Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee


Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd AM
Mick Antoniw AM Cadeirydd y Pwyllgor
Committee Chair
Suzy Davies AM

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Manon George Ymchwilydd
P Gareth Williams Clerc
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 14:35.

The meeting began at 14:35.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introduction, apologies, substitutions and declarations of interest

This is a meeting of the Constitutional and Legislative Affairs Committee. We are on item 1. The usual housekeeping rules will apply. We have one apology, which is from Carwyn Jones. Are there any declarations of interest? There aren't any.

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

We move straight on, then, to item 2, instruments that raise no reporting issues under Standing Orders 21.2 or 21.3. We have the negative resolution instruments: the Allocation of Housing and Homelessness (Eligibility) (Wales) (Amendment) Regulations 2019. These regulations amend the provisions of the Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014, which prescribe the classes of persons subject to immigration control who are eligible for an allocation of housing accommodation under Part 6 of the Housing Act 1996, as well as the classes of persons from abroad not subject to immigration control who are ineligible for an allocation of housing accommodation under Part 6 of that Act. Are there any comments? Any views? No.

In which case, we move on to item 2.2, which is actually the affirmative resolution instrument under these regulations, which amends the provisions of the 2014 regulations prescribing the classes of persons subject to control who are eligible for housing assistance under sections 66, 68, 73 and 75 of the Housing (Wales) Act 2014. A Plenary debate on this instrument will take place on 16 July and we'll be participating in that. Any comments or observations? No? Okay.

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

Item 3, then. We are on to the Whelk Fishing (Wales) Order 2019. You have before you a report, the Order and the explanatory memorandum. Who says legislation moves at a snail's pace? The Order increases the minimum conservation reference size of Welsh whelks, with the aim of enhancing the sustainability of the Welsh whelk fishery and will apply to all UK vessels that fish within the Welsh zone. This Order was laid in breach of the standard 21-day rule under the Statutory Instruments Act 1946. There are some comments there, to explain. 

Yes. So, the EU regulation that gives member states the power to increase the minimum conservation reference size of Welsh whelks is being abolished imminently, in early July 2019, and the power is not being replaced in the replacement regulations. Welsh Government only became aware that the replacement legislation would not contain this power recently, and so in order to make sure that the Order is brought into force before the EU regulation is repealed, there had to be a breach of the 21-day rule. The relevant Minister has written to the Llywydd about this, and that's on pack page 19.

Okay. There seems to be a reasonable explanation for the circumstances here. Are there any other comments or observations? If not, we can then move on to the Landfill Disposals Tax (Wales) Act 2017 (Reliefs) (Miscellaneous Amendments) Regulations 2019. Again, we have a report, regulations and an explanatory memorandum. These are regulations that amend sections 8 and 32 of the Landfill Disposals Tax (Wales) Act 2017. Regulation 2 amends the definition of 'restoration work' in section 8 of the Act and regulation 3(a) amends section 32 of the Act to extend the scope of the relief from landfill disposals tax in respect of certain taxable disposals made when filling quarries and opencast mines. So, basically, it extends the reliefs available. Any comments on that?

Yes. There is a merits point, which is on pack page 22. The Welsh Government is extending the reliefs available for landfill disposals tax, and Welsh Government say this is to ensure that the reliefs match their previous policy intention for the Act. As such, there are presumably sites that are or would be liable to tax now or in the future that, now these previsions are introduced, are no longer going to be liable for tax, and there will be therefore a net loss to the Welsh consolidated fund. Welsh Government did not estimate the amount of tax receipts that might be lost through this change. However, we have had a Government response come in, which has been circulated to Members today—


Have you all got that response? Yes, it's in front of us.

—in which Welsh Government respond. They think that any potential revenue impact as a result of these amendments is likely to be negligible.

Okay. Any comments or observations on that? In that case, we have the response there, so we note that.

We now move on to the Cancellation of Student Loans for Living Costs Liability (Wales) Regulations 2019. Again, we have a report, regulations and an explanatory memorandum, which you will have seen. These regulations govern the student loan liability of full-time students who receive loans for living costs from the Welsh Ministers in respect of the academic year 2019-20. They provide for up to £1,500 of a borrower’s living costs loan liability to be cancelled in certain circumstances, with effect from the day after the date on which their first loan repayment is considered to have been received. That seems straightforward. Any comments or observations? None there.

5. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C
5. Written statements under Standing Order 30C

All right. We'll move on to item 5, written statements under Standing Order 30C. So, we have the Pesticides (Amendment) (EU Exit) Regulations 2019. The regulations make amendments to direct EU legislation, comprising the plant protection products and maximum residue level regulatory regimes in order for the legislation to continue to operate effectively following EU exit. The regulations also revoke a series of redundant EU regulations. Any comments there? None. Okay.

6. Offerynnau statudol sydd angen cydsyniad: Brexit
6. Statutory instruments requiring consent: Brexit

Onto item 6. These are statutory instruments that require consent. We're onto the Electronic Commerce Directive (Adoption and Children) (Amendment etc) (EU Exit) Regulations 2019. You have the various papers in front of you, including the letter from the Deputy Minister, the written statement and the commentary. These are regulations that amend two pieces of legislation on certain legal aspects of information society services, in particular electronic commerce in the internal market. The amendments mean that information society services based in England and Wales will no longer be automatically treated as having committed a relevant publishing offence if they publish prohibited information in a European Economic Area state. They will instead be subject to the laws of that state in which they are operating. The issue that's arisen here, of course, is that the Minister has indicated that they're not minded to table a motion for debate. Just to say, first of all, are there any observations on the actual regulations themselves? Because, if not, it's just the issue of the fact that, of course, the Government is not minded to table a motion for debate. You have before you, I think, a copy of a letter we've previously seen regarding Standing Order 30A and its application and the implication of not tabling a motion for debate, where, effectively, the Presiding Officer, I think, is indicating that in relation to a relevant provision in a UK Bill or statutory instrument, the Assembly cannot be said to have given its consent to that provision unless there has been such a motion. So, this doesn't—. What the Government is doing does not, certainly, accord with what the Llywydd has advised. I think when we discussed this last, we said in response to this letter that we would wait and see what came forward. So, we have one that's come forward. I think we just need to take this up formally with the Minister and with the Counsel General.

Well, previously, Suzy presented a motion to make sure that something is debated along these lines.

Yes, and I'm doing it again this week on something else.

Do you want to do that again? Is that your intention as to the matter—

No, she's doing something else on another one—not this one, isn't it?

Sorry, that was the one you raised previously, wasn't it?


How do you want to do it? Bearing in mind the timescales that are involved, I can take this up by direct correspondence with them for an explanation as to why this is happening, or do you want to—?

Well, isn't there an issue now? Because the Llywydd has said, 'Actually, it doesn't count as consent unless we have a debate on it'. If there isn't a debate, the consent isn't given, according to the Llywydd. So, we haven't passed this legislation.

No, that's right, but I think what we need to do is to write to the Government to that effect, and to the Counsel General, saying, 'Well, what is the status of this? Because, in light of the advice from the Llywydd, this isn't the case. Therefore, is it your intention to review your position?' If not, I think it's got to come back to us and then we're going to have to have some consideration as to how we proceed in these because, effectively, then, consent is not being given.

Yes. And, effectively, we're looking at September, which is why I was wondering if there's a way of shortening this to get it in for next week.

I'm not sure. I'd have to go away and look, but obviously you'd have to table a motion—

—pretty swiftly. I'll—if I could have a think about that, because, obviously, these are regulations that are made by the UK Government, but this is a statutory instrument consent memorandum, so you could table a motion for debate. But you'd have to do it fairly quickly, because, obviously, next week is the final session.

What we could do—. I mean, the position is if what the Llywydd is saying is correct, and it's certainly an important interpretation, we certainly need the Government's response to the fact they've now brought these forward, which appears to be—in the light of that, we need a response from them. My inclination would be, on the basis that nothing is technically being passed, let's get the explanation from the Government and it may be it'll be coming back to us in September, but, you know, does that matter?

Well, that's where we could take some advice, really. But, in the meantime, does it mean that somebody—whether it's us or the Llywydd or the Government—has to write back to the UK Government and say, 'We haven't given our consent to this'? That's a breach of Sewel.

There may be some more—. Because this is a proposed negative instrument, so the House of Commons European Statutory Instruments Committee considered this on 2 July. The date the sifting period ends in the UK Parliament is 9 July, so there will then have to be regulations brought forward again. So, I'm not sure when they would be—it might be that they're not held over until the autumn anyway, but I would have to double check. So, I'll go away and check on timings and come back to Members, if that's okay.

That's great, because, if there's space, then we can do it Mick's way.

All right. Let's consider the various options and, either way, we'll sort it out in the next few days, but we'll have to do it by e-mail and correspondence, if that's okay.

Correspondence from the Counsel General: inter-governmental relations and common frameworks. We have the letter from the Counsel General, which we're asked to note. This provides an update on the Welsh Government's work with other Governments on inter-governmental relations and common frameworks. The letter notes that the UK Government has published information regarding the ongoing inter-governmental relations review, and, separate, the linked work on Council frameworks. And, of course, there was some joint work that's going on with the Scottish Government's Cabinet Secretary for constitutional relations. Shall we defer this to private session—

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

A letter now—on item 8, a letter from the Counsel General on 27 June 2019 in relation to the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, indicating there is a dispute between the Welsh and UK Governments regarding this statutory instrument. Defer this to private session?

Okay. We'll come back to your view on that one in a minute. We've a letter from the Chair of the Finance Committee, 27 June, and again are invited to note it, in relation to the Senedd and Elections (Wales) Bill. This is the letter that was circulated to Members at the end of the last meeting. Again, we can raise that, if we wish, in private session.

A letter from the Minister for International Relations and the Welsh Language—the letter is in response to our letter seeking clarification on a point made by the Minister during the Plenary debate on the supplementary legislative consent memorandum on the Trade Bill. And I think you've seen that. We raised an issue that we thought was inaccurate, and that's been confirmed, that's been conceded. So, we just note that.


Item 8.4, letter from the First Minister to the Llywydd in relation to the international obligations that bind the UK, which—shall we refer that to private session?

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


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


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.

Then, in accordance with Standing Order 17.42, I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree?

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:50.

Motion agreed.

The public part of the meeting ended at 14:50.