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Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

26/11/2018

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd AM
Lee Waters AM
Mandy Jones AM
Mick Antoniw AM Cadeirydd y Pwyllgor
Committee Chair
Suzy Davies AM

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
Mike Lewis Dirprwy Glerc
Deputy Clerk
P Gareth Williams Clerc
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

Okay, this is a meeting of the Constitutional and Legislative Affairs Committee. Item 1, any apologies? We have apologies from Dawn Bowden. In terms of housekeeping rules, the same rules apply as usual. And the only other matter under item 1 is whether there are any declarations of interest. Any declarations of interest? If not, then we move on.

2. Offerynnau nad ydynt yn nodi unrhyw bwyntiau i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 neu 21.3
2. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

We move on to item 2: instruments that raise no reporting issues under Standing Order 21.2 or 21.3, negative resolution instruments. We're on to the Civil Enforcement of Bus Lane and Moving Traffic Contraventions (County of Carmarthenshire) Designation Order 2018. This is an Order that designates the county of Carmarthenshire as a civil enforcement area for bus lane and moving traffic contraventions for the purpose of Part 6 of the Traffic Management Act 2004. Are there any comments or observations? 

Could I just ask? Does that mean that all counties and county boroughs have to have similar regulations? 

I think so, in order to achieve them. I think it's only for Carmarthenshire that this is specific to, though. 

All right, okay. It's just I hadn't noticed a stream of them coming through, that was all. 

3. Offerynnau sy’n nodi pwyntiau i gyflwyno adroddiad i’r Cynulliad arnynt 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

Item 3: instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3, negative resolution instruments. On the Government of Wales Act 2006 (Budget Motions and Designated Bodies) Order 2018, you have before you a report, a copy of the Order and the explanatory memorandum. This Order designates, in relation to the Welsh Ministers, the bodies listed in the Schedule to the Order for the purpose of including within the budget motion the resources expected to be used by those bodies. The explanatory memorandum to the Order confirms that 

'Inclusion of the resources of the designated bodies within the Budget Motion will minimise alignment discrepancies between the Budget, Budget Motion and consolidated accounts, but will have no effect on the resource limits of those bodies.'

And the lawyers have identified a merit point.

Yes. In making this Order, the Welsh Ministers had the choice of whether to follow the affirmative resolution procedure or the negative resolution procedure, and the negative resolution procedure was chosen, which seems appropriate in the context of what this Order is doing. 

Okay. Any comments? If not, we move on to the next item, which is the composite affirmative resolution instruments. On the Humane Trapping Standards Regulations 2019, there is before you again a report, regulations and an explanatory memorandum. These are regulations that amend the Wildlife and Countryside Act 1981 in order to implement requirements contained in the agreement on international humane trapping standards concluded between the European Community, the Government of Canada and the Government of the Russian Federation. These regulations implement equivalent standards contained in a bilateral agreed minute between the European Community and the United States of America.

As I understand it, this goes back to 2016 and the regulations are compatible, identical with Scotland and England. But I understand there's a point that you've identified. 

Yes, two points. One technical point: these regulations were made in English only, and because they're laid before the UK Parliament and the Assembly, that has become practice. The committee wrote to the First Minister very recently on this point, and the Government's response, received a couple of hours ago, just confirms that the First Minister will write to the committee in due course on that issue.  

Okay, and there's a note, which is before you all, just to be noted. So, we move on—

Sorry. And there's one merit point as well. The EU has entered into this international agreement around humane trapping standards. The agreement was supposed to have been implemented by July 2016, but it is only now being implemented in Wales.   

So, we're implementing it just as we're about to leave. There we are. 

4. Offerynnau nad ydynt yn nodi unrhyw bwyntiau i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 neu 21.3 ond y mae goblygiadau iddynt o ganlyniad i ymadawiad y DU â’r UE
4. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3 but have implications as a result of the UK exiting the EU

Item 4: instruments that raise no reporting issues under Standing Order 21.2 or 21.3, but have implications as a result of the UK exiting the EU. This is in common with a number of items we've previously considered with regard to retained law, frozen law, et cetera. 

The Zootechnical Standards (Wales) Regulations 2018. These are regulations that supplement, and make provision for, the enforcement of Regulation (EU) 2016/1012 of the European Parliament and of the European Council on zootechnical and genealogical conditions for the breeding, trade in and entry into the union of purebred breeding animals, hybrid breeding pigs, and the germinal products thereof. Several issues have been identified.

14:35

Yes. Only to note that this area of law is regulated at the EU level, and these regulations form an example of what will be retained EU law on exit. 

Any comments on that? If not, we move on to the next item, 4.2, the Plant Health etc. (Fees) (Wales) Regulations 2018. These are regulations which specify fees payable to Welsh Ministers in relation to plant health services and the certification of seed potatoes, fruit plants and fruit plant propagating materials, revoking and replacing the Plant Health Fees (Wales) Regulations 2014, which we are all familiar with. Any comments? 

5. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C
5. Written statements under Standing Order 30C

In which case, we move on to the next item, written statements under Standing Order 30C relating to EU exit. And the first one is the Control of Mercury (Amendment) (EU Exit) Regulations 2018, and you have before you the statement and the commentary. This statement was laid before the Assembly on 12 November, following the laying of the regulations in the UK Parliament on 8 November. I think the statement confirms that there's no divergence from current policy, in accordance with the process we agreed last time. Any comments? No. Noted. 

I move on to item 5.2, the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2018, and again, a statement and commentary. A statement was laid before the Assembly on 12 November, following the laying of the regulations in the UK Parliament on 8 November. Any comments on those? 

No. Okay. Item 5.3, the INSPIRE (Amendment) (EU Exit) Regulations 2018. Again, a statement and commentary. These are rules that concern spatial data infrastructures operated by public authorities. The statement was again laid before the Assembly on 12 November, following the laying of regulations in the UK Parliament on 8 November. Any comments on that? 

Just a point of information really. There's a part in the excellent interpretation by lawyers here of what is going on as regards these regulations. Could you just broaden out to me why we're doing something different to what applies to Scotland here? It's halfway down—

I understand that there's a completely different framework and regime around the spatial information databases for Scotland, but there is a single framework for England, Wales and Northern Ireland, which has been operated at a UK level, and that is continuing after exit as these regulations stand. It will be continued at a UK level, outside of Scotland of course. 

No. Okay. I put you on the spot there. 

The Provision of Services (Amendment etc.) (EU Exit) Regulations 2018. There's a statement and a commentary. And, again, the statement was laid before the Assembly on 12 November, and before the UK Parliament on 12 November. The statements and the supporting documents are interesting. Page 63:

'The approach taken by these Regulations is designed to ensure that the UK regulates EEA Member State businesses in the same way that it would regulate other third country service providers. The removal of certain protections for EEA service providers will enable the UK to meet commitments under World Trade Organisation...rules; specifically, the WTO’s "most favoured nation" principle, which prevents countries from discriminating between their trading partners outside of trade agreements.'

Apart from that, there aren't any significant issues that arise under that. Okay. No comments on that. 

We then move on to the next item, which is the Environment, Food and Rural Affairs (Environmental Impact Assessment) (Amendment) (EU Exit) Regulations 2018. Again, a statement and a commentary. The statement was laid before the Assembly on 15 November. It was laid in the UK Parliament on 14 November. Any comments on that? 

If not, we move on to item 5.6, the Aquatic Animal Health and Alien Species in Aquaculture (England and Wales) (Amendment) (EU Exit) Regulations 2018. There's a statement and a commentary. The effect of these regulations is to remove the powers of EU officials to inspect UK premises once we have left the EU, if that's what happens, and this statement was laid before the Assembly on 16 November following the laying of the regulations in the UK Parliament on 13 November. Any comments?

14:40

Item 5.7 is the Livestock (Records, Identification and Movement) (Amendment) (EU Exit) Regulations 2018. Again, the statement was laid on 16 November in the Assembly, and laid in the UK Parliament on 14 November. So, all these are being dealt with very, very quickly. Any commentary?

Item 5.8 is the Animal Welfare (Amendment) (EU Exit) Regulations 2018. Again, there's a statement and commentary. The statement was laid before the Assembly on 16 November, following the laying of regulations in the UK Parliament on 13 November. It's worth drawing your attention to the commentary, which highlights that the explanatory memorandum prepared by the UK Government confirms that the regulations do in fact make a policy change in respect of the recognition of certificates of competence for slaughterers. The reason this is drawn to your attention is in the context of paragraph 8 of the inter-governmental agreement established between the Welsh and UK Governments, which states that powers in the EU (Withdrawal) Act 2018, under which these regulations are made,

'will not be used to enact new policy in devolved areas'.

This is covered, I think, on page 79 of the pack, which basically says that the

'instrument makes mainly technical amendments…it does not change the substantive policy with the exception of the proposal to no longer recognise EU27 certificates of competence for slaughterers',

and the continuation of

'recognition of certificates issued in other Member States would open up potential enforcement issues'.

So, basically, certificates issued abroad will not be recognised here and vice versa. Is that the correct situation?

So, there is a policy change there. It may be a relatively minor policy change, but nevertheless there is one there and it's one that we ought to—part of our responsibility is to identify these. My suggestion is that we just write to Government on it, saying we have identified that and asking why it is being pursued in this particular way. As much as anything, although it's not a major issue, this particular one, the fact that it nevertheless is a policy change and that we've identified it, I think, is important in terms of starting as we mean to carry on. So, are you happy for me to do that?

Yes, because the way we go through these, it's just meant to be minor, so-called technical alterations. This, if it's a policy change, I think does deserve a letter, yes.

It is a little more substantial. It's not a root-and-branch policy change, but there is an element to it, and it's as well that we identify these very promptly, early on. And, of course, there will undoubtedly be other issues that will arise in due course.

Was there anything that you wanted to add to that? No. So, we'll do that.

So, we move on to 5.9, the Aquatic Animal Health and Alien Species in Aquaculture (Amendment) (EU Exit) Regulations 2018. Again, there's a statement and a commentary. The statement was laid before the Assembly on 19 November. It was laid in the UK Parliament on 13 November. Standing Order 33 requires Welsh Government to lay a written statement giving notification of any relevant statutory instrument normally within three working days of it being laid in the UK Parliament. Members will see that this written statement was laid on the fifth working day following the laying of the regulations in Westminster. So, this is something that we ought to at least be identifying. Do you have any comments on that, Gareth? Any comments? No.

Okay. Item 5.10 is Pipe-lines, Petroleum, Electricity Works and Oil Stocking (Miscellaneous Amendments) (EU Exit) Regulations 2018. Again, there's a statement and a commentary. And, again, the statement was laid before the Assembly on 20 November following the laying of the regulations in the UK Parliament on 15 November. Any comments?

We move on to item 5.11, the Nagoya Protocol (Compliance) (EU Exit) Regulations 2018. The aim of this statutory instrument is to retain the status quo, to provide certainty for the research and development institutions on carrying out their activities that relate to access and benefit-sharing of genetic resources. Is that a fair summary? Anything to add to it? Any comments? 

Okay, moving on to item 5.12: the Genetically Modified Organisms (Amendment) (EU Exit) Regulations 2018. There's a statement and a commentary. The statement was laid before the Assembly on 20 November, following the laying of the regulations in the UK Parliament on 15 November. Any comments on that?

14:45
6. Papurau i’w nodi
6. Papers to note

In that case, we move on to item 6: papers to note. We have the letter from the Cabinet Secretary for Finance seeking devolution of competence for a vacant land tax. As you'll know, in terms of specific Welsh tax powers under the 2014 Act, there is a process that has to be undergone. So, that letter I think is just informing us that that process has begun, with a view to the power to introduce a vacant land tax. Any comments?

Paper 34 then, letter from the Cabinet Secretary—sorry, we've done that one. It's 6.2: letter from the Cabinet Secretary for Energy, Planning and Rural Affairs, which relates to the Climate Change, Rural Affairs and Environment Committee, which provides an update on the UK agriculture and fisheries Bills. This is a letter from the Chairman of that committee, Mike Hedges, and then a letter from the Cabinet Secretary per se. Any commentary on those?

7. Cynnig o dan Reol Sefydlog 17.42(ix) i benderfynu gwahardd y cyhoedd o’r cyfarfod
7. Motion under Standing Order 17.42(ix) 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(ix).

Motion:

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

Cynigiwyd y cynnig.

Motion moved.

We move on, then, to item 7. So, in accordance with Standing Order 17.42, I invite the committee to resolve to exclude the public from the remainder of the meeting. Do the Members agree? Okay, we'll move into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:46.

Motion agreed.

The public part of the meeting ended at 14:46.

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