Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee

31/01/2022

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

Y rhai eraill a oedd yn bresennol

Others in Attendance

Dr Robert Parry Dirprwy Gyfarwyddwr, Deddfwriaeth Trefniadau Pontio Ewropeaidd, Llywodraeth Cymru
Deputy Director, European Transition Legislation, Welsh Government
Mick Antoniw MS Cwnsler Cyffredinol a Gweinidog y Cyfansoddiad
Counsel General and Minister for the Constitution
Paul Harrington Pennaeth Cysylltiadau Rhynglywodraethol, Trefniadau Pontio Ewropeaidd, Llywodraeth Cymru
Head of Inter-governmental Relations, European Transition, Welsh Government

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Claire Fiddes Dirprwy Glerc
Deputy Clerk
Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Gerallt Roberts Ail Glerc
Second Clerk
P Gareth Williams Clerc
Clerk
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 13:00.

The committee met by video-conference.

The meeting began at 13:00.

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

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

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

This is the virtual meeting of the Legislation, Justice and Constitution Committee. Just a reminder that these proceedings are always broadcast on Senedd.tv, and the Record of Proceedings will be published as usual. And apart from the procedural adaptations for conducting these proceedings remotely, all other Standing Order requirements remain in place. We have no apologies for today's meetings. All our colleagues are here. As per normal, if I can just remind colleagues to switch their devices to silent mode, we're operating through both Welsh and English today as always, and we have interpretation available, and you shouldn't need to use the microphones and the 'mute' and 'unmute' yourselves; it should be done for you. 

2. Sesiwn graffu gyda’r Cwnsler Cyffredinol a Gweinidog y Cyfansoddiad
2. Scrutiny session with the Counsel General and Minister for the Constitution

So, with that, we'll go straight on to our first substantive item this afternoon, and we're delighted, once again, to have with us the Counsel General and Minister for the Constitution, Mick Antoniw MS—always very welcome with us and spends a lot of time with us. We've got a lot to get through with you this afternoon, Counsel General, so thank you once again for your time. We're focusing on managing divergence within the UK, the common frameworks programme and so on, but it would be remiss of me, coming off an interesting and lively weekend where we've seen the announcements being made by the UK Prime Minister on, I think, what they've referred to in their press release, Counsel General, as the 'Brexit freedoms Bill', designed to cut EU red tape—. Now, it goes into some of the areas that we're going to discuss with you today, actually, in terms of retained law and so on, but could I just ask—? This wasn't unexpected, Counsel General; there has been talk of this before. Why has the response been so robust, not only from you, representing Welsh Government, but from Scotland as well?

I think it's been robust because we were called to a meeting, which was to discuss a number of items. It was a quadrilateral meeting, of course, between the representatives of Scotland, Northern Ireland and Wales, with the Attorney-General, and it was to discuss the publication to mark the two-year anniversary of the UK leaving the European Union. The agenda was really to have an overview and to have a review into the substance and status of EU retained law. The fact of the matter is that I think there was considerable dissatisfaction with the fact that none of us had any documentation in front of us. None of us had any information that would enable us to make any contribution to it in terms of the content, on what is something that I think goes potentially to the core of some of the legislative issues that affect us, post Brexit. We were, of course, and had been aware for some time, because of the statement of Lord Frost that was made in December, where he indicated that there was going to be a review of EU retained law. Now, that is something that obviously concerns us. He said then that the overall intention was,

'to amend, to replace, or to repeal all that...EU law that is not right for the UK.

Now, that's a pretty wide mandate. We were told also that there would be an announcement being made today in Parliament—a document that we have now had an embargoed copy of. I have not had an opportunity to read it, as you'd expect: 100 pages of documentation with regard to proposals. Now, bearing in mind that we'd only been told a little while back that the relationship between the nations of the UK was one to be dealt with on the basis of mutual respect and understanding and respect for the devolved settlement, you'll understand that it was a fairly robust meeting where there was considerable dissatisfaction and where certainly there are concerns in terms of what assurances we will want with regard to how this process will be carried out, what the engagement will be with the devolved Government and the principles that will underpin it.

So, that is probably as much as I can say about the content of it, because I've not had an opportunity to read it, and I think it is completely unacceptable to be in a situation where such a major announcement is being made and it is only this morning we receive an embargoed copy.

13:05

Thanks, Counsel General. I don't want to dwell on this overlong at the start of this session, although some of the areas you've touched on we'll come back to, and individual Members will want to pick up on as well; I'm sure they will. But can I just ask, acknowledging that you haven't had time to look at the detail of this, just on a very fundamental point, whether it is the view of you as Counsel General, and with your legal capacity on behalf of Welsh Government, that the status of devolved retained EU law is a devolved matter?

Clearly, there are aspects of retained EU law that relate to devolved areas, areas that were being talked about that we were informed of on Saturday that I haven't seen any details of yet in the report, relating to things like agriculture, relating to fisheries. I think it clearly will relate to things like standards. We were told about legislation that might relate to novel food standards. I wonder whether that is about the presumption of, I suppose, a protective approach in terms of standards, in terms of food. I imagine the same will apply in respect of environment. So, I think a whole range, potentially, of devolved areas are going to be impacted by a review of EU retained law, and what is proposed on how that engagement takes place with devolved Governments and between the devolved Parliaments is going to be something of very, very considerable importance, and that is why I think there is concern about the way in which this announcement appears to have been rushed through, for whatever reason. People can speculate on why it is being rushed through, but the fact of the matter is it has been rushed through, and there hasn't been the sort of engagement that should take place in a respectful relationship.

Okay, thank you. If colleagues will understand, I think there might be points relating to the questions we wanted to ask on this that you can come back on, but we'll proceed to the areas that we need to cover with you that we had anticipated covering with you first, Counsel General. If I could turn to the issue of common frameworks, which has been a big focus for this and the predecessor committee as well, on the state that we're at now, do you accept that it isn't feasible for common frameworks to be scrutinised and finalised by the end of March, given that most of the common frameworks have not yet been published for scrutiny?

I think the starting point is really just a narrative as to the frameworks that we have and, of course, the environment within which those frameworks have been discussed and considered. First of all, the whole basis of the frameworks was to achieve consensual agreement between the four nations on the internal market and all the breakdowns of that internal market. And reaching agreement on them has been, well, in many ways, quite progressive and quite successful. Of course, during the course of that process, the United Kingdom Internal Market Act 2020 drove a coach and horses through it and created a whole series of obstacles to it. But, nevertheless, there was a considerable amount of work in a lot of very technical, very detailed areas, and the fact of the matter was that until there was agreement between the four nations, which was one of the underlying principles, it was impossible, really, I think, to publish.

The point you make is absolutely right, though, in terms of maximising the period of time for scrutiny, and, of course, one of the issues that emerged in terms of the timetable was the Northern Ireland elections in May. So, there was clearly some requirement to move quite quickly on that.

Where we are at the moment is that, of course, the hazardous substances planning framework was published in August. There are seven that have now been published for scrutiny. I think there are 14 that are due to be published imminently, of which 10 have had four-nation ministerial clearance, and there are another four that are a bit more contentious that are in development at the moment. I perhaps might go over to Piers just on the absolute current state of the frameworks—sorry, to Robert. I beg your pardon.

13:10

Yes, Counsel General. So, a number were published for scrutiny in the autumn. We do have, as you outlined, quite a few of the remaining ones to be published in the next week or two, we're hoping, and then there are a few that are still being worked on and due to be published as soon as we can. My colleague Paul may want to add something, possibly.

Thank you very much, Rob. About 13 or 14 frameworks should be published hopefully by the end of next week, and certainly within the next two weeks, we'd expect. But just to go over that there are four frameworks that are still going through a certain level of policy development. Very briefly, they are the mutual recognition of professional qualifications; the services framework, which has actually made dramatic progress in the last few weeks, so we would hope that would be available over the next few weeks for ministerial sign-off; resources and waste, however, has some policy issues that are being resolved; and finally the emissions trading system, some of the wording of that framework is being reviewed. I don't think, with ETS, it's so much a policy disagreement as in finding an acceptable form of language, so we would hope that won't be too much delayed. 

Thank you very much. That's really helpful, outlining the remaining timetable there. Sorry, it was remiss of me at the beginning not to introduce your colleagues there, Counsel General: Rob Parry, deputy director of European transition legislation, and Paul Harrington, head of inter-governmental relations, European transition, if I've got those titles right there. Let's go on, then, to Peter—on to you.

Thank you, Chairman, and it's good to see you, Counsel General. Just building on Huw's first question, if I may, and that is about what the political and legislative risks are if provisional common frameworks are not scrutinised and finalised by Ministers by the end of March. What do you think the implications of that will be?

Well, I think it is very important that they are scrutinised, and I think there is recognition, really, of the actual demands the scrutiny process actually takes within such a short period of time. Of course, one of the difficulties all along the way has actually been the ability to actually publish them. They couldn't be published earlier, until there was actually four-nations agreement over them and, of course, until there was agreement as well in terms of a process for exclusions and when there was also in terms of, I think, an agreement on the timetable for publication. I know that there has been quite an amount of behind-the-scenes contact on it, but, of course, the demands are great.

I gave evidence a while back to one of the House of Lords committees on this, and I pressed the point. And I think, Peter, at the time, when we last discussed this, you were mentioning that you were pleased with the fact that there was going to be a review process as well, as these go along. So, this is going to be an ongoing process as well. But, in essence, does it create enormous demands? It does create demands. Would we want more time? The answer is 'yes, we would.' There are certain factors that are obviously in place with regard to these, and those are the Northern Ireland elections and so on.

Do you think there are any mitigations you can take to offset some of those risks? 

I think the only thing we can do by way of mitigation in terms of risks is to ensure that there is ministerial availability in terms of the scrutiny process—there are, obviously, going to be significant demands there—and that the publication of the frameworks and the supportive documentation is made available. Now, some of the frameworks will be easier than others—shorter and simpler—and the actual scrutiny process may be relatively straightforward. With others, there may be issues that arise and we'll have to wait and see what happens on that. But I can say that we are very alert to that need for scrutiny. Paul, I don't know whether there is anything you'd say in terms of that engagement, or maybe Robert, in terms of the scrutiny and the process that will take place in terms of the publication and the availability of the supporting information on those frameworks.

13:15

Yes, Counsel General, you're absolutely right. Ministerial availability has been key to this, and I must say, the Welsh Government has actually been pretty much ahead of the game in processing frameworks as quickly as possible. Maintaining that kind of reliable process has been key to the frameworks that we've seen. I've just been informed that nine Department for Environment, Food and Rural Affairs frameworks are on schedule to be published on 3 February, and that's been as a result of a lot of behind-the-scenes work. That will greatly move the situation forward if those nine frameworks are published to schedule.

Sorry, Peter, I just wonder if I could ask on a point of clarification there—. We're picking up the impression that you think things will be completed by the end of March. 

'We don't know' is the answer to that. It's not in our hand. Welsh Government Ministers and officials have moved forward the frameworks very quickly, as quickly as possible. There are some Department for Business, Energy and Industrial Strategy frameworks outstanding. Where there are policy differences in a framework, that's a much more difficult situation. There are a lot of moving parts with some of the frameworks. So, I would say that the answer would be 'no'; I don't think all of the frameworks will be available. But in the next few days, we could see a considerable improvement in the situation.

Okay. The obvious follow-on from that is: if they're not all done, what then?

The frameworks have been working at an operational level since the end of 2020, and I think pretty successfully overall; I think they've made a very strong impact in the way that officials develop policy, and that will continue. But of course, as the CG says, they won't have the input of legislatures and they won't have the input of committees. That would have, I would say, a certain impact on their status that is undesirable. But they will be operational documents, and that work will continue.

There we are. Sorry, Peter; my bad for interrupting you there.

That's a really good question, actually. I'm just wondering, if they've been in operation, albeit in their preliminary stages, how are they likely to get altered due to scrutiny afterwards? Are they pretty fixed? Is this just going to be a rubber-stamping exercise now?

Not at all. If I may answer that, it's certainly not. As you know, there have been long-standing commitments that frameworks are not finalised until they've had the input of committees. The process will and must ensure that that input is acknowledged in the framework. It's absolutely not a rubber-stamping exercise.

It's fair to add to that as well, of course, that this is exactly the same process of scrutiny that's going to be going on now within Scotland and in Northern Ireland as well, and, indeed, at UK Government level. And as I made the point as well, there will be a review process. There will be an ongoing review process in terms of the operation of these, because all sorts of other issues begin to kick in to these in terms of the internal market Act, the exclusions, and we, of course, are awaiting the judgment in terms of our own appeal on the internal market Act and so on. So, there are a number of factors around this as well. But as has been said, their status is effectively almost hybrid until that scrutiny process has taken place. There's been reporting back, there may be a review of any areas that may need to be changed or where there are things that emerge from the scrutiny process. So, it is not the case that what is submitted to you is there and is writ large and it will not change; those opportunities are there. How that process will work in practice, we have to wait and see. Obviously, with the four Governments involved, it has been one that has been complex and one that has had certain developments that have caused delay and disagreements that have had to be resolved.

Thank you, Counsel General. I think that we can acknowledge the challenge of everything getting to this stage.

I'll move on a little, if I may. How will you ensure that the Senedd and the wider stakeholder group can understand and influence common frameworks as they continue to develop? I heard what you just said about committee work and different things, but, obviously, there's going to be a wider stakeholder base within this as well.

13:20

I will go over to Paul in a minute, but it's going to be very much to the committees, as well, in terms of their engagement process, depending upon the nature of the particular framework that is being scrutinised, and feedback. As I understand it, there is some stakeholder engagement already. Are you able to add any more on that, Paul?

Yes. Ongoing monitoring is something that the CG has raised a number of times and spoken to committees about, and there is a proposal currently among senior officials on how frameworks should be scrutinised after they've been signed off, and how stakeholders would be engaged in that process. So, we don't really see it at all—. Though it's not been finalised, and it's still in discussion, there is a commitment to have post-sign-off scrutiny, but the actual mechanism of it is still being developed. As we see it, there should be reports, portfolio, constitutional Ministers should be involved, and committees should be involved in the development of the frameworks.

Okay. Thanks. I understand that a key plan will also be a dedicated webpage for stakeholders, and that there's going to be an inter-institutional relationship agreement that is pulling that together. When does the Government intend to make that available? Is the Government going to be able to meet its commitment to put that webpage up?

I'm sure the Government will be able to meet its commitment to put the webpage up. In terms of the timescale on that—Paul.

We've had discussions internally on this, and we don't see that that's a problem. The frameworks initially will be available on a UK website, but when they reach their final form, have had input from committees, they will be available on the Welsh Government website with translations, where appropriate, and with the joint badging. So, the frameworks will be available on a website, as well as what you referred to. 

So, you can access the website at the moment, but it's the UK Government—

That's true of all DA—. As they're in development, yes, that is the case at the moment.

I was just going to say, only because it's part of the consideration of the process, that part of the inter-governmental relations review—and I know, before this committee, I've referred to it, and, indeed, in the Senedd—in itself is going to involve the inter-ministerial standing committee, with Ministers from the four nations. So, the ongoing review is actually going to be taking place at a governmental level as well, and I've no doubt, as well, that that will feed in to the work of committees, as that is ongoing as well.

I see. Stakeholders obviously have got to find this information for themselves; is there a reason why they couldn't be routinely consulted as part of an inter-governmental decision-making process?

I would've thought that, once the scrutiny process has taken place and they're signed off, part of the ongoing inter-governmental review that will be there—that the issue of stakeholder engagement with how things are working and what the impacts are will be part and parcel of that. That may be something, of course, where each of the various Governments will determine how best they actually want to do that. But I certainly see that as part of the process.

Of course, the difficulty with doing anything ahead of time has been the fact that, until we got to a stage where there was a possibility of getting agreement now between the four nations to proceed with the common frameworks—. And I think, if I remember rightly now, that was achieved in November, so only very relatively recently. So, I think I can make the point that we all understand the pressures that are going to be there, and the role of committees is going to be very important in the short term, but also, I think, in the longer term.

Thank you. Counsel General, I assume you are still standing by the commitment made in the previous Welsh Government to notify the Senedd when legislation relates to a common framework; I take that as read.

That's fine. Is the Welsh Government going to be content to notify the Senedd when a dispute over common frameworks is escalated to Ministers? Will we have that much insight?

13:25

It's a good point. I think the answer is probably 'yes', because part of the relationship, I think, in the inter-institution arrangement that's been agreed is actually in order to notify the committee of these sorts of developments. I would expect that to happen.

Just building on that challenge, if you like, if the Welsh Government is content to notify the Senedd and stakeholders when a common framework is reviewed, will it then consider recommendations made by the Senedd and stakeholders as part of that same review process? I think what you said earlier is that we, clearly, and stakeholders, will have an opportunity to influence things. 

I think that's absolutely right. It's important that all those who participated, whether it be at governmental level or in terms of participating in what the framework is about, will be engaged in this to see how it actually operates and to make sure it operates in the best interests of Wales. I think it's also important to recognise, of course, that these are common frameworks—that is, there are other interests in respect of other countries involved. There may also be engagement in terms of exclusions with regard to the internal market Act. We'd like to see most of this excluded, but there are processes that exist for that to actually happen, and that requires a certain amount of common agreement between the four nations to actually achieve that.

Thanks for that. The last one from me: I'm hoping that the Governments have agreed that annual reports on all individual common frameworks will be published. Can we expect that?

I would certainly expect that. I remember you raised this point last time I gave evidence on this particular area. As I mentioned, there's going to be a review process and it will kick in also into the inter-governmental review that has taken place as well.

Thank you very much. It's a bit of a rollercoaster ride, isn't it, Counsel General? I think the last time we met and had these conversations, you were quite bullish and quite optimistic about the future of inter-governmental relations. We'd just had a statement made that we'd got new structures in place. And you come to us today—how shall I put it? I'd never like to call you 'down in the mouth', but less optimistic. Is it cock-up or conspiracy? I think, quite often, we assume that the UK Government has got a plan, and all of us who've worked within different governmental organisations are familiar that it's more cock-up than conspiracy, but what do you think is happening? Does UK Government understand inter-governmentalism in terms of a way of operating? 

Starting with your first point, is it a rollercoaster? I don't know. At the moment, it seems more like dodgems than a rollercoaster, or maybe a bit of both of them. It has to be said it is not a good start. As I've said, the common response from Northern Ireland, Scotland and Wales is making exactly those particular points: that having just got to a stage where we've had discussions within the Senedd, and I'm sure in the other Parliaments of the UK, about setting a new tone in terms of inter-governmental relations, having had a new review, this isn't something that actually gets off to a very good start. That's a point that has been made very strongly, and that will continue to be made.

I suppose the proof of the pudding is going to be in what actually happens after this, and that really means they've got to review very carefully the retained EU law proposals, what the engagement might be and what assurances we might get. I think one of the assurances that I made on Saturday and that I'm sure will be part and parcel of what we want to seek is that this will not be another sort of UKIMA-style power grab, that it will be one that properly respects the common interest we have in ensuring that we have the best laws applying for the interests of the Welsh people. I don't like to speculate on whether it's a conspiracy or bad planning, but I have to say that the timing of it has certainly been rushed through, and individuals will have to speculate themselves as to why that is. 

13:30

Yes, and I'm not sure it takes an A-level in politics to understand that. I won't press you on those matters, Counsel General. You say the proof of the pudding is in the eating, and that's fair enough, but this issue that we're dealing with today does come after the inter-governmental agreement, of course. So, the proof of the pudding is pretty disappointing so far. We had an agreement whenever that was, some weeks ago, you come to the Chamber, you come to this committee saying it's a good agreement, we have all sorts of press releases coming out of London saying it's an even better agreement than we realise, and then, a couple of weeks later, the evidence is that, 'That was last week, this is this week, and we're doing things the same old way.' It's very difficult to reach a different conclusion other than the UK Government really doesn't give a damn about inter-governmentalism, whatever it says in today's press release.

Well, 'disappointed', I suppose, would be to put it mildly. I certainly felt quite angry at the events, because of the amount of time that officials in Governments have invested in bringing together what is I think a positive reform of inter-governmental relations. So, it is not a good start, but we have to move on from there, and I think starting to move on from there will be to actually start seeking the assurances that we will require—and not just us; it will be, I'm sure, that the other nations of the UK will want the same assurances—that this is going to be carried out in accordance with the principles that are set out very, very clearly in the inter-governmental review and, again, in the statements that have been made in the Senedd. I wonder, if it were not for recent events, that there might have been a more thoughtful approach, and that what has happened is that there's been an overriding of some of those respect issues in order to rush through the announcement. As I've said, it's not appropriate for me, probably, to comment further on that, other than it has been rushed and I do hope to make a statement at some stage on the retained EU law issue. And I'm certain that I'll be back before this committee when you've had an opportunity as well to see the proposals. Like I say, at the moment, you probably know as much as I do, because, although an embargoed copy has been received, I don't think anyone would realistically expect a Government Minister to have been able to read and absorb this in time for the Government announcement that's being made.

Okay. So, an early opportunity for us to practice our Christian forgiveness. I think we're grateful to people for that, at least. In terms of the the inter-governmental agreement, though, part of that was an agreement on a disputes procedure and how different interpretations may be reconciled. One of the aspects of the internal market Act and the situation facing us is that you can apply for—and you've already intimated this in response to Peter—seek exclusions from different elements of it. Now, my understanding is that those exclusions will be enacted by a UK Government Minister, so in many ways the UK Government is both a participant and the decision maker on these matters. Would a disagreement over an exclusion, for example, in the IMA, be subject to these dispute mechanisms?

Well, I think the answer is that ultimately it would have to be. There is a process of escalation through from inter-ministerial to the meeting of First Ministers and so on. So, it would only be, I think, the most serious matters that you would want to go through a disputes process that is an independent process. In terms of exclusions with regard to common frameworks and so on, again, there is a process there that does require common agreement, putting the case for an exclusion as to why a country may want to do something that is different from the framework in order to achieve that. Now, that is a process that's been agreed between the four nations. It creates a certain level of parity between the nations enabled to achieve that, but of course any major constitutional issues that are going to arise out of any of these issues ultimately are something that will either try and be resolved at an inter-ministerial level, or, if that can't be, it is escalated. Precisely how the independent disputes process will actually work at this stage, I think there's a bit more detail awaited on that, as there is in terms of the appointment of an independent secretariat for this process. 

But the point you made earlier is this: here we are, we're about to embark on this whole new set of inter-governmental relations processes, and this hasn't been a good start. It's a bit like having a penalty at the beginning of a football match, in the first 10 seconds, isn't it? 

13:35

It depends which side you're on, of course. For most of this season, Cardiff would have relished the opportunity to miss a penalty in the first half. 

But, in terms of taking this forward, the Office for the Internal Market has started its work and will be publishing its first report in the spring, which I assume will be this year. Have you had any conversations with the Office for the Internal Market about how they will go about their work, their ways of working, how they intend to create links between the different Governments and what your expectations are for this report? 

Yes, obviously, the issue of the establishment of the Office for the Internal Market—. It's important that it isn't becoming an arm of UK Government, that it is there for the other nations of the UK as well in terms of the operation of the internal market. Obviously, those have taken place. In terms of the detail of those discussions, I'm not sure—. Paul, are you the best person, or would it be better—? 

Robert, if we go over to you, then, because I think you've been involved in the processes. 

Yes, thank you, Counsel General. Yes, officials have been involved with officials from the Office for the Internal Market regarding its setting up and ways of working, and we've commented on various documents related to that. We've been impressing upon those officials the importance of the OIM acting impartially and in an even-handed way, respecting the four Governments and legislatures across the United Kingdom, and those discussions continue.

We've also had—. A senior Welsh Government official has also been on the interview panel for the chair of the OIM, and will be for the panel members to be appointed to the Office for the Internal Market.

I understand that the head of the Office for the Internal Market is Steve McGregor, who was appointed last year. Now, that would imply to me that somebody with that background in knowledge of both Wales and of how Government operates, and his experience in Brussels, would also be extremely sensitive to the needs of the different Governments. So, I would anticipate there to be a very serious and deep knowledge of these matters within the Office for the Internal Market. 

So, it means, therefore, I would have thought, that it is even more important therefore that the political oversight of this office also has that same level of knowledge and understanding of the relationships between the Governments on these islands. Are you confident that that political oversight is either in place or being put in place, and will have that same sensitivity, if you like, and knowledge?

Robert, can you expand on the oversight arrangements?

Well, the Office for the Internal Market is part of the wider Competition and Markets Authority. You mentioned Steven McGregor—I think his role is to do with relations with the devolved authorities, as far as I know. I may be wrong on that.

Yes, well, the OIM is set up to be impartial. As I said, we did have a senior official involved—we have a senior official involved—in the appointments process for the chair and the panel members. In terms of political oversight, I understand the OIM has been in touch with Senedd committees also. We'll see how that develops going forward, but, as I mentioned earlier, we have been impressing upon the organisation the importance of them acting impartially and in an even-handed way regarding the four devolved Governments and legislatures. 

13:40

I think the point there, isn't it, is that it's very early days, but those are clearly issues that are on the radar, but they are very fundamental. This is a new body and how it is going to operate is going to be very important to the Governments and that there is proper access to them and engagement with them on a fair basis. So, the point you make in terms of the oversight and awareness of what it is doing will be very important. 

And it's important that the Welsh Government is engaged in the process to get it right as well. 

I'm grateful to you for that, Counsel General. On a final note, when you were here in November, you confirmed that the hearing on the Welsh Government's legal challenge to the internal market Act would be heard earlier this month. I'd like to ask you to confirm whether that that took place and, if it did take place, what do you anticipate will come from it?

Okay. Thank you for that. Yes, the appeal hearing did take place. I think it took place, if I'm right, on 18 January. I think it was a one-day hearing. There were submissions that were made, and we are awaiting judgment. So, there's probably very little I can add other than that the case has been put and, when the reserved judgment is received, it is obviously something that we're going to have to evaluate very, very carefully as to what its implications are for us or, basically, what it means as to what further steps there may be, or otherwise.  

No, we don't, I'm afraid. With reserved judgments, I think, as probably Rhys will know, it's very much in the hands of the judges at the time. We would hope sooner rather than later, but we're probably talking about a matter of weeks. 

Thank you very much, Alun. And we'll go on to Rhys, please.

Prynhawn da, Cwnsler Cyffredinol. I wanted to ask first about Welsh Government influence over international policy in common framework areas. How much influence, in reality, will Welsh Government have?

Well, it's a very good question and it's one that has been raised. It was one of the cross-cutting issues in the development of the frameworks. There was agreement in the process that devolved Governments will be engaged in the international processes and, again, it's one of those where we now have to wait and see how that works in practice. Certainly, on the basis of the Scottish Supreme Court judgment, international relations are a reserved matter, effectively fulfilling the royal prerogative powers, but that implementation in terms of devolved Governments are matters for those Governments. So, that relationship is a very important one. We have made it clear, as indeed have other nations, in terms of the importance of that engagement. I suppose what we can say at this stage is that is recognised, but we have to be very alert to ensuring that we do maximise our input into those engagements, and it's something that will obviously need to be scrutinised as we go along.

Paul, is there anything further you can add on that? 

Just to comment, Counsel General, that in some areas the frameworks have clearly given greater equality to devolved administration officials. And, clearly, that gives them more leverage. And this is partly psychological and partly a matter of practice when it comes to international relations. So, the frameworks weren't formally designed to push forward any devolved administrations influence in international relations, but the fact it does give policy leads a greater platform, I think, gives a lot of potential for better engagement in those areas. 

Thank you very much. Counsel General, following the inter-governmental review, do you anticipate an update to the international relations concordat? If so, when? And, if so, what changes do you anticipate?

Well, listen, it has been agreed, I think, between the four Governments. It has been published; it is there. Work is under way in terms of beginning to put it in practice, but, for all intents and purposes, it is there now as the basis for those inter-governmental relations, which is why, as I mentioned earlier, there was such a robust discussion about the recent events and the events that had taken place today. Obviously, it will take some time in terms of putting in place the secretariats and the operation of the processes, and I think some of the first meetings are being planned. Robert, do you have any more details on that, or over to Paul? Robert, you're muted. Paul, it's with you. 

13:45

I was just saying, Rob, do you want to take that one?

Sorry, I lost you then, Counsel General. Could you just repeat that? 

Yes, just in terms of the inter-governmental review and, I suppose, getting it up and running, et cetera, and operating, what the state of play is with that and in terms of any process of meetings that are being planned on it. 

Well, as we heard a little bit earlier, the joint review was published in its final form a couple of weeks ago. We're still in the early stages of putting together the actual details of how that will work in terms of the inter-ministerial standing committee to which you referred earlier, Counsel General, and so on. So, we're still at the very early stage in the practicalities of putting that together.

And I think the same applies, in particular—. The one that I know that will be of particular concern is, actually, the operation of two committees. One is the committee of the meetings of the First Ministers and Prime Minister, which requires the participation of the Prime Minister in that particular committee, and also, then, the operation of the disputes process and how that might operate, and the sorts of issues that might be raised there, and how an independent dispute process will actually be implemented and the regard that's given to the decisions that are taken by it. So, it is very early days. If we were having this meeting in three months' time, I think we might have a bit more meat on the bones, so to speak, but I think all we can say at this stage is that all these processes are very, very new, and there's still quite a way to go before we know precisely how they are going to work in practice.

Thank you, Counsel General. How content are you or how satisfied are you that these common frameworks will provide greater engagement for Welsh Government, especially when it does intersect with the new UK-EU institution framework? Are you content that this will create a stronger voice for Welsh Government? 

I'm pretty confident that it will achieve a stronger voice for Welsh Government. Certainly, they are the product of work between the four Governments over a period of time. In many ways, the sort of engagement that we were promised right at the beginning—the changes, the organisation and arrangements in respect of the internal market, the development of common frameworks—would be consensual and it would be based on common interest. And, to a large extent, that is what has actually happened with the common frameworks, apart from, of course, the issues around the intervention of those cross-cutting issues—the internal market, the Northern Ireland protocol and the trade and co-operation agreement. So, those are things that, of course, have created problems along the way, but the fact is that we got to a stage in November where agreement was capable of being reached between the four nations on these. 

Now, listen, in all these things, it is ultimately dependent—and it's, of course, one of the weaknesses in our constitutional arrangements—on goodwill and trust. And, of course, we do know that goodwill and trust have often been in short supply, as we know only this weekend and today. So, there is still a way to go, and whether these actually work in practice as they are intended to is going to depend upon, I think, the maturity and the responsibility of the Governments involved, but, I'd say, in particular in terms of the UK Government. Mutuality and respect, I think, are really the absolute cornerstone of that, and if that isn't there and if it doesn't operate in practice, then obviously the outcome will be, perhaps, less optimistic than we might otherwise want.

13:50

Thank you, Chair. Just to add, referring to UK-EU relations, in terms of the operation of the trade and co-operation agreement so far, we've had relatively good engagement with the UK Government and the other Governments in the build-up to the various meetings of the specialised committees and the trade specialised committees, and I would expect that, in policy areas covered by common frameworks, the fact that we've developed good relations based on the common frameworks would help to further facilitate that engagement. That's something we can certainly build on, in terms of the frameworks and their ability to influence UK-EU relations going forward.

I think the point to be made in respect of Welsh Government is that we want to make this work, because if it works, it will be better for Wales and for the people of Wales. It will be better for the United Kingdom. So, we have every commitment whatsoever to do everything we can to overcome obstacles and problems that emerge and to make this a success. In order to make it a success, of course, there are other factors that need to be—. Everyone needs to be on the same level, so to speak. So, as I say, we will have to review as we go along there, but certainly, from our perspective, we want this to succeed and we will do everything we can to make it succeed.

Thanks, Rhys. Thank you very much. Counsel General, the question I'm going to ask may seem like a very technical one, but it's a very important one and it goes to the complexity of some of these issues as well. If there is a change, driven from Northern Ireland, to the common framework, through the Northern Ireland protocol, how does that change, then, get to be considered across the rest of Great Britain through the common framework? What mechanism is there? At what point is it considered? At what point do the four Governments actually consider the implementation of that change across the rest of Great Britain?

Well, that is one of the cross-cutting issues, isn't it? It's one of the factors that can have a significant impact on the viability and the workability of this. It's obviously been a sensitive issue all along, and of course there are elections that are coming up. I mean, I suppose, any major problems that emerge there will obviously be issues that will have to be discussed between the four nations as to the impact that they would have. The engagement with Northern Ireland, of course, has been a positive one throughout the process, recognising the difficulty they've been in, in terms of their status at any particular time. I probably can't really say much more than that, because it's one of those things that, until something were to happen, how you would actually engage with it and try and resolve it—. We would hope that it's something that wouldn't emerge, because the foresight of the consequences are there for all to see. Robert, is that something that you will expand upon? Or is that with you, Paul?

Well, yes, that's right—it isn't tested. Northern Irish officials sit on all of the framework groups. There is a mechanism, but, as I said, at the stage we are now it's not tested and the situation is rather fluid.

So, accepting that it hasn't been tested yet and we wouldn't want it to be tested, ideally, you've applied your great brain power to this in anticipation that it may happen. What would be the scenario? How would the four Governments work together on this, should there be such an eventuality that something out of the Northern Ireland protocol actually drove a change to common frameworks?

Changes to the common frameworks have to be achieved by mutual agreement between the four nations, so that would be the starting point, and something that were to happen that would change those would need to be put to the four nations. It would need to be evidence based. And then there would have to be a collective decision on that. That's how the frameworks actually operate in practice. You would hope that, in that way, there would be some form of solution that would be worked out by common agreement. But, as I say, there are many scenarios that one can speculate about. I think, at this stage, the only sort of common principle would be that the common frameworks have been achieved by common agreement and any substantial changes to them would also need to go through that process. That would be my understanding of that. Paul, does that—?

13:55

That's absolutely right, yes. That would be the situation, yes.

Okay. Thank you for that. Thank you very much. Alun, we'll come back to you to take us on, please.

I was enjoying the conversation, actually. I didn't really want to cut across it. I'm interested, Counsel General, in just pursuing the point that Huw raised. It would appear to me, as an onlooker, given the Northern Irish protocol and what its demands are, that a lot of these conversations would take place, but the influence of EU law is going to be very profound, because EU law is retained in Northern Ireland, and if you wish to maintain the four-country approach and there is a legal framework in one of those four countries, then, without changing that legal framework and agreement, the other three countries are going to have to reach all of those different agreements, as Huw has outlined and as you've confirmed, within the legal framework that exists.

I think that is absolutely right, and that is exactly why the review of EU retained law is of such significant constitutional importance not just in terms of the relationship between Wales and Scotland, but the very specific and complex relationship that exists with the role of Northern Ireland and its relationship currently with the EU vis-à-vis also its relationship with the United Kingdom. So, it is very significant and you would expect that any decisions that were being taken with regard to the EU at UK Government level would give very, very serious consideration to what the broader constitutional implications would be. A lot of this highlights, of course, the nebulous nature, if I put it that way, as diplomatically as I can, of our constitutional arrangements, and why the governmental review is important, or should be important. But you're absolutely right—they are of very considerable importance.

They certainly are, but can you envisage a situation—? I'm perhaps freer with my language than you'd prefer to be, but the United Kingdom Government lives for the front page of the Daily Mail, doesn't it? And its policies are angled and its approaches seem to be angled in that direction, so it's very easy to envisage a scenario, because it's happened already, of course: Boris Johnson gave an absolute, copper-bottomed guarantee to particularly unionists in Northern Ireland that he would do nothing to diminish their place in the union and then reached an agreement that did precisely that. It's very easy to envisage a situation whereby the common frameworks between the four countries very quickly become a common framework between three countries—Great Britain.

I suppose what is difficult is to speculate or to try and envisage circumstances in which the UK Government acts so irresponsibly that it causes a major constitutional fracture or crisis, and that is something that one would hope would be avoided or be in the uppermost of any actions that are being taken by a responsible Government.

You finish your sentences in a way that encourages me to continue asking different questions, but I won't pursue that.

In terms of where we are at the moment, you've told the committee, Counsel General, that Welsh Government will not roll back on EU standards that are in place at the end of the transition period and that you would seek to enhance protections wherever that's possible. Can you confirm that that is the situation—that EU standards have not been rolled back, and that you are looking, as a Government, to make further enhancements and protections to ensure that we continue to meet the highest possible standards of protection in this country?

14:00

One of the principles and positions the Welsh Government has taken throughout this process is that there should be no derogation from the standards that we actually hold to at the moment, and that the EU standards should be the very minimum that we should have. Of course, it has always been the case with EU law that they've always been minimum standards; they've never been something that have prevented any member of the European Union from wanting to go beyond. So, as far as, I think, Welsh Government is concerned, we want to maintain those standards. Where we can improve upon those standards, we want to improve upon those standards. 

The other aspect to it, of course, which is a slightly more nuanced issue, within the EU approach and EU law, has been the precautionary principle. And that is a principle whereby until something is established to be, for example, safe, you don't allow something to go in on the basis that you have to wait for adverse effects before you actually change the law. So, you adopt a positive and a forward-looking approach on standards in that particular way. I think that is an important principle and that is something I would not want to see go as part of the review of EU-retained law. 

Now, within Lord Frost's statement, when he made that back in December, of course he was talking about retained general principles of EU law, such as proportionality, the protection of legitimate expectations, et cetera, and difficulties of the courts in terms of the priority of UK courts as opposed to the EU court as well. He made the point saying that we need to consider whether a new body of law should be interpreted under UK principles of interpretation, or under those that apply to EU treaties and legislation developed for member states. Well, I think the approach that we would want to take on that is, ultimately, we want to see no derogation from the standards that we have, and that we would want to support, in the devolved areas of responsibility that we have, the ability to actually improve upon those. Our concern in terms of any review of EU retained law is that we don't move away from that devolved principle for Scotland, Wales and, indeed, Northern Ireland.

I agree with that. Lord Frost takes a great interested in democratic self-government considering he's never won an election in this life. It's always good to hear these tablets of stone being sent down the M4 to us all.

In terms of the direction of travel—I'm grateful to you for your clarity in that previous answer—the Minister for Health and Social Services has said the Welsh Government does not propose to make changes in Wales to keep pace with planned changes to EU law on blood tissues and cells. I gather that's the case. Have you made any assessment of the risks of not keeping pace with EU law in this case, and will you be continuing to monitor any impacts of divergence between Welsh law and changes to EU law as they happen in the future? And finally, will you ensure that the Senedd is informed of any such monitoring and where changes take place?

I don't think I'm a position to give you the details on the blood tissues and cells point that you raised there—a bit beyond that. But in terms of EU law and developments in EU law, I think there's a debate and an issue there in terms of what we would want to do to maintain improvements in our law in accordance with what might happen in other countries. We think there's probably a benefit to doing that now. How that might be achieved and the ability to be able to achieve that, I think, is something that's an important discussion. I don't think we want to see great divergence, certainly not in terms of those particular standards. There might be issues where there are things that we would want to do that might be different, but on the basis they would be different because they would actually improve the situation. But certainly, I know that it is one of those issues of concern as to how we actually maintain comparability in terms of those standards with those countries that we trade with, because clearly, this is an issue that emerges, obviously, in terms of the trade and co-operation. I don't know whether, Robert or Paul, there's anything that you could add on this. 

14:05

Well, just a comment on organs, tissues and cells. I think the comment—. The Minister referred to unilateral changes and the preference for a joint UK approach, which is obviously essential in that kind of area.

Would it be useful, Chair, if we asked the Counsel General to write to us on this matter, on the divergence between Welsh law and EU law, and how the Counsel General and the Welsh Government would see these matters being managed and, where necessary, public scrutiny and public information is made available? I'm particularly interested in issues like employment law and also environmental protections, where I really don't want to see any diminution in the current situation, and I'm sure the work that Peter's doing on his food Bill at the moment will want to see improvements in food quality and standards, rather than any dilution of those standards as well. So, it might be useful if we were to have some correspondence with the Welsh Government on those matters, because I don't think we can do them justice in committee this afternoon.

Those are important areas and, yes, I'm happy to do so. I think it's also important to recognise, isn't it, that there will be certain areas where divergence may occur that falls into reserved areas. So, for example, you mentioned employment, well, that, of course, has always been a common issue in respect of trade, that you can't undercut on basis of trade, for example, that you apply lesser terms and conditions and so on—the level playing field argument. Now, some of those issues are obviously not ones that are within our ability to tackle, although they do come into the discussions and the arguments and the representations that we would make within that process. But, I happily will write with further thoughts on that.

Okay. Thank you, Counsel General, and thanks, Alun, that's a good suggestion. We look forward to getting some more detail from you on your thoughts on that, Counsel General. We'll go on with Rhys, please.

Diolch, Cadeirydd. Counsel General, has the review of retained EU law and the announcement this morning and the meeting you had on Saturday—I would have loved to have been a fly on the wall in that meeting on Saturday—hasn't that undermined the core purposes of the common frameworks?

Well, it has the potential to. I think what it undermined most was the whole issue of engagement and mutual respect over issues and announcements that would relate to and clearly would impact massively in devolved areas, and was unsatisfactory, to say the absolute least.

In terms of what happens in practice, that really depends upon how the process develops. Clearly, there is going to be a review of EU retained law. Clearly, that review will impact in a whole variety of devolved areas. I mean, for example, there are issues to do with international conventions, the Lugano and the Singapore convention and so on, and clearly, there are difficulties that the UK as a whole faces now because of the fact that we are now no longer part of the Lugano convention in terms of the international recognition of judgments and so on. So, those things have a spin-off effect. But precisely what will happen, I think, is going to depend on the further discussions that we have, as I say, and it's one of those difficult positions that I find myself in, in that I'm forever having to say, 'Well, look, it's early days at the moment, but we have to wait and see until we know a lot more.' And I can only repeat that it didn't get off to a good start, but there's still a long way to go and still a lot of discussions to take place, and we will be robust in the assurances that we require for those processes to work.

Do you know, from now on, what level of engagement Welsh Government will have with the review?

The answer is, 'I don't know.' I haven't read the document to ascertain to what extent it does or does not deal with that particular issue. The Attorney-General gave assurances to us that they absolutely would be respecting the devolved arrangements and that they would engage with us, but precisely what that meant—. So, for example, it's not enough just to respect those processes; it's also important that there is an assurance that there will be no encroachment on devolved powers, there'll be no power grab and that any changes that are made are consensual with the devolved Governments, and that seems to me to be the sort of assurance that we need to uphold.

14:10

Have you started thinking what kind of engagement you, as a Government, might have with Welsh stakeholders with regard to the review?

To be honest, until I've actually had an opportunity to read what is proposed in the review—. I mean, I can speculate about areas that are there, but, for example, anything that relates to agriculture or fisheries, well, we want to engage with all the participants that are within that, and the same with whether it's environment or food standards and so on, we will need to go. But that firstly depends on the nature of the review, the extent to which there is engagement and input from the devolved Governments—I'm sure that will actually take place. But, the crux of it is not what that input is; it's the extent to which consent is sought rather than an attempt to impose. And that brings us, doesn't it, to the sort of internal market Act-type scenario. So, obviously, a considerable concern, but if UK Government can give those responsible assurances in terms of the way it intends to proceed, and to give those guarantees, then we can have a very positive relationship in terms of reviewing the law that applies to us, but also to the other nations of the UK.

Diolch yn fawr, Counsel General. And I'm sure this isn't the last time we'll discuss this review in this committee and with you. Diolch yn fawr. Thank you, Chair.

Thank you, Rhys. It definitely won't be. I think we'll all be reading this document in great detail there and coming back to this. But, Peter, let's go on to you.

Only a quick point, following on, and I'm not going to try to conflate the Brexit Freedoms Bill and the review, albeit I can see the frustrations that having that Bill dropped on you, or the talk of that Bill dropped on you, at the last minute would cause, but I do look forward to a deeper understanding of that going forward.

But, putting that aside, I think we've probably got a flavour of your concerns, but could you expand on any concerns you might have about the potential implications for the trade and co-operation agreement or the withdrawal agreement as a result of the review? And, if you have got concerns, have you been engaging with the EU institutions about those concerns?

Well, in terms of EU institutions, I'll probably bring Robert in on that in a minute. But, look, the concerns are the ones that I've outlined throughout here, that we're dealing with a whole variety of areas, many of which clearly fall into devolved responsibilities as far as Wales is concerned, and we're going to have to review very, very carefully what is being proposed and how we respond to that. And also then, the environment of the process within which it takes place. I think, really, it just brings me back to the—. I obviously have concerns about a document that I haven't seen, where I've only been given a very vague overview as to what it might mean and what it is about. But, Robert, is there anything else that you can add on that, or Paul?

Thank you, Counsel General. Just to say that, with the limited information we've had so far, we don't have reason to suspect that the review of retained EU law will seek to unpick parts of the trade and co-operation agreement or the withdrawal agreement with the EU, but we will keep a close monitoring of the situation.

In terms of engagement with EU institutions, well, we're right at the beginning of the process, but if necessary we will be engaging with institutions going forward, including through our new representative on Europe, as things may or may not develop.

14:15

Thank you, Peter, thank you very much. Counsel General, we're getting towards the end of questions here, but I wonder if I can ask about the number of areas that are covered by common frameworks that were previously governed at the EU level. The majority aren't covered. There might be very commendable, rational reasons behind this, but, certainly, people have observed that they consider that there are some risks with this. The focus, for example, on many of the areas that had been covered is primarily on economic issues, for example, not so much on the environmental side and so on. This was picked up by one of my colleagues earlier on. What has the Welsh Government done in terms of its own risk analysis of the areas that have been covered, the areas that haven't been covered, but also the fact that the majority simply aren't covered at all? 

Are you talking about the 26 areas, or are you talking about areas that didn't fall within—? The ones that fall within the engagement we have in terms of the common frameworks, those are ones that are directly relevant to us that have been identified. In terms of the broader picture, I don't know, Paul or Robert, are you able to add anything?

Yes, certainly, I'll comment on that, Counsel General. There are 120 areas that fell under EU regulations where it was decided not to have a framework. Some of them don't apply to Wales. It's quite right to say that there would be a risk if they weren't reviewed, to put it that way. They are reviewed annually, and we consult policy leads to see if a changing situation has made them more liable to divergence. It's the scope of divergence that was the chief criteria in deciding which areas should become frameworks. At the moment, none of these have been put forward for a framework, but, as I said, they are under annual review, and, possibly, I think we may accelerate this this year to look at them twice a year to see if a changing situation may bring forward some of those areas for review to become a full framework. 

Okay, so there is some element of fluidity here, as we go forward over time, looking at those areas that have not, at the moment, been considered to be included. But for those areas that fall outside the common frameworks, how will Welsh Government engage in those going forward? How will you develop policy within those areas, and also, how will you deal with requests for exclusions from the UK internal market in those policy areas as well? 

If I may answer that, Counsel General, as I say, as it was decided, those frameworks have relatively little divergences issues, so then they are discussed in the usual way and there's ongoing discussion at official level, but they're not probably considered active enough to actually require the formal structures of a framework. But, as I said, that has to be reviewed regularly, because, as you say, Chair, circumstances certainly change.

I think the point you're making, Chair, isn't it, is that in those other areas it seems clear that there needs to be an overview of them, but also to keep it within perspective in terms of what are the key areas that are impacting and that we are engaged with. But I think the point that's been made is that it's not as though they completely disregard the fact that there are other things that are happening that may become more important. So, having that overview, it seems to me, is probably the correct approach, but we will take those comments on board.

There we are. Thank you for that. We've been through a wide range of areas, so we'll probably write to you and colleagues, Counsel General, on some areas of detail that we might not have covered. But I just wonder, before we finish, if I were to ask you, albeit it's been a little bit hot and full of some megaphone diplomacy over the weekend—. As a committee, we were quite taken by the positivity around the refreshed, renewed inter-governmental arrangements, and I know you were optimistic about them as well. If those were to be fully followed, how would you expect this weekend's announcements to have differed? Because this wasn't a surprise, the fact that it was on the table—it had been mentioned last autumn—but on the fact that it would be controversial and there might be some areas of conflict between governments on it, under the new procedures, how would you envisage it could have been taken forward?

14:20

What I would have expected with such an announcement and such a paper being prepared is that, firstly, when the paper was in draft form, there would have been input into that draft, there would have been engagement with the Governments on that draft as well, there would have been, where appropriate, inter-ministerial engagement on the content of that, and what would have been produced in the end would have been a document that gave commitments in terms of the process, in terms of the recognition of the mutual interests of the various Governments, but that would then set out a case for the review and for reforms. There might well have been areas where there were disagreements on it, but there would be a process that had a degree of mutuality and respect to it. I don't know to what extent any of that is in the paper, the document that has been published or is about to be published, as I understand it. A statement hasn't yet been made in the House of Commons, as was indicated. I presume that will happen at some stage today, but who knows?

I think this could all have been very different, and it seems to me that we are where we are because there was a decision taken to rush the process through. Whether the process has been complicated by the departure of Lord Frost or not is really not for me to say, but it could have been so very, very different. I would hope that this is a hiccup and that we will get back on track and that the principles underpinning the inter-governmental review, which I do remain positive and optimistic about, will work. As I've said, we will work to make it. We do see it as an important step forward. But, as I say, it requires common participation to those principles to make it work.

Okay. Well, that's a good place to end this session—on a note of hope and optimism that you can retrofit the inter-governmental new arrangements to remedy the white heat of the weekend. Thank you very much. Colleagues, is there anything else you wanted to raise at all? No. In that case, Counsel General, Robert Parry, Paul Harrington, can I thank you very much for your time with us this morning? We'll send you a transcript so that you can check it for accuracy. We might follow up, as I say, with some correspondence as well and some points of detail. But, as always, thank you so much for your time. We'll give you a couple of minutes now to leave the virtual room.

Then, colleagues, we can proceed on to our other business of the day. We'll return to consideration of the evidence we've just heard when we go into private session. If we're content, we'll try and proceed through some business here for the moment, even though that was quite a long evidence session.

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

We'll turn, first of all, to instruments that we have in front of us today that raise no reporting issues under Standing Order 21.2 or 21.3. 

That brings us to item 3.1, SL(6)129, the Renting Homes (Fitness for Human Habitation) (Wales) Regulations 2022. Our lawyers have not identified any points for reporting on this, so I just need to ask you whether you're content with the draft report. 

I think we should warmly welcome the implementation of this piece of legislation.

Thank you, Alun. Yes, indeed. Perhaps I should simply put on record that this legislation, the Renting Homes (Wales) Act 2016, is all to do with putting in place in regulations the matters and circumstances relating to whether a dwelling is fit for human habitation, in short. I think we all very much welcome this. Thank you, Alun. Sometimes on this committee as we scrutinise the propriety of these things we forget about the policy impact as well. But indeed, I think we'd all welcome that.

Item 3.2, SL(6)136, the Education (Eligibility for Student Support) (Amendment) (Wales) Regulations 2022. This is in respect of financial support for students taking designated higher education courses that began on or after 1 August 2018. It corrects some errors that were made in the 2014 and the 2018 regulations. Our lawyers haven't identified any points for reporting, so are we happy to note that report? We are. Okay.

14:25
4. Offerynnau sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3
4. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3

That takes us on to item 4, which is instruments that do raise issues to be reported to the Senedd under Standing Orders 21.2 or 21.3.

The first of these is item 4.1, SL(6)130, the Renting Homes (Supported Standard Contracts) (Supplementary Provisions) (Wales) Regulations 2022. This relates to the occupational contracts that will, under the Renting Homes (Wales) Act 2016, replace the current residential tenancies and licences, and will include relevant fundamental terms set out in the 2016 Act as fundamental provisions. Our lawyers have, I believe, identified some issues arising from the report. Gareth, could we invite your comments on this, please?

Diolch. As regards the first point, the regulations say that landlords must do certain things when a tenant makes comments on the inventory for the dwelling, but there's no timescale saying by when the landlord must do those things. So, it's difficult to know when you can enforce against the landlord if the landlord isn't given a timescale. 

The other point relates to human rights. Where landlords are given a right to enter a dwelling, this could interfere with the tenant's private life and their right to enjoy their dwelling peacefully. So, some human rights are engaged, but there is no reference to a human rights impacts assessment being carried out for these regulations. The Welsh Government has been asked to respond to both points. 

That's excellent. Thank you, Gareth. We haven't received the Government response yet, have we? No. Okay. Alun.

I should declare an interest on this item in that I am registered with Rent Smart Wales as a private landlord, although I don't have any tenants. In terms of the first item, I think it's really important, because the whole purpose of this legislation is to improve the place and rights of tenants, if you like, and fundamental to that is an ability to enforce those rights. I've got some real concerns about the second item here in terms of the right of a tenant to enjoy the peaceful occupation of a home without feeling that the landlord has a right to enter at any time. I think there are some issues there. But unless a time frame is included in the legislation, it appears to me that a tenant would find it exceptionally difficult to enforce these matters if a landlord chose not to fulfil their obligations. So, I think it's something we should press the Welsh Government on, and my interest is declared. 

Thank you, Alun, for that, and for your declaration as well. Gareth, it seems that we're supportive of both of those reporting points there, and we look forward to seeing the Government response coming back to that. We'll pick that up again, Alun, depending on the response we have. Thank you for that.

That takes us on to item 4.2, SL(6)131, the Renting Homes (Supplementary Provisions) (Wales) Regulations 2022. Again, you've picked up some points here, Gareth. This is in respect of supplementary provisions applying to different types of occupation contracts and matters including, for example, a landlord's consent to carry on a trade or a business at the dwelling, and persons permitted to live at the dwelling. Gareth, we're in your hands. 

The previous regulations set out supplementary terms for supported standard contracts, and these regulations do the same for all other types of occupation contract. These regulations do similar things, and therefore the same reporting points arise. There's an additional point as well for these regulations. This new renting homes regime says that dwellings must not become overcrowded. What does 'overcrowding' mean? The explanatory note says the meaning is set out in the Housing Act 1985, but that is not reflected in the regulations themselves. So, the Welsh Government is asked to explain that reference to overcrowding in the Housing Act 1985.

14:30

Excellent. Okay. And I can see all colleagues are nodding in agreement with those reporting points. So, thank you, Gareth, for that.

That takes us on to item 4.3, SL(6)132, the Renting Homes (Explanatory Information for Written Statements of Occupation Contracts) (Wales) Regulations 2022. And, obviously, as it says, this is in respect of the explanatory information that must be contained in a written statement of an occupation contract issued in accordance with section 31 of the 2016 Act. Now, Gareth, you've identified some technical points here for reporting.

Yes. Under this regime for renting homes that's being implemented now in Wales, landlords must provide tenants, or contract holders as they're called in the legislation, with a written statement within 14 days. If a landlord takes, for example, 17 days to provide the written statement, then the landlord may have to pay compensation for the whole of the 17 days. That is, the 14 days plus the additional three days. The first technical point notes that the way the compensation is described in the regulations could easily make a tenant think that they can get compensation only for those three additional days and not the full 17 days. So, the Welsh Government is asked whether it agrees that the description of the compensation could be clearer. 

The second point asks the Welsh Government to clarify elements of the procedure that landlords must go through before a court can make a possession order for a dwelling. Finally, the regulations state that a landlord must provide certain information to tenants within two months. For one type of contract, that requirement seems to be set out in two different places. So, there seems to be repetition, and the Welsh Government has been asked to clarify. 

Okay, thank you. Colleagues, are you happy with that, or are there any comments on it? We're content with that, Gareth. Thank you very much for that. 

Item 4.4, SL(6)134, the Renting Homes (Model Written Statements of Contract) (Wales) Regulations 2022. The regulations prescribe three model written statements of occupation for use by landlords under the new framework, and the statements relate to secure occupation contracts, periodic standard occupation contracts and fixed-term standard contracts made for a term of less than seven years. But, Gareth, you've identified a couple of merits and also some technical points on this.

Yes. So, again, as part of this new implementation, these regulations set up a model written statement for various occupation contracts, including fixed-term contracts. The first point notes that, for fixed-term contracts, there doesn't appear to be a space for the actual term of the contract to be included, and the term is obviously key to the contract. So, the Welsh Government is asked to clarify where the term of the contract will be set out. There is space there for the name of the parties, the rent, the start date, et cetera, but not the term itself. 

The second point notes three relatively minor drafting errors and, given the nature of the errors, the draft report does not ask for a Welsh Government response. 

The third point asks the Welsh Government whether it would be helpful to include within these written statements some further information to help tenants, For example, information about what happens at the end of the contract term, or, if the contract contains a break clause that allows the landlord to end the contract early, should there be an extra warning to look out for clauses like that. 

The fourth point notes that other regulations that implement the new renting homes regime in Wales have a knock-on effect on these model written statements. For example, earlier, we mentioned the lack of clarity as to when the landlord must take certain steps in relation to the inventory. Well, if there was a lack of clarity with the regulations that created that requirement, then including that requirement in these model statements will inevitably lead to the model statements inheriting that lack of clarity.

Finally, the draft report notes that the explanatory memorandum refers many times to the regulatory impact assessment carried out for the Renting Homes (Wales) Act 2016. That Act was passed in 2016, so the draft report asks the Government whether that impact assessment still forms a good basis for the costs and benefits of these regulations as they have been drafted today, and the Government has not yet responded.

14:35

Thank you, Gareth. Alun, did I see you wanting to come in then? Yes. 

I think this is a good lesson in why legislation should be implemented and commenced after it's actually enacted, rather than five years later. Gareth's made me think about some of this stuff and the way in which we approach it. I think we need to look—and it would either be for this committee or the Local Government and Housing Committee; I take no view on which committee should do it—but I think there should be a short, sharp review of what's happened in the intervening five years, and somebody should look at some of these matters. I've got no idea whether the regulatory impact assessment, five years later, is still a suitable document to rely upon. I was on the committee that scrutinised this legislation two Senedds ago, and my memory is that there were some issues with the regulatory impact assessment at that time. We have agreed in previous years that post-legislative scrutiny is a good principle, and that legislation should be subject to scrutiny. 

I, as a Minister, gave an assurance to the Senedd that legislation I was responsible for—I'm thinking particularly of the Control of Horses (Wales) Act 2014, actually, that was introduced as an expedited Bill—should be subject to post-legislative scrutiny. I've got no recollection as to whether that's actually happened or not, but I think it might be useful for us to use this Bill or this Act as a means of understanding what the deficiencies have been in this process that has led us to where we are today, because we really shouldn't be having this number of technical issues coming up in an Act that is five years old.

Yes, thank you, Alun, and I think that's something we could explore, perhaps if we want to revisit this when we go into private session and look at the best way of doing this, but it might well be going to the policy committee and suggesting they have a look at it. The principle of post-legislative scrutiny is a good one—it's a sound one, as you say—and particularly when there's been such a time. Now, maybe the answer will be that they've cast their eyes over this afresh and we haven't spotted it, I don't know. But, Gareth, I don't know if you have any thoughts on this. Obviously, we're picking up the merits and technical points at the moment of what's being put in front of us, but we're not aware—I'm just looking to both Gareths, actually—as to whether the policy committee itself looked afresh at this. 

I'm not aware that that committee has looked at it, Chair. As you say, the committee may wish to consider it in private session, and it may be appropriate to write to that committee as well— 

—highlighting the points that have been raised in the scrutiny of those regulations. 

Thanks, Chair. It was just on the broader issue of regulatory impact assessments. We hear too often these technical points where they're not being completed and we're waiting for them. What does our constitution expect of these? Should they be in advance? Because certainly from a council life, okay, a different type of impact assessment, but it had to be present before you could make a decision on implementing something, because it was fundamental if that decision could go ahead or not. You had to have considered all of those angles before you made a decision, yet we're constantly waiting for regulatory impact assessments. And how do we assess those regulatory impact assessments and their robustness after the point? I know we've made these challenges of Government before, but it seems there's quite a blasé approach to it.

Listen, I think it's quite helpful to have that on record, and it's something we might return to in private as well, because the next item in front of us as well also has issues relating to those impact assessments, and points that we've challenged Government on, and I'm aware that Government is turning its mind to, but I'm not sure if we have an update yet. Let's return to this in private, but can I just ask, in terms of the reporting points that Gareth has presented to us, are we content with those? We are. Okay. Good, thank you. And we'll return to those big issues in private session to see which way we'll take it forward, both with the policy committee in respect of these particular regulations, but also the issue of impact assessments and the way the Government is on them at the moment.

And that does bring us quite neatly, actually, to something we often do in retrospect here—we're used to doing this—which is item 4.5, SL(6)139, the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 2) Regulations 2022. These were introduced on 26 December last year. As you will know now, it is retrospectively that we're looking at them, but they removed the limit on numbers for regulated outdoor events of 500 people, and the additional reasonable measures for outdoor hospitality—the so-called 'rule of six', et cetera, and table service. We've got four merits points for reporting and I suspect, Gareth, these will be quite familiar merits points, and particularly in respect of the impact assessment side, it may be something we want to return to in private as well.

14:40

Yes. There are some standard coronavirus-related merits points, and there's an additional point around the clarity of the law. The point notes that one of the changes made to alert level 2 means that one aspect of level 2 is now actually lighter than it is in level 1. And the draft report also asks whether the Welsh Government is about to consolidate all these restrictions, because there have been so many amendments. So, is it time to start with a new clean version of the restrictions? And, as you noted, since these regulations were made there have been more regulations that have eased the restrictions significantly, in particular reducing the isolation period and moving Wales to alert level 0.

Thanks, Gareth. So, colleagues, purely on those reporting points, are we content? We are. Okay, thank you very much.

We turn now, then, to affirmative resolution instruments: item 4.6, we have SL(6)133, the Renting Homes (Wales) Act 2016 (Amendment of Schedule 9A) Regulations 2022. Now, these regulations, made under the now familiar Renting Homes (Wales) Act 2016, place two further restrictions on the landlord's ability to issue a notice seeking possession, which relate to, firstly, if an energy performance certificate has not been provided, and secondly, if certain health and safety requirements have not been met. And we have two merits points that you've identified, Gareth.

The first point raises similar human rights issues, as mentioned earlier, namely that where regulations provide for interference with property, then the human right to enjoy your property peacefully is engaged. And the second point notes that here we have regulations that amend primary legislation. So, these regulations make changes to one of the Schedules to the Renting Homes (Wales) Act 2016. So, the Welsh Ministers are exercising Henry VIII powers. When this committee's predecessor questioned the inclusion of those powers in the Renting Homes (Wales) Bill, as it then was, the Welsh Government said that it needed these powers to provide flexibility to react to changes to the housing landscape. Use of these powers is subject to the draft affirmative procedure, so these changes to primary legislation need to be approved by the Senedd. But, as I think everyone accepts, scrutiny of subordinate legislation is not the same as scrutiny of primary legislation.

Thank you, Gareth. Colleagues, any comments, or are we happy with that? We're content with those reporting points. Thank you, Gareth.

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

Item 5, then, instruments that do raise issues to be reported to the Senedd under Standing Order 21.7, and the first of these is item 5.1, SL(6)137, 'Code of Recommended Practice for Local Authority Publicity', which provides guidance on the content and the style, distribution and cost of local authority publicity. Don't get too excited, now, colleagues, on this particular one. Local authorities are required by legislation to have regard to the code in coming to any decision on publicity. The code is updated; it's been updated and revised to reflect changes that have taken place since the last code was issued in 2014. So, Gareth, you and colleagues have identified four points to report on here. But we haven't had a Welsh Government response yet.

14:45

No. And could I just note one point in particular? The code said that you should act 'in accordance' with the Welsh Language (Wales) Measure 2011, which is fine, but the code also said that you only need to 'have regard' to the Equality Act 2010. The Equality Act is law, so we don't think the code should say that you only need to 'have regard' to that law. Yes, the Equality Act includes duties to have regard to specific matters, but that's not the same as saying you only have to have regard to the Equality Act, and the Welsh Government  has not yet responded to that point.

Okay. Thank you very much for that. I think we're content with that, looking at colleagues. 

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

So, we move then to item 6, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 that have been previously considered, and the first of these is item 6.1, SL(6)087, the Education (European University Institute) (Wales) (Amendment) (EU Exit) Regulations 2021. Now, we considered this at our meeting on 6 December 2021, and, after that, we wrote to the Minister, and I invite Members to note that letter from the Minister for Education and the Welsh Language, in which he states he is seeking to correct the error we identified in the explanatory notes with the statutory instruments registrar through a correction slip, and the Minister's letter also confirms that other matters raised in our report have now been addressed in other regulations. So, that's a good result there, and I think we'd be happy to note that. We are.

We then go to item 6.2, the Health Protection (Coronavirus
Restrictions) (No. 5) (Wales) (Amendment) Regulations 2022. We considered this instrument at our meeting on 24 January, laid our report the very next day, and I'd just invite Members to note the Welsh Government response to the report. Okay, and you're happy to do that. Thank you.

7. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C
7. Written statements under Standing Order 30C

We then move to item 7, written statements under Standing Order 30C. The first of these is item 7.1, WS-30C(6)005, the Waste and Agriculture (Legislative Functions) Regulations 2021. The written statement notifies the Senedd that the Welsh Government has consented to the making of the waste and agriculture et cetera regulations 2021. Now, Members may recall that the Minister wrote to the committee earlier in January to inform us that consent had been given. These regulations provide for legislative functions of the European Commission under various waste directives to be exercisable instead by a public authority in the United Kingdom, and the statement notes that consent was given for reasons of efficiency, expediency, and due to the technical nature of the amendments. So, I'm not sure if we have anything to note on that from our lawyers. It's simply—. Gareth.

Only to note that the committee got notice after consent was given, but the committee but it did not get notice before that the Welsh Government intended to consent to these, and I believe the Welsh Government has said that it would give notice to the committee before the Welsh Government consented to regulations like these.

Ah, I see. Okay. So, is that something that we just need to gently pick up with Ministers again, just to remind them of that? I think—. I can see our senior clerk nodding there. We'll pick it up in private if necessary, but we'll go ahead and do that, Gareth. Okay.

Item 7.2, then, WS-30C(6)006, the Pesticides (Revocation) (EU Exit) Regulations 2022. There are three items in your packs on that. Now, this written statement notifies the Senedd that the Welsh Government has consented to the making of those regulations and, in addition to the written statement, the Minister also wrote to the committee on 25 January. So, these regulations revoke the redundant retained direct EU legislation that forms part of the plant protection product and maximum residue level regulatory regimes, so that these regimes can continue to operate effectively following the end of the implementation period. So, the statement notes that consent has been given for the UK Government to make these corrections in relation to Wales for reasons of efficiency and expediency. Any comments on this, Gareth, or straightforward? Okay. Are we happy to note that? We are. Thank you.

14:50
8. Papurau i'w nodi
8. Papers to note

And then we've got several papers to note, colleagues. Item 8.1, we have correspondence from the Minister for Social Justice stating that the Minister will be withholding laying a supplementary legislative consent memorandum regarding an amendment to the Police, Crime, Sentencing and Courts Bill, making misogyny a hate crime, but once there is certainty around the Bill and the outcomes at the UK level are clear, she will take appropriate action in response to further amendments made. If you're happy to note that for now. It's good that we've got clarity from the Minister at least on the approach that they're taking, but we can return to this in private session as needed. Okay.

9. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
9. 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.

We turn then to item No. 9, which brings us to motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting so we can go into private session. Are we content to do so? We are. We'll move into private session and we will wait for our clerking team to let us know that we're in private.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:51.

Motion agreed.

The public part of the meeting ended at 14:51.