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Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

03/06/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Carwyn Jones AM
Dai Lloyd AM
Dawn Bowden AM
Mick Antoniw AM Cadeirydd y Pwyllgor
Committee Chair
Suzy Davies AM

Y rhai eraill a oedd yn bresennol

Others in Attendance

Emma Gammon Cyfreithiwr, Llywodraeth Cymru
Lawyer, Welsh Government
Julie Morgan AM Y Dirprwy Weinidog Iechyd a Gwasanaethau Cymdeithasol
The Deputy Minister for Health and Social Services
Karen Cornish Dirprwy Gyfarwyddwr yr Is-adran Plant a Theuluoedd, Llywodraeth Cymru
Deputy Director, Children and Families Division, Welsh Government

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Katie Wyatt Cynghorydd Cyfreithiol
Legal Adviser
Lisa Salkeld Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Rachael Davies Dirprwy Glerc
Deputy Clerk
Rhiannon Lewis Cynghorydd Cyfreithiol
Legal Adviser
Sarah Sargent Ail Glerc
Second Clerk

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

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

Dechreuodd y cyfarfod am 13:30.

The meeting began at 13:30.

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

Okay. This is a meeting of the Constitutional and Legislative Affairs Committee. I welcome the Minister, Julie Morgan, and your officials with you today. Just by way of introduction, opening, usual housekeeping rules will apply. No apologies relevant for today.

2. Bil Plant (Diddymu Amddiffyniad Cosb Resymol) (Cymru): Sesiwn dystiolaeth
2. Children (Abolition of Defence of Reasonable Punishment) (Wales) Bill: Evidence session

So, Minister, if you're happy, we'll go straight into questions on the Children (Abolition of Defence of Reasonable Punishment) (Wales) Bill 2019. Are you happy to proceed? Do you want to say anything in opening or are you happy—?

No, not really. I think if we go straight into questions that'll be fine.

Well, I'll just do a few opening questions, then, and these are to do with competence. You've considered, obviously, the issue of competence. I wonder if you could just outline your views on that and why you feel this matter is within the Assembly's competence.

Yes. Thank you very much, Chair. I'm confident that this Bill is within competence. Prior to the introduction of the Bill, I received the Llywydd's view that it was within competence, and, of course, the Bill does relate to the matter of parental discipline, which is devolved to the Assembly. The basis for the legislative competence is set out in the explanatory memorandum. It was through the Wales Act 2017, which specifically said that parental discipline was devolved to the Assembly.

Okay. And have there been any discussions with the UK Government about any issues or concerns around the Bill?

Yes. We've had quite a lot of discussions with the UK Government. Obviously, because it is devolved, there's not an absolute requirement to do that, but we have been discussing with them. We've had discussions with the relevant Whitehall departments during the development of the Bill. Meetings have been held with the Home Office and with the Ministry of Justice, which haven't raised any concerns in relation to our proposals. The Ministry of Justice were also involved in the development of the justice impact assessment, and there has been exchange of correspondence between Welsh Ministers and UK Government Ministers.

Thank you for that. Have you given any consideration to any human rights issues that might relate—in particular balancing the rights of the child to be protected and those of the parents to discipline a child?

Yes. We've given a great deal of thought, obviously, to the human rights issue and how you balance these rights and, as you say, ultimately it's a question about how to find a balance between the rights of the child as well as the parents, who enjoy rights under article 8. Basically, the Parliamentary Joint Committee on Human Rights' nineteenth report in 2003-04 did not consider that there was any disproportionate interference with family life that should prevent the defence being abolished, and the UN Committee on the Rights of the Child, I think it was as recently as 2016, actually urged again abolition of the reasonable punishment defence. I think this is very helpful, obviously, in proportionality terms because it shows that such bodies consider that nothing less than the absolute abolishment of the reasonable punishment defence will do.

Thank you for that. You mentioned in what you've just said, of course, the article 8 issue that, under the Human Rights Act, exists—interference in family life and the balancing of that particular issue. Within the explanatory memorandum, there is no reference specifically to article 8. Is there any reason for that?

That there's no reference to it? Yes. I don't think there's any particular reason it's not there, is there?

In the explanatory memorandum, we concentrated on the structural competence and what we've been given under the Wales Act rather than the human rights considerations because we've covered a lot of that in the impact assessments.

Okay. So, you're satisfied, then that the balance—? I mean, firstly, is it the Government's view that article 8 is engaged but that the evidence justifies interference or not?

Well, the rights are not absolute. We believe that action can therefore be taken that does interfere with them, provided that interference is justified. And the legitimate aim of this legislation is to protect the rights and freedoms of others, who are children, basically. We're trying to protect their rights and freedoms. Our view is that we are able to justify interference as a proportionate means of reaching a legitimate aim.

13:35

Diolch. Thank you very much. Before I go on to my questions, I just wanted to ask you something about competence, because I don't disagree with the advice that you've had, but I just wonder if you can cover off a couple of words for me that are in section 1(3), which is,

'corporal punishment...taking place in Wales cannot be justified in any civil or criminal proceedings on the ground that it constituted acceptable conduct for the purposes of any other rule of the common law.'

Well, the common law is pretty vast. I know what the purpose of this was—to make sure that assault was included in the whole concept of the Bill—but what steps have you taken to make sure that you haven't inadvertently captured things that are part of common law, but that are either not intended for this Bill or that may be outside of competence?

That section, that wording, was specifically included to make sure that a person couldn't still rely on the defence by the back door, so that they couldn't say that smacking their child was acceptable conduct.

Okay. We can get some specific questions on this, but it was just: how are you able to be completely certain that it's not going to capture things that it shouldn't capture? That's my question.

From all the research we've done, I'm not aware that it's going to capture anything that it shouldn't. It was just about making sure that the common law doesn't develop in a way that undermines the purpose of the Bill.

That's okay; I know that we'll get some more questions on this.

I suppose my central question is: what's the problem this is trying to solve, bearing in mind that the defence has been, well, not used very much, if at all, in this country? I know there's been a lot of reliance on evidence from New Zealand, for example, but in this country, I mean, how much time has this taken up, and does it warrant us taking up that amount of time to resolve a problem that may not be a problem?

Well, yes. Certainly, I do think that it does warrant taking up the time that we have taken up, and the Bill is not about the number of times the defence has been used in this country, it's about culture and behaviour change, helping to protect children's rights and sending a clear message that physically punishing children is not acceptable in Wales. So, we feel that it's very important that this legislation is brought in, along with an information campaign, and also with support for parents, and it's the three things together, basically, that we think will mean that there'll be less physical punishment of children in Wales. So, that's our aim: to stop the physical punishment of children in Wales.

Okay. I take what you say on that, but the effectiveness of this is going to lie in the hands of two separate legislatures when it comes to it, because the Crown Prosecution Service, as you know, their work isn't devolved. Are you concerned at all that because you'll have very limited control over what they're going to do that the intention, which is about culture change and so forth, might be undermined because you're not able, really, to have much influence over them? Although, I hear what you say about speaking with the Ministry of Justice.

Well, we've had very close, good working relationships with the CPS. The previous Minister met with the CPS, I've met with the CPS, and they've been working very closely with the officials. And certainly, it's been very effective working. We've set up an implementation group, and the implementation group contains the CPS, the police, social services, all the different organisations, and that has already met and will be carrying on meeting regularly. And we've got excellent support and working relationships with the CPS. So, I don't really see any problem there, and they haven't raised any problems with us either.

Okay. Well, in bearing in mind they've already seen the Act, which is a very short Act, I would have expected them by now to have started some work on some draft guidance in anticipation of this becoming law. Have you had any sight of that yet?

No, but we've discussed the fact that they will be changing the draft guidance. They say this is something that they regularly update all the time. They don't see it as a big issue and they will be changing it when the time comes.

When is that likely to be? Because it's quite difficult for us to say, 'Yes, this is a great Act' unless we know that the structures for delivering it properly are able to deliver what you want.

I think you're absolutely right; that is going to be the key to the success, that it's all carefully prepared for and that the structures are in place. That's what the officials have been working very hard to absolutely ensure. And I think the good working relations with the CPS has been absolutely crucial. They're absolutely aware of everything we're doing, they're in support of what we're doing, and they see providing a change in the guidance as an everyday sort of thing that they do all the time.

13:40

Okay. So, is there anything preventing them giving us draft guidance before we get to Stage 3 of this Bill?

Well, I haven't discussed that about whether they would have any draft guidance, but on the implementation group, all these issues will be discussed, and there are going to be sub-groups of the implementation group to look specifically at different areas, and I would imagine that this would be one.

Okay. I accept what you say there, but it's the timing of that work that's in my mind when I'm asking this question, because I think it would be extremely useful if, by the time we get to the latter stages of this Bill, we had an idea that the structures that will lie beneath it are capable of delivering what you want.

Yes. I think you're aware that we don't plan to introduce this Bill very swiftly; that we are thinking of probably as much as a two-year implementation period before the actual implementation. So, there is quite a lot of time. We are deliberately doing this in order to make sure that we've got time to work out all these things.

Sorry. Did you have anything you wanted to add to that?

All right. Okay, that's fine then, thank you. Thank you, Chair.

Can I just ask for clarity? Have your own officials given consideration to the sort of change to the existing guidance that might be made as part of that, so you have an idea as to what you think would be inadequate about the existing guidance and how it should change in light of this legislation, or is that something that you see occurring during this two-year run-up period?

Well, I haven't had any discussion; I don't know whether you've had any discussion with the CPS.

We have had discussion with a range of stakeholders, including the CPS, and as the Deputy Minister has said, they are fully on board with the principle of the Bill. They recognise that their guidelines and guidance will need to change. They need to balance, as we all do, what's proportionate to be completed ahead of the proposed change in the law and what would then be taken forward after a change in the law, provided, of course, that that's passed by the Senedd. So, they're not wanting to overly pre-empt the will of the Senedd and the will of the Assembly. They are fully aware that changes will need to be made and they have and will be planning that into their work plan, should we achieve Royal Assent.

Can I add that they've actually got their own policy department and their policy lead for this has been involved since the very very beginning? He is responsible, I believe, for updating the guidance, so I've got every confidence that they'll do as they've said they're going to do.

Thank you. Good afternoon, Minister. Just one thing I want to explore, just to be absolutely clear. The Bill, on the face of it, is very clear in terms of what it's trying to do, but I wanted to focus on section 1(4) and the definition of 'corporal punishment'. Now, there is the definition. 'Battery' is easily defined in law, as we know. What is a punishment, I suppose? Is there a need to further define what a punishment is, or is it clear? I think that's something to consider.

And secondly—well, two other things really, but secondly: what if the situation is unclear, where, for example, a child reaches for something hot and the parent hits the child's arm to stop the child from harming itself? Is that a punishment or is that something that is done in order to prevent the child from harming themselves? Now, it may be that that can't be defined on the face of the Bill and it may be that that's something that has to be defined as part of the prosecution process.

The third issue is: the defence has gone, so what if we have a situation where somebody says, 'Well, yes, I did hit my child, but it wasn't as a punishment, it was in order to stop the child doing something that would be harmful to itself'? Now, in those circumstances—this is a very legal question, I add—does the prosecution have to prove that the battery was carried out as a punishment, or does the defendant have to prove the defence? And if so, is the standard of proof the criminal standard or the civil standard? I don't expect the Minister—I'm not asking the Minister this, I'm asking the lawyers this. [Laughter.]

It's just, looking at it, if I was somebody who was looking at this and saying, 'Right, I am representing somebody who's being prosecuted', that's the first thing that I'd look at. Where's the burden of proof? What is the standard of proof?

13:45

Exactly the same as it is now, because we're talking about the existing offences of assault and battery, so there should be no change to the standards or the burdens of proof. They're exactly the same as they are now.

And the answer to the question about if it was, say, moving the child away from something hot, we've drafted the legislation so that that wouldn't be pushing a child's hand away to save them from hurting themselves, or pulling them back from the road wouldn't be included, because it wouldn't be for a punishment. But in terms of what is a punishment, we purposely didn't put a list of what things could be included on the face of the legislation because you could never have a comprehensive list.

No, not an exhaustive list. Okay, just to be clear, then, if somebody was prosecuted for this offence, it would be for the prosecution to prove the battery, and it would be for the prosecution to prove that it was a punishment, and not the other way round.

Yes, absolutely, in exactly the same way as it is now.

Can I just pursue this a little bit? The removal of the defence means that the question of punishment presumably becomes irrelevant. It can never be an excuse. So, is it the case that the defendant is going to have to prove it is something else? I'm not completely clear from your answer which way this works. Because the prosecution can just come in and say, 'You've hit your child, full stop' now, so it is going to have to be for the defendant to say, 'Well, actually, I've got mitigating circumstances', which will include the hand in the fire, pulling the child out of the road and all the rest of it. So, it strikes me as if it is still going to be in the, presumably, parent's court to make the case in this. Once the actus reus is pretty clear to everybody, it's the intention behind it, and that's now going to be resting with the defendant and not with the prosecution.

Our view is that we wouldn't even get to court in a case like that, because you'd have to apply the public interest test, and it just wouldn't get that far.

Good. Which takes me back to my first question: what on earth are we trying to achieve with this?

I think that goes to the—. You might want to explain about the PPIW report.

I've heard what the Minister said many times—that this is a way of ensuring behavioural change, and nobody, with any offence, would suggest that when you create an offence, every single person who might be at risk of prosecution should be prosecuted. I understand that, and I fully support the Bill itself. I just want to be clear that we've anticipated any reasonable scenario that might occur.

Coming back to what Suzy has said, of course battery doesn't require intent, actually. Battery can be negligence. It's unlawful touching, but it can be an act of negligence, not just an act of intent. Lawyers, eh? The mens rea is there.

Indeed, but I just want to be clear. We all know that there are defences, both statute and common law, but once they are raised, sometimes they have to be proven to the civil standard by the defendant. If they are to be proved by the prosecution, it's pretty much always, as far as I'm aware, to the criminal standard, and I just wanted to be clear that this offence would mean the prosecution would have to prove the battery, whether that was—let's leave aside the cases that are not going to be prosecuted—intended or negligent, but would also have to prove that the battery was carried out as a punishment. So, for example, where we have a vague case where—. What do you do? Somebody hits a child's arm to stop them doing something, then it's the burden of proof in those circumstances to prove that it was a punishment rather than an act to prevent an act of harm to the child. It would be for the prosecution to prove that and not for the defence to disprove it.

I believe so, but perhaps we can just write on that point, to be absolutely certain.

It's an important point. The assumption I make is that it's exactly what it says, but I think—because this is a bit odd—we are not actually creating a defence, we are removing a defence, and thus creating—. I just want to be absolutely clear that's the case: where there's doubt, it's not for the defendant to raise the defence and then prove it themselves.

My understanding is that that is absolutely right, but let me double check and write if there's a different answer.

All right. The most similar recent legislation on this is obviously the Irish legislation, and they have inherited a very similar legal system to ourselves, but, within their legislation, they actually decided to specify a number of criteria that would not amount to punishment. Now, in the drafting of this, obviously you've chosen not to go down that road. Any reason why?

13:50

Well, I think the reason, basically, is that you could have a never-ending list, and there could always be something else that you could add. And so it seemed that that wouldn't then be very clear and wouldn't be clear for the public to understand. So, we deliberately decided not to make any lists, either way. 

I don't know whether I can remember what my question was, now. 

That's the trouble with having too many lawyers on the committee. 

We're looking at another piece of legislation at the moment, the Legislation (Wales) Bill, one of the main purposes of which is consolidation. And, of course, we do have other legislation—it's the Education Act 1996, isn't it?—that does put out a very short list of what doesn't constitute corporal punishment, and so I'm going to repeat that question about why you haven't taken this opportunity to consolidate what's in the one Act into this Act. 

Yes, well we think the punishment in the education setting is different from the punishment in the home. There's quite a wide difference in it. Do you want to specify, Emma?

We wanted to make sure that you could, for example, carry your child to the time-out step for parental discipline to still take place. 

The naughty step, yes. 

And we think there's an important difference between the school context and general parenting that justifies a different approach, which is why we didn't go down the—we did think about it—Education Act 1996 route. 

Diolch, Gadeirydd. A throi at bwerau dirprwyedig a materion hyd yn oed yn fwy technegol na'r materion rŷn ni wedi bod yn eu trafod i fyny at rŵan, mae'r pwer i wneud Gorchmynion yn adran 2 yn galluogi Gweinidogion Cymru i ddarparu ar gyfer cychwyn y Bil yma. Ni fydd y Gorchymyn cychwyn yn ddarostyngedig i weithdrefn graffu o gwbl. Mae argymhellion blaenorol y pwyllgor ar Filiau eraill wedi awgrymu y dylai'r Gorchmynion cychwyn sy'n cynnwys—a dwi'n dyfynnu—darpariaeth ddarfodol, darpariaeth drosiannol neu ddarpariaeth arbed fod yn ddarostyngedig i'r weithdrefn negyddol. Pa asesiad, felly, a wnaed cyn pennu nad oedd y pŵer i wneud Gorchmynion o dan adran 2 yn ddarostyngedig i unrhyw weithdrefn Cynulliad?

Thank you, Chair. Turning to delegated powers and even more technical issues than those that we've already been discussing, the order-making power in section 2 enables Welsh Ministers to provide for commencement of this Bill. The commencement Order will be subject to no scrutiny procedure at all. The committee’s previous recommendations on other Bills has been that commencement Orders that include—and I quote—transitory, transitional or saving provisions should be subject to the negative procedure. So, what assessment was undertaken before the 'no procedure' Assembly procedure was specified for the Order-making power under section 2? 

Thank you, Dai, for that question. As I understand it, the Welsh Government's long-standing position is not to apply a procedure to commencement Orders, and we didn't really see any reason to adopt a different approach in this Bill.

Our position is that the commencement Orders under section 1 will already have been scrutinised by the Assembly during the scrutiny process, and any related transitional provisions will address the issue of when the change in law should take effect, not whether the law should be changed, which is why we think 'no procedure' is the correct procedure. And we also worry that, if it was negative procedure and there was an annulment, it might cause confusion. Especially because we're changing the criminal law, we want it to be clear that, when the law changes, it's changed, and the possibility that that Order might then be annulled might cause further confusion, which is why we prefer the 'no procedure' Order-making power. 

Ocê. Felly, jest i gadarnhau, yr amddiffyniad, felly, ydy bod angen gweithdrefn i adran 1 fydd yn cyfro adran 2. Dyna'ch ateb chi i'r pwynt yna. 

So, just to confirm, the defence is that procedure is needed for section 1 that will cover section 2. That's your response. 

Sorry, could you repeat the question?

Rwy'n cymryd mai'ch amddiffyniad chi ydy bod angen gweithdrefn Cynulliad i adran 1, sydd yn cyfro'r un math o bwyntiau sydd yn adran 2. Felly, dyna'ch rheswm chi dros beidio â chael gweithdrefn i adran 2. 

I take it that your defence is that an Assembly procedure is needed as part of section 1 that covers the same kind of points in section 2. So, that's your thinking behind not having a procedure for section 2. 

Yes. Section 2 will come into force on Royal Assent, along with section 3, and section 1 is really the substantive clause, the operative clause, so we don't want that to come into force until after a period of time, once the implementation has occurred. And I believe that any concerns about that Order could be put to the Minister in the Senedd if Members wanted to, so there is still opportunity for challenge of that Order, even if it's 'no procedure'. And I believe that position was the position taken with the recent Legislation (Wales) Bill that this committee considered, and agreed that, for that Bill, 'no procedure' for that commencement Order was the right route, and we believe that that's the same for this Bill. 

Ocê. Fe wnawn ni symud ymlaen. Yn yr Alban, mae’r Bil Plant (Diogelu Cyfartal rhag Ymosodiad (Yr Alban) yn cynnwys darpariaethau trosiannol ar wyneb y Bil, gan ei gwneud yn glir bod diddymu'r amddiffyniad ddim ond yn berthnasol ar ôl i'r adran sy'n ei ddiddymu ddod i rym; hynny yw, nid oes unrhyw effaith ôl-weithredol. Alla i ofyn, felly, ba ystyriaeth a roddwyd o ran cynnwys darpariaeth o'r fath ar wyneb y Bil hwn er mwyn rhoi eglurder i'r rhai yr effeithir arnynt o bosibl, yn dilyn esiampl yr Alban? 

In Scotland, the Children (Equal Protection from Assault) (Scotland) Bill includes transitional provisions on the face of the Bill, making it clear that the abolition of the defence applies only after the section abolishing it comes into force; i.e. it has no retrospective effect. So, may I ask, therefore, what consideration was given to including such provision on the face of this Bill in order to provide clarity to those who may be affected, following the example of Scotland? 

13:55

Yes, thank you. Scotland's proposed legislation to remove the defence is a private Member's Bill, as you know probably, not a Government Bill, and they operate a different justice system to us. And they have concluded that there is a need for transitional provisions on the face of their Bill, which we believe are not necessary for our Bill. The Bill will not apply retrospectively, and that is the situation—it will not apply retrospectively. 

Ocê. Symud ymlaen, wel, mae'r cwestiwn yma yn rhannol wedi ei ateb yn un o'r atebion y gwnaethoch ei roi i un o gwestiynau Suzy, ond fe wna i ei ofyn fel mae o wedi cael ei roi lawr fan hyn, ta beth. Mae'r memorandwm esboniadol yn nodi: 

'i roi ystyriaeth i nifer y rhanddeiliaid a'r cysylltiadau cymhleth rhwng y cyrff cyhoeddus sy'n gysylltiedig, mae angen cyfnod rhesymol rhwng cael Cydsyniad Brenhinol a chychwyn gweithredol y
ddeddf i ganiatáu i unrhyw newidiadau i brosesau gael eu rhoi ar waith.'

Fe wnes i glywed yr ateb cynharach. Pryd ydych chi'n rhagweld y bydd y Bil hwn yn cael ei gychwyn?

Okay, thank you. Moving on, this question has partly been answered in response to one of Suzy's questions, but I'll ask it as it has been written here. The explanatory memorandum states that, in order

'to take account of the number of stakeholders and the complex relationships between public bodies involved, a reasonable period is required between Royal Assent and commencement to allow
any changes to processes to be put in place.'

I heard the earlier response. When do you anticipate that the Bill will be commenced?

Well, what we're saying is we see a lead-in period of up to two years before the Bill is commenced. I think we're looking at precedents such as the organ donation Bill, which had a two-year lead-in period. And it does seem that the best success we can hope for from the Bill is if we do have a period of time when there's a big information period, when we've got the implementation group grasping all the details of the Bill, and you need a good period of time for that and, of course, developing even more support for parents. So, we're saying up to two years from the date of commencement, and I think that seems quite reasonable. 

Ocê, a'r cwestiwn olaf gen i yn yr adran yma, beth bynnag, ydy bod teitl hir y Bil yn nodi bod y Bil yn gwneud darpariaeth sy'n diddymu amddiffyniad cosb resymol yn y gyfraith gyffredin mewn perthynas â rhoi cosb gorfforol i blentyn sy’n digwydd yng Nghymru, ac at ddibenion cysylltiedig. A yw'r Gweinidog wedi cynnwys y geiriau 'ac at ddibenion cysylltiedig' oherwydd adran
2, neu a yw'n rhagweld cyflwyno gwelliannau pellach yng Nghyfnod 2 sy'n mynd ymhellach na dileu'r amddiffyniad yn unig? 

Okay, and the final question from me in this section is that the Bill’s long title provides that the Bill makes provision abolishing the common law defence of reasonable punishment in relation to corporal punishment of a child taking place in Wales, and for connected purposes. Has the Minister included the words 'and for connected purposes' because of section 2, or does she anticipate bringing forward further amendments at Stage 2 that go further than simply abolishing this defence?

We do not intend to bring forward any amendments, and the connected purposes are the parts of section 1 that refer, for example, to amending the Children's Act 1989, which I think is section 1(5), and it's for covering those sort of issues. No intention of taking the Bill any further. 

Thank you, Chair. I just wanted to ask you, Minister, about the justice impact assessment. Our Standing Orders require the Government to do that, but because of the lack of data around this, it looks as though we're relying very heavily on the data from New Zealand. And I'm just wondering whether you believe the reliance on that, particularly from a foreign jurisdiction, affects the reliability of the findings of any justice impact assessment for us in Wales. 

Well, the New Zeland data is the nearest we can get, because although—I think it's 54—countries now have abolished the defence, there are only a few countries that are very close to our jurisdiction, and New Zealand is one of the major ones. And also, the other countries—Ireland, for example—didn't do any data monitoring before they passed their Bill, which was passed by means of an amendment, and so there was no baseline of data there. In Ireland, they hadn't gathered any of the information. 

And so I think it is perfectly acceptable to use New Zealand, because that's the nearest we've got. So, we are using the New Zealand data but, obviously, we are taking into account some of the differences between New Zealand and our country—for example, population size, age difference, because they're looking at a different age range. So, we're taking all those considerations into account.

And also, the other thing is, when New Zealand brought in their legislation, they did not have a big information campaign like we're planning. So, there are differences there.

14:00

Okay. So, just so that I can be clear then, you were looking at the jurisdiction that was as close as possible to ours in terms of its—

And you said about population as well. You were using equivalent populations, legal system—

I think we're 60 per cent of New Zealand's population.

And is the law in New Zealand very similar to the legislation that's here before us?

No, no—[Inaudible.]—at all. It's on this point though.

Well, you come in, because I was going to move on now.

Now, I can understand why New Zealand's been used. It's similar in size, it's another common law jurisdiction, which means that the legal structure is very similar to ours. Those who oppose a separate Welsh jurisdiction, please note. I've got no issue in terms of looking at the evidence from New Zealand. There's one issue I just wanted just to clarify. If I remember rightly, one of the ways in which they divert people away from the courts and prosecution in New Zealand is through use of cautions. But a caution in New Zealand isn't the same as a caution here—a caution in New Zealand is something that doesn't appear on someone's criminal record, whereas it does here, because it requires the admission of an offence. So, I was just wondering how we might resolve that.

Clearly, the only incentive to accept a caution is to avoid court and a possible higher sentence or greater sentence. There's no incentive to accept the caution if it then involves the individual having a criminal record, particularly a criminal record that would involve children, which is not something that people will want to carry around with them. So, has any consideration been given to that, the way that New Zealand has used cautions in a different way to us, and whether there's something else that we could use to divert people away from the courts, but also to divert people from having a criminal record through the use of cautions here?

We have been thinking of specific diversion schemes. This is something that we have discussed with the police. And, as part of the implementation group, one of the sub-groups will be looking at diversion, in order to avoid the points that you're making in terms of—. As you say, a caution is to avoid court. It will take some time to develop a diversion scheme, which is, again, why we want to have the two years, so that we've got plenty of time to look at that. But, yes, that is something we've looked at, yes.

Thank you. Yes, I just wanted to ask about the post-implementation review, and whether you can explain how that group will liaise with stakeholders in order to monitor and review its effectiveness, and how that will be reported back to the Assembly. 

Yes. Well, we propose to have an independent body to come in to carry out surveys to track public awareness of the changes in legislation. We want to look at the changes of attitudes towards physical punishment of children, and the prevalence of parents reporting that they use physical punishment. I think we all know that it is going down—the trend is in the right direction already. But we will be carefully monitoring that by means of independent people. And we work with the police, social services and the courts to agree the collection of relevant data for a period prior to implementation, again, in order to establish a baseline, so that we can then monitor it after the legislation has come in. And, again, we anticipate that that will be one of the work streams for the implementation groups. So, this will be a particular area looked at by the implementation group.

So, the data collection will continue following commencement to monitor the impact of the Bill. And it will be reviewed and monitored over time. And the implementation group is going to include a huge—you know, everybody we can get who's involved, really, so a wide range of stakeholders. I think we've already mentioned the CPS and the police and social services and education, but we do want the third sector there as well and other bodies. So, we will be reaching a wide range of stakeholders in the implementation group. And I will update the Assembly as appropriate, whenever data or evaluation evidence is going to be published. So, I think it's essential for us to do this, because otherwise we won't know the effect of the Bill and we won't know whether it is doing what we want it to do, which is to change people's attitudes, which are already moving in the right way.

That's absolutely important, of course. I was just wondering how, in practical terms, that will happen. So, you will have an independent body. Do you know who's likely to be on that body—the type of people you're going to have on that?

14:05

I don't know if there's been any discussion about that yet, has there?

No. What we have done, through the implementation group, which has already met quite recently, is we have discussed who needs to be involved on that particular work stream and which aspects of that are going to be about delivery and which aspects of that are about consultation. So, those initial conversations have already taken place, and the intention is that that work stream group will meet again before the summer and have a more detailed planning session at that point, but we're very clear that implementation, data collection, monitoring and evaluation is extremely important and an extremely important element of this Bill, so it's factored into the planning and the timeline.

Because presumably—. Well, obviously, monitoring official information is going to be relatively straightforward. It's the more kind of informal routes that might be difficult to get into. I'm not quite sure how that will happen. So, I'm thinking of, you know, somebody just goes in and has a chat, maybe to a third-party organisation, maybe to a GP, about concerns that they might have. I mean, that's all important information in terms of the impact of the legislation; I'm just wondering how that kind of information will be gathered and monitored.

I think we would need to talk more with professional bodies, because I'm sure they already think about and collect information and data. There will be some things, of course, that—. As you've mentioned, the GP would be patient confidentiality, so we'd have to look at what the professional boundaries are around that as well.

Yes. Just going back to this question—. One of the difficulties, and we mentioned this before in a previous committee, is that we're conducting this whole discussion in the arena of criminal law. I think that's what makes it so difficult. What consideration did you give to just leaving the criminal law as it is and introducing some new civil-based legislation to try and achieve the same culture change?

I think we—. What we did—. I mean, we did discuss—well, the officials did discuss—whether there was any other way of doing it, but we felt that, once you've got that defence there, that will mean that there is always a defence for using physical punishment against a child. So, we couldn't really see any other way, other than actually removing it, and that is very strongly supported by, well, virtually all the professions who work with children, that it does need to actually go, because otherwise anybody can use it.

Yes, anyone can use it, but you're after culture change—

—as opposed to stopping people going to prison. That's what you don't want.

But that has got to be done along with the information as well.

If you've got something about what civil process you've considered, I think we'd like to hear about it, actually—you know, different types of legislation as opposed to this.

A specific civil process wasn't considered, no. The plan has been to—. We saw it as we either remove the defence in criminal law, or we don't, and we do just a behaviour change campaign. There wasn't another option.

Okay. I've got one or two points I just want to clarify. Are there any other questions that anyone else would like to ask? We're a little bit ahead of time, so we've got a little bit of time if you want to. If not, I'd just like to come back to the human rights issue, because we've had the letter dated 31 May—I think it arrived today—that you sent to the chairs of other committees—the Children, Young People and Education Committee and the Finance Committee—for scrutiny. Within that, there's additional data in terms of providing further clarification on whether the explanatory memorandum's estimated 274 cases of reasonable punishment reported included smacking only or smacking as part of a wider range of behaviours. It seems clear that it's likely that, certainly, a substantial number of them actually relate to much more complex cases where the assault is part of a series of issues with regard to neglect and so on. The reason I raise this is because, when I asked you earlier about article 8, well, of course, if we agree that article 8 is engaged, I've already expressed a concern that it's not within the explanatory memorandum and there's no detail about it, but of course one of the ways of overcoming it is to satisfy that legislation is necessary. In order for it to be necessary, you have to look at what evidence there is to establish that legislation as opposed to other means would achieve that objective, and I think that's part of the point that you were making. So, I'm just really wondering in terms of—? In the explanatory memorandum, do you think this is an area that you might explore further in providing a perhaps more detailed analysis of the article 8 issues that might arise?

14:10

I think it's—. I think I need to repeat really that I think it's very important that it's not legislation alone. It's legislation plus information policy and support for parents. That is what we think will achieve this change that we're looking for.

But the point is—and we ask this, I think, in all legislation now—is the legislation necessary? And, of course, it's one of the areas that we obviously want to report on. And whether it's necessary or not depends upon what the evidence is. Now, I can understand that there may be very limited areas of evidence, because it's not an area where a lot of data is collated. I just really wanted your view as to whether you think it might be appropriate to have a more detailed section within the explanatory memorandum dealing with specifically that particular issue.

Well, we believe that it is necessary, and it's necessary to change behaviour because, if you've got the defence there, that always leaves it open that somebody has got a defence for punishing a child physically, and the only way of stopping that is to remove the defence. I think the fact that 54 other countries have done it and that others are rapidly doing it—. Scotland is doing it. I was in Northern Ireland last week. Unfortunately, they don't have a Government, but everybody there is talking about doing it. I think really there is enough evidence and views, particularly of people who are working with families and children, that, in order for them to do their best in terms of encouraging children to have a happy, good childhood, this defence should not exist. I don't think there is any other way of doing it.

Yes. But I think the point is, in terms of the test, the hurdle, that you have to overcome, what you're saying is that you're satisfied then that the evidence is sufficient to overcome that necessity test.

Okay. No, that's fine. Thank you very much. Are there any other questions?

Well, if not, Minister, thank you very much for all your answers, for attending and giving evidence. In due course, of course, there will be a transcript on the way to you. And, if you feel that there's anything else that you, on reflection, want to add, please forward it to this committee. So, thank you very much.

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

We now move on to item 3, which is instruments that raise issues to be reported to the Assembly under Standing Orders 21.2 or 21.3. We have the Smoke Control Areas (Authorised Fuels) (Wales) (Amendment) Regulations 2019. We have a report, regulations and explanatory memorandum. These regulations amend the Smoke Control Areas (Authorised Fuels) (Wales) Regulations 2019 to correct a typographical error in the Welsh text of the 2019 regulations. I think it's really a typo on the actual space dimensions from 130 mm to 150 mm. Are there any comments from—?

Yes. It was just one merits point, which is on pack page 9. As the Chair said, the committee's report on the Smoke Control Areas (Authorised Fuels) (Wales) Regulations 2019 identified a discrepancy between the English and the Welsh texts, and it was in relation to measurements size. So, the English text specified a size of between 30 mm and 130 mm in length, whereas the Welsh read 150 mm instead of 130 mm. And it was not clear on the face of the instrument which text was correct. The English text is the correct specification, and these regulations provide for the correction to the Welsh text.

Okay. Shall we note that? Any comments, observations?

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

Can I move on to item 4, then? Sorry, was there anything else that I haven't—?

No. Thank you. Item 4, then. The European Union (Withdrawal) Act and common frameworks. You see there the written statement and the report, and the revised frameworks analysis. Of course, the Act requires UK Government to report to Parliament periodically on matters relating to common frameworks and the use, if any, made by the UK Government of powers under section 12 of the Act—the so-called freezing powers—temporarily to maintain existing EU law limits on devolved competence. Welsh Government issued a written statement linking to the third such report, which was laid on 16 May 2019. The report notes that the UK Government has not sought to make use of the section 12 powers for a reporting period. In addition, the report notes that significant progress has been made across the policy areas where it is envisaged that future legislative frameworks will be needed. And in paper 6, the revised frameworks analysis, which was not included with the written statement, however the report directly links to it, so again, all Members here have a copy of that now. So, are there any comments or observations? This, of course, relates to the period 26 December 2018 to 25 March 2019, so the next one will obviously be due in several months' time. Any comments or observations on that?

14:15

Well, from a scrutiny point of view, I don't know how this committee can assure itself that, actually, shared governance is what it says on the tin, really, rather than just things that happen that Westminster dictates and everybody else follows. And there's no way that we, as a committee of this legislature, can absolutely decide one way or the other on the basis of information presented. Quite what we can do about it, I don't know.

Well, it's information to us and, of course, we have reported ourselves on the way in which regulations and the way in which these powers have been used, and made comment, and of course that has been debated within the Assembly. But it is there as part of the agreement for us, really, to note, but unless there's anything very specific that wants to be raised. And it's still quite early days in some of the important frameworks, particularly with regard to things like state aid and procurement, which are still ongoing, and a number of other areas, and who knows where we may be in a couple of months' time?

[Inaudible.]—is the main thing to take from it, I think.

5. Papurau i'w nodi
5. Papers to note

We then move on to item 5, papers to note. So, we have the letter from the Deputy Minister for Health and Social Services to the Chair of the Children, Young People and Education Committee. It starts at page 75, which provides further information in relation to social services data, which is highlighted in the regulatory impact assessment accompanying the Bill, which we've just been scrutinising. Noted?

Then, the letter from the Deputy Minister for Health and Social Services to the Chair of the Children, Young People and Education Committee. The letter is dated 25 April. Again, to be noted.

A letter from the Chair of the External Affairs and Additional Legislation Committee to the First Minister on the attendance of Ministers at Monday committees. I understand that this is a matter that is going to be raised at Business Committee. It raises similar issues to those that we've raised. It raises an interesting point in respect of the ministerial code with regard to attendance at committee as well as at Plenary. Any comments on that? No. Noted?

Okay then. Item 5.4 is a letter from the Minister for Finance and Trefnydd on commencement orders and that's a reply to our original letter of 1 May 2019. Noted?

A letter from the First Minister on the publication of the updated version of the legislation handbook on Assembly Bills, which updates post the Government of Wales Act 2017. It makes very interesting reading for any of you suffering from insomnia. No? Okay, we note that.

Item 5.6 is a letter from the Minister for Environment, Energy and Rural Affairs on the inter-ministerial group for environment, food and rural affairs. Again, you're invited to note the letter from the Minister, which sets out the dates of the inter-ministerial group for environment, food and rural affairs' meetings, and there's information, under the agreement, to come to us. Shall we note those?

Presumably either the EAAL committee or the environment committee will follow up on these meetings, yes? It won't be for us to do that.

6. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod
6. 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.

Okay. I'm missing my next page, which is item 6, which takes us on to ask the committee to resolve to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi). So, in accordance with Standing Order 17.42(vi), I invite you to resolve to exclude the public from the remainder of the meeting. Do you agree?

14:20

Right. In which case, we now move into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:20.

Motion agreed.

The public part of the meeting ended at 14:20.

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