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Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

18/02/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Carwyn Jones AM
Dai Lloyd AM
Dawn Bowden AM
Mandy Jones AM
Mick Antoniw AM Cadeirydd y Pwyllgor
Committee Chair
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 a’r Gweinidog Brexit
The Counsel General and Brexit Minister

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Alys Thomas Ymchwilydd
Researcher
Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Ruth Hatton Dirprwy Glerc
Deputy Clerk
Sam Mason Cynghorydd Cyfreithiol
Legal Adviser
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. Bil Deddfwriaeth (Cymru): Sesiwn dystiolaeth 6 - Cwnsler Cyffredinol 2. Legislation (Wales) Bill: Evidence session 6 - Counsel General
3. Offerynnau negyddol arfaethedig nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B 3. Proposed negative instruments that raise no reporting issues under Standing Order 21.3B
4. Offerynnau negyddol arfaethedig sy’n cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B 4. Proposed negative instruments that raise reporting issues under Standing Order 21.3B
5. Offerynnau nad ydynt yn cynnwys unrhyw faterion i’w codi o dan Reol Sefydlog 21.2 neu 21.3 5. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3
6. Offerynnau sy’n cynnwys materion i gyflwyno adroddiad arnynt i'r Cynulliad o dan Reol Sefydlog 21.2 neu 21.3 6. Instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3
7. Adroddiad Rheol Sefydlog 30B: Deddf yr Undeb Ewropeaidd (Ymadael) a Fframweithiau Cyffredin 7. Standing Order 30B Report: The European Union (Withdrawal) Act and Common Frameworks
8. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C 8. Written statements under Standing Order 30C
9. Papurau i’w nodi 9. Papers to note
10. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod 10. 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 13:01.

The meeting began at 13:01.

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

We'll start now. Welcome to this meeting of the Constitutional and Legislative Affairs Committee. Item 1, any apologies; I see we have a full committee attendance today. Are there any declarations of interest? If there aren't any, just to say that the usual housekeeping rules will apply.

2. Bil Deddfwriaeth (Cymru): Sesiwn dystiolaeth 6 - Cwnsler Cyffredinol
2. Legislation (Wales) Bill: Evidence session 6 - Counsel General

We move on to item 2, and I welcome the Counsel General, attending again, this session, with Dylan Hughes, First Legislative Counsel to the Welsh Government, Dr James George, legislative counsel to the Welsh Government and Claire Fife, policy adviser to the Counsel General. Thank you for attending. We have, of course, taken an amount of oral witness evidence already, and there are written evidences being received. You will have noted, I think, the very positive comments about this Legislation (Wales) Bill from others, such as Lord Hope. I hope your voice is a bit better, but if there are any problems, please feel free to just stop and take a drink of water or whatever.

If we're ready to proceed, then, Counsel General, just by way of an opening question, you have, of course, been in contact with the UK Government, with the Secretary of State for Wales. He wrote back in December that some of the provisions of the Bill raised questions relating to the devolution boundary, and he said it had implications for the clarity and accessibility of parliamentary legislation, given that parliamentary Acts and statutory instruments made under them are within its scope, and he obviously wanted to see a continuation of discussions between Welsh Government and the Secretary of State for Wales. Perhaps as a starting point, have there been any further discussions, are there any further developments as a consequence of those discussions? And, are there any concerns that you have related to perhaps the legislative competence of the Bill, particularly the interaction with the legislative process at UK level?

Well, Chair, the First Minister has written to the Secretary of State confirming that we are clear in our view that the competence remains as it was. We have asked for concrete examples of where practical issues might arise and haven't yet received anything to suggest that there are any. You'll recall that before the Llywydd gave her determination on competence, I took the precaution of sharing the correspondence with her at that point, and there hasn't been any development since then that suggests any change in my understanding and my view of the competence in relation to this Bill. 

Okay, thank you. I'll move on to the next set of questions, then, to Dawn Bowden.

Thank you, Chair. Counsel General, the Welsh Government's programmes of accessibility, we know, are going to be at the heart of driving the accessibility of Welsh law. Are you able to provide more detail as to the range of activities that are likely to be included in the programmes to improve accessibility?

Yes. That will be something that is looked at on a programme-by-programme basis, but the kind of thing that I have in mind is firstly a significant development of the Law Wales website, which is an online resource for commentary on the law in Wales by Government, by the Assembly, by commentators, academics, practitioners and so on. So, a significant upgrade of what we currently have in relation to that, which, to be honest, is, I think at best described as a 'work in progress' at the moment. We're also working with the National Archives to update the basis on which Welsh law is updated and published. There's a significant amount of work to be done there, so advances in that programme will be the kinds of things I would envisage.

And, as well, I mentioned—. I think, in one of the statements, I may have mentioned this in the Chamber: we're looking at—inspired by the work done by Department for Environment, Food and Rural Affairs and the Northern Ireland administration in relation to organising by subject matter—the laws that are published within those domains, as it were, looking at something similar here in Wales. That isn't about consolidation, it isn't about changing the law, it's about putting it in a different place.

13:05

Thank you. Thank you for that. Now, we also received evidence that the duty to prepare programmes for accessibility under Part 1 of the Bill should be supplemented by a duty to give effect to the programmes. Why is there only a duty to prepare a programme and not a duty to implement a programme?

Well, there is a duty to prepare and there's a duty to include some specific things within that programme. So, there are two concrete obligations on the Government already. I suppose my perspective on it is that the programme is an indication of what the Government intends to do over the course of an entire Assembly term. And so, it really is a matter of political pressure, it seems to me, to ensure that that is done. There are opportunities in the Chamber, as the Counsel General gives a report, and other opportunities for scrutinising the Government in meeting its stated ambition—but in putting forward that mechanism, or that approach, I was inspired by what's done in New Zealand, which is very much along those lines. It describes the intention of the Government over the course of an entire parliamentary term.

Thank you. Good afternoon, Counsel General. Sorry to hear your voice. It shows, I think, you've been a powerful advocate for us in the halls of Westminster.

Can I ask you, to begin with, before I ask about accessibility—? There's been some debate in the evidence that we have had as to what a code actually looks like. I suppose there are two competing visions for a code: one would be a code in the style that we're used to in many civil jurisdictions, and, indeed, in some common law jurisdictions in the United States, where everything is in a code. The second suggestion is that we, in effect, are gathering together existing and new legislation in, as it were, a publication, or a catalogue—I'll put it that way, I don't mean to demean it in any way, but that's the kind of thing we're looking at. For you, what does a code look like?

Well, it's more than a catalogue; it's more than a gathering together, because it involves remaking the law in a consolidated form. So, it involves a legislative process in the way that the Assembly legislates in any way, but governed by particular Standing Orders. And the reason I mention that is because there's been some discussion in the evidence about whether the code should be a legal instrument—a thing that is separate from an Act of the Assembly. I don't see that as a way through it. At the end of the day, the Acts that form the foundation of a code will be Acts of the Assembly, so I don't think it's particularly meaningful to characterise them as something else. However, the critical thing is that those codes are maintained; that the structure that is settled upon is maintained, and that, I think, is the role of the Standing Orders in protecting those principal Acts within the codes.

So, the Assembly will be presented with consolidation Bills, those Bills will be scrutinised, debated, and hopefully passed, and I would expect and hope that these Standing Orders of the Assembly would then protect those primary Acts as the foundations of the code so that the Member in charge of future legislation would have to justify departure from that, if they were trying to legislate outside, by way of amendment, those primary Acts. So, that would be the primary level.

And I would imagine, for example, within the education sphere, you might have an Act for schools—a primary Act for schools, one for further education, one for higher education, one for the profession, and those would be the core building blocks of the education code. And then, secondary legislation would be consolidated under each one.

Okay. Two more issues from me: one is accessibility, if I can come to that in a moment. The first one, though, is in terms of law making: how do you feel that this will improve the current system of law making that we have? In other words, will it effect a permanent change, do you think, in our law-making process?

Well, I think there are two aspects to that. Firstly, the point I've just touched upon, the role of the Standing Orders. If they play the role of protecting the status of those primary Acts, then, I think that will affect the way in which we legislate, because there'll be an assumption that future reform legislation happens within the parameters of those existing Acts. So, that's one way in which it would affect our law making. 

On the accessibility agenda more broadly, of course, one of the objectives is to impose on the Government a pressure to ensure accessibility throughout the legislative process, and so I think that imposes a further obligation to make sure that Bills brought forward are the most accessible versions of those Bills that they can be. And I think there's also a dialogue then with the Assembly, between the Assembly and the Government, about what a programme of accessibility might look like over the next five or 10 or 15 or 20 years. So, there's a shared understanding of what that needs to be, because if it becomes a task solely for the Government then I think we will have failed, really. It should become part of the institutional culture of the Assembly, for us all to want Bills and statutory instruments to be as accessible as possible. 

13:10

So you would see it as—for example, within planning, all legislation, both primary and secondary, in planning would sit within a particular area that people could access—

[Inaudible.]—in a code. If you want to know about planning in Wales, everything you need to know is to be found in this code.

Yes, basically. By way of example, in the taxonomy, we've suggested a planning land use code, so one of the primary building blocks of that would be the Planning Act, and we would consolidate all the existing planning legislation—primary legislation—into one Act, and then all the SIs would be consolidated beneath that. Obviously, we have the benefit of the Law Commission's work in relation to planning specifically, but planning takes you to another example of the value of the code, which is the publication of guidelines and technical notices and so on, which are obviously a significant amount of the law and guidance in planning, and that would also be published together with the related legislation as part of the code. 

Finally from me, then, in terms of what a code looks like, a few witnesses have said to us they're not sure how to respond to consultations, and don't know what a code should look like. So, there would be a need to consult, it would seem to me, further in the future. 

Now, I don't expect there to be an entire draft code produced in the next few weeks in the area of planning or anywhere else for that matter, but it would be helpful, perhaps, if those witnesses would have an idea of what a code might look like generally. Not what's in it, but what will the structure be, what will it contain—because there has been some confusion about what a code is, and I think the quicker that's resolved, the easier it would be for them to respond.

I did pick that up in the evidence and I think it's a perfectly legitimate question to ask and concern to raise. The taxonomy was intended to give a big-picture description of the kind of categories of code, but if you look at your questions about what's within the code, in the short term, I would direct Members to the Social Care Wales website, which has something that approximates to the co-location of consolidated legislation, because obviously that has been significantly consolidated already, and the publication of SIs and guidance notes. So, for a flavour of what it looks like, perhaps that would be a good starting point, but, mindful of the points that have been raised in evidence, I have asked officials to prepare a diagrammatic form of what a code might look like, just to give a bit more colour to the committee's further deliberations. 

Just one point following on from that, on the issue of codification. The whole process is going to change the culture of legislative drafting and the shape of it into the future for a long time. What problems do you foresee of actually gaining that consistency of the legislative process to ensure that, even in an area where you may not be able to properly consolidate and so on, nevertheless there may be legislation, and you will still want that legislation to fit within a future framework that makes it easier to do what needs to be done later on. We're talking about a long-term process. What thought has been given to how that consistency is going to be achieved?

That would be the sort of thing you'd expect to develop during the first programme, for example, to set out the kinds of priorities the Government would have in relation to those sorts of Bills. But your question assumes, correctly, if I may say, that this is a programme of many years, and that there would be areas that remain, by definition, uncodified and unconsolidated for some time in that period.

What I would hope to see in the first stage is an early understanding, at least, of what the universe of codes might look like, so, some of those judgments about where legislation sits. There are some fine judgments to be made here between health and social care, and childcare and education. These are not straightforward boundaries. So, a kind of early understanding, at least of where the boundaries lie, I think would help us think through some of those issues. And the rest of it is about legislative style, isn’t it? It’s about understanding an approach to legislating. And I think that is, as I mentioned earlier, something that we need to develop a shared understanding of with the Assembly.

13:15

Diolch, Cadeirydd. Ie, wel, yn dilyn beth yr oedd y Cadeirydd wedi ei ddweud, a hefyd gryn dipyn o’r dystiolaeth rŷn ni wedi ei derbyn oddi wrth dystion, mae pobl yn gallu deall, yn naturiol, mae’n gwneud synnwyr, pan fo gyda chi bwnc unigol, eich bod chi eisiau dod â phethau at ei gilydd fel ei bod yn hawdd i bobl, y cyhoedd cyffredin, felly, i’w ddarganfod e. Ond, wrth gwrs—ac dwi’n credu fel ein bod ni wedi ymdrin o’r blaen—mae pethau’n gallu bod yn gymhleth os nad ydy pethau’n gweithio i lawr i un pwnc penodol. Dwi yn benodol yn cyfeiriol felly at sut y buasech chi’n ymdrin â deddfwriaeth drawsbynciol, felly, fel Deddf Llesiant Cenedlaethau’r Dyfodol (Cymru) 2015 er enghraifft, a Deddf Comisiynydd Pobl Hŷn (Cymru) 2006, sydd, wrth gwrs, yn drawsbynciol, yn fwy nag un maes. Sut ydych chi’n mynd i allu cynnwys y gwahanol Ddeddfau yna o fewn eich codau?

Thank you, Chair. Well, following on from what the Chair said, and a great deal of the evidence that we’ve received from witnesses, people can understand, naturally, that it makes sense, when you have an individual subject, that you do want to draw things together so that it’s easier for the general public to find that information. As we’ve said before, things can be very complex if things can’t be reduced down to a single subject. I'm referring specifically to how you would deal with crosscutting legislation—for example, the Well-being of Future Generations (Wales) Act 2015 and the Commissioner for Older People (Wales) Act 2006, which are cross-cutting; they cover more than one area. How are you going to include all of those different types of legislation within your codes?

Wel, mae dwy ran i’r cwestiwn yna, rwy’n credu. Does dim ateb hawdd i’r cwestiwn yna, i fod yn glir. Yr un cyntaf yw: a ydw i’n gweld y Deddfau hynny’n rhan o god ar ei ben ei hunan ryw ffordd? Dwi ddim yn gweld hynny’n flaenoriaeth ar hyn o bryd. Efallai ei bod yn gwestiwn imi ymdrin ag e pan fo pethau sydd yn bendant angen eu cydgrynhoi yn y tymor byr wedi cael eu crynhoi. Ond—ac rwy’n credu clywais i dystiolaeth oddi wrth Brifysgol Abertawe ynglŷn â hyn—y peth yn y tymor byr sydd angen sicrhau ein bod ni’n ei gyfathrebu i bobl yw ein bod ni’n dangos iddyn nhw nid yn unig lle mae’r codau, ond lle mae’r ddeddfwriaeth arall sy’n torri ar draws codau, fel bod pobl yn sicr o lle i ddarganfod y gyfraith.

Well, there are two parts to that question, and there’s no simple answer to that question. Now, the first is whether I see those pieces of legislation being part of a stand-alone code. I don’t see that as a priority at the moment. That might be a question for us to deal with when things that certainly need to be consolidated in the short term have been consolidated. But—and I do think I heard some evidence from Swansea University on this point—what we need to ensure in the short term is that we communicate to people and demonstrate to them, not only where the codes are, but where the other legislation that is cross-cutting is, so that people know how to access the law.

Diolch am hynny, ac, yn bendant yn y tymor byr, mae hynna’n gwneud synnwyr, fel dŷch chi’n crebwyll.

Eto, a mynd i mewn i rai o’r manylion o drafodaethau eraill dŷn ni wedi cael o flaen i pwyllgor yma, wrth gwrs, mae rhai tystion wedi dweud wrthym ni fod yna ddiffyg difrifol mewn gwerslyfrau a diffyg sylwebaeth gan ymarferwyr a sylwebaeth academaidd sydd ar gael ar gyfraith Cymru ta beth. Ymddengys fod hyn yn rhwystr sylweddol i sicrhau bod cyfraith Cymru yn hygyrch—lle mae ffeindio’r ffynonellau yma. So, beth ydych chi fel Llywodraeth Cymru’n ei wneud i annog a chefnogi datblygiad ffynonellau eilaidd o’r fath er mwyn hyrwyddo ymwybyddiaeth o gyfraith Cymru a dealltwriaeth ohoni?

Thank you for that, and certainly, in the short-term, that makes sense, as you said.

Again, to look at some of the detail with regard to other discussions that we've had in this committee, some witnesses have told as that there’s a serious lack of textbooks and practitioner and academic commentaries available on Welsh law, and this appears to be a significant obstacle to making Welsh law accessible—where these sources can be found and so on. So, what can the Welsh Government do to encourage and support the development of such secondary sources in order to promote awareness and understanding of Welsh law?

Wel, rwy’n cydnabod yr issue. Mae hwnna yn bendant yn sialens fawr, yn benodol o safbwynt cyhoeddi llyfrau. Mae’r farchnad ar gyfer y math yma yng Nghymru’n farchnad fach o ran economics cyhoeddi. Mae’n hawdd gweld pam mae sialens i hynny, rwy’n credu. Dyna pam mae’r cyfle i ddatblygu gwefan Cyfraith Cymru/Law Wales yn gyfle i ni, a bod honno efallai’n troi i mewn i leoliad i bobl allu cyhoeddi trafodaethau a deunydd ar y math yma o beth.

Wrth gwrs, y sialens arall yw’r system REF, system research excellence framework. Rwy’n gwybod bod canllawiau newydd gael eu cyhoeddi ar gyfer y REF nesaf, a bod hynny wedi bod ar sail ymgynghoriad â’r sector yma yng Nghymru ac ymhob man arall, felly rwy’n gobeithio y bydd mwy o gyfle yn y dyfodol i’r blaenoriaethau hynny ffeindio eu ffordd i mewn i’r REF.

Well, I recognise the issue, and that’s certainly a great challenge, specifically in terms of publishing textbooks. The market for this kind of material in Wales is relatively small in terms of the economics of publishing. So, we can clearly see the challenge there. That’s why the opportunity to develop the Cyfraith Cymru/Law Wales website is an opportunity for us, and that perhaps could become the place where people could publish their materials and commentaries on this kind of thing.

But the other challenge, of course, is the REF system, the research excellence framework. I know that guidance has just been published for the next REF, and that was on the basis of a consultation with the sector in Wales and elsewhere. So, I do very much hope that there will be further opportunities in future for those priorities to find their way into the REF.

Ac, ar gefn hynna, mae eraill o’n tystion wedi dweud wrthym ni ar ben y ddiffyg yna yn y mater academaidd, ysgrifenedig o’n blaenau ni mae hefyd, wrth gwrs, heriau ynglŷn â’r staff. Yn benodol felly, os dŷn ni’n golygu gwella hygyrchedd deddfwriaeth Cymru yn y Gymraeg a’r Saesneg—a dyna un o’r prif fwriadau—yn amlwg, mae hynny’n golygu bod angen ieithyddion a chyfreithwyr sydd â’r sgiliau arbennig o dda yn y Gymraeg a’r Saesneg. Ac felly, beth dŷch chi eto, fel Llywodraeth, yn ei wneud i sicrhau bod ieithyddion a therminolegwyr a chyfreithwyr dwyieithog, rhugl, sydd a’r sgiliau angenrheidiol, ar gael i weithredu nodau’r Bil yma?

And, following on from that, other witnesses have told us, on top of that deficiency with regard to academic material, written material, in front of us there are challenges with regard to staff. Specifically, if we intend to improve the accessibility of Welsh legislation in both Welsh and English—and that’s one of the major intentions—that will require linguists and lawyers who have high-level skills in both Welsh and English. So, what are you, as the Welsh Government, doing to ensure that there are bilingual linguists, terminologists, and lawyers with the required fluency to implement the aims of the Bill?

Gwnes i weld tystiolaeth y comisiynydd ynglŷn â hyn, a gwnaeth hi argymell trafodaethau, rwy’n credu, â’r Coleg Cymraeg Cenedlaethol a chyrff eraill, ac rŷn ni’n bwriadu gweithio ar gynllun er mwyn datblygu’r syniadau yna yn ei thystiolaeth hi.

I saw the commissioner’s evidence on this, and she suggested that there should be some discussions with the Coleg Cymraeg Cenedlaethol and other bodies, and we’re intending to work on a programme of work to develop that.

Grêt, diolch. Dim rhagor o gwestiynau—dwi’n ymwybodol o lais y Cwnsler Cyffredinol.

Great, thank you. No further questions from me—I’m aware that the Counsel General is having problems with his voice.

Good afternoon, Counsel General. I want to talk to you about resources and measuring the success of these things. Witnesses have warned us against the dangers of not allocating sufficient resources to improving accessibility of law. You said that you hope to have resources in place by the beginning of the 2019-20 financial year. Is this still the case, and are those resources being put into place?

13:20

Well, the point of imposing a duty on the Government, of course, was to attract those resources. But, on your specific question about the resources for the next financial year, the financial resources are now in place for the next financial year. The question now is turning those financial resources into human resources and outputs.

Fantastic. Thank you. Will sufficient resources be made available to ensure that the first programmes to improve the accessibility will be ambitious and successful?

I would hope so. That would be a matter for the next Government in the next Assembly term, clearly. But, as I mentioned just a moment ago, the point of having those resources in place at this point is to have them in place, which we do. That allows us to build up visibility over the long term of the kind of resources available. I had conversations with my Cabinet colleagues in relation to particular levels of financial commitment in relation to this. But, obviously, the level of ambition for that programme will be a matter for the Government in the next Assembly term. I would hope it would be ambitious.

And how will either you, yourself, or the next Assembly measure the success of the Bill?

Well, if you accept the premise of one of the reasons why I've brought the Bill forward, which is a social justice premise, if you like—making the law more accessible to the public—then, I suppose, that is most ambitious. It's a question of whether the public feel the law is more accessible. That would be—. It's not for me to assess that—it's a matter for the public at large to decide whether they feel the law is more accessible. So, that's, I suppose, the test at its most expansive. But I think it was the chair of the Law Commission who gave evidence that said there are other tests to establish progress in this area. One of them is making a start on it. And I think, hopefully, the Bill will be passed into law and we'll be able to embark on that in short order.

Thank you. If I can just ask a question on finances as well, you say that the resources are in place for this coming year. Obviously, this is an early stage in the process and it may well be that amendments will come forward at some point to meet the needs of social justice, as you indicated, which may, actually, end up being more expensive. How much flexibility do you—? We had an indication of the flexibility that you might have in giving extra money, if it's needed, to make this first year successful in the way that you would like to see it.

Well, the next two years, of course, would be happening—. The extent of consolidation work will be happening outside the context of the Act, of the Bill, because the Bill—

The Act, the obligation to bring forward a programme, will commence in the next Assembly term. So, the budget for the next Assembly term will be a matter, as I say, for the next Assembly. The level of commitment that we've secured reflects the numbers that are provided in the previous regulatory impact assessment. Clearly, the point is to envisage that happening on a progressive basis over the course of the term. But, as you say, there'll be the need to keep the programme under review and there may need to be changes. We may want to be more ambitious at some point during the course of an Assembly term. At that point, it's a question of making the case for that level of funding, and making a persuasive case.

But I'm hoping to give the committee reassurance that at least we have that baseline level of resourcing, which happens on a year-by-year basis, of course, but an understanding that that is the baseline level to deliver a programme of consolidation that probably has within it four or five consolidation Bills over the course of an Assembly term. So, ambition is about funding, but it's also about making a start and building on that, and the capacity of Government and the Assembly generally to handle that. And I think that'll be a learning curve for all of us.

Okay, and that's a helpful answer, actually. It helps us, as Assembly Members, to know at which point we start pressing—whether it's in this Act itself, or whether it's in the subsequent consolidation Acts. That's great. Thank you.

I just want to ask you a question now about the status of the Welsh language in this process. If I understand correctly, the purpose of consolidation isn't really to materially change any law that we have at the moment—it's to clarify it and streamline it. And that's going to include bringing in legislation from UK Parliament.

What I wanted to ask is, once we get to consolidation, which will be bilingual, we've got a situation where we've got law made in English that finishes on one day and starts immediately the next second under a new piece of primary legislation, whereas it didn't exist in Welsh before that point of consolidation. So, in terms of status, there's a question about are these two languages of equal status at that point. But also at what point does the Welsh language version of law become law? Is it at the point of consolidation or is it retrospective and meets the—you know, does it go back to when the original piece of primary legislation, which has now been consolidated, came into force? Sorry. It's not an easy question to ask. 

13:25

'No' is the short answer. The way of navigating one's way through this is to start from the principle that consolidation involves just a restated remaking of the law. So, it will repeal law and it will make new law. So, Acts that existed previously, one would expect to be repealed in full or in part, and we would be remaking law in Welsh and in English, and both versions would be equally authoritative. 

At the point of being passed by the Assembly as new Acts, just like any other Act of the Assembly. But they will also—. It's not just a question of tidying up the English version and translating it. It's a question of making the law new, and in a way that is accessible. So, it could look, actually, quite different. The language could look different in the English versions, and, obviously, there'll be a new, Welsh version. So, you approach that Act by saying, 'How do I interpret these statutes?' and you interpret them on the face of the Act as they are passed by the Assembly as consolidated law. If there's a level of unclarity around that, then it would be open for you in some circumstances to look at the law that was in existence before that, but only, really, if you couldn't work that out from looking at the two Acts passed authoritatively, in two languages, by the Assembly. So, I doubt if this should be a particularly significant issue. 

Well, I'm hoping that's right as well, because what you won't be able to do is use the Welsh language to help with interpretation of the previous primary legislation in any way if there's any question about—

Well, that's a backstop position, but it's also—it will be the case that the English version of the Act will look very different to the previous version. So, there's an issue—. It might not be a good guide to that, depending on the changes that have been made.

Okay. But I think it's a small risk, myself, if I'm honest.

Talking about interpretation again, you probably picked up that we'd had some evidence that the interpretation provisions of Part 2 of the Bill shouldn't apply to Welsh subordinate legislation made under UK parliamentary law. I'd be interested in your views on that. What do you think of that?

I heard the evidence of Keith Bush in relation to this in particular—

That's right. He had three reasons why we should be looking at the old legislation when we're doing statutory instruments. 

So, I may hand over to Dylan in a second to get some detailed comments, but the basic point from my point of view is this: the argument around complexity, to my mind—. The key point is that we have a clear date, which is clear to everybody, of when the new law bites and on what it bites, and the way that—. By having the law come into force, or, at least, this part of the law come into force, hopefully, on 1 January in any given year, it's very clear for the reader then that any SIs, any law passed after that date, are subject to the new interpretation Act, and any before then are subject to the previous interpretation Acts. So, I think, far from adding to the complexity, that increases the straightforwardness of understanding from the point of view of the user of legislation. But there are two or three other justifications for the approach that we've taken, which I might ask Dylan to take up. 

Can I just look at another question, and you can take them together, then? Where you have statutory instruments that might apply in both England and Wales, how do you deal with those post 1 January? 

Yes. I think the starting point is that we've always acknowledged that this is an issue. It's something that we referred to in considerable detail when we first consulted on the issue [correction: first consulted on the Bill]. So, the question of, 'To which legislation should Part 2 apply?' is a difficult one. I think that's our starting point.

The second point is that there are pros and cons to different ways of tackling it, but, as the Counsel General said, we think that the approach that we've taken, which is, essentially, that, if the law has been made in Wales after a particular date, then our Act, hopefully, as passed, will apply, and we think that's the most straightforward way of dealing with this, and most of the stakeholders have agreed with that approach. I think one of the things that Keith Bush is saying is that—he argues that, essentially, there is a degree of connection between subordinate legislation and primary legislation that is such that we shouldn't sever that so that the Welsh legislation applies to a different interpretation Act, and we don't agree with that. We think that that level of closeness doesn't exist and that the subordinate legislation can stand in its own right, and it does. The mere fact [correction: This is evidenced by the mere fact] that the subordinate legislation is made by different people—. Because this is of course an element of devolution, so on the one hand you will have an instrument made by the Welsh Ministers and you will have an instrument made by the Secretary of State. So, that's your starting point: they are already different. We don't think that there's anything fundamentally wrong with what we're doing. And in any event, we've also got to remember that, in practice, most of the rules in the 1978 Act and in our Bill are the same. So, there's unlikely to be a difference.

Our starting point is that we're looking at this from our perspective. We're looking at it from the perspective of Welsh legislation and we will want to apply our Act. We want to apply it partly of course because we're making the legislation bilingually, and the Interpretation Act 1978 is monolingual. We will also provide a lot of explanation that doesn't frankly exist at the moment as to how this system will work, but we don't think there's anything wrong fundamentally in the system. Your second question—. Sorry, could you just repeat your second question?

13:30

By all means. I think it's just because we're going through a phase now where we're being asked to look at lots of secondary instrument consent motions, which I appreciate are Brexit related, but it doesn't mean that they won't happen in other circumstances where we've got law made for England and Wales and the statutory instruments go through an England-and-Wales process as well in Parliament. There will come a point, won't there, when we'll be looking at something that, from the UK Government's point of view, just looks like a standard statutory instrument, but actually it needs to be passed by a consent motion here, and we'll be saying, 'Actually, we can't do that anymore, because we need to do it through the new interpretation rules if it's a post-1 January piece of legislation.' 

In those circumstances, they're made by the Secretary of State with our consent, so I don't think that's an issue. There is a potential complication—

But we're going to be consolidating some primary legislation, aren't we? This is where I'm getting confused.

That is all done under the structure of the existing regime, and would in future as well. So, this is one of the points that we've tried to be clear about—we are only here talking about instruments made by the Welsh Ministers after hopefully the Bill comes into force, which will be, if everything goes to plan, 1 January 2020.

In the evidence, people did refer to the fact that you may have the same words used in instruments that have been made by the Secretary of State in England and by the Welsh Ministers in Wales, and they could end up with a different meaning. Now, that is theoretically true, but in practice we don't think it's likely to arise that often. But, in any event, what we're saying is that we've got to draw the line somewhere, and as long as we're clear about that, as long as we explain it, then we think there are more advantages to the system that we propose than disadvantages.

One of the things that's important to remember here is that a majority of the legislation that we make in Wales is still made under Acts of the UK Parliament. So, if we were to follow what Keith Bush is suggesting, we would be disapplying a majority of Welsh legislation from the ambit of our Bill, and that's something that we don't want to do, because we want it to apply to Welsh legislation in the way that we've set out, and that's partly because it's bilingual as well, which is the secondary issue.

That's how I read what he said as well. Ultimately, the effect of your consolidation probably wouldn't have been that great if the majority is still made on the other side of the Severn bridge. Okay, thank you for that.

Just a couple of quick questions to finish here: did you pick up on the Welsh Language Commissioner's concerns about section 7 and the traditional line about masculine implies the feminine, and so on? Did you have any comment on that? It's just about different interpretations of gender for human beings and gender for nouns in the Welsh language, and several other languages for that matter. Is there any way to rephrase this to get around the confusion?

Section 7 is about, as you say, human gender. I think her point is broader than that; it's about gender of nouns. I think the issue there should be, and the test to apply is: do those issues throw up questions of interpretation? So, if you look at questions of mutation, the word looks different on the page, doesn't it, so there is an issue there to address, but, with the gender of nouns, I can't foresee circumstances where there are interpretation questions that arise from that, so I'm not sure why we would then address that question in the Act. That's the rationale. 

13:35

I tend to agree with you, but thank you for confirming that.

And then, finally, we had some evidence—. I don't know how important you think this is. Section 8 of the Bill makes a general provision about the application of definitions across different pieces of legislation, and it is a material concern, because we had it fairly recently with, 'What does "childcare" mean?', for example. So, I'm going to ask the question: do you think that section 8 creates a problem that is best avoided?

This is the baker and the cook challenge, isn't it, I think?

Yes. I didn't really want to refer to all that—agent nouns and verbs and all the rest—but you can see the point in this. Mass application of definitions could throw up a few problems, and I just wondered how you dealt with that.

So, the short answer to your question—. There are two versions of an answer to that question. The short answer is that, no, I don't think it causes a problem, although I can understand why the question is raised. Perhaps it would be helpful to the committee if we wrote, because it's conceptually quite complicated as an area. Perhaps we could write to the committee and set out why that is the case.

I think so. It's not the time for linguistics essays today, thank you. But thank you for that answer.

Counsel General, if I could ask a couple of particularly pertinent questions about section 12. It would be impossible to have a discussion of legislation such as this without talking about the issue of the service of documents. One of the issues raised, of course, is the relationship between section 12 of the Bill with regard to the service of documents and the Civil Procedure Rules 1998, which actually determine in detail what can be accepted, what can't, when, and it may seem very technical but actually quite important in terms of legal proceedings. Do you have any view on the relationship or problems that might arise between section 12 and, of course, the Civil Procedure Rules, which, of course, are not a matter that we have any jurisdiction over, per se?

Well, I'll ask James to say something in a moment, but my starting point is: because civil procedure rules aren't devolved to Wales, the legislation that we pass here isn't going to be able to cut across the Civil Procedure Rules effectively. That's the big-picture point from my point of view, but, James, can you just talk about some of the detail?

Yes. Well, I think the main point is that section 12 doesn't apply to the Civil Procedure Rules as the Counsel General said, so there won't be any conflict in practice, simply because they don't interact formally. But I think the more general point is that even if section 12 did apply to the Civil Procedure Rules, it wouldn't conflict anyway, because everything in Part 2 of the Bill is subject to what the individual pieces of legislation it applies to actually say. So, section 4 says it's subject to any express provision or anything in the context that requires you to read the legislation differently. So, whenever there was a difference, it's very clear from Part 2 of the Bill that it's the individual piece of legislation on the particular topic that always takes precedence. And in practice, if we had something that was devolved, similar to the Civil Procedure Rules, that dealt in detail with the service of documents, that would take the place of what's in sections 12 and 13 of the Bill, and that's what you'd look at. Sections 12 and 13 are really minimal default rules that will apply if legislation doesn't say anything else, just about what you have to do to serve a document. And actually, that's the position at the moment, because sections 12 and 13 of our Bill are based on section 7 of the Interpretation Act, which does apply to the Civil Procedure Rules but is subject to contrary intention. So, when you're reading the Civil Procedure Rules, in theory, section 7 of the Interpretation Act is relevant, but in practice the Civil Procedure Rules deal, in enormous length, in Part 6, with how you serve all the different kinds of documents, all the different methods that are allowed. So, Part 6 of the Civil Procedure Rules is what you read, not section 7 of the Interpretation Act, and we're keeping, really, the same kind of approach.

Does that mean, then, for example, representations that have been made about the slowness of internet in certain areas and the issue of when documents are deemed to have been served is really a matter for the Civil Procedure Rules and not a matter that we could expand upon further?

Well, it's only a matter for the Civil Produce Rules when you're dealing with civil procedure, and I think that's maybe another point to make. I think some of the evidence maybe suggested that the Civil Procedure Rules are the be-all and end-all of service of documents. Of course, they're not. There are lots of other rules. Even in court, there are criminal procedure rules, family procedure rules. We have tribunal procedure rules and so on. But it is important with electronic service to say that there is nothing in sections 12 and 13 that would require anybody to agree to receive a document electronically. Those sections only apply where the specific legislation allows or requires a document to be served electronically. So, it will be when the Government and the Assembly are looking at that individual piece of legislation to decide: is electronic service appropriate in this kind of case? And, obviously, issues like broadband speed might well be part of that consideration. Would the kind of people receiving this document be likely to have a good broadband connection or not? And things like consent requirements have been mentioned. That may well be a way of making sure that nobody is forced to receive a document unless they want to.

13:40

Which is the general position, as it stands.

Yes, that's the—

Whenever a provision is made about electronic communication, insofar as individuals are concerned, it's subject to consent as a general proposition.

Okay. Thank you for that. I won't pursue that further. There was one further matter. Sorry, there was just one minor matter with regard to the intention behind the definition of Privy Council in the Schedule to the Bill. It's been noted that the judicial arm of the Privy Council is known as the Judicial Committee of the Privy Council. Does the Bill intend to capture the judicial arm only of the Privy Council, or is it intended to capture the wider Privy Council? 

That's intended to capture the wider Privy Council, which still has some ongoing functions in the field of education and some other areas. So, I'm satisfied that's the right definition.

Okay. Thank you for that. I'll just get that for the—

I declare an interest in that case, Chair. [Laughter.]

Did you get that for the record?

Can I ask you one slightly additional item? This is probably the last question, unless there's anything specific that members of the committee want to ask? You've recently written to us with regard to the Senedd and Elections (Wales) Bill, in which you say:

'we consider that Law Commission recommendations for reform of electoral law or any law should, if these are supported by the Welsh Government, generally be introduced using primary legislation under expedited procedures. Work is well advanced on the development of a fast-track, flexible procedure for consolidation Bills and in due course we would like to explore a similarly expedited process for law reform bills which go beyond consolidation, as recommended by the Law Commission themselves in their report on the form and accessibility of law.'

So, you are dealing there with the issue of consolidation Bills and expediting the process, but equally, expediting a process for law reform Bills that go beyond that. I just wonder if you could—because this will be a matter we'll be looking at later—just perhaps give your views as to a bit more explanation about that.

Well, I think they're two separate—. Although they both require different kinds of Standing Orders, they're both separate in a sense. So, the consolidation Standing Orders clearly are about consolidation. The law reform one will be predicated on a piece of law reform, on work that the Law Commission would have undertaken, usually. So, there's a conceptual difference, I think, in how to approach them and the needs of the Assembly will be different in either case, I think.

So, perhaps we'll ask you later when we're looking at that particular legislation, because I suppose the issue arises in terms of the expedition of law reform within the legislative process as opposed to consolidation and reform that's incidental to that. Okay, we'll explore that again.

Counsel General, thank you very much for your attendance today in very difficult circumstances. We hope your voice is better soon. A transcript will be on the way to you in due course. Again, thank you to your officials for their attendance as well.

Thank you.

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

We now move on to item 3, proposed negative instruments that raise no reporting issues under Standing Order 21.3B—proposed negative statutory instruments with clear reports, and we start with the Local Government Finance (Amendment) (Wales) (EU Exit) Regulations 2019. This starts at page 25 of the pack. And I just say that all the regulations under this section have been laid for the purpose of sifting under the EU (Withdrawal) Act 2018  and in accordance with Standing Order 27.9A. These particular regulations make minor consequential amendments to the Central Rating List (Wales) Regulations 2005 and the Council Tax Reduction Schemes (Detection of Fraud and Enforcement) (Wales) Regulations 2013. They, like the subsequent regulations that we'll consider under item 3, correct deficiencies resulting from the UK’s withdrawal from the EU, such as removing references to EEA states, European licences, EEA firms, and so on, in the amended regulations. I've been advised by the lawyers that they do not see any reasons why regulations shouldn't be subject to the negative procedure. Are there any comments on this particular item—the local government finance regulations 2019? No.

13:45

Okay. Item 3.2: the Teachers’ Qualifications (Amendment) (Wales) (EU Exit) Regulations 2019. These are regulations that make amendments to the subordinate legislation relevant to the recognition of teachers’ qualifications in Wales. Any comments or observations?

Item 3.3: the Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These regulations amend the Town and Country Planning (Control of Advertisements) Regulations 1992; the Town and Country Planning (Local Development Plan) (Wales) Regulations 2005; the Town and Country Planning (Development Management Procedure) (Wales) Order 2012; and the Planning (Hazardous Substances) (Wales) Regulations 2015. Any comments or observations? No.

I move on to item 3.4: the Air Quality Standards (Wales) (Amendment) (EU Exit) Regulations 2019, which make amendments to the Air Quality Standards (Wales) Regulations 2010. Any comments or observations?

In which case, we move on to item 3.5: the Food Standards and Labelling (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019, which make amendments to subordinate legislation applying in Wales in the field of food composition and labelling. Are there any comments on that? Observations?

Item 3.6: the Genetically Modified Organisms (Deliberate Release and Transboundary Movement) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These are regulations that amend the existing implementation of directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of GMOs. This regulation also amends our domestic implementation of regulations of the European Parliament and Council of transboundary movements of genetically modified organisms, as implemented in Wales by the Genetically Modified Organisms (Transboundary Movements) (Wales) Regulations 2005. Any comments or observations?

Yes. Just one question about this and the previous one, actually. Because both of them are areas of political interest, if you like—GMO and food labelling are quite politically sensitive—it's just to confirm that there is nothing in these that would give rise to any additional questions that needed to be asked. And the answer's 'no'?

Yes. As I understand it, these are purely technical textual changes.

But that is a valid point to make.

Item 3.7: the Fisheries and Marine Management (Amendment) (Wales) (EU Exit) Regulations 2019. These regulations makes amendments to the Registration of Fish Buyers and Sellers and Designation of Fish Auction Sites (Wales) Regulations 2006; Marine Licensing (Exempted Activities) (Wales) Order 2011; and the European Maritime and Fisheries Fund (Grants) (Wales) Regulations 2016. Any comments or observations?

Item 3.8, then: the Marketing of Seeds and Plant Propagating Material (Amendment) (Wales) (EU Exit) Regulations 2019. These regulations make amendments to the Seed Marketing (Wales) Regulations 2012 and the Marketing of Fruit Plant and Propagating Material (Wales) Regulations 2017. Any comments or observations on those?

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

Okay. We now move on to the next item, item 4, proposed negative instruments that raise reporting issues under Standing Order 21.3B. You have now the Waste (Wales) (Miscellaneous Amendments) (EU Exit) Regulations 2019, and these regulations amend four pieces of Welsh legislation relating to waste, which implement various European directives related to waste management to ensure that the waste regime can continue to operate effectively after the UK leaves the EU.

Now, I'll refer to the lawyers in a minute, but this does raise the issue in the sense that the regulations do amend primary legislation. We would normally recommend as a committee, as we've done in the past, affirmative procedure in such cases. However, similar to our earlier decision with the learner travel regulations, the changes are technical and they are textual, and therefore I would suggest in these circumstances that this is one of those rare occasions where the negative procedure is appropriate. So, this is a fairly unique case. It is very technical in nature, but there is an amendment to the Waste (Wales) Measure 2010, which I'm sure is all in the front of our minds. Are there any comments? Perhaps I can ask if the lawyers have anything on this.

13:50

Very briefly, the regulations amend primary legislation, namely the Waste (Wales) Measure 2010, and they amend it in a way so that references to EU directives continue to work on exit. So, for example, where a directive refers to member states, that reference will, on exit, be a reference to the Welsh Ministers or Natural Resources Wales, and, as the draft report suggests, Members are given the option of agreeing the negative resolution procedure or recommending an uplift to the affirmative resolution procedure.

So, there is an option to go to affirmative procedure. I recommend, I think, that negative procedure's probably appropriate in this case. I’m just wondering if there are any comments, observations from Members. If not, the negative—

No, it's a case-by-case basis, isn't it? So, that's fine. It's not important.

Absolutely. I think the important thing is that we've identified it, we're aware of it, and we've come to a conclusion on the negative procedure as appropriate.

5. Offerynnau nad ydynt yn cynnwys unrhyw faterion i’w codi o dan Reol Sefydlog 21.2 neu 21.3
5. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

We move on, then, to item 5: instruments that raise no reporting issues under Standing Order under 21.2 or 21.3. We have the Free School Lunches and Milk (Universal Credit) (Wales) Order 2019. This is an Order that amends the current eligibility criteria for free school lunches and milk by specifying that, from 1 April 2019, families that receive universal credit are eligible for free school meals if their annualised net earned income is £7,400 or less. And the Order also provides for transitional protection to ensure that no child would lose their eligibility for free school meals during the roll-out period of universal credit. Any comments on that?

6. Offerynnau sy’n cynnwys materion i gyflwyno adroddiad arnynt i'r Cynulliad o dan Reol Sefydlog 21.2 neu 21.3
6. 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 instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3—item 6: the Education (Student Loans) (Repayment) (Amendment) Regulations 2019. These regulations amend the Education (Student Loans) (Repayment) Regulations 2009, which were made under section 22 of the Teaching and Higher Education Act 1998, and they make provision for the repayment of income-contingent student loans in England and Wales and make changes to the way in which repayments are administered to reduce the extent of overpayment by borrowers. The explanatory memorandum explains the relevant powers that are still exerciseable by the Secretary of State in relation to Wales. Any points on this?

The usual point around composite regulations made by UK Ministers and the Welsh Ministers laid before the Assembly and the UK Parliament, and because of that, they have been made in English only, which is a reporting point under Standing Orders. The Welsh Government has responded, saying that it is not reasonably practicable to make these regulations in both languages, because of their composite nature.

And we've received that formal notification from the Welsh Government. It's a point we've noted. We have actually got correspondence that is still ongoing specifically on the issue, so it will come back to us in the not-too-distant future. I think the initial situation was that we raised the matter with Welsh Government, which was then contradicted by UK Government, and it's gone back to Welsh Government for further comments. So, we're waiting for some further clarification.

Just out of curiosity, how would this particular regulation be treated under the new consolidation and codification?

When it's not made by the Welsh Ministers only. So, it would not be covered by the new rules.

But maybe it should be, but that's another issue as part of the learning process.

7. Adroddiad Rheol Sefydlog 30B: Deddf yr Undeb Ewropeaidd (Ymadael) a Fframweithiau Cyffredin
7. Standing Order 30B Report: The European Union (Withdrawal) Act and Common Frameworks

Item 7: Standing Order 30B report: the European Union (Withdrawal) Act and common frameworks. Members are invited to note the report laid by the Welsh Government. This is the second such report laid under Standing Order 30B, and that's—which report is that? I think it's the one that's been circulated, isn't it? So, it's this particular report. This is the second of these quarterly reports, which form part of the agreements. So, this one here is from the Cabinet Office. Any comments? Observations on it? It really sets out the procedure, and it sets out basically what has been happening to date and the approach. We can discuss this in private session if there are any issues that arise later on.

13:55
8. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C
8. Written statements under Standing Order 30C

We now want to move on item 8: written statements under Standing Order 30C. The Nutrition (Amendment etc) (EU Exit) Regulations 2019—revised. This is a written statement that explains that the statement is being reissued due to the regulations being laid by the UK Government on 16 January, withdrawn, then re-laid on 17 January, withdrawn, and then laid again on 30 January.

The statement explains that this was due to the need to correct errors in the regulations that were picked up at scrutiny post laying. The statement also states that amendments made do not change the purpose or effect of the regulations. You'll see there's a considerable number of regulations that are impacted by this, which, perhaps, identifies the complication of the process that Government officials have being working on. Are there any new issues on this? Yes.

Very briefly, the draft report at pack-page 94 sets out the brief history that's just been outlined. The question in this instance is the use of the word 'transferred' by the Welsh Government in their written statement. Because it doesn't appear, in this instance, that functions are transferred by the Welsh Ministers, but rather the Secretary of State can exercise those powers on behalf of the Welsh Ministers—there's a little bit of a difference—and only with their consent. So, it's just this specific issue as to the use of the word 'transferred' that Members may want to clarify with the Minister.

I presume your view is that this isn't actually a transfer of powers, but it is referred to, clearly, in the statement, isn't it, on page 91, that there is a transfer that's there? I suppose the easiest way to deal with this is just to write and seek clarification, just on that specific point. Okay. Are there any other—?

Because we would get very exercised if there was a transfer of powers.

Absolutely. Well, it would be a matter that, certainly, we'd want to pay our attention to. We don't think there is a transfer, but there's clearly a reference to that. That may just be typographical or, as I think with a lot of these things, there's a lot of cutting and pasting that's going on. It may be that there is an error there. But if that's the case, then it's as well to identify it now rather than later on. I'm sure Government will look forward to a letter from us on this particular point.

On 8.2, then, the food and feed, Chernobyl—I'll use the Ukrainian version—the Food and Feed (Chernobyl and Fukushima Restrictions) (Amendment) (EU Exit). Any comments or observations on those? In which case, we move on to Novel Food (Amendment) (EU Exit) Regulations 2019. You have again a statement and commentary there. Any comments or observations? The Genetically Modified Food and Feed (Amendment etc.) (EU Exit) Regulations 2019. Again, a statement and commentary there. Any comments on that? The Official Controls for Feed, Food and Animal Health and Welfare (Amendment etc.) (EU Exit) Regulations 2019. No comments on that. Then on to the Food and Feed (Maximum Permitted Levels of Radioactive Contamination) (Amendment) (EU Exit) Regulations 2019. Any comments or observations? The Food and Feed Imports (Amendment) (EU Exit) Regulations 2019. Then the Materials and Articles in Contact with Food (Amendment) (EU Exit) Regulations 2019. And then the Animal Feed (Amendment) (EU Exit) Regulations 2019. Now, there is an issue on this with regard to policy. Do you want to comment?

Yes. These regulations are made by a Government in the devolved area of food. The regulations make a number of minor amendments to retained EU law. They also do something a bit more substantial in that they transfer important food-related functions from the European Food Safety Authority to the UK food safety authority and that raises the question of whether the regulations are enacting new policy or at least doing more than carrying out administrative efficiency, which may conflict with what was agreed, or seems to have been agreed, in the inter-governmental agreement. And the relevant paragraph of the agreement is quoted there on pack-page 134. 

If I can refer you to pack-page 132, because it seems me that that's the relevant point. But what we have here is the—this is part of the process of the creation of frameworks and the Government statement clarifies that this is part of the creation of frameworks, which is what consent is being given to. So, this ties in with those framework discussions. On page 132, the Government statement says:

'Consenting to a UK wide SI ensures that there is a single legislative framework across the UK which promotes clarity and accessibility during this period of change. In these exceptional circumstances, FSA Wales/the Welsh Government considers it appropriate that the UK Government legislates on our behalf in this instance.'

So, this, I think, has to be read within that context of the creation of frameworks. But are there any specific comments and observations that Members wish to make?

14:00

I think the point deserves to be emphasised, though, really, along the lines of, 'Okay, we can understand the rationale for doing it this way', but there's still an overriding principle that this is meant to be minor technical changes only. I understand the bit about developing common frameworks, because we all agree with that. But also, people keep telling us, the First Minister particularly, that there is no loss of powers anywhere on the line, either. So, I would use a wee iteration of what you said here as just a sort of shot across the bows that, actually, this committee is scrutinising this in the detail that is required.

u

That's a valid point, and if we refer to page 131, which is the letter from the Minister, you'll see there that the Minister recognises this, as is said there, I think the third paragraph down:

'As a more substantive change, the Regulations will, in relation to Wales, transfer the risk assessment responsibilities carried out by European Food Safety Authority (EFSA) to the FSA. The FSA will therefore be responsible for, among other things, undertaking risk assessments'.

And clearly, the framework is about the creation of a single agency. But the point in terms of what the impact is is obviously noted. So, are there any other comments on that or any other comments that need to be made?

If not, we move on, then, to the Food Additives, Flavourings, Enzymes and Extraction Solvents (Amendment etc.) (EU Exit) Regulations 2019. Any comments?

If not, the Sprouts and Seeds (Amendment) (EU Exit) Regulations 2019. Don't make jokes about Brussels now in respect of these regulations. [Laughter.] I know, I couldn't resist it any longer. Any comments on that?

9. Papurau i’w nodi
9. Papers to note

If not, we then move on to item 9: papers to note. Item 9.1: a letter from Bernard Jenkin MP, the chair of the Public Administration and Constitutional Affairs Committee, to the Rt Hon Greg Clark regarding the State Aid (EU Exit) Regulations 2019. This is a letter in response to what we wrote about the issue that had arisen with the lack of any objective disputes process. A very positive letter, so we'll see what response comes back to him from that, which I'm sure will come to us.

Unless there are any further comments on that, item 9.2: correspondence with the House of Lords Secondary Legislation Scrutiny Committee regarding the Plant Breeders’ Rights (Amendment etc.) (EU Exit) Regulations 2018. Members are just invited to note the correspondence with the House of Lords committee on this.

Yes. I particularly like your sentence as Chair here, Mick, towards the bottom there of pack page 149:

'The issue becomes particularly stark when summarised like this: the Welsh Government has consented to the UK Government making a negative resolution statutory instrument that restricts the legislative competence of the National Assembly for Wales.'

I think that's most succinctly put.

Thank you very much for that comment. Item 9.3: a letter from the Minister for Health and Social Services regarding the Welsh Government's legislative consent memorandum on the Healthcare (International Arrangements) Bill to be noted. We can discuss this further in private session.

9.4: a letter from the Counsel General to the Older People's Commissioner for Wales and the Children's Commissioner for Wales regarding the Legislation (Wales) Bill. I think just an item for noting there.

Item 9.5: a letter from the Minister for Environment, Energy and Rural Affairs regarding the Fisheries Bill. Again, Members are invited to note the letter and, of course, our report, which has been published, which you should all have now, has been tabled.

9.6: Senedd and Elections (Wales) Bill's correspondence—really just to note that and we can discuss further in private session in due course. This was the letter I referred to in my recent question to the Counsel General. 

9.7, letter from the Minister for Finance and Trefnydd regarding the Public Procurement (Amendment Etc.) (EU Exit) Regulations 2019. You're invited to note the letter concerning the Public Procurement (Amendment Etc.) (EU Exit) Regulations 2019, and you'll see the letter, as with previous letters, makes reference to

'unintended restrictions on the Assembly’s competence created by powers conferred in EU Exit SIs',

as a matter that's been raised by the Welsh Government, and perhaps we'll defer that further to the private session. 

A letter from the Minister for Finance, 9.8, regarding the Import of and Trade in Animals and Animal Products (Amendment etc.) (EU Exit) Regulations 2019. We note that, and the letter from the Minister in that respect. Again, Members will see that the letter makes reference to 

'unintended restrictions on the Assembly’s competence created by powers conferred in EU Exit SIs',

and we can discuss this again if need be in private session. 

14:05
10. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod
10. 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.

I now invite a motion under Standing Order 17.42 to resolve to exclude the public from the meeting in accordance with Standing Order 17.42(vi) for the remainder of the meeting. Do Members agree?

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:06.

Motion agreed.

The public part of the meeting ended at 14:06.

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