Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee


Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Alun Davies MS
Huw Irranca-Davies MS Cadeirydd y Pwyllgor
Committee Chair
Peter Fox MS
Rhys ab Owen MS

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Aled Evans Cynghorydd Cyfreithiol
Legal Adviser
Claire Fiddes Dirprwy Glerc
Deputy Clerk
Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Gerallt Roberts Ail Glerc
Second Clerk
Jennifer Cottle Cynghorydd Cyfreithiol
Legal Adviser
Katie Wyatt Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Sarah Sargent Ail Glerc
Second 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 13:30.

The committee met by video-conference.

The meeting began at 13:30.

1. Cyflwyniad, ymddiheuriadau a dirprwyon
1. Introductions, apologies and substitutions

Prynhawn da a chroeso, bawb. Croeso i'r pwyllgor y prynhawn yma.

Good afternoon and welcome, everyone. Welcome to this committee meeting.

Welcome to this virtual meeting of the Legislation, Justice and Constitution Committee. The normal reminders: we're broadcasting the meeting on Senedd.tv, and the Record of Proceedings will be published as usual after our committee deliberations this afternoon. Apart from the usual procedural adaptations to do with virtual proceedings, all the other Standing Order requirements remain in place. We've got no apologies today; all our committee members are here. As per normal, if we can just check—and I'm just checking myself—that all our mobile devices are turned to silent so we don't interrupt proceedings. Mine wasn't, so it is now. We're operating through both Welsh and English today, and we have interpretation available. We shouldn't need to mute and unmute ourselves—it will be done for us. We've got a fair bit of business in front of us on the committee's plate this afternoon.

2. Offerynnau nad ydynt yn cynnwys unrhyw faterion i’w codi o dan Reol Sefydlog 21.2 neu 21.3
2. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

As per normal, the first things we turn to are any instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We have under these an affirmative resolution instrument under item 2.1, which is SL(6)143, the South East Wales Corporate Joint Committee (Amendment) Regulations 2022, which seek to change the date on which certain functions will be conferred on the south-east Wales corporate joint committee. Our lawyers haven't identified any points for reporting, so could I just ask Members, are we happy to agree the draft report? We are. Thank you for that. 

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 go on to item 3 quite swiftly, which are instruments that do raise issues to be reported to the Senedd under the same Standing Orders, 21.2 or 21.3. The first of these is a made negative resolution instrument under item 3.1. It's SL(6)140, the Education (School Day and School Year) (Wales) (Amendment and Revocation) Regulations 2022, which look to reduce the minimum number of school sessions that must be held in the 2021-22 school year from 380 to 378. This allows for the additional bank holiday taking place during the half term holiday on 3 June 2022, in celebration of the Platinum Jubilee of Her Majesty the Queen. Schools, under these regulations, may choose, in agreement with the local authority, when to close for an extra day. Gareth, you identified one merits point for reporting.

Diolch. The committee has often had to ask the Welsh Government for information about equality impact assessments, while here there is a clear statement that such an impact assessment was carried out, and there is a summary of the main issues that arose from the assessment, namely the impact these regulations could have on disadvantaged and vulnerable families and those in poverty, who may have extra difficulty in making childcare arrangements for this extra day when there is no school.

Thank you very much. It's good to note when we have a clear and lucid explanation that backs up those assessments, so thank you for that, Gareth. We don't only make critical points when things aren't quite what we'd expect; we do note when they are good as well. But it also shows, of course, how well it can be done for—[Inaudible.] Colleagues, are we happy to agree those reporting points? We are. Thanks, Gareth, for your analysis of that. 

We move on to item 3.2, under the same general issue of ones where there are reporting points. We move to SL(6)141, the Government of Wales Act 2006 (Budget Motions and Designated Bodies) (Amendment) Order 2022. This amends the Government of Wales Act 2006 (Budget Motions and Designated Bodies) Order 2018 by removing North East Property LP from the list of designated bodies in the Schedule to the 2018 Order and adding North East Property (GP) Limited to that Schedule. Our lawyers have identified one merits point for reporting. Gareth.

Only to note that the Welsh Ministers had a choice whether to use the negative procedure or the affirmative procedure for this Order. They chose the negative procedure, which is usual with this kind of Order.


Thank you very much. With that being the correct way to proceed, are we happy to agree those reporting points? We are.

That brings us to item 3.3. Again, we're very familiar with these, as they come through this committee every time. It's SL(6)145, the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 3) Regulations 2022. We have some papers accompanying this item. These regulations amend the health protection et cetera regulations 2020 to reduce the self-isolation period for anyone testing positive to five days. We're familiar with this, because as per normal, we're dealing with these retrospectively; this is in the public domain already. They also omit a spent transitional provision relating to previous amendments to the isolation period. Gareth, you and colleagues have identified three merits points for reporting.

There are just the standard coronavirus-related merits points.

With those points, then, I'm assuming, colleagues, that we're happy to agree that report. Thank you.

Item 3.4, SL(6)147, the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 4) Regulations 2022. These came into effect from 6 a.m. on 28 January to provide that no alert level applies to Wales. This, as we all know, is also referred to as alert level 0. This means that there are no specific limits on the number of people who can gather together or that may attend events at any time, and that there are no requirements for any particular types of businesses or services to close. Again, Gareth, you've identified three merits points. Are these our regular ones?

Yes, they are.

Thank you very much. In that case, colleagues, are we happy to agree that? We are. Thank you.

Which brings us, then, to affirmative resolution instruments. We'll start with item 3.5, which is SL(6)142, the Plant Health etc. (Fees) (Amendment) (Wales) (EU Exit) Regulations 2022, which seek to amend the plant health et cetera regulations of 2018 by aligning the timing of the imposition of certain fees in Wales with the extended transitional staging period. We have one merits point you've identified, Gareth.

The merits point notes that consultation was carried out as part of the UK Government consultation. The consultation was issued to over 120 stakeholders, but only one response was received.

Okay. Thank you. So, all seems satisfactory there. Are we happy to agree that as a reporting point? Thank you, Gareth.

We move on to item 3.6, SL(6)144, the Corporate Joint Committees (Transport Functions) (Consequential Modifications and Transitional Provisions) (Wales) Regulations 2022. These seek to modify the Transport Act 2000 in cases where a corporate joint committee has been established by regulations and the function of developing policies under section 108 of the Transport Act 2000 has been conferred onto that corporate joint committee. They also make consequential modifications to legislation and transitional provisions, as well as revoking the Regional Transport Planning (Wales) Order 2014. Gareth, you've identified one technical point for reporting here.

Yes. The point asked the Welsh Government to explain a cross-reference to section 108 of the Transport Act 2000. Section 108 refers to both the development of policies and the implementation of policies, and given these regulations are only about the development of policy, the question is asked: why the reference also, then, to implementation of policy? The Welsh Government has provided a helpful response, which notes that section 108 has been modified specifically in its application to these regulations, and therefore the cross-reference to section 108 is correct.

That's excellent. Thank you, Gareth. Any comments? Are we happy to agree that reporting point? We are. Thank you very much.

We move on, then, to made affirmative resolution instruments. Under item 3.7, we have SL(6)138, the Non-Domestic Rating (Multiplier) (Wales) Regulations 2022, which provide that the non-domestic rating multiplier remains the same figure as that calculated for the financial years beginning on 1 April 2020 and 1 April 2021. We have one merits point for reporting. Gareth.


Diolch. The draft report notes that this relates to money paid into the Welsh consolidated fund, which is a reporting point under Standing Orders, and it also notes the helpful explanation provided in the explanatory memorandum. This freeze on the multiplier has an impact on the annual local government revenue settlement, and while freezing the multiplier will benefit ratepayers, it means the non-domestic rates pool will be reduced. That deduction will be covered by the Welsh Government, so there is no financial impact on local authority or police budgets. 

Thank you for that. Do we have any comments on that, or are we happy to agree it? Happy to agree it. Thank you for that.

4. Offerynnau sy’n cynnwys materion i gyflwyno adroddiad arnynt i’r Senedd o dan Reol Sefydlog 21.7
4. Instruments that raise issues to be reported to the Senedd under Standing Order 21.7

Item 4 is instruments that raise issues to be reported to the Senedd under Standing Order 21.7. The first of these is item 4.1, SL(6)146, the Sea Fishing Operations (Monitoring Devices) (Wales) Order 2022. This applies in relation to Welsh fishing boats, wherever they may be, and relevant fishing boats fishing in Wales or the Welsh zone. It regulates fishing at sea by prohibiting certain fishing boats from undertaking fishing operations without an operating vessel monitoring system. I can see a former fisheries Minister here nodding his head in recognition of this as well from a policy context. Our Senedd lawyers have identified two points for reporting under Standing Order 21.7. Gareth.

This Order is a no-procedure Order, meaning it does not have to follow the negative or the affirmative procedure in the Senedd. But even though it has no procedure, it deals with serious matters. For example, it says that fishing boats must have monitoring systems onboard that transmit information to the Welsh Ministers every 10 minutes, and it's an offence not to do so. The draft report notes the kinds of things that can be done with no procedure. It's also noted that the power that enables the Welsh Ministers to make this Order is over 50 years old, but it's still a valid power and allows even the creation of criminal offences with no formal Senedd procedure. So, this Order does not require Senedd approval and it cannot be annulled, even by the Senedd.

That's a fascinating point there, indeed. I don't know if there's anything you want to add, Gareth. Is this is a common device that we come across within the Senedd, or for that matter, in other Parliaments in the UK?

We often see no-procedure instruments, but none that maybe go as far as this one does. Where the no-procedure instruments aren't controversial, or they are simply commencing provisions of an Act, we don't usually report on them. But because this one is a bit unusual—. Maybe if these powers were being given in a Senedd Bill today, procedure would be attached to them. But 50 years ago, it was deemed appropriate for these kinds of powers to have no procedure attached to them. 

Okay. Thank you. I'm going to go to Alun, but it's good that this committee has flagged this and brought it to the attention of the Senedd in that case. Alun.

Yes, it is, and I'm grateful to Gareth for that. It may well be a matter to which we may wish to return, because it does feel to me, as Gareth has pointed out, that the creation of a new offence, where people might be subject to a summary conviction without any democratic scrutiny, is not a good thing. It may be that we want, in the fullness of time, to review these matters when we have an opportunity to do so in a more coherent and comprehensive way. I just feel that it is, in principle, not comfortable. 

Thanks, Alun. Okay. Well, we've surfaced this for the Senedd, but I think we might want to return to this in private session and perhaps discuss it further with the advice of our committee team as well. But, thank you, Alun, for that, and thank you, Gareth; it's a fascinating one. Can I just check that we're happy to agree the reporting points? We are. Okay, thank you.

5. Offerynnau sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3 – trafodwyd yn flaenorol
5. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 - previously considered

We turn to item No. 5, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, ones that have been previously considered. Now, the first of these in front of us today is item 5.1, SL(6)130, the Renting Homes (Supported Standard Contracts) (Supplementary Provisions) (Wales) Regulations 2022. We considered this instrument at our meeting on 31 January and laid our report the very next day. So, at this point, I invite Members to note the Welsh Government response to the report, which has since been received. But, I wonder, do we have any—? Is there anything to note on this in particular from your perspective, Gareth?

The committee previously raised a reporting point about the timescale for landlords to do certain things in relation to an inventory. There was no timescale, so it wasn't clear by when the landlord had to do certain things, and the Welsh Government response says that issues around an inventory are only likely to rise at the end of an occupation contract and therefore no specific time frame is required. The Government also said that a landlord is unlikely to not respond to comments made by tenants. And the response also said that, if the landlord does not respond to a tenant's comments, this could lead to the implication that the landlord agrees with the tenant's comments. I simply don't know to what extent that that reflects the reality between landlords and tenants, and I appreciate that that may be something more suited for policy scrutiny.  

Thank you, Gareth. It may be, colleagues, that, when we return to private session, we might want to revisit this, because I suspect that this is something we'll want to share, then, with the policy committee, for any further consideration that they want to do. But, Gareth, it's helpful that we've managed again to surface that additional detail from Government, explaining more detail behind this time element. So, thank you for that. Are we happy to agree that, note that? We are.

In which case, we'll go on to item 5.2, SL(6)131, the Renting Homes (Supplementary Provisions) (Wales) Regulations 2022. Again, we're considering this as an item under 21.2 and 21.3, where we previously considered it. So, we looked at this instrument at our meeting on 31 January and laid the report the next day. So, again, it's noting the Welsh Government response that has since been received. Anything additional in respect of this, Gareth?

It's the exact same issue as the previous regulations.

Thank you very much for that. So, on that basis, I think we're content to note that. And we move on to item 5.3, SL(6)132, the Renting Homes (Explanatory Information for Written Statements of Occupation Contracts) (Wales) Regulations 2022. Again, we looked at this in the same meeting on 31 January and we laid our report the next day. So, again, it's asking Members to note the response that we've referred to already. Anything additional, Gareth?

The committee previously reported that there was a lack of clarity around the compensation that could be claimed when a landlord was late in providing a written statement. The Welsh Government response said that the situation is clear when you look at section 35(6) of the Renting Homes (Wales) Act 2016, but how many tenants or contract holders will be aware of section 35(6)? The Welsh Government accepts that the regulations could be clearer and will consider making changes when it next becomes necessary to amend the regulations.

The committee also raised a point about the procedure for possession orders to be made and the Welsh Government response refers to a change to the law that is not yet in force and that we could not have known about at the time of scrutiny. Had this been flagged to us from the beginning, then it would have saved a lot of time and effort in scrutinising these regulations. And as regards the third point and potential duplication of a landlord requirement, the Welsh Government helpfully explains that the regulations do not duplicate and the drafting is correct.

Okay. This looks like another one where we'll have to pull some of our analysis of these responses together and contact the relevant committee. I'm not sure if I have to declare an interest as a member of that other committee, but there we are. We'll be writing to me and to others on that committee, I suspect, in private session. Any comments? Alun.


You reminded me with that declaration—I should declare that I am actually registered with Rent Smart Wales for the purposes of these conversations this afternoon.

Alun, thank you very much indeed for that declaration. Sorry, I also have to declare my—. It's on my register of interests as well. Rhys.

Yes, this is my fault here. I should have asked right at the beginning of the session for this, but there we are. They're on record now, and they're on the register of interests as well, but thank you for those declarations.

If we move on, then, to, having noted that, item 5.4—again it's under this batch of amendments here—this is SL(6)133, the Renting Homes (Wales) Act 2016 (Amendment of Schedule 9A) Regulations 2022. We have the report and the Welsh Government response once again. It's the one we looked at in our meeting on 31 January and laid the report the next day. Anything in addition on this one, Gareth?

In a few of the renting homes regulations, the committee reported on the lack of information about human rights impact assessments. None of the Welsh Government responses goes into any detail around the assessments carried out, and this one is another example. But the response says that the Welsh Government is satisfied that the regulations comply with human rights.

Thank you very much for that. Are we happy to note that? We are. And we move on to item 5.5, SL(6)134, the Renting Homes (Model Written Statements of Contract) (Wales) Regulations 2022. Again, this is the one we considered on 31 January and laid the report to the next day. So, we've had the Welsh Government response. Gareth, is there anything in respect of this item? 

The committee previously reported that the model written statements did not include a space for setting out the term of a contract. The term of a contract is a key matter—'key matter', not my words, but words used in the Renting Homes (Wales) Act 2016 itself. All other key matters are expressly referred to in the model written statement, but the key matter of the term is not. The Welsh Government response says you can slot the term in in several places, but it also accepts the regulations could be clearer, so there will be an amendment the next time these regulations are amended. Given that the term of a contract is a key matter and these written statements are designed to be models that landlords are supposed to be able to rely upon, there might have been an expectation that this lack of clarity would have been dealt with more urgently.

The committee also asked whether it would be helpful for the model written statements to include further information about what happens at the end of the term. The Welsh Government response says that, because you need a court order to be evicted, this would indicate that you have a right to remain in the property at the end of the term. But, for a tenant contract holder to come to that conclusion, it requires quite a leap. Again, the Welsh Government accepts the regulations could be clearer on this point and will look to make changes again when these regulations are next amended.

And finally, the committee reported on the Welsh Government's reliance on the regulatory impact assessment carried out for the Renting Homes (Wales) Act 2016. The Welsh Government says that the rationale for identifying costs and benefits set out in the RIA for the 2016 Act is still sound. That rationale was used to identify costs and benefits of these regulations but with updated costs. So, the 2016 rationale is applied, but reflecting today's costs.

Gareth, thank you very much. And I'd make the same points as we did earlier in response to that, that I think we'll return to this in private with a view to contacting the policy committee as well and updating them on what Gareth has helpfully uncovered in terms of more clarity. Thank you, Gareth, for that. Are we happy to note that? We are.

Which brings us on, then, to SL(6)137, Code of Recommended Practice for Local Authority Publicity. It relates to the same matters, but another part of this. So, again, it's the meeting where we considered this instrument on 31 January and laid the report the next day, and we've had the Welsh Government response. Gareth.


Only to say the Government accepts the points raised by the committee and will make the necessary changes.

That's great. Thank you very much for that. I should make it clear as well, for anybody watching in on this on Senedd.tv or following the transcript later, that we're not the policy committee on these matters. What we're looking at is the technical, legal and other merits point correctness of the legislation and instruments that are being passed here. But thank you, Gareth, very much indeed. That was really helpful.

So, we move on under the same set of items, which are ones that we reported on previously that we need to look at again. We're now going to turn to item 5.7, which is SL(6)139, The Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 2) Regulations 2022. We've had the report and the Welsh Government response, we considered this on 31 January, laid the report the next day and we've had the Welsh Government response subsequently. Anything to note on this, Gareth?

Very briefly, the Welsh Government is keeping under review the need to consolidate the coronavirus restrictions, and the Welsh Government is grateful to the committee for the suggestion it made as to making the explanatory material slightly clearer in one regard.

Thank you very much, and just my own thanks to colleagues for their consideration of these earlier and the focus that we wanted to put on whether there is a need now to consolidate these various regulations as we get to this particular point in coronavirus as well.

6. Cytundeb cysylltiadau rhyngsefydliadol
6. Inter-institutional relations agreement

So, we're going to move now to item 6, on from where we've been for the last few minutes to the inter-institutional relations agreement. Under item 6.1, we have correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd to the committee's letter that sought clarification on a number of issues regarding the regulations on the Official Controls (Extension of Transitional Periods) (Amendment) (No. 2) Regulations 2021. For the moment, unless there's anything specific that we want to add, can I suggest that we note this and we can return to it as needed in private session? Are we happy to do that? Yes. Okay, thank you.

Then we turn to asking you to note, under 6.2, the written statement and letter from the Minister for Rural Affairs and North Wales, and Trefnydd informing the committee she's given her consent to the UK Government to make the Ivory Prohibitions (Exemptions) (Process and Procedure) Regulations 2021 and the Ivory Act (Commencement No. 1) Regulations 2021. We've got a written statement and the letter from the Minister there. Are we happy to note those or does anybody want to raise anything at the moment? No, happy to note, and we can return, if needs be, in private session.

Under item 6.3, if you're happy to note the letter from the Minister for Climate Change that informs our committee that consent has been given by the Minister to the UK Government to make the Phytosanitary Conditions (Amendment) Regulations 2022. Are we happy to note? And we are.

7. Papurau i’w nodi
7. Papers to note

And then we've got some papers to note under item 7. The first one I'd invite your attention to is the written statement laid under Standing Order 30 notifying the Senedd that amendments have been tabled to the Public Service Pensions and Judicial Offices Bill that expand the Welsh Ministers' functions as regards firefighters' pensions. They do not restrict or withdraw them. The Deputy Minister states the Welsh Government is of the view that the amended provisions are appropriate. Are there any comments from committee members or from Gareth or anybody on this? No. In which case, we'll note them for now and return to them, if needs be, in private session.

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


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


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.

And that does bring us to item No. 8, which is the standard motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting so that we can go into private session. Do Members agree? We do. And we will now move into private session, and we'll wait for a few moments until we're told that we are in private.


Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:00.

Motion agreed.

The public part of the meeting ended at 14:00.