Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad - Y Bumed Senedd

Legislation, Justice and Constitution Committee - Fifth Senedd

01/03/2021

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Carwyn Jones MS
Dai Lloyd MS
David Melding MS
Mick Antoniw MS Cadeirydd y Pwyllgor
Committee Chair

Y rhai eraill a oedd yn bresennol

Others in Attendance

Dr Robert Parry Llywodraeth Cymru
Welsh Government
Dylan Hughes Llywodraeth Cymru
Welsh Government
Jeremy Miles MS Y Cwnsler Cyffredinol a’r Gweinidog Pontio Ewropeaidd
The Counsel General and Minister for European Transition

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Cyfarfu'r pwyllgor drwy gynhadledd fideo.

Dechreuodd y cyfarfod am 09:30.

The committee met by video-conference.

The meeting began at 09:30. 

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introduction, apologies, substitutions and declarations of interest

I 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. In accordance with Standing Order 34.21, notice of this decision was included in the 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 relating to conducting proceedings remotely, all other Standing Order requirements remain in place. We have full committee attendance today. The usual housekeeping rules will apply. Can I just ask the Members if there are any declarations of interest? I don't see any declarations of interest.

2. Gwaith craffu cyffredinol ar ddiwedd y Pumed Senedd—sesiwn dystiolaeth gyda'r Cwnsler Cyffredinol
2. End of the Fifth Senedd general scrutiny—evidence session with the Counsel General

So, we can move straight on to the agenda, which is an evidence session with the Counsel General with regard to the fifth Senedd and general scrutiny. I welcome Jeremy Miles, Counsel General, Dylan Hughes from the Welsh Government, and Dr Robert Parry. Thank you, all, for attending this morning. Are there any opening comments that you wish to make, Counsel General, or are you happy to move straight into questions?

Member
Jeremy Miles MS 09:31:35
The Counsel General and Minister for European Transition

I'm very happy to move straight into questions, Chair, if that's your preference.

Thank you. Okay, we'll do that. If I could just ask a very general question, and that's in relation to coronavirus regulations. We've had a large number of regulations and obviously a large number of changes, and often the scrutiny sessions that we have are post implementation, for reasons that I think we all recognise and understand in terms of the emergency and the pandemic. But these are regulations and changes that do have significant impacts in terms of human rights, in terms of what can and cannot be done with regard to the economy, with regard to society generally, et cetera. I'm just wondering what your views are in terms of the accessibility of law within this area, and the complication. What lessons have been learned with regard to, I suppose, with continual changes taking place, people's confusion or understanding as to precisely what the law is, what the restrictions are and so on. Are there any particular or more general lessons that could be learnt that you'd like to outline?

Well, Chair, I think it is obviously the case that there have been a lot of changes to these regulations for reasons that I think we would all understand, and our focus has been throughout, in a sense, making the law as clear as it possibly can be against that backdrop, really. Things do move quickly, clearly, in this environment, and I absolutely would acknowledge that rapid changes and frequent changes in law can be confusing, obviously.

What I would say, in the broad sense at least, is that the fundamentals of the regulations have moved less quickly, if you like, and have remained, I think, more broadly consistent. But one of the reasons, actually, why we moved to the alert level system was, in a sense, in order to be able to give people more predictability and certainty about what particular restrictions looked like in particular circumstances. Now, obviously, at the end of the day, the key issue, the key obligation, if you like, is that the law must be changed when the scientific advice no longer supports the current settlement in terms of regulation. So, that plainly is the overarching responsibility, but within that, obviously, we've tried to be as straightforward as we can. At the moment, there's quite a good example of this, I suppose, which is that we have alert level systems in place but we are moving between them in a graduated way, if you like. So, I completely acknowledge that that, in a sense, removes or weakens some of the benefit of having defined alert levels, but it's effectively an attempt to reconcile those two objectives.

I would say, Chair, if I may, I do think that the work that we've done in terms of making the regulations as clear as possible, and the guidance that's gone with them, is probably a lot more than governments usually do in this space, both in Welsh and in English. We've used frequently asked questions very constructively, and the website, where these are all hosted, gets an awful lot of traffic, so it is clear that they are regarded as helpful, I think. And we've also tried to make sure that the guidance that we issue reflects the fact that it is guidance, rather than operating as law.

It's obviously not ideal, but we are not in ideal circumstances, as I'm sure you'd all acknowledge. What I do want to just say, if I may take this very short opportunity, Chair, is clearly, firstly, it has been acknowledged by others that the approach that we've taken has been as accessible as it can be, if you like. But I just also want to put on record, if I may, thanks to what is actually a very small team of people in the Welsh Government—lawyers and drafters, policy officials and communications team—who work on this agenda, and I myself think they've done great work in making the law as accessible as it can be.

09:35

Okay. Thank you for that, Counsel General. Carwyn Jones.

Diolch, Cadeirydd, a bore da, Cwnsler Cyffredinol. Gaf i ofyn oes yna unrhyw wybodaeth gan y Llywodraeth ynglŷn â nifer yr hysbysiadau cosb anghywir sydd wedi codi, a hefyd a oes yna unrhyw fanylion ynglŷn ag a oes erlyniadau anghywir wedi cymryd lle hefyd? Os yw hwnna'n wir, beth yw'r rhesymau am hynny? Wel, yn gyntaf, felly, ydyn nhw wedi digwydd, ac yn ail, os ydyn nhw wedi, beth yw'r prif resymau am hynny?

Thank you, Chair, and good morning, Counsel General. May I ask if the Welsh Government has any information on the number of incorrect penalty notices that have been issued and any details with regard to prosecutions that have been incorrectly pursued? If that is the case, what is the reason for that? First of all, have there been examples of incorrect penalty notices and prosecutions and, if so, what were the main reasons behind those?

Bore da. Gaf i ddechrau drwy ddweud bod perthynas agos wedi bod—perthynas o gydweithio agos—gyda'r heddluoedd a'r comisiynwyr yng Nghymru dros y flwyddyn ddiwethaf, ac mae'r gwaith maen nhw wedi bod yn ei wneud yn waith y byddem ni i gyd yn cydnabod sydd yn waith pwysig iawn? Does gen i ddim rheswm dros gredu bod y mwyafrif llethol o'r hysbysiadau wedi'u rhoi mewn ffordd sydd yn gymwys i'r pwrpas, ond mae yma gwestiynau pwysig, buaswn i'n dweud. Allaf i ddim, yn anffodus, roi'r ateb syth rŷch chi'n ei ddymuno i'r pwyllgor ynglŷn â'r rhifau a'r erlyniadau yn y ffordd roeddech chi'n gofyn y cwestiwn, a'r rheswm pennaf am hynny yw nad yw'r data gennym ni.

Fe glywais i beth roedd yr Arglwydd Ganghellor yn dweud ynglŷn â'r Weinyddiaeth Gyfiawnder a'r ymroddiad i rannu data, ac mae hynny, wrth gwrs, i’w groesawu, ond, hyd yn hyn, dyw hynny ddim wedi arwain at lawer o rannu data—hynny yw, yn y byd go iawn mewn ffrâm o amser sydd yn ddefnyddiol. Felly, dyw hynny ddim wedi digwydd ar lawr gwlad, ond, wrth gwrs, rydyn ni'n croesawu'r ymroddiad i wneud hynny. Felly, mae hwn, byddwn i'n awgrymu, yn un o'r enghreifftiau hynny lle mae'r Llywodraeth yng Nghymru yn creu troseddau newydd ac wedyn dim control dros y ffordd maen nhw'n cael eu delio â nhw wedi hynny.

Rhywbeth sydd, gobeithio, yn fwy defnyddiol imi allu ei ddweud wrthych chi yw, ar ddechrau'r pandemig, yn y cyfnod cynnar iawn, pan oedd ymgais ar ran yr heddluoedd i geisio—pan oedd yr hysbysiadau yna wedi cael eu rhoi ond ddim wedi cael eu talu, a mynd o hynny i erlyn, roedd review ohonyn nhw, adolygiad ohonyn nhw—gweld pa rai y bydden nhw'n mynd yn eu blaenau â nhw, bron 20 y cant y gwnaethon nhw eu tynnu'n ôl, pan ddigwyddodd hynny yng Nghymru; roedd y ffigur yn rhyw 40 y cant yn Lloegr. Felly, mae hynny'n rhoi rhywfaint o ddarlun ichi, rwy'n credu. Roedd hynny ar y dechrau, yn gynnar. Mae pethau wedi newid ers hynny a dealltwriaeth yr heddlu a phawb o'r troseddau wedi cynyddu yn y cyfnod ers hynny.

Good morning. May I start by saying that we have had a close relationship and close collaboration with the police forces and the commissioners in Wales over the past year, and the work that they've been doing is work that we would all acknowledge has been very important? I don't have a reason for believing that the vast majority of the penalty notices have been issued in the correct way, but there are important questions to be asked. I can't, unfortunately, give the direct answer that you're seeking in terms of the numbers and the prosecutions in the way that you asked the question. The main reason for that is that we don't have the data.

I heard what the Lord Chancellor said with regard to the Ministry for Justice and the commitment to sharing data, and that, of course, is to be welcomed, but, to date, that hasn't led to a great deal of data sharing in the real world in a time frame that is useful. So, that hasn't happened on the ground, but I welcome the commitment to doing so. So, I would suggest that this is one of the examples where the Government in Wales is creating new offences and then doesn't have any control over how they are dealt with after that.

What perhaps might be more useful for me to tell you is that, at the beginning of the pandemic, in the very early stage, when there was as attempt on the part of the police forces to—when the penalty notices were given and they weren't paid and then that moved on to prosecution, there was then a review—see which ones would be pursued, they withdrew almost 20 per cent of those following the review in Wales; the figure was around 40 per cent in England. So, that gives you some kind of picture of what took place. That was at the very early stage. Things have changed since then in terms of the police's understanding, and everyone's understanding indeed, of the offences.

Un peth bach jest i ddilyn, felly, wrth bigo ar beth ddywedodd y Cwnsler Cyffredinol ynglŷn â'r rheoliadau, dyma enghraifft unwaith eto o reoliadau sydd yn cael eu gwneud gan Senedd Cymru, ond does dim awdurdod gan y Senedd i weithredu'r rheoliadau hynny—sefyllfa hollol annerbyniol. Nid cwestiwn yw hwnna, efallai, ond sylw.

Just one thing to follow on from that, in considering what the Counsel General said about the regulations, this is an example once again of regulations made by the Welsh Parliament but where the Senedd has no authority to implement those regulations. It's an unacceptable situation. That wasn't a question but a comment.

Diolch, Cadeirydd. Bore da, Cwnsler Cyffredinol. Yn parhau efo'r coronafeirws—ac rydych chi wedi nodi hyn eisoes yn ateb y cwestiwn cyntaf gan Mick—yn amlwg, mae'r gyfraith ar y coronafeirws wedi'i nodi yn y gwahanol reoliadau coronafeirws. Nid yw'r canllawiau a'r datganiadau gan Weinidogion yn gyfraith gwlad, fel rydych chi wedi nodi eisoes, er y gallan nhw fod yn adlewyrchiad o'r gyfraith, wrth gwrs. Ydy'r Cwnsler Cyffredinol yn derbyn, pan fydd Gweinidogion Cymru yn dweud bod yn rhaid inni neu y dylen ni wneud rhywbeth, fod perig i'r cyhoedd yn gyffredinol feddwl bod yr hyn y mae'r Gweinidog yn ei ddweud yn gyfraith gwlad? Ydych chi'n derbyn bod hynna'n wir neu ddim, ac os nad ydych chi, pam felly?

Thank you, Chair, Good morning, Counsel General. Continuing with the issue of the coronavirus—you've noted this already in response to the first question from Mick—clearly, the law on coronavirus is set out in the various coronavirus regulations. Guidance and statements by Government Ministers are not the law, as you've already noted, though they may, of course, reflect the law. So, do you, Counsel General, accept that when Welsh Ministers say that we must or we should do something, there is a danger that the public generally thinks that what the Minister says is then law? Do you accept that that is the case or not, and if not, why not?

09:40

Bore da. Wel, rwy'n sicr yn derbyn bod risg o hynny, wrth gwrs, ond er mwyn ceisio ateb y risg rŷn ni wedi bod yn—. Wel, y peth cyntaf dylwn i ddweud yw dŷn ni byth wedi ceisio defnyddio canllawiau a chyngor yn hytrach na newid y gyfraith pan oedd galw i newid y gyfraith. Felly dyna'r egwyddor sylfaenol o'n safbwynt ni. Rwy'n credu, ar y cychwyn cyntaf, eto, roedd ambell i enghraifft yn unig, byddwn i'n dweud, o ddefnyddio'r term 'rhaid ichi' pan ddylem ni efallai fod wedi defnyddio'r term 'dylech chi'. Ond bach iawn o'r enghreifftiau hynny oedd.

Mae'r darlun ychydig yn fwy cymhleth na hynny. Hynny yw, mae enghreifftiau lle mae'n rhaid i gyrff gymryd y cyngor a'r canllawiau i mewn i ystyriaeth—maen nhw'n statudol, hynny yw. Gyda chyflogwyr, er enghraifft, mae hynny'n digwydd o bryd i'w gilydd. Wrth gwrs, mae e'n bosib ac yn dderbyniol i ddefnyddio'r canllawiau mewn tystiolaeth yn y llys. Hynny yw, maen nhw'n dangos beth yw'r cyngor am beth sy'n cael ei ganiatáu ac maen nhw'n cael eu hysgrifennu'n bwrpasol gyda hynny mewn golwg, fel eu bod nhw'n ddigon sicr i wneud hynny. Rwy'n credu, ar y cyfan, fod pobl wedi gweld bod y canllawiau yn cyfrannu at y darlun, ond rŷn ni'n ceisio bod mor sicr ag y gallwn ni o wahaniaethu rhwng y gyfraith a'r cyngor sy'n mynd gyda hi.

Good morning. Certainly, I accept that there is a risk of that, of course, but to try to respond to the risk, we have been—. Well, the first thing I should have said is that we've never tried to use guidance and advice rather than changing the law when there was a need to change the law. So, that is the fundamental principle from our point of view. I think, at the very beginning, again, there were some examples of using the term 'you must' when we should have used the term 'you should'. But there were only a few such examples.

The picture is slightly more complex than that. There are examples where bodies have to take the guidance and advice into account—it's a statutory responsibility. With employers, for example, that happens from time to time. Of course, it is possible and admissible to use the guidance in evidence in the courts. It does outline what the advice is on what is allowed, so it's written deliberately with that in mind, so that it is certain enough to do that. On the whole, I think that people have seen the guidance as contributing to the overall picture, but we try to differentiate between what is the law and the advice that accompanies it.

Thanks, Chair. I do sympathise with what the Counsel General said in his opening remarks. We're clearly not in ordinary time politically, and that has required, for the public good, a way of working that in other times we might think is inappropriate, and picking and choosing where there should be more detailed scrutiny is a bit of a challenge. So, I don't want to come up with a counsel of perfection here, and similar issues are raised in Scotland and in England, so I think I'd like to frame my remarks in that.

What I would like to ask you is whether those bits of the law that really need to be accessible to the general public and the guidance that helps them have been aligned carefully enough and do give people the confidence and advice they need? Let me just take one example. The law allows travel where there is a reasonable excuse. That's what's in the regulations. The law does not say that travel must be essential, but it's definitely the essential message that is being broadcast daily, really, and, of course, essential travel will always have a reasonable excuse for it being conducted. But in terms of communications, to state essential travel only when this is not strictly speaking the law, is that helpful and is it explored in guidance to your satisfaction?

Let me just give a practical example, because I think this is where it's really difficult for many people watching our proceedings and those who seek to obey the law fully. You have an elderly couple living in a bungalow on a working farm. It's a remote area, there's not safe walking around, and they decide that they'll take their daily exercise in the local town 5 miles away that has a public park on a level surface with tarmac. Now, that seems to me a reasonable excuse to make that car journey, but do people understand—? Well, am I right in assuming that that's a reasonable excuse? Do you think people have access to the information to make those decisions?

This is a critical aspect of the entire enterprise, really. What is evident, I guess, but quickly became very apparent in any event, given, (a), the scale of the changes that were being brought in by all Governments in terms of their intrusion, if you like, into people's lives, obviously, on the one hand, and the speed at which that was happening, and changing, on the other, is that you have lost that opportunity which exists in normal times to build up a public understanding of what the law does over time. You talked about scrutiny; there's less of that in real time, if you like, for reasons that I think we all understand. So, that is a very significant challenge, which I know you will know and acknowledge, and what doesn't happen is that a legal change to the regulations leads directly to a predictable set of behaviours in the public. That isn't what happens. There's a sort of way in which that is mediated by different things, and the guidance plays a role in that, but I also think that having very clear comms—communications messages around some of these things—is absolutely essential in order to give, if you like, a more kind of helpful application to what the law means for most people most of the time.

So, you gave the example of the reasonable excuse: it is not possible, obviously, to catalogue each potential application of that, and the law therefore does it on a sort of non-exhaustive basis, coupled with guidance. Plainly, there are gaps, then, naturally, but it's not possible to fill them, bluntly. So, there's an element of—there's a set of tensions in there, isn't there? But I think the example you give takes us to the heart of it, really.

Your requirement is to stay at home unless you have a reasonable excuse, and effectively, that's the flip side, isn't it, really, that you mustn't be travelling to do something unless it's pretty unavoidable, really. So, it's an attempt to distil into common parlance, if you like, what the regulations say. I am, though, comforted—if I can say it like that—by the volume of traffic that the website gets. That does suggest to me that people are engaging beyond that top line into a bit more detail, and I'm sure we all get as Members of the Senedd constituents e-mailing us asking us for clarification of various things. So, I think it's an attempt to translate a concept into more graspable ideas.

09:45

Okay. I don't want to dwell on this too much, because I've just sprung that on you, but it is interesting; you've not actually said that my example is a reasonable excuse. You've just shied away from that, and I think this demonstrates the challenge the public have. So, I'll just leave it there, unless you want to add to it before I move to my next question.

My next question, then, is on the appropriateness and transparency of using no-procedure subordinate legislation. I accept that you try to avoid this; there's a great deal of legislation that needs to be passed in secondary fashion, but obviously, using no-procedure subordinate legislation is inherently going to have the lowest level of transparency and scrutiny. And some of the things that have been covered on the face of it seem to be quite significant, like school session time, curriculum changes, directions to local health boards on the vaccination programme, and the approval of a class of place for treatment for the termination of pregnancy, and I'm sure all colleagues would have had massive postbags—or e-mail bags, whatever the term is now—on that particular issue. So, do you think the balance has been right in your use of no-procedure subordinate legislation?

The first thing to say is that the majority of it has not been of the sort that you described in your question; the majority has been one which has triggered a Senedd process, rightly, and obviously, where it hasn't, that has only been the case where the parent Act itself, having been scrutinised, if you like, has permitted that to happen. So, there's nothing which is happening here which is outwith that. In a sense, I'm more concerned about the accessibility of subordinate legislation that is made without statutory instruments at all, and there are examples of those and what we've tried to do with those, at least, is to make sure that they're published in a way that is, in fact, accessible to people. But on your point in relation to the education changes, for example, there are Schedules in the Act that provide for the kind of changes that can be made in this way—they enumerate those changes. There are powers in there for Welsh Ministers to add to that list, but again, when that happens, that process itself is subject to a Senedd procedure. So, I do think it operates clearly within the time frame of the legislative scheme that the legislation sets out.

Clearly, from our point of view, I would actually just say in terms of the question of Senedd scrutiny generally that there is sometimes, obviously, a time lag between the making of the regulations and the scrutiny in the Senedd. My personal view, and the Government's view, is we are very content with that time lag being as brief as the Senedd wishes, really. So, in a sense, we're in the Senedd's hands about the timing of that scrutiny. I can see, myself, advantages in that happening very much quicker, really, and would be content to do that if the Senedd felt that was appropriate. 

09:50

Diolch, Gadeirydd. Wrth gwrs, bydd y pumed Senedd yma'n cael ei chofio am COVID, ond bydd hi hefyd yn cael ei chofio am rywbeth o'r enw Brexit. Felly, dwi'n symud ymlaen i hwnna rŵan. Wrth gwrs, roedd pawb yn weddol gysurlon bod y Deyrnas Gyfunol fel ag y mae hi, ond wrth gwrs, mae rhai pobl yn dechrau meddwl yn wahanol, os gallaf i ddweud fel hynna. A allaf i jest ofyn i'r Cwnsler Cyffredinol: beth ydy'ch myfyrdodau chi ynglŷn â'r effeithiau hirdymor ar ddatganoli a phenderfyniad y Senedd a Llywodraeth Cymru i ganiatáu i Lywodraeth y Deyrnas Unedig yn benodol i ddeddfu'n helaeth ar ei rhan yn ystod y Senedd yma, i ddechrau?

Thank you, Chair. Of course, this fifth Senedd will be remembered for COVID, but it will also be remembered for something called Brexit, so we'll move on to that issue now. Of course, everyone was relatively content that the United Kingdom is as it is, but of course, some people are starting to think differently in that regard—I'll just put it that way. May I ask the Counsel General about his reflections on the long-term effects on devolution and the Senedd and Welsh Government's decision to allow the UK Government to legislate extensively on its behalf during this Senedd?

Wel, dyw hon ddim yn sialens sy'n unigryw i Senedd Cymru a Llywodraeth Cymru, jest i roi cyd-destun—mae hyn hefyd wedi digwydd yn yr Alban ac yng Ngogledd Iwerddon i'r un graddau ac am yr un rhesymau. Felly, mae'n sialens gyffredin. 

O ran yr impact ar ddatganoli, wel, bwriad y peth oedd sicrhau ein bod ni'n gallu cael y llyfr statud mewn ffordd oedd e'n gweithio ar ôl gadael yr Undeb Ewropeaidd, ac mae amryw o Ddeddfau yn creu amryw o anghenion yn y cyd-destun hwnnw. Roedd cytundeb rhynglywodraethol gyda ni a oedd yn sicrhau nad oedd newidiadau yn gallu cael eu gwneud gan Weinidogion yn San Steffan heb ein cytundeb ni yma yng Nghymru, a hefyd, wrth gwrs, ymroddiad wrth y Llywodraeth i hysbysu'r Senedd o hynny pan mae'n digwydd. Felly, mae cadwyni yn y pethau yma sydd yn sicrhau bod y penderfyniadau yma yn cael eu gwneud yma yng Nghymru gan Weinidogion Cymru, ac wedyn yn cael eu craffu gan y Senedd. 

O ran yr impact bras ar ddatganoli, beth byddwn i'n dweud yw hyn—roedd canllawiau penodol gyda ni pan oeddem ni'n penderfynu gofyn i San Steffan wneud hyn ar ein rhan ni, a beth mae wedi'i ganiatáu yw bod y corff arall o waith sydd gan y Senedd a gan y Llywodraeth, sydd hefyd yn waith datganoledig, yn gallu mynd yn ei flaen. Mae impact, wrth gwrs, wedi bod ar hwnnw hefyd, ond mae hynny wedi caniatáu i'r corff yna o waith gael ei ddatblygu. Beth byddwn i'n dweud, yr egwyddor sylfaenol sydd gyda ni fel Llywodraeth yw y dylai deddfwriaeth am Gymru gael ei gwneud yng Nghymru, a chael ei diwygio yng Nghymru, pan mae hynny'n gwbl bosib. Mae enghreifftiau wedi bod yn y cyfnod diwethaf, wrth gwrs, a oedd yn gwbl eithriadol. 

Well, this isn't a challenge that is unique to the Welsh Parliament and the Welsh Government, just to give the context—this has happened in Scotland and in Northern Ireland, to the same extent and for the same reasons. So, it's a general challenge. 

In terms of the impact on devolution, well, the intention was to ensure that we could have the statute book in a way that worked after exiting the European Union, and a number of laws create a number of requirements in that regard. There was an inter-governmental agreement that ensured that changes could not be made by Westminster Ministers without our agreement here in Wales, and of course there was a commitment from the Government to let the Senedd know when that happened. So, there are links in this that ensure that these decisions are being made here in Wales by Welsh Ministers and then scrutinised by the Senedd. 

In terms of the general impact on devolution, what I would say is this—that we had specific guidance when we asked Westminster to act on our behalf, and what it has ensured is that that other corpus of work that the Senedd has, and that the Government has, which is also devolved work, can continue. There's been an impact on that as well, but that has enabled that body of work to be developed further. What I would say is that the fundamental principle that we have as a Government is that legislation about Wales should be made in Wales and should be reformed and amended in Wales, and that is possible, but then there have been examples over the past period that were exceptional, of course. 

Diolch am yr ateb yna. Ar gefn hwnna, allaf i ofyn os ydych chi'n hyderus y glynwyd at egwyddorion Llywodraeth Cymru o ran gofyn i Lywodraeth y Deyrnas Unedig ddeddfu ar eich rhan ym mhob achos yn ystod y Senedd hon?

Thank you for that response. Just following on from that, may I ask if you are confident that the Welsh Government's principles in terms of asking the UK Government to legislate on its behalf have been adhered to in every case during this Senedd?

Wel, yr egwyddor sylfaenol fanna oedd y dylai deddfwriaeth yng Nghymru gael ei diwygio yng Nghymru pan mae hynny'n bosib, ond gydag enghreifftiau o hynny ddim yn digwydd ar sail y canllawiau hynny. Rwy'n credu fy mod i ddim ond yn gallu meddwl am, efallai, dwy enghraifft benodol pan na ddigwyddodd hynny. Yr un gyntaf oedd yng nghyd-destun data, pan wnaethpwyd deddfwriaeth yn San Steffan mewn maes lle gallem ni fod wedi gwneud y newidiadau, a phan ddigwyddodd hynny, gwnaethon ni wedyn wneud y rheoliadau yma yng Nghymru, a chael gwared â'r rhai a wnaethpwyd yn San Steffan. Felly, roedd hynny'n cywiro hynny, os hoffech chi. 

Ar yr ochr arall, fe gofiwch chi yn yr hydref y llynedd, roedd angen diwygio elfennau o Ddeddf Deddfwriaeth (Cymru) 2019 oherwydd nad oedd y pwerau gennym ni yma i wneud hynny ein hunain, yn anffodus. Felly, mae hynny'n enghraifft o'r ochr arall. Fe aeth hwnna, wrth gwrs, drwy'r Senedd a thrwy'r pwyllgor hwn, felly roedd proses seneddol ynghylch hwnna.

Well, the fundamental principle there was that legislation in Wales should be amended in Wales when that is possible, but with examples where that hadn't happened on the basis of the guidance. I can only think of two specific examples when that didn't happen. The first was in the context of data, when legislation was made in Westminster when we could have made those changes, and when that happened, we did then make the regulations here in Wales, and we abolished the ones that were made in Westminster. So, that corrected that, in a way. 

On the other hand, you'll remember, in autumn of last year, elements of the Legislation (Wales) Act 2019 needed to be amended because we didn't have the powers to do that here, unfortunately. So, that's an example of the other side of it. That went through the Senedd and through this committee, of course, so there was a parliamentary process in that regard. 

09:55

Ie, dyna chi. Ac ymhellach, ydy o'n peri siom i chi o gwbl bod rhanddeiliaid yng Nghymru wedi gorfod ymgysylltu i raddau mwy helaeth efo Senedd y Deyrnas Unedig na gyda'r Senedd yma yng Nghymru ar ddeddfwriaeth Brexit sy'n ymwneud efo meysydd cymhwysedd datganoledig? 

Yes. Further to that, do you have any regrets that stakeholders in Wales have had to engage more extensively with the UK Parliament than with the Senedd here in Wales on Brexit legislation related to areas of devolved competence?  

Wel, mae'n siom i fi bod rhanddeiliaid yng Nghymru wedi gorfod delio gydag unrhyw un yng nghyd-destun Brexit, yn anffodus, ond dyna'r sialens rydym ni i gyd wedi bod yn gweithio gyda hi, onid e? Rwy'n credu bod y darlun efallai'n fwy—bod hyn wedi digwydd ychydig yn fwy mewn rhai meysydd na'i gilydd. Ar y cyfan, rydym ni fel Llywodraeth wedi bod yn cydweithio gyda'r Llywodraeth yn San Steffan yn y cyd-destunau hynny, ac yn cynnal achlysuron byrddau crwn ac ati ein hunain i randdeiliaid yma yng Nghymru. Felly, mae cydweithio wedi bod yn y cyd-destun hwnnw hefyd, ac mae hefyd, wrth gwrs—jest i wneud y pwynt wnes i'n gynharach—wedi caniatáu i randdeiliaid gydgysylltu gyda ni fel Llywodraeth a'r Senedd ar yr ystod eang o bethau eraill yn y maes datganoledig oedd yn gallu mynd rhagddyn nhw oherwydd bod y penderfyniadau yma'n cael eu gwneud. 

Well, it is disappointing that any stakeholders in Wales have had to deal with any issues with regard to Brexit, of course, but that's a challenge that we've all had to face in this regard. I think this has happened more in some areas than others. On the whole, we as a Government have been collaborating with the UK Government in that context, and we've held round-tables ourselves for stakeholders here in Wales. So, the collaboration has taken place in that context, and just to make the point that I made earlier, it has enabled stakeholders to engage with us as a Government and the Senedd on the wide range of other issues in the devolved areas that could be pursued because the decisions were being made here. 

Diolch. Ac o ystyried ar sawl achlysur fod materion capasiti wedi eu nodi fel y rheswm dros ofyn i Lywodraeth y Deyrnas Unedig ddeddfu ar ran Cymru, pa gamau sy'n cael eu cymryd gan Lywodraeth Cymru, felly, i wella capasiti fel nad oes angen dibynnu ar Lywodraeth y Deyrnas Unedig? 

Thank you. And considering that on many occasions, capacity issues have been cited as the reason for asking the UK Government to legislate on Wales's behalf, what steps are being taken by the Welsh Government to improve capacity so that there need not be a reliance on the UK Government? 

Wel, mae'r cwestiwn capasiti yn codi'n bennaf yng nghyd-destun y ffaith bod lot fawr o waith ar un testun penodol i'w wneud mewn cyfnod byr iawn, felly mae honno'n sefyllfa gwbl eithriadol, onid yw e? Beth fyddwn i'n dweud yw bod e'n well i edrych ar y cyfnod yma fel cyfnod eithriadol a fydd e ddim yn parhau, wrth gwrs. Cwestiwn i'r Llywodraeth yn y Senedd newydd yw sut i fynd â hynny yn ei flaen, ond byddwn i'n defnyddio hynny fel egwyddor. 

Well, the question of capacity arises mainly in the context of the fact that a great deal of work has been done on one specific issue in a very short period of time, so that's an exceptional situation, isn't it? What I would say is that it's better to look at this period as an exceptional period and that it won't continue. Now, it's a question for the Government in the new Senedd in terms of how to take that forward, but I would use that as a principle.  

Diolch am hynna. Y cwestiwn olaf oddi wrthyf i ydy, yn wyneb sylwadau a wnaed gan Weinidog yr amgylchedd a materion gwledig yn ei llythyr at y pwyllgor yma, allwch chi egluro pam nad oes gan Lywodraeth Cymru y gallu i ddeddfu mewn meysydd datganoledig erbyn diwedd 2021, a beth, os o gwbl, ydych chi'n bwriadu ei wneud i fynd i'r afael efo'r broblem yna? 

Thank you very much. The final question from me is this: in light of the comments made by the Minister for environment and rural affairs in her letter to this committee, could you clarify why the Welsh Government does not have the capacity to legislate in devolved areas by the end of 2021, and what, if any, action do you intend to take to address that problem? 

Wel, rwy'n credu mai cwestiwn capasiti yw hwnnw yn hytrach na phwerau, gyda llaw, ond mae'r portffolio yn un sydd gyda—. Mae lot o newidiadau yn y portffolio hynny, felly mae hynny'n sialens benodol. Mae penderfyniadau wedi eu gwneud i gynyddu recriwtio yn y maes hwnnw, felly gobeithio y gwnaiff hynny helpu yn y sefyllfa yna. 

Well, I think that's a question of capacity rather than powers, by the way, but the portfolio—. There have been a great many changes in that portfolio, so that's a specific challenge for that portfolio. But decisions have been made to recruit in that area, so I hope that that will assist in that situation. 

Diolch yn fawr, Gadeirydd. 

Thank you very much, Chair. 

Thank you for that, Dai. On to the European Union (Future Relationship) Act 2020. Carwyn Jones. 

Diolch, Gadeirydd. Yn gyntaf, Gwnsler Cyffredinol, ym marn y Llywodraeth mae'r ddarpariaeth gyffredinol sy'n mynd i gael ei rhoi ar waith ynglŷn ag adran 29 o'r Ddeddf perthynas yn y dyfodol, yng ngeiriau'r Llywodraeth 'yn amlwg yn anfoddhaol yn nhermau cyfansoddiadol.' Ai hwn yw'r rheswm, felly, pam nad oes yna ddim is-ddeddfwriaeth uniongyrchol wedi cael ei chynllunio ynglŷn â gweithredu'r Ddeddf ei hunan? 

Thank you, Chair. First of all, Counsel General, in the Government's view, the general provision with regard to implementing section 29 of the future relationship Act is, in the Government's view, plainly unsatisfactory in constitutional terms. So, is that the reason why there isn't immediate secondary legislation planned with regard to implementing the Act itself? 

Rwy'n credu bod dau bwynt—

I think there are two points—

'Cytundeb' dylwn i ddweud, nid Deddf—y cytundeb. 

The agreement, rather than the Act. 

Ie, ie. Rwy'n credu bod dau bwynt yn codi yn y cyd-destun hwnnw. Mae'n gwbl anfoddhaol yn nhermau cyfansoddiadol oherwydd bod e'n beth mor eang, ond, wrth ddweud hynny, dwi ddim yn awgrymu y buasai, wrth gwrs, wedi bod yn bosib o fewn yr wythnos rhwng cytuno ar y cytundeb a deddfu i wneud y dasg fyddai wedi bod yn dderbyniol—hynny yw, penderfynu pa gamau yr oedd angen eu gwneud ar ystod o bethau oedd yn cael eu heffeithio er mwyn rhoi'r cytundeb ar waith. O'n safbwynt ni fel Llywodraeth, rydym ni'n edrych nawr, wrth gwrs, ar beth sydd angen ei wneud. Pwrpas cymal 29 yw rhyw fath o catch-all. Fel rydych chi'n gwybod, os ŷch chi'n cymryd cam penodol i ddodi'r cytundeb ar waith, y cam hwnnw sydd yn rheoli, hynny yw. Felly, rŷn ni'n edrych, ar hyn o bryd, ar ba reoliadau fydd angen dod i mewn â nhw, ond fel byddwch chi'n ystyried, mae hyn yn digwydd ar draws holl waith y Llywodraeth ar un olwg. Hynny yw, mae impact y cytundeb yn eang iawn. Dros amser, bydd impact y cymal hwnnw yn lleihau, wrth gwrs, wrth i fwy o reoliadau ddod ar waith i ddodi'r cytundeb i mewn i weithrediad.

Yes. I think there are two points that arise in that context. It is unsatisfactory in constitutional terms because it's so wide-ranging, but in saying that, I'm not suggesting that it would have been possible, of course, within the week between agreeing the agreement and legislating to undertake the task that would have been acceptable, namely to decide what steps needed to be taken on a range of issues that were impacted to implement the agreement. From our point of view as a Government, we're looking now at what needs to be done from here on in. The purpose of section 29 is some sort of catch-all. As you know, if you take a specific step to implement an agreement, then it's that step that will control that process. So, we're looking now what regulations will be needed, but as you will know, this is happening across all of the Government's work. That is, the impact of the agreement is very wide ranging. Over time, the impact of that section will diminish as more regulations come on stream to implement the agreement.

10:00

Diolch. A gaf i ofyn felly am eich barn ar gymhlethdod a hygyrchedd y drefn gyfreithiol newydd sydd wedi cael ei chyflwyno o dan y cytundeb ei hunan a hefyd o dan y Ddeddf? Pa mor gymhleth ydy'r drefn newydd?

Thank you. May I ask, therefore, about your views on the complexity and accessibility of the new legal regime introduced under the agreement itself and under the Act? How complex is the new regime?

Wel, mae bodolaeth y cymal hwnnw yn creu ansicrwydd, onid yw e? Hynny yw, mae'n rhaid dehongli rheoliadau a Deddfau yng ngoleuni'r cymal hwnnw, felly mae hynny yn ei hunan yn creu ansicrwydd o ran dadansoddi'r gyfraith yn gyffredinol. Fel rwy'n dweud, mae gyda ni bwerau yma yng Nghymru ac fe fyddwn ni'n edrych ar beth ŷn ni'n gallu ei wneud er mwyn creu'r sicrwydd hynny mewn rheoliadau penodol. Mae'r Llywodraeth yn San Steffan wedi dweud os byddan nhw'n cymryd pwerau i wneud hyn, byddan nhw ddim yn defnyddio'r pwerau hynny heb ein cefnogaeth ni, heb ein cytundeb ni yma yng Nghymru. Ond y prif impact ar hygyrchedd, rwy'n credu, yw pa mor eang yw cymal 29.

Well, the existence of that section creates uncertainty, doesn't it? That is, regulations and Acts need to be interpreted in the light of that section, so that creates uncertainty in terms of the interpretation of the law in general. As I said, we do have powers here in Wales and will be looking at what we can do to provide that certainty in specific regulations. The Government in Westminster has said that if they take powers to do this, they won't be using those powers without our support, without our agreement here in Wales. But the main impact on accessibility, I believe, is how wide ranging section 29 is.

Diolch, Cwnsler Cyffredinol.

Thank you, Counsel General.

Can I move on now to the United Kingdom Internal Market Act 2020? Now, we've debated this at some length. Obviously, there's the judicial review application, which we leave to one side for now. One issue that I'd like your view on in terms of the internal market Act is this: how can it be enforced? If we look at the authority that the UK Government is proposing to set up that will, I suppose, declare whether a particular Act by a Government within the UK is outside the internal market Act or not, whether in fact there is any means of enforcing that, because there doesn't seem to be in the Act itself. So, the first point is: is it judiciable? Is it justiciable, then, by one Government against another, or is it simply the case—and this itself may not even be true; it's not clear—that it's a matter for a private individual or business to take a Government to court in order to, I suppose, either obtain a declaration or obtain damages, in terms of declaring whether a particular Act is outside the scope of the internal market Act? What I'm not clear on with the internal market Act is how it is going to be enforced and who will enforce it. Is it up to private individuals and businesses or is there another mechanism of doing it, or is any of it justiciable?

I think these are all critical questions and the uncertainty that you describe is, unfortunately, very, very real, and I think one of the most problematic aspects of the Act, if you like, in terms of making it a practical piece of legislation. Obviously, there are a range of other objections we have to it. I think one of the significant challenges that comes from that uncertainty is the chilling effect that obviously the legislatures will feel, but also anybody who's impacted by this Act, which is retailers right across the UK: what certainty can they be given about the questions that you've asked, really, and whether these are principles that can be the basis of a claim, or a defence to a claim by others? So, there is obviously a range of ways in which they can be brought to bear, and it isn't clear in the Act how that will work in practice.

I should say, you mentioned in passing there the judicial review. You're not inviting me to speak at length about it and I'm very grateful to you for that, for obvious reasons, but I will just say that we have heard from the court, just by way of update to this committee, confirming that a one-day permission hearing will be listed. So, it hasn't been dealt with on the papers, as it were; there will be a permission hearing. We had applied for matters to be expedited in light of the Senedd elections, but that aspect hasn't been—. There will not be a particular order for expedition, as it were. So, that's where we are in terms of the action.

Just quickly leading on from that, looking at the Act itself, if a Government decided to ignore a finding by the new markets authority, is there anything that can be done to force that Government to follow the declaration or is this all simply being done on the basis of some kind of vague convention?

10:05

Well, there isn't an enforcement mechanism in the way that you're describing, but what will happen, of course, unless we get the clarity that we feel is appropriate from the Act, is that the next Senedd term and the next parliamentary terms in Scotland and Northern Ireland will be dominated by analysis by Governments and legislatures about what impact the internal market Act has on legislative proposals—an environment that, given the point that you made in your earlier question, is very, very uncertain. So, that's fundamental to the reason why we're seeking that clarity and obviously fundamental to why we were hoping it would be dealt with quickly. 

Perhaps buying a season ticket in the Supreme Court might be a wise investment at this stage, given the state of the Act. But let me move on to any co-operation that has been offered in terms of implementing the Act. Have there been any moves to working with other Governments within the UK, and in particular, is the UK Government minded to be co-operative when it comes to managing the impact of the Act?

Yes. There is co-operation and discussion between the Governments in relation to the Act. So, there are two aspects, I suppose. There are aspects that are the subject of the litigation, where we have, obviously, a particular world view on that that governs our engagement in relation to those areas. But unfortunately, as the committee will know, there are a number of areas in the Act where there is no basis for legal challenge and so, in relation to those, there are discussions going on about what those mean in practice and how we take those forward. So, a good example of that would be around the Office for the Internal Market and how appointments are made to that. So, there is a practical set of discussions going on in relation to that. But in those areas that are affected by the judicial review, clearly our view is that we want the review to be held in our favour, effectively, and so that's obviously the context for our engagement in that space.

With the Office for the Internal Market, as far as I can see, it has no enforcement powers, does it?

Well, it's principally an advisory—. Effectively it's a means by which the broad internal market landscape is understood, if you like. That's its principal—

I suspect that the UK Government has an allergy to putting in place legislation that would enable an external, arm's-length body to tell it what to do, which we, I think, have benefited from in that regard.

A final question from me, on the Sewel convention. We have been told, on more than one occasion now, that the ignoring of the Welsh and Scottish Parliaments' views in terms of whether or not to give permission for certain legislation to move forward—we've been told on more than one occasion—that the UK Government's overriding of that refusal to provide permission is unique. Now, 'unique' to my mind is something that happens once. There's a new definition that's been given to that. But we've had a letter from the Secretary of State for Wales; he provided, in a letter, his views to us on 16 February. I don't know whether you've seen that letter, or what your view is of it.

I have seen the letter. I don't agree with it. The Secretary of State does describe, in fairness, some progress in the parliamentary process around awareness, if you like, in the chambers of the views of the devolved Parliaments. But the fundamental point that the letter makes, which is that the circumstances were not normal, is plainly wrong, it seems to me. And, if you can have a situation where the designation of the application of the principle is effectively entirely at the discretion of one party, and indeed, as it were, decided after the event, well, it doesn't seem to me remotely controversial to say that that is not a functioning convention. So, it's completely unacceptable that that is the basis on which it's proceeding, and I think it doesn't do anybody any service to pretend that that is a well-functioning convention when it plainly isn't.

The point about this convention is that it should only be used in great exception. Now, there are many of us who believe that it should be that there should never be a power to override, but there's quite a lot of—. The Institute for Government, for example, I think—the committee, I know, has read its report in this area—has very, very sensible things to say. But the UK Government is simply wrong to say that it can simply designate what is not normal as a matter of discretion, effectively. 

10:10

Can I just follow on from that question, Counsel General? Because we received a letter from the UK Government, a while back, that did refer, in fact, to the exceptionality of certain legislation that was going through. Do you think there has actually been a significant shift in UK Government thinking, in line with the letter from the Secretary of State for Wales now, whereby Sewel effectively is little more than an obligation or a desire to consult?

Well, it cannot work on that basis, Chair; it cannot function on that basis. It's not justiciable, as we all know, but it has a statutory footing and, whilst that is obviously welcome, it is plainly insufficient. And the reason it's insufficient is because you cannot maintain mature and stable constitutional relationships where they are effectively a matter of discretion for one party, and there is far too much of that in our constitutional settlement and this is a very clear example of it. We need clear rules that are capable of being understood and enforced, because that is how inter-governmental and constitutional relations work best, and certainly, as a Government, that is absolutely what we want to see.

Okay. Well, thank you for that, Counsel General. If I move on—we could talk about Sewel all day and obviously we don't wish to. Just, more generally, on the accessibility of the law, we've talked about that in the past in respect of two aspects: one is the accessibility of the individual, but, secondly, in terms of knowing where the law is, precisely what it says and so on. In general, how would you sum up the progress that's been made on improving and increasing the accessibility of Welsh law?

Well, the last Senedd has grappled with two huge forces, if I can put it like that, which have tended in the opposite direction, if you like. Both Brexit and COVID have introduced new complexities. I would suggest the way that we've tried to respond to them has always had the lens of accessibility very much at the fore. But, nevertheless, those two things have a significant impact.

I think the positives are, Chair, that there is more of a focus now, I think, on accessibility, than I think perhaps there has been, and I think there is also more of a focus on the public understanding of the law, particularly as a consequence of COVID. So, I regard those as actually very significant upsides, if you like. I think the Legislation (Wales) Act 2019 is a very good foundation for the work that we are doing, and will come into its own in the new Senedd term, with the accessibility programme. But, already, the interpretation provisions are a significant step forward. And, I think, perhaps a little bit under the radar, if you like, on the secondary legislation space there's been some good work in that space—quite a lot of good work in that space—in relation to consolidation and accessibility. So, an example of that will be around student financial support, where, I think, around 150 pages of regulations have been consolidated. So, that's, I think, very helpful. 

The Brexit picture, I think, obviously is a significant cause of complexity, isn't it? On the one hand, you could say that leaving the EU could simplify our law, but I think, in truth, it's going to be some time before we'll have been able to consolidate and weave that into our statute book in a way that makes it straightforward. Just the volume of SIs that have been passed in the last couple of years themselves are very significant. There have been changes brought in at the start of the transition period, yet another set of changes brought in at the end of the transition period, and I think we're probably looking at some time before that's all properly integrated into our statute book in a way that we would all want.

Thank you, Counsel General. If I can just move on to a question around, I suppose, the individual accessibility of law then, because we had the Lord Chancellor give evidence last week, which was interesting. But there were issues there in respect of things like legal advice, legal services and so on, and the ability of people to have access to the law—issues that have been raised, of course, by the legal profession and by the judiciary. In terms of the next Senedd, do you have any thoughts as to how some of these issues might be or should be addressed?

10:15

The new Government, I'm sure, will wish to continue—I hope it will wish to continue—in the same vein that we've done in this Senedd term. Clearly, there are new statutory obligations that bite on the Government of the new Senedd, which is a good thing. So, I think that is positive.

But I think there are challenges, if I can be straightforward about it. There's an ongoing set of resource constraints that the Government faces, which will have an impact. I think we will see, unfortunately—. Legislating is a pipeline, isn't it? The pressure that has beset the Government, really—all Governments, I guess—in the last few years, in dealing with both Brexit and COVID, will, I think—. There's a risk of that being felt, if you like, in the pipeline for legislation being affected. So, I think there's a challenge for us there.

Back to the points that Carwyn Jones was raising about the internal market Act, there's a whole new lens there of uncertainty that is applicable to the new Senedd term. I think the perennial challenge, which we started off discussing today in the context of the fixed penalty notices—that jagged edge of devolution—remains an unnecessarily complicating factor in all of these considerations. So, I think there are some positives, but I think there are some significant challenges that the new Government will need to wrestle with.

Thank you for that point. If I can move on, then, to the issue of inter-governmental agreements. David Melding.

Thank you, Chair. I just wanted to look at common frameworks and the documents that emanate from them, and their publication and availability to the Senedd so that their implementation, and indeed any legislation that's required to implement them, is properly scrutinised. The Senedd consented to the Fisheries Bill in October. Nearly six months later the memorandum of understanding is still unpublished. I just wonder what your view is about this dislocation, really, through the key, one would have thought, evidence that is required in the scrutiny process. We are making really important decisions like consenting to a UK Bill.

It's obviously unsatisfactory; that much I think is clear. Our preference would be the approach that we were able to take in relation to the agriculture and healthcare legislation, where the MOU was available to be scrutinised in tandem with that, which obviously is the best way of proceeding, there's no doubt about that. I was clearly pleased that the Senedd was able to get consent notwithstanding the issue of the delay on the MOU for the Fisheries Bill. So, the direct answer to your question is: the MOU is still in development as part of that common framework process.

Our position as a Government is that we are keen to publish common frameworks as soon as that is possible, so that they can, obviously, be scrutinised. That itself would be a significant programme of activity. But that has to happen on a four-Government basis. Whereas all of the frameworks have been signed off at portfolio level across the four Governments, we're still waiting for the Joint Ministerial Committee (EU Negotiations) authorisation level, if you like, to happen in Northern Ireland as it goes through its constitutional processes there. So, we're, in a sense, waiting for that to resolve, but keen to put it in the public domain as soon as possible.

I think that's a perfectly reasonable point—that you're in a process with three other Governments. I'm not implying, in a partisan sense, particular criticism of the Welsh Government; I suppose it's as a legislator to a member of the Executive. In your appearance in January before the External Affairs and Additional Legislation Committee you said there were 20 common frameworks now in operation, and only a handful of them had had their documentation published. Are you surprised at this dislocation, and what have you been doing behind the scenes to try to rectify it? Where is the blockage? Or is it just the inevitability of this huge shift from being a member of the EU to having a reasonable grounding for UK legislation that needs common approaches but is in devolved areas?

10:20

The overall picture is that there is documentation that supports all the common frameworks, apart from—off the top of my head—two, which are still in development, unfortunately, which are qualifications and services. So, it's not that there isn't documentation; it's there. It's just that it can't yet be published whilst the four Governments resolve—not resolve, because there's no, as I understand it, point of disagreement. It's a process that needs to be gone through. The next stage, though, I should say, is itself a significant task. Clearly, there's the crucial scrutiny stage, and we've got elections in two of the legislatures coming up, so that's an obvious challenge. Co-ordinating on an inter-legislative basis is obviously not a matter for me, but that feels to me to be a sensible thing to do in the sense of being able to move together in lockstep, if you like.

In parallel with that, there is now a potentially reasonably extensive piece of work, which is applying to the agreements that we have now, on a framework basis, the new lenses of the trade and co-operation agreement, the future relationship Act, the Northern Ireland protocol, which will be particularly significant for us, and the internal market Act. That needs to happen in parallel, if you like, which is itself not a small task. So, that's where we are. I think, on a practical basis, at an official level, the frameworks are being regarded as operative, if you like. I know that is not a reassuring thing for you as a Senedd committee to hear, but perhaps it does signify the fact that it's a process that needs to go through, rather than a set of disagreements, if you like, that's holding this up.

I think we will agree that, until the documents are published, they don't exist in a public sense and for legislative scrutiny. I mean, the fine point that they are there and the Governments know about them I accept, but I don't think it particularly advances—. And I was trying to help you in terms of where the problem lies at the moment, but I will move on.

Obviously, when we were in the EU, all sorts of legislation was then required, through various directives and agreements made at EU level, and then implemented through a variety of legislation, very often secondary. I just wonder what your view is in terms of—. That was a transparent process; we knew it was clearly in the documentation we would receive when we were scrutinising the process. Will an analogous system be in operation, when you're bringing forward legislation, so that we know the framework that it relates to and can scrutinise it so that we can be assured that the implementation is what was agreed? Because if there's lots of gold-plating going on, which may be very necessary, obviously something we would want to, as a legislature, look at here is where you have discretion or where you're doing things in addition. So, can you assure us that any legislation emanating or requiring frameworks to be implemented will be accompanied by the appropriate documentation?

I'd just acknowledge the point you made at the start that unless there is the kind of transparency that you're describing, it won't be a system that commands confidence and so, ultimately, won't work. That's definitely the starting point for this. I would expect very much for portfolio Ministers to keep the relevant committees informed of the operation of the common frameworks in their particular areas, where there are changes—certainly where there are substantive changes, material changes, if you like. There's a question about whether there's a new scrutiny process that goes with that as part of that framework development. I think that's what I would envisage happening.

In terms of how that then ties in, that would mean that the relevant Senedd committee's baseline of scrutiny against the frameworks would be consistent and ongoing, if you like, in that way. Then, how that intersects with legislation, I think, is, obviously, very important. I would expect that we would use the explanatory memoranda for primary legislation, and notes for the SIs, to bring out the relationship between what's proposed in legislation and how that is based, if you like, on the work of the framework. I think that will need to be a transparent process, because that is necessary for confidence, but obviously that will also lead to better outcomes.

10:25

Finally, I think it's fair to me to infer from what you've been saying that, compared to say the say the Sewel convention, which was the subject of a previous question, you don't think the common frameworks process is in bad shape. There are teething problems, and, obviously, there's been a lot of activity very early on these very important policy areas, but it's bedding in and for the future will work more smoothly. Is that what you're telling us, and that as these things get amended and adapted in the course of time over the next decade and beyond, that these dissonances will be corrected and we'll have a process similar to the one we've left in the EU?

It certainly needs to work in some way like that in order for it to be able to be well functioning. I think the key issue at this point now is to get the frameworks into the public domain and into scrutiny so that people have a common understanding of what's involved, and there will be a natural democratic dialogue that emerges from that, which results, I hope, in the kind of thing that you're describing, really. I think what I would say in terms of engagement in the common frameworks process is I'm pleased overall that it's clearly continuing. There are some challenges around timing, obviously. I think where we've had the delay to the frameworks in the space of qualifications and services, they are, obviously, very big areas, bluntly, and they are areas that are very directly impact by the internal market Act. I'm anxious about that linkage, if you like, and I hope that does not lead to a broader disengagement from the frameworks process. Certainly we haven't identified that as happening yet, and I would be extremely concerned if there were signals of that.

Just a couple of finishing questions from myself, just with regard to the inter-governmental relations review. I suppose it must be taken as read that it would be unsatisfactory for that not to be completed before this Senedd term and that it's something that's then left to the next Senedd. And I suppose, in addition to that, the big obstacle that remains, where it seems there is very little common ground between the UK Government and the Welsh Government, is in respect of reform of the dispute resolution mechanism. According to the letter from the Secretary of State for Wales, they don't really see an issue or a problem there. There certainly seems to have been a shift in their thinking from what we were told previously by the UK Government in correspondence. I wonder whether you have any views as to how that particular obstacle might be overcome in future.

In my discussions with the Chancellor of the Duchy of Lancaster, who leads from the UK Government on the inter-governmental review, I would say that there's been very good progress in the space of disputes, actually. It isn't quite where we need it to be, but there's definitely been a willingness to engage constructively, I would say, in that. I can't tell you today whether that's capable of being agreed at this point, because, obviously, there are some things still in discussion. Obviously, it would be unsatisfactory, in the way that you say, if this is not capable of being agreed, but then we're a few weeks away from the start of the pre-election period, so I think, clearly, we all have a sense of realism around that. What there won't be in place is the kind of structures—even if it's capable of being agreed in that time frame—and processes that need to be put in place to make it work and to deliver it. They obviously won't be in place in the way they need to be. So, I'm hoping, before the start of the pre-election period, we'll have another ministerial meeting at which we will review where we are. It would be good if we were able to reach agreement, certainly, but clearly there are some outstanding issues.

Just one final short point. Have you been given any reason as to why the Dunlop review has not been published?

No, I don't think I have. It certainly hasn't been published. We haven't seen it, and I'm not aware that we've been given a reason for that, which is disappointing, Chair.

Counsel General, I think we've come to the end of the time. Can I thank you for attending, and your officials, and for the detailed answers you've given? There will be a transcript of evidence in due course. I think this is probably the last scrutiny session with you prior to dissolution, so thank you for all your earlier attendances. We'll move on with our agenda now. Thank you very much.

Can I thank you, Chair, as well and thank the committee for its work? It's much appreciated.

10:30
3. Offerynnau sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Senedd o dan Reol Sefydlog 21.2 neu 21.3
3. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3

We now move on to item 3 of the agenda. We move on to the Senedd Cymru (Letters Patent and Proclamations) Order 2021. This is an Order that relates to the letters patent that give Her Majesty's assent to a Bill passed by Senedd Cymru. The Order amends the name of the Senedd in the letters patent in accordance with the provisions of the Senedd and Elections (Wales) Act 2020. The Order includes the wording for royal proclamations relevant to the power of the Llywydd under section 4 and the duty of the Llywydd under section 5 of the Government of Wales Act 2006. There are a number of merits points. Over to yourself, Gareth. 

Diolch. Yes, there are three merits points. The first asks the Welsh Government to explain why the Order says that the wording of the letters patent and the royal proclamation is

'subject only to such variations as are necessitated by the circumstances.'

The Government provided a very helpful response on Friday, and it says that this power to vary the words of the letters patent was used when the National Assembly for Wales changed its name to Senedd Cymru and the power could also be used to vary the words of the royal proclamation to remove the reference to the Senedd being dissolved where there is no need for those words because the Senedd has already been dissolved. So, there is flexibility in the wording of the letters patent and the royal proclamation to take account of changing circumstances.

The second merits point relates to the number of days within which the Senedd must meet after an election. The wording of the proclamation does not need to say that the Senedd will meet within a specified number of days because, as a one-off, the Welsh Elections (Coronavirus) Bill says that the Senedd must meet within 21 days after the 2021 election.

And on the third merits point, which is, again, in the same general area, only in respect of extraordinary general elections, the current requirement is for the Senedd to meet within seven days, but that will in future change to 14 days, and the Welsh Government says that the power to vary the wording of the proclamation can be used to change the current reference to seven days in the proclamation to 14 days.

Thank you for that, Gareth. Are there any other comments or observations? Dai, this is your last chance to mention Hywel Dda. 

Okay, we'll move on to item 3.2 then, which is the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 3) Regulations 2021. This instrument makes amendments to the Health Protection (Coronavirus, International Travel) (Wales) Regulations 2020 to introduce enhanced measures relating to those arriving in Wales and also enhanced information requirements on travellers. The regulations were made on 13 February and they came into force on the fifteenth. There are a number of reporting points, I think. Over to you, again, Gareth.

There is one technical point and seven merits points. The technical point notes several incorrect cross-references in the regulations. Many of the merits points raise familiar issues around breach of the 21-day rule, no formal consultation, et cetera, and the second merits point notes the sheer complexity of the international travel rules. Pack pages 62 and 63 provide good examples of that complexity, and the merits point notes that, where such detailed rules are necessary, then they could be backed up by more detailed explanations in the explanatory memorandum.

Okay. Any comments, observations on that? I don't see any.

So, we'll move on now to item 3.3, the Health Protection (Coronavirus, Operator Liability and Public Health Information to Travellers) (Wales) (Amendment) Regulations 2021. These regulations amend the Health Protection (Coronavirus, Public Health Information for Persons Travelling to Wales etc.) Regulations 2020 and the Health Protection (Coronavirus, International Travel, Pre-Departure Testing and Operator Liability) (Wales) (Amendment) Regulations 2021. They do so by placing corresponding and complementary duties on operators as a consequence of the additional restrictions placed on passengers by the Health Protection (Coronavirus, International Travel) (Wales) Regulations 2020. Again, there are a number of merits points that have been identified. Gareth.

10:35

Yes. There are just some familiar merits points relating to things like breach of the 21-day rule and no formal consultation.

Okay, thank you for that. Any comments, observations? If not, we move on to a number of regulations, six sets of regulations, which are itemised in our agenda as 3.4 to 3.9. I just mention those because they are scheduled for debate in Plenary on Tuesday, 8 March. If we can start with the Local Government and Elections (Wales) Act 2021 (Consequential Amendments) Regulations, these regulations make consequential amendments to primary and secondary legislation arising from the commencement on 1 April 2021 of the provisions in Chapter 1 of Part 6 of the Local Government and Elections (Wales) Act 2021. There are a number of merits points identified. Over to you, Gareth.

There are just two merits points, both asking the Welsh Government to explain when certain provisions of the Local Government and Elections (Wales) Act 2021 are expected to come into force.

Thank you. Any comments, observations? I don't see any.

On to item 3.5, the Equality Act 2010 (Authorities subject to a duty regarding Socio-economic Inequalities) (Wales) Regulations 2021, an important implementation of section 1 of the Equality Act. Section 1 of the Equality Act provides that a relevant authority

'must, when making decisions of a strategic nature about how to exercise its functions, have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.'

The duty is due to come into force in Wales on 31 March 2021 by way of a commencement Order, and these regulations, if approved, will come into force on 30 March 2021. The duty is to be supported by statutory guidance, which has been laid before the Senedd. Section 1(3) of the 2010 Act lists the relevant authorities in Wales to which the duty will apply and these regulations add to the list of relevant authorities in Wales. There are some technical and merits points identified. Gareth.

Yes, there are two merits points. As for the first, these regulations relate to socioeconomic inequality, so the merits point asked the Welsh Government about the equality impact assessments it had carried out. The Government responded on Friday to say that an integrated impact assessment has now been published—sorry, an integrated impact assessment been carried out—and that sections 1, 3 and 7 of the impact assessment have been published and that the remaining sections of the impact assessment are routinely made available on request. But it doesn't explain, however, why some sections have to be requested. And the second merits point notes what the explanatory memorandum says about a post-implementation review of this new socioeconomic duty.

Okay, well, as I say, those will be coming up for debate, so no doubt there will be a series of questions on that, and no doubt we will have a response in due course. Any comments or observations from Members? Okay, thank you for that.

We now have four sets of regulations. These are items 3.6 to 3.9, which are referred to collectively as the climate change (Wales) regulations 2021, which put in place statutory emissions reduction targets for reducing emissions of greenhouse gases in Wales, which are required under the Environment (Wales) Act 2016. So, we start with the first one of those, which is the Climate Change (Interim Emissions Targets) (Wales) (Amendment) Regulations 2021. These regulations amend the Climate Change (Interim Emissions Targets) (Wales) Regulations 2018 by increasing the interim targets for 2030 and 2040 from 45 per cent to 63 per cent, and then from 67 per cent to 89 per cent respectively. A technical point has been identified. Gareth.

10:40

Yes, there is one technical point, which also arises in the next three agenda items. The preamble refers to 'the Senedd Cymru' when it should refer to Senedd Cymru. As I said, that point comes up in this suite of climate change regulations. The Government responded on Friday to say that it will correct the error. 

Okay, we note that, and thank you for that—drawing that to our attention. 

Item 3.7 is the Climate Change (Carbon Budgets) (Wales) (Amendment) Regulations 2021. Section 31(1) of the Environment (Wales) Act 2016 requires that Welsh Ministers set carbon budgets for each five-year budgetary period between 2016 and 2050. So, these regulations amend the carbon budget for the budgetary period 2021 to 2025 so it is limited to an average of 37 per cent lower than the baseline, and set the carbon budget for the budgetary period 2026 to 2030 so that it is limited to an average of 58 per cent lower than the baseline. A technical point has been identified. Again, over to you, Gareth. 

Yes, just the same point as previously raised.

Okay. Any comments, observations? If not, we move on to item 3.8, which is the Climate Change (Net Welsh Emissions Account Credit Limit) (Wales) Regulations of 2021. There's a technical point, again, that's been identified on that. It's the same technical point, Gareth?

Okay. Any comments or observations on those? No, I don't see any.

So, we move on to 3.9, the Environment (Wales) Act 2016 (Amendment of 2050 Emissions Target) Regulations 2021. These regulations amend section 29 of the 2016 Act to the effect that the minimum percentage by which the net Welsh emissions account for the year 2050 must be lower than the baseline is increased from 80 per cent to 100 per cent. That's the same technical point, Gareth?

Okay. Any comments or observations on that from Members? No. Okay, so we've noted that.

We move on now to item 3.10, the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 3) Regulations of 2021. This instrument makes amendments to the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations of 2020 in relation to schools, further education and restrictions on exercise. The Plenary debate in respect of this is scheduled for tomorrow in Plenary session. Again, some technical points and merits points identified. Over to you, Gareth.

Yes, the draft report raises some familiar reporting points around the Welsh Government's justification for any interference with human rights, no formal consultation, et cetera, and there is also a merits point that notes an incorrect cross-reference in the explanatory note to the regulations, and the Welsh Government is asked to respond to that point. 

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

4. Papurau i’w nodi
4. Papers to note

So, we move on to item 4 now, with some papers to note. We have the letter from the Minister for Environment, Energy and Rural Affairs on the Approved Country Lists (Animals and Animal Products) (Amendment) Regulations of 2021. I think we're just invited to note the letter from the Minister, which confirms that she has given her consent to the making of these regulations. She states that the Welsh Government's general principle is that it is appropriate to ask the UK Government to legislate on its behalf in a large number of statutory instruments in these exceptional circumstances. If there are any issues on this, perhaps we can raise them in private session. Is that agreed? Okay, thank you for that. 

A further letter from the Minister for Education on the Curriculum and Assessment (Wales) Bill. We're just invited, again, to note the letter from the Minister in relation to the Bill and the laying of an updated version of the explanatory memorandum. So, we just note that. 

We move on, then, to item 4.3. We have the letter from the Minister for Housing and Local Government on the British-Irish Council joint housing and spatial planning work sectors ministerial meeting. So, this is just noting a letter from the Minister that confirms her attendance at the British-Irish Council, and the letter's been sent to us in accordance with the inter-institutional relations agreement that we have. So, we note that. 

Item 4.4, we have a letter from the First Minister with regard to the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) Regulations of 2021. That's the First Minister's letter of 25 February 2021 to note, and it responds to our letter of 11 February, which requested further details on the equality impact assessment that was carried out in relation to the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) Regulations 2021. Can we defer that to private session if there are any issues there?

Okay, item 4.5, we have a letter from the Minister for Housing and Local Government: first review of preparations for the 2021 Senedd election in accordance with the Welsh Elections (Coronavirus) Bill. So, again, we're invited to note the letter regarding the first review of preparations for the 2021 Senedd elections in accordance with that Act. And again, it's been sent in accordance with the inter-institutional relations agreement that we have. Any issues on that, we can raise them in private session. 

10:45
5. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
5. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

Okay, that brings us to moving into private session, so 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 the Members agree? And I see there is agreement, so we now move into private session. 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 10:46.

Motion agreed.

The public part of the meeting ended at 10:46.