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 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 proceedings remotely, all other Standing Order requirements remain in place. We have a full committee attending today. The usual housekeeping arrangements apply. Are there any declarations of interest? I don't see any declarations of interest.

So, we move straight on to the agenda. We're on to item 2, instruments previously considered for sifting and we shall now subject to scrutiny under Standing Order 21.2 and 21.3. We have two sets of regulations that have previously been laid before this Senedd for sifting in accordance with paragraph 4 of Schedule 7 to the European Union (Withdrawal) Act 2018, and the committee agreed that the negative procedure was the appropriate procedure for the regulations. So, we have the Food and Rural Affairs (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020. Members have before them the report, the regulations, and an explanatory memorandum.

These regulations make amendments to subordinate legislation that applies in relation to Wales in the areas of food and rural affairs. The amendments are being made in order to address failures of retained EU law to operate effectively and other deficiencies arising from the United Kingdom's withdrawal from the European Union. The regulations also make amendments to reflect the Ireland/Northern Ireland protocol and to correct transitional provision. Any comments from the lawyers on this? I see there are none. Any comments from the Members? No. 

In which case, we move on to item 2.2, which is the Environmental Assessments and Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020. Again, Members have the relevant papers. These regulations make amendments to two statutory instruments in the areas of environmental impact assessment and town and country planning. The amendments are made in order to address failures of retained EU law to operate effectively as a result of the withdrawal from the European Union. Any comments from the lawyers? Any comments or observations from Members on this? No, I see there are none.

So, we move on to item 3. We move on to the Government of Maintained Schools (Wales) (Amendment) Regulations 2020. These regulations make amendments to the Government of Maintained Schools (Wales) Regulations 2005. The regulations remove the provision disqualifying a person from holding or continuing office as a governor when he or she is liable to be detained under the Mental Health Act 1983. They also provide for governing bodies to conduct their meetings by remote access as well as face to face and to make electronic records of their meetings and decisions. Any comments from the lawyers? I don't see any. Any comments or observations from the Members? No. Thank you for that.

So, we move on to item 3.2, the Federation of Maintained Schools (Wales) (Amendment) Regulations 2020. These amend the 2014 regulations, and, as with the previous regulations, these regulations provide that meetings of governing bodies and of governing body committees may be held by remote access if requisite conditions are met. The regulations also remove the provision disqualifying a person from holding office as a governor or continuing in such office when he or she is liable to be detained under the Mental Health Act 1983. Any comments from the lawyers? Any observations, comments, from the Members? I don't see any.

In which case, we move on to item 3.3, which is the Welshpool Church in Wales Primary School (Change to School Session Times) Order 2020. This is an order that disapplies requirements in the Changing of School Session Times (Wales) Regulations 2009 to the governing body of Welshpool Church in Wales Primary School, and this allows the governing body to make alterations to when the school sessions start and end, including when the school day starts and ends, at any time in the school year, without having to wait for the start of a school term or academic year or give a minimum period of notice. Article 3 specifies that the Order shall have effect until 31 August 2021. Any comments from the lawyers? I don't see any. Any comments, observations, from Members? No. Thank you for that.

We move on to item 4 now, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. We have the Official Controls (Plant Health and Genetically Modified Organisms) (Wales) (Amendment) (No. 2) Regulations of 2020. Members have before them the report, the regulations and the explanatory memorandum. These regulations provide for rules on penalties in relation to infringements of EU regulations to ensure the application of food and feed law rules on animal health and welfare, plant health and plant protection products. The regulations do so by making provision for civil sanctions that will sit alongside existing criminal sanctions. The explanatory memorandum notes that section 2(2) of the European Communities Act of 1972 offers a choice between negative and affirmative procedures for these regulations. The negative procedure is used in this case, as this instrument amends regulations that were subject to negative procedure. I think there are some merits points to be reported. Gareth.

Diolch, yes. There is one reporting point, which I think may need amending. These regulations say that civil sanctions are paid into the 'Consolidated Fund', capital 'C', capital 'F'. I originally thought this was the Welsh consolidated fund, but now I think it is actually the UK consolidated fund. If Members are content, we could amend the report to ask the Welsh Government to confirm whether payments are made to the UK consolidated fund, not the Welsh consolidated fund, and, if that is the case, why are payments not paid into the Welsh consolidated fund.

Okay, we can have that point clarified. That seems to make sense. Any comments, observations, from the Members? Okay, we'll proceed in that way, then.

On to item 4.2, the Education (Student Finance) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations of 2020. Again, Members have the relevant papers in front of them. These regulations revoke and replace the Education (Student Finance) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations of 2019, and the Education (Student Support) (Postgraduate Master's Degrees) (Wales) (Amendment) (EU Exit) Regulations of 2019. The purpose of the regulations is to ensure that existing student finance policy is continued for the academic year 2021 and is not adversely affected by the end of the EU exit transition period. Again, I think some merits points have been identified. Gareth.

There is one merits point, which notes that, despite these regulations being made to deal with issues arising from exiting the EU, the regulations are made using powers under education Acts rather than under the EU withdrawal Act 2018.

Okay. Any comments or observations from Members? I don't see any, so we move on to item 4.3, which is the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 21) Regulations 2020. We have the report, the regulations and the explanatory memorandum. We also have a letter from the Trefnydd of 27 November 2020, and of course the written statement of 26 November 2020.

So, this is the twenty-first set of regulations to make amendments to the international travel regulations, which impose requirements on persons entering Wales after having been abroad. The regulations were made on 27 November and came into force at 4 a.m. on 28 November. Reporting points, Gareth?

There is one technical point, which notes a minor cross-reference error in the Welsh text, and there are three familiar merits points around breach of the 21-day rule, justification for any interference with human rights, and lack of formal consultation.

Okay. Any comments or observations from Members? No, I don't see any on that. So, we move on to the affirmative resolution instruments, and we have the Food and Feed Hygiene and Safety (Miscellaneous Amendments and Saving Provision) (Wales) (EU Exit) Regulations 2020. These regulations make amendments to subordinate legislation that apply in relation to Wales in the field of food and feed safety and hygiene. The amendments are made in order to address failures of retained EU law to operate effectively and other deficiencies arising from the UK's withdrawal from the EU, and also to reflect the Ireland/Northern Ireland protocol. There has been a merits point identified. Gareth. 

Yes, one merits point, which notes that EU law requires wide consultation in areas of food law, and that wide consultation will continue as a matter of domestic law at the end of the transition period. 

Okay. Any comments, observations? I don't see any, so I move on to item 4.5, which is the Senedd Cymru (Representation of the People) (Amendment) Order 2020. Again, Members have the report, regulations and the explanatory memorandum. The National Assembly for Wales (Representation of the People) Order 2007 sets out detailed rules for the conduct of elections to Senedd Cymru. The Order amends the 2007 Order to reflect policy and legislative changes that have taken place since the 2016 Senedd general election, in preparation for the 2021 Senedd general election. In terms of merits points, over to you, Gareth. 

There are four technical points that raise minor drafting errors, and one inconsistency between the Welsh and the English texts. The first merits point asks the Welsh Government to clarify its approach to changing the English and the Welsh forms in the original 2007 Order. The second merits point notes the Welsh Government has not carried out a specific regulatory impact assessment for this Order, because this Order is based on policies that were considered in detail as part of scrutiny of the Senedd and Elections (Wales) Bill and the Local Government and Elections (Wales) Bill. And in light of the technical reporting points, the Welsh Government has said it will withdraw the Order and lay a revised Order before the Senedd. 

Okay, thank you for that. Any comments, observations, from Members? I don't see any. 

In which case, we move on, then, to item 5, instruments that raise no reporting issues under Standing Order 21.2 or 21.3, but have implications as a result of the UK exiting the EU. We have at item 5.1 the Town and Country Planning (General Permitted Development) (Amendment) (No. 3) (Wales) Order 2020. The Order makes amendments to the Town and Country Planning (General Permitted Development) Order 1995. I will go over to—. I think there are some issues on this, so it's over to you, Gareth. 

Only to note that this Order implements EU law, and will therefore form part of retained EU law after the end of the transition period on 31 December. 

Okay. Any other points? Any observations or comments from Members? No. 

In which case, we move on to item 6, which is the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 20) Regulations 2020. We have the report and the Welsh Government response. The committee considered this instrument at our meeting on 30 November. We laid our report that same day. The Welsh Government's response to the reporting points in the committee's report has now been received. Members should have that and commented on it. Are there any comments, Gareth? 

Yes. So, the Welsh Government has addressed two of the issues raised by committee. As regards a third issue, which is whether the regulations broaden the category of persons not required to isolate, the explanatory memorandum said that the exemptions were broadened to cover the dependents of Crown servants and Government contractors. In its response to the committee's report, the Government now says that the regulations 'may' cover dependents, so there seems to have been a slight shift there from the Welsh Government. 

Okay, thank you for that. Any comments or observations from Members? Okay, I don't see any. 

In which case, we move on to the next item, which is written statements under Standing Order 30C. We have the Seeds (Amendment etc.) (EU Exit) Regulations 2020, and we have the written statement and commentary. The Welsh Government's statement gives notification that it has consented to the making of these regulations. The statement notes that consent was given for reasons of efficiency and expediency, and due to the technical nature of the amendments. The statement also notes that the regulations exercise the power in section 8C(1) of the European Union (Withdrawal) Act 2018 to implement the Ireland/Northern Ireland protocol. Any comments from lawyers? Any comments or observations from Members? Okay. 

In which case, we move on to item 8. We have papers to note. We have the letter from the Minister for Housing and Local Government of 27 November on the Representation of the People (Election Expenses Exclusion) (Wales) (Amendment) Order 2020. We're invited to note the letter from the Minister, which advises us that the order was not made, as anticipated, on 18 November, ahead of the scheduled coming-into-force-date of 19 November. Instead, the order was made at 15:19 on the nineteenth, meaning the order has a minimal retrospective effect, given that it came into force at the beginning of 19 November. I think that's just to be noted.

We have 8.2, the letter from the Counsel General, just updating us in respect of the Joint Ministerial Committee (EU Negotiations). We have the letter of 1 December to be noted, informing us of the negotiations that took place on 3 December. That's one of the letters sent in accordance with the inter-institutional relations agreement. Okay. 

Moving on to 8.3, the letter from First Minister on the Health Protection (Coronavirus Restrictions) (Functions of Local Authorities etc.) (Wales) Regulations 2020. We have a letter from the First Minister, which responds to a point raised by the committee following our consideration of the regulations. Members will note that the First Minister said he is

'grateful for the scrutiny and oversight your committee provides in relation to the significant amount of legislation, which has been made in the course of responding to the coronavirus pandemic.'

This letter is in response, also, to our notification to the First Minister of a breach in procedure with regard to legislative notification. Any comments or observations on any of those? No.

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 move into private session? I see there is that agreement. So, we move into private session, please.