National Assembly for Wales

As a reminder, the meeting is being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual. Please can Members ensure that all mobile devices are switched to silent mode. Senedd Cymru operates through the medium of both the Welsh and English languages. Interpretation is available during today’s meeting.

That takes me on to the first major item, scrutiny session with the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs, and the Counsel General and Minister for Delivery. Croeso. Welcome. Can you, or can your officials, introduce themselves for the record?

Indeed. Sophie.

Hello. I'm Sophie Brighouse. I'm deputy director for constitution and Welsh tribunals.

I'm James Gerard. I'm the deputy director for justice policy.

I'm Charlie Thomas. I'm deputy director for legislation division.

Croeso. Welcome. Can I welcome the Ministers and their officials? Counsel General, on Friday, you wrote to the committee and shared with us the third annual report on the Government’s programme to improve the accessibility of Welsh law. Obviously, we've had no time to review the report before today’s session, so we may invite you to return in the new year to discuss it in detail.

But we note from your covering letter that the consolidation of planning law will now be delivered through two consolidation Bills—a main Bill, and a second dealing with consequential amendments and repeals to other enactments. This will be another procedural first in the Senedd. When will both Bills be introduced?

They're part of current programme and we're expecting to introduce them at the beginning of the fourth term. I think that's right, isn't it, Charlie? 

Year 5.

Year 5, sorry.

Thank you very much.

That's the first September Bill, isn't it? That's right. Sorry.

Can you give us an update on the progress the Welsh Government is making on delivering its legislative programme, and whether the programme announced in July will still be delivered by the end of the second term? And do you keep Gantt charts for each item of legislation?

We do, is the short answer to that. We have a spreadsheet. It's enough to give you a migraine to look at. We keep a very close eye on where the Bills are in the run-up to introduction, because, obviously, an enormous amount of work is done before introduction to the Senedd. Each Bill has a programme of work attached to it that allows us to take it from the bright idea contained in the manifesto all the way through to introduction, including all of the various stages of bringing together a Bill team and all of the people who go into that, making sure the Minister's requirements are set out properly in the Bill and that it properly reflects the manifesto commitments et cetera, right through to introduction to the Senedd. We, obviously, then have a conversation via the business managers on the Business Committee about the correct amount of scrutiny that goes through, and then we have a chart that takes us all the way through the various points where it's introduced into the Senedd.

We take part via our business managers in the Business Committee with making sure that we know which committee it's going to. We try very hard to ensure—not always with 100 per cent success—that the committees have a spacing out of legislation, so that they're dealing with only one very big Bill at once. We've been more or less successful, although I can think of a couple of committees that have had two. And then, obviously, that goes through to Stage 3. We've only had one Bill, I think I'm right in saying, that's gone to Stage 4, in recent memory. So, we normally assume that there's a Stage 3, and then the resolution at the end of it. We've had a report stage, I should say, not a Stage 4, only on one Bill that I can think of, which was the one that Lesley Griffiths was doing. So, yes, we do that. 

At the moment, the year-4 programme, as announced, is in full swing. We aren't expecting any major disruptions. In fact, my colleague sitting beside me here has just come from the windswept hills of Wales to do the publicity on the introduction of the mines and quarries Bill—or, coal tip safety Bill, as it's called colloquially by everyone.

Indeed.

Thank you. What criteria is the Welsh Government using when deciding which Bills are prioritised for introduction before the next Senedd election?

We have a system where we know what we would like to bring forward. We, obviously, take cognisance of our manifesto commitments about what we said to the people of Wales when we were elected that we would do, and we try very hard to make sure that we bring all of the relevant Bills forward. We have a set of criteria around what requires a Bill, so we look very hard to see whether there are non-legislative ways of achieving the same piece of work. Sometimes you can do it by changing guidance or custom and practice or whatever. But where a Bill is required, then we start the prep process for that. We have conversations with all of the resource managers across the Welsh Government. Charlie Thomas here plays a pivotal role in all of that. She's been very instrumental in helping us understand what is necessary by way of resource to bring each Bill forward. You'll be very familiar, Chair, with the idea that different types of Bills need different kinds of resource. So, a consolidation Bill, for example, will require a very different set of resources from the Welsh Government than, say, a big policy Bill like the environmental governance Bill might require. So it's very much horses for courses. We try very hard to match out the skills of the people. So, for example, the consolidation Bill will have a great deal more policy and lawyer input and much less political input than, say, the environmental governance Bill might have.

And very recently we've started to talk to the Business Committee and, indeed, the Future Senedd Committee about developing better protocols for different types of Bills so that we can have an upfront understanding of what kinds of scrutiny are better suited to what kind of Bill. And indeed, I think with the—I've forgotten the name of it now—tourist levy Bill that's just going through, Mark Drakeford, who's the Minister in charge of that Bill, has already said that he's going to bring forward the various Stage 2 amendments that are already planned by the Government as early as possible in the cycle to give the committees a better understanding of what the scrutiny arrangements might look like. In conversation with the Business Committee, although I haven't been to the Business Committee yet, I've said that the Government could very seriously look at releasing a draft of the Bill at the point in time the Llywydd says it's in competence so that the Business Committee can have a better understanding of what they're looking at. Because this committee, as you know, has recently asked for a 12-week scrutiny period for the Legislation (Procedure, Publication and Repeals) (Wales) Bill coming through. We argued that was a technical Bill, but, in all fairness, the committee hadn't seen the Bill and would have had to take my word for it. So, I think we need to have a look at, if we're going to bring these different kinds of Bills forward, which we absolutely are going to do, and we intend to do so—a number of ones, I think, we'll discuss with you today—as, for example, we're thinking of doing an statutory instrument correction omnibus Bill and a standing repeals series of Bills, that we would have an agreement from the Business Committee about what kind of scrutiny was best suited to that kind of Bill, which is obviously very different to a big policy Bill, such as the ones that my colleague here is introducing two of in the next year's programme.

Two in the next year, yes. 

So, as you see, we've got quite a sophisticated set of things that we run through, depending on what kind of Bill it is, right from the bright idea, if you like, all the way through to inception. Charlie and her team are very much pivotal to us being able to keep all of that on target, and you've got that eye-watering spreadsheet that I like to flash about the place as well.

Okay. Thank you. Alun. 

I'm interested in the conversations that you have in Government in terms of the way in which you bring forward legislation. The Senedd legislates far less than any other Parliament in these islands. The Northern Ireland Assembly has managed to produce 39 Bills, if I'm correct, or 39 Acts, and it hasn't been sitting for two years. The Welsh Government has only managed to produce 12, I think, in the last three years or four years. Why do you think that is?

That's a very interesting point. We've actually had an internal review, which, before you ask me, I'm not prepared to share with the committee, because it's very much an internal review of the Government's processes. I think I've shared with the committee a couple of the charts from it that we were dealing with. So, we've done an internal review of our processes to try and understand what we could do to have a more streamlined legislative programme. I will say that I think, philosophically—it's not the point of view of the Government particularly—the argument 'more legislation good, less legislation bad' is an interesting one I'm not sure I entirely concur with, but there we are. We don’t make laws for the sake of it. We make them if we need to do something that requires legislative change. We absolutely have a programme in the Government where somebody has an idea for a law that goes through the process of deciding whether we actually need a law for that or whether you can do it by some other means. But we have had a review done of our processes, Alun, for exactly that reason: is there a better way to organise ourselves? Would we better off to have almost a policy profession for Bill management, if you like, rather than an ad hoc thing that if you've got a Bill that falls in your policy area, you turn yourself into a Bill manager? You know, various things of that sort, and we're just working—. We have an implementation plan for that review and we're just working our way through it as a Government. And then, I think that's what's driving some of the changes in the way that we've been approaching some of the legislative programme. So, that's what's bringing forward more technical Bills, shorter Bills and so on as a result of that process.

I've got no issue with that. I'm certainly not one of these people who regards the number of Bills put in front of this place as some sort of virility test. I don't believe that for a moment. But I do think it's a question worth considering because, if we take the last Senedd, previous Assembly and the Assembly before then, what we've seen is a declining number of Bills of primary legislation and an increasing number of legislative consent memorandums. So, it's very difficult to escape the conclusion that the Government is, almost as a matter of policy, bypassing the Senedd and using Westminster to pass its legislation. For example, in the last full Assembly—the fourth Assembly—we had 25 pieces of primary legislation and 36 LCMs. In the fifth, we had 20 pieces of primary legislation and 43 LCMs, and so far in this Senedd, we've had 12 Bills and 55 LCMs. So, the numbers are very stark, aren't they?

So, I don't think each LCM is an individual Bill, just to say—I can think of at least three pieces of—

I'm not suggesting it is, but the coincidence is something.

I don't know how many Bills there actually are. I can think of several where I've brought several LCMs on the same Bill, so I don't know what the breakdown is—I haven't looked at that, Alun. But I think there are three things to say there. First off, we're elected on a manifesto—the Government is elected on a manifesto. We have never been a majority Government in the entire time of devolution, so we've then to negotiate with another party—what that other party wants in return for supporting the budget process, and so on. So, then you have a programme that works. That's been different parties in different administrations. And then we have to look to see what we need to do to make that programme happen on the ground. So, I would argue that the Government's had a very good record of making its manifesto commitments happen, whether they're through a legislative process or otherwise. And as I say, I think 'more legislation good, less bad' is not necessarily where I am philosophically. 

But I do think that the Senedd—the Government, sorry, not the Senedd—the Government has been slow to consider different types of legislation for different reasons, and one of the things that I'm very pleased to have started to do, albeit a little late in this Senedd term, is to look very hard at whether we should have done that. We had an agreement with the Business Committee over the heritage Bill to start the consolidation process. I think we might have considered to do that a bit earlier. A lot of Welsh law needs consolidation in a way that makes it much more accessible, and the legislative Bill that's going through at the moment is designed to do that as well; it hasn't yet passed so I won't say too much about that, but it's clearly in that vein. 

And then, the LCM process is interesting because we have a much bigger Government beside us that also has a programme to get through, and has bright ideas and has much more space in its programme to have bright ideas that come up, not least with backbencher Bills, and so on. By the way, as an aside, we really do need to get to grips with how we do backbencher Bills here; that's a real issue in terms of time and resource, and so on, which I do think we need to get—. And we've brought it up in the Future Senedd Committee, haven't we? And so, I think it's absolutely inevitable that that Government will come up with things that are not in our programme and not in our manifesto, but are nevertheless good for the people of Wales, and our choice then is do we either have them for the people of Wales as well or not have them. We haven't got a third choice that is to suddenly divert the programme onto something else. There is a possibility for some of them that we could do a Welshified Bill of it, but, actually, that sounds easy and almost always turns out to be much more difficult than you think, particularly as the jurisdiction here develops, because the base law is different. So, the idea might be a good one, but, actually, it's really hard to do it in that way. But I do think it's one of the things we need to keep under review and it's one of the things we've discussed, isn't it?

Yes, and I'm not suggesting there's an absolute at either end of the spectrum here; I think we do need to consider this in some detail, because there are areas of complexity and the rest of it. But that big Government that you describe, Minister, also sits next to Scotland and not far away from Northern Ireland, but the measures and the processes that I'm describing are quite unique to Wales. So, it appears that this Government is operating in a different way, and this Senedd is operating in a different way, to the Scottish Parliament and the Northern Irish Assembly. For most the time, up until six months ago, we had a Government sitting across the way that we actually philosophically disagreed with. So, it's rather curious that the Welsh Government preferred a Tory-dominated UK Parliament to pass its legislation than a Labour-dominated Senedd. I say it's a curious thing, and I think the Government does need to look at those—

Well, I don't agree with that characterisation of it at all.

Well, the numbers speak for themselves, don't they?

I don't think they do. So, I think your characterisation of the numbers and what's actually happening aren't the same. So, I don't think we preferred the legislative competence of the UK Government at all. What we're doing is making sure that the people of Wales benefit from something happening across the border that intimately affects them, in a way that allows us to continue with our own programme. Actually, we have a much more porous border, as you know, than either of the other two jurisdictions you spoke about, and, actually, we've worked very closely, during the reign of the UK Conservative Government, with those other jurisdictions, and I can tell you that they have had just as many arguments about LCMs and UKIMAs and all the rest of it as we've had.

I'm sure that's the case, but the numbers are very striking, and the trends are more striking than the individual numbers, and I think it's the trends that I'm seeking to identify here. Less primary legislation, more LCMs, and that is simply a fact, and I think it's very difficult to escape that. Also, in terms of where we are coming from here, we're also seeing more framework Bills being placed in front of this place and fewer complete Bills. So, there seems to be the Executive taking far greater control than perhaps allowing the Senedd to exercise its absolute right and its duty to legislate and to scrutinise legislation.

I don't agree with that characterisation either, you won't be at all surprised to find, because we've had this conversation many times between us. So, I will reverse that for you: I think the Welsh Government is the elected Government of Wales and has a right to get its programme through. And the Senedd absolutely has the right to scrutinise it and absolutely has a role in getting that programme through, but the Government has a right to get its programme through on behalf of the people of Wales—that's what we're here for. And then, if there is an opportunity to do other things on top of that, which are also beneficial to the people of Wales, then of course we should take that opportunity to do so.

I think the whole issue around Executive control and so on is one of the things that we are discussing in terms of how legislation is made, the changing face of that legislation, and whether the scrutiny process is agile enough to have adapted to that, and I, frankly, don't think it is. So, I think the scrutiny process that we go through here is quite frequently just a reiteration of the same consultation that's already been done by the Government, giving people, sure, a second opportunity to put their consultation responses forward, but we don't do the detailed legislative scrutiny that you see in other parliaments.

Well, I disagree with you, and I think I've spent more time on the backbenches doing it. Let me say this: it's not a matter for the Government to tell the Senedd how it should scrutinise legislation.

No, I completely agree with that.

Absolutely.

It's for the Senedd to take those decisions. The issue is that the Senedd does not have the same opportunity to scrutinise legislation as other legislatures have, because the Executive determines to send legislation to Westminster or to provide the Senedd with framework legislation, where the level of scrutiny possible is not the same as if complete legislation was brought forward.

I mean, the framing of the legislation as somehow incomplete is one I just simply vehemently disagree with.

A fair share of the committee took a different view, of course.

Can I just raise two points, and I think Adam wants to come in on this as well? We know that comprehensive education was brought in by a Department of Education and Science circular—no legislation, but a DES circular brought it in—so you can do things differently other than via legislation. The other thing is, if all these organisations are happy following the consultation with the Welsh Government, I think most members of most committees would be very pleased to receive one line back from these organisations, saying, 'We have nothing further to add. We're very happy with what the Government has brought forward.' In which case, we'd speed it up no end.

So, I think that if you were to ask them, you might get that response more often than you think. That's not how the question is framed, generally speaking.

They're all asked that at Stage 1.

They're all asked that at Stage 1, and they all want to come and talk to us—more than we've got time for.

But they do very frequently just repeat what they've already said. I can show you lots of examples of that. I'm not suggesting that you don't reconsult, of course, because people will take the opportunity to say something different, but it would be good to get out wider than the Government can. Sometimes the committees do excellent work doing that; they get out to a wider set of stakeholders than the Government has been able to, and that's been very instrumental in some of the Bills that I used to be in charge of, and Huw is now taking through, actually. It's been really helpful. But it's not always the case, is the point I'm making. 

Can you let Adam come in on this point, because he was waving at me?

Yes. I'm wondering whether you would accept that one potential explanation for the radical discrepancy between the level of primary legislation going through this institution compared to other Parliaments is the level of capacity within the Welsh Government itself.  

Yes, yes. Definitely. One of the reasons we had the review done was that we wanted a review of whether or not we had the capacity in the right place. So, it's not the overall capacity of the Government, it's whether or not we've marshalled our resources in the most effective way to develop the legislative programme in a timely fashion. That's why we had the review done, Adam. I'm very happy to say that. The review has been very helpful. We're now in the process of starting the implementation of that review. It won't be fully implemented this side of the election. We very much hope that whoever the incoming Government is will take cognisance of that, going forward, and the civil service has an implementation plan for that. And that's exactly why we did it, because we felt very strongly that we hadn't marshalled our resources in entirely the best way. And Charlie's team, to be fair, has done an enormous amount of work in trying to help us come to terms with what those resources might look like.

And then the other thing I would say is—. I've taken a lot of legislation through the Senedd in my time here, and we tended to organise each Bill as if it was the same thing, and it really, really isn't. So, if you think of the Local Government and Elections (Wales) Bill, I had the same kind of organisational set-up for that as I did when I was first in charge of the Disused Mine and Quarry Tips (Wales) Bill, but they could not be more different. So, we had a one-size-fits-all that didn't, so that's why we had the review done, and I think the review, as it spins out, is starting to show the difference. You can see the different legislative issues coming through.

If I take, for example, the tribunals Bill, which I've been asked by a number of Members about in my question sessions, that's potentially for year 5. We don't have a year 5 programme yet, because the First Minister has yet to announce it. I'm hoping to bring that forward. That tribunals Bill has never been a policy imperative of the Government, but nevertheless it's something the Government ought to do, because it's required for the best administration of justice in Wales. So, what we've had is a group of people who've, if you like, done it when they can, which is not the way I would like to have seen it organised. And that's why we've had some of the review done. 

Has your internal review identified the cap on head count within the Welsh civil service as part of the capacity constraint?

No. No, it hasn't. It's talked about the way that we organise it, the kinds of Bills we bring forward. We have a tendency to bring big omnibus Bills forward. I think Mark Drakeford characterised it as, 'The bus doesn't come very often, so everybody tries to get on it when it passes through, whereas if you had more frequent buses, you'd have a bit more space to sit down and sort yourself out.' So, it's talked about doing smaller Bills with a much more focused attention on specific issues, rather than having—. The Local Government and Elections (Wales) Bill was a classic, where there were volumes and volumes of things going through. It's asked us to look very carefully at how we marshal our resources in order to get those shorter, more focused Bills, and then a conversation, of course, is required with the Senedd, to make sure that the kind of scrutiny that you have for a shorter, more focused Bill matches that and not the kind of big, omnibus Bills that we've seen and which we've had several of.

I was listening to Lee Waters's podcast—

Other opinions are available.

And, well, there we are. You'd encourage others to do podcasts who have been in Government as well. But just looking at the figures, not opinions now, but I presume these figures are publicly available, that the—. To give an example of the UK Government’s Department for Education, he quotes an increase between 2017 and 2024 in the number of civil servants there of 53 per cent, and I believe—this isn’t including the Brexit-specific additions that were made everywhere else—the Scottish Government over the same period comparably increased by 70 per cent, but the Welsh staff numbers increased by 17 per cent. I don’t think those figures are challenged, really. You’ve got a very stark difference because of the headcount that was set, I think originally by Mark Drakeford when he was finance Minister, continued when he was First Minister and is continuing again. Surely that is going to have some degree of effect, because those are your policy staff, not just your legislative staff; they’re your policy staff, which are part of the legislative process. Are you saying that isn’t part at all of the reason for the differential?

The review doesn’t identify that as one of the issues we need to address up front. I’m not suggesting for a single minute that more civil servants wouldn’t assist—of course it would—but I’m fascinated by the headcount there. That is during the period of austerity when the then UK Conservative Government was forcing austerity on every single piece of government across the world, and Rees-Mogg was having his famous drive on efficiency, and it went up by how much? So, I might say to you that perhaps we’re just more efficient.

Thank you. Can we go back to Alun, then we can—

I want to hear what Huw Irranca has to say.

It’s probably fair to say as well, Chair, there was certainly—as you’re aware—from the time of the co-operation agreement as well, there was a reality that we did not want to uplift the internal workings of the civil service in Welsh Government in a way when we were asking, during those 14 years, other parts of public bodies throughout Wales—

To slash their budgets.

Yes, to eat into their budgets during austerity. However, Adam, what I would say is that that doesn’t mean you can’t do things sharper and cleverer and prioritise in a different way.

But there is a difference, isn’t there, because you can legislate? You’re the national Government. Those other public bodies can’t legislate. You could actually make their lives easier by bringing forward some of the legislative changes that, in many cases, some of those public bodies and local authorities are actually calling for. That’s the difference, isn’t it? You could actually make life easier; you could deliver better public services if there is a compelling reason for you to do so. And being prevented from doing so simply because you set, I’d have to say, a very arbitrary headcount level is questionable, isn’t it?

I think previous First Ministers would argue that there was no arbitrary limit; what there was was a focus on delivering what was in programme for government commitments, co-operation agreement commitments and other legislative priorities as well. And I think, going forward with a piece of work that Julie has described as well, we need to be sharper and clearer. There’s no shame in operating a lean Government that focuses on the right priorities, and equally there’s no shame in identifying the appropriate opportunities where, when you have a good and productive piece of legislation coming forward at a UK level that has cross-border issues, and if you’ve got a Government that is willing to engage with you early and properly and meaningfully, you can say, 'Well, we will look at that. We will consider that on a case-by-case basis.' Now, that probably makes for a leaner, more efficient organisation. But, Adam, your overall point about, 'Have we been through times where we’ve had to make tough decisions on prioritisation within Government and the legislative programme?', I think the answer is a clear 'yes', and I would agree with Julie’s position here: it’s remarkable that, in that same period, apparently Whitehall had no constraints whatsoever, which is quite remarkable.

Well, the Scottish Government also increased their civil servants during that time as well, and I would put it to you that that is probably reflected in the higher degree of legislative output—

But, again, I think we've got a got a philosophical thing here, haven't we? I don't necessarily agree that more legislation is good; I think good legislation is good. I don't necessarily agree that more staff is good. I think efficient staff is good. I can't believe I'm saying this to you. [Laughter.] But I mean, honestly, the politics of this are that during the time of greatest austerity, we did have headcount controls and we had real problems in local authorities and health boards across the country dealing with that austerity agenda. At the end of that time period, we had the biggest mandate for Welsh Labour we've ever had. So, I would argue that we delivered for the people of Wales in an efficient way, and I don't accept at all the idea that just more is better.

You had in your manifesto a commitment to legislative reform in relation to bus services, which many people in all of our communities—

Which is about to come forward.

Yes, but why has it taken so long to bring that forward when you've got a UK Government that was elected later than you that is, arguably, going to get it on the statute book possibly even quicker? 

If you want to use bus service as an example, it'll be interesting to see what happens with UK Government's bus Bill, which is different to our bus Bill, but one of the reasons that the bus Bill is where it is is because we have had to negotiate that with our local authority partners, which was very pivotal to that during its development stage. We have an excellent relationship with local government across the piece in Wales, regardless of the political make-up of the local authority. We saw that in COVID, and we still see it now. The new franchise system that's being proposed by the bus Bill—the Senedd, of course, has yet to scrutinise it or pass it, but let's hope it goes through in more or less the form it's in now—has been carefully negotiated through Transport for Wales and all the local authorities to make sure that we have a really good mix of public control centrally and local control to make sure the bus services are where they are. I'm very much looking forward to that Bill going into the Senedd to see where we get. It will be interesting to see what happens on the UK side, but they're proposing a really very different set of circumstances, and I think what we're proposing for Wales is better for Wales.

Back to you, Alun.

I don't disagree with your final comment, Counsel General, but we've been waiting for a bus Bill for the best part of the last decade, and I'm not convinced that negotiations with local government are the reason it's taken a decade. But it does take the Welsh Government a long time to get things done, doesn't it? That is the fundamental issue that I think the committee is concerned about. We passed some regulations a couple of weeks ago where the parent legislation was enacted in 2017, public health legislation. We were told by Government that it had taken a while because of COVID and Brexit and the rest of it. It's scarcely believable. I'm concerned that the Welsh Government is not sufficiently agile and doesn't have sufficient urgency in what it's seeking to do, because we see less legislation coming through this place, more legislation going up to Westminster, and that's a trend that's been going on for many years. We're seeing the Welsh Government then taking longer to both develop legislation and then implement legislation than other Governments in these islands. Collectively, when you look at all of those different things going on, there's a problem, isn't there?

Again, I think there are definitely lessons learnt on the implementation side—

What are those lessons? Tell us.

Well, I inherited the Renting Homes (Wales) Act 2016, which took forever to implement. I'm seriously planning to write a book on the implementation of that. We've done some serious lessons learnt across the Government as to why that took so long to implement, and it is to do with some of the fundamental construction of the original law, the way that the repeals process worked and so on. So, some of the things that we're now bringing forward—the idea of a rolling repeals Bill, for example, an omnibus statutory instrument corrector, et cetera—are born out of the lessons learnt from that.

When I took the local government and elections Bill through at the end of the last Senedd, the implementation provisions for that were built into the Bill. I was extremely clear as the Minister in charge of that that they would be built into the Bill, and that—because I was in the throes of the renting homes Act—we would not have those problems. Charlie and I had a number of conversations at the time about how you built implementation provisions into the primary legislation, or you put what would then have been called superaffirmative processes into the Bills, to make sure that the SIs, when they came forward, had a particular set of—. I put all the commencement provisions into the Bill in the first place. That's something we've started to follow through on for Bills here. Some of the complicated ones Huw has got, for example, are following that new pattern, which wasn't the case before.

And then, some of the things we've done are very radical and we sometimes need to understand quite how radical they are. I was a Member of the Senedd when the Renting Homes (Wales) Act was put through in 2016—

I was on the committee.

—and I don't think that we had the slightest idea of quite how radical that Act actually is. It is absolutely radically transformative, and I don't think, therefore, we had any understanding of the difficulties in implementing it that we would then encounter. We will publish, eventually, lessons learnt from that, because I think it's very interesting.

With some of the things we're doing—you're doing a couple of very innovative ones now, Huw—you need to understand how innovative something is in legislative terms and then put an implementation plan around that that's commensurate with the radicalness of it, if you like.

I think we treated that Bill as if it was just another Bill and it absolutely was not, it was transformative in a way that we—. I don’t think I understood that entirely as I was a Member voting on it; I wasn't the Member in charge, obviously, I was a backbencher in those days. But I don't think I understood that. And it's obvious, when you look at the lessons learnt, that it wasn't fully understood how radical that has actually been, the transformation of that.

I would say that we have worked very hard behind the scenes—I accept it's behind the scenes—on understanding why we've had some of those problems. The review that we've had done very much was asked to address those problems, and now you're beginning to see—albeit at the tail end of this Senedd—the start of a different approach to the legislative programme, which I think will bear fruit.

Some of the corrections will probably build on some of the feedback that has come from this committee over a long period, because we're constantly looking for that opportunity where you can correct. Things will go wrong in the legislative process, but the opportunity to correct them doesn't come around that often. So, finding a way, when it doesn't, that we can either have an omnibus, or some other form of instrument that ties these up—I think those things in themselves are a very good step forward.

I don't disagree with that, and I think you're right, in fact. Conversations I've had with the Counsel General in the past about the Senedd being more agile reflect conversations we're having today about the Government being more agile, and I accept that there is a level of conversation needed on both sides. But Standing Orders do allow the Government to make proposals to the Business Committee about timings of Bills, as well. I've taken legislation through that has been expediated, with the consent of the Senedd, so it is possible to have a different legislative process. The characterisation of 'one size fits all' is not what exists either in our Standing Orders or in reality. So, there is a conversation that's required.

But really, at the heart of what I'm saying is about this place as a legislature and the way in which the Government looks at the Senedd, because, for me, as a Member here and somebody who's been a Member here for some years now, I've seen this place grow as a legislature in terms of taking the powers—. And I remember the campaign in 2011 for those powers, and Carwyn as First Minister, powers for a purpose and all of that sort of stuff. And then, I've seen it diminish and I've felt it diminish, because I've been disempowered by Ministers saying, 'Actually, we want this legislation through'—in exactly the way you've described—'but the Senedd can't do it, and so it's going to Westminster.'

All that campaigning, all that arguing, all that development and it's going somewhere else, and that, then, escapes the proper scrutiny that legislation requires. We've had this conversation—in fact, you led it, as Chair of this committee—and it is important that we recognise the place of the Senedd as a legislature for Wales, and that the Government seeks ways, where there are difficulties—and I accept that there are—of overcoming those difficulties rather than disappearing away.

Fundamentally, I don't disagree with you. Neither Julie nor I would disagree with you. This is the place to do legislation, on a point of principle, within devolved competence. And if you look at some of this landmark legislation that we have taken through, that we are taking through, we tend to do huge, big, chunky legislation, way back to 2015 with the Well-being of Future Generations (Wales) Act. These are massive pieces of legislation. But also, if you look at the agri Bill and the underpinning with the sustainable land management principles on it, that rightly had scrutiny here in detail: what did it mean for Welsh agriculture, Welsh farming, environment, biodiversity, and all of that. If you look at the transport Bill that's coming through now, it's absolutely fitting that that should be done here in Wales to meet a Wales context, so that it has full Senedd scrutiny. The environmental governance Bill, which will be taken forward in the year ahead—it's absolutely right that that's done in Wales, because one of the things we can do is learn the lessons of where it's been done elsewhere and, hopefully, make it not just a fit-for-Wales legislative vehicle and everything that flows from it, but having learnt those lessons, make it even better in fitting that context for Wales

But there will be, Alun—I'm sure you would recognise this—opportunities, not where legislation is foisted upon us, not as we have seen in the past, where I've sat, Chair, in your position and we've seen absolute denial of engagement from the UK Government or last minute foisting upon—. When you have a Government that seriously says, 'We're thinking, for example, of doing a water Bill, and in this water Bill we think the vast majority of it is common to you and me. Do you want to do your own thing or do you want to, actually, work with us on this?', well, we say, 'Are you asking us to be engaged from point dot on it? Are you allowing us and our officials to get into that space and start shaping that proposal? In which case, we might be interested.' That's a very different approach. The fundamental end of this is what's good for the people of Wales as well. We want it to be right in the legislative process, we want to find those opportunities where legislative scrutiny here is paramount. But there will be times when we say, 'Actually, we can legislate together', or there will be times when we say, 'A legislative vehicle is not the right way forward. There are other ways, surely, that we can do that'. One of the things we could do, as a smart legislature, is actually be sometimes reluctant legislators as well and say, 'Is there another way to do this even faster?'

I'm interested in what you said about legislating together, because I think there are things that we can do inter-institutionally that we don't do and haven't thought of doing. I'm interested in that and I would be very interested in having a converstion with Government about that. But all too often, of course, legislating together means legislating in London; it doesn't mean legislating here.

The point there is the difference between having a Government that you work with—

I accept all of that. 

—and having a Government that you work beside; it's very different.  

As Chair of this committee, the Deputy First Minister listened to me not follow a dogmatic view on these matters and take exactly the view that he's described in answering the previous question. However, the place remains a legislature and a place for scrutinising legislation, and that place needs to have the opportunity to breathe, and that means the Government bringing legislation to this place and then doing so in a form that allows proper scrutiny to take place. 

I agree with that as well. As Huw said, of course, where at all possible, we should legislate in Wales on devolved issues. The Government’s principles say that categorically, we all agree that. We all need to facilitate the best kind of scrutiny here in Wales. I absolutely agree with all of that. However, there will be times, regardless of the colour of the Government across the border, where they’ve come up with a bright idea that is not in our programme, that we have not put any resource towards. We have a small team in Sophie’s team that monitors the UK Government’s programme to try and make sure that we do pick up all of the issues that might affect Wales. It might affect Wales negatively as well as positively—the Government doesn't always recommend approval for LCMs—and we need to monitor that very carefully.

But there are issues sometimes where you just think, ‘Well, it will take us too long to get our own policy platform in place. The people of Wales will be seriously disadvantaged by not being included and there is an opportunity to be included. So, let’s take that opportunity’. And there would be a range of reasons, ranging from some of the building safety stuff, for example, that we have piggy-backed on, to use the colloquial term for it, because the market here in Wales is just not big enough to be able to do that alone and having to do it across the border is, actually, beneficial both to us and to the continued market, for example. 

There are some regulatory powers that you’ve been dealing with more recently, Huw, in a similar vein where we just don’t have a size of market necessary to be able to sustain it on our own. That’s just a basic fact of life. And then there are others that are opportunistic. So, the renters reform one, for example, was opportunistic. We don’t have a legislative vehicle in place to get those reforms in place fast enough, and it seemed to us that, on balance, it was a shame that the Senedd wouldn’t have the opportunity to scrutinise that in the way that we would have preferred, but it was better for the people of Wales to have those reforms in place than not, and that is always the balance that the Government has to take into account.

I think I've tested everybody's patience now. 

Adam, do you want to come back in? 

So, 'no', I think, is the answer to that, Adam. One of the things that we've been discussing in the Future Senedd Committee, for example, is how can we get a better process in place for that, and how can we do it in a way that's meaningful. We've had a couple of run-ins. Interestingly enough, I was just discussing in the lift on the way down here whether Huw is a poacher turned gamekeeper or gamekeeper turned poacher; we didn't come to any conclusion. There are issues around the way that we have some of this scrutiny, which could be improved here, I think, even where an LCM is coming forward. And it's about at what point does—. Think about the process, sorry, rather than the content, for a minute. We become aware that a UK Government Bill is in the offing. Now, we are becoming aware of it slightly earlier in the process than before, but sometimes it was Friday for Tuesday, so it was really very quick. We become aware of that. We go through a process as a Government in trying to come to a view on whether or not this Bill is okay the way it is, needs to have a conversation between Ministers to get it into some kind of devo-friendly position, are we going to recommend that we go ahead with it, is there—. We always go through the, 'Is there some way of doing it in Wales as a Welsh legislative vehicle?' We come to the conclusion there isn't, just for the sake of this process argument. Is there a place in that where we could be having a conversation with the Senedd about it, because we don't at the moment? All of that, you don't know about it until the point in time that we lay it. For you, it's a surprise—'Hello, surprise, an LCM.' For us, it's been a rapid—sometimes only a few days rapid, but very rapid—'Get up to speed on this and take a view.' 

Huw is now talking about a Government that's telling us a long time earlier about some things—it hasn't absolutely been 100 per cent the case, but it is definitely getting better—where you could develop joint legislation that you would then hope to put through all of the Parliaments of the UK at the same time and have all of the scrutiny attached to it, rather than the UK legislating on behalf of the others because we haven't had time. But I think there are some things—and it's one of the things that we've been looking at in the Future Senedd Committee—where the Government could be in touch with a Senedd committee and talking through the process as the process is developed in a way that we don't at the moment, for example. And there will be emergency ones. I can see Sophie looking at me thinking, 'Well, I've had to do some of that in 40 hours.' There will be times where you really are having to make an instant decision, because it just hasn't had the run-up. But, most of the time, there's a conversation between Ministers. I've had late-night phone calls with Ministers saying, 'No, no, we can't have that; we must have this word, or that word, inserted.' It's not beyond our creative capability to think of a role for the Senedd in that, and, if we can do that, I would be keen to do that, because this is something we should do.

And then there's a political difference. We aren't nationalists. We are keen to be part of a UK system, and we need to make that system work for all of us. I don't want, necessarily, the people of Wales to be disadvantaged by the fact that we have a particular programme and somebody over here is having a brilliant idea that we hadn't thought of but actually we'd quite like to take advantage of. So, you have to have a process for that. But I would be very keen to get the Senedd to think properly about at what point in that process we might usefully have a conversation with this committee, or some other committee, about a view of that. It would have to be pretty rapid. We haven't got those processes in place right now, but I think it's not beyond our wit to come up with something of that sort.

And then the last thought I would have on it is that, with this joint legislation, we've only ever done that, as far I'm aware, with statutory instruments, but you could have complementary primary legislation running in parallel, which broadly put the same regime in place. What you'd then have to have is you'd have to have a way of dealing with the different outcomes of scrutiny, because you'd be very unlikely to arrive at the same place the other end of it. So, you'd have to have some way of ensuring the regime had some coherence across it despite and because of the separate outcomes of scrutiny, but again I don't think it's beyond our wit to come up with something of that sort.

Very good questions. What we're doing, in our view, is making it clear, transparent and coherent that we've always used the same principles for secondary legislation as for primary. We've just never said so publicly before. And so, as part of the conversations we've been having with me as a new Counsel General, I think it's a good idea to say to you that we use the same principles for secondary and for primary legislation, and they're here for the sake of clarity, transparency and coherence in the legislative programme. I think this there's a tendency to think of an artificial split between primary and secondary legislation, but actually it's not always the case. You'll have all heard me talking about the Infrastructure (Wales) Act 2024. The SIs coming forward on the infrastructure Act contain a lot of policy, and at the moment we don't have a system in the Senedd to scrutinise policy-containing SIs, which I think is a real lacuna and we should have a look at that.

And then we could, absolutely, Adam, talk to Westminster about bringing forward—as we have in the past, actually—parallel SIs that are worded exactly the same—Huw and I had quite an exchange in Plenary on one of them, as I recollect—

Yes, indeed, yes.

—where you're allowing the scrutiny processes to take place. But, then, as I say, you have to have an ability for the outcome to be slightly different, because otherwise what's the point, right? So, you have to be able to let that scrutiny—. You have to have slight divergence, don't you, in order to be able to do it, and you have to understand how that divergence will still enable the coherence necessary to get the thing to work across the piece. But it's not impossible to do that. There will be circumstances in each of the nations of the UK where something slightly different will work perfectly well inside an overarching programme, so I don't see why we can't do that. We haven't, though. So, this is the beginning of a process with a Government the other side who is willing to talk to us in a way that I haven't seen before, anyway.

Indeed, but, just of help to the committee, that exchange that we had when I was sitting in a different position came because this committee was particularly forthright in exploring, exploring, exploring and flushing out, actually, what was going on, and it did lead to, actually, better scrutiny in that situation, because we were able to uncover a detail that wasn't there easily in the public domain. So, there's something within that question about how do we make that more normal and more easy and flush that out if this way of working is the way of working we see going forward, in one way, that it doesn't require back and forth and back and forth—it surfaces. Now, that's tricky, but I think— 

But it worked, in that particular case. 

It did work. It did work. It did work.

So, in fact, in that particular case, the scrutiny points that had come up through the committee that Huw was then chairing—this committee, which he was then chairing—I fed back in and actually it changed the SIs for all of the nations, so it worked really nicely. So, there is a way to do it, but we need to find those different ways. I will say—and sorry for the politics of it, really, but—a Government that takes devolution into account at the beginning of its own process in Westminster makes a difference. I've always felt previously, I'm afraid—. Different departments were slightly better at it than others; the Department for Environment, Food and Rural Affairs deserves a really good call-out for having been more devo-friendly all the way through, to be fair to them—

Out of necessity.

But there were other departments that you’d swear to God had no idea there was any other nation in Europe, never mind the UK, and we would be fighting a rearguard action on some of that, whereas, if you're involved from the get-go, you can take a very different approach. One of the things we've been doing in publishing our principles on UK legislation in devolved areas is talking to the UK Government about having an acceptance by them—and, indeed, I've got this via the Secretary of State for Wales—an acceptance by them that these are the principles they should broadly adhere to. I mean, they're not going to make it a constitutional principle, but they are broadly agreeing to adhere to these principles in bringing forward their legislative programme, and that would really help us, because we would have better foresight of what was going to happen than this terrible Wednesday—. I can't begin to tell you how often I had a call on a Wednesday evening saying, 'Could the Minister talk to you at eight o'clock for 15 minutes?' 'Why?' 'Well, because they're going to announce something tomorrow morning that they've suddenly realised affects the devolution settlement.' Your heart just sank. So, we haven't had that happening. It used to be monotonously regularly that that happened, and then you'd have an argument with the Minister in question about the fact that you were being told the night before. So, that was a real problem. It has been less of a problem as the Government has bedded in, and I think if we agree these principles and bed them into our own system—they get scrutiny here; we bed them into our own system—we can feed that through in a way that's really helpful. 

The other extension of this—we've seen it in recent weeks and months as well—is where feedback from Wales on particular legislation being carried through in Whitehall, either in the Commons or the Lords, has become clear, in a timely way, and has led to amendments being laid that have not been opposed in Westminster but have actually been supported. Now, that's been quite an interesting change, but, again, it requires some transparency to know what's coming to be able to anticipate it, for a Government at the other end to say, 'That's a fair point—we're going to work with that; lay your amendments, let's see what they are', and to support them.

But, in all of that, I would say let's not pretend that we won't have hiccups along the way. I fully expect that, not just in my portfolio but in others, we're going to have moments where we are blind-sided—something comes out of left field and it's, 'Where did that come from?' And, do you know, we might do similar things on occasion as well, but let's try and minimise when that happens by very open working together.

And I think your point generally is right: how do we then make that more transparent for the Senedd Siambr as well as for committees, so that they can then say, 'Hold on here, this doesn't feel quite right; we're getting pick-up on a policy level from stakeholders who are saying, "Our views have not been fully reflected", we'd like it reflected as that Bill goes through'? And it may be that a committee here, a policy committee, says, 'Well, actually, we want to bring in a few people and do a quick dust-up here to see if they've properly been involved in what's going through, are they fully on board with everything that's going on, they've been up to London and they've engaged or otherwise, or, no, they haven't.' 

Now, I think this is quite a dynamic space at the moment. I think we'd genuinely be quite interested in suggestions coming forward on improving the ways of working within this space, recognising that we are legislating in slightly different ways. 

Okay. Diolch, Cadeirydd. 

Natasha. 

Thank you so much, Chair. Alongside this Water (Special Measures) Bill, the Welsh Government has announced two other initiatives related to water that it is working on jointly with the UK Government. Given that much of this area is devolved, why is the Welsh Government not looking at taking this work forward on its own? My concern in this matter is that it's only a short-term move in order to, potentially, impose special measures on the industry. So, what would you say to that?  

Yes, this is really interesting in light of our earlier discussion, because this is a case in point where we had really early engagement with the UK Government. They talked about what they were planning to do within this space, and was it broadly in the space that, if we had it within our final piece of legislation within these last 18 months, we'd be seeking to do something. Well, we haven't prioritised that, but it would actually be something that fits squarely within what we might want to do in a seventh Senedd down the line, but we may or may not get to that. In which case, the conversation then switches to: do we want to be on board with this one, and is there really meaningful engagement with the UK Government on this, that they want us involved not just as a passenger somewhere sitting at the back of the coach, but properly in the driving seat? 

So, yes, the water Bill is a very good case in point there, where there's clearly read across here in terms of the Welsh legislative space, and we are currently very productively working with the UK Government. And of course, the piece of work they've set up to review the regulations in this space we're fully involved with as well; in fact, there's been engagement with stakeholders in Wales. So, that's a very good case in point of how it works for Wales.  

Just to add to that, Natasha, one of my responsibilities is overall oversight of the legislative programme, and so what we have to do is keep a weather eye on things like that, to know whether to feed in any specific part of it to our legislative programme or not. We take a very broad view of what we mean by the legislative programme, and it includes the UK programme and, indeed, actually, the Scots programme as well—very latterly the Northern Irish ones—because we want to take a view as to whether they're doing something that we could, frankly, copy, if it's possible to do, and then you have to do a rapid piece of work to see whether it can be lifted, if you like, and put in to our particular set of processes, or whether, actually, it sounds easy to do but actually turns out to be more difficult because the scenario here is very different.

To use water as an example, the main water company in Wales is a not-for-profit, so a lot of the stuff that's aimed at shareholders at the moment and so on doesn't apply. And in fact, if you fine Welsh Water, what you're actually doing is taking away the money they use to provide the social dividend. So, you're actually shooting yourself in the foot, to some extent. So, making sure that the Welsh context for that kind of discussion is front and centre of people's minds can be very important indeed, where you have that fundamental difference. It's important to be part of the conversation, even if it doesn't lead to legislation. That's the point I'm making. 

That's really important, because we're reserving our position on this because we can see there's a cross-border element to these regulatory structures, many of them, but we have distinct devolved not just competences, but also variations in terms of a water ownership model and so on. So, the piece of work that's been taken forward by the independent water commission—and I've met with the commissioner already in these early days—the nature of the discussion has been very much that: make sure that you take into account, in your engagement, the differences within Wales; make sure that what you bring forward is not simply an England piece, that it is an England-and-Wales piece that would reflect those differences, so the recommendations that may flow from that—that we might want to consider bringing forward in regulations or legislation—would be absolutely based on what the Welsh context is. But there is an overlap here, so that's a piece that makes sense for us to do the work together, particularly when we haven't put a legislative slot for this right now. Well, we've got the opportunity, we're in the game—fully in the game.

The Tobacco and Vapes Bill includes a significant number of delegated powers for Welsh Ministers to implement the Bill's policy intention. Do you think that it's appropriate that these powers are being delegated to the Welsh Ministers by the UK Parliament rather than the Senedd itself?

Again, that's a conversation we have with them all the time—executive devolution, as it's called. Our preference is always to have proper devolution to the Senedd of the powers. But again, we follow the same course. So, we follow the principle that legislation in devolved areas should be made in Wales, that devolution should be made to the Senedd as well as to the Welsh Ministers. But we have to take a pragmatic approach, sometimes, and say that it's better to have some devolution to Welsh Ministers than to have no devolution. Because quite often, these Bills start off with delegated authority to the Secretary of State, and it's Sophie and her team who pop up and say, 'Hello, we'd like "Welsh Ministers" inserted, please, at line 3', and often, it's quite late in the day by the time we have that conversation. So, the principles are that we'd prefer to have full devolution of the power to the Senedd, but, where the alternative is that the Secretary of State takes powers and the Welsh Ministers are cut out, we'd prefer, as an interim measure, to have the Welsh Ministers to have that executive devolution, as it's called, to ensure that Welsh people's interests are at least protected in that way. And, of course, Welsh Ministers' executive functions under those laws would become scrutinisable.

You mentioned the Renters' Rights Bill previously. The Renters' Rights Bill amends two recently passed Senedd Acts in areas of housing that are devolved to Wales. It includes bilingual provisions included in the Renters (Reform) Bill that fell earlier this year. Why did the Welsh Government pursue the approach of including these provisions in a UK Bill instead of a Senedd Bill, when they already had been drafted?

I think you had quite a long session, as a committee, with the Cabinet Secretary in charge of this area, and I haven't had a chance to review that session, so forgive me if I'm repeating myself here, but that's exactly the principle. We have a UK Bill that's doing something that isn't currently in our legislative programme, and we think that that action taken by the UK Government is of much benefit to the people of Wales, to renters in Wales. We don't currently have a legislative vehicle capable of having that added to it. It would be out of scope for any of the legislative vehicles we currently have on the stocks. And rather than have renters in Wales have less protection because we aren't able to do that at this point in time—we could do it in the future, but we aren't able to do it at this point in time—the Government has made an assessment that it's better to take the powers inside the UK Bill than it is to leave the people of Wales without that protection. That's not something we do lightly. We'd rather do it here, but sometimes you have to think that the people of Wales would be not protected in that way for 18 months or so, where they could have been protected immediately. It doesn't preclude us from doing a Bill in the future that consolidates that or puts other proposals in place. It doesn't take away anything from our power to change it, but it does mean that those protections will extend to renters in Wales immediately, and I think that's an outcome worth having. 

Do you accept that this provision could have already reached the statute book if it had been included in a Senedd Bill when the original Renters (Reform) Bill was introduced in November 2023?

No, because the original Bill we were having really serious problems with, actually, and I'm afraid we didn't agree with many of the provisions in the previous Bill. It fell when the general election was called. But actually, we were wrestling with various bits of that. I'm not sure we would have wanted to go along with some of it. This is a resurrected but slightly different Bill that we do have more in common with, if you like. It matches our policy aims better than the previous situation. So, I don't think it's as simple as saying that. 

And again, just upfront, we don't have all of the good ideas here in Wales. So, there were Bills in the last two Senedds that might have been able to do some of that, but actually it wasn't part of our policy platform at the time. We don't have all of the good ideas. None of our stakeholders raised it in Wales, and we didn't include it in the Bills. I'm not suggesting for one minute that we couldn't have, but we didn't. It's now been raised as a good idea in the UK and we thought, 'That is a good idea.' Absolutely, we didn't have that good idea here and neither did any of our stakeholders raise it. But, now that it has been raised, we think that the people of Wales ought to have that protection, and therefore we think it's a good idea to take the opportunity of that Bill.

We always strive to make sure that, in doing that, we are not in any way curtailing our powers. We could change it afterwards, we could include it in a consolidation Bill, we could include it in a larger Bill that consolidated it in some other way. We strive to make sure that it isn't constraining in any way when we do that. And that's not just for that Bill, but more generally. So, in taking those powers, we are not taking away any future Government's ability to change it. 

Absolutely. There's nothing that stops us returning to this in future—legislative time allowing, priorities allowing as well. But just an observation, Natasha, as well on trying to anticipate or predict or fathom what a UK Government is going to do on the basis that we have this dynamic. A UK Government comes in, a new UK Government. We have some idea of what might be in their programme, but we don't know for definite. I'm not sure that any of their backbenchers know for definite, or some of their Ministers know what are going to be the priorities on day 1, but then they want to hit the ground running, so they launch a series of Bills. Our reaction within Government, then, amongst all Ministers across the Cabinet, is to go, 'Right, let's have a look at these. Have they opened the door for us to be engaged? What are they? Do they fit the context here?' But it is a day 1, King's Speech Government, where we're not sure until they do their grand release what it is.

Looking forward, however, and this is where the dynamic becomes quite interesting, do we have early signals, then, from the UK Government of what they're intending to do in session 2, session 3, session 4, which would give the Government down here—albeit that we've got an election in the middle as well—a bit more time to anticipate and to say, 'Well, do you know, that one, yes; this one, maybe we'll do it down here. Maybe we'll do something in parallel, if we can find a way to do that, as we go past 2026.' So, there is something of an interesting dynamic within a UK framework about how you work if there's an openness with the UK Government. But there will still be surprises, particularly on the very first of a King's Speech, where we all rapidly look around at each other—officials and Cabinet Ministers—and go, 'What is in there that we are not currently doing that we might want to be part of, and are they open to working with us to really sculpt it?'

And just to say, we have a process for doing that, obviously. Sophie and her team keep in touch with the UK legislative process and always have. They produce reports for us on what they think is coming forward and in what timescale so that we can have the right ministerial conversations with people. That's always been the case. It's nothing to do with the change of Government or anything, we've always done that. We've always had an exchange with Ministers about it. But actually, some of the most difficult LCMs we've had have been backbench Bills that have come in, so we have to have a weather eye to what's happening in the Parliament as a whole. It's one of the reasons I think the way we do backbench Bills here needs a real look. The assisted dying Bill—that's not its name, but that's what we all call it—will put up interesting issues around LCMs here, for example, and it's not in any Government programme. You couldn't have anticipated that Kim Leadbeater would have won the ballot, but we do keep an eye on the ballots. Sometimes, a balloted backbench Bill coming forward from Westminster has much more ramifications for us than even a Government Bill does, so we do keep a weather eye on those as well. But Sophie's team dances a good dance trying to keep abreast of all of that stuff. So, I didn't want you to think it was ad hoc; we do absolutely have a process by which we do it.

A final question from me for now: what consultation does the Welsh Government undertake with Welsh stakeholders before deciding whether to agree to provisions in a devolved area being made in a UK Bill?

'As much as we can' is the answer to that. Sometimes it's possible, and sometimes it just isn't. All the things Huw has said about upfront engagement allow us to do that. The water Bill is a good example of that, where there will be extensive engagement. In other Bills, there's been almost no engagement, because we have known for very little time that the opportunity existed, and we've had to snatch it, if you like. I've described a process that I was in far too frequently where a Minister was phoning me Thursday night or Wednesday night to tell me they were going to announce it tomorrow morning, so there's no opportunity to consult with anyone at all. I hardly had time to consult my own officials, never mind anyone else. So, we do try to work very hard with them to get that upfront notification.

I will say shout out to DEFRA; they were much better at it all the way through. I've been in many interministerial discussions with Tory UK Ministers and DEFRA, and they have worked very well with us in understanding that there were devolved principles at stake, and with the Scots Government and with the Northern Irish Executive when it was in place as well. Other departments seem completely oblivious, frankly, to the fact that there's any country other than England.

I'll just take the opportunity to say that it's one of the discussions we have quite often, and it's a discussion for us as a Government as well: you can be legislating as the UK Government for England, so you're sitting as the English Government for that, and you can have made a Bill that very specifically appears to be devolution friendly because it very specifically says, 'This is England-only, we're only going to do it in England' or whatever, and that change to the English law could have absolutely devastating consequences because of our porous border. So, we spend a lot of time saying, 'Hello, I know you're only doing it for England, but it's going to have this appalling effect all along the border.' And conversely for us, we have to understand that when we're legislating for Wales, that porous border means that people just the other side of it may have a ripple effect that we need to take into account; we work very hard to try and take that into account.

I say that because it's not as easy as just looking to see whether it says 'the UK', or they haven't noticed, or whatever. Sometimes, you can have a piece of legislation that appears to be contained for England, but actually is going to have that ripple effect—it changes a market, or a regulation, it means the regulation one side of the border is less strict than the other side, that has market effects that you need to take into account, and so on. So, just to say it's not quite as simple as just checking that it has the right nation mentioned in the legislation.

Thank you. How are you going to eradicate problems with wording in legislation? I've reported it on more than one occasion. Huw did it far more often than I did: the Welsh and English say something different, the wrong name for Welsh Government sponsored bodies. I think either last week or the week before, the wrong name for the Welsh ambulance service was used. Previously, a few weeks earlier, it talked about the National Assembly for Wales Commission, rather than the Senedd Commission. How are you going to make sure that—? To those of us who are not civil servants, it would appear relatively simple just to ensure that what it says is right, and Huw, you did it far more often than I did, with the same massive success as I've had so far. But how do we stop this happening?

One of the things that we had as part of the internal review that we have undertaken is a real good look at what the quality assurance processes are, and I'm very grateful to the committee for all of the work that the committee's done over the years in doing this. I actually wanted to ask you, Chair, whether the committee has a record—so, on the committee's published pieces of work, I can see where an SI has been withdrawn, because it's got amendments necessary that are too many to make as part of the process. I don't know if you've got a record of the ones where you've made a recommendation that we've accepted and it's been changed. I can't see from there, and I'm afraid we don't have good enough records of this. I would like to be able to see how many went through with no problem, how many had minor problems that got amended, and then I can see the withdrawn ones. Your website shows you the ones where we've withdrawn them and relaid them. I don't want you to have to do a lot of work, if you haven't got that information, but if you do, I'd be really grateful to see it.

After what you've said today, if you'd like to make it formal and you write to us asking that, then we'll provide that.

Yes, we will do that. Thank you, we will do that. So, just to say, I've only been CG for, I think, approaching three months now—it seems like more—and one of the things I've been very, very keen to do, as Huw will tell you, is to understand what the quality assurance processes are. So, just to be clear, OLC, the Office of the Legislative Counsel, mostly draft primary legislation. The secondary legislation is drafted in legal services, and, quite frequently, drafted by external lawyers who've been retained by the Welsh Government, because it's a specialist area. So, I'm not able to tell you what we're going to do, I'm afraid, because I don't yet know, but I am very happy to tell you that I have made it my business to understand what that quality assurance process looks like and to make sure that I think it's fit for purpose, going forward. The information from the committee's website has been very helpful in assisting me to do that, so I'm very grateful for it.

We are particularly keen to ensure that the equivalence checks happen properly. One of the big things about this institution is we make bilingual legislation, and that is no good unless the equivalence checks are done efficiently and effectively. So, I want to be very sure that that is done. But I am very grateful to the committee for doing that piece of work.

When we both first got elected, of course, you had the Aled Roberts thing, where he should have been disqualified if he'd followed the English version, but because he said followed the Welsh version, he wasn't disqualified, because the Welsh version said something different. So, it really can be important when the two say different things.

It absolutely does matter, and, as I say, it's a matter of national pride to us that we do bilingual legislation, both for the Senedd and for the Government, and, therefore, it's something that we need to take very seriously, the equivalence checks. Unfortunately, Chair, my Welsh is not up to legislating in Welsh, I'm afraid, despite my best efforts over 20 years, but we do have people who are very, very good at it that we retain, but there are some issues. I'm afraid I can't go through them with the committee, but I am very happy to report to the committee on the process, if you like, and if the committee can help us with what data they have, I'd be very grateful. I'm very happy to write to the committee and ask.

We wouldn't expect the Minister to go through it, doing the check. That's why you employ so many lawyers in the civil service, to do that. It's just ensuring that you get it right. It's bad for Wales, it's bad for the Senedd, and it's bad for the Welsh Government when it doesn't quite work.

I quite agree, and the committee has done a sterling job in making sure that when it does reach the statute book it's in a better position.

Okay. Over to you, Alun.

I think, given time, we should move on.

Okay, fine. I'm happy to move on. What engagement have you had with the new Minister for Intergovernmental Relations in the UK Government?

I'm pleased to report we've had quite a bit of engagement already. So, I've met on a bilateral basis with the Chancellor of the Duchy of Lancaster, the Rt Hon Pat McFadden, in the last few weeks, actually, to discuss a range of issues, and also, together with the devolved Governments, we met then as part of the Interministerial Standing Committee on 3 December. So, that engagement is well under way, and I genuinely hope, Chair, that the engagement is going to be productive with the IGR, that we make this machinery of government work. I remember it was one of the rare things that, actually, the former Counsel General, when he appeared in front of us a couple of—. Sorry, 'in front of us', in front of you; I'm morphing back into sitting on the committee. When he appeared in front of this committee, it was one of the few areas that he was ever excited about, and then he got increasingly more and more depressed. But let's hope we get this properly running again now, because if the IGR machinery works well, and the engagement with the new Ministers, who are so salient to the effective operation of it, then that could be much better working of the UK arrangements.

Thank you. Over to you, Adam.

Yes, both still exist, Adam, and both are important. But the role of the Council of the Nations and Regions is an important one, but it doesn't replace, Adam, the IGR structures—it does not replace them. That excitement we were talking about if we can get the three-tiered system and the independent secretariat working effectively, and agreements and disagreements resolved in those tiers, whatever, is vital as functioning UK inter-governmental machinery. But the Council of the Nations and Regions, bringing together—it's an interesting approach—the UK Government, devolved Governments, mayors of our great metropolitan areas as well, is quite an exciting piece, but it sits alongside and doesn't replace the IGR machinery.

Yes, thanks, Adam. It's early days, but we're having the engagement already, at an official level and we've raised it with Pat McFadden as well in our discussions. We're keen to move ahead now, with—. We're open-minded as to how we achieve—. It was a frequent discussion within this committee, which I engaged with, as well as, Chair, counterparts in Westminster on how we strengthen that Sewel convention, because, let's be frank, it was not functioning properly over the last few years, time after time after time. So, that principle of legislative consent, which holds up right at the heart of the Sewel convention, we believe is in need of reform, but we're open-minded on which way we should now achieve that. So, I think the MOU is an interesting approach here from this UK Government coming in, because it could strengthen the way in which the Sewel convention operates. It's a step in the right direction. We need to repair, quite frankly, the damage that has been done over recent years. We need to renew the relationships, so that strengthening, I think, is going to be very important.

I think the fundamental principle here is that issue of consent, and also, I have to say, that this is something that works between governments in a spirit of fair and open understanding, as opposed to things being foisted upon a devolved government, or sometimes rammed down the throats of a devolved government, or overriding a devolved government. So, getting back to the approach that this is part of the strengthening of inter-governmental relations, of an effective UK inter-governmental understanding, I think, would be our principle point on the way forward—that legislative consent is a function of the devolution settlement and that consent should be sought, attempts should be made that legislative proposals are designed in a way that recognises not only competence, but the understandable desires and ambitions of a devolved government, as well, and we haven't been in that space for a little while.

When I said we were open-minded, we're genuinely open-minded. We think the MOU approach will be a very good step forward, and if we can bolt that down to the satisfaction of the Welsh Government, the Senedd, the UK Government as well, I think that will be a big step forward. What could come subsequently in terms of statutory underpinning is still an interesting approach, and I myself have previously, when I was on the backbenches, spoken in favour of that being a good mechanism to look at, but the detail of it would be important, going forward. What would be the design and the practical implications of that, how could it be made to work, because there would be different models of that? Right for the here and now, on a very pragmatic basis, I think, actually having a proper reset of the relationship through an MOU would be a real step forward. Further along—

Well, indeed, and there are others. There are prominent individuals who, in the inter-parliamentary forums and so on, have spoken in favour of this, and ones you wouldn’t expect to actually speak in favour of it. So, Adam, I still remain genuinely open-minded on this, but it would need to be properly considered, about how that could work. So, I’m not closing my mind to that, but having the overtures from the UK Government to say, ‘We think we’ve got another way forward right now’, I think we should seize it and make it work.

Alun, did you say that you wanted to come in?

Yes. Inter-governmentalism is quite easy when governments agree, isn’t it? It’s when governments disagree that is more difficult. And I’m interested in the disputes resolution mechanisms. You know, under the old joint ministerial committees, they didn’t really exist at all, did they, and we both spent more than a little time going through those. So, where are we now? The Welsh Government was going to take the UK Government to court, of course, over the United Kingdom Internal Market Act 2020, and the Welsh Government is still reserving its position on that, as far as I understand it—that remains the position. So, where are we on something like HS2? Because it appears to me that what happens is that a Welsh Minister makes a speech, makes it very clear—and the First Minister has made it very, very clear—that HS2 is an ongoing issue for Wales and means that Wales is uniquely disadvantaged across the countries of the United Kingdom in terms of rail infrastructure, and then the UK Government just ignores the First Minister. The First Minister makes another speech, and that’s also ignored and nothing happens. So, in terms of a disputes mechanism, if there is a disputes mechanism where the UK Government is chief prosecutor, judge and jury, it doesn’t really feel that it’s a disputes procedure in any real sense at all.

Yes. So, let me say, first of all, can we agree that a disputes resolution procedure should be the last resort? What you should be trying to do is, through the tiers, and some of them are starting to work already, even in the last few months—. So, I’ve had my interministerial standing committee, and we’ve had the level 1 tiers working already. So, both within my portfolio and others have started, but not every one is up and running. That’s the appropriate place, actually, to ground some of these things out, first of all, and then, of course, you can try and actually make sure that you’re not ending up in a position where you have dispute, but where you can actually get agreement—how do you devise policy, including on a UK basis, that doesn’t interfere in devolved competence, that doesn’t try and ignore issues of subsidiarity and so on, where you can actually make this work? Then you can escalate it through level 2 and level 3 and so on. But if it did come to that, and we’re not currently in a position where we’re looking to bring anything to a disputes resolution procedure at this point—it’s not unimaginable, of course, so it needs to be there—then that would have to be, absolutely, as this Government has said previously, the one where everything else had failed and you wanted to actually test it, you wanted to test that system. There’s no point in doing it for the sake of it. I would say that the first—

Nobody’s suggesting that, but, with HS2, the amount of funding coming to Wales is actually reducing at the moment, not increasing. So, it’s not just a standing rebuke to Wales, it’s actually a situation where the situation is getting worse, not better. So, I’m just wondering what stage this is at and whether I’ll ever live to see a resolution.

I think the dispute resolution procedure that Huw is discussing is a little bit different to a dispute under the Barnett formula and the way that the Barnett formula has been applied. So, that’s a slightly different prospect. Obviously, the HS2 dispute is one where the UK Government says that the Barnett formula does not apply to the HS2 project, and we have always vehemently maintained that that is an error and it should apply. So, that’s something that’s still an ongoing discussion. It will not be my decision, it’s above my pay grade. The First Minister and the Minister for finance would have to make the decision about whether to escalate a Barnett formula decision into a dispute resolution.

But I would caution that, in previous iterations of the Barnett formula where we have been successfully able to argue that we should have had something Barnettised, that hasn’t always turned out well, because you’ll find that the departmental expenditure line associated with that particular dispute—the apprenticeship levy is the one that always springs to mind—has been commensurately reduced and you end up, in that particular instance, not with £110 million more but with £11 million less.

Isn’t that just it? Because I don’t disagree with the example you’ve quoted. When the Treasury is judge and jury, you’re never going to win, so what you need is something that is justiciable and something that is independent. Because, at the moment, what we’ve got is a dispute procedure where we ask the person who’s taken the decision to review that decision, and then the decision that is being reviewed goes to the Minister, who’s also taken that decision, in order to review that decision.

Of course, ultimately, it would be a matter for the courts, because you’d end up with a judicial review position. That’s a pretty nuclear option in inter-governmental relations, isn’t it? So, the whole purpose of the new MOU procedure is to try to reset and begin again, not to hash over all of the arguments we’ve had for the last 20 years, which are many and varied—HS2 is just one of them; there are many others as well—but to, if you like, begin again, to quote the old phrase, and see whether we can get a system in place that actually doesn’t depend on two Governments of the same political persuasion, but actually survives that, if you like, into a situation where the two Governments don’t necessarily agree, but have a way of agreeing to disagree, which we don’t have.

Okay, thanks. On that point, we’ve gone over time. The London Olympics was another example of how could it be anything other than an all-England item—it’s given away in its title.

There are many, many examples, Chair.

Thank you very much for coming along. I’ve found it informative. We haven’t run out of questions by any stretch of the imagination, so we will be writing to you, if that’s okay, with the many questions that we haven’t got around to asking. But I think we’ve managed to ask a number of quite important ones, and we will come up with a view afterwards. Thank you very much.

Great. Thank you very much, Chair.

Thank you very much. Diolch yn fawr.

Can we go into a short break until 14:40?

Can I welcome Members back following the break? I can mention that the Legislation (Procedure, Publication and Repeals) (Wales) Bill evidence session with the Bar Council’s Law Reform Committee has been cancelled. Unfortunately, the representative from the Bar Council was not able to attend.

Item 4 is instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3.

The Recognition of Professional Qualifications and Implementation of International Recognition Agreements (Amendment) (Extension to Switzerland and Miscellaneous Provisions) (Wales) Regulations 2024. These regulations amend the Recognition of Professional Qualifications and Implementation of International Recognition Agreements (Wales) (Amendment etc.) Regulations 2023 in order to implement, in relation to Wales, provisions relating to the mutual recognition of professional qualifications contained in an agreement with Switzerland, signed by the UK Government in June 2023. The regulations also correct minor errors in the 2023 regulations.

We also have a letter and a written statement by the Minister for Culture, Skills and Social Partnership, which contains further information about the regulations, including confirmation that the regulations are being made using powers in the Professional Qualifications Act 2022. Senedd lawyers have identified one technical point and one merits reporting point. Over to you.

Thank you. The technical reporting point asks Welsh Government to explain the absence of an application provision in the regulations, given that the legislation being amended applies to Great Britain and Northern Ireland, but the amendments in the regulations can only apply in relation to Wales. And then the merits point is just to note that, according to the explanatory memorandum, the regulations will come into force on 1 January 2025 in order to ensure compliance with the terms of the Swiss agreement, and we're just waiting for Welsh Government to respond to the technical point.

Members, do you have anything to raise? Are we happy with that?

We'll move on to the National Health Service (Pharmaceutical Services) (Wales) (Amendment) Regulations 2024. These regulations make amendments to secondary legislation relating to pharmaceutical services in Wales to, amongst other things, amend the current terms of service for NHS community pharmacy contractors and extend the existing regulations for the dispensing, supply and provision of medicines and appliances by community pharmacists. Senedd lawyers have identified 15 technical reporting points. A Welsh Government response has been requested. Kate, do you want to take us through it?

Thank you. Twelve of the technical reporting points relate to potentially defective drafting. For example, there is an apparent error in the commencement provisions where there's reference to a non-existent regulation 8, which, at best, will cause confusion to the reader, and, at worst, could cast doubt on if and when the various provisions of the regulations will come into force.

The other three technical reporting points are matters that require further explanation from Welsh Government, for example, around the drafting decision to use the word 'should' instead of 'must' when referring to a requirement. We're waiting for Welsh Government to respond.

Thank you. Do Members have anything they want to add? No. Are we happy to agree the reporting points? Yes.

Item 4.3 is the Official Controls (Import of High-Risk Food and Feed of Non-Animal Origin) (Amendment of Commission Implementing Regulation (EU) 2019/1793) (No. 2) (Wales) Regulations 2024. These regulations amend, in relation to Wales, an EU regulation on the temporary increase of official controls and emergency measures governing the entry into the union of certain goods from certain third countries. Senedd lawyers have identified one technical reporting point. A Welsh Government response has been requested. Kate, can you give us the technical reporting point?

Yes. Thank you. The technical reporting point identifies an apparent inconsistency between the Welsh and English language texts, and, in addition, although it's not currently included in the draft report, these regulations correct an error identified by this committee in its report on the previous set of official controls regulations. As this information hasn't been included in the explanatory memorandum, or brought to the committee's attention by Welsh Government in some other way, if Members are content, we would suggest noting this in the draft report as an additional merits point.

Okay. Thank you.

Notifications and correspondence under the inter-institutional relations agreement: correspondence from the Welsh Government's inter-ministerial group meetings. We have a number of items of correspondence and written statements by the Deputy First Minister in relation to inter-ministerial group meetings that have, or are due, to take place. The Deputy First Minister informs us that he attended a meeting of the Inter-ministerial Group for Environment, Food and Rural Affairs on 16 September 2024 and confirms that the group discussed, amongst other things, the importance of collaboration and the sharing of information on any UK discussions with the European Union regarding a possible sanitary/phytosanitary agreement.

The Deputy First Minister confirms that he attended a meeting of the Interministerial Group for Net Zero, Energy and Climate Change on 17 October. The Deputy First Minister states that discussions focused on meeting net-zero ambitions, decarbonising the power sector, and future collaboration and engagement, and that it 

'signalled a reset in relations between the UK and Devolved Governments'.

The Deputy First Minister also confirms that a meeting of the Interministerial Standing Committee will take place on 3 December 2024, and that discussions will focus on the COVID-19 inquiry module 1 report, common frameworks, the United Kingdom Internal Market Act and the Sewel convention.

We also have a letter from the First Minister about the forty-second summit meeting of the British-Irish Council, held on the 5 and 6 December. She says that she and the Cabinet Secretary for Economy, Energy and Planning were attending in person. The First Minister confirms that she will update the Senedd about the meeting in due course.

Do Members have anything they wish to add? No.

Papers to note: correspondence from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs on the UK emissions trading scheme. The Deputy First Minister confirms that the UK Emissions Trading Scheme Authority has published two consultations on the expansion of the UK emissions trading scheme, and that an initial authority response is being published regarding the free allocation treatment and definition of permanent cessations of activity in the scheme.

The Deputy First Minister notes that the reforms to the UK emissions trading scheme will require amendments to the Greenhouse Gas Emissions Trading Scheme Order 2020, and so the Senedd, along with other UK Parliaments, will have the opportunity to scrutinise plans once they are finalised.  

The Deputy First Minister also confirms that the initial authority response follows proposals to make two technical changes to free allocation rules within the free allocation review consultation released in December 2023. The Deputy First Minister states that these rule changes will require changes to the legislation, and that these will be taken in the Greenhouse Gas Emissions Trading Scheme (Amendment) Order 2025. That draft Order was laid in the Senedd last week, and the committee will be considering it in the new year. Do Members have any comments at this stage? No.

A written statement by the Cabinet Secretary for Housing and Local Government on the Leasehold and Freehold Reform Act 2024. The Cabinet Secretary confirms that the Welsh Government has launched a joint consultation with UK Government on how powers should be exercised to address the use of commissions in the arrangement of buildings insurance for multi-occupied buildings, paid for by leaseholders. This consultation forms part of the implementation of the Leasehold and Freehold Reform Act 2024. The consultation will run until 24 February 2025. Do Members have any comments they wish to make? No. 

Correspondence with the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs on the Sea Fisheries (Amendment) (No. 2) Regulations 2024. The Deputy First Minister responds to our letter, which noted that the measures being introduced by the regulations require amendments to assimilated law, and requested for such relevant information to be included in any information provided to the Senedd when the Welsh Ministers are giving consent to UK Ministers to act in devolved areas. The Deputy First Minister confirms that when a UK statutory instrument is laid before the UK Parliament, written statements published under the inter-institutional agreement will indicate the assimilated law that will be amended. Are Members content to note this? Yes.

Correspondence from the Counsel General and Minister for Delivery on 'The future of Welsh law: A programme for 2021 to 2026'. As noted at the start of today’s meeting, the Counsel General has shared with us a copy of the third annual report on the Welsh Government’s programme to improve the accessibility of Welsh law, and confirms that the Government is proposing that its consolidation of planning law will now involve two Bills. The committee will consider the annual report in more detail in the new year. Are Members content to note this? Yes.

A motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting. In accordance with Standing Order 17.42, I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree? Yes. Okay, wait 10 seconds.