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Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

05/03/2018

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd AM
David Melding AM
Mandy Jones AM
Mick Antoniw AM Cadeirydd y Pwyllgor
Committee Chair

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Alys Thomas Ymchwilydd
Researcher
Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Ruth Hatton Dirprwy Glerc
Deputy Clerk
Sarah Sargent Ysgrifenyddiaeth
Secretariat
Stephen Davies Cynghorydd Cyfreithiol
Legal Adviser

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Dechreuodd y cyfarfod am 14:30.

The meeting began at 14:30.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datganiadau o fuddiant
1. Introduction, apologies, substitutions and declarations of interest

Welcome to the Constitutional and Legislative Affairs Committee. There are no apologies; everyone is in attendance. I'll just read out the housekeeping items. In the event of a fire alarm, Members should leave the room by the marked fire exists and follow instructions from the ushers and staff. There is no test forecast for today. All mobile devices are switched to silent mode. The National Assembly for Wales operates through both the medium of Welsh and English languages. Headphones are provided through which instantaneous translations may be received. For any who are hard of hearing, these may also be used to amplify sound. Do not touch any of the buttons on the microphones, as this can disable the system, and ensure the red light is showing before speaking. Interpretation is available on channel 1 and verbatim on channel 2. Unless there are any declarations of interest, of which there are none, we'll move on to item 2.

2. Offerynnau sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.2 neu 21.3
2. Instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3

Item 2 is instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3. We have a negative resolution instrument, which is the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) (Wales) Order 2018. This is an Order that amends the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 by inserting an entry into Part 1 of the schedule to the principal Order, in relation to the Welsh Revenue Authority. You have before you regulations, explanatory memorandum and report. Can I ask, perhaps, the lawyers, first of all, for any comments?

There's one merits point of interest. There is currently a statutory instrument from 2010 that sets out a long list of persons who can authorise (1) the use of directed surveillance, which is the covert following of a person in public, and (2) authorising covert human intelligence sources, which includes authorising someone to establish a relationship with someone in order to obtain—covertly obtain—information through that relationship. That list currently includes persons in the police, the Royal Air Force, HM Revenue and Customs, local authorities, the Welsh Government, and many other public bodies. This Order adds the Welsh Revenue Authority to that list, to allow the WRA to authorise covert surveillance for purposes such as detecting crime and tax evasion.

Okay. These are all powers that are in existence with all other bodies, so it's putting the WRA—the Welsh Revenue Authority—on the same footing as those other bodies.

Any comments from Members? Okay.

Then we move on to the affirmative resolution instrument, the Welsh Revenue Authority (Powers to Investigate Criminal Offences) Regulations 2018, regulations that provide for various provisions of the Police and Criminal Evidence Act 1984 and the Criminal Justice and Police Act 2001 to be applied to the investigation of offences conducted by the Welsh Revenue Authority. They include obtaining entry to premises under specified circumstances and seizing relevant items. Again, you have before you the regulations, the explanatory memorandum and report. Now, I understand there were one or two comments from the lawyers to be made.

These regulations apply some elements of the Police and Criminal Evidence Act 1984, the Criminal Justice and Police Act 2001 and the Proceeds of Crime Act 2002 to the Welsh Revenue Authority, when the WRA investigates tax crimes. So, for example, the regime for applying for a search warrant from a justice of the peace is currently set out in section 8 of the Police and Criminal Evidence Act 1984, and these regulations apply that regime to any requests by the WRA for a search warrant through a justice of the peace.

I understand there's an anomaly with regard to the explanatory memorandum.

Yes. One other thing that's come to our attention since the draft report was prepared: the explanatory memorandum says that the WRA must comply with statutory codes of practice, such as PACE code B, which sets out the code for searching premises and seizing property. So, the explanatory memorandum says the WRA must comply with the code, but my understanding is that they need only have regard to the code, and then only a duty to have regard to relevant bits of the code. And there's an important difference between having to comply with something and having to have regard to it, so that's something maybe that needs to be corrected in the explanatory memorandum.

It seems to me that that's a point that we should raise, or make specific reference to. The explanatory memorandum needs to be accurate, particularly in the exercise of what are very significant powers. The appropriate mechanism, I understand, would probably be to write formally to the—. Is that the right approach?

We could write to them, or simply make a merits point in the report—

14:35

Okay, well let's do it that way then.

We then move on to—. Sorry, are there any other comments from Members?

3. Papurau i’w nodi
3. Papers to note

We move on to item 3, papers to note—the Welsh Government written statement: report on the consultation for the Welsh Revenue Authority to have access to criminal powers. So, that is the background. That's the 21 February statement. Then, paper 7, which is the Welsh Government report on the consultation for the Welsh Revenue Authority to have these powers. I think those are really just for noting, unless there's any comment.

4. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o’r cyfarfod
4. Motion under Standing Order 17.42 to resolve to exclude the public from the meeting

Cynnig:

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

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

In which case, the next item is a motion under Standing Order 17.42 to resolve to meet in private. Is that moved?

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:36.

Motion agreed.

The public part of the meeting ended at 14:36.

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