Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol
Constitutional and Legislative Affairs Committee10/12/2018
Aelodau'r Pwyllgor a oedd yn bresennol
Committee Members in Attendance
|Dai Lloyd AM|
|Dawn Bowden AM|
|Lee Waters AM|
|Mandy Jones AM|
|Mick Antoniw AM||Cadeirydd y Pwyllgor|
|Suzy Davies AM|
Y rhai eraill a oedd yn bresennol
Others in Attendance
|Claire Fife||Cynghorwr Polisi i'r Cwnsler Cyffredinol, Llywodraeth Cymru|
|Policy Adviser to the Counsel General, Welsh Government|
|Dr James George||Cwnsler Deddfwriaethol, Llywodraeth Cymru|
|Legislative Counsel , Welsh Government|
|Dylan Hughes||Prif Gwnsler Deddfwriaethol, Llywodraeth Cymru|
|First Legislative Counsel, Welsh Government|
|Jeremy Miles AM||Y Cwnsler Cyffredinol|
|The Counsel General|
Swyddogion y Senedd a oedd yn bresennol
Senedd Officials in Attendance
|Gareth Howells||Cynghorydd Cyfreithiol|
|Katie Wyatt||Cynghorydd Cyfreithiol|
|P Gareth Williams||Clerc|
|Ruth Hatton||Dirprwy Glerc|
|Sarah Sargent||Ail Glerc|
|Stephen Davies||Cynghorydd Cyfreithiol|
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.
Welcome to the Constitutional and Legislative Affairs Committee. With item 1, under said terms, there are no apologies today. Are there any declarations of interest? The usual housekeeping rules apply.
So, I'll move straight on, then, to item 2: the Legislation (Wales) Bill, and I welcome the Counsel General, Jeremy Miles, to this session scrutinising the Bill. Would you like to introduce your officials?
Yes. I've got Claire Fife, who's my policy adviser and the Bill manager. I have Dylan Hughes, who's the First Legislative Counsel and director of the Office of Legislative Counsel, and James George from that office, who was one of the drafters who has worked on the Bill.
Well, thank you to everyone for attending. I'd like to open with a couple of general questions, but this is a very technical piece of legislation. So, for many people, the understanding, the concept of what this legislation is about won't be well known. Would you like to make any opening comments about the Bill and set the scene for it?
Yes, Chair. Thank you for the opportunity to do that. I think members of the committee will have seen from the various statements that I have made—on the consultation and in the Chamber—what the objective is of the Bill. We face a significant challenge in all parts of the UK in relation to the accessibility of the law because of the proliferation of statutes and statutory instruments. We have a particular challenge here in Wales because of the complexity of our devolution settlement. And the principal objective of this Bill is to start to bring order to the Welsh statute book by increasing its accessibility, both to professionals, to advisers and to the individual in the street—that people can better understand their rights and responsibilities and where they can find them in law. And I'll take this opportunity, if I may, to thank those who have contributed to the work of the Law Commission that is the foundation, really, the underpinning of the Bill and the work of the Government in consulting on it to date.
Okay. Well, thank you very much for that, and I'll just kick off then, straight away, just about the Bill. Obviously, it has implications for the legislative processes in England and Wales within the UK. I was just wondering what discussions you may have had with UK Government, with law officers from other jurisdictions about the implications of this legislation.
Yes. I have had discussions, and my officials have had discussions with the UK Government and the devolved administrations. Clearly, there are interpretation Acts already in place across the UK, but also in Scotland and Northern Ireland, and we've had discussions with Parliamentary Counsel in those jurisdictions in relation to the Bill.
I've also had discussions with the Wales Office, of course, in the usual course of events, discussing competence. I'm satisfied, as is the Presiding Officer, that the Bill is within legislative competence. There has been an exchange of correspondence, as you will be aware—I think you've received copies of that—between the Wales Office and the First Minister in relation to discussions that have been taking place on the question of accessibility and competence generally. I'm happy to answer questions on that, if you think that would be helpful, but I'm satisfied that we're within competence.
There will be questions, but in terms of—generally, on the broad competence issue, because, obviously, this has implications in respect of UK Government legislation pre-devolution and so on, are there any competence issues that you have concerns about, or that you would want to identify at this stage?
No. The principal objective of the Bill is to improve accessibility. It also, obviously, includes provisions around interpretation and some technical provisions around form and procedure. None of those issues are reserved. My clear view is that the purpose of the Bill is improving legislation in general rather than any particular subject matter that the Bill might attach to in future legislation.
Okay. Well, thank you for that. I'll move on, then, to questions. Suzy Davies.
Thank you, Chair. Hello, Counsel General. I suppose my first question is: why now? We're in a position where we've been told we haven't got time to make an agriculture Bill, and we've got a slew of secondary legislation coming down from the UK Government at the moment that is pretty tricky to scrutinise anyway. Why have you decided to do this now?
Well, this has been under consideration for some time, as you will know. The Law Commission's report on this came in a few days before the EU referendum, which has caused, obviously, a significant amount of work in the interim period. I mean, the question, I suppose, is what the relationship is between the activity around Brexit and the UK preparations for that, and the activity here. The truth of the matter is that the process of leaving the European Union is going to make the law actually even more complex and less clear than it is at the moment. To my mind, it heightens the need, really, to have a provision in place that moves us towards greater accessibility, partly in response to that, but more generally as well.
Yes. I don't think we dispute that this is, in essence, a really good idea, it's the timing of it, because with, as you say, all this stuff coming down in terms of Brexit preparation, even if you bring this in very swiftly, we're still going to be in a position where we have loads of, particularly secondary, legislation coming through with nowhere to put it. It's not going to be clear where it goes at the moment, even under a codified system. Wouldn't it be just more sensible to hang on a couple of—we're only talking two years, maybe, fingers crossed, until you've got a much better idea what our corpus of law looks like and then start codifying it?
Well, we already know that it's very complex; we don't need Brexit to tell us that. That intensifies the problem, but this is a problem that has been recognised for a very long time, and I suppose my perspective on it is that the sooner we get the process under way of making law more accessible and consolidating and codifying it, the better. We know from experience that the longer you leave it, the more of a challenge it becomes. And I think we've done some consolidation to date, as have all parts of the UK, on a piecemeal basis, an opportunistic basis—if I can describe it in that way. The point of the Bill is to make that a programmatic, coherent, proactive part of the Government and the Assembly's business rather than to deal with it in a more ad hoc way. And I'll just repeat the point: I think that the complexity that comes from the process of leaving the European Union makes it even more necessary rather than less.
Okay. I don't dispute your answer, but I'm still trying to get from you whether you'd consider it's worth parking this Bill in order to create space for legislation that we should be making as a primary legislature rather than relying on the UK to make those laws for us. I'm thinking of the Agriculture Bill, in particular, but that's only the first of many. Have you had those conversations, or have you been asked?
Certainly, some of those Bills on a UK-wide basis reflect the fact that there needs to be a coherent approach across the UK. But also, the UK Government has responded to requests by the Welsh Government to include powers in, for example, the Agriculture Bill in order for us to continue making payments and transitioning schemes and keeping that process under way.
If the principle underlining the question is wouldn't the resources be better deployed in making Welsh law rather than asking the UK Government to make law on our behalf, I think that, perhaps, underestimates the scale of what's required to come out of the European Union and the work that Brexit is generating. And the resources committed to one Bill here aren't really of the same order as the resources required to have a different approach to Brexit generally. I'm involved in looking at the statutory instruments programme, for example, and it's a very significant programme; it's cutting across, obviously, the sorts of things that most of us got elected to deliver. But I think that, again, to my mind, just emphasises the fact that now is the time to press forward with this.
In terms of when the accessibility duties kick in, as it were, you will know from the Bill that the first formal programme under the Bill when it becomes, as we hope, an Act, will be in the next Assembly term. And, obviously, we will be looking at that point—or the Government of the day will look, at that point, at what the state of the law is and what are the areas that most need consolidating. And I dare say that they will have in mind, at that point, the impact that Brexit's had to date.
Okay. I just tend to think every little might help on this one, particularly as we have all that secondary legislation, as you said.
I'll move on. Obviously, on the face of the Bill, there's a duty to review, and then to bring in programmes and then to report on the progress against those programmes. That's not quite the same as a review to evaluate the effectiveness of the Act itself when it becomes law. Are you considering how you might deal with an evaluation process? You want to know about outcomes rather than just inputs and outputs.
No, of course. Absolutely. The fundamental point of this Bill, I think, as you say, is to achieve change, isn't it, really? So, I think the Bill has, on the face of it, a duty to review, to keep under review the accessibility of the law on the Counsel General. And, actually, one of the components of that is whether this legislation is operating effectively to move us in that direction. So, I feel that the review provision on the face of the Bill is an ongoing and a much broader, much more encompassing provision, really. I would expect that to include a review at some future point of whether the operation of the Act is as we hope it will be.
There's also the opportunity for there to be scrutiny of progress against the objectives that the Government sets itself in the fact that the Counsel General will report periodically to the Assembly on progress against the programmes that the Government of the day sets out. So, I think that presents an opportunity to review the functioning of the legislation and the programmes as well at that point in time.
Okay. Well, that's reassuring. How open are you to Assembly Members helping you design the programme for review—not the programme itself, but the review of it? Because, of course, if Government is answering its own questions, that leaves Assembly Members out of the loop a little bit in putting forward questions that they would want answered. Can we help design the review?
I would be very happy to respond to a process of review led by this committee or the Assembly generally, yes, of course.
Okay, that's great. Thank you. Thank you, Chair.
The legislation creates a very significant step forward in terms of the role of the law officer, of Counsel General, within the functioning of the Assembly. How important do you see that, because it does create a very specific responsibility in terms of the future direction of the legislation and the whole issue of the way in which legislation is accessible? I mean, that's quite an important step forward, isn't it, from the legislation?
Yes. I think that the role of the duty being placed on the Counsel General to keep the law under review and to report on that is, obviously, at the heart of what's envisaged here, and I think that is the locus for accountability, really. To come to the Assembly, report on progress, and to be accountable to that, I think, is fundamental to what the Bill envisages.
Okay. That'll be something I'll follow, perhaps, towards the end of the questions, just about the resource side to this. We'll go on to Dai Lloyd.
Diolch, Gadeirydd. Rydym ni lawr i'r manylion technegol nawr—technegol ond pwysig. Os gwnaed asesiadau effaith mewn perthynas efo'r Bil, pam nad ydyn nhw wedi cael eu cyhoeddi ar dudalennau gwe Llywodraeth Cymru?
Thank you, Chair. We're down to the technical details now—technical but still important. If impact assessments have been carried out in relation to the Bill, why aren't they published on the Welsh Government's web pages?
Mae gyda fi gynllun i adnewyddu gwefan Cyfraith Cymru fel rhan o'r cynllun cyffredinol a fy mwriad i oedd dodi'r asesiadau ar y wefan honno. Nid oes dim gwaith polisi, fel y cyfryw, gyda'r Cwnsler Cyffredinol yn draddodiadol, felly nid oes lleoliad cyfleus ar y wefan. Fy mwriad i oedd eu cyhoeddi nhw ar hynny, ond rydw i'n hapus, wrth gwrs, i'w rhannu nhw cyn hynny.
I do have a plan to refresh the Law Wales website as part of the general plan and my intention was to put the assessments on that website. There is no policy work as such, traditionally, for the Counsel General, so there is no convenient spot on the website. So, my intention was to publish them there, but I'm happy, of course, to share them before that point.
Grêt, diolch yn fawr. Nawr, ym mharagraff 226 o'r memorandwm esboniadol, mae'n datgan nad yw'r Bil yn debygol o gael unrhyw effaith ar y system gyfiawnder. Nawr, wrth gwrs, cawsom ni'r drafodaeth hyn yn ystod y datganiad yr wythnos diwethaf ynglŷn â chynnwys dehongli a'r her i ddehongli cyfraith ddwyieithog yng Nghymru, achos, fel gwnes i grybwyll, nid oes unrhyw un iaith yn union gyfieithiad o unrhyw iaith arall—mae yna fater o ddehongli. Wedyn, wrth gwrs, mae yna fater o ddehongli yn y Bil yma, felly mae o'n debygol o gael rhyw effaith ar y system gyfiawnder, ydych chi'n meddwl, ynteu nag yw e?
Great, thank you very much. Now, in paragraph 226 of the explanatory memorandum, it states that the Bill is likely to have no impact on the justice system. Now, of course, we had this discussion during the statement last week with regard to the interpretation and the challenge to interpret bilingual legislation in Wales, because, as I mentioned, one language is not an exact translation of another language—there's an issue of interpretation. And so there is, of course, an issue of interpretation in this Bill. So, it is likely to have some impact on the justice system, don't you think?
Wel, mae Deddfau dehongli'n bodoli eisoes, wrth gwrs, ac maen nhw'n cael eu gweithredu pan fydd y galw'n codi yn y llysoedd yn y ffordd arferol. Yr hyn sydd mewn golwg yn y Bil hyn yw bod Deddf dehongli wahanol. Felly, pan fydd cwestiwn yn codi o ddehongli, beth fydd yn digwydd ar lawr gwlad yw bod barnwyr yn edrych ar un Ddeddf yn hytrach na Deddf arall. Felly, yn yr ystyr hynny, nid ydw i'n gweld bod impact ar y system gyfiawnder yn gyffredinol.
Well, interpretation Acts already exist, of course, and they are used in the courts as required in the usual manner. What this Bill has in mind is that there should be a different interpretation Act. So, when a question arises in terms of interpretation, what would happen on the ground is that judges would look at one Act rather than another. So, in that sense, I don't really see that there would be an impact on the justice system more generally.
So, ydych chi'n rhagweld gorfod datblygu darpariaeth benodol ynglŷn ag unrhyw Ddeddf dehongli newydd, neu unrhyw addasiad o beth bynnag sydd wedi bod yn digwydd ers 1978?
So, do you foresee having to develop specific provision with regard to any new interpretation Act or adaptation of whatever has been happening since 1978?
Pan ydych chi'n sôn am ddarpariaeth arbennig, beth sydd gyda chi mewn golwg?
When you talk about special provision, what do you have in mind?
Yn y Bil yma, i fynd i'r afael ag unrhyw heriau dehongli newydd fydd yn codi yn y blynyddoedd nesaf.
Well, in this Bill, to get to grips with any challenges in terms of interpretation that will arise in the coming years.
Wel, un o'r cwestiynau rydw i'n edrych arno ar hyn o bryd, fel gwnes i sôn yn y Siambr yn ystod y datganiad, yw'r cwestiwn o ddehongli mewn dwy iaith. Mae gyda ni eisoes, yn y setliad cyfansoddiadol, egwyddor statudol sy'n sicrhau bod y Gymraeg a'r Saesneg yn gyfartal o ran awdurdod o fewn y system, ac rydw i'n edrych ar sut y gallwn ni, neu a ddylem ni, sicrhau bod yr egwyddor honno'n cael ei chynnwys yn y Bil hwn hefyd. Mae'r cwestiwn o sut mae'r ddwy iaith yn cael eu trin o fewn deddfwriaeth a dehongli yn rhywbeth mae'r Llywodraeth yn fewnol yn gyfarwydd iawn â hi oherwydd y broses sydd gyda nhw o ddeddfu yn y ddwy iaith. Efallai fod ein hymwybyddiaeth ni o'r hyn sy'n digwydd ar lawr gwlad a dealltwriaeth ehangach ynglŷn â sut mae dehongli mewn dwy iaith lle mae amheuaeth, efallai fod y ddarpariaeth hynny yn llai datblygedig, am wn i. Felly, fy egwyddor sylfaenol i ar hyn o bryd yw considro a ddylwn i ailddatgan y cymal hynny yn y Mesur a defnyddio’r nodiadau esboniadol i hyrwyddo’r ddealltwriaeth o’r hyn sydd yn digwydd pan fo’r cwestiwn yma’n codi yn y llysoedd. Ond byddai gyda ni ddiddordeb clywed beth yw barn y pwyllgor am hynny maes o law.
Well, one of the questions I'm looking at at the moment, as I mentioned during my statement in the Chamber, is the question of interpreting in two languages. We already, in our constitutional settlement, have a statutory principle that ensures that Welsh and English are treated equally in terms of authority within the system, and we're looking as to how we could or whether we should ensure that that principle is included in this Bill too. The question of how both languages are treated in legislation and interpretation is something that the Government internally is well used to because of the process we have of legislating in two languages. Perhaps our awareness of what's happening on the ground and that broader understanding as to how to interpret in two languages, where there is some doubt, maybe that is less developed, perhaps. So, my founding principle at the moment is to consider whether we should restate that clause in this Bill and use the explanatory notes to promote an understanding of what happens when this question does arise in the courts. But we would be interested in hearing the committee's view on that in due course.
Wel, yn naturiol, rydw i’n siŵr bydd yna brofiad rhyngwladol yn y meysydd hyn. Mae'r rhan fwyaf o wledydd y byd yn gorfod delio mewn o leiaf dwy iaith, os nad tair neu bedair iaith. Rydw i’n siŵr byddai heriau wedi cael eu hwynebu mewn llefydd eraill.
Cwestiwn ar ffurf wahanol: mae Comisiwn y Gyfraith wedi cyhoeddi adroddiad ac, yn eu hadroddiad nhw, maen nhw’n dweud bod eisiau mynd i’r afael â sut rŷm ni’n mynd i symud yr agenda yma ymlaen ynglŷn â chodeiddio a phob peth, ac, wrth gwrs, rŷm ni wedi bod yn trafod am sbel, nôl ac ymlaen, yn y pwyllgor yma, ac efo Comisiwn y Gyfraith, ynglŷn ag argymell atgyfnerthu deddfwriaeth gynllunio, er enghraifft, fel yr un cyntaf. Mae deddfwriaeth gynllunio mewn cynifer o wahanol lefydd ar hyn o bryd ac mae’n tueddu bod yn drwchus ac yn gymhleth ac yn anodd ei ffeindio, achos rydym ni’n sôn am hygyrchedd y cyhoedd yn fan hyn—os ydych chi’n gorfod mynd i fwy nag un lle. Dyna ydy syniad y Bil yma, wrth gwrs, sef tynnu popeth at ei gilydd. Mae yna argymhelliad, fel rydw i’n credu yn fan hyn, fod y busnes yma o ddod ag atgyfnerthu’r ddeddfwriaeth gynllunio gerbron cyn bod y Cynulliad yma yn diweddu yn 2021. Sut mae’r gwaith hynny, felly, yn mynd rhagddo os ydym yn mynd i ad-drefnu deddfwriaeth gynllunio’n gyfan gwbl mewn un lle yn y ddwy flynedd nesaf?
Well, naturally, I'm sure there'll be international experiences in these areas. The majority of nations have to deal with this in at least two, if not three or four, languages. I'm sure these challenges have been faced in other places.
A question in another form: the Law Commission has recently published its report and, in that report, it states that we have to deal with how we pursue this agenda in relation to codification, and, of course, we've been discussing in this committee for a long time, back and forth, and with the Law Commission itself, the recommendation to strengthen planning law, for example, as the first area. Planning law is held in so many different places at the moment, and it tends to be very dense and complex and difficult to find, because we're talking about public accessibility here—having to go to more than one place to look at this legislation. That's what's behind this legislation, of course, to draw all of this together. There's a recommendation, as I understand it here, that this idea of reinforcing planning law and consolidating planning law should be done before this Assembly term concludes in 2021. How is that work progressing, if we are going to codify planning law in one place in the next two years?
Wel, mae Comisiwn y Gyfraith wedi darparu adroddiad, fel rŷch chi’n gwybod, sydd newydd gael ei gyhoeddi, ac mae’r cyfle sydd yn cael ei amlinellu yn yr adroddiad yn gyfle cyffrous, rwyf fi'n credu, yn nhermau impact arfaethedig ar y maes cyfreithiol ac ar y cynllun o gydgrynhoi a chodeiddio’n gyffredinol. Maen nhw’n darogan gellid cydgrynhoi rhannau, neu’n gyfan gwbl, rhyw 34 Deddf mewn i un Ddeddf ddwyieithog a fyddai’n creu rhan elfennol o god ar gynllunio a defnydd tir ac eiddo’n gyffredinol. Felly, mae’r nod, mae’r amcan, mae’r uchelgais yn bwysig iawn, ac mae’r maes, fel rŷch chi’n sôn, yn un lle mae lot o newid cyfraith wedi bod, lot o wahaniaethu rhwng Cymru a Lloegr yn y maes. Felly, mae e’n bwysig inni gael rhywbeth sydd yn addas ar ein cyfer ni. Mae gwaith eisoes wedi bod ar y gweill i edrych ar hyn. Bydd rhaid inni nawr, yn sgil y gwaith mae Comisiwn y Gyfraith wedi’i wneud, gymryd hynny mewn i ystyriaeth a gwneud datganiadau maes o law ynglŷn ag amseru ac ati.
Well, the Law Commission has provided a report, which has just been published, as you'll know, and the opportunity outlined in that report is a very exciting opportunity in terms of its proposed impact on the legal world and on codification and consolidation more generally. They anticipate that we could consolidate some, or even all, of 34 Acts into one bilingual piece of legislation that would create a fundamental part of the code on planning land use and property more generally. So, the aim, the ambition is extremely important, and the area, as you mentioned, is one where there has been a great deal of change in the law and where there is a distinction between England and Wales. So, it is important that we have something that is fit for our purposes. There has been some work to look at this. We will now, given the work of the Law Commission, take that into account, of course, and we will be making statements in due course as to the timing of this.
Diolch yn fawr.
Thank you very much.
Thank you. I'd like to ask about the accessibility elements—the Part 1 of the Bill. Perhaps, to begin with, you can just tell us what you mean by 'accessibility'.
Well, the basic principle is that people should know what the law is, to state it at its most straightforward, I suppose. And because of the complexity of the statute book that I mentioned earlier, and the proliferation of statutory instruments in particular, it's just hard for lawyers, let alone members of the public, to understand how one relates to another. Clearly, if we are passing laws in this place and inheriting laws from Parliament that give rights and responsibilities, plainly, those aren't as effective as they might be if people don't know where they can find the law, and, when they find it, that it's authoritative, up to date and available in more than one language. So, the Bill, really, is about that. I think it's intensified, or the urgency of the issue is greater, as a consequence of the withdrawal of legal aid and assistance for people. So, I think it's incumbent on Governments and legislatures to take steps to make law as available to members of the public as possible, partly in response to that. There's a democratic accountability justification to it, but there's also a social justice justification to it, and I think those two things are brought together in the Bill.
And why do you think that needs law to do that? Could that not be done in other ways?
Well, I suppose at the heart and one of the key principles, I guess, underpinning any reflections around accessibility, is that, in principle, it's probably better to have less law than more law in relation to a particular area. You know, having a proliferation of law perhaps makes it less accessible. That said, the Law Commission itself recommended a statutory duty as a means of moving accessibility and consolidation and codification forward. And that has also been the experience in New Zealand, who have undertaken a similar exercise to what this Bill envisages, and the existence of that duty, I think, is the catalyst that moves the process of consolidation from being, as I described earlier, something that is reactive and piecemeal into something that is systematic, and also attracts the resources that you'd need in order to be able to maintain a programme of accessibility, rather than doing it as and when.
Additionally, it also provides, as I mentioned in my response to the Chair, a mechanism by which the Government can be held accountable for driving this agenda forward. There's an obligation in law to do it—there's a periodic report and there's a programme set in front of the Assembly, and it provides that opportunity for there to be broad accountability and scrutiny of the activities of the Government in relation to accessibility generally.
And, of course, there'll be a broader battery of weapons you'll want to use to secure accessibility. Perhaps you can tell us a little bit about what else you have in mind. New Zealand, you quoted, I think, have used technology as part of their approach. I wonder if you could tell us a bit about your thinking there.
Yes, certainly. To paint a broad picture first, there are a number of different strands to the accessibility question, and the legislation provides one part of that, I suppose. The publication of law is obviously a critical dimension to its availability and doing that in a way that enables people more easily to find the law as we proceed with a programme of consolidation and codification. So, I'm looking at how we can publish the law by subject matter rather than simply by date, which makes it easier to find, even for professionals. I'm looking at how we can improve the online resource of Law Wales to attract commentary on the law in Wales from practitioners, academics, commentators, those with expertise in whatever background, and that will, I hope, provide a corpus of commentary on devolved law in Wales.
You're right to identify the role of technology in this. I think there's very exciting potential to that. I've been talking to academics at Swansea University, and to Google, actually, and counterparts in other parts of the UK to discuss what they are doing. This is a long-term agenda, but it's also important to take advantage of technology during that to make as much progress as we can, and there are all sorts of potentially exciting options making technology available so that people can more readily understand the relationship between English and Welsh texts and to help people navigate around statutes when they're published and how we use technology in this place as well, although that's not a question for the Counsel General, but I think there are some very exciting opportunities. I just want to caution that I think some of these are early wins, but many of them will take longer to develop. I think it's important to be tuned into those discussions.
In terms of enhancing public understanding of the law and what you're doing, why did you come up with the title of this legislation? It doesn't seem to me terribly descriptive of what the Bill is trying to do.
Well, I think the Bill is intended to improve legislation, and I think, in that sense, it is descriptive. It's a Bill about legislation and I think that's clear—well, I hope it's clear from the title [Laughter.].
Well, it's broadly clear, isn't it. It's about legislation, but most legislation is about legislation to some degree, and this one, if passed, will become the 'legislation Act', which will be the 'law law'. It doesn't seem to me the most elegant of titles.
Well, I'll take that point on board, but I think it comes back to the question that we started from about what does this relate to. Is it the subject matter of various pieces of legislation, or is it the legislation and the body of law itself? And the judgment I reach is that it's the latter, which I think probably informs the title to some extent.
Could I just ask about one item of clarification on accessibility that's important, for the record? The accessibility we're here talking about is not the accessibility in terms of advocacy, legal aid, legal representation and so on. This is the accessibility in terms of identification of where law is and what it is. Did you want to say anything about that? Because when accessibility is referred to—. I mean, you've seen today the report from Liberty and the references to that, which are all about accessibility. Those, it seems to me, are policy matters, and so on. Have you thought about that clarification to this legislation?
Yes, thank you for that, Chair. There is obviously a distinction, as your question highlights, between access to justice, perhaps we could describe it as on one hand, and access to law on the other. You could argue that access to law is a subset of access to justice, but the purpose and intent of this Bill is to improve access to law. We obviously have very limited competence in order to address the challenges that many people face in terms of the withdrawal of access to justice. I think there is a role for Government and legislatures in at least trying to ameliorate some of that by making access to law easier, which is the point of this Bill.
That's fine. I think the distinction between 'law' and 'justice' is probably worth making. That's another debate for another time.
We go on to Suzy Davies.
Yes. Thank you for this question, Chair. You may remember when we were discussing the statement on Wednesday that I mentioned that I thought that codification meant something completely different, which is about bringing the common law into statute rather than a new filing system at the library, if you like. How are you going to deal with common law? Judge-made law needs to be brought into this somehow, if you're going to have a coherent code, doesn't it? If all the law is to be in the right place, all in one place, it'll need to include this common law.
Well, I would take the broader point that you make, which is that the question of accessibility is, I suppose, necessarily partial when you're limiting it to the accessibility of statute law, so I accept that basic point, I suppose. The common law provides a degree of flexibility and a capacity to evolve, which obviously as a lawyer you will be very familiar with, and the flexibility and adaptability of that is an asset in the legal system. The challenge, I suppose, that we face if you look at the common law as opposed to statute is that common law in our jurisdiction is developed across both England and Wales, and so the means by which, I suppose, we would have the capacity to bring order to common law, which is, as you say, judge-made and not made by a legislature, is by turning it into statute, really.
The intention here, however, is that, whereas that may happen at the margins, where there's a very well-established understanding in common law of a particular legislative provision, say, I think the task of making our statute law accessible is a significant task in itself. What I would say though is that, as I mentioned in my answer to the earlier question, I hope that, as we roll out the further developed Law Wales website, that will be a place where commentary and analysis of the common law in relation to devolved law in Wales will be located and that that will become a resource that will help accessibility to the common law in that sense.
I think this link is going to be important, because obviously we'll all want to know that the judges are following the new interpretation Act anyway, but with Halsbury's on one floor and the Law Reports on another floor, where is the ladder between the two? There's going to have to be some sort of signposting or whatever to say, 'P.S. your judge law on this is in a different place.'
Well, that is the opportunity that we have with the reform of Law Wales, I think, to make that sort of material available to the extent that it's realistic for it to be—
All right. It's a practical question, really. Okay, thank you.
Will the Welsh Government consult when preparing programmes to improve accessibility of Welsh law and, if so, why is there no duty to consult on the face of the Bill?
Yes. The answer is that the Government will consult on the content of a programme. Given the purpose of the programme—the accessibility of law—I think it's going to be very important to make sure that the programme reflects the urgency for doing that in particular areas and the public interest in and appetite for doing it. So, absolutely at the heart of this is taking the views of the public about what should be contained in the programme in any one Assembly term. That's part of the reason for providing that the programme is laid out for a six-month period from the election, the first election of the First Minister after the new Assembly is elected, so that it gives a period of time in which to undertake that consultation.
Right. And when the programme sets out the activities that the Welsh Government will take to improve the accessibility of Welsh law, what kind of activities can we expect and will there be a timetable for carrying out these activities?
Well, there'll be a range of activities, I envisage. The principal activity, of course, is the consolidation of the law, and I would envisage any programme containing several consolidation projects over the life of an Assembly, and in fact perhaps extending even beyond the life of a particular Assembly term—it's clear that the scale of the task in some areas will certainly extend beyond one Assembly term. So, I would expect there to be timescales set out in the programme and for the Counsel General to report on progress periodically as the legislation itself envisages.
And what kind of activities will be set out in the programme that will facilitate the use of the Welsh language?
Okay. The practice of restating the law when consolidating it, restating it as Welsh law, the law of this Assembly, will in effect expand the body of law that is available both in English and Welsh. Clearly, everything that the Assembly inherited from Parliament, which is a very, very large proportion of the devolution settlement even today, was created in English only, so there aren't Welsh language versions or authoritative Welsh language versions of that law. So restating it will have the effect of expanding the Welsh language statute book, if I can describe it in that way. But again, the resource of Cyfraith Cymru, Law Wales, will be available in both English and Welsh, so that will expand the commentary in Welsh, and I think there's also a role for us in looking at how we draft legislation in Welsh, and the use of technologies. I mentioned in my answer to Lee Waters the use of technology to enable people to understand how Welsh language texts and English language texts of the law that we pass here relate one to another, and to allow Members to be able to relate one to another perhaps more easily. And, of course, members of the public.
Because sometimes there's a tiny, tiny bit of difference, isn't there?
Well, the objective is that there shouldn't be, but—.
Okay. And what role is envisaged for the National Assembly in respect of the programmes of accessibility, given that, as the legislature, it is responsible for making the laws?
Well, as you say, the Assembly will be responsible for scrutinising, on whatever basis it wishes, the consolidation Bills and also passing the consolidation Bills. So, the role of the Assembly is fundamental to this process, and I know that there's a discussion under way at the moment about devising a form of Standing Orders that would enable the Assembly to scrutinise appropriately but pass effectively consolidation Bills. That's an important part of that. And as I answered in my question a moment ago, the Assembly will also have a role, I hope, in influencing the content of that programme by making suggestions about what the Government might wish to include in them.
Okay, thank you.
Yn naturiol, rydym ni'n byw mewn amseroedd heriol. Nid ydw i'n gwybod os ydych chi'n sylweddoli canlyniad y refferendwm a gynhaliwyd rhyw ddwy flynedd yn ôl, ond wrth gwrs mae hwnnw'n gosod heriau yn enwedig, sy'n cael eu holrhain ym mharagraff 43 o'r memorandwm esboniadol, sydd yn nodi'r heriau presennol o ddod â Deddfau Ewropeaidd i mewn i ddeddfwriaeth y wlad yma. Felly, mewn realiti nawr, pryd y gallwn ni ddisgwyl gweld newid gwirioneddol o ran hygyrchedd cyfraith Cymru? Rydym i gyd yn deall beth rydych chi wedi'i olrhain eisoes, mai dyna beth rydych chi eisiau ei wneud, ond o gymryd y sefyllfa yn gyfan gwbl, a ydy hi'n deg dweud, felly, y bydd yn rhaid i gyfuno a chodeiddio cyfraith Cymru aros ei dro tra bod Brexit ac ymrwymiadau deddfwriaethol eraill yn cael blaenoriaeth?
Naturally, we live in challenging times. I don't know if you've seen the result of the referendum held around two years ago, but that itself poses some challenges, which are set out in paragraph 43 of the explanatory memorandum, which does state the current challenges of incorporating European law into the law of this country. So, in reality, when can we expect to see genuine change in terms of the accessibility of Welsh law? We all understand what you've said already, that that's what you want to do—improve accessibility—but looking at the situation in the round, is it fair to say that consolidating and codifying Welsh law will have to take a back seat while Brexit and other legislative commitments command priority?
Wel, y peth cyntaf i'w ddweud yw bod y gwaith yma o gydgrynhoi ac o godeiddio yn waith a fydd yn cymryd degawdau. Nid yw'n rhywbeth a fydd yn cael ei grynhoi o fewn un tymor neu ddau dymor y Cynulliad. Felly, buasai hynny'n wir gyda Brexit ai peidio.
Wedi dweud hynny, rwy'n gobeithio cael adnoddau yn eu lle erbyn dechrau blwyddyn nesaf i allu mynd i'r afael â'r dasg o gydgrynhoi cyn bod y ddyletswydd statudol yn ei lle ar gyfer y tymor nesaf. Mae yn bosibl y bydd galwadau Brexit yn arafu ar hynny, wrth gwrs rwy'n gobeithio na fydd hynny'n wir. Ar hyn o bryd, nid ydw i'n rhagweld hynny, ond allaf i ddim rhoi addewid na ddigwyddiff hynny. Yn anfoddus mae hynny yn sialens rŷm ni i gyd yn ei hwynebu ym mhob maes cyfreithiol, pob maes deddfwriaethol a llywodraethol.
Well, the first point to make is that this work of consolidating and codifying law is work that will take decades. It's not something that can be delivered within one or two Assembly terms. So, that would be true with Brexit or otherwise.
Having said that, I do hope to have resources in place by the beginning of next year in order to get to grips with the task of consolidation before the statutory duty is in place for the next term. It's possible, of course, that the demands of Brexit will put a brake on that. I hope that that isn't the case. At the moment, I don't anticipate that, but I can't give you a pledge that that won't be the case. Unfortunately, that's a challenge that we're all facing in all areas of law and in all areas of governance and legislation.
Okay. Codification is obviously a process, not an event, which takes us on to Dawn Bowden.
Thank you, Chair. And yet, Counsel General, I just wondered if you could explain what Welsh law will actually look like once it's been codified and consolidated.
Well, I was keen to give a snapshot of what that could look like so that Members, in considering the Bill, would be able to have a picture in their mind of what this might look like. The draft taxonomy for codes, which I published when I introduced the Bill, is intended to do that. I should say, as I made clear, I think, in my statement, that it's very much a work in progress. It's not by any means a settled piece of work, and it will absolutely evolve and will evolve, I hope, as a consequence of comments I'm sure that the committee will get from the consultation on the Bill and future work. But it gives a picture, I think, of the sorts of things that we envisage. The basic idea of the code is that the law is organised by subject matter, by subject heading, and within each code you could expect to see one or more consolidated primary Acts and then, published with that, consolidated statutory instruments and, importantly, and importantly for the person in the street, I think, all the guidelines, codes of practice—
—the soft law, and the secondary legislation, in one place so that you know where to find it, essentially.
Absolutely. So, just moving on from that, then, if we took the example of, say, social care and we have that in legislation, how would consolidation and codification help somebody, for instance, find their way around a specific piece of legislation concerning the home care provider—where they would go, members of the family looking for legislation? How will it help in that regard?
Okay. I'm sure all of us get these sorts of queries from our constituents. It's one of the areas, I think, where codification and consolidation will deliver most benefits, really, in a sense, to members of the public. As it happens, the field of social care is one where there has been a significant amount of consolidation in primary legislation in any event and, effectively, the combination of the Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 together form what you might expect to be the building blocks of a code, really, because they cover the primary ground very extensively. But there are between 30 and 40, I think, statutory instruments and codes of practice and so on that underpin, or rather flow from, those two statutes. And so a code of social care would include all of those.
As it happens, in this particular field, Social Care Wales have already been doing a very significant amount of work in co-locating on their website the legislation, both primary and secondary, and the codes of practice and so on, and also have been providing explanatory memoranda and overviews of how the law works. So I would recommend that the committee may wish to look at that. I think it'll give you an idea of the sort of potential the programme has and the sort of thing we would like to see it look like ultimately.
So this is going to be about raising awareness, really.
About where people go and then, once they go there, it should be much easier for people to navigate their way around.
Yes, that's the idea.
Okay. My final question in this section, then, is how you'll seek and use the views of users of legislation when refining the draft taxonomy of codes.
Well, I wanted to publish the taxonomy not really because I think it needs to be settled now—obviously the sooner it's settled, the better, clearly, like all of these things—but the first programme of accessibility will occur, provided the Bill is passed, in the next Assembly. So, there's a window within which we can develop some of this, but I felt it was right to publish it now so that Members had a picture in their minds of what it could like. I would envisage, after the Bill is passed, then developing the work on the taxonomy at that point, clearly taking into account any comments that the committee will have received or given in relation to it in the meantime. But there'll be a consultation exercise at that point, which will take in public views in the usual way.
And I think also, by the way, that will be a means, an important means, of engaging the public in what can otherwise feel like a technical exercise. But I think that will be a hook to bring it alive a little in the public understanding and imagination of what the benefits might be of consolidation and codification, and what the benefits to individual users can be. So there's an interesting opportunity, then, I think, for us.
Okay. Thank you, Chair.
Thank you. Just sticking with the point of accessibility again, how would you plan to deal with cross-referencing, if you like? I know the taxonomy is very much a first draft, but I'll give you an example: the commissioners for children and older people are currently in the heading 'health and social care', when obviously the roles of both of those offices extend way beyond health and social care.
So I guess, actually, they'll end up somewhere else in your final taxonomy. And, indeed, I notice the well-being of future generations, you couldn't find anywhere to put that, so you've given it a place all of its own. But the cross-referencing is going to be important, because it's inevitable, isn't it, that some Acts will wander outside some barriers, first of all? How do you plan to deal with it, because legislation can still spread out beyond the boundaries of any code, I should say?
Well, there are two points to that question, I think. Firstly, the question of how you signpost the relationship between different codes. I think that's part of the task of the taxonomy, ultimately, isn't it? When that has been settled, there will need to be a signposting mechanism to explain the interrelationship between different subject matter codes.
But on the other point that you make about how you make sure that legislation doesn't stray outside a code, as you say, the establishment of the code is significant, but the first step, really—it's the culmination of a huge process—in terms of codification, setting the code is the foundation, really. The value is derived by maintaining the code so that any reform to the law takes place—you know, whatever the actual substance is—within the framework of the code. So, this isn't about what the law says but where you find it, basically. And I would expect that the Assembly Standing Orders, in due course, will require legislation being brought forward to reform a particular area of law to maintain the code in doing so. Obviously, a law reform proposal brought forward by Government or a backbench Member could include provisions that reform law that appears in more than one code. And so, it's not a question of whether that individual provision is appropriate or not, it's about where it ends up going, if you like, and so the task of allocating it is the bit that maintains the code.
That's helpful, because I think they asked you a question in Plenary about what reassurance you could give us that amendments to legislation—not this law, but different laws in the future—wouldn't be rejected on the grounds that they couldn't be stuck in a rigid code somewhere. I might want to ask questions about Welsh language rights when we're talking about planning. There's an obvious one, but where do you codify that?
I suppose—. There's no suggestion here that an amendment would be—
The Government certainly isn't advocating that—that an amendment should be ruled out for not having selected the right code. Ultimately, the principal point is that the law should be reformed by the Assembly in the way the Assembly wants to reform the law. The question then is: where does that law appear? And that's really a question of allocation, isn't it? So, as I say, you can have a proposal that touches on a number of codes, and so the effect of each of those law changes will end up being in different codes, potentially.
Okay. That's helpful because, again, you remember my concern about your statement on Wednesday where you talked about,
'these laws will then need protection from any future political desire to make law that does not fit structurally within the new established codes.'
I did check your answer before; I don't think I quite got what you were saying, actually. Could you respond to that? What do you mean by
'future political desire to make law that does not fit structurally within the new established codes'?
I guess that the reference is to the Government bringing forward law reform outside the context of a code, and the point I'm making is that I would anticipate that the Assembly will, obviously, not want that to happen. I can't imagine the Government will want that to happen, but it's to reflect that. At the end of the day, it's just reflecting the principle that whatever the law reform is, it's about where it sits, and it's that question that determines the accessibility of it, really.
What did you mean by 'political desire'? That's the bit I didn't get.
I'd have to check my statement on that, but I think it was reference to legislation being brought forward politically by the Government that was not, for some reason, within the code.
There are some examples, by the way—you mentioned the future generations legislation—which is an underpinning legislation, really, which doesn't fit easily into a code. So, there will potentially be other circumstances where it isn't evident what code a particular initiative would sit in. There would need to be enough flexibility to accommodate that, clearly, but the principle would be that, whatever the law reform is, it's done within the framework of a code.
Right. Just finally on that, then: when you also said in your statement that both the Assembly and Government need to be responsible about how we bring law forward, or scrutinise law, it's with that very much in mind, isn't it? It would be helpful if you could give us an indication of which code you think it would fit in—you know, backbench law, for example.
Yes, conceivably—that's the sort of thing we need to work through, I think. But, at the end of the day, that's a judgment for the Assembly and its Standing Orders, isn't it?
Okay. Yes, all right.
Could I just ask, perhaps, a supplementary to that? Paragraph 28 of the explanatory memorandum talks about, when considering new legislation, staying in compliance with the structure of the code. But it says:
'This does not…mean that the Welsh Ministers would have to legislate in a particular way'.
What exactly does that mean then?
Well, I think that's to say that it's to draw the distinction between the reform of the law and where the law is located. So, consolidation, and the accessibility agenda more broadly, isn't about what the law says, but where it says it, if I can put it at its most simple.
No, no, that's fine. And just one further point: you refer to this being a long-term process, and, of course, the duty and the framework of the legislation creates that duty and that process. But, of course, subsequent Governments are not bound by previous Governments and so on. So, very much, this is going to be a matter of, I suppose, good legislative trust in the process and so on, is it?
Well, the point of having a duty is to create that ongoing responsibility, and the current arrangements are very vulnerable to the appetite of any Government to do it or not. And the point of having a structured duty and a programme is to make sure that future Governments are also committed to it. The content of a programme, of course, is a matter for the Government of the day.
Yes, so the legislation actually creates a very specific response, a legislative law officer responsibility, in terms of Governments, whichever Government it is, in terms of the consistency and continuity of that process.
Sorry, I just want to finish off with one question, if I may, Chair. In your Plenary statement as well, you said that this would accelerate the creation of a body of bilingual law. Where will law that is made in the UK Parliament but relates to Wales fit into that, because, at the moment, there's still this ongoing issue about, particularly, as you said, that secondary legislation isn't made bilingually, if it affects England and Wales?
Well, I was referring to the process of consolidation, basically, remaking the law in both Welsh and English. That was all I was referring to there.
Okay. All right, that's fine. Thanks.
Okay. Lee Waters.
I'd like to ask about Part 2 of the Bill—a very exciting part of the Bill. [Laughter.] As I understand it, many of the rules already exist in the Interpretation Act of 1978. How are you going to prevent confusion arising from two sets of rules existing at the same time?
Well, there are interpretation Acts that apply in different jurisdictions in the UK already. So, for example, Scotland has both the UK Interpretation Act, and its own, and a similar arrangement exists in Northern Ireland. So, what we are suggesting isn't novel in that sense. The key point is, as a practitioner, or a member of the public, how do you know which law applies? And they will not be overlapping. There will be—the 1978 Act will apply to some, and the new Act will apply to others. And the mechanism the Bill includes to do that is a very clear date on which the new Part 2 comes into effect, so that you could look at an Act and tell by the date of it whether the old Interpretation Act provisions apply, or the new provisions apply. And you do that by setting 1 January, effectively, as the date by which Part 2 comes into force. So, it should be clear if we're able to do that—which applies when.
But the 1978 law will still be in force, would it?
So, it will still apply even though you're saying your guidance should say that the new ones will apply in the Welsh case. The 1978 one will still be extant.
And what's the experience in Northern Ireland and Scotland of when that happens? Is there any learning for us in terms of guidance we may need to introduce?
We've talked to them, but I think it's been—. There haven't been practical challenges, really.
Right: nothing to see here.
Nothing material, I don't think. [Laughter.]
Okay, fair enough. You mentioned the commencement date of 1 January 2020. What was the reasoning for choosing that date over others?
Well, the point of having 1 January as a date is, as I say, you can look at the date of an Act and know that if it's—. If the date was midway through the year, you wouldn't be able to use the title and date of an Act as a kind of ready reckoner for which law applies. So, it's about making it crystal clear which interpretation provisions apply, and you can only do that, or you can best do that by having 1 January. I mean, obviously, 1 January 2019 is too soon. The next available one is 2020, but I was anxious not to include that on the face of the Bill, just in case there's a delay, effectively, in bringing the legislation forward. However, there are provisions in the Bill, as you will know, in Part 3, which enable Acts to be amended to include dates when the date is certain, and I would envisage doing that for this Act in due course, so that it's clear then on the face of the Bill.
Okay, thank you.
Can I have a quick one?
Yes, please, Suzy, go on.
Can you just clarify the position where you have pre-2020 legislation, which is subsequently amended either by Wales or by the UK, depending on what kind of Act it is? Will those amendments take on the new interpretation rules, or will they still be applying the 1978 rules?
I'll ask Dylan to comment on that.
If the amendment is amending pre-2020 legislation, the rule will be that it's the Interpretation Act that applied when that Act was passed, and, in fact, we've actually specify—we spell that out in the Bill. It's a principle of law at the moment, but that's something we're making clearer. So, the general premise will be that, hopefully, the Bill will be passed in time, and that it will come into force, so that the new rules will come into force on 1 January 2020. And then the second question is: where was the law made? So, if the law is being made in Wales, after 2020, then it's this Bill that would apply; if not, it's the 1978 Act, subject to the point you've just made, which is, if there's an amendment of a pre-existing law, then the position is a little bit different.
Right. That was great. Thank you for that, Chair.
Okay. Dai Lloyd. [Inaudible.]—mine, to make progress.
Ocê. Roeddwn i'n rhoi amser i chi, Gadeirydd.
Nawr, mae rhai o'r manylion, diffiniadau ac ati—mae adran 5 y Bil yn rhoi pŵer i Weinidogion Cymru ddiwygio'r rhestr o delerau diffiniedig yn Atodlen 1 i'r Bil drwy, er enghraifft, fewnosod diffiniad newydd. Nawr, mae adran 5 yn cynnwys pŵer i wneud darpariaeth atodol, gysylltiedig, ganlyniadol, ddarfodol, drosiannol neu arbed. A all y Cwnsler Cyffredinol roi enghraifft o ba bryd y byddai Gweinidogion Cymru yn defnyddio'r pŵer atodol yma, a nodir yn adran 5 (2), wrth fewnosod diffiniad newydd yn Atodlen 1 i'r Bil?
Okay. I was giving you time to ask your question, Chair.
Now, some of the definitions—section 5 of the Bill gives the Welsh Ministers power to amend the list of defined terms in Schedule 1 to the Bill, by, for example, inserting a new definition. Now, section 5 includes the power to make supplementary, incidental, consequential, transitory, transitional or saving provision. Can the Counsel General give an example of when the Welsh Ministers would use the supplementary power, set out in section 5(2), when inserting a new definition into Schedule 1 to the Bill?
Wel, mae'n anodd bod yn benodol am hyn, achos rŷm ni'n sôn yn fan hyn am newidiadau i'r Schedule, sydd yn creu diffiniad newydd ar gyfer defnydd yn y dyfodol. Felly, nid yw hi'n hollol glir a allaf i roi enghraifft benodol i chi. Ond y math o beth, efallai, y byddech chi'n ei weld, yw, wedi i chi wneud y diwygio, a bod hynny wedi mynd drwyddo ar yr affirmative procedure yn y Cynulliad, eich bod chi'n gallu wedyn sicrhau eich bod chi'n dodi signposting—arwyddion yn y Ddeddf. Felly, y math yna o beth, a fyddai y tu fas i ddiwygio'r Schedule, ond yn ddefnyddiol yn gyffredinol.
Well, it's difficult to be specific here, because we are talking here about changes to the Schedule, which create a new definition for future use. So, it isn't exactly clear where I could give you a specific example. But the kind of thing that you may see, perhaps, is, once you have amended, and that's gone through the affirmative procedure in the Assembly, you could then ensure that you put signposting in the legislation. So, it would be that kind of thing, which would be outwith an amendment to the Schedule, but would be useful in general.
Ocê. Yr un math o beth—cwestiwn tebyg ynglŷn â'r cymal machlud. Mae adran 16 yn cynnwys pŵer i wneud darpariaeth atodol, gysylltiedig, ganlyniadol, ddarfodol, drosiannol neu arbed mewn cysylltiad â'r cymal machlud unwaith eto. A oes gyda chi enghraifft yn fanna o sut y buasech chi'n defnyddio pŵer cysylltiedig yn fanna, a nodir yn is-adran (5) o adran 16, yn benodol, felly, efo cymal machlud?
Okay. And in the same vein—a similar question with regard to the sunset clause. Section 16 includes a power to make supplementary, incidental, consequential, transitory, transitional or saving provision in connection with the sunset clause once again. Do you have an example there of where and how you would use the incidental power set out in section 16(5), in connection with a sunset clause specifically?
Wel, mae'r un math o bethau mewn ystyriaeth yn y fan hynny—mae'n anodd darogan ar hyn o bryd pa bethau specific. Ond mae'r math yna—mae'r cymal yna yn deillio o gymal tebyg yn Neddf 1978, sy'n galluogi y math yna o ddefnydd pan mae angen.
Well, the same kinds of things would be given consideration there—it's difficult to predict any specifics. But that clause does stem from a similar clause in the 1978 legislation, which allows that kind of use when required.
Ocê. Mae hynna'n fine.
Okay. That's fine.
Okay. Dawn Bowden.
Thank you, Chair. Section 26—now, I've learned a lot as I've been reading through all of this as well, and I understand this is about application of Welsh legislation to the Crown. So, from what I've read, looking at these papers now, common law legislation does not usually bind the Crown—that was new to me. But section 26 of the Bill changes that position, so that the default position is that legislation will bind the Crown. So, when we're talking about the Crown in this context, who do you mean, and who will be covered by that?
Well, the 'Crown' generally means the sovereign personally, or servants or agents, Government, of the Crown, but it's not entirely clear in the common law what the parameters of that definition are. So, I felt it was problematic to have an exemption so that the law didn't apply to that category, which is an important part of reversing that presumption. I should make it clear—I'm sure it is already clear—that that just sets a new default position; it doesn't prevent the Assembly making its own decisions at any future point about whether a particular Act should apply to the Crown or not, it just needs to spell it out.
So, that's the default. So, would or could the Crown, then, make application to be exempt? Is that how it works?
It's for the Assembly to decide, as it wishes, in legislation, whether the Crown is bound or not. But this interpretation Act reverses the underlying presumption—they've done it in Scotland as well, actually, for similar reasons.
Okay. So, have the Queen and Prince Philip been told about this? Do they know? [Laughter.]
I will be writing to them—
And the Prince of Wales, more importantly, rather than Prince Philip, actually.
I'll be writing to the Queen, as a courtesy, to alert the Crown to the fact this is happening. But there isn't in this law anything that substantively changes the law as of today to bind the Crown; it just sets a set of presumptions for the interpretation of future legislation. So, this—
And, presumably, there is no requirement for you to tell them.
There's nothing in this legislation that requires us to do that.
But it's a matter of courtesy.
Okay. Thank you, Chair.
Okay. Is it correct, then, that there would be no criminal offence by virtue of legislation binding the Crown?
Well, there's a reversal of the presumption about the application of legislation, and in section 26(3), it simply states the common law position, really, which is that the Crown is criminally liable, but it sets it out on the face of the Bill, which is the conventional way of dealing with it where this has happened elsewhere.
Okay. Can I ask you, in the few minutes that we have left—? There are a few things that I wanted to raise with regard to the costs of this and the resources, because of the efficacy of being able to carry through this particular process. There is an estimated budget of around about £0.5 million in respect of the codification process over five years, but the codification process—does that mean that the process will be confined to what could be afforded within that budget, or is that the budget estimated in terms of what you think realistically can be achieved during the course of the next couple of years?
That's an estimate of what a consolidation programme that covers four, maybe five Bills—obviously, it depends on the scale of the task, doesn't it? But, it's an estimate of what that would cost. Obviously, I've had discussions with Cabinet colleagues in relation to that as well.
So, when it comes to developing the codification programme—and you mentioned, of course, that you would be having discussions in terms of the budget—how fixed, then, are these sorts of figures that are included within the explanatory memorandum, because—? Is it the case that, as you develop the programme, if this becomes legislation, you start looking at the programme that you want to develop and so on, then that has to be given a particular costing to it. Half a million pounds doesn't actually seem like very much in terms of what you can actually achieve. The less resource that's applied, the longer this whole process will take. I'm just wondering in terms of where this fits within the priorities. Is this something that is going to be extended and take quite a lot longer than might otherwise be the case because of the availability of resources, or is the approach basically what you think can practically be achieved, that is what it will cost, and that's what's included as an estimated budget?
A programme that includes four or five consolidation projects over an Assembly term is a significant step up from where we are today, and, obviously, imposes constraints on the Assembly as well as on the Government. So, what we have here is an estimate of what that could cost. I think it's a realistic and sensible estimate. Clearly, to some extent, the more resources you deploy, the faster you can achieve the objective, but I think this is a reasonable estimate at this point. Clearly, this is a set of figures that would apply to a notional first programme, say. The content of that programme and the appetite of the Government to bring forward Bills to do that are matters for Government in the next Assembly.
I should also say, as I mentioned in my question earlier, I'm hoping to have resources in place for the start of next year so that we aren't waiting for that to happen, that we can get on with some of the consolidation work we've already identified. We've talked already about planning this afternoon.
And the figures that you've budgeted within that, so, for example, departments that are already working on legislation will obviously want to be developing that legislation in accordance with the parameters set with the codification process, those are costs that would be not included within this. This is really specific for specific actions that you would want to take as part of your programme. So, there would be other costs that are being absorbed in other ways as part of that process.
These are staff costs, essentially—human resource costs—to take the programme forward. The way I envisage it working in practical terms is that it's possible to consolidate either as part of a piece of law reform or during periods of policy calm, if I can describe it in that way—you know, after a period of law reform. So, it's intended to be flexible so that you can look at the Government's legislative programme after an Assembly election and identify where the opportunities might be and then supplement those or do them in a way that is most likely to lead to consolidation and codification. So, it's meant to be a flexible tool in that sense.
If there was time, I'd ask you about when those areas of policy calm are going to emerge—[Laughter.] But we've come to the end of our time. Counsel General, thank you very much for the evidence. There may be one or two areas that we've not quite covered and we might want to write to you about separately. Is there anything that you particularly wanted to conclude with or to add before we completely finish up?
I'll just supplement, if I may, what I said to Dai Lloyd in relation to the interpretation of bilingual legislation. I may, if you're happy, write to the committee to spell out more fully perhaps than I have been able to do today what I had in mind, subject to your further reflections.
Okay. Thank you very much for, I think, a very important session. Thank you.
If we move on to item 3, instruments that raise no reporting issues under Standing Order 21.2 or 21.3—statutory instruments with clear reports, affirmative resolution instruments. We move on to 3.1, the Landfill Disposals Tax (Tax Rates) (Wales) (Amendment) Regulations 2018. These regulations will prescribe the standard rate, lower rate and unauthorised disposals rate for landfill disposals tax chargeable on taxable disposals made on or after 1 April 2019. Any comments on that? Just note that. Okay.
Negative resolution instruments, item 3.2, the Social Services and Well-being (Wales) Act 2014 (Isles of Scilly Modification) Regulations 2018. These are regulations that make a modification to the Social Services and Well-being (Wales) Act 2014 so that the Council of the Isles of Scilly is treated as a local authority in England for the purposes of the Act. Any comments on that? Any observations? No.
On to item 4, instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3—negative resolution instruments, item 4.1, the Carcase Classification and Price Reporting (Wales) Regulations 2018. You have before you a report, regulations, explanatory memorandum, and the European Commission conducted a formal review of existing EU rules that mandate the categorisation and classification of animals presented for slaughter against common European standards in order to make it more transparent. As a result, they've brought into force Commission regulations as regard the union scales for the classification of beef, pig and sheep carcasses, and have a regard to the reporting and marking price of certain categories of carcasses and live animals. Those regulations are being revoked and replaced to align with the changes to the EU regime. I understand there are a number of technical items that have been identified.
Yes, the draft report raises a few points to which the Welsh Government responded this morning. The first reporting point seeks clarification about the powers of entry that are given to authorised officers under the regulations. The powers of entry allow authorised officers to have access to computers, to inspect computers and to check the operation of computers at the premises they have entered. The question raised in the report asks what does checking the operation of a computer give you that having access to it and inspecting it do not give you. The reporting point was raised because powers of entry are serious, especially when they can be used to enter someone's home. So, we need to be clear when drafting powers of entry.
The Welsh Government has responded and it's provided some examples of a computer not being used correctly, such as duplicate and differing records being stored, and files becoming corrupted. It's not clear to me why accessing and inspecting a computer isn't enough to discover those issues. You may need some fairly detailed IT discussion to come to the bottom of that. So, Members may wish to follow this up with Welsh Government, or accept the point has been made and we keep an eye on these powers in future.
We've made the point—. Any comments, first of all?
Only to say clarity is always what we look for in things like this, isn't it?
Okay. Do we need any further action on this?
No, I think making the point is—.
On to composite negative resolution instruments, item 4.2, the Environmental Protection (Miscellaneous Amendments)—.
Hang on, did you want to do the rest?
I beg your pardon. Sorry.
There are a couple more reporting points. So, there's a second technical reporting point. There are two types of carcass classification under the regulations. There's a visual classification, which requires a licence under regulation 8, and there's classification by automated grading equipment, which requires a licence under regulation 9. Then, regulation 29 of the regulation provides that it's an offence—under regulation 29(2), it's an offence to classify a carcass using automated grading equipment without a licence under article 9, and then regulation 29 just says it's an offence to carry out a classification without a licence under article 8.
My understanding is 29(1) is intended to deal with visual classification rather than any classification, and because this creates criminal offences, that's why it was raised in the draft reports. The Welsh Government has responded to say that it is clear that regulation 29 refers to visual classifications only. And while that's highly likely to be the case, there's a difference between the way 29(1) talks about all classifications, but 29(2) very specifically pinpoints, expressly, classifications by automated grading equipment. So, again, I don't think the Welsh Government response clearly says why there is a different approach there. And again, regulation 29 is creating criminal offences, and you need absolute clarity around criminal offences.
My observation on that is that it would have been very easy to change that—29(1)—just so that it's clearer. So, they're just being a bit stubborn, unnecessarily.
We'll write and make that specific point there and then we'll have a response back on it shortly.
Just have the two regulations match each other. What's so difficult about that?
And there are two short merits points again where we noted a couple of things. The Welsh Ministers have a power to grant or refuse licences, to classify carcasses, and appeals against the decisions of the Welsh Ministers are heard by persons appointed by the Welsh Ministers. And the draft report seeks a little more information about that appeals process and who would carry out the appeal. The Welsh Government response states the process of granting licences in the first place is carried out by the Rural Payments Agency on behalf of the Welsh Ministers, and that appeals against decisions of the Rural Payments Agency would be carried out by Scottish inspectors.
And there's a second merits point. Firstly, there's a point here that there's late implementation of this updated EU law area. But, according to the explanatory memorandum, it appears the industry was already complying with all these new updated requirements in any case. The draft report simply asked for clarification around one specific EU requirement, and the Welsh Government has come back and said, 'Yes, that specific new requirement, along with all the other new requirements, was already being complied with by the industry in Wales.'
Okay, any observations or comments?
So we then move on to the Environmental Protection (Miscellaneous Amendments) (England and Wales) Regulations 2018. There's a report, regulations, explanatory memorandum. These composite regulations make a number of amendments to the environmental permitting regulations of 2016 and the Environmental Protection Act 1990. Amendments to the 1990 Act take effect in relation to England only.
This instrument amends the environmental permitting regulations to improve operator competence at permitted waste sites by introducing requirements for written management systems and requiring the operator to notify the regulator of their compliance with a technical competence scheme. You've identified some points on this as well.
Yes, this is a composite instrument, meaning it's made by the Welsh Ministers and the Secretary of State and, as has become usual, it's made in English only, because it's laid before the Assembly and the Parliament, and there's a paper to note later on that raises this issue again.
Just one thing for me to raise on this one. Even though the amendments to the 1990 Act take effect in relation to England only, there's a possibility that Welsh Ministers could choose to amend that Act as well using this process, yes—these regulations? It's a negative procedure, but it seems to be open to amend some primary legislation through negative procedure. Are we happy with that? I'm not saying that we can do anything about it, but—
I'm not sure 'happiness' is one of our major traits—
Can I just remake the point that—
We'd be satisfied with the—.
Yes. You know what I'm saying.
Yes. No, you've made the point, and I think—
The negative process for amending primary legislation is always a bit question-marky.
It's one of the contradictions.
That was it, thank you.
Okay. We then move on to, I think, item 4.3, the Council Tax Reduction Schemes (Prescribed Requirements and Default Scheme) (Wales) (Amendment) Regulations 2019. Again, there are before you a report, regulations and the explanatory memorandum. These regulations amend the Council Tax Reduction Schemes and Prescribed Requirements (Wales) Regulations 2013 and the Council Tax Reduction Schemes (Default Scheme) (Wales) Regulations 2013, known collectively as the 2013 CTRS regulations. The regulations uprate certain figures used to calculate an applicant's entitlement to a reduction under a council tax reduction scheme and the subsequent level of reduction.
One merits point: whenever bilingual legislation defines a term, in English it'll define the term and have the Welsh in brackets afterwards and vice versa: when the Welsh uses a term, it'll have the English in brackets afterwards. The English defines the term and has the Welsh in brackets, but when the Welsh defines the term it misses out the English translation in brackets afterwards.
Okay, any observations?
Noted. There we are. [Laughter.]
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. We'll go straight on to the Environmental Noise (Wales) (Amendment) Regulations 2018. You have a report before you. The Environmental Noise (Wales) (Amendment) Regulations 2018 amend the Environmental Noise (Wales) Regulations 2006 to require the Welsh Ministers and operators of non-designated major airports, of which there are currently none in Wales, to use the assessment methods set out in the annexe to the directive of the European Parliament. Have you identified—?
Again, only to note that this is an example of domestic legislation that will form part of retained EU law on exit.
On to the Environment, Planning and Rural Affairs (Miscellaneous Amendments) (Wales) Regulations 2018. These are regulations that make a number of technical amendments to a number of statutory instruments relating to planning, agriculture, animal health, fisheries and the environment, and do not introduce any policy changes, but there have been a number of issues that have been identified.
Again, noting that this is another example of domestic legislation that will form part of retained EU law.
Okay, on to item 6, then—statutory instruments requiring consent in accordance with Standing Order 30A: European Union exit. So, we have the Marine Environment (Amendment) (EU Exit) Regulations 2018, a letter from the Cabinet Secretary, Welsh Government statement, statutory instrument consent memorandum, regulations, explanatory memorandum and commentary.
The marine environment regulations seek to ensure that the current legislation continues to operate effectively after we leave the European Union. The changes include the replacement of references to member states with references to the UK or to an appropriate UK body, the replacement of references to community legislation or EU law with references to retained EU law, and the replacement of requirements to notify a report to the Commission with requirements to report publicly, so very technical changes.
Members will have noted that the Cabinet Secretary has stated she's not minded to lay a motion for debate in this instance, because she does not believe that a debate on this statutory instrument would be a productive use of valuable Plenary time. Any comments?
Yes, I have some comments.
Just bearing in mind what we were talking about last week, about stuff coming through as a result of Brexit that we're not getting a chance to scrutinise because, if it's secondary legislation, it gets scrutinised by the UK Parliament, some comments were raised then about the explanatory memoranda for such instruments here being a bit vague on some occasions. So, we've got one here amending primary legislation through a negative procedure again, which we're dissatisfied with generally, as a principle, but we're back to this stage where there is some legislative competence relating to the marine environment, but there's no detail at all about what the legislative competence for this place actually is. Bearing in mind that there was a bit of a warning last week, I hoped that we might be getting something a little bit better this time. How does this help us? We've just been speaking to Jeremy Miles about accessibility under this new codified system, and this adds nothing to that. So, I still don't think it's up to a member of Welsh Government to say that she thinks this is not a good use of Plenary time. It's up to us as the Parliament here to decide whether we scrutinise law or not, not Welsh Government. So, I'm quite tempted, actually, to bring forward, just as a sort of a test case—to lay a motion to debate this, particularly as the Minister has said she's not averse to having a debate, just to talk through some of the constitutional principles around this.
Well, actually, there are one or two other items—when we move on to the next item, there are a number of other items, I think, that relate to concerns we have about the process or how it's working.
There are more coming up, aren't there?
What I was going to suggest at that stage—perhaps we can defer a position on this in terms of your suggestion—is that what we actually do is composite the various items that have arisen in previous meetings and this meeting, to put them together in terms of a report or submission to the Government in respect of the concerns that we have. So, do you want to hold on to that for a moment, and perhaps consider it when we come on to a number of other items where there are concerns over the way that the process is operating?
Okay. Well, if it will—. If I understand correctly, the timing is against us on trying to discuss the one that did cause us concern, which is about the tissue maintenance or—. I can't quite remember the detail of it now. Obviously—. Can you refer to that in the narrative, if you're talking about a composite? You can't change that particular one, but that was the one that alerted us all to the problems here.
I think what I'm suggesting is something that actually draws, composites, the various issues that are emerging from the process we're going through, rather than specifically intervening in a particular statutory instrument that's before us. What would be the implications of this?
The committee's free to write to the Government in some kind of comprehensive report, and you can list all the ones we've looked at over the last couple of weeks.
I don't want just a report; I want something on the floor of the Chamber.
Any committee report that's laid, we can seek debate time in the Chamber. The Chair has also got the opportunity to seek a Chair's statement in Plenary.
Okay. Well, let's see how bad it looks before we—
Yes. We'll discuss it a bit further. I think my concern is, rather than pick one item out, to actually pick a number of items across the different parts of the process in terms of what's happening, and then decide whether it's something that we want to refer specifically to get a response from Government, and, if not happy with the response, then to actually raise that as a reporting matter, which is obviously our entitlement to do so.
Okay, well, what was behind my thinking on this a little bit is that it would actually force a vote as well, even though, actually, the content of this isn't too much of a worry. I suppose we could do it in two stages, which is (1) a report that says, 'We're unhappy with how you deal with this—Government take note, or we're going to come back at some point in the future, pick a random one of these, and force it to a vote', which would be very, shall we say, inconvenient for Welsh Government, bearing in mind this stuff has already been passed by Parliament, or could be about to be passed by Parliament.
I think the reason why I'm suggesting that we might be better pulling together the various aspects of the process that we're concerned about would be what we can do now, before we go into recess, as opposed to—
Well, there's not much time, I agree.
It might be better to look at this as a review of how the process is working when we come back on 7 January.
Okay. I don't mind that way forward as a starting point, but I want to reserve the position.
Let's—. We should discuss this further in private session, later on.
We move on now, to, I think, the next item, which is 6.2, the Merchant Shipping and Other Transport (Environmental Protection) (Amendment) (EU Exit) Regulations 2018. Again, there's a letter from the Cabinet Secretary, Welsh Government written statement, statutory instrument consent memorandum, regulations, explanatory memorandum and commentary. These are regulations that amend domestic legislation and retained EU law relating to certain transport aspects of environmental impact assessment. There were some comments on this.
Just the same issues, really.
The same issues, okay.
Add it to the list.
Add it to the list, yes.
Item 7, written statements in accordance with Standing Order 30C—EU exit. Item 7.1—the Common Agricultural Policy and Agriculture and Horticulture Development Board (Amendment Etc.) (EU Exit) Regulations 2018. We have a statement and commentary. This is a written statement relating to the common agricultural policy and agriculture and horticulture development board. Any comments? No.
Well, only that this is the first UK correcting statutory instrument. I think that's probably worth noting. Let's see how that goes.
Okay. Item 7.2, the European Institutions and Consular Protection (Amendment etc.) (EU Exit) Regulations 2018, statement and commentary. This is a written statement relating to the European institutions and consular protection regulations. Now, some important items have been identified on this and a number of others, which I think we'll perhaps comment on now.
Yes. This is an example of where the Welsh Government's statement, which is on pack page 184, isn't very clear about identifying which devolved areas are being impacted upon by these UK Government regulations.
Okay. There are a number of these that we'll refer to as we go along, but this was part of the reason, I think, we brought them together with the item you've raised and one or two that we'd previously discussed for, perhaps, a review in the meeting on 7 January.
We'll move on, then, to the Transmissible Spongiform Encephalopathies and Animal By-Products (Amendment) (EU Exit) Regulations 2018. Any comments on that? Okay.
Item 7.4, the air quality amendment of domestic regulations 2018, statement and commentary. And, again, there's another item that's been identified there with regard to incorrect legislative referencing there.
Again, yes. The statement from the Welsh Government on pack page 193—again, there's a lack of clarity in the statement. For example, the statement requires the statement to set out any impact the SI may have on the Assembly's competence or the Welsh Ministers' Executive competence, and the response is simply,
'The protection of air quality falls within competence'.
So, it's not telling us what the impact is. And it appears that the list of legislation being amended by these regulations seems to be incorrect in the statement on pack page 193.
Well, I think we do need to draw attention to the incorrect referencing, but—again, this can go into the list, but I think we do need to write specifically on this about that point.
We're on to now the CRC energy efficiency scheme amendment—. Have I missed one? I beg your pardon. The Air Quality (Miscellaneous Amendment and Revocation of Retained Direct EU Legislation) (EU Exit) Regulations 2018—same issue there again. Okay.
Item 7.6, then, the CRC Energy Efficiency Scheme (Amendment) (EU Exit) Regulations 2018. Any comments on that? Observations? No.
Then on to the Justification Decision Powers (EU Exit) Regulations 2018. Any comments on that or observations? No.
On to 7.8, the veterinary medicines and animals and animal products regulations 2018. Again, a statement and commentary. This is a written statement relating to the veterinary medicines and animals and animal products regulations. Any comments, observations?
Seven point nine, then, the trade in animals and related products regulations 2018. Any observations, comments? No.
The Protocol 1 to the EEA Agreement (Amendment) (EU Exit) Regulations 2018. Again—.
Yes, again, this is an example we've identified. The Welsh Government's statement on pack page 219, again, does not identify which devolved areas are impacted upon by these UK Government regulations.
And, of course, that process is to be compared with item 7.11, which is the Common Fisheries Policy (Amendment etc) (EU Exit) Regulations 2018, which is an amendment relating to the common fisheries policy regulation 2018, and commentary on that in terms of—.
Yes. This is an example of where the Welsh Government's statement is particularly helpful in explaining what impact these regulations have in relation to Wales.