Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad
Legislation, Justice and Constitution Committee26/09/2022
Aelodau'r Pwyllgor a oedd yn bresennol
Committee Members in Attendance
|Alun Davies MS|
|Huw Irranca-Davies MS||Cadeirydd y Pwyllgor|
|James Evans MS|
|Rhys ab Owen MS|
Y rhai eraill a oedd yn bresennol
Others in Attendance
|Dr Charles Mynors||Comisiwn y Gyfraith|
|Nicholas Paines KC||Comisiwn y Gyfraith|
|Sir Nicholas Green||Comisiwn y Gyfraith|
Swyddogion y Senedd a oedd yn bresennol
Senedd Officials in Attendance
|Gareth Howells||Cynghorydd Cyfreithiol|
|Gerallt Roberts||Ail Glerc|
|Kate Rabaiotti||Cynghorydd Cyfreithiol|
|P Gareth Williams||Clerc|
|Sarah Sargent||Ail Glerc|
|Sian Giddins||Dirprwy Glerc|
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 yn y Senedd a thrwy gynhadledd fideo.
Dechreuodd y cyfarfod am 11:30.
The committee met in the Senedd and by video-conference.
The meeting began at 11:30.
Bore da. Good morning. Croeso, bawb. Welcome to this morning's session of the Legislation, Justice and Constitution Committee. We're back after something of a hiatus through the summer, and also the understandable recent pause as well, which means that we have a lot of business to get through this morning, and also into this afternoon as well, with evidence sessions. But we're going to start as we always do, with some of the housekeeping notes.
This session is happening in hybrid format. We have one colleague, Alun Davies, joining us on the screens here. Good morning, Alun. Others are here within the room itself. A sound operator will control all the microphones during the meeting. We have, of course, full translation into English from Welsh. That will be done automatically for you. As per normal, Alun, if for any reason something goes wrong with me, then I'll be asking you or a colleague here to pick it up for us. But we're not anticipating that.
We're not anticipating any fire alarms or anything in the building, but if that does happen, just follow the directions of the staff here to exit from the building. We've got no apologies for today's meeting. As per normal, the attendance is excellent with this committee. The meeting is being broadcast live on Senedd.tv. We'll be publishing the proceedings as usual. Apart from the procedural adaptations for hybrid format, all the other Standing Order requirements remain in place.
With that, we'll go straight on, colleagues, if you're happy, to our first substantive item, which is item 2. As per normal, it's proposed negative instruments that raise no reporting issues under Standing Order 21.3B.
The first item, if you'd like to note, is the background to the proposed negative instrument. The European Union (Withdrawal) Act 2018 and the European Union (Future Relationships) Act 2020 provide for a Senedd committee to sift certain regulations that the Welsh Ministers propose to make under the negative procedure, which is also known as the proposed negative regulations. So, our role here as a committee is to consider and report on the appropriate procedure to be followed, either negative or affirmative, using the specific criteria that have been set out in Standing Order 21.3C.
With that, we turn to the draft report, paper 1 under item 2.1, which is the pNeg(6)003, the Marketing of Seeds and Plant Propagating Material (Wales) (Amendment) (EU Exit) Regulations 2022, which make amendments to correct operability deficiencies that were not accounted for in earlier amending instruments. The draft report that we have in front of us suggests that the appropriate procedure for these regulations is the negative resolution procedure.
I don't think we have any comments from the clerking team on that. Are we happy to accept the recommendation in that report? We are.
In which case, we'll go on to item 3, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. The first of these, starting with paper 2, is a draft report on the instrument SL(6)236, the Building Safety Act 2022 (Consequential Amendments) (Approved Inspectors) (Wales) Regulations 2022, which aim to remove references to the requirement for insurance under a scheme approved by Welsh Ministers in respect of approved inspectors. Our lawyers haven't identified any points for reporting, so unless there are any comments, we're happy to note and agree with that report. Thank you.
That takes us on to item 3.2, SL(6)239, the Local Government Investigations (Functions of Monitoring Officers and Standards Committees) (Wales) (Amendment) Regulations 2022. This instrument adds corporate joint committees, CJCs, established under Part 5 of the Local Government and Elections (Wales) Act 2021, to the definition of 'relevant authority' in the Local Government Investigations (Functions of Monitoring Officers and Standards Committees) (Wales) Regulations 2001. Again, our lawyers haven't identified any points for reporting, so can I ask, Members, are we happy with the draft report? We are. Thank you.
On to item 3.3, SL(6)240, the Local Authorities (Model Code of Conduct) (Wales) (Amendment) Order 2022, and we have a written statement under paper 4 relating to that. This instrument amends Part 1 of the model code of conduct as set out in the Schedule to the Local Authorities (Model Code of Conduct) (Wales) Order 2008 to add corporate joint committees to the list of relevant authorities. And, again, our lawyers have not identified any points for reporting. So, are we happy to agree that? We are. Thank you.
We'll move on to item 3.4, SL(6)241, the Conduct of Members (Principles) (Wales) (Amendment) Order 2022, which amends article 2 of the Conduct of Members (Principles) (Wales) Order 2001 to add corporate joint committees to the list of relevant authorities, making the principles in the Schedule to the Order applicable to members of corporate joint committees. And, again, there are no points for reporting our lawyers have identified. Are we happy to note and agree? We are. Good.
In that case, we're onto item No. 4. We move now to instruments that raise issues to be reported to the Senedd under those Standing Orders, 21.2 or 21.3. And the first of these is item 4.1, SL(6)233, the Curriculum and Assessment (Wales) Act 2021 (Consequential Amendments) (Secondary Legislation) (No. 3) Regulations 2022. Now, these make amendments to secondary legislation required to give full effect to provisions under the Curriculum and Assessment (Wales) Act 2021, and the implementation of the new Curriculum for Wales from 1 September 2022. Our lawyers have identified three technical and two merits points for reporting, and we've had a Welsh Government response as well. Do any of our lawyers or clerking team want to make some points on this?
I can just take you very quickly through the points, the first two technical points are about defective drafting, and the Welsh Government has confirmed that it will correct one of these, but that the other is explained by a saving provision in other regulations. There are also some inconsistencies between the English and Welsh texts that the Welsh Government is going to correct, except for one point that it considers is appropriate in the circumstances.
The merits points, then: one of these is a lack of a definition that the Welsh Government are going to add, and the final one notes that the regulations fail to follow the 'Writing Laws for Wales' drafting guidance. In response, the Welsh Government is going to correct one of these points, but the other it considers to be sufficiently clear as drafted.
Brilliant. So, quite a fulsome response and with action points that the Welsh Government is going to act upon. Are we content with the response there and the report? We are. Thank you very much for that. So, we'll agree with the reporting points there.
That takes us to item 4.2, SL(6)237, the Education (Student Finance) (Ukrainian Nationals and Family Members) (Miscellaneous Amendments) (Wales) Regulations 2022, and we have a draft report and a letter of 7 July relating to this. Now, these regulations amend the existing student support legislation to make persons granted leave under the Ukraine scheme eligible for student support, home fee status, and the undergraduate tuition fee cap when starting or continuing a course on or after 1 August 2022, and they make students undertaking an undergraduate distance learning course eligible to apply for grants for dependants. Now, our lawyers have identified one merits point for reporting here, but we don't require a Welsh Government response on this, I understand.
No, this simply notes the breach of the 21-day rule and the explanation provided.
Okay, thank you for that. Are we happy to note and agree those reporting points? Thank you.
So, that brings us on, then, to item 4.3, SL(6)238, the Agricultural Wages (No. 2) (Wales) Order 2022, and there's a draft report under paper No. 9 related to this. As some members on this committee will know intimately, this Order revokes and replaces, subject to some changes and a transitional provision, the Agricultural Wages (Wales) Order 2022. The Order introduces new provisions for agricultural workers regarding their terms and conditions, their remuneration rates, their sick pay and entitlement to time off. Now, our lawyers have identified three technical and one merits point for reporting, and we've had a Welsh Government response as well.
Yes, we have. The first technical point notes that the Order has retrospective effect, and Members will recall that we considered the same point in respect of the first 2022 Order. In this case, the Welsh Government's response helpfully sets out how they're going to make sure that the next Order is not retrospective. The second point seeks further explanation around the term 'apprenticeship framework', because this is defined in the Order by reference to frameworks published by Lantra. And so, the draft report asks the Welsh Government whether the dates of these frameworks will be clear, to avoid the Order capturing frameworks published after the Order comes into force, and the reason that's important is because the content of future frameworks is unknown and, so, if these were captured by the Order, then this would amount to sub-delegation of the power to legislate to Lantra. In response, the Welsh Government notes that the dates of the frameworks are published in the online frameworks library, and Welsh Government also says that the definition of 'apprenticeship framework' in the Order is any of the current apprenticeship frameworks for the agricultural sector in Wales published by Lantra, or previous versions of these. The Welsh Government's view is that the word 'current' makes it clear that it is only the frameworks that have been issued before the date the Order comes into force that are taken into account. While this response makes it clear that the Welsh Government is quite properly seeking to avoid sub-delegation, there is still potentially an issue the committee might want to consider further, which is the use of the word 'current' in this context, and the issue is that it may not be sufficiently clear that 'current' is intended to mean at the point that this Order came into force. So, the reader of the legislation is not necessarily going to appreciate that that's the meaning of the word 'current', so this creates some uncertainty.
The third technical point relates to article 10 of the Order, which imposes a statutory duty on agricultural workers to maintain certain records. So, the draft report asks the Welsh Government how they would propose to enforce this. The Welsh Government response is that it does not propose to enforce these duties, which are simply intended to encourage workers to maintain evidence of their qualifications and experience so that they can demonstrate the grade at which they should be employed. Again, this is a point the committee might wish to consider further. It's not considered good practice for legislation to impose a statutory duty on individuals without setting out clearly the consequences and methods of enforcement that will apply if that duty is breached. This obviously will create uncertainty for the agricultural workers who are subject to the duty, and there's also potential for unintended consequences, for example if an employer sought to enforce the statutory duty by way of a private law claim against an employee. So, this, again, is a point that the committee might wish to explore—whether imposing a statutory duty is the best way of achieving the aim of encouraging workers to maintain their records, particularly when Welsh Government is not envisaging enforcing the statutory duty.
Finally, the merits point simply asks whether a children's rights impact assessment was carried out in relation to the Order, and the Welsh Government response confirms that such an impact assessment was carried out.
Okay. Thank you. So, it seems that we've got some additional points there to actually pick up with Welsh Government on this. They seem to have responded to some of our initial observations around the retrospective nature of this and so on, but there are additional points that have come—
—that would clarify their intent with this, legally, around the definitions of 'current' and so on, but also the other aspects you raise.
Are we happy in pursuing those points? Yes, we are. Okay. Well, subject to that, I think we're happy to agree those reporting points now and pursue those points with Government further. Thank you.
That takes us on to item 4.4, SL(6)243, the Renting Homes (Rent Determination) (Converted Contracts) (Wales) Regulations 2022, and we have a draft report under paper 10, and a written statement of 15 July in these papers. These regulations seek to replicate the existing provisions under sections 13 and 14 of the Housing Act 1988 in respect of relevant converted contracts. Now, on this one, our lawyers have had a bit of a field day, because you've identified nine technical and three merits points for reporting. So, over to you—you've been doing your homework on this one.
Yes. So, the first technical point is, again, noting inconsistencies between Welsh and English texts. The Welsh Government's confirmed it will correct these before the regulations come into force. Four of the technical points relate to defective drafting. So, I won't take you through those in detail, but, in response, the Welsh Government is going to correct three of these, but it considers that the fourth is sufficiently clear in its context, so it won't amend that one. The remaining four technical points are matters that require further explanation. For example, there's a lack of clarity in the definition of 'relevant improvement' in regulation 2, so the draft report seeks further clarification on these points. In response, the Welsh Government has provided that further explanation, and it is also going to make some amendments to clarify some of the unclear points within the regulations.
On the three merits points, the first questions whether there will be guidance to help contract holders understand their rights, and the Welsh Government response points to existing guidance issued by the residential property tribunal, which the Welsh Government is going to work with to update as required. The second merits point seeks further information about consultation. A formal consultation was not carried out, but stakeholders were shown a draft of the regulations. In response, the Welsh Government confirms that representatives of both landlords and tenants were shown a draft of these regulations. The final point, again, reminds Welsh Government of the importance of following its own drafting guidance in 'Writing Laws for Wales'.
Okay. We've had the Welsh Government response on that, which has helped inform your presentation to the committee now. Is there anything further we need to follow up with Welsh Government on this?
They've had the report and they've made their response, and they are going to correct points, so there is nothing further.
That's brilliant. Okay. Are we happy to agree those reporting points? Thank you for that. That's great.
We move on to item 4.5, SL(6)247, the Renting Homes (Wales) Act 2016 (Consequential Amendments to Secondary Legislation) Regulations 2022. We have the draft report and the written statement of 16 August 2022 in these papers. These regulations make amendments to secondary legislation as a consequence of the provision of the Renting Homes (Wales) Act 2016. Now, generally, these amendments either ensure that existing provision in primary legislation continues to have appropriate effect, or, where the provisions of the 2016 Act are intended to replace elements of existing law, or the existing law is incompatible with that set out in the 2016 Act, they disapply that law. Our lawyers have identified six technical points for reporting, and we've had the Welsh Government response as well.
Thank you. The first point, again, notes some inconsistencies between Welsh and English texts, which the Welsh Government are going to correct before the regulations come into force. The second and fourth reporting points are matters that require further explanation. The Welsh Government has provided that explanation and has set out that it considers the legal effect of the provisions is sufficiently clear. The third, fifth and sixth reporting points report the regulations for defective drafting, and, in response, the Welsh Government has confirmed that it will correct all of these issues before the regulations come into force.
Excellent. Thank you. Happy to agree that? We are. Thank you very much.
We move on to item 4.6, SL(6)256, the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (Consequential and Miscellaneous Amendments) Regulations 2022. We have a draft report linked to this item. These regulations make consequential amendments to a number of regulations as a result of certain elements of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 coming into force. Our lawyers have identified two technical points for reporting, and we've had the Welsh Government response as well.
The two technical points here both identify defective drafting in the English language text of the regulations. In both cases, the issue is that it's unclear where new text is being inserted into the regulations being amended, and, in response, the Welsh Government has confirmed that it will correct these issues at the earliest opportunity as part of its ongoing programme of secondary legislation that is being made to implement this Act.
Excellent. Thank you. Happy to agree that? We are.
That takes us on to, then, item 4.7, SL(6)257, the Food Information (Amendment of Transitional Provisions) (Wales) Regulations 2022. Again, we have a draft report on this. These regulations amend Welsh domestic legislation and retained EU law as it applies in Wales, by extending the transitional period for specific food labelling changes resulting from the EU exit. So, the effect is that certain EU labelling terms and EU addresses will be permitted on the market in Wales for an additional 15 months. We have three technical points our lawyers have identified, and we haven't received the Welsh Government response yet, or have we, by now?
We haven't, no.
The three technical points are all issues of defective drafting. Just for example, regulation 5 contains the incorrect title of regulation 4 of the Beef and Veal Labelling (Wales) Regulations 2011, so we've asked the Welsh Government for a response on these three points.
That's great. So, anticipating that the Welsh Government will have a positive response to the points that we've raised, are we happy to agree those reporting points? We are.
That takes us on to item 4.8, SL(6)258, the Non-Commercial Movement of Pet Animals (Amendment) (Wales) (No.2) Regulations 2022, and again we have a draft report. These regulations amend retained EU law to permit the use of an alternative rabies antibody titre test—is my pronunciation right?
As far as I know. [Laughter.]
For pet animals—[Interruption.] Indeed. For pet animals entering Wales from a third country. Our lawyers have identified two merits points for reporting, and we haven't had a Welsh Government response yet.
So, the first point noted that no regulatory impact assessment has been carried out and the second identifies that there is text in the English-language explanatory note that does not appear in the Welsh language version and this could cause confusion to the reader. So, the response has been requested in relation to the second point only.
That's brilliant. Thank you for that. I think we're happy to agree those reporting points, which then brings us on to an affirmative resolution instrument under item 4.9: SL(6)242, the Renting Homes (Wales) Act 2016 (Consequential Amendments) Regulations 2022. And we have a draft report under paper 17 and two letters under papers 18 and 19. These regulations make amendments to primary legislation in consequence of the provisions of the Renting Homes (Wales) Act 2016. A draft of these regulations was laid before the Senedd on 21 June 2022, but was subsequently withdrawn on 11 July 2022—we've noted this before—following the report of this committee. An amended version of the draft regulations was laid before the Senedd as a result on 15 July 2022. Now, committee colleagues will probably want to note that item 6.2 on the agenda provides the Welsh Government's response to the committee's report on the earlier regulations. Now, our lawyers have identified seven technical and three merits points for reporting on this latest iteration, and we haven't had a Welsh Government response yet, have we?
That's correct. The first, fifth and sixth reporting points are matters that require further explanation, and the second, third, fourth and seventh points are related to defective drafting. So, those are the technical points. And then the merits points: the first notes that the coming into force of part of these regulations depends on the coming into force of various provisions in the Housing and Planning Act 2016. And we know that the Welsh Government has previously indicated that it does not have any information about when these provisions will be brought into force. The second merits point again reminds the Welsh Government of the importance of adhering to the drafting guidance in 'Writing Laws for Wales'. The third point notes that no formal consultation was carried out. And the response has been requested in relation to the technical scrutiny points only.
That's great. So, we await the Welsh Government response to that, but are we happy to agree those reporting points? We are. Thank you. That takes us on, then, to item 4.10. It's a composite negative resolution instrument: SL(6)244, the Education (Student Loans) (Repayment) (Amendment) (No. 2) Regulations 2022. We have a draft report on these regulations, which make amendments to the Education (Student Loans) (Repayment) Regulations 2009 to temporarily lower the interest rate on the specified undergraduate and postgraduate degree loans. Our lawyers have identified one technical point here.
The technical point simply notes that, as composite regulations, these regulations are in English only.
That's great. And we don't require a Welsh Government response, so are we happy to note those reporting points? We are.
That takes us, then, on to item 5, an instrument that raises no reporting issues under Standing Order 21.7. The first of these is a draft negative resolution instrument under item 5.1: SL(6)234, Strategic Priorities and Objectives Statement to Ofwat issued under section 2B of the Water Industry Act 1991. Now, under this, the Welsh Ministers may, from time to time, publish a statement setting out strategic priorities and objectives for Ofwat to follow in carrying out its relevant functions relating to companies wholly or mainly in Wales. And Ofwat must carry out these functions, which include the five-yearly price determinations in accordance with the statement. This instrument constitutes the statement, and it replaces the current version which was published in 2017. So, colleagues, are we happy to note and agree that draft report? Any comments on that? No, we're okay.
Item 6. We have instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, which we've previously considered, and the first of these is item 6.1: SL(6)227, the Renting Homes (Wales) Act 2016 (Amendment) Regulations 2022. We have a report and a Welsh Government response under papers 22 and 23 related to this. We considered this instrument at our last meeting before summer recess on 11 July, and we laid our report that day. So, I simply ask Members to note the Welsh Government response to the report which has since been received.
That brings us on to item 6.2: SL(6)229, the Renting Homes (Wales) Act 2016 (Consequential Amendments) Regulations 2022. We have a report under paper 24 and a Welsh Government response as well. We considered this instrument at our last meeting before the recess on 11 July and laid our report later that day. So, I'd invite Members to note the Welsh Government response to the report that has now been received. Just to remind Members that, following our consideration of the regulations, they were actually withdrawn by Welsh Government. So, as discussed earlier, the Government has since replaced these with SL(6)242, the Renting Homes (Wales) Act 2016 (Consequential Amendments) Regulations 2022, which we considered earlier under item 4.9. Unless we have any comments, are we happy to note that? We're happy to note it.
Which takes us on to item 7, written statements under Standing Order 30C. The first of these is item 7.1: WS-30C(6)011, the Animals, Food, Plant Health, Plant Propagating Material and Seeds (Miscellaneous Amendments etc.) Regulations 2022, and we have a written statement and a commentary related to this item. The written statement notifies the Senedd that the Welsh Government has given consent for the UK Government to make the animals, food, plant health et cetera regulations 2022. These regulations correct a number of deficiencies in, amongst other things, devolved retained EU law in order to make that law work in a domestic context. Some of these corrections are minor; however, other changes appear to be more significant, in particular changes to two European Council decisions relating to the import of animal products and fishery products from the USA. We can return to this in private if Members want to, but at this point, are we happy to note it or are there any comments related to it? We're happy to note; we are.
In which case, we move on to item number 8. We have notifications and correspondence under the inter-institutional relations agreement. This is a regular item for us now, so under item 8.1, we have the written statement and correspondence from the Counsel General and Minister for the Constitution in respect of the Interministerial Standing Committee. So, the written statement and the letter provide an overview of the discussions that took place at the second meeting of the Interministerial Standing Committee on 29 June. It's good to see those coming in front of this committee and for public record as well. Are we happy to note for now? Although again, we can return to it in private if we want to.
Then, we have a series of items here, mainly to note for now, from 8.2 through to 8.8. So, we have—. I'll run through them briefly, but if Members want to stop me with any particular comments that are related to these, although we can again return to them in private. Under 8.2, we have correspondence from the Minister for Rural Affairs, North Wales and Trefnydd in respect of the Animals, Food, Plant Health, Plant Propagating Material and Seeds (Miscellaneous Amendments etc.) Regulations 2022. And in the letter, the Minister states that she has given consent for the UK Government to lay these regulations in relation to Wales, and we considered these regulations in item number 7.
Item 8.3, we note the written statement and letter from the Minister for Economy, providing an overview of the discussions that took place at the meeting of the inter-ministerial group on UK-EU relations on 4 July. Under item 8.4, we note the letter from the Minister stating that she has given consent for the UK Government to make the Aquatic Animal Health (Amendment) Regulations 2022. Under item 8.5, we note the written statement and letter from the First Minister providing an overview of the discussions that took place at the meeting of the British-Irish Council on 7 and 8 July. Under item 8.6, we note the letter from the Minister for Rural Affairs and North Wales, and Trefnydd that provides an overview of the discussions that took place at the meeting of the inter-ministerial group for environment, food and rural affairs on 20 July. Under item 8.7, we note the letter from the Minister for Economy that provides an overview of the discussions that took place at the meeting of the ministerial forum for trade on 5 July and the written statement related to that. Under item 8.8, we note the response from the Minister for Climate Change to the committee's request for further information regarding the Official Controls (Plant Health) (Frequency of Checks) Regulations 2022 and the letters related to that. So, we note all those items of correspondence, and, again, we can return to those for further discussion in private if needed. That brings us then to the papers to note, if colleagues are happy with those.
On the papers to note, we turn to item 9.1. We have, to note, the written statement from the Counsel General and Minister for the Constitution providing an update on the work of the Independent Commission on the Constitutional Future of Wales and the written statement there. So, we're happy to note that—we are.
And then we note the letter from the Finance Committee asking our committee to consider the financial implications arising from the Historic Environment (Wales) Bill and if any significant costs are likely to arise to draw them to its attention. Now, just to suggest to Members, we might want to consider responding to the invitation from the Finance Committee to draw its attention to our committee's evidence session with the Counsel General in July and the follow-up correspondence we had in which, indeed, costs related to the Bill were raised. We're not doing a substantive investigation into the costs that come from it, but we did flag these issues. So, if Members are content, we might want to take that course of action in responding to the Finance Committee. Okay, there we are. Good, thank you.
Item 9.3, we have correspondence from the Minister for Climate Change, which we will note, in response to our committee report on the legislative consent memoranda on the Online Safety Bill. I think we're happy to note that. Again, leap in, if there's something particular that you don't want to leave to the private session that you want to throw in now.
Item 9.4, I'd ask Members to note the letter from the Minister for Climate Change informing the Llywydd that any legislative consent memorandum required for the Data Protection and Digital Information Bill will be laid outside the normal two-week deadline, and it sets out the reason for that delay. So, we note that.
And then, under item 9.5, I'd ask Members to note the letter from Dr Robert Jones, of the Wales Governance Centre, which asks the committee to consider undertaking an inquiry into racial disproportionality within the criminal justice system in Wales. As we note it, could I suggest to Members that we might want to defer discussion on that to the private session on a way forward in responding to Dr Robert Jones's correspondence?
Item 9.6, if we can note the Public Accounts and Public Administration Committee's invitation for members of this committee to attend the ministerial evidence session on the legislative consent memorandum on the Procurement Bill, which was held last Wednesday, 21 September. We might want to just discuss that briefly in private, but if we're happy to note that for now. That takes us on, then, to item 9.7—and simply to note in passing there, of course, one of our members on this committee, before we move on to item 9.7, is also a member of the Public Accounts and Public Administration Committee as well. I understand there was an interesting discussion, and, in private, Rhys, we'll probably ask for an update from that from your privileged perspective there of being on both committees.
Item 9.7, Members are invited to consider the response from the Secretary of State for Business, Energy and Industrial Strategy to the committee's request for clarification on the UK Government's potential repeal of the Trade Union (Wales) Act 2017. The response there—our original letter and the response—is in the pack, and we might want to return to that in private as well, unless Members have anything to note. No. All okay. There we are. Happy to note.
I honestly think it's quite a positive response from the Secretary of State, in a way. He's actually willing to work through the governmental wheels, shall we say, to try and find a resolution to this process, rather than going for the nuclear option, which I think is really good.
There we are. Thank you for that.
We move, then, on to item 9.8. Committee members will want to note the written statement and letter from the Counsel General and Minister for the Constitution, which announced the publication of the Electoral Commission's evaluation report of the local government electoral pilots held in May 2022. We have a written statement and a letter related to that. So, happy to note that.
Item 9.9, colleagues are invited to note the response from the Counsel General to the committee's request for further information following the scrutiny session with him on 20 June. And this might be something that we—. Well, I suggest that it is something we'll want to return to in private session later to discuss as well.
Item 9.10, we note the letter from the House of Lords European Affairs Committee providing an overview of its inquiry into the future UK-EU relationship, and with a proposal to meet with our committee in the new year. Again, if we're happy to note, we can return to this subsequently.
Item 9.11, we note the response from the Secretary of State for Levelling Up, Housing and Communities to the committee's request for further information regarding the processes that are followed when the UK Government decides to legislate in a devolved area. So, if we're happy to note. Again, it might be something we want to return to in private. Yes, we are. Okay.
Under item 9.12, we note the correspondence from the Minister for Finance and Local Government to the joint letter from the Public Accounts and Public Administration committee and this committee, seeking information on the Welsh Government's legislative consent memorandum on the Procurement Bill. So, again we might want to return to that. Happy to note? We are.
We then have to note the response from the Counsel General and Minister for the Constitution to the summary of work undertaken by the Senedd's citizen engagement team as part of the committee's work on access to justice, which the committee will draw to the attention of those who participated in the work.
And then we note the correspondence also from the Counsel General and Minister for the Constitution to our committee's request for further information regarding EU exit-derived statutory instruments, as this work directly influences our work programme.
We note also the response from the Counsel General—under item 9.15—and Minister for the Constitution at the committee's request for further information relating to inter-governmental agreements between the Welsh and UK Governments.
And under item 9.16, we note the letter from the Minister for Climate Change to the Llywydd explaining that a supplementary LCM on the Social Housing (Regulation) Bill will be laid outside of the normal two-week Standing Order 29 deadline due to amendments to the Bill being laid over recess.
Under item 9.17, we note the letter from the Scottish Parliament's Constitution, Europe, External Affairs and Culture Committee, in which it shares its report on the impact of Brexit on devolution and its next steps.
And under item 9.18, we note the letter from the Minister for Social Justice and the Counsel General and Minister for the Constitution to the Llywydd explaining that no LCM will be tabled for the Bill of Rights Bill in the foreseeable future, due to the uncertainty about the UK Government's intention to proceed with the Bill. And obviously, that has great pertinence for the committee, and we'll probably want to return to that in private as well.
Well, colleagues, we've gone through a fair deal of business, and the backlog of business that has stacked up for us there. Thanks to our clerking team as well for their analysis and the reports that they brought forward for quite a mammoth range of issues we covered there.
bod y pwyllgor yn penderfynu gwahardd y cyhoedd o eitemau 11, 12, 14, 15, 16, 17, 18, 19 ac 20 y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).
that the committee resolves to exclude the public from items 11, 12, 14, 15, 16, 17, 18, 19 and 20 of the meeting in accordance with Standing Order 17.42(vi).
Cynigiwyd y cynnig.
I'm going to move item No. 10 now to move into private. Before I do, just to remind the public, who might be hungry for more of our committee's deliberations, we are returning to public session at 1.30 p.m. when we have an evidence session with the Law Commission. But I will now move item No. 10, a motion under Standing Order 17.42 to resolve to exclude the public from items 11 and 12 and items 14 to 20. So, just to explain to the public out there, in accepting this motion we will go into private now. We will return into public, there will not be another motion to go into private—we will simply move into private after the evidence session. Are we happy to do so? We are. So, we will move into private and wait for the notice that we are in private.
Derbyniwyd y cynnig.
Daeth rhan gyhoeddus y cyfarfod i ben am 12:10.
The public part of the meeting ended at 12:10.
Ailymgynullodd y pwyllgor yn gyhoeddus am 13:33.
The committee reconvened in public at 13:33.
Croeso nôl. Welcome back, everybody. Welcome to this, the second, session today as we reconvene, of our Legislation, Constitution and Justice Committee. We're delighted this afternoon to have an evidence session now with members of the Law Commission, and we're delighted to have in front of us the Rt Hon Lord Justice Green, chair of the Law Commission, Nicholas Paines KC, law commissioner for the law in Wales, and Charles Mynors, lawyer responsible for the 'Planning Law in Wales' project. And we are looking at the issue, which is of great interest to our committee, of the Historic Environment (Wales) Bill, which we're really hopeful that today's session will get some real expert views on from the Law Commission, but also from you perhaps as individual professional members as well.
Let me just hand it over to you for a moment, having given some brief words of welcome, whether there's any opening comments you might want to make just to set the context of this as well, and your perspective on it.
Chair, thank you very much indeed. Can I say that we're absolutely delighted to be here in Cardiff to give evidence to your committee? We consider it to be extremely important that we are able to be present in Cardiff to assist you in your deliberations. For the record, I am the chair of the Law Commission. On my right, Nicholas Paines KC, who is the commissioner who is responsible for Welsh law; and on my left, Dr Charles Mynors, who is the senior commission lawyer who was working on the planning law consolidation exercise. He's also an expert in the law concerning historical environment. As the committee knows, the Law Commission's involvement has primarily been on planning law consolidation. The driving force for the, if I may say so, impressive work on the historic environment Bill has been that of the Office of the Legislative Counsel.87
Now, our purpose today is, at base, to be as helpful as we possibly can be to you and, as the committee knows, the formal views of the Law Commission are those expressed by myself and my four commissioner colleagues as a group of five, and many of the questions and issues that you would like to raise with us today will not therefore have been addressed by the five of us collectively. But the views we express today we hope will be helpful, and we proffer as those with professional expertise in the area, and we hope, with that proviso, we won't have to qualify anything we say as we give evidence.88
We're going to divide the task of answering your questions between us. Of the three of us, I am the least expert. The commissioner and Dr Mynors have the greatest expertise and experience, but we will divide the issues between us. I may address institutional matters, but technical details will largely be addressed by my colleagues. Nick, is there anything you wish to say by way of introduction?
I don't think so. For my part, I will attempt to deal with those areas where the Law Commission has formally recommended things in the manner that Nick Green has described. Wider areas of planning and historic environment law I would be a fool to tread where the much more expert Dr Mynors knows everything.
Very good. Well, in that case, let's commence. Let's dive in and see how we get on, and I feel this is going to be a little bit like University Challenge with you deferring to colleagues on either side. Okay, well, just broadly first of all, I wonder if you can describe the extent of your engagement with Welsh Government on consolidation of Welsh law per se, in entirety. And you touched on it just a little there, how you've engaged on this Bill, which may be a little less, from what you were suggesting. I don't know, but—.
Well, our formal engagement I think takes three forms: first of all, in our report on planning law, we made a couple of recommendations about aspects of other historic environment law, to which planning law cross refers. We recommend tightening up a definition and abandoning some unused provisions. That's the first category. Secondly, we made, obviously, a number of technical reform recommendations in relation to planning control. In tandem with that, we recommended that the system of listed building consent be merged with planning control. What we proposed was that what is currently regulated as an alteration to a listed building would become a form of controlled development. The protection would be identical, but taking these recommendations together, the various technical reforms that we were making, we envisaged would apply to listed building control as well. In the event, the Welsh Government didn't accept the recommendation to merge the regimes. I'll accept at once that it was controversial. It wouldn't have changed the substance of the protection, it would have got rid of duplicative law, but a lot of people felt it was diminishing the importance of listed buildings as an aspect of our history and that the regime should be kept for that reason. Anyway, the Welsh Government didn't adopt that merger recommendation; instead, what they have done in the Bill is to implement, as aspects of new historic environment protection, those technical reforms that we recommended would apply across the board. I hope that makes sense.
Yes, it does.
And then, thirdly, there's the letter that Sir Nick wrote to the Counsel General in May of this year, recommending four additional technical reforms, which the Welsh Government had asked us to consider.
That's great—really helpful opening there. James, do you want to take us on?
Yes. Across the panel, really, just what are your general thoughts on this consolidation Bill, really, just from your perspective of it?
I'll make a very general observation. Obviously, formally, it's not the view of the commission, but as individuals we think it's an impressive piece of work. That's worth saying. It may be a statement of the obvious, but we think it's a very high-quality piece of work.
I'm personally delighted, because the project on the form and accessibility of law in Wales started, obviously, under Lord Lloyd-Jones's chairmanship, with me in the wings, and I took over when he moved on. Without by any means taking all the credit for the achievements that Wales has made since then, I am personally delighted at things like the Legislation (Wales) Bill and seeing your programme of codification begin to take shape.
I have the advantage of having looked in more detail at the emerging historic environment Bill that's now before this committee. I am constantly overwhelmed by the—what seems to me—excellent drafting of the OLC team, and particularly James George, but I'm more generally pleased that this is the first step towards dealing with a consolidation of planning and the historic environment, because of course, in 1971, when the legislation was consolidated, historic environment and planning were in one Act. That was then split in 1990, largely, I think, because there was just too much to do it in one go, and they felt it was just too big a mouthful, so it was split. One of the things that is definitely happening now, both in what has been produced as the historic environment Bill that is now before us and is in the public agenda, and in what is gradually emerging in the planning Bill, which is still obviously some way off completion, is that the two are being very definitely considered together, and the result will be a joint consolidation of very high quality, I have no doubt, and of much higher quality than has been done on other occasions in other places. So, I am personally delighted with the quality of what's being done.
Good. Rhys, did you—? Yes, go on.
Just a general question, Chair. I want to pay tribute to the Law Commission. It's a brilliant example of a justice body that has adapted to Welsh devolution, despite being still part of the England-and-Wales jurisdiction, and it has produced a lot of work that has really assisted us here in the Senedd. Are there any suggestions you could make of how the relationship could be improved even further, how the working relationship could be improved even further, between the Senedd and you as a Law Commission?
Let me make a few broad statements. When we were created in 1965, we were the Law Commission of England and Wales, because there was only the law of England and Wales. Since devolution, internally we think of ourselves as the Law Commission of Wales, and constitutionally we think that's the proper analysis. As you may know, we are at the moment negotiating over a fairly long period of time a programme of works with the Westminster Government. One of the things that we might do, and we perhaps wish to consider with the Welsh Government, is a longer term programme of works for the Law Commission to undertake, in conjunction with the Welsh Government, on devolved matters. So, I would hope that there are things that we can do over the next few years that will implement the codification progress and the accessibility process, and take on other, more ad hoc projects of a more substantive nature. We think that we will only perform our function as the Law Commission of Wales if we are constantly working with the Welsh Government on its legislative programme.
Thanks, Chair. I'll probably get into the meat, now, of some of the recommendations you've made. Do you consider the changes made in section 91(1) to (4) in the Bill in relation to notifying owners of applications for consent to be a proper reflection of the Law Commission's recommendation?
Yes, I think it is. I've looked at the format as to which we agreed were appropriate for inclusion in a consolidation Bill. There was one that we didn't agree, but four we did, and those four have been properly incorporated.
Okay. Thank you. And do you consider the changes made in section 109(2) and (3) of the Bill in relation to notification of purchase notices to be a proper reflection of what the Law Commission proposed?
Same comment? Thank you.
A similar vein of questioning but this on the conservation area consent, section 161. Now, in your letter to the First Minister in mid May of this year, you said that the procedure for conservation area consent should be aligned with listed building consent. Again, are you content that the changes to section 161 of the Bill is a proper reflection of your recommendations?
Yes. I think, oddly, that's an example where the change has been made by not including what was a previously rather confusing provision, and so you're not looking for a needle in the haystack, you're looking for the bit of the haystack where the needle has been removed. And so what is now the position is that the procedure as to listed building consent is simply applied lock, stock and barrel to conservation area consent by, from memory, section 163, I think it is, in the Bill. Yes, 163 refers to—. It basically just applies to conservation area consent the listed building consent regime, and that includes amongst many, many other things, the application by planning authorities, which was always an oddity. It was an oddity for which there was no obvious point. I've no idea why it crept in whenever it did. It has now just vanished in this, and that's fine.
Thank you very much. With regard to powers to appoint assessors, in the same letter to the First Minister you said that the proposed changes to appointing assessors would be beneficial. Are you content, therefore, that the changes that are included in Schedule 12 are also reflective of your recommendations?
That is an example of a proposal that we made in relation to the planning Bill, and we basically were saying that when the planning legislation started out, every decision was made by the Secretary of State. Of course, now, 99 per cent of decisions are made by inspectors, and it seems tiresome that the Secretary—or, of course, in the Welsh context, Welsh Ministers—that they should have the power to appoint assessors but not inspectors. So, we said, 'Just do that.' That was the sort of sensible tidying up that was incorporated into our report on planning. If it applies to planning, then logically it applies to listed building consent as well, and so that has been done. That's an example of where we made a recommendation in relation to the planning code. Also, alongside that, at that time, we were making a recommendation that that would apply to listed buildings anyway, and therefore the inevitable logical consequence of that is that what applies to one applies to the other, and that has in fact come through and that's fine.
Thank you very much.
Under the current law, assessors can only be appointed for appeals by way of hearing or inquiry. We're saying it should apply to paper appeals as well.
Thank you very much. Mr Paines has already mentioned one recommendation that hasn't been taken forward. Are there any recommendations from your report that you think have been incorrectly omitted from the Bill?
That's not really something we can comment on. [Laughter.]
We made the merger recommendation and we made a recommendation for a general duty; neither of those was accepted by the Welsh Government, but that's a matter for them, and I don't think the omission raises any issues under Standing Order 26C.
So, you have no concerns about any of the omissions from the Bill.
We can get to the point in many projects, both Welsh law and English and Welsh law, where we make suggestions, but we 100 per cent acknowledge that there follows an issue of political judgment, and that's entirely a matter for the Executive or the Parliament, not for us. So, we're very thick skinned about these things. [Laughter.] We have to be.
And in particular, I think, in a consolidation Bill there is always an element of judgment to be made as to how far you can go in consolidation, because if you, basically, strictly consolidate and take forward the existing law with all its oddities and imperfections, then there's really not much point in consolidating, so it's sensible to improve it. On the other hand, if, while you're at it, you take the opportunity to slip in this, that and the other desirable policy change, then you'll lose the point of consolidation, and then you should actually open it up to the floor of the Senedd to allow Members to have a chance to debate, and then, of course, once you've done that, you open up the whole thing and you lose the quick procedure. So, clearly, the judgment as to where the process should properly stop is inevitably a matter of judgment.
We made a number of recommendations and one or two of which we mentioned were judged to have gone a little bit too far. Fine; if we had taken a completely risk-averse approach, we would have made no recommendations at all. Also, in each case where we have made a recommendation that hasn't been accepted, the response from the Minister, from Julie James, was along the lines of, 'Thank you very much. Interesting suggestion. We think it may or may not be appropriate, but it needs further thought, so we'll come back to it, maybe, possibly'—no commitments either way, of course—'at a future reform Bill.' So, it lies on the table. It may disappear, it may come back. Who knows?
Good politician's answer there from the Minister. [Laughter.] In your report, you make—. Much of your recommendations are changes with regard to the Town and Country Planning Act 1990, but we see from the tables of origins and destinations that lots of the changes aren't to do with the town and country planning Act but with regard to the Planning (Listed Buildings and Conservation Areas) Act 1990 instead. Does that raise any concerns for you, any issues? Are you content with that?
Yes. Well, as I was saying earlier, we recommended merger of the regimes. Welsh Government rejected that recommendation, but they are making all our technical reforms in this Bill, and in due course will make them in the planning Bill as well. So, from the point of view of the adequacy of the law, we have no concerns. Obviously, we still feel, having favoured it, that merging the regimes would have saved a lot of legislation, saved a lot of duplication of paperwork, but there were counter-arguments, which the Welsh Government found more compelling.
Thank you very much.
And certainly, there are obviously a lot of—30 or so—places in the drafters' notes on this Bill where it refers to Law Commission recommendations, and they are for innocuous technical issues of one kind or another, and I won't go through all 30 of them now, where we made a recommendation in relation to the corresponding power in the planning Act. The listed buildings Act is near as damn it or, actually, totally identical, and so it would be wholly illogical not to make the same amendment, and so that's why that change has been made. In practice, in a number of cases, I'm aware of all, or I've looked through all of them in detail, and also on a number of cases where I was actually asked personally, 'Are you satisfied with what we've done with your recommendation 1, 2, 3, 4, 5?' So, yes, I have absolutely no problem at all.
So, there's been an ongoing relationship between you and the drafters in the Welsh Government?
I realise that we didn't actually tell you at the outset that Charles—Dr Mynors—has been lent by us to the Welsh Government more or less since the publication of the planning report.
I'm referred to in the relevant memorandum of understanding as 'the loanee', I think. So, although I am employed by the Ministry of Justice's arm's-length body the Law Commission, I am on loan to the Welsh Government to assist in taking forward the planning Bill from our final report on, and I am a small cog in the Welsh Government's system. But since I happen to be around, every so often I get an e-mail saying, 'We were wondering about your recommendation 1, 2, 3, 4, 5. Can you just confirm that you're happy with that?' 'Yes.' In every case, it's been done by OLC and by the team excellently.
Very sensible, I think, Chair, and lucky Welsh Government that they have you, Dr Mynors. Thank you, Chair.
Yes, indeed—embedded, even if only loaned, as 'the loanee', yes. But we're staggeringly disappointed that, to date, we're not getting any strident criticism of political judgments of the Welsh Government or whatever—
Quite, yes. [Laughter.]
This is not a good afternoon for committee. [Laughter.]
Not yet. We'll try. Go on, James.
It's good you mentioned the 'Planning Law in Wales' report, and that did set out some very clear recommendations. So, do you think that this Bill actively represents those recommendations that were put forward? We might get our first criticism.
On planning, I think the answer is 'yes.' Sorry. [Laughter.]
I think the—
We might as well go home.
Some of the recommendations in our planning report referred to those bits of the planning regime that are not duplicated by the historic environment, so that is not before this committee at this stage. We'll get to that when we get to the planning Bill. But insofar as the two regimes overlap, and in particular as regards the overlap between the planning permission regime on the one hand and the listed building consent and, of course, the conservation area consent regime on the other, then that's all fine, save, as I say, in respect of those recommendations to which the Welsh Government perfectly properly said, 'Interesting, but not yet.' That's fair do's—that's the way life is.
There are also one or two recommendations, perhaps it should be said, that would have applied to both regimes where we are looking more carefully at the overall consequences, because sometimes you can have unintended consequences. I'm thinking, for example, firstly of what is a relatively minor thing of referring on the face of the statute to persons appointed by the Welsh Minister as inspectors, which is not a huge point because in real life everybody calls them inspectors. But I think they felt, perfectly properly, that, given that the inspectorate has recently been reorganised so that there is now an independent inspectorate in Wales, it would be wrong to make that change at this precise moment. So, by the time we get to the planning Bill, it may then be appropriate to make that change, but if we did, we would make it to both planning and listed building consent.
The other point, slightly similar, is the mechanism for statutory challenge of planning decisions that would, necessarily, be logically applied to both planning permission and to listed building consent if you're making a challenge in the High Court to a decision of the Welsh Ministers. We recommended that the statutory provisions in Part 12 of the planning Act would be replaced by judicial review, because we said that would hugely simplify it. The same, logically, would apply to the listed buildings Act. Everybody recognises that that seems to be the direction of travel. Whether that's actually suitable for consolidation or reform, and whether it has unintended consequences, is something that we are looking at with some care in the planning context. If we decide to adopt it—. I say 'we'; if the Welsh—
You've been in Welsh Government far too long already. [Laughter.]
I'm on loan. If it is decided by the appropriate persons to adopt that change, which would look quite a large change but it wouldn't actually be in fact and in practice a large change, it would be very unhelpful to adopt it at a different time for the planning and the listed building consent regimes, because, very often, you have a statutory challenge in relation to both Acts at the same time, so it would be really unhelpful to have two horses going at different speeds. So, in that respect, I think that's one where there may therefore be—and there may be other examples yet to emerge—where changes are made in the planning Bill, probably no doubt in some Schedule at the back, to what will by then be the new historic environment Act because it will be helpful to bring into force either both or neither. So, that may be a change yet to come, but we'll obviously look at that when we get there.
Just to mention on that, James, of course, we'll be looking at all of the consolidation Bills in the remit of this committee—
—so we might well be coming back to you for your expert input at that point as well.
That point had possibly occurred to me, yes. [Laughter.]
Thank you. James.
One final quick question from me. You'll have to bear with me, it's quite a long question. Section 31(5) of the Bill addresses the issue of serving copies of temporary stop notices. Section 31(5) includes a new provision that copies may be served on occupiers of the monument or land to which the notice relates. The drafters' notes accompanying the Bill state that
'The addition of occupiers is intended to clarify the effect of the existing law',
and this was a recommendation that the Law Commission made. Do you agree with the Welsh Government's approach? And do you agree that there was a lack of clarity in the effect of the existing law? Nicholas.
I haven't studied this exactly. I've seen the discussion when the Counsel General appeared before you. First of all, I think it could be said to be anomalous that occupiers are not included amongst the persons under the present legislation, whereas they are under the Town and Country Planning Act 1990. Instead, you have this reference to those carrying out the works, and it is unclear whether that means the actual chap with his trowel, or whether it means the person who has engaged him to do it, who might be the occupier. It does seem to me, speaking entirely neutrally, that it makes sense to include occupiers specifically. It's not the Law Commission LIM of 2016 [correction: the Law Commission report of 2018] that's been relied on to do it, so we haven't formally looked at the issue. But, for what they're worth, those are my few reflections on the point.
From the three of us, it seems a sensible proposal.
Essentially, when they introduced temporary stop notices in relation to mainstream planning in 2004, you served a copy of the notice on the owner and the occupier. When they introduced in Wales only—England has yet to catch up—temporary stop notices in relation to both ancient monuments and listed buildings, because it's not just section 31(5), it's also—whichever section it is—in 19(5)(b) as well, as exactly the same point arises in relation to listed buildings, they spotted that, 'Hold on a minute, in planning you have served it on an owner-occupier; in historic environment it's just on the owner. Why is that?' And there is no obvious reason at all. Basically, 'It's an oddity; sort it out.' I don't know why it was missed out; I don't think anybody knows. Looking for something that was missed out can be very difficult.
A bit of tidying up.
It's an oddity. It's been sorted.
Thanks, James. Alun, we'll come to you.
Thank you very much, and thank you very much for your evidence this afternoon; I'm enjoying the conversation from Caernarfon at least. You were discussing earlier the nature of a piece of consolidation legislation in terms of how it's put together. I'm interested in those elements of existing law that didn't make the cut, if you like—that aren't consolidated. The understanding that we have from the Counsel General is that the Welsh Government considered four piece of legislation and decided to exclude them from this process: the Protection of Wrecks Act 1973, the Redundant Churches and Other Religious Buildings Act 1969, the Protection of Military Remains Act 1986 and the Ancient Monuments and Archaeological Areas Act 1979. Some of those—the protection of wrecks—I can see why they would be excluded, and the protection of military remains. But the other two strike me as somewhat potentially odd. Do you have any views on whether these, or other pieces of legislation, should have been included in the consolidation process, and do you have any views on areas where you believe the consolidation needs potentially to be strengthened?
I can deliver this not formally on behalf of the Law Commission, but I can make some observations. The first is to acknowledge that a huge amount of work has been done in Wales on the issue of—. You'll know the taxonomy document that has been produced, attempting to categorise, to put the law into compartments that can be codified individually. But, at the end of the day, it's very much a matter of judgment where a category should end. There are equally strong arguments for saying that wrecks are part of the historic environment as for saying, 'Well, they're not on land like the rest of the subject matter of this legislation; they're a marine issue.' And it's a matter of judgment, and if somebody wants to know what the law on wrecks in Wales is, whether they go to the historic environment Act or whether they go to the separate wrecks legislation is, at the end of the day, not a huge issue. And I think one could say much the same—. Well, obviously churches are on land, but, again, there will be arguments for and against including particular subject matter. Of course, the less frequently used the piece of legislation is, the stronger the arguments for not cluttering up with it a piece of legislation that is likely to be quite frequently used, because it means the reader has got additional pages to turn or scroll through. Those are my immediate thoughts.
The long and the short of it is that it's a complex judgment matter for Government, and, whilst there are invariably arguments on both sides of these sorts of issues, we absolutely understand why the Government have chosen to do what they've done, even though we'd have been happy to consolidate it all. It's one of those areas—. As I was saying, we're thick-skinned, in the sense that we accept political judgment, and it may be something we'll come back to in due course.
I think, also, I would add, in relation to one or two of the specific ones mentioned, it's noticeable that, when the matter was looked at in Scotland, the Protection of Wrecks Act has been repealed in Scotland and has been rolled up in not the Historic Environment Scotland Act or equivalent, but in the Marine (Scotland) Act 2010—who knew—and that's an indication that, actually, they decided that it's something that is actually more appropriately dealt with in that way. Because it's not just wrecks, it's also other things that you find in odd places in the sea and there is a thing called a 'marine protection area'—no, I don't know what it is either—under the Marine (Scotland) Act, which deals with, apparently, wrecks and other things. So, they made a judgment; they actually did think about it and they decided that they would go down that route. Now, who knows what will happen in Wales? Maybe there will be a marine (Wales) Act one day—who knows?
One of the other matters you mentioned, however, was the archaeological areas, which has not been included. That is something as to which the Law Commission has a view, because we explicitly recommended that they should not be restated in the historic environment legislation, because although it appears to be to do with the historic environment, in fact, it more directly relates to planning legislation. It's a procedural mechanism to alert those making planning decisions to particularly important archaeological areas. There have only ever been six, I think, or it may be four—I can't remember—such areas. They were all made in the 1980s, they were all in England, and the Secretary of State in England said, in about the 1980s, that that part of the ancient monuments Act would be repealed at the first available legislative opportunity. [Laughter.] This is that first legislative opportunity, and it's only happening in Wales. So, there you go. But, in other words, it's a piece of legislation that was passed in 1979, used four times in England [correction: used on one occasion] in the 1980s, and has then been completely forgotten about. Everybody has said it's a dead letter, so that was a deliberate decision, and we recommended, 'For goodness' sake, get on and do it', and it has, indeed, been done. End of.
So, essentially, it's disappearing almost as a consequence of it not being included.
It's been repealed by omission.
It has. That's right. What we said was, 'Do not restate it', and that is exactly what's been done, and, happily, it had almost no consequential effects. You could repeal Part II, I think it is, of the ancient monuments Act just by consolidating the whole of the rest of the Act, repealing the whole of the Act, and that, of course, leaves behind Part II, which just doesn't apply, so it will continue to apply in England and Scotland, and not be used. [correction: You could repeal Part II, I think it is, of the ancient monuments Act just by restating the whole of the rest of the Act in Wales, and amending the whole of the Act so that it no longer applies in Wales. That, of course, leaves behind Part II, which will continue to apply in England and Scotland—and not be used.]
I don't want to hold up the committee, because we were having this conversation in an earlier part of the session, about what is restated and what isn't restated, and what is updated and not updated. Surely, if you're repealing legislation you should do that properly, not just not include it in another piece of legislation. Surely the correct way to approach this would be, even it's a one-clause Act, to say, 'We are repealing this dead-letter piece of legislation', as you've described it.
There's a technical issue here, which is that currently, England and Wales are a single jurisdiction, and Acts of Westminster and Acts of the Senedd are part of the law of that whole jurisdiction.
I understand that.
So, if we want law no longer to be operative in Wales, but to remain operative in England, we have to provide that it no longer applies.
'No longer applies', then, rather than repealing.
So, I anticipate that, along with the failure to reinstate the archaeological areas provisions in this Bill, there will be a clause somewhere that amends the Westminster statute to say it doesn't apply in relation to Wales.
You'll find that the answer is in Schedule 13, which is the amendment schedule, and at paragraphs 19 onwards, it refers to the ancient monuments Act 1979 'is amended as follows', and all the way through, in the next paragraphs, there are a series of amendments that generally say, 'add "in England [correction: England and Scotland] only"', effectively. So, the result of those will be that the 1979 Act will continue to apply in England [correction: England and Scotland]; it will just simply not apply in that part of 'England and Wales' known as Wales. So, that's the way it has actually technically been done.
He is telling the truth, Chair. [Laughter.]
This jurisdiction thing is a bit ridiculous, isn't it? Okay. In terms of moving on, I think I probably know the answer to this, but from your perspective, are you content—? You've said already in answer to questions that you think it's a very impressive piece of work from the Welsh Government and that you think that the Welsh Government should be congratulated, I think you probably said, in terms of producing this, are you content with both—? You are content, so I assume that you're content with the legislation itself, but with the supporting documentation, are you also content that people will be able to understand what the legislation is seeking to achieve? Notwithstanding the point that's just been made about—
Do you mean the explanatory memorandum, those sorts of supporting—?
Yes, the explanatory memorandum, yes.
Again, we've all read the supporting explanatory memorandum, and from a legal perspective, they are very good. They are clear, thorough, comprehensive, but there is always an issue with a very complex piece of legislation like this in making it absolutely accessible to the non-specialist, and there's always a balance, a difficult balance, to be struck. But from our perspective, the explanatory memorandum is a good piece of work, and we do see a lot of explanatory memoranda to legislation, much of which is not, I'm afraid, of terribly high quality. Nick, do you want to add anything?
I remember that, in our form and accessibility report, we made some observations about explanatory memorandums and explanatory notes, and I think, if I remember—it's five years ago now—we did put in a plea for explanatory notes in particular to do more than just parrot the words of the clause. I can't claim to have studied the materials—I've looked at the explanatory memorandum and found nothing to criticise. Charles, who's looked at it more thoroughly, says it's admirable, and that, I think, is as far as I personally can go, in that if Charles thinks something's admirable, I'm sure it is. [Laughter.]
It also has the great advantage, unlike previous ones, that at least it's also in two languages, which hitherto hasn't been a feature of explanatory memorandums. So, in that respect too it's admirable. I can't guarantee, though—I can't make any comment on the quality of the Welsh. My Welsh isn't up to it.
Chair, I have never, in 15 years as a Member of this place, heard anyone describe an explanatory memorandum as being 'admirable'. [Laughter.] So, I think that's a good place in which to stop and to leave it there.
'Ardderchog' I think is the word I would use.
I'm grateful to the witnesses.
Can I add that from the perspective of a judge, these things actually really matter? Because if a judge or a court has got to construe a piece of legislation, one of the admissible guides are the explanatory memorandum and notes. We note a huge difference in the quality of explanatory material. Some of it just parrots, not always accurately, what's in the Act and that's of no use to us at all. Something that provides a comprehensive explanation and summary can be very valuable. When I say that I think it's a good piece of work, that's really where I'm coming from.
I fully accept that.
Thanks, Alun. And I think that comment on the immense variability in the quality of explanatory memoranda is the nearest we're going to get to a scathing criticism of some aspects from you this afternoon, but it is helpful to us because it's something that we've picked up on as well as a committee regularly. And your point that these are of singular use if they're well done, and of a singular hindrance if they're not, is well made. Could I just ask, it's a bit unfair to put this question to you, but you might know: is there anything going on in England of a similar nature to do significant reform or consolidation of historic environment law?
I am not wholly unaware that the relevant officials in the relevant Government department are watching like a hawk what's going on on this side of Offa's Dyke, and I think one could loosely say that their approach is becoming increasingly aware that it is now actually happening, rather than merely a twinkle in the eye of the Senedd. It may be that that awareness will eventually take shape in the form of a planning and historic environment England Act, but who knows?
That's interesting to know, yes. Good, good.
We've certainly had observations from a number of senior civil servants and Ministers that they have been quietly impressed with the work that's going on here.
I think, basically, you have a two-year start, three-year start, who knows, and we'll see. But, I think Wales has led the way.
Very good. As long as there's no poaching of our key players on the field in order to drive forward their changes, we're quite happy. Can I turn to the issue of subordinate legislation that might flow from this Bill—Welsh Government's proposals on this, your thoughts on this, and whether or not this will help on the overall issue of accessibility of the law?
Speaking at a rather high level, this legislation has traditionally had primary legislation and then subordinate, and that seems to show that it's a sensible way to organise the provisions. When you're rationalising the primary legislation, it seems a good idea then to turn your attention to the secondary legislation, and rationalise that as well. I don't have enough knowledge of this particular project to comment any further, I'm afraid.
In terms of the ancient monuments legislation, as it has been until now—monuments of special interest, as it will be—it's noticeable that the principal secondary legislation has been incorporated as a schedule of the new Bill—that is, the classes for which consent is automatically granted. And that is sensible, because that hasn't actually been changed much or at all since about 1980, so that makes sense to bring that into the primary legislation. And there have been other examples of material that has gone way or the other from primary to secondary or vice versa. But, more generally, I think in this particular Act—that one example apart—generally, I don't think there will be any need to make much alteration to secondary legislation as a result of this consolidation, other than, obviously, replacing the references to the 1990 Act [correction: to the 1979 and 1990 Acts], with the 2023 Act, or whatever. But it's possible that this line of thinking arises from the comment by the Counsel General in the Senedd when, in outlining his programme of codification legislation, he said, in relation to planning, 'There will be, hopefully, new regulations for about four or five of the principal long-outdated pieces of secondary legislation, which are crying out to be updated.' So, hopefully, they will follow soon. I don't think, with the notable exception of tree preservation orders, which have to be done at the same time, the others will be sorted out because of the consolidation [correction: solely because of the consolidation]. It would obviously be sensible, at the same time [correction: at around the same time], to sort them out generally, and I think the intention is, as I understand it, to do that, although I also of course understand that there are resource constraints. So, it will happen, no doubt, over the next five years or whatever. So, I think though that, planning, there will be a number of new bits of secondary legislation over the following five years. Historic environment—I wouldn't expect there to be any of any consequence at all, other than the obvious tidying-up references.
Okay. Okay. Thank you. Let me turn, then, in the few minutes that remain there, to the issue of how Welsh Government proceeds, both with the issue of codification and consolidation, and how they bring this forward, bearing in mind the capacity constraints you've talked about as well. Do you have any views, does the Law Commission have any views, on the proposals for codes of Welsh law and whether there are risks for maintaining the current structure of consolidated law without making progress on the development of the codes? Does that have any risks within it that you feel that are evident?
Well, when we reported on the form and accessibility, we proposed codes. We had a slightly different understanding of them from the way the Welsh Government's taken matters forward, but that's not an issue. But one of the things we said is that there will need to be—. Internally, we called them code disciplines. What we meant by that is that, when you've got a code in place, if you want to change the law, you amend that code; you don't legislate in parallel. I don't think that's as yet covered by Standing Orders, but we recommended that there should be a Standing Order, if I recall accurately, to the effect that, if you're the Member presenting legislation that's going to sit alongside a code, you've got to give a reason. And I think we also recommended that, from time to time, if, in an emergency legislation is enacted alongside a code because there's a desire to get it in place quickly, there may need to be a mopping-up operation afterwards, and the subject matter should be brought into the code as soon as possible. I think we still feel, collectively, at the Law Commission, that those areas do need to be dealt with in Standing Orders.
And underlying this is the fundamental principle of transparency and legal certainty, that, if you're going to have a code, it should remain comprehensive, so that people know that there is only one document they need to look to, to determine what the law is. And the moment that discipline begins to fail and you have two, three, four, five pieces of legislation, you rather undermine the very rationale for having a code in the first place.
And that is no doubt why section 1(1) of the Bill starts by saying,
'This Act forms part of a code of law relating to the historic environment of Wales',
which might appear to be a sort of innocuous statement of the blindingly obvious, but, in fact, is very important, because it is saying that this is actually not just another piece of legislation, this is actually a code. And it may be hoped that we will see a similar statement at the front, section 1(1), of the code on whatever it may be, on education or housing or whatever the next code is coming down the line, in each case. So, it's a signal to those who need to know these things, 'Wake up, this is the code; this is not just an ordinary Act.'
That's really interesting. With the help of my colleagues here around the table, they're just raising the issue of whether, in respect of the establishment of codes, the England-and-Wales jurisdiction plays any part within that.
I can see that there must always be a temptation to undermine what Mr Paines described as the code discipline from anybody [correction: on the part of anybody] who is making any legislation that might be relevant, but it's obviously not for us to tell Parliament or the Senedd what they can and can't do.
In areas of devolved law it's your prerogative, and the mere fact that there may be a code that sits in conjunction at the side of a Welsh code doesn't mean to say it trumps Welsh law.
Right. Very good.
And the Senedd would be competent to do the clean-up operation that I was referring to.
Right. Right. That's helpful. It's very clear—very clear. Can I return to just one earlier point? You mentioned, helpfully, in response to Alun's line of questioning why there are good reasons why political judgments are made whether something may fall within or outside particular consolidation, and you mentioned of course the wrecks, and that was quite instructive, and the Scottish example in terms of how they've dealt with the issue of wrecks. On the issue of churches, church buildings and so on, do you have a similar clear explanation of why that particular one would be a matter of good judgment, that actually there's a good reason—
That's, Chair, the Redundant Churches and Other Religious Buildings Act 1969. It's a slightly odd piece of legislation. It was introduced alongside the Pastoral Measure 1968, which was a piece of General Synod legislation, which of course was almost entirely confined to England. The clue is in the name—it's the Church of England. There are, however, about five parishes of the Church of England that are within Wales, surprisingly. I know because a lot of my ancestors are buried in one of them, in Old Radnor. So, yes. The Redundant Churches and Other Religious Buildings Act was basically the Act of Parliament, because it was primarily about matters of general law, that accompanied the Pastoral Measure 1968. It's been sitting on the statute book, largely unused and unloved, ever since, and I think, as I understand it, the view was that, when they were looking at things to include, it would actually—. It would be—. The application of the—. There are only about three sections left of the 1969 Act, and their application to Wales was so minimal and nugatory that it just simply wasn't worth the candle. It may be that—. The Mission and Pastoral Measure of whatever it is—2011, I think—I think is due for renewal in the General Synod. It may be as part of that exercise. I, personally, as former diocesan chancellor, will do what I can to ensure that, if there are wrinkles that can be sorted out, they will be.
Well if—[Interruption.] [Laughter.] I think if this were an episode of University Challenge, then the use of all partners across the panel has been excellent. Thank you very much. Colleagues, have you got any other questions?
If only every evidence session was like that. Thank you ever so much.
Yes, indeed. Thank you. Yes, please.
I wonder if I could go back, Chair, to a couple of things that you set at the outset about closer working between us and the committee. The first thing that called to my mind is that we're looking for our next Welsh project, and we're happy to discuss with anybody ideas for a Welsh project. It's been our ambition for the last couple of programme periods that in or alongside each of our programmes of work is a Welsh project, and that remains our ambition. We'd like to identify a project that would be valuable. The tribunals project was the project that we did alongside our thirteenth programme; we're now about to formulate our fourteenth. The coal tips project, which was a fantastic project from our point of view, came, I won't say spontaneously, but we were requested to undertake it and gladly did so in the wake of Tylorstown. But we've concluded both of those projects and are keen to do more Welsh work.
The other thing I was going to tell you, having been around for so terribly long, is that we have in the past met with the predecessor to this committee, and I'm sure Nick agrees with me that we would be very happy to meet less formally with your committee if you would find that valuable.
Thank you very much for that offer, and I think we will take that up there, and certainly we'll put our thinking caps on now as well, in terms of future potential ideas for projects. Sir Nicholas.
Chair, you mentioned capacity earlier, which rang a bell in my mind. As I said, we view it as important that we retain capacity for Welsh projects. That's a matter of priority for us.
That's good to hear. Well, can I thank you all very much for this evidence session? It's been really helpful indeed and has given us some great detail, which will help in our consideration of this, which we are genuinely very excited about as a committee as well, this approach to legislative consolidation. So, we are very thankful to you. We know you're heading off back now. We're going to go into private session in a moment, but before we do, just to let you know that, as per normal, the transcript will be sent to you just to check for accuracy. And we look forward to meeting you again very soon at the next consolidation that comes forward, if not sooner. And certainly your offer to meet informally as well, we really appreciate that. Thank you very much. And we'll wait just for a few moments to be told that we are in private.
Daeth rhan gyhoeddus y cyfarfod i ben am 14:31.
The public part of the meeting ended at 14:31.