National Assembly for Wales

Back to Search

Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

11/02/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

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

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

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

Cynnwys

Contents

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datganiadau o fuddiant 1. Introduction, apologies, substitutions and declarations of interest
2. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3 2. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3
3. Offerynnau a ystyriwyd yn flaenorol ar gyfer sifftio ac sydd bellach yn destun craffu o dan Reolau Sefydlog 21.2 a 21.3 3. Instruments previously considered for sifting and now subject to scrutiny under Standing Orders 21.2 and 21.3
4. Offerynnau sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.2 neu 21.3 4. Instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3
5. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3 ond sydd â goblygiadau o ganlyniad i ymadawiad y DU â'r UE 5. 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
6. Offerynnau negyddol arfaethedig nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B 6. Proposed negative instruments that raise no reporting issues under Standing Order 21.3B
7. Offerynnau negyddol arfaethedig sy'n cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B 7. Proposed negative instruments that raise reporting issues under Standing Order 21.3B
8. Offerynnau Statudol sydd angen Cydsyniad: Brexit 8. Statutory Instruments requiring Consent: Brexit
9. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C 9. Written statements under Standing Order 30C
10. Bil Deddfwriaeth (Cymru): Ymatebion i’r Ymgynghoriad 10. Legislation (Wales) Bill: Consultation Responses
11. Papurau i'w nodi 11. Papers to note
12. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod 12. Motion under Standing Order 17.42 to resolve to exclude the public from the meeting

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

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

Dechreuodd y cyfarfod am 14:30.

The meeting began at 14:30.

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

Okay. This is a meeting of the Constitutional and Legislative Affairs Committee. We'll start with item 1, introduction, apologies, declarations of interest. We've had apologies from Suzy Davies and from Carwyn Jones. I'm not aware of any substitutes. The usual housekeeping rules will apply, and I'll just ask if there are any declarations of interest. 

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

If there aren't any declarations of interest, we move straight on to item 2, instruments that raise no reporting issues under Standing Order 21.2 or 21.3.

Item 2.1 is the National Health Service (Paramedic Independent Prescriber and Paramedic Supplementary Prescriber) (Wales) (Miscellaneous Amendments) Regulations 2019. These are regulations that amend the National Health Service (General Medical Services Contracts) (Wales) Regulations 2004, the National Health Service (Free Prescriptions and Charges for Drugs and Appliances) (Wales) Regulations 2007 and the National Health Service (Pharmaceutical Services) (Wales) Regulations 2013, the purpose being to extend the definition of 'prescriber' to include paramedic independent prescribers. They also amend the definition of 'supplementary prescriber' in those regulations to include paramedic supplementary prescribers. They also amend the Single Use Carrier Bags Charge (Wales) Regulations 2010 by extending the exemption from the requirement to charge for single-use carrier bags to include products prescribed by a paramedic independent prescriber and a paramedic supplementary prescriber. Are there any issues on that—any comments or observations from the Members?

3. Offerynnau a ystyriwyd yn flaenorol ar gyfer sifftio ac sydd bellach yn destun craffu o dan Reolau Sefydlog 21.2 a 21.3
3. Instruments previously considered for sifting and now subject to scrutiny under Standing Orders 21.2 and 21.3

In which case we then move on to item 3, and as a general handling matter, we have a number of instruments that have previously been considered for sifting in accordance with Standing Order 21.3B. In the sift process, the committee agreed that in all cases the appropriate procedure for the regulations was the negative resolution procedure. So, now these are matters that are subject to the usual scrutiny in accordance with Standing Orders. All the instruments have clear reports, but they do contain a number of merits points to highlight the sift process.

So, I move on, then, to 3.1, which is the Radioactive Contaminated Land (Modification of Enactments) (Wales) (Amendment) (EU Exit) Regulations 2019. Are there any comments on that? No.

I move on to item 3.2, the Equality Act 2010 (Statutory Duties) (Wales) (Amendment) (EU Exit) Regulations 2019. These are regulations that amend regulation 18 of the Equality Act 2010 by removing a reference to the public sector directive—that's the European Union directive—as that reference will be deficient after exit day. The instrument provides that the terms that are currently defined by reference to the public sector directive will instead be defined by reference to the Public Contracts Regulations 2015. Any comments on that? Any comments on that—any observations from Members?

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

In which case, we move on to item 4, 4.1, the Equine Identification (Wales) Regulations 2019. You'll see that we raised a number of issues there with regard to some amendments that were required to the regulations. We've had a response.

Diolch. Yes, the committee raised a technical reporting point on these regulations last week, about the duty of owners of equines to ask the issuing body to update the identification details of equines. The Welsh Government response is on pack page 5, where the Welsh Government accepts the point and says a new set of regulations will be made to address the committee's reporting point as soon as possible.

I think a key issue for us is to follow through with the 'as soon as possible' in due course. Obviously, the system is under considerable pressure at the moment with the Brexit regulations, et cetera.

5. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3 ond sydd â goblygiadau o ganlyniad i ymadawiad y DU â'r UE
5. 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 5, 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 have the Plant Health (Wales) (Amendment) Order 2019. You have a report there. The Order amends article 19 of the Plant Health (Wales) Order 2018, which applies to certain plants intended for planting, which have grown or are suspected to have been grown in another member state or in Switzerland. It requires the importer of any such plants to notify an authorised inspector in writing of their landing no later than four days after the date of their landing in Wales. This amendment extends these requirements to plants of Olea europaea L. Any comments?

14:35

Only to note, this Order relates to EU law and provides an example of the kind of legislation that will form part of retained EU law on exit. 

Yes. As a point of clarification, why the reference to Switzerland, which is not in the EU? 

I don't have the answer at hand. I can find out. 

I think it's because of the particular relationship they have, that they are effectively covered by the existing regulations, and, therefore, any changes we make will also extend the arrangements and the obligations for notification to anything that comes from Switzerland. It's my understanding, and if I turn out not to be correct, please raise this in due course. 

Affirmative resolution instruments: the Household Waste Duty of Care (Fixed Penalties) (Wales) Regulations 2019. These regulations insert a new section 34ZB into Part II (waste on land) of the Environmental Protection Act 1990. Section 34(2A) of the Act sets out the duty of care that applies to occupiers of domestic property in relation to household waste produced at their property, and the duty requires occupiers of domestic property in Wales to take all measures available to them as are reasonable in the circumstances to secure that any transfer made by the occupier of their household waste is only to a person that is authorised to accept it. So, the new section confers the power on waste authorities in Wales to give a notice offering a person the opportunity of discharging any liability for the offence by payment of a fixed penalty. When issuing a notice, the authority may offer a discount for early payment of a fixed penalty. Any issues?

Again, only to note, this is an example of legislation that would form part of retained EU law—

6. Offerynnau negyddol arfaethedig nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B
6. Proposed negative instruments that raise no reporting issues under Standing Order 21.3B

In which case, on to item 6, proposed negative instruments that raise no reporting issues under Standing Order 21.3B. We have the Trade in Animals and Related Products (Amendment) (Wales) (EU Exit) Regulations 2019, and you have a report with you. The regulations make amendments to the Bovine Semen (Wales) Regulations 2008 and the Trade in Animals and Related Products (Wales) Regulations 2011, which concern trade in animals and related products. These regulations were laid for the purpose of sifting under the European Union (Withdrawal) Act 2018 in accordance with Standing Orders. Any issues?

The Welsh Government proposes to make these regulations via the negative resolution procedure. The draft report suggests that is the appropriate procedure, but included in the report on pack page 11 is some commentary from one of the UK Parliament committees that sifted the equivalent regulations in Westminster. While the regulations deal with importing animals from the EU into the UK and propose to maintain the current arrangements, the question of whether the EU will reciprocate these arrangements is still subject to negotiations, and that was enough for one of the Westminster committees to bring this to the attention of the Houses of Parliament and to suggest an uplift to the affirmative procedure. But another committee was happy at Westminster that the negative resolution procedure was appropriate.

I mean, applying our normal criteria, we'd go for negative on that. I understand the issue that's obviously been raised because of a lack of clarity in that area, but that may come back to us at some stage. Are you happy with that approach?

Are there any other comments or observations?

If not, we're on to now 6.2, I believe, the Food and Feed Regulated Products (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These regulations amend the Genetically Modified Food (Wales) Regulations 2004, Materials and Articles in Contact with Food (Wales) Regulations 2012 and the Food Additives, Flavourings, Enzymes and Extraction Solvents (Wales) Regulations 2013. Are there any issues that arise? No. Comments? Any observations? No.

In which case, then, we move on to the Food and Feed Hygiene and Safety (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. Regulations make amendments to secondary legislation in the field of food and feed hygiene and safety. Any comments or observations on those?

7. Offerynnau negyddol arfaethedig sy'n cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B
7. Proposed negative instruments that raise reporting issues under Standing Order 21.3B

In which case, item 7, proposed negative instruments that raise reporting issues under Standing Order 21.3B: the Regulation and Inspection of Social Care (Qualifications) (Wales) (Amendment) (EU Exit) Regulations 2019. I think there are a number of issues that may arise here. These are regulations that make amendments to the regulation and inspection of social care relating to the regulation of social workers and social care managers. Amendments are also made to the Regulation and Inspection of Social Care (Wales) Act 2016 relating to exclusions to the scope of regulated advocacy services to amend references to European lawyers and to the Mental Health Act 1983. These amendments are required in order to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the United Kingdom from the European Union without agreement. Comments there, Gareth?

14:40

The Welsh Government proposes to make these regulations via the negative resolution procedure. The draft report on pack page 15 sets out three reasons why the affirmative procedure may be appropriate, the first being the sheer number of changes being made to primary legislation, namely the Regulation and Inspection of Social Care (Wales) Act. If Members turn to pack page 19, the second half of that piece of legislation sets out changes being made to sections 66, 74, 80, 84, 85, 85A, et cetera, and the following page—more sections of the 2016 Act being deleted or amended. That's the volume of primary legislation being amended.

Secondly, these regulations set out the new rules that will apply to recognising social care qualifications gained in the European Economic Area or Switzerland. So, instead of the automatic recognition that currently applies under EU law, social care qualifications will be recognised via the current international registration operated by Social Care Wales. There's no regulation impact assessment and no public consultation, so the impact this change could have has not been set out clearly.

Thirdly, the Welsh Government describes these changes as 'minor' and 'technical in nature' and that they involve no substantial policy change, but Members may feel that the changes just described are more than minor and technical in nature. That's the background. It's, of course, up to Members whether they think that the issues raised mean that the regulations should be debated in Plenary and that the affirmative procedure should apply.

It's a question of degree, isn't it? The view I take is that these go slightly beyond just technical, minor amendments. They are amendments that may well be very straightforward, et cetera, but they are matters that would be appropriate to go before the Assembly through the affirmative procedure. Of course, we can recommend that, and I open the floor to any comments and observations on this.

I'm happy with that. Excellent report, and it outlines the need for this to be debated here on the floor and also to be the affirmative procedure.

Of course, the Government doesn't have to accept our recommendation, but I think it's important that we at least confirm that we've focused on this issue and that we raised a concern about that, and there will be a response to that in due course, either by it being tabled or by arguments or explanations against.

8. Offerynnau Statudol sydd angen Cydsyniad: Brexit
8. Statutory Instruments requiring Consent: Brexit

We move on to item 8, then, if there are no other comments on that, which is the UK Statistics (Amendment etc) (EU Exit) Regulations 2019. Now, we have a letter from the Minister for Finance and Trefnydd. I think that's on page 36. As I went through this, this amends 293 sets of EU regulations, which are set out, I think, on pages 43 to 63 and makes 154 regulatory changes to parts of the EEA agreement. They are, in fairness, very technical and so on, but let's open this to comments in a moment. You've got, obviously, the letters and papers in front of you. What the regulations do is update references to EU obligations and EU legislation in the Statistics and Registration Services Act 2007 to their retained equivalents. They also amend the Public Contract Regulations 2015, the Concession Contracts Regulations 2016, the Utilities Contracts Regulations 2016 and other regulations as well. So, I just invite some comments at this stage. 

Only to note the sheer number of minor changes being made to legislation, including primary legislation, which is why a statutory instrument consent memorandum has been laid by the Welsh Government.

If I just refer to page 36, we have the letter there. Why was consent given? There was no divergence between Welsh Government and the UK Government on the policy for the correction, therefore, making separate statutory instruments in Wales and England would lead to duplication and unnecessary complication of the statute book. Any comments or observations? Are we happy with that?

14:45
9. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C
9. Written statements under Standing Order 30C

Item 9, written statements under Standing Order 30C. The European Structural and Investment Funds Common Provisions and Common Provision Rules etc. (Amendment) (EU Exit) Regulations 2019. You have a statement and a commentary. The written statement indicates that the aim of the regulations referred to in the statement is to maintain the operability of the structural funds programme in the event of a 'no deal' exit scenario. There have been a few minor errors that have been identified; I think those are on page 95. I just invite any comments, observations.

Nothing more of substance than that.

Okay. On to item 9.2, the General Food Law (Amendment etc.) (EU Exit) Regulations 2019—a statement and commentary. The written statement indicates that the aim of the regulations referred to in the statement is to correct deficiencies in legislation arising from the UK leaving the EU relating to general food and feed safety and hygiene. There are some comments to be noted there.

Yes. I think it's worth noting how clear and helpful the Welsh Government's statement is and how that helps the committee carry out effective scrutiny. And that applies to the remaining series of food-related regulations before the committee under agenda item 9.

We're fast enough to note flaws, so perhaps we should write, thanking them for the thorough nature of the regulations in that context.

I think that's a very wise and pertinent comment to make.

Yes. Agreed. If there are no other comments, then, in which case, we move on to the Specific Food Hygiene (Amendment etc.) (EU Exit) Regulations 2019. The written statement indicates that the aim of the regulations referred to in the statement is, again, to correct deficiencies arising from our leaving the EU. Any comments on that? No.

Then, on to 9.4, the General Food Hygiene (Amendment) (EU Exit) Regulations 2019—a statement there, a commentary. The written statement indicates that the aim of the regulations referred to in the statement is, again, to correct deficiencies in legislation arising from our leaving the European Union, relating to the general principles for the hygienic production of foodstuffs and the effective and proportionate controls that must be applied. And I think, again, we noted the same issues with regard to the clarity of the statements and the clear explanations provided, and we can refer to that in the letter that we've decided to send already. Any other comments or observations?

It's nice to see, in the beginning, when people were saying about leaving the EU and Wales don't get this and Wales don't get that, it's nice to see these coming through, straight, directly to Wales.

Yes, yes. Okay, we'll note that. Any other comments or observations? Okay.

The Contaminants in Food (Amendment) (EU Exit) Regulations 2019. This is another piece of legislation to refer to deficiencies in legislation arising from our leaving the EU, regulating certain contaminants in food, including nitrate mycotoxins—I'm sure Dai Lloyd will explain to us what they are—metal and veterinary medicines.

Any comments or observations? We move quickly, then, on to the Quick-frozen Foodstuffs (Amendment) (EU Exit) Regulations 2019. These are regulations, again, to correct deficiencies arising from our leaving the EU that relate to the monitoring of the temperature in the means of transport, warehousing and storage used for quick-frozen foodstuffs. Any comments or observations?

10. Bil Deddfwriaeth (Cymru): Ymatebion i’r Ymgynghoriad
10. Legislation (Wales) Bill: Consultation Responses

Okay, in which case, then, we move on to item 10, Legislation (Wales) Bill: consultation responses. As you know, we're grateful for the arrangements with Members, as we were due to have the Counsel General today, but, because of urgent matters that have arisen, we've now rescheduled that for next Monday. Consultation on the Bill has closed. You have, I think, before you a summary of the submissions that have been made. Some very interesting ones there, but they're for consideration post session with the Counsel General next week. Any comments? No—just to deal with all that when it comes up next week.

14:50
11. Papurau i'w nodi
11. Papers to note

Then, item 11. There are a couple of important items of correspondence that we need to look at carefully. Item 11.1 is a letter from the First Minister: interpretation of the European Union (Withdrawal) Act 2018 and the inter-governmental agreement on the European Union (Withdrawal) Bill and the establishment of common frameworks. Members will note the letter from the First Minister, which is a response to our letter on the interpretation of the withdrawal Act and the inter-governmental agreement. I think this takes us to certainly the 7 February letter, which is at page 208, I think. Just give me a moment to get to that. Any comments on that? No. Well, I've got a few comments to make that I'd like to raise, and I do have some concerns over the letter received from the First Minister on this, which relate to the letter of 7 February, and there was an earlier letter, of something like 14 January—

It's on pack page 211.

Pack page 211.

Yes. Page 211 is the letter that I sent to the First Minister where we identified a number of concerns about whether policy changes were being made and that those were covered by the inter-governmental agreement. And, in the letter that's been sent to me, dated 7 February 2019, there's a narrative that is really about the extent of policy change, and in the third paragraph it says, 

'In respect of the interpretation of the 2018 Act, there is an element of policy choice in deciding the appropriate way in which to address a deficiency.'

It says,

'a policy choice is not necessarily a substantive change to the policy itself. We have given careful consideration to UK regulations, which make provision in devolved areas and where there is no policy divergence about how to correct the deficiencies, consent has been provided.'

It also says, 

'The policy choice is limited to what is necessary to make the law operational on exit'.

It also says that they,

'have opted to retain the fundamental aspects of existing policy',

and that, 

'the substantive policy position has remained unchanged.'

It then goes on to say, 

'The question is what degree of policy change constitutes a new policy, and we do not consider that the threshold to be met in this case.'

It goes on, on page 209:

'We have opted to retain the fundamental aspects of our existing policy, which is to remain within the existing UK-wide system for certificates of competence'.

These are relating to the animal welfare and also the floods and water regulations—the two sets there. And then, 

'There was not a compelling policy rationale for doing so at this point, although this option remains open to us in the future should this become Welsh Government policy'.

The issue that occurs to me on this is this: if there is a policy change, even if it is a minor change, it's fair enough for them to say, 'It's a minor change and we don't think that it's necessary for this to be debated or to be raised in the Assembly', but there needs to be a rationale and we need to be able to consider how that test has been applied and what the criteria are. Because, otherwise, issues that arise under the inter-governmental agreement are matters that we need to consider. We need to be able to test that; that is our scrutiny and constitutional function. So, I have a little bit of concern as to whether that is the correct testing applied anyway, but I'm also concerned, really, about the approach to it, which really seems to me a very casual approach to what is an important scrutiny matter. They may turn out to be right in the end, but it doesn't help us in terms of the function that we have to carry out on that.

So, I am concerned on this, and there's a matter further on that perhaps we can refer back to as well, that, if we keep this in mind for the moment as we move forward, I certainly think that the premise that has been raised in this letter should be considered constitutionally and in terms of the way in which this committee operates and what its function actually is, and whether the approach being adopted by Welsh Government is as robust or is applying, actually, the right test. I'll stop there at the moment, because I know this is all quite technical stuff. Are there any comments or observations from anyone?

14:55

I think that's a sensible view. In terms of here in this committee, we're looking after the legislature, as such, and if we're just going to have everything government to government, without the ability of the legislature through us to be able to scrutinise it, especially if we—. It's fair enough if it's a minor technical alternation, but if we're now starting to stray into policy, even if it's a small policy change, we need to have a view on the guidelines for what constitutes a minor policy change, I suspect, for our ability to scrutinise it. Because otherwise there's a danger of the legislature being cut out of the whole process, I would say.

Any other comments? Shall we just defer that for the moment? Let's just carry on, then, because we go on to item 11.2, a letter from the Minister for Finance and the Trefnydd, 7 February. It's at page 214. Let me just refer to that as well. This is a letter to me from the Minister. It's an issue with regard to scrutiny of legislation and it states in, I think, the third paragraph—. This is where Welsh Ministers have consented to the whole of a statutory instrument, and where we've raised the issue that we want you to identify that part that relates to the devolved powers. We need to specifically be able to consider that. It may be what they're doing is right, but the way that's being responded to and dealt with is that, as the Government has previously observed, they say—the Minister says— 

'the written statements do not detail which parts of SIs Welsh Ministers have consented because they are consenting to the whole SI. Where an SI is in at least part devolved, Welsh Ministers will consider whether to consent.'

It follows on at the bottom of the page there, saying that,

'Issues of competence are often not clear-cut. The devolved and non-devolved elements of an SI are, in many cases, so intertwined that it can become artificial to draw rigorous distinctions between them'.

I don't think any of that's something we'd disagree with. It then goes on to say that,

'Taking a proportionate approach that focuses on the impact of the SI means the exact boundary of devolution within the SI is not of immediate relevance, as long as we are confident that it falls within competence to an extent.'

Now, it certainly seems that that is a matter that is of concern to us. They go on in the letter to say,

'Once the presence of a devolved element has been identified, officials and lawyers can focus on a detailed analysis of the effect and impact of the SI'.

This, taken together with the previous matter, where, in this case, in my letter of 14 January, we were asking why the written statement cannot detail the specific provision for which consent is being given, and that we asked if they would confirm the specific provisions within their statements, and referring to a particular set of regulations—. Now, it seems to me, taking those two matters together, the concern I have is that there is a—. I can understand that they are under enormous pressure, but our function is to scrutinise, to hold to account the exercise of quite substantial powers. It may well be that decisions are right, but in order for us to carry out our function—scrutiny of legislation and powers—it is not unreasonable for us to request the focus on these specific aspects of devolved statutory instruments, or to have identified and highlighted as part of the Government process those areas where there are policy changes, and to make specific reference to them so that we can actually carry out our function and make a judgment on that.

My concern is that, if we allow these matters to go through in a fairly casual way like this, then we are diminishing the quality of the scrutiny process. I can understand that there are considerable pressures. Those pressures aren't the matter of our major concern. Our job is to carry out scrutiny, and I think we should write challenging the two principles, or the two positions that have been set out in those two letters, perhaps combine them into one. And then, whatever response we get back, we can debate further when it comes here. Sorry, I realise I've been doing all the talking on this. I was trying to prepare to make sure I had it clear in my own mind the concerns that are there. But what I'm concerned about is whether those are concerns that the members of this committee share as well. 

15:00

As you know, the timeless concern of this committee is not just any potential loss of powers from Welsh Government to Westminster, but also a leaching of powers from the legislature to Welsh Government as well. Okay, so we're interested in the two prongs of that, really, and more widely about this legislature just being bypassed anyway, because it's so called in the inter-governmental agreement—well, we're not really part of that. I agree with you—we shouldn't use, or we can't, in terms of the scrutiny process, use time contraints or the fact that things have to be done, so that we don't carry out any scrutiny. We're challenged to scrutinise, and we intend to scrutinise. 

Are there any legal comments? No. These are really matters to raise, I think, within our interpretation as the committee as to what our function is, and the responses we've had to letters that we've raised. If we're able to put that together into a joint letter, we can have a look at the draft of that and, if needs be, to circulate it before it goes off.

Okay, thank you for that. I'm trying to remember where we are now. We are on item 11.4. I beg your pardon—11.3: a letter from the Minister for Finance and Trefnydd regarding the Plant Breeders' Rights (Amendment etc.) (EU Exit) Regulations 2018. And we've had a letter there dated 7 February in response to my letter of 14 January, and that's at page 220. 

I think that just really raises some additional matters within the same framework of our scrutiny function. There is a response there. The Minister says, 

'We anticipate that in Wales many of these will be conferred on authorities within the Welsh legislative competence. However, there may be similar instances where the most appropriate body is a UK-wide body. The effect such a conferral would have on legislative competence will vary depending on the subject matter. It is not possible to state definitively whether a future SI would raise the same issue in advance of considering the draft'.

Is there anything on that item—sorry?

The final paragraph as well.

'Welsh Government officials are in contact with the Wales Office about the unintended restrictions on the Assembly’s competence created by powers conferred in EU Exit SIs and other legislation, which engages paragraphs 8, 10 and 11 of Schedule 7B of the Government of Wales Act. Officials are examining the issue in detail and considering how it can best be resolved. The Welsh Government will keep the National Assembly, including the Constitutional and Legislative Affairs Committee, informed about the progress of these'.

So, there is a clear recognition there that there are unintended restrictions occurring. I think those are the issues that we've been raising that we're concerned with—

Some of us would indicate perhaps they're not unintended. There was a definite possibility that this might happen. 

It may be the case that within the scheme of the whole nature of this situation that we're in there are things that are justified and there are changes of various degrees that are sensible. The point is is that they're happening now by the exercise of ministerial powers, rather than by proper scrutiny, and it's the mechanism for—. In many ways, I suppose the attitude is a slightly laissez-faire approach to the shifting of powers in these areas, and I think that's what we need to be concerned about. So, we'll reflect that within the broader context of the letter, because all those items are related to one another. 

We are now on to item 11.4, I believe: a letter from the Minister for Finance and Trefnydd regarding the Nutrition (Amendment etc.) (EU Exit) Regulations 2019. There's a letter there to note. That's at page 228. 

15:05

Sorry. I beg your pardon—221, 222, 223. I beg your pardon, there we are. So, we have that letter at 223, where we raise a number of constitutional issues that have now been responded to by Government and a clarification on the exercise of concurrent hours. Any comments on that? Anything that we need to pay particular attention to?

Just to note in one paragraph of the letter—the fourth one down:

'Officials were unaware of any issues up to this point but they have subsequently been made aware that errors were spotted'

and the regulations have been withdrawn again.

So, that will come to the committee a few times. 

That will be back before us. Okay.

We're then on to the next item. That brings us to the end of the main business. We have the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019. And, again—sorry, that's just a letter from the Minister for Finance and Trefnydd, which is at 228. And I think the only point here is that it's a very thorough and comprehensive letter in response to the issues that we raised with them. Any comments on it? It's certainly information that we could have had perhaps earlier in the process, but we have raised it with them, with the Minister, and we have had a comprehensive response back. So, that's it.

I think we now move on—we need to consider the completion of our consideration of our report on the Welsh Government's legislative consent on the Fisheries Bill, I think. We need to consider that, so we need to move into private session.

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

Cynnig:

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

Motion:

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

Cynigiwyd y cynnig.

Motion moved.

So, in accordance with Standing Order 17.42(vi), I invite the committee to resolve to exclude the public from the remainder of the meeting. 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:07.

Motion agreed.

The public part of the meeting ended at 15:07.

Explore the National Assembly for Wales