National Assembly for Wales

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I have received apologies from Suzy Davies, and I welcome David Melding as a substitute. I've also had apologies received from Dawn Bowden. 

If I can welcome the Presiding Officer to today's section for the consideration of the Senedd and Elections (Wales) Bill, evidence session 1—our first session on this important piece of legislation. I welcome the Presiding Officer and Anna Daniel and Matthew Richards from the Assembly Commission. So I'll go straight into our first round of questions. We've broken them into sections dealing with the various parts of the legislation. Why are you bringing forward this Bill?

Thank you, Chair.

Thanks for that. The motion authorising the proceeding with of this Bill was, of course, passed in October 2018. By way of just understanding the constitutional background to this, that motion, presumably, was necessary in order to authorise or allow the Commission, or give the Commission the powers, to enable this Bill to be brought forward. Is that correct?

Well, certainly I was very keen that the Assembly would provide the mandate for the Commission, and me as the chair of the Commission and Member in charge of this Bill, with the mandate to bring forward this legislation. I referred to the very early mandate on the name change, as of 2016, but there are additional aspects within this legislation that go beyond just that name-change mandate from the Assembly. Matthew, you may want to add some aspects on the function of the Commission. 

Thank you, yes. So, the function of the Commission is to, among other things, provide services for the purposes of the Assembly. The purposes of the Assembly are not set out in legislation, so the Assembly has a wide discretion to set its own purposes, provided that those purposes are lawful and, of course, this Bill relates to matters that are within the legislative competence of the Assembly. A motion in the Assembly doesn't change the powers of the Commission, because a motion in the Assembly could not do that—it would require legislation—but the purpose of the mandate was to be absolutely clear that the Assembly agreed that the bringing forward of this Bill is within its purposes. 

But in terms of the powers of the Commission, the motion actually not only gave the mandate, but also ensured there was clarity about the authorisation and being able to take that forward as well. 

Yes, I would—

So, there's no doubt about it. Now, the Bill has a number of parts to it. Of course, votes at 16, disqualification, oversight of the Electoral Commission and internal operations, and implementing Law Commission recommendations—those are all areas where there will be questions exploring those parts of the Bill. But in terms of the Bill itself, it only deals with the Assembly elections. In terms of its overall effect, does it represent all you actually want it to achieve in terms of reform, because this is extracted from a broader piece of work in terms of reform of the Assembly and the size of the Assembly? Are you satisfied that this Bill is all you would want it to be?  

Yes, in the context of what this Bill aims to achieve, but the committee will be aware, of course, that the Commission did ask the expert panel on reform and electoral reform to look at various aspects of electoral reform in the context of the new powers to the National Assembly by the Wales Act 2017. And that independent panel, chaired by Laura McAllister, did recommend various other pieces of reform that the National Assembly should bring forward, and those included, of course, the increase in the number of elected politicians to the National Assembly, and a change of electoral system to elect that increased number. That's not in this Bill, quite clearly, but as I've said previously, there were aspects that were not clear to me whether there was a working majority or a supermajority of 40 of 60 Members who were keen to move in a particular way, in line with the Laura McAllister recommendations. And I think that some of the political parties are still discussing that within the nature of their political democratic structures. Therefore, this timing for this Bill could not be a vehicle for introducing legislation to increase the number of Members and change the electoral system.

So, why then introduce this Bill at this time? Well, there were other pressures on that in terms of timing and aspiration, going back to the 2016 motion to change the name of the National Assembly to a Parliament, to a Senedd, and also an aspiration to—. If votes for 16 and 17-year-olds were to be introduced in Wales, to do so by the next Assembly election of 2021, there is clearly a degree of support for the next election of 2021 to see 16 and 17-year-olds have the vote for that Assembly election. In order to do that, working back from that date, then this piece of legislation needed to be introduced now.  

Thank you very much for that. Dai Lloyd. 

I don't think it was sudden, was it? It took nine months. [Laughter.]

It's all relative. [Laughter.]

Do you want to—?

There are existing powers in the Government of Wales Act, section 13, for Welsh Ministers to issue regulations in relation to the conduct of elections, and 'conduct' is generally understood to mean the procedural steps leading up to the declaration of an election result. It also covers the registration of electors, limitation of election expenses, and combination of polls between Assembly elections and other elections. But there's a lot in this Bill that goes beyond that. Those powers would not be wide enough to expand the franchise to cover 16 and 17-year-olds, for instance.

David Melding.

On these powers that are currently there—executive powers that are exercised, obviously, by Welsh Ministers, but are now going to be used to forward the intent of this Bill—you've issued a policy statement about how those powers are likely to be used, but normally Welsh Government Ministers would issue a policy statement of that nature. So, how is this being done and whose policy is it, really? Is it your policy or has that come directly to you from the Welsh Ministers?

I think that policy statements are also best practice for Assembly Bills, not just for Welsh Government Bills and regulation-making powers. That policy statement is seen to be useful as a statement in time. It doesn't bind any Welsh Government of today or the next Welsh Government, but it is a clear indication of the policy hope.

I suppose what it indicates is that it's a Commission Bill but you're still using executive vehicles. When you come to issuing policy statements, you're part of that, but also the executive. This is awkward to scrutinise, isn't it?

The policy statement, of course, will have been discussed between Commission officials and Welsh Government officials in bringing forward that policy statement. Anna, do you want—?

Yes, that's right. They were certainly given the opportunity to comment on it, but it hasn't been a document that's been agreed by Welsh Government, so it certainly isn't a Welsh Government document in terms of their statement of policy intent. But we did feel it was helpful to include this within the Bill and set down as far as possible how we anticipate the powers would be used, but that is the Llywydd's view, rather than the Welsh Government's view.

Presumably, this whole approach cannot work unless Welsh Ministers agree to use them as you have said is intended by this teamwork approach. I'm struggling to describe it, really, because it's so unusual to have this type of mixture in a single legislative vehicle, in terms of primary legislation, anyway. But you're confident that there will not be any confusion in future in terms of how these powers are going to get exercised to regulate—and they're quite important things, like the electoral register and requirements about that, aren't they? It can sound quite obscure, sometimes, but they do have quite a practical public impact. 

Yes, they do, but anything that we are doing in terms of franchise in this Bill, we are anticipating that Welsh Government are going to do in terms of franchise on 16 and 17-year-olds for local government elections. The local government—the electoral community are very keen for that element of 16 and 17-year-old voting to be clearly undertaken in parallel and in the same way for both Assembly and local government elections. Therefore, I wholly understand why you're saying what you're saying in terms of not knowing how Welsh Government would use these powers and not being able to bind them. But, since the majority of these matters are matters around franchise, then there will be others who are keen for these practices that are legislated on in secondary legislation to be done in a way where both local government and Assembly elections are the same—the practical administration of both elections and franchises are the same. 

Then, I just wanted to talk a little bit about the issue of competence, because it seems that three actors have said something about competence—you have, the Secretary of State for Wales has, and the Welsh Government has—and you have different views on it. I think your view and the Secretary of State's is similar, in terms of the difficulties in changing the name or some of the approaches to that. I don’t want to talk about the name change, which is the best, but it’s just the competence of the legal power. And the Welsh Government has a much more expansive view of what your competence is. So, if the general purpose is quite clear and is something that the Assembly has competence over, now with the latest Wales Act 2017, then you can interpret it much more broadly, but you’ve gone for a narrower interpretation, and I think the Secretary of State’s is narrower still. Why do you think there are these differences? Is it helpful to have them unresolved at this stage?

I wouldn’t say they were unresolved, in that I’ve taken the view that the Bill is in competence, as it has been introduced, and that view has been concurred by the Deputy Presiding Officer. Minister of Crown consents, of course, were part of the competence issue, and that consent was forthcoming. That issue was around the electoral registration officers.

On the name change and the drafting of the clauses in relation to the name change, the explanatory memorandum itself, as well as the correspondence you’ve referred to from Welsh Government and the Secretary of State, goes into some of the considerations on competence or various ways of drafting that clause, and the Counsel General has outlined a different form of drafting that he considers to be within competence,

'There is a parliament for Wales to be known as'

the Senedd, and there’s definitely an attraction to that way of describing that clause. It’s a very easily understandable form of designing that.

There are issues around competence that Matthew is far more competent than I am to outline, and there are arguments, I would say, on all sides. I’d say I was in a particular position, as both the Member in charge of this piece of legislation and the Presiding Officer as well, and I think that that played a role in my decision making and in erring on the side of caution, and in following the advice that was given to me on competence. But I’ll allow Matthew to describe that in a little bit more detail.

So, the default position is that the Government of Wales Act 2006, which obviously is a Westminster statute, as amended in 2017, cannot be amended by the Assembly. That’s the starting point. There is then a list of exceptions to that. So, there are provisions within the Act that can be amended by the Assembly. Now, section 1(1) says 

'There is to be an Assembly for Wales to be known as the National Assembly for Wales or Cynulliad Cenedlaethol Cymru'  

and the express exception that allows the Assembly to change that provision does not apply to the first 12 words. So, the words

‘There is to be an Assembly for Wales to be known as’

are words that do not fall within what the Assembly can amend. That’s the Commission’s position on this. There is an alternative argument that has been articulated by others and is set out in the explanatory memorandum, which is that any provision within the Government of Wales Act can be amended by the Assembly if that is consequential on, or incidental to, the change of name.

Our position is that that is not sufficient to allow the Assembly to amend those first 12 words that I’ve read out. We say that there are two propositions in that provision. One is that there is to be an Assembly, and the other is that it is to have a particular name, and that the UK Parliament has given the Assembly the power to change the name, but not the reference to the institution as an Assembly. Now, there is a perfectly respectable debate around: does it actually mean anything to say that this institution is an Assembly rather than a Parliament? And if we look at the Scottish Parliament and the Northern Ireland Assembly—one is a Parliament, one is the Assembly, but they have broadly similar powers. But whatever that debate is and whatever the conclusions of it are, Parliament decided, in passing this legislation in 2006, that the institution would be an Assembly and would have a particular name. Our position is that it is not consequential on changing the name. It is neither consequential on changing the name nor incidental on changing the name to change the nature of what the institution is, and Parliament said the institution is an Assembly. 

Sorry, David. I'll come back to that. 

You're following this. 

Please correct me if I'm wrong. The 2017 Act allows us to change the name—is that correct? 

Yes. 

So, my interpretation, and I'm not a lawyer—usually, you understand, what follows is going to be very illogical—but if Parliament says the Assembly has the right to change its name, that's the big principle in what they have decided. Then, anything to give that purpose, full meaning and practicality is permissible. I have to say the Government's argument in this strikes me as very convincing indeed. I just wonder why that clear jurisprudence principle has not been applied in this case. 

So, I hear the argument and I agree that it is certainly a respectable argument that can be run. But, we say that there are two propositions in section 1: one is that there is to be an Assembly and the other that it is to have a particular name. Parliament decided that the institution is an Assembly and that it's not consequential on changing its name that its fundamental nature is changed. That would require—

The only way calling it an Assembly has meaning in the type of thing it is is if 'Assembly' is clearly understood as being sub-legislative, which it clearly isn't. Because you've always had—well, not always, but since 1999, you've had a Northern Ireland Assembly. That institution—the predecessor, was actually called a Parliament, but is clearly law making. Throughout the Commonwealth, 'assembly' is used in various jurisdictions for law-making bodies. So, 'assembly' and 'parliament' are interchangeable, it seems to me, and I cannot see—what you're trying to do seems to be to make a distinction without a difference. I can't quite see what's the categorical difference that is being stated here, and there doesn't seem to be one. 

I understand and I accept the point you're making, as I said a moment ago, that the words 'assembly' and 'parliament' are used interchangeably in respect of other institutions in the UK. But, if the UK Parliament had intended that the Assembly could have competence to change those 12 words, which are:

'There is to be an Assembly for Wales to be known as',

that could have been made explicitly clear in the provisions that were incorporated in the legislation in 2017 and it was not. We maintain the position that the arguments around consequential and incidental don't apply.

Okay. Carwyn. 

On this point, of course, the de facto division between the Government and the legislature occurred before it happened in law. The use of the term 'Welsh Assembly Government' was dropped in 2011, even though it remained in law, if I remember rightly, until 2017. So, actually, we have got an amity of custom and practice but we do change the way we describe various institutions based around here without there being a legal change. What you outlined is that, either way, it is possible for the Assembly to change its name to a parliament, either way. The difference you've outlined, as far as I can see it, is that Parliament has said there is to be an Assembly for Wales but the Assembly can call itself whatever it wants, whereas the Government view would be those first 12 words can be changed as well. Does it matter, really, I suppose is the way I'd see it, because, at the end of the say, we still end up with an institution that we can name. 

Well, whether or not it matters isn't something I feel able to offer a view on. 

Does it matter in law? 

Yes it does, because if—and I only say 'if'—this were to end up in the Supreme Court, then there is an argument that would be had about whether or not that provision can be amended. It's not for me to speculate as to whether or not this Bill ends up there, and I'm sure that those of us in this room hope that it doesn't, but my role, obviously, is to set out what the Commission's view is on the law. 

In everything other than the law, then it probably doesn't matter. It is, you know—

You've adopted a belt-and-braces approach to this. You've erred on the side of caution and we are where we are.

I did and we have alternative views, and they're outlined in our explanatory memorandum and also the Counsel General's letter to the committee. Obviously, it's exercising the committee at an early stage as it has exercised me within the Commission as well. I'll just say that I look forward to the conclusion that the committee comes to on this and where it decides to lay its hat.

You're probably not alone. Carwyn.

I can understand the concern that there may be a referral to Supreme Court and that is something that lawyers must always be aware of. I understand that. But I can't imagine, in a sane world, why the UK Government would want to take the Assembly to the Supreme Court over the issue of what it calls itself. The Supreme Court would take a very dim view of that, I suspect, as wasting its time. That's a political issue rather than a legal one, I understand that, but it strikes me that whatever happens, whatever interpretation you place on that particular section, you still end up with the ability for the institution to call itself what it wants. Is that true?

I agree.

Okay, let's move on, and, Carwyn.

I have a number of questions. Some of them have been answered, in fairness.

David, do you want to come in?

Yes. I just want to probe on this issue that the public consultation established that a monolingual title was not the most favoured option, but then you're persuaded to change that because of a majority of AMs feeling a monolingual name was the best option. So, how comfortable do you feel, given that a central purpose of this Bill is to increase the public understanding of Welsh political institutions, that you've taken that approach? In what way do you think 'Senedd' is going to be more understood as a Parliament than the word 'Assembly'?

Well, yes, as I outlined, and you've just outlined as well, there was greater support—70 per cent plus—for the bilingual name, compared to 50 per cent plus for the monolingual 'Senedd' name in the public consultation, and, therefore, what you have in the Bill in front of you is against the grain—not wholly opposed, but against the grain—of that public consultation and, as I said, I had to keep in the forefront of my mind the need to gain a supermajority for this legislation, and that was the driving factor in persuading me to introduce this piece of legislation with the monolingual name but with the accompanying descriptor of 'Welsh Parliament' there for all to use—all to be able to use, and for us to use if needs be in any way we describe ourselves as a 'Senedd'. Whether the term 'Senedd' is wholly understandable by all people in Wales and all visitors to Wales, I think we're fortunate in that it's an international, derived from an international—. There's an international understanding, then, to the various usages of 'Senedd' in its use. So, we're aided by that fact, compared to, possibly, the Irish equivalent of the Dáil—not understood, although 'seanad' is used in Ireland, of course; I'd forgotten about that bit. So, we're aided by there being a reasonable understanding of the term 'Senedd' beyond just Welsh speakers. And I would say that because of the fact that we ourselves, and many commentators, have talked about this building as 'the Senedd', it's used now, to a certain extent, when describing 'what happened down in the Senedd today'—it's not wholly unfamiliar to English-language commentators and commentary even now. I think all of that helps. But, after saying all of that, there will be a job of work for the Commission to do to aid understanding and up the understanding of the term 'Senedd' and 'Welsh Parliament'.

Okay. Thank you for that. I'd like to move on now, Presiding Officer, to the issue of the elections themselves and, really, the issue of changing the law to allow 16 to 17-year-olds to vote at Assembly elections. Why are you proposing to make this change?

Well, engaging with young people and promoting democracy and Welsh democracy with young people in Wales has been something that the Commission has been keen to do—whether that's been through the model of the Welsh Youth Parliament, as we're all now familiar with—but also promoting general democratic awareness of their national Parliament amongst younger people in Wales, and the work we already do as an institution in promoting that with school visits, college visits, and young people engaging with us here on policy developments as well.

I referred earlier to the fact that this piece of work goes back to the fourth Assembly, where there was quite a big piece of consultation with young people on votes at 16 and 17. Of course, at that point, there were no powers, no legislative powers, available to the Senedd to put that into legislation and to increase the franchise to allow 16 and 17-year-olds to vote. And, therefore, it's the Wales Act 2017 that's given us the ability to make the change in Wales. And then, of course, it was part of the terms of reference of the expert panel group, commission, to look at this, and that expert panel, chaired by Laura McAllister, did find in favour of introducing this change to the Welsh elections.

Did you look at any other parts of the UK or, in fact, any other parts of the world, internationally, where this has happened, to see what the experience had been?

Well, the first place to look was within the UK, and Scotland, of course, both with the Scottish referendum and the last Scottish Parliament election, introduced votes at 16. So, we've been very keen to work with them, to learn from their experience and also to look at how they legislated for the increase in the franchise, as well as looking to work and learn from them as well as to not just how we put it into legislation, but, then, if in legislation, how do we make it work successfully, and I think we're already learning some interesting lessons from Scotland. It's not something that is introduced in many places in the world. I think Austria is the other place that we've looked.

Yes, Austria. There are a few of those, and the expert panel in its report also considered evidence from a number of different countries, but, as you say, there are not many countries that have introduced this, and the introduction's been quite recent as well, so research and reports and the longer term impact of these changes are still under development, if you like, so—.

I understand that places like Brazil and Germany have also made changes like this. Did you look at any of those examples for those countries, or do you think it's still too early days in terms of the experience of other countries?

Yes, early days, I think. So, Austria has been quite an interesting one to look at, where it looks like the evidence of a higher turnout for 16 and 17-year-olds has been sustained then for later elections, and that's clearly a part of the Assembly Commission's objective in introducing this change—to have a longer term impact on democratic engagement with Assembly elections.

I'm just wondering what in particular you've learned from Scotland so far—anything in particular or is that, again, still too early to be of major benefit?

Well, one of the issues that was interesting from, I think it was the Scottish referendum—. I can't recall whether it was the Scottish referendum or the election—maybe Anna would know—but the turnout was much higher in the 16 and 17-year-old bracket than it was for the 18 to 24 bracket. Whether we are able to say at this early stage whether that's because of initial excitement around the introduction of 16 and 17-year-olds voting—a lot of pre-election publicity on 16 and 17-year-olds voting—or just the fact that, as has been said quite often in much that's written on this subject, young people at that age, quite a lot of them, are still in quite stable home surroundings where they are put at ease as to how to vote, because the actual logistics of voting can be quite testing for somebody if you've just moved to a new address as a student and need to find out all kinds of different things about where your local polling booth is, down which street in Aberystwyth that is likely to be—. So, there's a lot of—. I'm sure you found out when you moved there, where your local polling booth was in Aberystwyth—

I knew exactly where it was.

You would. [Laughter.] But whether everybody is able to do that easily and can look to do that—. So, there's definitely that. We've also started to work between the Electoral Commission, the Scotland Office, Wales Office and also us on how we start to prepare the way, what would be needed to be in place to promote the use of voting. I listened to a presentation by the Electoral Commission from Scotland, where they said something quite interesting to me, or to us, then, which was, 'Don't do your promotional work too early. Young people will engage with it right towards the end. Starting to do things too early is of limited benefit in terms of promotion.' That's probably not true of education, of course, and what you can do within schools on democratic engagement.

I'll come back that particular part in a minute, but, if it's right to be able to vote at 16, why shouldn't you be able to stand for election at 16?

Yes. That is a contradiction that we will end up with. The ability to stand for election will remain at 18, whereas voting for the Assembly, the Senedd, will be 16, 17. I'd say that, really, it was an untested piece of work. We didn't ask the expert panel to look at that, and we didn't consult on it, and therefore didn't feel that that could be changed in this piece of legislation, although you may have a different view as to that. I don't know whether you've got anything to say, Anna.

I guess I would add also that, if you're standing for election as a 16-year-old, clearly then the selection process would need to be undertaken potentially a year or two in advance—it depends, really, on how parties do it. And, if you look in the Bill in terms of the way that we treat young people's information and the care that's taken to address young people's needs, I think those kinds of issues really need to be taken into account and given very careful thought as to people who may well be standing for election, when they're being put forward as candidates when they're 14 or 15—I think there are some quite significant public concerns that you'd need to consider if that were to be the case.

Is it fair to say that it's probably an oversight?

No, I wouldn't say it was an oversight. I'd say that it's clearly an inconsistency. I think the argument that Anna has just put is quite a compelling argument. Candidates are selected around two years, possibly, before an election, and for that candidate, then, at 14, to be there and put in front of the public by the political party, I think there are issues that many people would want to be very clear about on all kinds of matters that probably go beyond the scope of what I was able to introduce just in this piece of legislation.

Okay. Carwyn, you wanted to come in on this.

Yes. It would be quite remarkable for somebody of 16 to be selected as a candidate, I suspect, for a constituency. There would have to be something quite remarkable for that to happen. But, of course, in, I think it was, 1970, the voting age was reduced from 21 to 18, but the age at which you could stand for election remained at 21, and it did that for at least 25 years—I suspect longer than that. There must have been a reason why that happened in 1970. I just wondered whether it would be useful to look at the parliamentary debates leading up to that legislation in, I think it was, 1970 and why the decision was taken to distinguish between the voting age and the candidate age.

Yes, okay.

I think it comes down to that you would change the definition of a child if you allowed 16-year-olds to stand for election, because the child welfare issues that are involved in someone at 16 becoming an elected representative are considerable. How would they hold confidential sessions with their constituents? How would they get around the constituency? There are all sorts of child welfare and safeguarding issues that would come into play. I do point out also that there are many jurisdictions that are wholly democratic that do have restrictions on the age at which people can stand, usually higher than 21—so, 25 or 35 are common ones in some countries where they just set that as a bar by which time a level of experience and a full panoply of life has been accumulated, I suppose, to make people be in a stronger position to reflect the interests of their constituents. I'm not saying that that's right, but that's clearly the approach taken. It's a hugely complicated question, I would say.

I'll move on. I've raised the issue; it may arise in a subsequent piece of legislation. Can I just move on, then, a little bit? In your view, though, out of the consultations that you had, what were the main disadvantages that came forward, what are the main challenges, in respect of voting at 16 in terms of what the potential disadvantages are?

Well, I think that the major one that features is the issue of the engagement with the young people themselves, how informed they feel to make those choices. I've heard young people say that themselves and I've also heard it said on their behalf by others who don't feel that young people in Wales—16, 17-year-olds—feel fully enough informed or engaged with the democratic process to be involved in elections. I tend to make the remark at that point, especially if younger people are saying that to me, as the Assembly Member in Ceredigion, 'Do you think that the 60-year-old or the 40-year-old are fully enough informed, or anybody ever is fully enough informed, when they're casting their vote?' The vote is a right that you cast, whether you're informed or not for that purpose.

The challenge, then, comes from that issue, which is to ensure that, as much as possible, we can, within the education process and within other means of communicating with young people, make them aware of, firstly, of course, if this legislation is passed, the canvass in 2020, where they are placed on the electoral roll and they register to vote, and also, then, the wider democratic engagement with young people on what that vote means and what they're voting for, and what this establishment is in their eyes, so that they feel that they have the ability to access information from us, from the Electoral Commission, from local government and from the Welsh Government, and also that there is greater information available to them as part of their education within their schools. That's a conversation I've already started to have with the Minister for Education and the Minister for local government.  

I think that's going to be quite an important area that we will want to explore with yourself and with others. The expert panel said that lowering the minimum voting age should be accompanied by appropriate education. I notice in the consultation with young people themselves that 53 per cent were in favour of lowering the age to 16, which means that 47 per cent were against—so, pretty much, within margins of error, half and half. Why do you think there was such little enthusiasm, or there wasn't the overwhelming enthusiasm one might have expected, for young people actually wanting to vote at 16?

My own experience of that—the point I've just made—is that young people feel that they are not well-enough versed in what voting means and in the role that they have as part of wider democratic engagement. So, as we improve that and put effort into improving that, young people will feel equipped, more equipped, to use that vote and that new voice that they will be given.

It was interesting for me, for example, to look at the Youth Parliament, and the discussion on life skills in the curriculum within the Youth Parliament that I chaired a couple of weeks ago. They've voted themselves, as Youth Parliamentarians, for that matter to be one of their three priorities for the next two years. A lot of that debate was on a need to understand the democratic processes and the decision-making practices, then, that influence their lives, and how the curriculum isn't, in their view, fully enabling them to feel that they have a good understanding of how democracy works.

Can I just develop that a little bit further? It seems to me that education, whether we call it political education or civic education, is a fundamental component of being able to competently and confidently exercise the responsibility of voting at 16—in fairness, I suppose the same argument can apply at later ages as well. But it seems to me that there's a major challenge for the education system that if we're lowering it to 16, the extent to which the education system adequately prepares young people for an understanding of how the electoral system works, how political parties operate, the different political philosophies and all of the individual issues around that—to what extent has there been engagement over, or consideration of, the challenges in terms of our schools and our education system to actually deliver that component of preparation?

That argument is therefore whether votes are introduced for young people at 16 or 18, really, because there's no major change just because of introducing votes at 16, whether that should be part of the curriculum or not. I've had a good conversation and there's been early correspondence between myself and the Minister for Education and the Minister for local government on how we work together on putting a programme of activity and resources for schools in introducing this change. In fact, as a Commission, we've put together a resource pack for schools. That's to be delivered via the Hwb, whatever Hwb is, platform—the Hwb platform—on this legislation itself, so that schools are able to inform and engage with young people in the schools on the development of this legislation, and the proposal within this legislation. But that needs to be upscaled, then, if this legislation is passed, both on the canvass of 2020 in July of next year and preparing for that, and the canvass of registering to be electors and then the election itself.  

Do you think that there is sufficient time to properly develop all those educational processes by the proposed time of introduction of this, which is really just over two years' time? 

Well, this is a large piece of work in terms of what the curriculum should do on life skills and understanding of the democratic process, and it should probably start at a very early primary age. What we're doing here in terms of the change to voting age at 16, having a two or one-year lead-in, is probably sufficient for the practical change of that. It is a bigger piece of work, then, but no less important, that needs to be done in terms of how do we better engage and inform young people in Wales as to the democratic structures and opportunities that they have. 

I know from my own engagement where I've engaged within schools on this—and it was endorsed, I think, by, when I attended, which I though was very impressive, the Youth Parliament, and I then spoke to a number of the Members there. And I was just wondering in terms of the response you've had from consultation and engagement whether it's the same. I've certainly experienced fairly overwhelmingly that young people feel they are not being adequately prepared for it. There may be those who are in favour of votes at 16. The experience I had was certainly, though, that of those who were not in favour, it was almost overwhelmingly because they felt that they weren't being adequately prepared for it. But if they were adequately prepared, it rose to almost 100 per cent. Does that reflect the sort of responses that you've had from young people within this process?   

To a certain extent, yes, but if you look back at the history of engagement with young people on votes at 16/17, there was very clearly in the fourth Assembly, with the big piece of engagement with young people there, a desire to see this happening. But I think you're right in that the desire to introduce this—young people themselves say that that has to be accompanied by something which fully informs them of their new rights. There's a bit of a chicken and egg here. We can't inform them that they're going to have this until we know that they're going to have this. So, the legislation has to be passed to a certain extent in terms of this is going to happen after the legislation is passed. As I said earlier, there's a bigger question, there's a bigger issue then, about what the entirety of the content of the curriculum is on educating young people on their civic responsibilities and opportunities.

There are obviously others you will have to explore this with, particularly with Welsh Government, but in terms of the Minister for Education in the Welsh Government, have you had specific discussions with the Minister about this particular issue? I'm just wondering if you've had any particular response or exchanges of correspondence outlining any issues around this. 

Yes, there's been an exchange of correspondence on this issue and I'm happy to share that formal correspondence with you. Of course, Welsh Government and ourselves are keen to set up, with external partners, a joint—I'm not sure what we'll call it—stakeholder board or something of that nature, to prepare now for this happening. 

Okay, thank you for that. This is obviously an important area that we will want to explore further. We'll go on to Mandy Jones. [Interruption.] Sorry, beg your pardon—yes, please. 

I do refer you, just for information, to the LSEs report on 16 and 17-year-olds voting. It does attach it to education in citizenship and democratic practices. I accept your point that we should be doing that for 18-year-olds, but there is a lot of evidence that that type of civic education is lacking. Certainly, if you don't vote in the first couple of opportunities you have to vote, it can often mean you're an absentee member of the electorate throughout your adult life, potentially. So, we really need to counter that. I did just want to check why this Bill is only proposing a reduction in the voting age to 16 for Assembly elections, because we will then have this anomaly of local government elections then remaining at 18 until another piece of law potentially changes that. 

Yes, the Welsh Government have indicated that a piece of legislation has been brought forward that will include votes at 16 and 17 for local government elections. Therefore, we've worked with them, as I've outlined already, on making sure that that particular franchise change is mirrored, then, into the local government elections. Why didn't we include the local government election franchise in here? I'd say that that's probably beyond my pay grade, in that there's no mandate for me as the Member in charge of this Bill to go into the territory of changing the local government election franchise. I didn't feel that that was within the mandate I had from everything I'd developed to that date and to the introduction of this Bill.

With respect, that sounds an incredibly instrumental answer. We're talking about a big principle here, aren't we, in terms of the exercise of our democratic culture? It's a big shift to go down to 16—one I support, incidentally, though not all my party does. We could be left with a situation where the reform isn't made, or at least not in the foreseeable future, to local government. Surely, 16 and 17-year-olds would find that anomalous, and it suddenly makes your education programme on citizenship a bit more challenging—explaining why it doesn't capture local government elections as well. I don't want to talk about a hierarchy, but if you do see a typical hierarchy diagram, it'll be local government, then sub-state Government, and then state Government. I think it's better to talk in spheres myself. But it's very disjointed, isn't it? In this happy land of impending Brexit, the fact that this Welsh Government has not brought forward many substantial pieces of legislation—by the time they may bring a local government Bill, and they do not know their main policy intention there, there will be less than 18 months to the next election for the Assembly. So, we could well go through the fifth Assembly, it seems to me, without a local government Bill. I mean, there's certainly a risk we could.

Well, that's not my working assumption. The working assumption that I've been working with the Welsh Government on is that Welsh Government would be preparing their legislation to bring forward to change the franchise for 2022 for local government, and that the franchise change for the 2021 Welsh election would be in this Bill. And there's been a good element of co-operation, and I mentioned the memorandum of understanding between us and where we've jointly worked, and Welsh Government have drafted the provisions on franchise for this Bill. So, they are working—even though they're in two separate Bills, they are working in tandem and there is an interrelationship between them and you'll be reassured, hopefully, when you see both Bills side by side. Although I accept the point that you make that, for clear accessibility of making laws, maybe the one franchise in the one Bill would be the perfect solution, but that's not where we are with how the legislation has developed—

So, why have you introduced the clauses on the Electoral Commission in this Bill instead of leaving it to the local government and elections Bill?

Yes—. Right. So, those clauses, it was felt that they needed to be done as early as possible, that it was better done in this Bill than in the Welsh Government Bill. That was the view of both the Welsh Minister at the time, Alun Davies, who wrote to me on this issue—well, that was his view, certainly, so that the Electoral Commission accountability will be to this Assembly and that it felt more in keeping with that reality then that it was part of this Assembly's Bill rather than a local government Bill. But, of course, it could have been part of that local government Bill. In Scotland, for example, it is part of a local government reform Bill [correction: it is an electoral reform Bill], which will be introduced in spring of this year, to include the Electoral Commission provisions. But, given that we were having this Bill at this time, it was felt that the Electoral Commission accountability was better in this Bill than the local government one.

For that reason, wouldn't it have been prudent to have had a draft Bill to have consulted on, because some of these anomalies would have been exposed early on?

Well, you know that there was a draft Bill on the name change because there was an early mandate and a decision to legislate on the name change and, as part of that consultation, there was a draft Bill within that consultation. Some of the other matters have had—

But specifically on this bit—

—yes—have had different timescales. The whole issue of the Electoral Commission has been one that has come forward independently of the expert panel, post consultation on the Bill to a certain extent, although it was during that period. It would have been possible to include the Electoral Commission, as I said, in the Welsh Government local government Bill. It could well have been possible to have a separate Bill for the Electoral Commission provisions. That's probably not proportionate in terms of the time for primary legislation and the issue itself, and therefore it's in this Bill.

You will appreciate that the concern we have is this: this is a major constitutional reform. This Bill deals with only one part of that reform. There may or there may not be legislation, and precisely what format it is in we don't quite know, but we're being told, 'Well, hopefully, they will be compatible', but this isn't really the way to do constitutional legislation, and it raises a whole series of issues about the approach of Government in respect of codification—that is, that we're going to end up with significant electoral legislation in different places. I know the answer may be, 'We are where we are', but is that not something that causes you concern?

Well, I completely accept that it's not a perfect piece of timed legislation where everything that could possibly be put into a Bill of constitutional significance is put into the one Bill and there's a draft Bill in advance of that as well. If we were to do that, I wouldn't be in front of you now proposing a Bill to change the voting age in time for 2021, in particular. So, we have pressures from different places, and therefore, that was behind the decision to separate out into two Bills the Assembly reform, the electoral reform, to do what is possible at this stage in order to meet that 2021 election, and use the powers available to us since the 2017 Act. And then, include various aspects of work that have been in the pipeline, both votes at 16 and 17, and also the disqualification—that we haven't come to yet—since the fourth Assembly.

Okay. We'd better move on. Mandy Jones.

Anna touched upon this earlier; I want to talk to you about electoral registration. Are you satisfied that, as drafted, the Bill adequately protects the personal data of minors?

I'll ask Anna to outline, in some detail, how that protection is put into this legislation. Only to say, as we've touched on already, that the issue of this Bill introducing votes at 16, 17, and the need to then register, in some form, 14 and 15-year-olds, in preparation for that election, there's been quite a bit of thought given to the protection needed for children of 14 and 15. We looked at how Scotland had legislated for that purpose, and we've also consulted with various stakeholders as to the protections that need to be put in place, and they're put in place on the face of this Bill in order to protect the personal data of minors.

Maybe Matthew can expand on what provisions are in the Bill itself to address this problem.

Yes. There are a number of provisions that seek to protect the personal data of 14 and 15-year-olds, in particular. Only the electoral registration officer will have information as to the date of birth of the 14 and 15-year-old attainers. Sorry, just to explain that point: obviously, the Bill will enfranchise those who are aged 16 and 17, but information will need to be gathered as to those from the age of 14 upwards, so that electoral registration officers can be aware of when those individuals turn 16, in order to ensure that they are sent a polling card. But for those 14 and 15-year-olds, only the electoral registration officer will know their date of birth. It won't be printed on the register that's available to the public or, indeed, political parties or candidates.

There are also protections in that information that would ordinarily be requested from a voter can be obtained from educational records, taking away the need for electoral registration officers to seek that information from the young people themselves. And there are a number of other safeguards that aren't specifically related to data protection, but, for instance, there's no requirement for electoral registration officers to carry out house-to-house enquiries. Ordinarily, when an invitation to register is sent, if it's not returned, the officers working for the electoral registration officer would follow that up with house-to-house enquiries. That won't apply to young people who are covered by this Bill. And also, there are provisions in the Bill that will allow the Welsh Ministers to make regulations to change, if necessary, the forms that are sent out to people inviting them to register to vote, to explain fully what the implications are, perhaps in a way that's more palatable and understandable to the young people who will be enfranchised by this Bill.

It's also important to note that there are existing protections in data protection law that apply generally. So, for instance, somebody who obtains, discloses or retains personal data that they have no legitimate right to hold, that is an offence, and it's also an offence to sell personal data.

Thank you. As drafted, the Bill doesn't allow for foreign nationals who are legally resident in Wales to vote. Why have you not included this category of persons in the franchise?

Well, you'll be aware from the Counsel General's correspondence and from his statements on the floor of the Assembly that the Welsh Government are considering including foreign nationals resident in Wales to be given the vote for local government elections. So, it is an area where there could be some discrepancy between Welsh election and local government election. 

The reason it's not in the legislation as before you today is that it didn't feel to me that there was a mandate for this inclusion in the legislation. It is quite a significant constitutional change to change an electoral system to one based currently on citizenship to one based on residency. I didn't believe, or wasn't led to believe, that there was a clear supermajority in favour of such a change. It was influential on my thinking on including it or not in this piece of legislation, and therefore, it's not there on introduction. I'll be interested if this committee has views on that and how Welsh Government will give its own evidence on this particular matter to the committee, but as I said, I didn't feel sufficiently clear that that was something that was mandated by the Assembly to be in the legislation or would carry a supermajority for the Bill in its later stages. 

Okay, thank you. You've decided not to give prisoners the opportunity to vote under this Bill. What consideration have you given to the risk, in light of the Hirst case, that the Bill could be challenged for breach of prisoners' human rights? And, in any deliberations about prisoner voting, have you taken into account the fact that the UK Government has recently taken steps in respect of giving prisoners on licence the right to vote?

I'll ask Matthew to outline in a bit more detail the issue of prisoner voting in this Bill. I'll just say two things in response to your question. One is, yes, officials have engaged with the UK Government to clarify that the arrangements that you alluded to on prisoners released on temporary licence or home detention curfew will have the right to vote in Welsh elections, not just UK elections. And also on this issue, the matter of prisoner voting more widely is currently being looked at, as you know, by one of the committees of this Assembly. It was following a request from me in thinking of this legislation that I did write to the Chair of that committee or all committees—that particular committee—to ask whether there was a desire to look at this issue, and I'm pleased that they're giving some detailed thought to the complexity of the issue of prisoner voting.

But just on the changes as a result of the UK Government's work, then, Matthew.

The obligation is to ensure that free elections are held at reasonable intervals by secret ballot under conditions that allow the free expression of people in choosing their legislators. It only applies to an institution like the Assembly; it doesn't apply to local government elections. And that's set out in article 3 of the first protocol to the convention on human rights. That imposes an obligation on the UK as a signatory to put that provision into effect, but it is not the same thing as saying that there is a right for every individual who lives in the UK to vote in elections to the legislature.

The European Court of Human Rights says that there is a wide margin of appreciation, which may better be described as a very wide discretion, for signatories to the convention to decide who should be able to vote in elections. The point is that it must be carefully considered and the outcome in terms of who is allowed to vote must be proportionate. The difficulty up until recently for the UK—and this was highlighted by the Hirst case, which was taken to the European Court in 2005—is that the blanket ban on all prisoners, who cannot vote in any election in any circumstances, cannot be said to be proportionate, and nor can it be said to be exercising any discretion. And in fact it seems that Parliament hadn't considered the issue since the Representation of the People Act was passed in 1983. Now, since then, the UK Government has changed its policy so that those who are released on temporary licence or home detention curfew are entitled to vote, and also when somebody has been convicted of an offence and they are being sent to prison, the judge informs them in sentencing that they will lose their right to vote while they are in prison. So, the indication from the Committee of Ministers of the Council of Europe, which polices the convention, is that that may be sufficient. That may sufficiently show that the UK has exercised its discretion in a proper and proportionate way to allow some prisoners to vote to bring it back in line with the requirements of the convention.

To be definitive on that would require a case to be taken to the European Court, because the court won't consider a hypothetical question. So, until somebody actually has lost their right to vote because of an Assembly election, then it isn't possible for the issue to be crystallised.

But isn't it the case, then, in terms of what you're saying, that this is effectively a de facto ban, isn't it, within this, because all prisoners are excluded? And there will have to be an amendment, then, at some stage—

Sorry, I didn't catch that—

And there will have to be an amendment at some stage, or consideration will have to be given.

That's not the view we take in relation to the Bill. So, up until April 2018, this was entirely an issue for the UK Parliament. In April 2018, the Assembly was given competence over Assembly elections. So, to the extent that the UK, and by implication the Assembly, is in breach of the obligation, if it is, and that's an unclear and untested question, but one in which we can have confidence given the changes that have been made—that the UK is in compliance with the convention—the UK Parliament and the Assembly stand or fall together on that. But it's not the Bill that is—it's not because of the Bill that the Assembly would be in breach of its obligations; it's because it now has the competence and has an ongoing duty to consider the issue, which, as the Llywydd has said, has been referred to a committee of the Assembly to consider. So, it's not the Bill in itself that raises this issue, but, of course, it does shine a spotlight on it.

Okay. Sorry, Mandy, I interrupted.

Does that include people who are on remand before being charged as well?

No. Those who are on remand and, in fact, anybody up to the point at which they are sentenced, is entitled to vote, and those who are on remand in prison can vote by post.

Thank you. The drafting contained in Part 3 is particularly complex as it amends not only primary but secondary legislation as well. Why have you not taken the opportunity here to consolidate the legislation in relation to electoral law?

May I—?

I thought I was going to—

Sorry—

You were on a roll—[Laughter.] Just to say that Part 3 includes elections and electoral registration matters, so there is an element of a time constraint on electoral registration. And, as I noted earlier, the canvass for 2021 elections to include 16 and 17-year-olds, if this Bill is passed, will happen next July. There is an understanding between us and those who are engaged in preparing for elections—the Electoral Commission, local government, electoral returning officers—that they will have certainty at least six months before a canvass as to what they will be canvassing and what the rules around that should be. So, it was decided then that issues that could have been done by secondary legislation would be on the face of the Bill because they will then have certainty—if this Bill is passed towards the end of this year, they'll have that six months' certainty in legislation because it's on the face of the Bill. So, that's the principle of why that was the case. I don't know whether you want to expand on anything. 

Just to say that clarifying, simplifying, consolidating the law on the elections would be a very welcome thing, but it is huge. There are a huge number of Acts of Parliament and regulations that set out the law in relation to elections. Just to give you an idea, the Law Commission had a team looking at certain aspects of reforming the law on elections, and that covered the franchise, voting systems, boundaries and a few other areas—so by no means the whole gamut of electoral law—and the team at the Law Commission took four years to produce a report into how that should be reformed. So, it would be a very significant task that would be way beyond the scope of this Bill. Also, at the moment, this is the Bill that you're scrutinising, which is 30 pages in one language; if we were to do this, the Bill would run to hundreds and hundreds and hundreds of pages.

They did, incidentally, suggest that you reform one more—[Inaudible.] But we've probably been there. Sorry, Mandy.

As you've just spoken about the reform, you've just answered one of my questions, but can I just come back on one thing from earlier? The expert panel on education for 16 and 17-year-olds also said that young people are encouraged to be supported and exercise their right to vote—the reduction in the minimum age should be accompanied by appropriate, effective and non-partisan political education. Should we not follow—because there are two parts to this—should we not follow the expert panel and ensure that that education is in place before—? You know, the 2021 election—there's not going to be enough effective education in place for that. And if we don't teach our children properly for the 2021 electoral Bills that are coming through and everything, and the voting, it won't enhance democracy at all.

You touched on it earlier that you should be doing education from when children are in primary school, so why—?

Can I say—? We've gone through the educational side, I wondered if you wanted to complete any issues with regard to any further questions on the actual Bill itself.

No, that's fine. I just wanted that answered. 

Because we will have Government Ministers in who we'll be able to explore those education issues with, if that's okay. 

Okay, fine. 

Okay. Can we move on? Sorry, I'm very aware in terms of time as well. David Melding. 

I should be able to get through these quite quickly. It relates to the Electoral Commission, and we've touched on it already, so I'm not going to repeat myself. This has come in since you first talked to your team about developing this Bill, and I just wonder—I think you said on 6 December that you were going to talk to the political groups to see if this would be a reasonable vehicle to include matters relating to the oversight of the Electoral Commission. And does section 27, which deals with this, reflect those discussions?

Well, yes, the Commission did decide in a subsequent meeting in January to include the duty as outlined in section 27 to allow us to have the scope within this legislation and for this period now to consider how to put the devolution of the responsibility for the Electoral Commission into legislation. I've already talked about that there were other vehicles that could have been used for this purpose—Welsh Government legislation, a stand-alone Bill—but for a variety of reasons, as I alluded to there, this was felt as one way of doing it. It is an issue now that I'm discussing with Welsh Government, the Electoral Commission, and this committee will have a view also on how to put this into effect and what the processes should be. I should draw your attention to the fact that Scotland are also undertaking a similar exercise and that there will be legislation from the Scottish Government to give the power to the Scottish Parliament corporate body, the equivalent of our Commission, on the oversight and accountability responsibilities of the Electoral Commission in Scotland. 

Okay, I sense this is clearly work in progress, and we probably don't have the finished article. Indeed, section 27 is incredibly weak—I don't mean it's poor in terms of its drafting, but I mean the Senedd has a duty to consider and then must make recommendations to the Electoral Commission, who must consider them. You know, I have to say that doesn't exactly put the fear of God into someone, I sense. And, indeed, the explanatory memorandum says you probably have these powers anyway in terms of what—or rather, legislation isn't required to have that effect as described in currently section 27. It doesn't need a legislative vehicle because it is so weak, frankly. So, I just would like to ask you, therefore, in terms of what the Counsel General has said that there needs to be a more formal footing, there will be either in this or the elections Bill something that has more grip on the relationship that we now have in terms of the formality and accountability of the Electoral Commission. Is that a fair summary and—? 

I expect it to be in this Bill. My working assumption is that section 27 and this Bill will be amended to give greater clarity on the accountability and oversight arrangements for the Electoral Commission. 

So, we are likely to be in the suboptimal situation of a Stage 2 where significant amendments are going to be made. 

Yes, and I'd agree that they're suboptimal. I would have preferred a better synchronicity of timing that would have allowed for policy to have been fully developed before introduction of the Bill. One thing I'd say in my favour is that I have made it clear that we are considering this, so I didn't allow for your Stage 1 to carry on blissfully unaware that this was being considered, and that it has been part of me writing to you to say that we are exploring these issues, and also to ensure that the scope of the Bill was sufficient to allow for amendments. 

I appreciate your very direct answers as well; I think that's helpful. However, do you think in any amendments that you'd still be using the route of Standing Orders to exercise the functions, because, again, that seems to me—. Well, it gives us flexibility, I suppose, but it's a little strange, perhaps, on such substantial issues potentially, to then say the main route you're going to use is Standing Orders. 

It's a good question. It will require amendments to the Political Parties, Elections and Referendums Act 2000, the Act which currently sets out the arrangements for the accountability of the Electoral Commission, and the role of the Speaker's Committee on the Electoral Commission and how it's funded. So, that would require legislation to change the fundamental provisions, but, of course, in terms of how much detail goes onto the face of the Bill, about how the procedures of the Assembly may work and how the budget and the estimates are laid and to which committee that goes to, then there is clearly some flexibility as to how much of those provisions could go into Standing Orders in future, if the Bill is amended significantly at Stage 2. But those are issues that we still need to explore.  

Okay. Chair, I sense we will have time to look at these in more detail when we see them. 

We'll move on to Dai Lloyd. 

I think David Melding wanted to come in on this point. 

Yes. I just wanted to ask whether you'd considered the possibility of, when people take the oath, they're deemed to have resigned from anything that would disqualify them. Because, obviously, if you've stood for election and taken the oath, you intend to be an Assembly Member. Now, in 2011, at a time when there were many more disqualifying offices—and some of them were fairly obscure it had to be said, and I know that's not now the situation—. But, in 2011, we got into difficulty because two Members took the oath when they were—well, one of them was thought to have been disqualified, and there was a case to answer in the other situation as well. And it—. I can't remember the bodies they were members of, but it was via their former position as councillors. And I think the institution was caused a level of disrepute, frankly, in that process.

So, wouldn't it just be simpler to say that, 'If you take the oath to become an Assembly Member, anything that would have disqualified you, you are deemed to have resigned from'? And I think that that was offered as an option in the Constitutional and Legislative Affairs Committee report during the last Assembly. 

Matthew.

Yes. It was indeed set out in the report. There is a legislative competence issue there though, because some of the disqualifying offices don't fall within the remit of the Assembly. So, the Assembly could not legislate as to when an individual ceases to hold a particular office. So, to legislate for that for some and not others would lead to a possibly slightly more confusing picture than exists at the moment. 

There's also—. This isn't really a legal point, but there is a practical point about how the employer who's lost their member of staff would actually know that that person no longer holds that role. So, there are legal and practical issues around that. 

Okay. There's a logic to what you've said. Obviously, lord lieutenants and high sheriffs—I'm not sure anyone else falls in that category, and I'm not sure they're ever likely to stand for election, but—. However, we can look at that, and I appreciate the thoughtful answer.

You don't know the same high sheriffs and lord lieutenants I do, then. [Laughter.]

We will certainly explore that further. Carwyn Jones.

I don't have any more questions. I'm content.

Okay. Presiding Officer, I think that brings us to the end of this rather mammoth session. Is there anything else? Oh, the implementation of the Law Commission recommendations. Can you explain why section 36 is included in the Bill, and why this Bill is a suitable vehicle to bring forward these provisions, given that the Welsh Government, should it wish to implement any Law Commission recommendations, can introduce its own primary legislation?

Well, again, it was felt that this was a vehicle that could undertake that primary legislation, so that, when and if there are recommendations for reform on administrative arrangements, the powers are with Welsh Ministers to put those into effect. And this was seen at the time of introduction as a reasonable way of introducing this into primary legislation.

Welsh Government, of course, have a firm alternative view. Do you have a particular view on their view?

I don't have a view on their view to date, but I will look forward to hearing it in detail.

Fair enough. We'll explore that. Presiding Officer, it's been a very long session. Thank you very much for the detailed response from yourself and your officials. There will be a transcript, and of course we will be meeting again in due course over this particular legislation. So, thank you very much for your attendance.

Diolch.

Can I suggest we take a five-minute comfort break? Agreed.

Okay, we now move on to item 3, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We're onto the Local Government (Assistants for Political Groups) (Remuneration) (Wales) (Amendment) Order 2019. The Local Government (Assistants for Political Groups) (Remuneration) (Wales) Order 2009 linked the maximum salary of political assistants in local authorities to an assigned point on the National Joint Council pay scale. This means that the maximum salary of political assistants increases annually with the pay increases for the pay scale. From 1 April 2019 the National Joint Council is changing their pay scales and merging some of the pay points. As a result, from 1 April 2019 the current pay point for political assistants will no longer exist. This Order aligns the current pay scales of political assistants to the new pay scale. Any comments or observations?

On to item 3.2: the Local Authority Adoption Services (Wales) Regulations 2019. These regulations are made under section 9 of the Adoption and Children Act 2002 and they impose requirements on local authority adoption service providers. Any comments or observations?

We move on to item 4: instruments previously considered for sifting and now subject to scrutiny under Standing Order 21.2 and 21.3.

The Air Quality Standards (Wales) (Amendment) (EU Exit) Regulations 2019, which make amendments to the Air Quality Standards (Wales) Regulations 2010 in order to address failures of retained EU law to operate effectively and other deficiencies in retained EU law. Any comments or observations?

We move on to item 4.2: 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 or observations on that?

If not, we move on to item 5: instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3, and we're on to the Adoption Support Services (Wales) Regulations 2019. You have before you a report, the regulations and an explanatory memorandum. These regulations are made under the Adoption and Children Act 2002, and provide that counselling, advice and information and any other services prescribed by regulations in relation to adoption are adoption support services. Regulation 3(1) of these regulations prescribes services that are adoption support services. Any points on this?

Yes, there's one technical reporting point on these regulations set out on pack page 35. The regulations define 'adoptive parent' by reference to 'adoptive parent'. So, there's an element of circularity in that definition. The Welsh Government have responded and acknowledge there is an element of circularity, but the Welsh Government states it's still clear what the regulation are intended to do and that they will be understood by all those persons who are affected by the regulations.

Okay, so we note that.

We move on to item 5.2: the Carbon Capture Readiness (Electricity Generating Stations) (Amendment) (Wales) Regulations 2019. Again, you have before you a report, regulations and explanatory memorandum. These regulations are made in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and section 58B of the Government of Wales Act 2006. These regulations amend the Carbon Capture Readiness (Electricity Generating Stations) Regulations 2013 as a result of the devolution, by the Wales Act 2017, of energy consenting functions. Any comments or observations?

In which case, we move on to item 5.3: affirmative resolution instruments: the Common Agricultural Policy (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These draft regulations are to be made under Schedule 2 and Schedule 7 to the European Union (Withdrawal) Act 2018, and they seek 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. They amend four pieces of Welsh subordinate legislation in the field of agriculture, all of which constitute retained EU law under the 2018 Act. Any comments or observations?

There's one merits point in the draft report, which sets out just some of the complexities that arise under this kind of legislation. For example, the UK currently has a co-ordinating body that co-ordinates the separate agencies that make CAP payments in the UK. The co-ordinating body is generally an EU-facing body, and it appears that that body will no longer exist, its functions instead being carried out by the Ministers of the three devolved Governments and the UK Government. The draft report suggests the Welsh Government offer a little more clarity around this change.

Also, the draft report raises the complexity of referential drafting—that is, drafting legislation by cross-referring to other legislation. And when you do that, you need to be absolutely clear what legislation you are referring to and which version of that legislation you are referring to. Again, the draft report suggests that a bit more clarity could have been helpful from the Welsh Government on this, and those issues are then mentioned again at the end of the draft report, under the heading 'Implications arising from exiting the European Union', summarising just how complex legislation is becoming. This, of course, may be relevant to the Legislation (Wales) Bill the committee is considering, and that Bill's aim of improving accessibility of Welsh law. And there's been no Welsh Government response to these reporting points yet.

Okay. Any other comments or observations? No.

In which case, we move on to item 5.4, the Animal Health and Welfare (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These draft regulations are to be made under Schedule 2 and Schedule 7 to the European Union (Withdrawal) Act 2018, and again seek to address failures of retained EU law to operate effectively, and other deficiencies arising from our withdrawal from the European Union. Comments, observations—

The draft report raises two merits points. The first suggests that the explanatory memorandum could have been a bit clearer in explaining how retained EU law will work. This was raised in the report because of the importance of being clear about the meaning of legislation and how it all interacts.

The second merits point, in brief, asked the Welsh Government to include in the preamble to the regulations a statement confirming that the Welsh Government has consulted the Secretary of State. Of course, before making these particular regulations, which take away a reciprocal arrangement that is currently in place between the UK and the EU, the Welsh Ministers had to consult the Secretary of State. There was no statement in the original explanatory memorandum, or in the preamble to the regulations, that confirmed that consultation had taken place. We have since received an updated, revised memorandum that explains that that consultation has taken place. But the preamble to the regulations, which is the short paragraph at the start of the regulations on pack page 84, still does not say that the consultation has taken place, and the draft report points out that it would have been good legislative practice to include a short sentence about consultation in the preamble itself.

Finally, the draft report notes some implications arising from exiting the EU, in particular around the Welsh Government statement that only five people in Wales will be affected by the ending of mutual recognition of slaughterhouse certificates under these regulations. The Welsh Government says, because only five people will be affected, no regulatory impact assessment has been carried out, and the draft report suggested asking the Welsh Government for a bit more explanation around how it understands that only five people will be affected. The Welsh Government response came in just moments before the committee began today—I believe Members have hard copies of the response. With regard to point 1, the Welsh Government says it has not been practicable to provide further detail because of the volume of Brexit legislation. But the draft report prepared for the committee sets out the basic principles we were looking for, in what is hopefully a clear way and in just a single paragraph. So, it isn't something that's difficult to do.

With regard to point 2, the Welsh Government response refers to the updated explanatory memorandum, and having the updated explanatory memorandum, yes, is helpful, but that still leaves a preamble to the regulations not making a reference to the consultation with the Secretary of State. And finally, with regard to the gathering of information about the number of people affected by the regulations, the Welsh Government refers to a 2018 survey by the Food Standards Agency and the recent exercise that has revealed that there are no slaughterhouse workers in Wales who hold a certificate of competence issued by another member state.

Okay, any comments on that or further observations? We note that. We will, of course, be reporting on it, and. as you made reference to, the particular response in respect of the volume of work when that comes up in due course.

If there are no other comments on that, we move on to item 5.5, the Regulated Adoption Services (Service Providers and Responsible Individuals) (Wales) Regulations 2019. These regulations are made under the Regulation and Inspection of Social Care (Wales) Act 2016, and set out the regulatory requirements and related provisions for providers of regulated adoption services and for those persons who are designated as the 'responsible individuals' for such services. Any comments?

Yes. There are two technical points and one merits point. The first technical point relates to the definition of 'approved by the service' and the way the term 'approved by the service' is used in the regulations, and the example set out is from paragraph 30 of Schedule 3 to the regulations, and that paragraph says,

'Any serious complaint about a prospective adopter approved by the service'.

It isn't clear how the service can approve in this context. There's some lack of clarity there, and the draft report emphasises the need for clarity because this operates in the context of criminal offences.

The second technical point relates to the steps that service providers must take when responsible individuals are absent. The regulations say that when the responsible individual is absent, the service provider must ensure there are arrangements in place to comply with Parts 3 to 10 of the regulations. That raises the question, 'What about Parts 11 to 15 of the regulations, which also contain very important requirements on responsible individuals?' And the draft report notes that the response taken in some recent regulations scrutinised by the committee in relation to advocacy services did, indeed, refer to Parts 3 to 15. So, the question arises, 'Why are these regulations being treated differently?'

Finally, there is one merits point to note, which noted that the link in the explanatory memorandum did not take you to a summary of the consultation responses as promised. However, since this draft report was circulated to the Welsh Government last week, their webpage has been updated and it does now include a summary of consultation responses and a list of consultation responses, but no further Welsh Government response has been received yet. 

Okay. Well, we'll report to that in due course. Do we note that?

Yes.

Okay. We move on to item 6: the Transmissible Spongiform Encephalopathies (Wales) (Amendment) Regulations 2019. These regulations correct a minor drafting error, I understand, in the 2018 regulations. Nothing more on that? Okay. Any comments or observations? 

If not, we'll move on to item 7: issues to be reported to the Assembly under Standing Order 21.7. There are two codes that we have to consider. The code of practice for the Local Authority Adoption Services (Wales) Regulations 2019—the guidance in this code sets out how local authority service providers and managers may comply with the Local Authority Adoption Services (Wales) Regulations 2019. Any comments or observations?

In which case, we move on to item 7.2, which is the code of practice for the Local Authority Fostering Services (Wales) Regulations 2018. The guidance in this code sets out how local authority fostering service providers and local authority managers may comply with the requirements imposed by the Local Authority Fostering Services (Wales) Regulations 2018. Any comments or observations on that?

If not, we move on to item 7.3: statutory guidance for the commissioning of violence against women, domestic abuse and sexual violence services in Wales. This guidance applies to the commissioning of violence against women, domestic abuse and sexual violence, and related services by relevant authorities under the Violence Against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015. Relevant authorities are defined as local authorities, local health boards, fire and rescue authorities and national health service trusts. This guidance will become statutory from 1 April 2019 and will be issued under section 15 of the Act. Any comments or observations on that?

In which case, item 8: written statements under Standing Order 30C, the Food (Amendment) (EU Exit) Regulations 2019. Any comments on that? No. 

Item 8.2: the Common Organisation of the Markets in Agricultural Products and Common Agricultural Policy (Miscellaneous Amendments) (EU Exit) Regulations 2019. I think there were one or two issues on this. 

The written statement raises two issues that have arisen on a number of other written statements over the last few weeks. The first is a lack of clarity around the impact the regulations may have on the Assembly's legislative competence. The second point to note is that there is disagreement between the Welsh Government and the UK Government as to whether the common organisation of markets and elements of the CAP are devolved, and this relates to the same issue that was raised recently regarding the question of whether state aid and geographical indications of food are devolved. 

Okay. Any other comments?

Well, we need to make strongly those points, because they keep coming up, really. I mean, we all thought, by transferring to a reserved model, that things would be more clear-cut. Now, clearly, they appear not to be. So, is it right to ask for some sort of resolution of what is reserved and what is not reserved, or are we just going to keep on making, sort of, wilting comments? I mean, a letter from the Chair, perhaps, making that point.

Yes, we can do that. Another letter to send. 

Right. We're on, now, item 9—are we? Sorry, which one? It's 8.3, is it? The Common Fisheries Policy (Amendment etc.) (EU Exit) (No. 2) Regulations 2019. Any comments or observations on that? No.

In which case, we move on to item 9: papers to note. We have the letter from the Minister for International Relations and the Welsh Language regarding the Conformity Assessment (Mutual Recognition Agreements) Regulations 2019. This is a mutual recognition agreement for things such as product safety, et cetera, to facilitate trade and business. Are there any issues on that? No. 

Then on to item 9.2: letter from the Counsel General and Brexit Minister regarding the Challenges to Validity of EU Instruments (EU Exit) Regulations 2019. This is about the ongoing right to intervene in cases that have been commenced prior to leaving the EU with regard to reference to the Court of Justice of the European Union. Do we note that? 

Yes.

Then we're on to item 9.3. This is the letter from the Chair of the Climate Change, Environment and Rural Affairs Committee to the First Minister regarding the scrutiny of legislative consent memoranda, and there's a letter there from the Chair of that committee. Any comments? Just noted? Okay.

Item 9.4: supplementary legislative consent memorandum on the Healthcare (International Arrangements) Bill. You'll see the correspondence there. We've had a letter from the Minister. Of course, this was an area where we wanted changes made to go onto the face of the Bill. The Minister agreed but hasn't been able to achieve that. There is another position adopted in terms of meaningful consultation and engagement, and I think it's accepted that this is a compromise, and probably the best that could be achieved in the circumstances. Any issue that arises on this? Any comments? 

It's a bit like a meaningful vote, isn't it?

Yes. 

Whenever that might take place. 

Could be tomorrow. 

Yes. 

Can I just tell the committee we've also received another letter from the Minister this afternoon on the healthcare Bill, and we'll circulate that to Members in advance of the debate tomorrow afternoon? 

Okay. We note that. And I think that moves us on to item—. We have a letter from Stephen Hammond MP, and a letter from the Minister for Health and Social Services to Stephen Hammond, et cetera. So, we just note those items of correspondence, and, of course, we have the LCM scheduled for tomorrow. 

So, we move on to item 10 now, which is a motion under Standing Order 17.42 to resolve to exclude the public from the meeting to enable us to consider the draft report. Okay? Is that agreed? Thank you. We move into private session.