COVID-19 pandemic. Any comments from Suzy Davies? Dai? Carwyn? Any other comments or observations?

If not, we then move on to the next item, which is item 3, which is the Bathing Water (Amendment) (Wales) (Coronavirus) Regulations 2020. You have before you the report, the regulations and the explanatory memorandum, and there's also a letter from the Trefnydd, dated 14 May 2020. These regulations amend the Bathing Water Regulations 2013 in order to change the start date of the bathing season in Wales for the year 2020. This amendment is part of the Welsh Government's response to COVID-19. If I can go over to Rhiannon, I believe there are some comments from the lawyers, some merits points to be reported. Sorry. Rhiannon? I can't hear you. You need to unmute.

Yes. Can you hear me now?

Yes, we can hear you now.

There are two merits points, and these start on pack-page 2. The first merits point notes a breach of the 21-day rule. The amendment to the bathing water season start date needed to be made before 15 May to avoid Natural Resources Wales being in breach of their statutory bathing water sampling obligations, which they have been unable to complete before then, as a result of the COVID-19 emergency situation. More detail is provided in the letter from the Minister for Finance and Trefnydd to the Llywydd on pack-page 11.

The second merits point notes an issue with a lack of clarity in the Bathing Water Regulations 2013, which are being amended. The 2013 regulations are a composite instrument and so they apply to England and Wales. However, this amendment will only apply in relation to Wales, and this results in a situation where regulation 4 in the Wales regulations has a start date of 22 June for the Wales bathing season. But regulation 4 in the England regulations still states that the bathing season in England and Wales starts on 15 May. Now, this is not to say that there's an issue with the amendment itself in relation to the law in Wales, however it does mean there is a lack of clarity in the 2013 regulations, and this may lead to confusion for users of the legislation. Now, the draft report considers a change to the text as it applies to England would be within competence as its purpose is to clarify the law as it applies in Wales.

Okay, thank you, Rhiannon. I'll go now and see if there are any comments. Suzy. No. Dai Lloyd. No. Carwyn. Okay, so we note those comments and we note the report from the lawyers and the merits points there that have been identified.

We now move on to item 4, which is the Agricultural Wages (Wales) Order 2020. Again, you have the report and you also have the Welsh Government response. Now, we considered this on 4 May 2020 and we laid our report. A Government response was received on 15 May, which was circulated to Members. I think we had this outside the committee on the same day, so really just to formally note the Government response. Any—Suzy Davies. Suzy Davies—just a moment. I can't hear you, Suzy. Can you pull your microphone up? No, we can't hear Suzy. Can we sort out the technical problem? Suzy, can you try again? No, we've lost Suzy Davies. I can't hear Suzy Davies. Can anyone hear Suzy?

No.

No. Right, we'll just try and resolve that point before we move on.

How about that?

There we are. We can hear you now, Suzy.

Well, I hope it's worth it [Laughter.] Perhaps I should declare an interest on this one, as my husband is a farmer, although I don't think we have any agricultural workers at the moment. It's just a clarification of paragraph 2 of the Government's response, where it refers to accommodation of which both parties have benefit because the agricultural worker will be living on site. Was there reference to 'on site' in the original report and, in fact, the Order?

This is page 13 of the pack, I think, isn't it?

Page 16.

Fifteen, 16, yes.

I just wanted to confirm that, really, because I don't remember that coming up before.

Rhiannon.

I don't believe it says in the regulations themselves about living on site, no.

Okay, well, that needs to be raised again, I would say, then, because if that's the reason for the distinction between the two deductions, that needs to be clearer in the regulations themselves.

In the Order. My apologies, I should have said the Order.

Okay, if we can seek clarification on that and if we can have a note back when we have the next meeting, just on that point, if that's possible.

Thank you.

Okay. We now move on to—. Is there any other comment, sorry, on that Order? Okay.

We'll now move on to item 4.2, the Health Protection (Coronavirus Restrictions) (Wales) (Amendment) (No. 2) Regulations 2020. Now, we considered this instrument on 11 May and laid the report on the same day, and Members will know the Plenary debate on the regulations took place on 20 May—I think quite a lengthy debate on those particular items. The response was received after the committee's report was laid. For that reason, because of the scheduled Plenary debate, the response was circulated to Members outside of the committee meeting on 18 May. Members are invited to formally note the Government response. Any comments on that? Can I invite Rhiannon? Is there anything to report on that?

Yes—[Inaudible.]

Sorry, we've lost you again, Rhiannon. Go on, then.

Just to go briefly through the response, the draft report contained two merits points, and the first merits point related to human rights, noting that the explanatory memorandum only made general reference to the European convention on human rights. Now, the Government response sets out the convention rights that it considers are engaged or may be engaged and which provisions in the regulations engage them. It outlines in more detail how it considers the interference with each of those rights is justified.

The second merits point related to consistency in approach when citing enabling powers, where you have a main enabling power and then a section containing examples of how the main enabling power can be used. The Health Protection (Coronavirus, Business Closure) (Wales) Regulations 2020 and the Health Protection (Coronavirus: Closure of Leisure Businesses, Footpaths and Access Land) (Wales) Regulations 2020, which are now revoked, cited both, while these regulations only site the main enabling power, and the draft report asks for an explanation on the difference in approaches. The Government response explains that the regulations that are now revoked were made in extreme haste and followed the citation powers used in the England business closure regulations, and that in the days after making the revoked regulations, the Welsh Government considered the enabling powers in more detail, and decided it was preferable to cite only the main enabling powers, which is what they have done going forward.

Thank you for that. Also, just to advise Members that, of course, the health Minister will be giving evidence about the making of the coronavirus regulations at our next meeting next Monday on 8 June. Are there any comments or observations on that? Suzy Davies.

Just a question, actually, which I hope Rhiannon can help with. On pack-page 20, 1.3, about three quarters of the way down, the Government refers to striking a balance, and therefore 'a proportionate response' to this issue 'under A1P1'. I don't know what that is. So, it's 1.3.

That's article 1 of the first protocol. It's to do with protection of property, so it's relating to the requirement that businesses have to impose, or try and take all reasonable measures to have, a 2m distance—businesses that are open. So, it's controlling their use of their property.

That's fine, that's all I want. I just didn't know what it was. Thanks.

Okay. Dai Lloyd.

No, fine.

Carwyn Jones.

Fine.

Okay. So, just looking at some notes I'd written about this, I don't know if there's anything else you wanted to raise. Really just some comments—obviously there'll be quite a number of points that we can raise when we have the health Minister in next week, and, again, some of the points that were raised during the debate in the Plenary with regard to the evidential base for the regulations, and obviously the importance of the clarification of the specific human rights issues, the articles that were being suspended in respect of the regulations.

That moves us on, then, to item 5, written statements under Standing Order 30C. We have Regulation (EC) No 1370/2007 (Public Service Obligations in Transport) (Amendment) (EU Exit) Regulations 2020, and you have before you there the written statement, commentary, the letter from the Counsel General and the letter to the Counsel General.

So, Members will recall that I wrote to the Counsel General on 1 May after it came to our attention that the Welsh Government had consented to the making of the public service obligations in transport regulations by the UK Government, but the formal notification under the Standing Order 30C process had not yet been received. The relevant statement before us today was laid before the Senedd on 12 May and the Counsel General responded to my letter last Friday on 29 May. The letter has been shared with Members in the supplementary pack. Regulation 1370/2007 is a directly applicable EU regulation that sets out the conditions under which competent authorities may award public service obligation contracts to bus operators and to train operating companies outside the general procurement and state aid rules applicable under EU domestic law. The EU regulations contain a number of provisions that would be deficient when the EU regulations become retained EU law, so the purpose of these regulations is to correct those deficiencies.

Are there any comments? If I go over to Rhiannon first of all—nothing from the lawyers. Suzy Davies.

No.

Dai Lloyd.

And Carwyn Jones.

No.

Okay, so we then move on.

Papers to note—a letter from the Counsel General with regard to the Joint Ministerial Committee (EU Negotiations). This is a letter dated 21 May. Now, we're invited to note the letter from the Counsel General, which relates to his attendance at a meeting of the Joint Ministerial Committee on EU negotiations. The letter has been sent in accordance with the inter-institutional relations agreement. Now, the meeting has taken place. I'll just invite—. First of all, were there any comments or observations on this letter, Suzy Davies, Dai Lloyd, or Carwyn Jones?

No.

No, not particularly. 

The meeting has taken place, so we're a little bit behind the events and presumably—I'll just refer to you, perhaps, Gareth, now—there will be a report on the actual content of that particular meeting. 

You should receive an update from the Minister about the outcome of the meeting. 

Okay. Now, the letter from the Counsel General of 21 May, and we have the letter of 12 May, don't we, from the Counsel General—is that the letter we're referring to? It's just that I see it says 21 May, or 12 May. I'm looking at pack page 29. Can I just check that for a moment, please?

Chair, I think it's pack page 28. I think the letter is from 20 May. 

Yes, okay. So, there are no other comments or observations on that.

In which case, in accordance with Standing Order 17.42(vi) now, I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree that we can now move into private session?

Okay. So, we now go into private session. Thank you.