National Assembly for Wales

I welcome Members to this week's virtual meeting of the Legislation, Justice and Constitution Committee, and, in accordance with Standing Order 34.19, I have determined that the public are excluded from the meeting in order to protect public health. In accordance with Standing Order 34.21, notice of this decision was included in the published agenda for this meeting. This 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 meetings remotely, all other Standing Order requirements remain in place. We have a full committee in attendance today. Normal housekeeping arrangements apply. Are there are any declarations of interest? I see one declaration from David Melding. 

I'm Chair of the ministerial advisory group on outcomes for children, which is particularly relevant at the end of item 2.1. 

Well, thank you for that. I don't see any others. 

We move straight on to the business, and the first item is item 2.1: the Adoption and Fostering (Wales) (Miscellaneous Amendments) (Coronavirus) Regulations 2020. These are regulations that make amendments to the Adoption Agencies (Wales) Regulations 2005 and the Care Planning, Placement and Case Review (Wales) Regulations 2015 to relax and amend requirements imposed under them. If I can defer to the lawyers now for some merits points. Gareth.

Thank you, Chair. 

Sorry—beg your pardon. 

No problem. There are four merits points; they're starting on pack page 2. This instrument gives legislative effect to temporary easements that were approved at the start of the pandemic, and the explanatory memorandum says that a children's rights impact assessment was produced at that time. However, this doesn't seem to be publicly available, and so the first merits point asks for it to be published as soon as practicable, and it also considers that it would be appropriate to actually carry out another assessment specifically in relation to these regulations to establish that there are still no negative impacts on children and young people. The second and third merits points note that a four-week consultation on these regulations was undertaken, and asks the Government to publish these results and clarify how they were considered when developing the policy underlying these regulations. And the fourth merits point notes that a regulatory impact assessment has not been carried out and the reasons why, and a Government response has been requested to the first three merits points. 

Okay. So we note that. Any comments or observations? David Melding.

I think the report is excellent and those are really salient points. They are inter-related as well; I would say that if the consultation exercise has raised some issues, then there would be even more need to have another human rights or children's rights impact assessment. I just think that we should strongly concur with the report, as drafted, that those points are really very important. Why the impact assessment has not been published is a bit of a mystery. I suspect it's just an oversight, but these relate to fostering arrangements and are quite central to a young person's life in this situation.  

Absolutely. Any other comments or observations? Okay, so we note that report, those particular comments, and obviously await the further response from the Government on that. 

We move on to item 2.2: the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 14) Regulations 2020, and, again, we have all the relevant papers in front of us. These are the fourteenth set of regulations that amend the international travel regulations of 2020, which impose requirements on persons entering Wales after having been abroad. The regulations were made on 9 October and came into force on 10 October. Any comments from the lawyers?  

Yes. Just two merits points, starting on pack page 17, noting a breach of the 21-day rule and the lack of consultation due to the need for an urgent public health response. A Government response has not been requested on this one.

We note that. Any comments or observations? I don't see any.

So, we move on to item 2.3, which is the Representation of the People (Election Expenses Exclusion) (Wales) (Amendment) Order 2020. This Order makes amendments to three items of election-related legislation. The amendments have the effect of excluding the cost incurred by or attributable to the translation of anything from English to Welsh or vice versa, from both the candidates expenses and a political party's campaign expenditure limits. So, this is in accordance with the principle that Welsh should be treated no less favourably than English, as provided by the Welsh Language Act 1993. And, again, to the lawyers, who have I think one merits point.

Yes. Just before that, just to add in terms of what the Order does, as well as excluding the translation costs from a candidate's expenses and a political party's campaign expenditure, it also excludes cost incurred by or on behalf of a disabled candidate who requires specifically adapted measures or reasonable adjustments to participate in campaigning on a level basis with a non-disabled candidate.

And then, in terms of the merits point, the draft report notes one point on pack page 31, and that notes the range of informal and formal consultation by the Welsh Government and, in particular, their approach in relation to consultation with the Electoral Commission, most of whose comments have been incorporated into the drafting of this Order.

Okay. Any comments or observations on that? I think the disability point is obviously an important one to note. Okay, thank you for that report.

Now, on to the next set of regulations, the made-affirmative resolution instruments. I think the next two items, which are down as 2.4 and 2.5, will be discussed at tomorrow's Plenary, jointly.

We have the Health Protection (Coronavirus Restrictions) (Functions of Local Authorities etc.) (Wales) (Amendment) Regulations 2020. These are regulations that amend the Health Protection (Coronavirus Restriction) (Functions of Local Authorities) (Wales) Regulations 2020. They expand the powers of local authorities to issue public places directions so that the directions may prohibit or regulate specified activities in a public place, including the consumption of alcohol. The regulations were made on 9 October. They came into force on 12 October. I think there are two merits points.

Yes, there two merits points, starting on pack page 45. The first point notes that the Welsh Government—

Could you just hold on a moment? Just let me get to—. Sorry, I'm looking through my papers on my iPad. I just want to get to—. Okay. Sorry, I apologise. Please carry on.

No problem. So, the first point notes the Welsh Government's justification for any interference with human rights. And the second point notes that there has been no formal consultation, but the Welsh Government has taken steps to bring the changes to the attention of the public.

Okay, thank you for that. Any comments or observations? 

We're on to the 2.5 then, the other set of regulations, which are regulations that designate an area comprising eight electoral wards in the Bangor area of Gwynedd as a local health protection area that is subject to specific restrictions and requirements. So, these are the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 18) (Bangor) Regulations 2020. They were made on 9 October and came into force on 10 October. They are the eighteenth set of regulations that amend the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020. I defer now to the lawyers for comments.

There's one technical point on these and five merits points, which start on pack page 61. We have had the Government response, and that's actually on page 1 of the supplementary pack. So, the technical point raises potential confusion around the use of the name 'Menai' when inserted into the principal regulations, because it might not be clear whether the principal regulations are referring to Menai, Bangor, or Menai, Caernarfon. And the Government response accepts that point and has made the appropriate amendment in the No. 19 regulations.

The first merits point notes the Welsh Government's justification for any potential interference with human rights and it notes an error in the description of article 11 of the European convention on human rights, which the Government have confirmed will be corrected.

The second merits point notes that there's been no formal consultation but that the Welsh Government has taken steps to bring the changes to the attention of the public.

The third merits point notes that there's not been an equality impact assessment for these regulations and the Government response explains that it has not been possible to produce one because the regulations have been made to respond to the public health emergency but that an integrated impact assessment on social gatherings will be published in due course.

The fourth merits point asks the Welsh Government to set out the evidence that showed that the eight electoral wards in the Bangor area of Gwynedd should go into local lockdown and also evidence as to why there was no time for the Senedd to approve a draft of the regulations in advance. Now, the Government response, which is towards the bottom of the supplementary pack page 1, provides the incidence rates for Bangor and the wider county and then it goes on to explain that the incident management team's biggest concern was student communities in Bangor and also provides the number of cases linked with the university.

And then, finally, the fifth merits point asked for details of the evidence for bringing the regulations into force before they were laid before the Senedd. The Government considers that the increase in cases described in the response justifies the need for the regulations to come into force as quickly as possible.

Thank you for that report. Obviously, we welcome the greater detail that's obviously been provided by Government. Any comments or observations? Dai Lloyd.

Well, just to emphasise, No. 1, excellent report, but points that we have raised previously in this committee last week and the week before from a scrutiny point of view, and that's why we consider as a committee that we need to know that evidence and before regulations are enacted. I'm sure it shouldn't be beyond the wit of people to ensure that that happens. Now, I know that's a point we've made before, it's highlighted again in this report, but I think it requires saying again.

Okay. That point's noted and so on. Gareth, is there anything on that that you wanted to add or—? No, okay.

We then move on to item 3: the Smoke-free Premises and Vehicles (Wales) Regulations 2020. We have the report and also the Welsh Government's response before us. We considered these regulations on 12 October and we laid our report on the same day. So, today, we're just invited to note the Welsh Government's response, which has been received. The Plenary debate on this instrument will be tomorrow, I think. I think that's right, isn't it? We'll obviously be speaking on that tomorrow. Any comments or observations? No.

Yes.

Sorry, I beg your pardon—please.

I was just going to highlight that, in relation to the first merits point, that did note a lack of consideration in the explanatory memorandum to the potential impact of the regulations on human rights. The Government's response confirms that a thorough assessment has taken place of the impact of these regulations on human rights and the rights of the child and the explanatory memorandum has been updated to confirm this. 

Thank you for that. Again, that's important.

We move on now to the next item, which is 3.2: the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 16) (Conwy, Denbighshire, Flintshire and Wrexham) Regulations 2020. We considered these regulations on 12 October and, again, we laid our report that same day. It's really a question of noting the Government response. I'll just go over to the lawyers for comments.

So, this is, again, in relation to the committee's requesting evidence on the local lockdown in these areas. If the committee can turn to pack page 88, that sets out the Government's response to the committee's request of setting out the evidence it used to make significant changes and the reasons why the restrictions were made before being laid before the Senedd. So, the Government response: you'll see that on pack page 88 there's a table that the Government has set out, and that summarises cases and testing for the period 20 to 27—

Can I just check the pack page, because I think mine are numbered slightly different? I've got the table in front of me now. I've actually got it as pack page 88. Sorry, that's right. For some reason, it's 93 on my iPad version. Okay. Sorry, please carry on.

So, you can see from that table that the Government has set out the cases by local authority area, the number of cases in each area, what percentage this is of the cases in Wales, and then the seven-day incidence rate. And then the response goes on to explain that these restrictions were introduced at the request of the Betsi Cadwaladr health board incident management team, and it refers to the data in this table to justify the need for the regulations to come into force as quickly as possible and to explain that putting other areas into local lockdown would have been disproportionate.

Okay. Any comments or observations on that? David Melding. Can we unmute? That's it.

I thought it was helpful to have some hard data. But I think we did mention that some sort of assessment of hospitalisation and intensive treatment unit beds would be valuable as well, because a lot of the justifications for lockdowns is very much in relation to how you manage the more acute infections, and I looked through these things fairly quickly, but I don't think I saw that then, unless I missed it. 

Any other comments or observations? No. We'll note that particular point, and it's a particularly valid point, and I think increasingly, as we press for the evidential base as these regulations come through, being incredibly important. 

Okay, then, we move on to the next item, item 3.3, which is the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Wales) Regulations 2020. We considered these regulations on 12 October and we laid a report on that day, so today we're invited to note the Welsh Government's response, which was received last Friday and is in the supplementary pack of papers before us. This contains, obviously, the Government's response to the human rights issues. If I just go to the lawyers first of all.

So, the committee's report raised concerns firstly around the breach of the 21-day rule, and the Government response explains that this was due to the impact of the pandemic on the Welsh Government's capacity for making legislation, and because they were responding to a rapidly changing set of circumstances that needed to be taken into account before these regulations could be laid. And then, in terms of the human rights, the response considers that the regulations are compatible with the European convention on human rights but doesn't expand on why they consider this. And the response also explains the steps that the Welsh Government took to communicate the changes to landlords and other stakeholders following the announcement by the Minister for Housing and Local Government of these changes in Plenary on 15 September.

Okay, thank you for that. I'm just quickly going through my supplementary pack. Any comments or observations on that? Obviously, the point is that the letter doesn't say a great deal about it. It makes the point, but as the lawyers have identified, we can pursue that point, because it's still open, so if we can just chase that for further details on that. And part of the reason is that we may well have a view as to what the likely response is going to be, but it's important that, when these come forward, it is actually dealt with and we do have it set out. I think it raises the point about concerns that we previously had in terms of the normalisation of, I suppose, sidestepping to some extent the extent of scrutiny that we would all have preferred in other circumstances.

If there are no other comments or observations, we move on to item 4, then, which is the Reciprocal and Cross-Border Healthcare (Amendment etc) (EU Exit) Regulations 2020, and we have before us the statutory instrument consent memorandum, a letter from the Minister, the explanatory memorandum and the written statement. This statutory instrument consent memorandum relates to the reciprocal and cross-border healthcare regulations 2020. They were laid before the UK Parliament on 30 September 2020. The consent memorandum was laid by the Welsh Government on 5 October. The objective of the regulations is to amend three reciprocal healthcare EU exit statutory instruments, which were made on an England-and-Wales basis, to reflect certain healthcare entitlements in the withdrawal agreement, the EEA and the EFTA separation agreement and the Swiss citizens' rights agreement and to make technical changes. I think we can we note that the Minister has stated he's not minded to table a motion for debate. Now, this is relevant to us because we've previously raised this particular issue, in that our understanding was that the Ministers were now going to raise these and would table motions for debate. So, I'd appreciate any comments or observations from the Members, but if I could just go over to lawyers first for any points they wish to raise. No, there aren't any, so observations, please. Dai Lloyd.

Yes, well, that is the point, isn't it, about SICMs? I still think it's unsatisfactory when Government Ministers here will not put a motion forward for debate, and there's an expectation that ordinary, so-called backbench Members will do so then to facilitate that debate. I think it's wholly disproportionate and we note in the past how much work that has endangered both on the individual Member in Suzy Davies's case, I think, at the time, and, obviously the clerks and researchers and legal assistants we have in this committee. So, it's wholly disproportionate expecting other non-Government Members to table such a motion. Because the issue is important in terms of SICMs and I think we should be having that debate, otherwise we just allow UK Ministers just to carry on doing what they're doing in devolved areas without any say-so whatsoever. 

Any other comments or observations? I agree with what Dai Lloyd says there, and I think we should write fairly firmly and say that we're not satisfied with this situation and that our understanding was that Government was now going to do it. They've not given a specific reason as to why not, just that they're not minded to do it. So, if we can take that up and we raise in a fairly firm way that this committee would prefer that these matters are there, for all the reasons that we've raised in the past. Is everyone happy if we adopt that approach? Okay, let's move on, then, to item 5. Sorry, David Melding, please.

The reporting doesn't need to be heavy, and I think, sometimes, they hide behind this trope that it seems too much of an effort. They've got to make a judgment whether they're going to allow this mechanism or not, and all we need to hear is why they're allowing it.

Yes. Anyone else? Carwyn, did you want to—? No. Listen, I agree with that. I do sometimes find it a little bit incomprehensible as to why that is the case, and I think you made the point very succinctly there, and I think the Clerk has got that, so we will take that up and we'll see what response we get on that. And, if need be, we may need to discuss it further. 

We move on to item 5, then, which is the European Union (Withdrawal) Act and Common Frameworks. We have the written statement, the report and the frameworks analysis. As Members know, the withdrawal Act 2018 requires the UK Government to report periodically to the UK Parliament on matters relating to common frameworks and the use of section 12—these are the freezing powers to temporarily maintain existing EU law limits on devolved competence. The Welsh Government's written statement on 9 October notified Senedd Members of the eighth such report, and that covers the period from 26 March 2020 to 25 June 2020. The report notes that the UK Government has not sought to bring forward any section 12 regulations to date, and the Welsh Government's written statement also highlights that whilst the report outlines the continuing work on common frameworks, it does not reflect the impact of the United Kingdom Internal Market Bill, and we will, of course, be debating that, I think, in Plenary in a couple of weeks' time, but, obviously, we'll be discussing the internal market Bill later on. Any comments from lawyers? No. Any observations or comments from the Members? I think the point is well made there on the internal market Bill, which impacts on just about everything.

We move straight on to, now, item 6, which is written statements under Standing Order 30C. We have the Agriculture (Payments) (Amendments etc.) (EU Exit) Regulations 2020. This is the Welsh Government—. It starts at pack page 192. The Welsh Government statement gives notification it has consented to the making of the Agriculture (Payments) (Amendments etc.) (EU Exit) Regulations 2020, and the statement also gives the Government's reasons for that consent. Any comments from the lawyers?

Yes. These UK Government regulations create functions that can be exercised by both the Welsh Ministers and UK Ministers in devolved areas, and, as this committee has noted before, the Senedd does not have powers to modify or remove such concurrent functions so far as they are exercisable by UK Ministers without UK Government consent. And the Welsh Government mentions that it is still in discussions with the UK Government around the making of the section 109 Order to address this impact on the Senedd's powers.

Okay, thank you for that. Any comments or observations? Okay, so we note that.

We move on to, now, item 6.2, the Common Organisation of the Markets in Agricultural Products (Producer Organisations and Wine) (Amendment etc.) (EU Exit) Regulations 2020. We have the written statement and the commentary in front of us. The Welsh Government's statement gives notification of the making of these regulations and notes that there is disagreement between the Welsh Government and the UK Government as to whether consent is required. The statement also notes that Welsh Ministers do not plan to grant unilateral consent for this statutory instrument. I think the Senedd lawyers have drawn attention to a number of matters in the commentary document, which we have in front of us, which include a lack of clarity regarding the specific legislative powers of the Senedd or Executive powers of Welsh Ministers affected by the regulations. If I could just ask the lawyers to comment.

Yes. The main issue to note with these is that the Welsh Government did not consent to the UK Government making these regulations, which stems from the disagreement between the Welsh Government and the UK Government about whether the common agricultural policy is devolved. The UK Government doesn't believe it is and so made these regulations that apply in Wales without seeking the consent of the Welsh Government. On pack page 202, the Welsh Government's statement says that the Welsh Government has written to the UK Government saying that it is not appropriate for UK Government Ministers to take unilateral decisions on matters that have a direct effect upon areas of devolved competence. 

Thank you for that. I'm just quickly looking at the document itself. Okay, any comments or observations on that? Okay, we note that disagreement and wait to see the outcome of that. 

We now move on to item 6.3, the Food (Amendment) (EU Exit) Regulations 2020. This starts at pack page 206. The Welsh Government's statement gives notification it has consented to the making of the Food (Amendment) (EU Exit) Regulations 2020. These regulations implement the Ireland-Northern Ireland protocol in relation to food law, and, obviously, the statement has within it the reasons given for that consent. Lawyers, any comments?

Yes, just following up on that point that these regulations will ensure that relevant EU food law applies in Northern Ireland at the end of the implementation period in accordance with the protocol.

Okay. That's fairly straightforward. Any comments or observations? I don't see any.

So, we then move on to papers to note. We have the letter from the Secretary of State for Business, Energy and Industrial Strategy and the Secretary of State for Wales with regard to the UK internal market Bill. It starts at pack page 210—if you can just give me a moment. So, you have the letter of 12 October. It's a response to our letter of 7 August on the then internal market White Paper. Unless there are any specific issues now, we can defer this to private session. Is that agreed? Okay.

So, we move on, then, to item 7.2. It's a letter from the Counsel General regarding breaches of the 21-day rule and other matters concerning COVID-related legislation. We have the letter of 12 October. So, we're invited to note the letter from the Counsel General, which responds to the concerns that we have raised as a committee with regard to those 21-day rule breaches and the clarity and accessibility of law issue made by Welsh Ministers relating to coronavirus. Unless there are any issues to raise now, I suggest we look at that in private session. 

If that's agreed, then we can move on to item 7.3, which is a letter from the Deputy Minister and Chief Whip, which is with regard to the legislative consent memorandum on the domestic abuse Bill. So, we've had the letter from the Deputy Minister and Chief Whip, which explains the progress of the domestic abuse Bill through the House of Lords, which is being delayed. I think Members will remember that there was a very short period of time that we had for responses on this and I think the matter has been deferred or delayed in the House of Lords. Can I just go over to the lawyers for comments? Any issues there? No. The letter notes that Plenary debate in respect of the Welsh Government's LCM has been postponed to 10 November 2020. So, are there any comments or observations? If not, we can discuss in private session.

We move on, then, to item 8. 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 Members agree that we should go into private session? I can see there is agreement, so we now move into private session.