Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee


Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd
Dawn Bowden
Mandy Jones
Mick Antoniw Cadeirydd y Pwyllgor
Committee Chair
Suzy Davies

Y rhai eraill a oedd yn bresennol

Others in Attendance

Lesley Griffiths Ysgrifennydd y Cabinet dros Ynni, Cynllunio a Materion Gwledig
Cabinet Secretary for Energy, Planning and Rural Affairs
Peter McDonald Dirprwy Gyfarwyddwr, Adran Diwygio Rheoli Tir, Llywodraeth Cymru
Deputy Director, Land Management Reform Division, Welsh Government
Tim Render Cyfarwyddwr, yr Amgylchedd a Materion Gwledig, Llywodraeth Cymru
Director, Environment and Rural Affairs, Welsh Government

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Alys Thomas Ymchwilydd
Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Katie Wyatt Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Ruth Hatton Dirprwy Glerc
Deputy Clerk
Sarah Sargent Ail Glerc
Second Clerk

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

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

Dechreuodd y cyfarfod am 14:30.

The meeting began at 14:30.

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

Welcome to the Constitutional and Legislative Affairs Committee meeting. The usual housekeeping rules will apply. I've had one apology, which is from Assembly Member Lee Waters. I'm just wondering whether there are any declarations of interest. 

2. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3
2. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

If  there aren't any declarations of interest, we move on then to item 2, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We start with statutory instruments with clear reports, negative resolution instruments: the Sustainable Drainage (Approval and Adoption) (Wales) (Order) 2018. This Order forms part of a suite of statutory instruments relating to sustainable drainage systems and makes provision in relation to the requirement for approval of and request for adoption of such systems under Schedule 3 to the Flood and Water Management Act 2010. Are there any views or any comments to be made?

Okay. We'll move on. Item 2 is the Sustainable Drainage (Application for Approval Fees) (Wales) Regulations, and these are regulations that make provision for an approving body to charge fees in relation to such applications. Any comments, or shall we move on from that?

Then we move on to item 2.3, the Ecclesiastical Exemption (Listed Buildings and Conservation Areas (Wales) (Order). This is an Order that removes the listed buildings ecclesiastical exemption in the case of all ecclesiastical buildings other than those for cases falling within article 4. Under article 4, the exemption is retained in respect of church buildings of the Church in Wales, the Church of England, the Roman Catholic Church, the Methodist Church, the Baptist Union of Great Britain, the Baptist Union of Wales, provided that the building in question's primary use is as a place of worship, and subject to the restrictions set out in that article. I'll just ask the lawyer for a bit of clarification as to—

Certain religious buildings are exempt from requiring consent before, for example, they are demolished, and this Order changes some of those rules. For example, the exemption will now be extended to apply to all structures within the curtilage of a church building. And sitting behind all of this, of course, is the expectation that denominations have their own proper control systems around demolition in place. 

Okay. Any comments on that? No. Okay. 

So, we move on to the affirmative resolution instruments, starting with the Sustainable Drainage (Enforcement) (Wales) (Order) 2018. This is an Order that provides for the enforcement of a breach of the requirement for approval under paragraph 7.1 of Schedule 3 to the Flood and Water Management Act 2010 in respect of drainage systems for construction work. Any comments? No.

In which case, we go on then to item 2.5, the Sustainable Drainage (Appeals) (Wales) Regulations 2018, which provide for a right of appeal to the Welsh Ministers against a decision of an approving body. Any comments? No. 

So, we move on to the affirmative resolution instruments, starting with the Sustainable Drainage (Enforcement) (Wales) (Order) 2018. And this is an Order which provides for the enforcement of a breach of the requirement for approval under paragraph 7.1 of schedule 3 to the Flood and Water Management (Act) 2010 in respect of drainage systems for construction work. Any comments? No. In which case, we go on then to item 2.5—the Sustainable Drainage (Appeals) (Wales) Regulations 2018, which provide for a right of appeal to the Welsh Ministers against a decision of an approving body. Any comments? No.

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

We move on then. Item 3 is instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3. We start with negative resolution instruments: the Sustainable Drainage (Approval and Adoption) Procedure (Wales) Regulations 2018. You have in front of you a report, a set of regulations and an explanatory memorandum. The regulations form part of a suite of statutory instruments relating to sustainable drainage systems and the provision of Schedule 3 to the Flood and Water Management Act 2010, and these regulations make provision for procedure in relation to the determination by approving bodies of applications for approval and adoption of sustainable drainage systems and ancillary matters, and in respect of statutory works on public land that may have an effect on such systems. I think we've identified a typographical error within the drafts. 

Yes, there's one incorrect cross-reference in the regulations, which the Welsh Government say they will seek to correct by a correction slip, which is a process where you go to the national archives and ask them whether it is something that is suitable to be corrected by a simple correction slip. 

Okay. Are we happy with that? Good.

We move on to the Town and Village Greens (Landowners Statements) (Wales) (No.2) Regulations 2018. You have, again, before you the report, the regulations, the explanatory memorandum, and, again, a letter from the Leader of the House and Chief Whip in relation to matters that we've previously raised—land that can be registered as a town or village green in the circumstances specified in section 15 of the Commons Act 2006, and a characteristic of each of those circumstances is that a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, must have indulged as of right in lawful sports and pastimes on the land in question for a period of at least 20 years. Section 15A(1) of the 2006 Act permits the landowner to deposit with the commons registration authority a statement that effectively brings that to an end. As I said, when this was last raised, there were certain areas that we thought were intra vires, and I think those have now been resolved. I'll just refer to the lawyers.


Yes, these new regulations address the concerns raised by this committee some three weeks ago, and the draft report suggests welcoming the speedy response to the concerns raised by the committee.

Okay. Is everyone happy with that? In which case, we move on to the Sea Fishing (Miscellaneous Amendments) (Wales) Order 2018. Obviously, we've cast our nets very wide in terms of the instruments today. You have before you the report, the regulations and the explanatory memorandum. This Order amends the Registration of Fish Buyers and Sellers and Designation of Fish Auction Sites (Wales) Regulations 2006. It amends the Tope (Prohibition of Fishing) (Wales) Order 2008, and the Shrimp Fishing Nets (Wales) Order 2008, to update references to the relevant European Union legislation. Of course, this is about the mechanisms for monitoring the exploitation of fishery resources, and I think you've identified some points there.

Earlier this year, the committee suggested that when regulations refer to an area of sea known as the Welsh zone, it would be helpful to have the map showing the area of sea covered. There is such a map in the explanatory memorandum, so the draft report suggests welcoming that development.

So, a little bit of praise for the Welsh Government on improving the quality of its—

And just finally, in the context of exiting the EU, since the draft report on these regulations was prepared, the Fisheries Bill has been introduced in the UK Parliament, which sets out the UK-wide approach to sea fishing after exit.

And, of course, we will be looking at that in due course. If there are no points on that, we will move on to item 4.

4. Offerynnau Statudol sydd angen Cydsyniad yn unol â Rheol Sefydlog 30A - Ymadawiad yr UE
4. Statutory Instruments requiring Consent in accordance with Standing Order 30A - EU Exit

These are statutory instruments requiring consent in accordance with Standing Order 30A—EU Exit. And we move on to item 4.1, the Environmental Assessments and Miscellaneous Planning (Amendment) (EU Exit) Regulations 2018. We have a letter from the Cabinet Secretary for Energy, Planning and Rural Affairs. Oh, sorry, I'm moving on too fast, aren't I? We moved on to item 4.1. This is the first EU exit-related statutory instrument consent memorandum that the Welsh Government has laid before the National Assembly. The objective of the Environmental Assessments and Miscellaneous Planning (Amendment) (EU Exit) Regulations 2018 is to address failures of retained EU law to operate effectively and other deficiencies arising from our withdrawal from the European Union. The purpose of the provision, which applies to Wales, is to correct out-of-date references to EU legislation. So, it makes amendments to a number of pieces of legislation, and you'll note that, in the letter—paper 9—the Cabinet Secretary has stated that she is not minded to lay a motion for debate in this instance because Welsh Government's interest in this statutory instrument is restricted to just making corrections to out-of-date references that will arise as a result of our leaving the EU. So, there are no policy issues of any consequence that we would want to address. Any comments? Are we happy to proceed in that way?

Yes. I think what the Government says in its memorandum is an accurate reflection of what these UK Government regulations do do in relation to Wales.

Because the situation with environmental legislation is that we've got some pretty stiff ones in Wales at the moment, in this whole EU withdrawal arena, which could be under threat. But these are minor technical alterations of what was—

Yes. It updates the definition of 'waste' as far as EU law is concerned.


I've certainly looked at all the papers, and I know the lawyers have, and the other staff, and I think that, for these early ones, it's ensuring that that is the case and that where there are just technical changes—changes to words, changes to organisations as a result of leaving the EU—then it seems to me that this is an efficient way of proceeding, but that we are looking with a view to whether there is any policy impact, and if there's a policy impact, it will be drawn to the attention of this committee, and then we'll have to look carefully at the issues of consent and the process for dealing with that.

We now move on to item 4.2, then, which is the Inquiries and Coroners (Amendment) (EU Exit) Regulations 2018. We have a letter from the First Minister, a Welsh Government written statement in relation to statutory instruments made by UK Ministers in devolved areas, a statutory instrument consent memorandum, an explanatory memorandum, and regulations. So, this is the second EU exit-related statutory instrument that the Welsh Government has laid, and the purpose of the Inquiries and Coroners (Amendment) (EU Exit) Regulations is, again, to correct deficiencies of legislation arising from the UK leaving the EU. The regulations will replace references to 'EU obligations' and 'enforceable EU obligations' with 'retained EU obligations' and 'retained enforceable EU obligations'. So, it's amending, effectively, the Inquiries Act 2005, the Coroners and Justice Act 2009 and the Coroners Act (Northern Ireland) 1959. Any comments from Members? No. It's the same issues that arise there in terms of policy.

We can discuss any matters relating to process in private session later on.

5. Datganiadau ysgrifenedig yn unol â Rheol Sefydlog 30C - Ymadawiad â'r UE
5. Written statements in accordance with Standing Order 30C - EU Exit

We now move on to item 5: written statements in accordance with Standing Order 30C—EU exit. If we take 5.1 and 5.2 together, these are the Ionising Radiation (Basic Safety Standards) (Miscellaneous Provisions) (Amendment) (EU Exit) Regulations 2018 and the Local Government (Miscellaneous Amendments) (EU Exit) Regulations 2018. In respect of Standing Order 30C, a member of the Welsh Government must lay a written statement giving notification of a relevant statutory instrument made or to be made by a UK Minister acting alone under sections 8, 9 or 23 of Schedule 4 to the European Union (Withdrawal) Act 2018, which contains provisions within the legislative competence of the Assembly or the executive competence of the Welsh Ministers. 

There were two statements issued last week, relating to the ionising radiation regulations of 2018 and the local government regulations of 2018, which are the first stand-alone statements to be issued by the Welsh Government in accordance with Standing Order 30C. Again, the purpose of the first set of regulations is to correct deficiencies in legislation arising from the UK leaving the European Union, relating to inoperabilities. In her statement, the leader of the house states that the Welsh Government's consent has been given to the UK Government to make these corrections.

The purpose of the latter set of regulations is to correct deficiencies in UK legislation, subject to exit from the EU, relating to local government finance, and these regulations will remove the reference to European Economic Area-regulated firms not authorised to carry out regulated activities in the UK, so that only the FCA—that is, the Financial Conduct Authority—authorised firms will be qualified to act as contractors for local authority investment functions. The regulations also ensure that students studying within educational establishments situated in the UK and EU member states will continue to be disregarded for the purpose of council tax, and this involves changing a reference to 'member  state' to 'relevant authority'. In her statement, the leader of the house states that there is no divergence between Welsh Government and UK Government on policy, for the correction and the original legislation predate devolution. Therefore, making separate statutory instruments would just lead to duplication and unnecessary complication of the statute books. 

So, just to mention that there were a further three statements, which were laid late on Friday, and those will be on next week's agenda. Any comments?

Jest un pwynt, achos rydym ni'n cytuno, ac, wrth gwrs, mae'r Llywodraeth wedi gwneud y ddadl, o ran y rheoliadau yma, nad oes dim gwahaniaeth rhwng Cymru a Lloegr. Ond mae yna un gwahaniaeth pan ydym ni'n rhoi pethau ar y llyfr statud, sef yr iaith Gymraeg. Rydym ni wedi sôn am hyn yn y gorffennol—ynglŷn â'r angen i gyfieithu pethau i'r Gymraeg. Neu, wrth gwrs, fe allem ni lunio cyfraith yn yr iaith Gymraeg yn fan hyn ac wedyn byddai angen ei chyfieithu i'r Saesneg. Ond wrth gytuno i hyn, beth sy'n digwydd i'r ffaith, os ydy hi'n statud i Gymru, fod angen iddi fod yn ddwyieithog?

Just one point, because we agree, and, of course, the Government has made the argument that, for these regulations, there is no difference between Wales and England. But there is one difference when we put things on the statute book, namely the Welsh language. We've talked about this in the past—translating things into Welsh. Of course, we could compile a law in Welsh here and it would need then to be translated into English. But in agreeing to this, what's happening to the fact that, if it is a statute for Wales, it needs to be bilingual?


A very good question. We have a letter later on in the programme that actually deals with the issues you've raised, and perhaps we can discuss that later on. There's a more positive response that we have had from the House of Commons in that respect. We can discuss that—because we've raised this on a number of occasions, we do have a response, which gives us certainly a more positive approach to it. I think if we look at that in private session, we can then go through that, but you raise a totally valid point on that, particularly since this is all legislation going into our new Welsh legislation book. Absolutely.

Item 6—. I think that brings us to the end—. The next session is on the Agriculture Bill and the evidence from the Cabinet Secretary. We've dealt with all these matters extremely efficiently so we are probably 15 minutes ahead of time. A short break?

Gohiriwyd y cyfarfod rhwng 14:46 ac 15:00.

The meeting adjourned between 14:46 and 15:00.

6. Bil Amaethyddiaeth y DU: Sesiwn dystiolaeth
6. The UK Agriculture Bill: Evidence session
Lesley Griffiths 15:00:06
Cabinet Secretary for Energy, Planning and Rural Affairs

Griffiths. [Laughter.]

—to the Constitutional and Legislative Affairs Committee and our consideration of the UK Agriculture Bill. Welcome. Do you want to introduce your officials?

I'm Tim Render. I'm the director of environment and rural affairs.

I'm Peter McDonald, deputy director of the land management reform division.

Okay. This is a controversial piece of legislation and the drafting of it certainly raises a number of issues that we are concerned with, in terms of drafting and constitutionally. But, basically, perhaps I'll start off with why you think this Bill is necessary, what the background to it is, and any associated problems you identify with it.

Okay, thank you, Chair. I think I should say from the outset that it's not the way that you would want to make policy, but there is so much uncertainty around Brexit, and all of you will have heard me saying, in many different places, I will be bringing forward a Wales agricultural Bill. Unfortunately, due to the legislative timetable, the uncertainty, we've only just been out to consultation ourselves, I though the best way was to have these transitional powers within this Bill. So, we've had a lot of detailed conversations at a ministerial level, at an official level—you know, there's a Welsh Schedule in it that's been done following my instructions. So, whilst I do obviously accept people's concerns, I do want to reassure you—these are only transitional powers. There's a lot of flexibility around it and it's right that we take a neutral position.

We will come on to the transitional nature of them, because, at the moment, they're not transitional if this Bill goes through in its current format, because there is no sunset clause within them. But in terms of discussions you've had with the UK Government on them, and you mentioned that the Bill is not in the way we would want to approach this, what have been the nature of the discussions you've had and what are the issues that have arisen from those discussions on this specific Bill?

We've had a lot of detailed discussions, as I say, myself at a ministerial level and I think officials probably speak to the Department for Environment, Food and Rural Affairs on a daily basis, I think it's fair to say, to ensure that the things that are going through their Bill we're happy with and that we are in agreement with. You mentioned there was no sunset clause. Again, how can we have a date when there is just so much uncertainty? We don't even know if there's going to be a transition period, we have no idea of dates, and when we are given dates, the dates move. So, there is just so much uncertainty that we wouldn't be able to do that.

In some ways—obviously, this is England's Bill now. We'll have our own Bill. By the time we have our own Bill, we will know what we want. So, we've just finished, last week, the 'Brexit and our land' consultation. We've had 12,000 responses, so we're now going to consider all those responses. That's the start of our consultation process. We'll be out to consultation again in the spring.

So, we need these Bills so that we have a legal base to ensure we can continue with existing schemes. We have to be able to pay farmers' support in 2020. So, I just want to reassure you that there is flexibility around this piece of legislation.  

I think that probably brings us to the nub of the problem, in terms of the flexibility over it. Later on, my colleagues will explore some of those particular issues—issues of the sunset clause and the nature of the powers that are transferring and the scale of those powers. And, obviously, as a Constitutional and Legislative Affairs Committee, our concern are the checks and balances, in terms of what we're being asked to report on. And as you gather, there will be quite a number of areas of concern. But it's fair to say that there's been very little Welsh Government input into the drafting of this, because the UK Government did promise at one stage that there would be close co-operation on the drafting of these Bills.

I think there's been close co-operation. I don't know if Peter wants to add anything.

I think it's important to distinguish between the parts of the Bill. On the Welsh Schedule, Schedule 3, those provisions have been drafted on the instructions by Welsh Government and Welsh Government alone. And we are content with every element of them and we have had control over every element of them. Of the English provisions and the UK-wide provisions, we have, of course, discussed with DEFRA and the UK Government, but the situation is rather different.

Yes, Schedule 3—we will, specifically, go through those bits shortly. In terms of the areas of legislative consent that are of concern, you've identified two particular areas, of which one was in respect of the red meat levy. But the other, which is, in many ways, the most substantive of them, is the issue of the WTO rules, as they will apply, and the issue of consent there. Now, as I understand it from your statement, you've made it very clear that you think this is an area that does require legislative consent. The UK Government, I understand again, have said that, no, they disagree, but as I understand it, they've not given any reasons as to why they disagree with our analysis. 


No, not unless anything's happened in the last couple of days, but certainly that is absolutely the case. We think it's a devolved matter. They think it's a reserved matter. Again, officials are working to make sure that we are able to rectify this, because if we don't rectify it, then I will not be able to ask the Assembly to consent to this. So, they are very aware of that. So, we do need to work towards an agreement. The trouble is, with this area, it's a very grey area anyway, so it is about making sure that we do come to, as you say, a decision around it that's positive for us. Otherwise, I won't be able to recommend it.

So, as far as Welsh Government is concerned, this is a red line.

Now, as far as the Wales Act 2017 is concerned, international treaties and agreements are a reserved matter. In what way is the WTO agreement not a reserved matter?

This is one of those areas where you run into, in a sense, almost some of the conflicts. Yes, WTO is reserved—I don't think we're contesting that—but the way that is implemented is absolutely dependent on what we do in Wales to deliver agriculture support policies, which is fully devolved. So, you've got almost an inherent balance there to strike, and I think our concern is that through, potentially, constraints put in place on the grounds of meeting the WTO obligations, you very substantially constrain, or potentially could substantially constrain, our ability to exercise those devolved powers. So, I think what we're saying is the balance of that around the consent and the agreement around what those constraints might be that enable the UK overall to meet its WTO obligations, where the balance of that is and the degree to which we have a say in those constraints and can resolve disputes collectively rather than have a dispute resolution imposed on us by the UK Government, is really where the dispute is—about that balance between what is clearly a reserved power and what is clearly a devolved power, but actually it's only by combining the two that you get the answer in the WTO context.

If I could just add just one final question from me, then, before you move on in respect of that issue. So, it's a matter that for the Government is a red line—that is, the Welsh Government will not recommend legislative consent unless changes are made. That presumably means that you're confident that the UK Government will respect the Sewel arrangements, the Sewel agreement. At the moment, our own continuity legislation has actually passed into law. It hasn't been repealed yet, so it is the law of the land. If there were a red line that was drawn there, would the Welsh Government consider potentially its position with regard to the inter-parliamentary agreement?

Well, I am hopeful that we will reach an agreement. Certainly, in my discussions with the Secretary of State, he's very aware of the inter-governmental agreement and what that means. Tim explained it very eloquently, I thought; it is about getting better consent and better dispute regulations, I suppose, and certainly the governance around this is so important that I—. I think, in fairness, the Secretary of State and, I'm sure, his officials—I don't know who's been having discussions with officials; Peter—recognise this. So, I am very hopeful that we will get an agreement.

I will move on to make way in terms of time. Dai Lloyd.

Diolch, Gadeirydd. Yn adeiladu ychydig bach ar hynny, achos, wrth gwrs—ac nid ydw i'n mynd i olrhain y materion polisi a'r gwahaniaethau a mynd ar ôl yr holl ddadl am sut bleidleisiodd pawb ynglŷn â darpariaethau y Bil ymadael Ewrop—ond, wrth gwrs, mae amaethyddiaeth yng Nghymru yn wahanol i amaethyddiaeth yn Lloegr, ac yn debycach o lawer i amaethyddiaeth yn yr Alban ac amaethyddiaeth yng Ngogledd Iwerddon ynglŷn â sut mae defnydd tir ac ati. Ond, wrth gwrs, rydym ni'n derbyn lle rydym ni lle rydym ni, fel buasai rhywun yn dweud, a phwysigrwydd bod gwahanol lywodraethau yn gallu cytuno efo'i gilydd, neu o leiaf yn gallu parchu ei gilydd ac yn gallu diogelu eu meysydd priodol. Felly, o gofio hynny i gyd, pam ydych chi'n credu ei bod hi'n briodol i Senedd y Deyrnas Unedig graffu ar bwerau arfaethedig i Weinidogion Cymru, fel chi, mewn maes polisi pwysig fel amaethyddiaeth, sydd wedi'i ddatganoli am 20 mlynedd?

Thank you, Chair. Building a little bit on that—and I'm not going to pursue policy issues and the differences and the debate on how people voted about the provisions in the EU withdrawal Bill—but, of course, agriculture in Wales is different to agriculture in England, and it's far more similar to agriculture in Scotland and agriculture in Northern Ireland with regard to land use and so on. But, of course, we accept that we are where we are, as one might say, and the importance that different governments can agree with each other, or at least can respect each other and can safeguard their specific fields. So, remembering all of that, why do you think that it's appropriate for the United Kingdom Parliament to scrutinise the proposed powers for Welsh Ministers, such as yourself, in an important area of policy such as agriculture, which has been devolved for 20 years? 


Well, because we're taking these transitional powers in the UK Government Bill, obviously Parliament will scrutinise, but the Assembly will scrutinise as well. I've made it very clear that I will bring forward an LCM, and anything that I think needs to come before the Assembly, I will continue to do so. But I can't stress enough: these are transitional powers, and we will be bringing forward an agriculture Bill during this term. I hope to have it in place by 2020. But that has to be remembered at all times: we will be having our own Bill, and this is just transitional, and because there is just so much uncertainty at the moment, we believe this was the right thing to do. 

Ie, rydw i'n derbyn hynny i gyd, ond os ydych chi'n dweud bod rhywbeth dros dro, hynny yw, buaswn i'n disgwyl bod yna rhyw bwerau machlud—sunset clauses—yma, achos rydym ni'n craffu ar beth sydd lawr yn fan hyn ar ddu a gwyn. Ni allwn ni ddim dilyn beth rydych chi'n gobeithio sy'n mynd i ddigwydd rhywbryd yn y dyfodol. Rydw i'n derbyn beth rydych chi'n ei ddweud, ond ein bwriad ni, a beth rydym ni i fod i'w wneud fel pwyllgor, ydy craffu ar beth sydd o'n blaenau ni, mewn geiriau du a gwyn, felly. Ond mae eraill yn mynd i ofyn ynglŷn â'r sunset clauses, so nid ydw i'n mynd i lawr i fanna, ond ar hyn o bryd, mae'n rhaid i ni gymryd hyn fel ei fod o'n mynd i fod yna am byth, achos nid ydy'r pwerau machlud ddim yna. So, beth fuasech chi'n ei ddweud i'r rheini sy'n dadlau nad ydy'r Bil yma, fel sydd yn dod o'r Deyrnas Unedig nawr ynglŷn ag amaethyddiaeth, nad ydy o ddim yn parchu datganoli, a chraffu cyfyngedig yn unig sydd yn bosib ei gael pan rydych chi o dan broses LCM yn y lle yma, yn lle'r craffu gwirioneddol, manwl, dwys buasem ni'n ei gael petai o'n Fil ni'n hunain? Sut ydych chi'n ymateb i'r dadleuon yna?

Yes, I accept all of that, but if you say that something is transitional, then I would expect that there would be sunset clauses in place, because we're scrutinising what's here in black and white in front of us. We can't scrutinise something that you hope will happen in future. I accept what you say, but our intention here, and what we're meant to do as a committee, is to scrutinise what's in front of us in black and white. Others are going to ask about sunset clauses, so I won't pursue that, but, at present, we have to take it as something that's going to be here forever because those sunset clauses aren't there at present. So, what would you say to those who may argue that this Bill, as it comes from the United Kingdom in relation to agriculture, does not respect devolution, and that it's limited scrutiny that is possible when you follow the LCM process in this place, instead of that detailed scrutiny that we would have if it was our own Bill? How do you respond to those particular arguments? 

Well, if anything, I would say the Bill actually supports devolution, because that confirms that we will have the powers to pursue our own agricultural support, and I know you'll say—and this was my initial reaction—'Well, agriculture has been wholly devolved since 1999', but I don't think we can take that as a given. We were very concerned that the UK Government could be rowing back on devolution, for instance, but if you look at this Bill, it does support devolution by confirming that, and I made it very clear that that had to be in it. I've mentioned I will be bringing forward an LCM, which the Assembly will then be able to scrutinise. It will allow for proper debate on the legislative consent in the Assembly. If it's required, I'll bring forward a supplementary memorandum as well. Again, if there are outstanding issues, such as WTO, I will not recommend it for consent. 

Diolch am hynny. Ac yn bellach i hynny, yn naturiol efallai, rydym ni'n mynd i anghytuno ynglŷn ag os ydym ni wedi colli pwerau, nid yn unig efo'r Bil amaethyddiaeth yma, ond efo nifer o filiau eraill o dan y Bil ymadael, ond, eto, gwnaf adael hynny lle mae e ar hyn o bryd. Ond buasai rhai pobl yn dweud y buasai wedi bod yn well i aros nes bod y sefyllfa bolisi—. Rydych chi'n cydnabod ei bod yn aneglur; rydym ni i gyd yn cydnabod bod y sefyllfa bresennol yn aneglur. A fuasai wedi bod yn well, felly, i aros nes bod y sefyllfa'n glir ac wedyn gallu llunio Bil penodol i Gymru, wedi'i deilwra'n benodol i Gymru? Achos rydym ni'n sôn am gryn bethau niwlog yn digwydd ynglŷn â phwerau nawr. Nid ydw i eisiau ailadrodd y drafodaeth rydych chi newydd ei chael efo Mick ynglŷn â beth sydd yn cael ei gadw yn San Steffan a beth y gallwn ni ei wneud, ond mae'r sefyllfa yn aneglur. Oni fuasai wedi bod yn well canolbwyntio a dod â Bil amaethyddiaeth i Gymru ymlaen?

Thank you for that. And further to that, we are going to disagree, perhaps, in terms of whether we've lost powers, not only with this agriculture Bill, but with a number of other bills under the withdrawal Bill and Act, but, again, I'll leave that where it is for the moment. But some people would have said that it would have been better to wait until the policy position—. You acknowledge that it's unclear; we all acknowledge that the current situation is unclear. Would it not have been better, therefore, to wait until the situation was clear and then you could have produced a tailored Bill for Wales, specifically tailored for the needs of Wales? Because we're talking here about nebulous things happening in terms of powers. I don't want to rehearse the discussion that you've just had with Mick about what's reserved to Westminster and what isn't, but the situation is unclear. Would it not have been better to focus and to bring forward an agriculture Bill for Wales? 

Diolch. I think it's regrettable that we have so much uncertainty, and I said at the outset that this is not the way you would want to do it, but I think we have to be able to react quickly to whatever comes when we do eventually—if we do eventually—leave the EU in March. No policy decisions have been made. We will have a tailor-made Bill—I've been very clear about that—but I think it was really important that we took a neutral provision and that we have that flexibility. But we need to be able to pay farmers in 2020, and so, this Bill will allow us to do that.

I've only just been out to the start of the consultation process on 'Brexit and our land'. I mentioned that we'll be having more consultation in the spring, so by the time we are in a position to do our own tailor-made, bespoke Welsh agricultural policy, we will know a lot more about what we want. So, in general terms, these transitional powers that we're seeking from the UK agricultural Bill will allow for a wide range of possible payment schemes to be established, for instance. You'll be aware what we've been consulting on. We need to have that broadness, I think, and that flexibility in the scope. But, I've been very clear that no policy decisions have been made and I wouldn't want anybody listening, who has been contributing to the consultation, to think that that's the case. But, we need to be able to ensure that those farmers are on the land and that we're able to pay them.


Can I just reinforce that? We would have a legal gap without this Bill from 2020 to make any payment. So, we need new powers to be able even to continue the status quo in 2020. Obviously, we're looking to make further changes beyond that, but we need to take new legal powers even for 2020 to standstill. So, some sort of legislation of this sort is essential.

Ie, rwy'n derbyn hynny, ond byddech chi hefyd wedi clywed y Cadeirydd yn dweud ar y dechrau bod y Bil parhad—y continuity Bill—yn dal mewn lle, rŵan, ac mi allwch chi ddadlau bod y pwerau hynny eisoes gennym ni. Rydym ni’n mynd i anghytuno ar nifer o bethau'r prynhawn yma, rwy’n credu, ond nid materion polisi sydd gerbron fan hyn, ond materion technegol, deddfwriaethol. Felly, yn ogystal â hynny a phwysleisio’r pwysigrwydd bod Cymru’n wahanol i Loegr ac yn debycach i’r Alban a Gogledd Iwerddon, sydd wedi mynd i ffordd wahanol ynglŷn â thaliadau sengl ac ati, ac nid wyf yn mynd i lawr fanna, achos materion polisi ydy’r rheini, a allaf i jest ofyn: sut ydych chi’n gallu cyfiawnhau gofyn am bwerau yn y Bil am ddiben—for a purpose—pan nad ydych chi’n siŵr iawn beth yw’r diben hwnnw ar hyn o bryd, o fewn y Bil amaethyddiaeth yma?

Yes, I accept that, but you will have also heard the Chair state at the beginning that the continuity Bill is still in place, and you could argue that the powers are already in place and that we already have them. We're going to disagree on a number of things this afternoon, I believe, but we're not talking about policy issues here, we're talking about technical, legislative issues. So, in addition to that, and emphasising the importance that Wales is different to England and is more akin to Scotland and Northern Ireland, who have gone their own way in terms of single payments and so on, and they are policy issues, so I'm not going to pursue those, but could I just ask: how can you justify asking for powers in this Bill for a purpose when you're not entirely sure what those purposes will be within this agriculture Bill?

Well, I go back to what I've just said and Tim has just said. That's a big example of being—. We need to make sure that we've got the legal basis to pay our farmers in 2020. So, for instance, you will have heard me say that we're going to keep the basic payment scheme for 2018-19 and then post that, we were looking at policy decisions around payment. But, going back a step, we need to be more flexible about that—I think we've learnt that over the past few months. We believe that this was the best way of doing it. It's not a permanent arrangement; it's not forever—they're transitional powers ahead of us bringing forward our own Bill.

Ocê. Jest i symud ymlaen, rŵan, rydych chi wedi clywed eisoes—. Atodlen 3 o’r Bil, rydych chi wedi bod yn gweithio arni ac mae honno'n benodol i faterion Cymreig ac ati. Wrth edrych ar Atodlen 3, mae’n edrych yn eithaf tebyg i beth sydd yna gogyfer Lloegr. Rydw i'n edrych am eich ymateb i’r gosodiad yna nad yw Atodlen 3 rhyw lawer wahanol i beth sydd ar gael i Loegr. Oni fuasai wedi bod yn haws, felly, i gyflwyno Bil Cymru, gan eich bod chi wedi gweithio ar Atodlen 3 yn ei hanfod, a jest cyflwyno Bil ar wahân i Gymru gan eich bod wedi gwneud y gwaith ta beth, yn yr Atodlen yna?

Okay. Just moving on now, we've already talked about Schedule 3 of the Bill. You've been working on it, and that is specifically about Welsh issues and so on. In looking at Schedule 3, it appears quite similar to what it is proposed for England. How would you respond to that particular statement that Schedule 3 doesn't appear to be profoundly different to what is proposed for England? Would it not, therefore, have been easier to put forward a Welsh Bill as you'd been working on Schedule 3, and just introduce a separate Bill for Wales because you'd already done that work in Schedule 3?

I did consider introducing the Welsh Bill straight away, but I decided that the most proportionate approach was to use the UK agriculture Bill as an interim legislative vehicle. I've clarified several times that I'm absolutely going to bring forward a Welsh agricultural Bill, but I wanted to go out to consultation. I know that we don't want to touch on policy here, but I think it's an opportunity to be radical. I think we need to be radical, so therefore, I wanted to have a long consultation period. I've also stressed that it's only the beginning of the consultation period. I think, by the time we bring forward our Bill, if it is 2020 or 2019-20, we will be a lot clearer, one hopes, as to where we are, and we'll know more about trade deals, for instance. So, whilst, of course, we instructed Schedule 3, and that's been written completely on our instruction, I still think there is a lot more work to be done around bringing forward an agriculture Bill. I also mentioned the constraints on the legislative timetable. So, as I said, whilst of course we did consider it, I think on balance this was the right thing to do.


Wrth gwrs, yn y—. Sori, a ydych chi'n iawn?

Of course, in the—. Sorry, Chair.

Yn naturiol, yn y pwyllgor yma, rydym ni'n pryderu am y manylion craffu, achos rydym ni'n craffu gogyfer y Cynulliad i gyd, y Senedd i gyd, yn fan hyn, ac, wrth gwrs, o gael Bil Cymru annibynnol felly, buasai'r gwaith craffu yna yn llawer mwy manwl a statudol o'n hochr ni fel Cynulliad, fel deddfwrfa, felly, o'i gymharu â beth allai ddigwydd o dan amgylchiadau LCM. Dyna'r pwynt rydym ni'n trio ei wneud yn fan hyn. Yn nhermau'r holl bethau, ac rwy'n deall y ddadl o'ch ochr chi, ymhellach i hynny, a oedd yna unrhyw ddadl ynglŷn â diffyg adnoddau neu pwysau amser neu rywbeth, a'r angen i gyfieithu Bil sydd i'w osod yn y Cynulliad i'r Gymraeg ac ati, yn chwarae rôl yn unrhyw benderfyniadau yr ydych chi wedi'u cymryd mor belled? Achos, wrth gwrs, mae yna, buasai rhai bobl yn ei ddweud, cymhlethdodau—buaswn i'n ei ddweud pethau i'w croesawu—sydd yn digwydd pan ydych chi'n bathu deddfwriaeth gogyfer y lle hwn.

In this committee we're concerned about the scrutiny details. because we're scrutinising on the Senedd's and the Assembly's behalf, and, in having an independent Welsh Bill, that scrutiny work would be far more detailed in statutory terms from our point of view as an Assembly, as a legislature, as compared to what could happen under the LCM process. That's the point that we're trying to make here. In terms of all of these things, and I understand the argument from your point of view, further to that, was there any debate about a lack of resources or time pressures and the need to translate a Bill that is put before the Assembly into Welsh? Did that have a role in any decisions that you've taken thus far? Because, of course, some people might say that there are complexities—I would say that there are things to be welcomed—when you introduce legislation for this place.

I can absolutely confirm lack of resources was not an issue at all. It did not play a part, and certainly translation didn't either. I did mention the constraints of the legislative programme timetable. That was an issue, definitely, but, certainly, lack of resources, not just within my department but also within the Government around—you just mentioned translation, for example—was not an issue. Obviously, we've had difficulties with resources in the department, and, again, you will have heard me say in another committee that the Department for Environment, Agriculture and Rural Affairs have taken on 1,300 new officials. I've had 44 quite recently; I have got some more coming in. But I'm sure you will appreciate that Brexit is the absolute priority for the department. Officials are having to do this on top of the day job, but, as we're getting more and more into the detail of it, clearly it's the priority. So, no, resources didn't play a part in the decision.

If we could move on—. Or do you have any more questions?

I'd like to move to Suzy Davies, but can I just ask one thing by way of clarity? Do you actually have a timetable as to when you think your agricultural Bill will be brought forward? Do you have a—even if aspirational—view?

Okay, aspirational. Well, I've said it will be this Assembly term, so that's obviously before May 2021. Aspirational—I would like 2020.

Yes, okay. That's fine. I'll move to Suzy Davies now.

Thank you, Chair. Can I just take you back to something that Mr Render said and that you followed up on, Cabinet Secretary, about we need the current Bill in order to fill a lacuna, effectively, so that farmers can be paid, as much as anything? Can you explain why Schedule 3 doesn't restrict the powers you're seeking to specific actions of that nature? Because, the way I read it, you've actually extended the powers that you have, certainly compared to what they've got in England. That's correct, I think.

The powers in Schedule 3 are broader than the powers that England has taken, particularly to reflect some things that we do differently already, but also to reflect different priorities that we have, and that are reflected in the way we deliver, for instance, the rural development programme—more focus on supporting businesses and communities in rural areas, more focus on some of the production processing and so on. So, there are slightly wider powers than are being taken in England because those reflect things that we want to do in Wales and indeed already do do in Wales.

Can I just stop you there? The critical bit of that sentence is 'the things that we already do in Wales', because, if you want to do new and additional things, surely we should be waiting for the results of the consultation and a brand-new agriculture Bill. This is a tiding-over Bill, which the Minister—sorry, the Cabinet Secretary—has repeated a number of times. So, I'm just after the explanation, if you like, about why this Bill isn't more constrained than it appears at first sight, if it is only a transitional—. Schedule, I should say.


I don't think we can add to anything else. I don't think I can add to anything else that Tim has said.

Okay. Can I ask you, then, within Schedule 3, Part 1, paragraph 1, subsection 2—this is the one with the additional powers to support rural communities and so forth—don't you have those powers already outside this Bill? Do you actually need that piece of—? It's an open question; I'm not trying to trap you.

Not entirely. So, certainly, the Bill has some provisions relating to continuity, but similarly we feel that it is helpful to be able to spend money on different types of things than you can currently do under the common agricultural policy, on a time-limited basis, to get over a hump of what could be quite a difficult Brexit transition. So, we may be exposed to very different market forces in some Brexit scenarios very soon, before we are able to bring forward a proper, more focused Wales agriculture Bill, and in those situations we feel that it's important to have a duty to be able to respond. And so, for example, in the subparagraph you mentioned—(2)(c), for example—we might, for example, be able to give a more innovative form of support to the lamb sector, or the dairy sector, than we can currently do under the common agricultural policy.

But you don't have other sources of power outside this particular paragraph that you can rely on at the moment.

Other than a general kind of—I'm afraid I'm not a lawyer, but—a common law provision to spend money on things; nothing explicitly in the form of legislation.

I'm just curious about why you need legislation for those particular things.

The roll-over of European regulation, which would come through as a continuity Bill, would be much more constrained than that. So, in the circumstance that Peter's just explained, where you actually want to do something different because the circumstances are different, you would not have the powers to do that.

Okay. That's what I was trying to clarify—that there are no residual common law powers that you could have relied on, and therefore you didn't need this. Okay, that's great. Thanks.

Sunset clause time: well, obviously you've heard from the Chair what our concerns are about this. While we would accept that there is the lack of clarity that you've mentioned, it is still possible to limit these transitional powers by reference to a set of events or a single event—known or unknown at the moment. I'm just wondering why you haven't done that. So, rather than saying it finishes on a date, you'd say it finishes in the event of X, Y or Z happening. 

We did consider this very carefully, and I explained why we came to the decision that we did, and it was around the uncertainty and the fact that the transition period could move. As I say, we're given a different date—. Perhaps not every day, but certainly every week, we hear different dates. So, the provisions in the UK Bill are obviously not time limited, but I'd go back to what I was saying: it's completely transitional, not permanent, and obviously a Wales agriculture Bill will supersede the UK Government Bill. So, that was completely the reason why we did that.

I completely accept your intention as well, Cabinet Secretary, but Dai Lloyd is right: what's on the face of the Schedule isn't limited, and it would have been possible for you to say, 'These powers and duties will apply until we bring forward our own agricultural Bill', for example; it could have been as simple as that. So, you mentioned dates keep changing. I'm looking for a way out of this that doesn't rely on using a specific date.

Okay. It is something that we can amend, or we can still consider that. Officials are continuing to have discussions around it, and if—. I'm very happy to take further legal advice on it, but the legal advice I was given was that that was the most appropriate way forward at that time. But we could put an amendment forward.

Well, I'd be grateful if you could consider that, because you can see the concerns that we have around the table here. We don't like the idea that it's open-ended, because it doesn't actually reflect your policy, which is to make it a temporary arrangement. Perhaps I can just move on quickly now; you've answered the question about why the powers.

The actual agricultural transition period for Wales to be extended more than once—this is paragraph (5)(3) of the Schedule, Schedule 3. That is actually time limited at the moment to seven years. Bearing in mind that no policy decisions have been taken—you've mentioned that a couple of times—can you explain why you chose the seven years rather than a different time period?


Thank you. So, this is a similar power to England, as you say. The transition period is seven years. Those regulations are subject to an affirmative resolution, so this will come before the Assembly. I think transparency's a really key protection, so I think it's very obvious, and we would need a good reason for changing plans, but the powers are there in the Bill to extend that. But, as I say, it is an affirmative procedure, so I would be coming to the Assembly with this.  

Do you see that—? Sorry, I was just going to ask: do you see that—without committing yourself, do you see that being duplicated in any Welsh Bill?  

I think any Wales Bill would certainly need transition powers, because I don't think we would have completed the transition by the point that the Wales Bill comes forward under the timetable proposed by the Cabinet Secretary. The reason why the transition provisions mirror the English provisions is we felt that was the most neutral assumption to make. We didn't want to put in a different assumption whilst we were still consulting. We were instructing on this Bill during August before we'd received the bulk of the consultation responses, and we felt the most neutral assumption that didn't prejudge the consultation was to mirror the provisions in England. 

Okay, I accept that. So, when you decided that you'd like to have the powers to extend that transition period, if necessary, you haven't requested those on the basis that you're anticipating extending the transition period. Would that be fair?

Okay, so it's just a sort of 'just in case' measure. 

Again, those provisions mirror the English provisions. 

Yes. That's fine. So, we'll watch out when we get your Wales-only Bill to see if they look similar in that.

Do you think any additional protection is needed, or are you confident that you're not going to be using those extension powers? I'm just thinking worst-case scenario, but that would be the very worst-case scenario.  

That would be the very worst-case scenario. It's a long way in advance. 

Okay. You mentioned, of course, that that was an affirmative procedure piece of regulation, which, obviously, we're always pleased to hear about here. Bearing in mind that this isn't a made-in-Wales Bill, we, as you might expect, are very sceptical of anything that is a negative procedure regulation under these transitional arrangements. Can you explain why you think the modification of legislation covers the basic payment scheme—? Sorry, Chair, I completely forgot here: I should declare an interest—it is on the register—but I do have an interest in this. 

Okay. Why modification of legislation that affects the basic payment scheme, and changing EU regulations—financing, management, it's monitoring of the common agricultural policy; these are considered technical matters—and why you think the Assembly shouldn't at least cast an eye over these.

So, the modification around payments is considered technical because it would be limited to administration charges, which, obviously, we then—. You know, we want to simplify and improve the basic payment scheme. So, we don't want the powers to increase burdens, for instance. So, we looked very carefully at the Welsh Government guidelines around this, and, because they are technical, we decided it needed to be a negative procedure. 

Well, it won't be the first time that this committee has disagreed with the Welsh Government guidelines, as you can imagine. In fact, I just don't like this word 'technical' at all. We're going to come on to 'simplify and improve' in a second. I think our big concern here is that the powers are being given to Welsh Ministers via a UK Bill, which you're not particularly happy with either—I get that. But, in those circumstances, we as the Welsh Parliament should have maximum opportunity to scrutinise what you're going to be doing under these powers that are being given to you from a different legislature. In those circumstances, wouldn't you think it would be helpful to be relaxed about the way you're looking at the Welsh Government guidelines, and perhaps respond positively to what this Parliament would like to be able to do with these regulations? Now, there will be some where we're not going to be hugely interested in them either, and they'll be absolutely fine, but, actually, the decision should lie with us about what we would like to scrutinise, rather than what the Welsh Government thinks we should be able to scrutinise. I'm wondering if you'd be prepared to perhaps look again, on the basis of the report that comes out of this committee, at some of the regulatory procedures and see whether you'd be prepared to change your mind. 

Okay. Happy to look again, but I should say that I am committed to providing an adequate opportunity for scrutiny. When you look at this Bill, there will be lots of affirmative procedures in it, which I've just been told there are a large number, but there is the need to react very quickly. And the whole point of having these powers, these transitional temporary powers, is that we just don't know. So, you mentioned before the lamb sector. It could be that we need to react incredibly quickly when we know what the trade deals are for instance, whether it's a deal, whether it's no deal— 


Within seven days? Would you be needing to act that quickly?

That's useful. That's an open question; I'm not trying to catch you out. 

No, absolutely. Please read reports that we've made available from the ministerial stakeholder group. [Laughter.] There are a significant number of affirmative procedures, and I want to be as transparent as possible, and, of course, we need to make sure there is that opportunity for scrutiny. 

Okay. Any space for any superaffirmatives, bearing in mind that we're at quite some distance from the legislature that's making these decisions?

Again, we considered that, and, obviously, it's a very rare—. I'm trying to think if I've ever come across a superaffirmative in my time as Minister. 

Particularly with regulations that—. I'll get the first one out of this.

We certainly looked at it, but again—and I appreciate the difference in views on Welsh Government guidelines—we considered that affirmative was the right procedure, or negative in this case, sorry. [Laughter.]

Okay. This is my final one, I promise you. 'Simplify or improve'—now, I appreciate that this is probably Welsh Government draughtspeople trying to get around the inevitable question about who decides what's important or not. We've been through this with other legislation about: do we use the word 'appropriate', do we use the word 'necessary', do we use the words 'simplify' and 'improve' in this case? Why did you accept advice of 'simplify' and 'improve' being appropriate to legislation rather than 'necessary', because 'simplify' and 'improve'—that's an aspiration we would all share, but it's a highly subjective test, isn't it? 

So, we followed traditional definitions. It's the same as England. I mentioned that we want to try and reduce some of the burdensome aspects of the common agricultural policy, BPS requirements that are particularly not appropriate in a domestic context, but I did say we haven't made any policy decisions; we are going to be out to consultation in the spring. I'm assuming that you've seen the report that's come from the House of Lords—one of the committees in the House of Lords, the Delegated Powers and Regulatory Reform Committee. I have not had the opportunity to consider that in detail. I will need to do so. I think we definitely need to respond to that, so I will be considering that. 

Yes, because, from our point of view, 'simplify' and 'improve' might be consistent with legislation applying only to England, but we're a modern Parliament that uses modern language, so long as we know what it means and it's consistent and everybody understands it. Thank you, Chair.

I'd like to move on to Dawn Bowden in a moment. I just want to ask you about one bit, because I think we do have to ask you about the House of Lords. I know you say that you've not completely considered it, but just to get this clarification from you on the record, because it is part of our primary function. For the House of Lords committee, and I think everybody here probably agrees with it, this Bill represents a substantial transfer of powers direct to Government with almost no real capacity for scrutiny or checks and balances on it. It is a Henry Viii power in its absolute form, and the assurances you've given really are just that you will bring a Bill forward at some stage. Now, you can understand the serious concerns that we have as a committee. If we refer to the House of Lords committee, they make this point in a very, very robust way, a very, very critical way, and at the recent inter-parliamentary forum, they actually read out the key passages of it as a matter of considerable concern across all the parliaments of the UK. From the Government's point of view then, with those particular concerns, what are the checks and balances in place, or that you will put in place, with regard to the exercise of those powers that this Bill goes through?

So, I mentioned that I will have to consider that report in detail, and we will then be able to bring—. Sorry, we are looking at what checks and balances we will need. I'm not surprised that this committee agrees with the report, I absolutely understand those concerns, but I just want to say that we also looked at—. Suzy was asking about 'simplify' and 'improve', whether we should look at alternative terminology, such as 'necessary', for instance, but we don't want to be constrained. We've set very clear parameters around use of power to simplify and improve, and we do mean this in the sense of simplifying and improving experience for farmers and for delivery bodies.


But if I can just say, in respect of that, there aren't any parameters—that is the absolute problem to it, that there are no parameters whatsoever. 'Simplify' and 'improve' is a totally subjective assessment of it, and there's no legislative framework within that. That is not a criticism of Government, because you're in the position you're in by virtue of a particular process. But, in terms of how we report, with regard to this, what you're effectively saying is you'll be considering the issue of checks and balances, and so on, but, at the moment, you're not able to give us any assurances that there any checks and balances that would certainly satisfy us constitutionally.

This is not a legislative check and balance, but we have committed that we will not make any changes to farm payments before we have done further consultation, before we have done impact assessments, and you've put that on the record, Minister, on multiple occasions. That is a difference between Wales and England. England published a high-level Green Paper, and then an approximately four-page policy statement, and brought forward a Bill of enabling powers. Wales has published a slightly more detailed Green Paper, we intend to publish a detailed White Paper, we intend to publish impact assessments, before we bring forward a fuller and more focused Wales Bill.

Okay. I won't pursue that now, because I know there's probably not much more you can add that actually answers the key point that we will no doubt be considering later. Dawn Bowden.

Thank you, Chair. I just wanted to take you back, Cabinet Secretary, if I could, to your letter to the committee of 11 October, when you talked about the two outstanding issues around the World Trade Organization and the red meat levies. Can you update us on further discussions you've had with the UK Government around those areas?

I'll do the red meat levy first. I think this has just gone on for too long—the red meat levy issue. And I think the UK Agriculture Bill was absolutely the best opportunity we had of rectifying and clarifying this very unfair—in my view—situation. So, we'd had discussions at our quadrilateral ministerial meetings, I asked whether it could be on the face of the Bill, that was not agreed to, so I asked for a Government amendment. I understand now it's not even going to be a Government amendment, so I've written again—I hope the letter's there ready for me to sign when I go upstairs after—expressing my dissatisfaction. Because I do think, for Wales, this is a really important issue, and this is just an easy win for them, to be able to clarify the red meat levy. You know, it's £1 million per annum that I believe Wales is losing. So, I do hope it still will become part of the Bill.

So, if the UK Government don't bring forward an amendment around that area, are you considering bringing in your own amendment?

Yes. I've got opposition Members who would also be happy to bring forward an amendment. But I believe the best way forward now—having not got it on the face of the Bill, and I understand why it wasn't on the face of the Bill—would be a Government amendment. And I still believe that that's the right course of action, but there are other ways, obviously, of doing that. But we are really pushing hard at all levels; I had a phone conversation with Michael Gove quite recently.

WTO—I think I've probably covered most of that. I know Ministers—sorry, officials are still speaking very closely with their official colleagues in DEFRA, trying to get this rectified. Because, as I say, it is a red line, so I am hopeful that we'll be able to come to a decision on that that we're happy with.

As you say, you did cover that earlier on. So, I'll move on just to a couple of questions around possible amendments to the Bill. So, if the provisions for England are changed by amendments made to the Bill, will you be looking for equivalent corresponding amendments for Wales?

We would look at it on a case-by-case basis, individually. So, officials will be doing that, but nothing will be decided without me seeing. I've asked to see absolutely everything that comes through on amendments.

I know this is a bit hypothetical then, but in what circumstances would you perhaps not put a corresponding amendment in?

Well, as I say, it depends what comes forward. It's kind of a hypothetical question, if you like—it depends what comes forward. I'm trying to think of—to give you an example.

Well, if an amendment were to significantly curtail the flexibility of the Welsh Government to do something.

Yes, but nothing—I'm trying to think, nothing's coming through at the moment. But if there was something that we absolutely didn't agree with, or fettered our position, or—

So if something didn't reflect our decisions and what you were looking to do, you wouldn't accept that.

That's fair enough. And where amendments are made to the Bill in devolved areas, will you be looking at supplementary legislative consent motions for those?


No, no. For any. So, where any amendments to the Bill are brought in, will you be looking at supplementary LCMs for those amendments?

Fine. That's great. And my final point around amendments is whether the timeline for the Bill’s passage through Parliament, do you think, provides sufficient time for the Assembly to be asked for its consent in relation to it and its amendments? Are you satisfied that you’ve got the time to do that?

Yes, I do. I don’t think the Bill is being rushed through.

You stated earlier that you’ve not been through the House of Lords papers in detail. So, would you be able to answer any of my questions on the House of Lords papers today?

I haven't read it word for word myself, but, obviously, I've had a briefing.

Yes, okay. If you can’t answer, you know—.

The House of Lords Delegated Powers and Regulatory Reform Committee published its report on the Bill on 17 October, and your letter to us specifically highlighted its scrutiny role. The committee said that it is dismayed at the UK Government’s approach to delegated powers in the agricultural Bill. Have you considered that committee’s report and the matters raised within it, and how do you respond to the report’s conclusions?

So, I mentioned that I haven’t read the report in great detail. I will have to do that and consider it. Obviously, officials have, and I've received a briefing on it. I’m going to continue to consider the report. I think it is traditional for responses to be offered around a Bill when it does reach the Lords. So, I think we have got some time, and I think we need that time in order to be able to respond to the conclusions and the points that have been raised in the report.

I go back to how much uncertainty there is around Brexit and the need to have that flexibility, and those broad powers, and those wide powers.

I will be bringing forward an LCM in due course before the Assembly around the general enabling powers that are in this Bill. But, obviously, everyone will have the opportunity to scrutinise.

I think I should also say the situation for Wales is very different from England’s. I appreciate you’re not interested in England, but I think they are very different. We’ve explicitly said we want to have greater scrutiny in the future when we bring forward a Wales Bill. So, we want to be much more precise in our Bill. I think Peter said before that this is England’s one and only chance. We’ve got our own Bill, and I think we'll have the opportunity, following a very long consultation—. Peter mentioned the White Paper we'll be bringing forward in the spring, so we’ll be able to bring forward much more detail. I don’t think there’s much detail.

I know that one of the things the committee have said is that they don’t believe there’s much detail in the Bill. Again, Peter mentioned that we’ve had ‘Brexit and our land’, a very detailed, long—well, not long, but a very detailed paper. ‘Health and harmony’ was very short. And I think the fact that we’ve had 12,000 responses—. One of my aims was to beat DEFRA. Well, we’ve done that, and it shows how much more we’ve consulted, and we’ve had much more of a focus on that.

So, obviously, we will bring forward an LCM, that’s what I can say, after consideration, and we will be able to respond to that report before the Bill reaches the Lords.

Who did you go to for the consultation for those responses?

Yes. You know, for the 12,000 responses that you got.

Well, it was out to the public. So, that consultation closed last Tuesday after 16 weeks—so, a very long consultation—and we've had 12,000 responses.

Did you go to specific people, like farmers, and things around agriculture? Was it a wide umbrella?

Oh, absolutely. So, for instance, the National Farmers Union—I think we've had about 3,000 responses from NFU members.

Not broken down, but that wouldn't surprise me. 

Oh, okay. [Laughter.] We've had thousands from the Farmers Union of Wales. We've had a significant number of responses from environmental organisations. I received a letter, and in that letter was—[Interruption.] Sorry, in that letter, they talk about the significant number of consultations. Officials held open meetings right across Wales throughout September and October, where we've had literally hundreds of farmers attending our events. Both Peter and Tim were two of the officials who took part in those. So, I don't think we could have consulted any more widely. It was a 16.5 week consultation—the longest consultation I've ever had as a Minister, because I wanted to make sure—. I wanted to launch it just before the Royal Welsh, so that we had that conversation. Obviously, everybody's incredibly busy over the summer, so we had that long consultation period. 


Thanks for answering that one, because I get wary when people say that they consult the public and things like that, but a fantastic answer for that. Well done on that one. 

The Bill is a framework Bill and it provides very little detail. The DPRRC's report agrees, stating at this stage it cannot even be said that the devil is in the detail because the Bill contains so little detail. How would you respond to that?

I agree. I mentioned to you that I'd read that in the report and the fact that they brought forward a Bill just on their very short 'Health and Harmony' consultation, which was very few pages, and then just a policy statement. They just had that 'Health and Harmony' Green Paper; they didn't go to a White Paper. We will be going to a White Paper. So, I agree there isn't as much detail as perhaps they would want.

Okay, my final question for you. In light of the criticisms of that Bill outlined in the report, will you be asking the UK Government to make any amendments to the Welsh provisions of the Bill, and, if so, what amendments will you be seeking?

No decision has been taken, as I mentioned. I need to consider that report, and officials obviously more. 

Yes, just very quickly on this. I wonder if you can update us on the inter-ministerial discussions on the cross-UK frameworks? You did mention it very briefly earlier, but in particular the view that quite a lot of this can be managed non-legislatively, and whether you've got any views at the moment about what you think might need to be covered by legislation.

There's been an incredible amount of work done around frameworks. We always have a progress report at our quadrilateral meetings. We've got a quadrilateral meeting in a fortnight, I want to say. The next one's actually in Cardiff. You may be aware that, the day the Bill was published in the UK Parliament, there was a joint statement issued by us and the UK Government at my insistence to give an update on progress on developing frameworks. We're progressing at many levels, but a lot of the focus is on correcting legislation and, regrettably, contingency planning for a 'no deal'. So, we have to now obviously look at that much more carefully than we were. We are continuing discussions, but I aim to have them in place by the end of the implementation period. So, I'd be very happy to update committee, perhaps after the next quadrilateral meeting in a couple of weeks, when we'll probably have a further progress report. 

That would be very helpful, particularly on areas where legislation has been identified as being necessary, and particularly areas where perhaps the four Governments don't agree on where the legislation is necessary. 

I think that's probably going to be essential, because I'm not sure that we could complete the report that we want to do without that further input. We'd need to consider that, I think. Otherwise we end up with a massive gap in our report. 

Okay. I'm looking at Peter—I don't know when you'd think we'd be in a position to do so.

I think actually we have quite a bit of the answer already, because at the point the Bill was introduced, the update on frameworks that you pushed for and which you referenced, that stated that the two Governments—the Welsh Government, the UK Government—did not see the need for significant legislative frameworks in agricultural support. We felt that the vast majority of arrangements could be made through non-legislative vehicles. The only real exception is WTO, where legislation is proposed in this Bill, which we are still debating.

That is exactly something that we need to consider as well. That goes to the root of the issue of powers. I notice also that the Fisheries Bill was due to be laid 25 October, I think. So, you're going to be engaged within that as well. That's going to be coming. I suspect some very similar issues are going to be emerging from that at exactly the same time.

I'm guessing you've seen the joint statement, but I'd be very happy to send a copy of the joint statement and then give you an update in relation to WTO discussions.

Okay, so that's the only major bone of contention at the moment, as far as you know.

In relation to legislative frameworks.

Can you explain how differing views between the UK and Wales will be managed by the non-legislative inter-governmental working group and what is the basis upon which agreement will be reached that satisfies all parties?

There are a number of possible models and officials are having detailed and continued discussions about what would be appropriate. I mentioned I would want them in place by the end of the implementation period. So, for example, we could have memorandums of understanding—governance is obviously the big one here—as long as they were underpinned by robust governance and dispute resolution mechanisms. Those are the models that we are looking at.


No, it's also on inter-governmental stuff, but carry on.

My last question, and then they can have the floor. Does the Welsh Government have adequate resources to implement the changes that are being brought forward in the future, and will additional staff or additional financial resources be required?

I mentioned the concerns around resources and the fact that DEFRA had had 1,300 officials and I've only had 44. So, there will be another—I want to say 145. Yes? A hundred and forty five officials are coming into the department over the next few months. You can probably never have enough, can you, and I know officials are being asked to do a huge amount of work on top of their day jobs, but Brexit is absolutely a priority. It has to be. I think this is only the second time I've ever come before this committee in nearly nine years, so you can see the amount of legislation and regulations. We spent all summer looking at statutory instruments. I think we had 100 statutory instruments. 

Thank you. So, you can see resources are obviously an issue and this is why Tim has been very good and very successful at getting us some extra resources.

Pwynt bach ar y fframweithiau rhwng y pedair gwlad ac, wrth gwrs, y cytundeb rhynglywodraethol, a ddim jest rhwng San Steffan a Chymru, oherwydd, wrth gwrs, mae'r Alban a Gogledd Iwerddon yn rhan o hynny hefyd. Yn naturiol, yn dilyn o drafodaeth ynglŷn ag amaethyddiaeth, gan fod yr Alban a Gogledd Iwerddon yn dilyn llwybr gwahanol ynglŷn ag ymdrin ag amaethyddiaeth i'r dyfodol, tra bod Cymru a Lloegr i'w gweld yn troedio'r un un math o lwybr yn fras, sut ydych chi'n gweld fframweithiau dros y Deyrnas Unedig, felly, yn gweithio mas yn ymarferol, achos mae yna ddwy wlad yn gwneud pethau hollol wahanol i'r ddwy wlad arall?

Just a brief point on the frameworks between the four nations and the inter-governmental agreement, and not just between Westminster and Wales, because, of course, Scotland and Northern Ireland are part of that too. Naturally, following on from a discussion on agriculture, as Scotland and Northern Ireland are taking a different route as regards dealing with agriculture for the future, whilst Wales and England seem to be treading the same kind of route broadly speaking, how do you see UK-wide frameworks working out on a practical level, because we have two nations who are working very differently to the other two?

So, when you say 'working very differently' and that we're more like England, I'm guessing you're looking at policy now. 

So, obviously, at the moment, proposals coming forward are different, but who knows what the outcome is going to be. I think 'watch this space' is something I would say. But, we do have discussions on frameworks at a ministerial level. It's being done more at an official level at the moment. But, clearly, you've got four countries who could have very diverse agricultural policies or they could be very similar. So, it's about making sure that the frameworks are fit for purpose, I think.

I would just add, briefly, that simply because the different nations have a different policy for how to pay farmers it does not mean that they cannot come together and decide on how they would co-ordinate in a crisis, for example, or in relation to marketing standards. And even if there is diversification in the type of farm support, we do believe there are quite a few number of areas where we can co-ordinate, but outside of legislation, as the Minister said.

Ocê, a phwynt olaf yn fy nghwestiynau, ac yn fyr, wrth gwrs, rydym ni wedi bod yn sôn am ddarpariaethau'r Bil amaethyddol yma nawr ac, wrth gwrs, mae o wedi bod ychydig bach yn niwlog i rai ohonom ni yn fan hyn ynglŷn â pha bwerau sydd ym mha le—un ai yn fan hyn neu yn San Steffan. Wrth gwrs, nid yw'r sefyllfa, fel rydych chi'n dweud eich hun, yn glir, ac mae yna ddigon o bethau sydd braidd yn niwlog i'r dyfodol. Sut, felly, ydych chi'n gallu sicrhau bod pobl allan yn fan yna, sydd angen gwybod am y Bil yma hefyd, yn gwybod beth sy'n mynd ymlaen, ddim jest efo'r Bil ei hun, ond gan fod yna gymaint o'r ddeddfwriaeth ei hun mewn is-ddeddfwriaeth? Felly, sut ydych chi'n mynd i'w wneud o'n hygyrch i'r cyhoedd allan yn fan yna?

OK, and just on my final point and briefly, we have been talking about the provisions of the Agriculture Bill and it's been slightly ambiguous for some of us as to what powers sit where—either here or in Westminster. Of course, the situation, as you've said yourself, is not clear, and there are plenty of things that are ambiguous as regards the future. How, then, can you ensure that people out there, who need to know about this Bill, are also aware of what's happening not just with the Bill itself, but also with so much of the legislation being in subordinate legislation? How can you make that accessible to the public out there?

I know that the Counsel General's doing a piece of work around this, but I think you're right—it's very important that our stakeholders, farmers and everybody are very aware of what is being agreed on. It will all be published in the usual way. I think it's really important that we're transparent. But I know the Counsel General is doing a piece of work around this to make sure that the law is more easily accessible for everyone.

Can I just raise one additional bit? Just with regard to the work that the Welsh Affairs Committee in Westminster are doing, because they've been looking at the issue of the red meat levy and so on, are you engaged in any way with them or aware of the work that they're doing in this particular area?

I gave evidence to the Welsh Affairs Committee, with Tim, a few months ago now—probably six months ago. I'm trying to think—yes, about six months ago. So, they're very well aware of my concerns around the red meat levy, for instance. So, obviously, anything else that they need from us, we'd be very happy to give.


Okay. Well, we're spot on, and those were the last of the questions. Obviously, as you know, this is an area and this is a piece of legislation that causes considerable concern, I'm sure, to Government, but particularly to us in terms of our function. So, there may be matters that we want to raise, but certainly the reporting back on the next stage of discussions as soon as that comes would be extremely helpful to us, I think, in completing this, particularly as the whole issue of legislative consent has been red-lined in terms of certain areas, and the issue of WTO is something that really concerns us as well in terms of how that overlaps.

Can I thank you for coming to give evidence and for answering robustly all the questions in an area of considerable uncertainty? There will be a transcript, of course, and we will of course look forward to engaging with you probably further on this and further on the fisheries Bill and other relevant legislation. Thank you very much.

7. Gohebiaeth ynglyn ag Offerynnau Statudol Cyfansawdd ac Offerynnau Statudol ar y Cyd
7. Correspondence relating to Composite and Joint Statutory Instruments

Okay, we now move on to item 7 in the list—correspondence relating to composite and joint statutory instruments. We have the letter from Charles Walker MP, chair of the Procedure Committee of the House of Commons 2018. Are there any comments on that?

Hurrah, okay. It's a very positive response. We can discuss it further in private session as to how we take it, but I think it's one area that we'll want to perhaps refer onwards to Welsh Government, since it effectively takes on board the points that we've been making over the years. We're happy, then, to agree that we'll write in connection with that, and discuss it a bit further in private session, but we see it as a positive response.

Paper 24 is a letter from the chair to the Procedure Committee. That's just there to be noted. 

8. Papurau i’w nodi
8. Papers to note

We then move on to papers to note, which is the letter from the National Autistic Society, including a response to the evidence session that we had earlier, and I think that is again a letter to be noted, unless there's any further comment on it.

A letter to the Finance Committee from the Cabinet Secretary for Finance on bonds for capital investment. We note that—the letter from the Cabinet Secretary for Finance.

Item 8.3 is the House of Lords Secondary Legislation Scrutiny Committee report correspondence—delegated legislation under the European Union (Withdrawal) Act 2018. So, we just invite you to note that report and, in particular, the information provided by the Parliamentary Under Secretary of State for Exiting the European Union in relation to the number and timings of the remaining EU exit statutory instruments that UK Ministers are expecting to lay before Parliament.

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


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


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.

I now move on to the final item, then, which is a motion under 17.42 to resolve to meet in private. Is that moved?

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 16:03.

Motion agreed.

The public part of the meeting ended at 16:03.