National Assembly for Wales

Bore da, croeso. Good morning and welcome to this morning's meeting of the Public Accounts and Public Administration Committee here in the Senedd. The meeting, as always, is held bilingually. Headsets provide simultaneous translation on channel 1, and sound amplification on channel 2. Participants joining online can access translation on the globe icon on Zoom.

No apologies have been received. Members, do you have any declarations of registrable or relevant interests? I see no indication from any Members of that. 

So, we will move on to our evidence session on the Public Office (Accountability) Bill, and I welcome our two witnesses to the committee. This will provide an opportunity for us to scrutinise them on this Bill. Before I identify you, I'd be grateful if you could identify your names and roles for the record. 

Thank you very much, Cadeirydd. Huw Irranca-Davies, Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs. This falls within my purview. Jo-Anne. 

Bore da. Jo-Anne Daniels, director in Welsh Government and senior responsible officer for this Bill. 

Thank you very much indeed. Well, as convention has it, I shall begin the questioning as Chair. What discussion, if any, has the Deputy First Minister had with the UK Government regarding the anticipated timings for the Bill and whether our dissolution here will impact on our ability to vote on the legislative consent motion. In particular, will we be able at all to vote on an LCM before dissolution and, if so, what do you anticipate that we'd then be voting on? 

Thank you, Chair. We're obviously in close engagement with the UK Government. We understand that it is likely now that the Bill will be subject to carryover procedures in the UK Parliament. Now, this is a short delay. It's been quite well aired in public, but it's to make sure that the duty of candour within the legislation, or the draft legislation, applies to the intelligence services, that they actually take the time now to work with the Hillsborough law campaigners and others to get the balance right between that issue of transparency alongside national security considerations. So, we do understand, from a Welsh Government position, and out of empathy as well with the campaigners, that this needs to be got right in the application to the security and intelligence services.

UK Government, we know, are committed to this becoming law. I think there is broad support, I have to say, that has been expressed within the Senedd as well that we would want to see this being put on the statute book. But it does mean that there will be a short delay, but it's a delay while they consider these matters. Now, that does have an impact here.

UK Government, we understand, are drawing up a revised timetable for this. We haven't seen it yet, but it very likely will mean a carryover with the UK legislation. Our officials are in discussion with the UK Government on how that new proposed timescale will align with our legislative commitments as well, not least the fact that we have an election coming right in the midst of this. So, we've made very clear that we will need time to consider a full and revised LCM should it come forward, subject to amendments, because of the considerations they're going through.

However, my feeling is that I am minded to bring forward a legislative consent motion on the 24 March, I think it was, as originally intended. It won't be the full and final LCM; we suspect there will need to be another one brought forward, which will need to be in the period of the new Senedd term, and for a new Government to consider as well. But we think there is sufficient within the current proposals that we can bring it forward.

My feeling is, Chair, that I think it's right that the Senedd should be allowed to express a view as it currently stands in this Senedd term, rather than wait for a new Senedd term. But I'm interested genuinely in the views of the committee on this as well. I would hope the committee would be supportive of the idea of bringing forward an LCM in this Senedd term, so we can express a view now, even though there might be a subsequent iteration.

Were you to do that, would Members be asked to vote on any matters that had not yet been debated and voted on in Westminster, or would you only be incorporating those matters that had already reached that stage?

So, my interpretation would be—and I might turn to Jo-Anne in a moment—that as we have a great deal of precedent for, we could express a view on the LCM only as it is currently formed. Subsequently, if an LCM or an SLCM were to be brought forward, then the future Senedd would then express a view on that as amended, bearing in mind that the delay is in order for them to work through those considerations of balancing national security interests with openness and transparency for the intelligence and security services. So, I can't pre-empt what may come forward in that subsequent LCM or the view that the Senedd might take, but I do think—my feeling, to put it in colloquial terms—subject to those changes, is that there is enough meat on the bone for us to express a view on those parts of the Bill, the significant parts of the Bill as currently proposed, for the Senedd to take a view.

This is my final question at this stage before I move on: what consideration is the Welsh Government giving to the provisions in this Bill that would impact on the Welsh Government, which would appear to cross-cut with proposed domestic Welsh legislation on, for example, deliberate deception?

Well, indeed, the benefit of this legislation is that it puts on an additional and clear statutory footing some of the provisions that we already have in Wales, such as the duty of candour and other provisions. We are in close engagement with colleagues and stakeholders in Wales, including the Welsh Local Government Association and others, to work through what the implications are and the implementation of this legislation for them, to make sure that it complements what we already have, but builds on it. We're confident that that engagement will mean that when we have a clear path of implementation, a clear commencement date, and guidelines brought forward from the UK Government about how this would work, that they can then be adapted to fit here in Wales as well. So, the level of engagement we have at the moment with officials, for example, is probably happening on a fortnightly basis and more, so we're closely engaged with this, but we're also engaging with our own stakeholders now to make sure it fits with our existing duties and obligations here in Wales. And in some ways, you could say we're already in a good position to use this legislative opportunity to build on what we already have with things like the duty of candour.

I think Members will have further questions for you in those areas, but specific to Welsh Government: how, if at all, will this impact on proposed new legislation regarding the devolved-level issues such as the crime of deliberate deception, given that this LCM would impact on the Welsh Government, but not on the Senedd?

You're right to say that the duty of candour, as currently drafted in the Bill, doesn't apply to the Senedd, nor does it apply to Parliament, nor to the judiciary, because in all those cases there are existing mechanisms to ensure that Members of the Senedd, Members of Parliament, are open and transparent and act in the spirit of the duty of candour, and there are various mechanisms for sanctions where that's not the case.

In terms of Welsh Government, if you're particularly referring to civil servants, then we anticipate that the civil service code will be revised and updated to reflect the duty of candour. In addition to that, we will of course need to, as a public authority listed within the Bill, make sure that, within Welsh Government, we are raising awareness of the duty of candour amongst all civil service staff, that our processes for engaging in inquiries and investigations reflect the transparency and the frankness and proactive engagement that the Bill articulates.

If it's of help, Chair, because it's the way in which different elements of the Bill apply here within Wales as well—so, the duty of candour and the new offence of misleading the public apply to public authorities and public officials as defined in Schedule 2 of the Bill. The provisions relating to standards of ethical conduct apply to public authorities, which are given a separate definition in Schedule 2.

The duty of candour also, of course, will apply to agency workers and contractors, to councillors and executive roles, non-executive board members and volunteers that perform in public functions. But the public authorities, subject to various provisions of the Bill, include Government departments, Welsh Ministers, any of the regular or reserve forces, police forces and policing bodies, local authorities, NHS bodies, schools or further education providers, and any other body—and this is the important clarification—that is not an excluded body, and its functions are functions of a public nature or include functions of a public nature. So, that will apply within Wales and the Welsh context.

So, if that would apply to Welsh Ministers acting in their executive function, again wouldn't that cross-cut with the proposed domestic legislation in the proposed areas, including deliberate deception? How would a future Welsh Government navigate two different sets of legislation applying to, effectively, the same expected conduct?

So, the discussions on deliberate deception that are currently going on and the legislation of that, clearly, we're keeping an eye on what happens with that, but, as you're aware, it's a long-standing convention that, notwithstanding the discussions on that legislation, Parliament regulates its own affairs and that Parliament has its own arrangements for ensuring accuracy and truthfulness in proceedings, including processes to determine if Members have, for example, misled the Parliament as well. So, there is not a direct overlap with the legislation that is also moving along in terms of deception—

Except for Ministers. 

My understanding from your previous reply is that the LCM would apply to Welsh Ministers acting in an executive capacity—

Yes, indeed. 

—although not as Senedd Members.

Correct, yes. Yes.

And obviously the LCM doesn't apply to MSs as Senedd Members—

Yes, correct.

—but it would apply, as I say, to Ministers, as would the proposed devolved legislation impacting on the conduct of Members.

Correct, yes. I'm particularly addressing this legislation, rather than that other piece of legislation, but your interpretation of this piece of legislation is correct: it would bind on Welsh Ministers.

So, any proposed Welsh legislation would need to take account of this.

Correct, yes.

Okay, thank you. Can I bring in Tom Giffard?

Thank you, Chair. Does the Welsh Government have clarity on which provisions in the Bill apply to different public bodies in Wales, and has this information been shared with those relevant public bodies?

Yes, Tom, we do have clarity on this, and we are working with those bodies as well within Wales. I'm just looking for the extent of the engagement that we are currently doing. Let me have a look here.

Cabinet Secretary, if I can assist, public authorities in Wales have been invited to a forum on, I think, 11 March for some discussion, including with UK Government, on the provisions in the Bill, in addition to which, back in December, the Deputy First Minister wrote to the relevant public authorities to highlight the Bill, including highlighting the application of clause 11, which is the offence of misleading the public, and that that would, subject to amendment, be applied in Wales as well. 

Okay. Thank you. Sorry, I don't know if the Deputy First Minister wants to come back in, because he was looking for something, or whether that's answered.

No, thank you, Tom. Jo-Anne covered it well there. 

I don't doubt that. Has the UK Government now answered all of the Welsh Government's unanswered questions?

Yes, although we still have ongoing engagement because of the work that's currently going on with the slight delay, as I explained earlier on, because we need to make sure that that also applies here within Wales. But, yes, UK Government officials have provided the clarity where required. But it is worth saying that they've also recognised that there will be a certain level of ambiguity. So, for example, the UK Government have decided not to explicitly list who is not captured by the offences, because that risks, then, misinterpretation, given that it can never be completely comprehensive. So, they've taken instead an approach of setting out a definitive list of who is captured by the offences. But, yes, we consider, Tom, that the majority of previous questions that have been raised have now been answered, and we're working closely, as I say, with the UK Government to finalise the more recent questions, including the concerns that were raised in the LJC report as well.

Good. Just finally, you mentioned that there was—I can't remember the phrase you used—intentional ambiguity in the way that the Bill has been constructed. How is the Welsh Government not only working with the UK Government but with those public bodies that you talked about to overcome that ambiguity?

Yes, there are two aspects here. It's to do with the implementation and the guidance that then follows from this legislation, which UK Government have been clear they will be providing in terms of an England context, but we are engaged, Tom, with Welsh stakeholders here within Wales to make sure that the guidance, drawing on that guidance that will be prepared for England, will also then have our input to make sure that it is clear for our Wales stakeholders as well. So, the guidance will follow from the UK Government, assuming that the legislation is passed. And then we'll have our own guidance here within Wales that we'll work up.

Thank you. Back to you, Chair. 

Thank you very much indeed. I invite Rhianon Passmore to take up the questions.

Turning to engagement and consultation, and some of this we've touched upon already, but, in more depth, is the Welsh Government now content with the level of engagement from the UK Government on this important Bill? 

Yes, Rhianon, we are. Look, it's probably fair to say that, in the early stages, our lawyers in particular would have liked to have had a bit more time to consider some of the finer points of how the provisions in the Bill would sit alongside aspects of related law specific to Wales. But we do recognise that this was a UK Government and UK Labour Party manifesto commitment, and they hit the ground running with this because there was a clear desire to get on with this. But, actually, the engagement now between UK Government and Welsh Government is both regular and positive. As I mentioned, Rhianon, to a previous question, our officials are meeting at least fortnightly now with UK Government. We're finding that the UK Government is being very open to our questions, our challenges to them, and given the clarity where it's required. So, yes, we think the engagement is good now.

There is an issue that has arisen as well, to do with the necessity or otherwise of consultation on a piece of legislation like this. But, of course, we know from previous precedent that it's not always the case that legislation is subject to formal consultation, particularly when there are clear manifesto commitments, and particularly where there's a case like this, where I believe—and I think UK Government believes as well—that there is broad cross-party consensus as well.

But, having said that, because of the implications here in Wales, and the implementation of this in Wales, and the cross-cutting nature of this with some of the duties we already have in place, we often consider, here in Wales, that we can facilitate our own engagement as part of making sure that the implementation is correct in Wales. So, that's—

If I cut across you—

Yes, indeed. 

—Cabinet Secretary, in regard to what you've just said, you feel that the UK Government, then, is consulting Welsh public bodies sufficiently, or is it that you don't feel that that's their role?

No, I think—. So, their engagement is now good, and the work that we are doing, alongside UK Government, to engage with stakeholders in Wales, including with people like the Welsh Local Government Association and others, is very good. It's helping to refine the legislative proposal here to deal with the practical issues of implementation.

So, yes, between us and the UK Government, it's fair to say, now, that the engagement is very good, both in a UK context, but particularly here in Wales as well. Jo-Anne, I don't know if there's anything you want to add to that.

Just to add, I'm not sure we'd necessarily expect the UK Government to engage directly with public authorities in Wales without us being partners to that engagement, which is what we've sought to do. And as I mentioned, the session that's been scheduled for March, which is, as it were, a sort of tripartite session—Welsh Government, UK Government and the affected public authorities—. And so, we hope that will be a positive way of allowing public authorities in Wales to gain a better understanding of the provisions in the Bill, how they're likely to be affected, and start to think about implementation ahead of Royal Assent and any formal implementation plans being published.

So, in regard to that then, to just press this a little bit more, is Welsh Government content—you say that you are content—with how the UK Government is addressing issues that have been raised by Welsh public bodies, or are you doing that, in terms of the issues being addressed? Because there is a lot of—. There is noise around this, and, in terms of what's just been said, is it something the Welsh Government is addressing, or yourselves? You've highlighted that you think it's more yours, not UK Government's; just a little more meat would be good.

Yes. So, there are two parts to this process, and Jo-Anne is absolutely right in saying that Welsh Government is in pole position here in terms of the engagement with stakeholders, but we also have productive and positive engagement with UK Government. They're very aware of the necessity for us to engage with stakeholders and to feed those concerns through as well, to make sure that they're reflected in the primary legislation. So, for example—it might help in addition to what Jo-Anne has talked about in terms of our engagement—we'd written out to Welsh stakeholders back in the tail end of last year about the Bill, the impact, offering further engagement. We are hosting—Welsh Government is hosting—an engagement session, but it's being led by UK Government officials on 11 March. And in that stakeholder session, Welsh public sector stakeholders will hear directly from UK Government on the Bill, but we are hosting it. And I think that partnership—

Fine. So, within that forum—to interrupt you again for speed, really—you would anticipate and expect that issues raised by Welsh public bodies will be addressed then by the UK Government?

Yes, but it won't be the first time that they've been raised. So, I and my officials have already been raising this with the UK Government Bill team. So, for example, if it helps with some clarity on the sorts of issues that we've been raising, and that WLGA and others have been bringing forward, it's clarity on the application of the Bill in terms of acting in their role as part of the executive, as opposed to when councillors are acting on council business as councillors, which doesn't trigger roles as executive members; potential impacts for WLGA and stakeholders, in terms of freedom of information, legal privilege, confidential commercial information, issues of retroactivity, implications on costs; and also how it cuts across a range of other things such as employment rights, the timing and transition, and, of course, as I mentioned previously, bringing forward guidance both in England and in Wales. So, it will not be the first time, Rhianon, that these matters, that there's been engagement on it, but that stakeholder engagement will be a good face-to-face opportunity with the UK Government, hosted by us, to flesh these things out a bit more. That's why we're confident that there's really good quality of engagement here, and that, from our perspective as a devolved Government, Wales is being listened to and being reflected in the primary legislation.

Thank you, Chair.

Thank you. Before I bring in another colleague, let's follow up on my previous questions, if I may. I'd be grateful if you could provide any further clarification on the nature of the proposed LCM debates on 24 March, including what the motion would propose that the Senedd should agree to, noting that, normally, an LCM under Standing Order 29.6 proposes that the Senedd agrees or otherwise to provisions in a UK Bill.

Jo.

So, subject to the Deputy First Minister and Cabinet Secretary's final decision on going ahead, as he's indicated he's minded to do, we'll be looking at the appropriate wording of the LCM in order to reflect the stage that the Bill is at and, as far as possible, reflecting the fact that it's at a relatively early stage compared to the normal point in time when an LCM vote would be tabled. I can't give you the precise wording that we're likely to use because we haven't drafted it, I'm afraid, but, obviously, within the confines of those Standing Orders, we'll look to reflect that the Bill is in the position that it is, and the timing of the LCM, obviously, reflects unusual circumstances in terms of both carryover and the Senedd elections.

Just to re-clarify then, based upon the Cabinet Secretary's earlier response, consideration in an LCM or seeking agreement from the Senedd to provisions in the Bill would relate to those provisions that have already passed through the Westminster scrutiny processes, or could it potentially include provisions that are still in process?

No, my understanding would be that it’ll be based on what is currently there, not on proposals that might be coming forward. Sorry. Jo.

My slight hesitation is purely that there is, obviously, supplementary LCM 3 that we've tabled, which relates to an amendment that has been tabled but not voted on, and so I would need to check with colleagues more expert than me as to what extent any LCM vote would reflect that proposed extension of clause 11, which is—

Misleading the public.

—the main matter of LCM 3.

So, the pertinent question here—. We, clearly, can't bring forward an LCM that anticipates what changes might subsequently be made, but there is a question, Chair, as to whether the LCM we bring forward can reflect the decision I took to extend clause 11 to Wales, which is the offence of misleading the public. Now, when the original proposal was brought forward, and explaining that it was brought forward at speed, understandably—it was a manifesto commitment, and they wanted to move ahead—we needed to take time to understand the application, or the potential application, of clause 11 to Wales. So, initially, we declined to take that forward. When we had the time to look at it, we decided, actually, it was absolutely relevant to apply clause 11 to Wales. So, we've subsequently, in writing, indicated that to the Secretary of State, and that will be part of the proposal in Wales. So, what Jo-Anne is referring to is that that may indeed be—may indeed be—reflected in the LCM we bring forward, but what we want to be doing is reflecting what could be done subsequently subject to discussions that are going on between the UK Government and the Hillsborough law campaigners and others on how they get the amendments correct in terms of security services and intelligence services. I hope that helps.

Yes. I'm mindful—and I don't want to rehearse the subject at all—of a debate we had yesterday that hinged not so much on the purpose or principle of the matter in hand but on the constitutional issues raised where we were being asked to vote on amendments that hadn't yet been debated or voted on in Westminster. Could that arise here?

My anticipation is not. My anticipation is that the LCM we will be voting on, subject to—. As I said before, I'm genuinely interested in your thoughts, but I'm minded to bring this forward so the Senedd can express a view, but they will be expressing a view on the LCM reflected in the legislation as we know it at that point in time, not as it might be subsequent to amendments, because we will not know how those amendments will be shaped. We can only take a view—would be my clear understanding—on the LCM as we currently have it. So, the question is whether some of the adjustments—there are a couple of technical corrections—and the most substantive one is the issue of clause 11 being brought within scope of the legislation and the application here in Wales, whether that is reflected in the LCM. My gut feeling at the moment is that it would be, because we have written, we've exchanged, we've agreed this will be brought forward, but we just have to confirm that, and I haven't had the advice yet from officials.

Thank you. Could I bring in Mike Hedges, please?

Diolch, Cadeirydd. I'd like to first of all start talking about local government. You've talked about when councillors are acting as cabinet members and when they're not acting as cabinet members, but isn't there a grey area when they represent a local authority on things such as the health board and they represent it because they are the cabinet member for health and social services in the council? How does that fit in?

I've discussed this in some detail with Jo-Anne and the team here within the Welsh Government. I reflected earlier on that there is some contextual interpretation, some ambiguity within the way that the legislation is phrased, which would be subject to the determination of courts as well. The legislation goes as far as it can to give clarity on these matters, but, ultimately, as within any statute legislation, some of this will be determined on the context in which public authorities, individuals who are caught within the legislation, can be held accountable within this law. So, Mike, you're asking me to speculate on what might be determined ultimately in an individual test when, for example, an individual is challenged to say were they caught within the bounds of this legislation, within the duties here, in that particular context when they would have been expected to offer due candour, to speak openly and honestly and not to mislead. That will be an interpretation for the courts.

Well, can I just urge you to produce an advice note on this for councillors? I just gave health, but as to the Welsh Local Government Association, which I'm going to talk about next, all the people who attend the Welsh Local Government Association co-ordinating committee on a Friday are all leaders of councils. They don't have to be, but that is what the 22 local authorities have done since local government reorganisation. So, I think people will need to know whether, when you're dealing with this, if somebody is attending, they are there by their position or by themselves as individuals. I think an advice note on this is going to be very useful for local government.

There'll be more than an advice note, Mike, because there will be the guidance I referred to earlier on brought forward by the UK Government in terms of England, and, in us working with them, but also working with our WLGA colleagues, specific guidance for the application and the interpretation here within Wales as well. So, we are actively working with WLGA colleagues on clarifying some of these issues. But you are right, Mike, in that we can give clarity to as much of an extent as we can within that guidance, and then, ultimately, there will be a degree of interpretation in the eyes of the law as well.

Okay. Continuing with the WLGA, can the Deputy First Minister provide an update on discussions with the WLGA in relation to the duplication of existing Welsh law?

Jo-Anne, do you want to answer that?

I think what you're referring to is the various codes of conduct, codes of ethics, that already operate within local authorities.

Yes.

I think we're content, and we've discussed with the WLGA—colleagues have, certainly—that there shouldn't be any duplication. Public authorities will be required to have a code of ethics in line with the requirements of the Bill/Act. However, if they already have codes of conduct, codes of ethics, then the requirement will essentially be for them to review those. If they feel they already meet the stipulations of the Bill, there would be no further specific action. If, however, they felt that it was appropriate to revise, update or amend them in order to ensure that they fully met the requirements of the Public Office (Accountability) Bill/Act, then obviously there would be a requirement on them to do that. But there's no intention that they should have, if you like, two parallel codes of conduct, codes of ethics. It should, as far as possible, be a single set of behaviours, requirements that they operate to.

Carrying on again with local government, have the Welsh or UK Government undertaken any assessment of the cost to implement the Bill for devolved public bodies in Wales, including things such as staff training?

We think, Mike, because there are existing duties and existing guidance around some of the provisions we already have in place, we expect the costs here to be relatively marginal. But we are working through this with local government colleagues as well. The most substantial costs here, of course, within this legislation, are not those costs that we think will be marginal, but they will actually be the legal aid costs. But, Mike, rest assured we're having these discussions with local government colleagues to understand them. But we do think they will be fairly small.

Okay. You'll be pleased to know I'm moving off local government now. Have the Welsh Government officials undertaken initial work to identify which codes will need to be updated if the Bill is passed? 

Sorry, what needs to be updated?

Which codes will need to be updated if the Bill is passed?

I missed that.

Which codes will need to be updated?

Yes, indeed. Jo-Anne.

It partly reflects the points I made earlier. The Bill places the responsibility for adopting ethical codes that incorporate the duty of candour directly on public authorities themselves. So, it's the public authority that is therefore responsible for reviewing their existing codes, determining whether or not they are compliant with the legislation, and, if not, identifying what changes will be needed. So, we won't necessarily be identifying every single code that exists that will or won't need to be revised, because, as I say, that responsibility falls on the public authority. But we will, of course, alongside UK Government, be looking at where it's appropriate for us to provide guidance on what a good code of conduct, code of ethics, for want of a better phrase, might look like—exemplars that public authorities could draw on. It's also within the Bill that a public authority can utilise codes of ethics, codes of conduct that have been produced by other bodies as well, if they think they're good, strong ones. So, for example, local authorities could share with each other codes of conduct, and adopt them appropriately, if they felt that that was a sensible thing to do.

It's probably worth saying as well, Mike, that the requirement to produce a code of ethics is intended to sit alongside, not replace, the existing ethical and candour frameworks. So, we're trying to make sure that this doesn't lead to duplication of effort; we have a body of work already here within Wales. So, that's the granular detail of the work that we're doing with colleagues within Wales as well, to understand how we can make this fit well. It's also important to say as well, because of that, we're seeking to align as much as possible the guidance and the implementation with what is happening in England. But because of the Welsh context, and because we have some things in place already, it may not be identical. We'll be working with the grain of what is already there, to make it, Mike, a better fit and more streamlined, and avoid duplication for our stakeholders out there.

Thank you for that. That leads me on to my last question. I'm going to give an example in another area. The Chartered Institute of Public Finance and Accountancy, for example, used to produce a book on local government finance for England and Wales. They now produce one for England and Wales, but they have specific Welsh chapters because of how Wales has moved away, in the devolved years, from what actually is happening in England. The question I'm asking is, is the UK Government considering the Welsh context sufficiently in the development of these documents, and will there actually be, when the documents are produced, a Welsh-only part?

I think this is exactly what the workshop is intended to flesh out, and also the representations we've already made on behalf of Welsh Government stakeholders. I can't give you a definitive answer yet, Mike, but these matters are already being discussed and there will be a Wales approach to bringing this forward. The UK Government, as I mentioned earlier on, are in a positive and constructive space on this. But Jo-Anne, I don't know if you want to add anything to that.

Yes. So, we're in discussions with the UK Government about their implementation plan and the extent to which certain elements of that will be applicable UK-wide, what elements of it may need to, or we may want to, have a specific Welsh focus on. So, to give you one example: there is a proposal to develop training packages, to ensure that public officials understand the duty of candour, understand that it applies to them, and what the requirements are. We will need to see, as we work through the detail of that training, whether or not anything that UK Government produce is simply adopted in Wales, or whether we would need to make some amendments to it, to ensure that that training package reflects other Welsh requirements, of a similar nature, that we would want to take the opportunity to highlight to public officials because it's relevant and useful to do so.

Thank you. I wasn't expecting detailed answers on the questions. I just wanted the questions to be raised so that they will be being thought of and be in the public domain before it eventually becomes law. Thank you, Cadeirydd.

Diolch. Thank you. Adam Price now has a series of questions for you. So, over to you, Adam.

Diolch, Cadeirydd. I'd like to return, if I may, to clause 11 in the Bill, which relates to the new offence of misleading the public. And just to return to this question of the LCM, am I correct in thinking that the Government amendment that extends the ambit of clause 11 to devolved functions has not been passed yet? 

So, the extension of clause 11 to Wales was introduced as an amendment to the Bill, I believe.

So, the amendment—and apologies if I get some of the parliamentary terminology slightly incorrect—was tabled, and therefore the amendment is in the public domain. But the UK Government then took the decision to pause the Bill. So, that amendment would have been considered at Report Stage in the House of Commons, but Report Stage and Third Reading in the House of Commons have not taken place. So, as I say, the amendment has been published, but it has not been scrutinised, debated or voted upon.

So, just to return to the earlier question that the Chair gave you in relation to the LCM, is it your intention to submit the LCM based on the Bill as it currently is, where clause 11, therefore, only at the moment because that Report Stage amendment has not been reached, and is unlikely to be reached probably by the last day of our Plenary session in Government business—? It will only reflect the current state of play, which is that it does apply to Welsh Ministers, but it doesn't apply to public authorities in relation to devolved functions.

Adam, I think your interpretation or your understanding there is correct. However, I can also make clear that during the consideration of that LCM, if we bring it forward, the extension of clause 11 to Wales had been tabled in constructive engagement with UK Government as well, with the purpose of this applying to Wales. But subject to advice coming up to me, Adam, I think your interpretation is accurate, unless I get advice in front of me saying you can reflect, somehow, within an LCM that there is another proposal coming forward. I think I can signify that clearly in my words to the Senedd, so they can reflect on that in their deliberation on the LCM. But the LCM will have to reflect what has actually been passed, what is there in the legislation at that time, and unfortunately, yes, because of the delay, even though it's been tabled, it's not part of the Bill yet.

Thank you for that clarification. Notwithstanding that, and obviously the Government, through tabling the new UK Government amendment 40, has indicated, in the UK Government, what their intention is. Welsh Ministers are, even as currently formulated, one of the public authorities that clause 11 applies to in relation to non-devolved functions, and, if the clause passes, then to devolved functions as well.

I'd like to ask you about what the position is in relation to parliamentary privilege, because in the case of UK Ministers, it's quite clear, obviously, that UK Ministers have absolute privilege in relation to statements made in either House of Parliament. But as we are aware, we only have limited privilege in the context of the Senedd. So, is it your understanding that if the Bill passes, Welsh Ministers could, in theory, be liable for prosecution, even for statements made in the Senedd, if the other elements of the offence were made?

Adam, I think rather than obfuscate on that, because it's a question of real and pertinent detail, I wonder if it would be helpful for me to write to you, because I'll need to get a full legal interpretation of that. So, rather than me guess at what the precise answer to that is—because you rightly point out there is a difference in privilege between the two Parliaments—I'm happy to write in very short order to the committee.

I'd be grateful for that, but I’m just wondering on a purely factual level: has this question of privilege been raised with UK Ministers either at official or inter-ministerial level already? 

No, it hasn't specifically. That point hasn't been raised, Adam, yet. 

Okay. I'm grateful to you. Just returning to the issue that the Chair also touched upon, with the parallels and overlaps between the provisions around misleading statements in the Senedd accountability Bill and these provisions—I accept, obviously, the context is different, isn't it—to what extent has there been any discussion with the Bill team on the Senedd side, within Government now, on the arguments for convergence in some aspects of it? So, both Bills have a definition of what ‘misleading’ means, for example. Both Bills, I think, do not involve strict liability, for example. There's a requirement of intentionality, for example. But there are arguments in favour of convergence—public understanding, for example, would suggest that you don't have two different definitions of what misleading the public means. But there are also arguments in favour of divergence, and I'm just wondering whether that discussion has happened, in essentially saying, ‘Well, are there some advantages?’, or maybe does the argument lie in a different direction in terms of reflecting some of the language in the Senedd accountability Bill?

I'm going to turn to Jo-Anne in a moment. It's fair to say that we're in the foothills of unravelling this. The new offence, of course, is aimed squarely at those who aim to mislead the public or cover up the truth, and it has been designed, of course, with Hillsborough very much at the front of the mind. Where public authorities or a public official acts with the intention of misleading the public or are reckless as to that possibility, they ought to know—or they do know, indeed—that their act is seriously improper. But those discussions on the overlap, Jo-Anne—I think it's fair to say we are in the foothills of that.

Yes. As the Cabinet Secretary has said, the bar in terms of misleading the public is set in terms of both intent, and knowingly intending to mislead, but also that the individual knows that, by misleading, it is a seriously improper thing to do. We will need to continue discussions as to whether those particular tests, if you like, of misleading the public are appropriate in other contexts and other circumstances. As you say, there may be arguments for alignment, there may be arguments for divergence appropriate to the context, but I can't say that there's a position on that.

But it would be interesting to hear the committee's thoughts on that, Adam, as well.

Yes, and I suppose it’s double jeopardy if you might face a situation where someone is facing, potentially, prosecution on the same facts, though with different elements and context. So, is that something that you're aware of as an issue?

Yes. 

Okay. I'm just wondering, then, if I could just ask you, in terms of the financial implications of clause 11, if it is extended to devolved matters, is that something that you have a revised assessment in relation to?

The UK Government itself hasn't published any further updates to its initial impact assessments on this, and we're not aware that any separate assessments have been undertaken. But it's probably fair to say the introduction of a new criminal offence does not, we envisage, create additional costs other than for the police and courts, so we don't envisage it will result in additional costs for public authorities in Wales more generally. It's the courts and the police where the costs will lie. It's not possible to fully anticipate at this moment the full costs for the extension of clause 11, but I think that's where the costs will be, not on our wider general public bodies.

Can I just ask a supplementary there before I bring Adam back in? In that context, do you not anticipate that those public bodies will have to renegotiate their insurance contracts given the higher risk of potential action against members that might result?

I'm not sure whether this is something that's been raised with us specifically at the moment, Jo-Anne.

That hasn't been raised, to my knowledge. I'm very happy to go back and look at the impact assessments that the UK Government have produced, which include potential costs associated with this, to see whether that was factored into that. I'm very happy to look at that and come back to you.

Thank you.

In relation to the proposed extension of clause 11 to devolved functions, could you share any information you have, insofar as you're able to, in terms of your discussions with Welsh public bodies about this proposed extension—what the views you have received are in relation to that, or issues that they've raised? 

Yes, indeed. As I mentioned earlier on, we agreed to extend the application of clause 11 to Wales after our reading of the legislation. Having initially said we wanted to take time to consider this, we think it is appropriate to apply this right across England and Wales and other parts of the UK. We think that consistency is desirable. I wrote to stakeholders in December. When I wrote to them, it was both regarding the introduction of the Bill and also on clause 11, offering further engagement on this. I think some of the detail of this, Adam, will now come out within that session on 11 March, because part of that session is for stakeholders in Wales to hear more about clause 11 and its application in Wales, and then to hear from them their thoughts on any additional implications that we want to take on board. So, a little bit too early to have that detailed feedback yet, but that's exactly the purpose of the round-table coming up.

I'm grateful for that. If you're able to give us a summary of the issues raised, that would be very useful, I'm sure.

The final one from me: has the UK Government confirmed that it will meet the additional costs relating to the expansion of non-means-tested legal aid? 

We haven't had confirmation of that yet, but I know the UK Government are looking at various different approaches to funding. They're still considering this. We've made very clear, Adam, that legal aid is a reserved matter, simple as, and so we expect the additional costs will be met, as with any reserved area, by the UK Government. So, we're waiting for the outcomes of their deliberations. They are looking at various approaches to funding this, but our position is very clear: legal aid is a reserved matter, and the funding implications fall commensurately with that on the UK Government.

Okay, thank you very much. Diolch.

Thank you. That brings us to the end of our formal questions. Is there anything you'd like to add that we haven't covered? 

No, thank you very much. It's right to say with this legislation that I think it's long-awaited, long-anticipated. I think campaigners out there have been, rightly, putting pressure on for this to be brought forward.

There is this slight delay that we've mentioned, for the right reasons, and those campaigners and the families are involved with the UK Government now. But I hope that we'll continue in support of this legislation, and I hope as well that this slight delay—albeit with the full commitment of the UK Government to take this forward—will also give us a little bit of time as well to continue to explore some of these questions that the committee has raised.

It has been a very useful session today, Cadeirydd. We will come back to you on some of the points that we said we'd come back to you in writing on as well, and we look forward to continuing the engagement on this. Thank you.

Thank you. As always, a transcript of today's meeting will be sent to you to check for accuracy before publication, and thank you for being with us.

Thank you. Diolch yn fawr iawn.

Members, I now propose, in accordance with Standing Order 17.42 (vi), (vii) and (ix), that the committee resolves to meet in private for the remainder of today's meeting. Are Members content? I see that Members are content, so I would be grateful if we could go into private session.