National Assembly for Wales

I welcome Members to this week's 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 meeting in order to protect public health. In accordance with Standing Order 34.21, notice of the decision was included in the published agenda for this meeting. The meeting is being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual.

Aside from the procedural adaptation for conducting proceedings remotely, all other Standing Order requirements remain in place. We have full attendance at today's meeting. The usual housekeeping arrangements apply. Are there any declarations of interest? I see that there aren't any declarations of interest.

So, we'll move straight on, then, to item 2 and the Business Tenancies (Extension of Protection from Forfeiture etc.) (Wales) (Coronavirus) (No. 2) Regulations 2020. Now, section 82 of the Coronavirus Act 2020 ensures that re-entry or forfeiture for non-payment of rent may not be enforced in relation to all types of commercial tenants during the relevant period. These regulations extend the relevant period to 31 December 2020. I don't think there are any issues from the lawyers. Any comments from the Members? I don't see any.

So, we move on to item 2.2, which is the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 11) (Blaenau Gwent, Bridgend, Merthyr Tydfil and Newport etc.) Regulations 2020. You have all the relevant papers before you on this. These regulations were made and came into force on 22 September, and they include Blaenau Gwent, Bridgend, Merthyr Tydfil county boroughs and the city and county borough of Newport as local health protection areas that are subject to specific restrictions and requirements. These regulations are being debated in tomorrow's Plenary—that's the Plenary on 29 September. I don't think there are any issues from the lawyers on this. Any comments from the Members?

In which case, we move on to item 3. Now, the following sets of regulations all make amendments to the Health Protection (Coronavirus, International Travel) (Wales) Regulations 2020, which impose requirements on persons entering Wales after having been abroad. So, we have the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 9) Regulations 2020, And you have before you the report, the regulations, explanatory memorandum, the letter from the Trefnydd dated 8 September, and the written statement. These regulations were made on 8 September. They came into force on 9 September. Over to the lawyers, as I understand some merits points have been identified.

Only to note a breach of the 21-day rule.

Okay. I think we'll note that in respect of a number of these regulations as we proceed. Any comments from Members?

I don't see any, so we move on now to item 3.2, the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 10) Regulations 2020. You have all the relevant papers before you. These regulations were made on 11 September and came into force on 12 September, and, again, these relate to the listing of countries and the amendments that have been made to that in respect of international travel. I see that, again, a merits point has been identified in respect of the breach of the 21-day rule. Any comments or observations from Members?

In which case, we move on to item 3.3, which is the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 11) Regulations 2020. These were made on 18 September and came into force on 19 September. Lawyers have identified again the breach of the 21-day rule for the reasons that we previously discussed. Any comments from the Members? No comments.

So, we move on, then, to 3.4, which is the Planning Applications (Temporary Modifications and Disapplication) (No. 2) (Wales) (Coronavirus) Order 2020. Members have the relevant papers, including the letter from the Trefnydd, of 17 September. This Order amends the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 and the Developments of National Significance (Procedure) (Wales) Order 2016 to extend the period during which certain requirements are modified or disapplied. I'll go over to the lawyers to identify the merits points.

Yes. Two merits points, again simply noting a breach of the 21-day rule and that there's been no formal consultation on this Order.

Okay. David Melding. You need to unmute, David.

Yes, excuse me, Chair. Are we at the regulations at 3.4?

Yes, we are.

I presume this means that public buildings have to be open somehow for people to go and view planning applications of significance, and, obviously, at the minute there are great restrictions on many public buildings—those that are open at all. I just thought, well, we've had this crisis for six months, but to break the 21-day rule and to have no sort of idea about how accessible these applications are to the public who may want to scrutinise them is a bit weak, because quite significant developments, I presume, could occur, and the normal process of even having a poster up on the local lamp post, I don't know if that's happening. But there are all sorts of things that are used to engage the public to make them aware of significant developments, and I just thought it was a bit strange on this one. I can understand international travel and the data suddenly changes and you've got to respond quickly, but I would have thought they could have seen this one coming very, very clearly. 

That's a good point. Any other comments from Members? That is a matter we can actually take up with the Minister and also perhaps refer to the Chair of the relevant committee as well—that there's a policy issue there in terms of planning. Would that be an appropriate course of dealing with this? Yes. Okay, we'll do that, then.

Moving on, then, to affirmative resolution instruments, the Greenhouse Gas Emissions Trading Scheme Order 2020. You have all the papers there. This was the Order that we had an evidence session with the Minister on in our meeting on 14 September. It's an Order that establishes a new emissions trading scheme covering greenhouse gas emissions from power and heat generation, energy-intensive industries and aviation. The scheme is known as the UK emissions trading scheme, and it is the successor in the UK to the EU emissions trading system. This is over to you for any merits points, Gareth.

There is one technical point and one merits point, starting on pack page 82. The technical point notes that the Order is in English only and this is because it is a UK-wide Order laid before the four legislatures of the United Kingdom. The merits point just sets out a little more commentary given the importance of the Order. It also notes the evidence given by the Minister to the committee and the list of Welsh installations captured by the emissions trading scheme, which are set out in pack pages 189-194. And, with regard to EU exit, the report notes that this is a jointly agreed UK common framework that will commence at the end of the transition period on 1 January 2021.

Okay. Any comments or observations? No. 

In which case, we come on to a further two sets of regulations, which are set to be debated in tomorrow's Plenary—that's the 29 September Plenary. So, we go on to these two, which are item 3.6, the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No.10) (Rhondda Cynon Taf) Regulations 2020. Again, you see the various papers. These are regulations that came into force on 17 September. They are the tenth set of regulations that amend the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020. These regulations designate Rhondda Cynon Taf borough as a local health protection area that is subject to specific restrictions and requirements. Over to you, Gareth.

There are two merits points starting on pack page 206, noting again that this is another tightening of the restrictions and there's been no formal consultation, but the Welsh Government has taken steps to bring the changes to the attention of the public. And to note that we now have the Nos. 12, 13 and 14 amendments relating to Llanelli, Swansea and Cardiff, and that premises that sell alcohol for consumption on the premises can now stay open until 10.20 p.m.

Okay. Any comments or observations? If not, on to—sorry, Dai Lloyd. You're muted. You need to unmute.

Just briefly, it's just the point that we have explored about what constitutes a reasonable excuse in terms of what is covered by these regulations and what is not, because obviously we're not talking about going back to full lockdown, we're talking about more stringent limitations. But I'm sure that all of us are getting queries about what constitutes a reasonable excuse to do whatever it is. I know that that may well be defined as a policy issue, but it's also a legal issue, and where we could expand that debate from a public information point of view. Just a point.

Yes. Any other comments? Yes. I'll go to Carwyn first and then David Melding. Carwyn.

Thanks, Mick. The problem, of course, is that everybody wants to know what a reasonable excuse looks like and there are some incredibly unusual scenarios that people have to face. Unfortunately, in law, it's never possible to provide an exhaustive list. So, for example, if we look at criminal law and we look at reasonable self-defence, reasonableness depends on the circumstances. There's no list of—. For example, it wouldn't be reasonable to shoot somebody who punched you; that wouldn't be reasonable in most circumstances. However, if you defended yourself with a knife against somebody who came at you with a knife, that might be regarded as reasonable in the circumstances. So, it is quite tough. I think the difficulty is that where you have a particular scenario, getting guidance on that particular scenario is what's important. There can never be an exhaustive legal list, but I know, Members, we had a discussion earlier on today informally and there were some scenarios there that were quite difficult to foresee. So, I don't think you can actually lay down in legislation what every reasonable excuse might look like, but perhaps there might be some scope for saying, 'Well, is there some way in which further guidance might be obtained with regard to particular specific circumstances?'

David Melding.

Chair, I agree with Carwyn's comments there. I just wonder—in private session, we might talk a bit more about this—it would be helpful, I think, for us as well as the public, to have in guidance some reasonable scenarios set out, which then would either directly answer questions, or, more probably, would give an idea of what was reasonable in certain circumstances. But some of the situations that people are facing could be anticipated and are quite pressing. I've had one constituent who is 700 yards from a supermarket that's in the adjoining local authority and the nearest supermarket in their authority is seven miles away. Now, what is the reasonable thing to do? It's a very tough question. It seems to me that they've got to drive the seven miles to the supermarket in their local authority, but it's not surprising that some people are asking these types of questions.

That's a good point. I think we can take this in private session. I think everyone has identified the real difficulties with these scenarios, and we are all, I'm sure, every Assembly Member, being presented with circumstances that they would never in a thousand years have dreamt of being in, but of course that is the wide scale of different circumstances that affect people in their particular lives. And of course, a lot of this is dependent, actually, on the spirit of what the purpose to the restrictions are. So, we can take this up further, if Members are happy, when we go into private session later.

Moving on to item 3.7 now, the Health Protection (Coronavirus Restrictions) (Functions of Local Authorities etc.) (Wales) Regulations 2020. These are regulations that were made on 17 September. They came into force on the eighteenth. They provide local authorities across Wales with powers of direction to close individual premises, prohibit certain events or certain types of event from taking place, and restrict access to or close public outdoor places. So, these regulations revoke and replace the Health Protection (Coronavirus Restrictions) (Functions of Local Authorities etc.) (Wales) Regulations 2020 that we considered at last week's meeting. So, I go over to Gareth for the merits points.

Because these replace the regulations considered last week, the reporting points are more or less the same. However, there is one new merits point: the regulations came into force before they were laid before the Senedd, and in those circumstances, the Statutory Instruments Act 1946 requires the Welsh Government to notify the Llywydd, explaining why the regulations came into force before they were laid. We are not aware that the Welsh Government has made such an explanation yet.

Yes, well, we need to take this point and follow that through; that's okay. No other points on that.

In which case, we move on to item 4, instruments that raise issues to be reported to the Senedd under Standing Orders 21.2 or 21.3. We have the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 2) Regulations 2020. These are regulations that the committee considered on 3 August and we laid our report on 4 August, and Members are just invited to note the Welsh Government's response, which has been received. Any comments? No.

In which case, we move on to papers to note. We have the letter from the Minister for Housing and Local Government on the national development framework. It's the letter of 21 September. The Minister notes that she has laid the draft national development framework before the Senedd for a 60-day consideration period. Can I suggest that if there are any issues here, we discuss these in private session?

Item 5.2, we have a letter from the Minister for Finance and Trefnydd on the Coronavirus Act 2020 (Assured Tenancies and Assured Shorthold Tenancies, Extension of Notice Periods) (Amendment) (Wales) Regulations 2020. And, again, we have a letter of 21 September, and we're invited to note the letter, which responds to the concerns that we raised as a committee, following our earlier scrutiny of the regulations. I think if there are any issues there, we've all seen the letter, we can take this up in private session.

We now have item 5.3, correspondence with the Secretary of State for Wales on the United Kingdom Internal Market Bill. You'll see my letter of 18 September 2020 and the letter from the chair of the Committee for the Executive Office of the Northern Ireland Assembly, which I think are worth noting, because the points we raise have been equally taken up and adopted by the Northern Ireland Assembly. So, if there are any issues there, I suppose we can raise these in private session.

Item 5.4, a letter from the Chair of the Finance Committee on scrutiny of EU withdrawal arrangements. Again, just a letter of 24 September 2020 to note. Okay.

That takes us on to item 6. So, in accordance with Standing Order 17.42(vi) and (ix), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do the Members agree? I see that they do, and we move into private session.