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Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

30/09/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

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

Y rhai eraill a oedd yn bresennol

Others in Attendance

Janet Davies Dirprwy Gyfarwyddwr, y Grŵp Iechyd a Gwasanaethau Cymdeithasol, Llywodraeth Cymru
Deputy Director Health and Social Services Group, Welsh Government
Marquess of Salisbury Grŵp Diwygio’r Cyfansoddiad
Constitution Reform Group
Rhian Williams Arweinydd Polisi, Bil Iechyd a Gofal Cymdeithasol (Ansawdd ac Ymgysylltu) (Cymru), Llywodraeth Cymru
Policy Lead, Health and Social Care (Quality and Engagement) (Wales) Bill, Welsh Government
Sapna Lewis Cyfreithiwr, Llywodraeth Cymru
Lawyer, Welsh Government
Sir Paul Silk Grŵp Diwygio’r Cyfansoddiad
Constitution Reform Group
Vaughan Gething AM Y Gweinidog Iechyd a Gwasanaethau Cymdeithasol
The Minister for Health and Social Services

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Jennifer Cottle Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Rachael Davies Dirprwy Glerc
Deputy Clerk
Rhiannon Lewis Cynghorydd Cyfreithiol
Legal Adviser

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 13:32.

The meeting began at 13:32.

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

Okay. This is a meeting of the Constitutional and Legislative Affairs Committee. I'll go straight on to item 1, in terms of apologies from Suzy Davies, who may be able to attend a bit later. There are no substitutions at the moment. Any declarations of interest? No declarations of interest. The usual housekeeping rules apply. 

2. Bil Iechyd a Gofal Cymdeithasol (Ansawdd ac Ymgysylltu) (Cymru): Sesiwn dystiolaeth
2. Health and Social Care (Quality and Engagement) (Wales) Bill: Evidence session

So, I'll move straight on to item 2, then, which is the Health and Social Care (Quality and Engagement) (Wales) Bill, and I welcome the Minister for Health and Social Services, Vaughan Gething. I don't know if you would you like to introduce your staff.

They'll introduce themselves.

Rhian Wiliams, one of the policy leads on the Bill.

Janet Davies, deputy senior responsible officer on the Bill.

Sapna Lewis, Legal Services.

Thank you for attending today, as we scrutinise this particular piece of legislation. Members have before them, obviously, a briefing and papers consisting of a number of letters from the Minister with regard to this matter. I'll just open with a couple of introductory questions if that's all right. I'll ask firstly whether—if you could perhaps just deal, perhaps succinctly, with the issue that you are satisfied, firstly, that this is a matter within competence, the issue of any human rights issues that may have been considered or taken into account, and whether there have been any discussions with the UK Government in relation to the Bill. 

Okay. On competence, yes, we're satisfied that it is within the competence of the Assembly and, obviously, the Llywydd has agreed with that in her own statement of competence, and, in the Llywydd's determination, she also has to consider human rights issues as well. I don't see any reason to believe that the Bill is incompatible—I think it is compatible with the convention on human rights and, as is usual, in the integrated impact assessment that's been carried out, and that's available publicly; it's on the Welsh Government website. In terms of discussions with the UK Government, the Bill has been shared with the UK Government. Positively, there have been no concerns raised about the scope of the Bill as proposed. 

Okay. Well, thank you for that. We move straight on to Dai Lloyd.

Diolch yn fawr, Cadeirydd. I jest fynd i mewn i rhai o'r manylion, felly, ydych chi'n credu, felly—a oes angen deddfwriaeth mewn perthynas â'r dyletswydd ansawdd a nodir yn Rhan 2 o'r Bil? Pam nad yw hi'n ddigonol cyhoeddi canllawiau manwl mewn perthynas â'r ddyletswydd bresennol o dan Ddeddf 2006? 

Thank you very much, Chair. Just going into some of the details of this issue, do you believe that legislation is necessary in relation to the duty of quality that is set out in Part 2 of the Bill? Why isn't it sufficient to issue detailed guidance in relation to the existing duty under the 2006 Act?

13:35

Well, the 2006 ActFootnoteLink, you're right, does have a duty of quality on the face of it, and that's been helpful in terms of advancing the conversation, but also the progress the NHS has made in this area. The reason I think that legislation is desirable and necessary is that, in framing a broader duty of quality, we think we will make even more progress. You'll see from the previous White Paper consultation, you'll see from the consultation around the draft that we've now managed to move on with in terms of the Bill, there's fairly widespread support for that. Part of our challenge in the quality provision of health services is that the current duty, even with regulations or more guidance, doesn't apply to Ministers. So, it doesn't apply to, if you like, this leadership level of the health service. And we're also setting out some important aspects about reporting as well, to make sure that it isn't just that we frame the duty in a way where it's supposed to be central in decision making across the service, and having a more open way of doing so, but you'll be able to see a reporting period for each organisation and, indeed, Welsh Ministers, about how that duty's been applied, and I don't think we can do that by having guidance or regulations around the current duty as listed.

Ocê. Symudwn ni ymlaen i Ran 3 o'r Bil, sy'n rhoi dyletswydd gonestrwydd ar gyrff y gwasanaeth iechyd. Pam nad oes manylion wedi'u cynnwys ar wyneb y Bil am beth yw'r ddyletswydd gonestrwydd mewn gwirionedd a sut y bydd yn gweithio yn ymarferol?

Moving on to Part 3 of the Bill, which places a duty of candour on NHS bodies, why has the detail of what the duty of candour actually is and how it will work in practice not been included on the face of the Bill?

Well, I think we have set out a number of aspects. If you look at section 3 of the Bill as provided, we've set out first the different limbs of the test—no pun intended—about someone being a service user, and the second is that there's been a factor in someone suffering an adverse outcome, and that the level of harm or expected harm would have been more than minimal. So, actually, in terms of what's on the face of the Bill, we have given some prescription around that, and in terms of then setting out the circumstances about what is more than minimal in the duty of candour, I think that is appropriately done by guidance, and the reason for that is that there's always a tension, isn't there? I've been in your position, sat there on this committee and, indeed, subject committees, where you have to balance between what you want on the face of the Bill to be completely prescriptive, where you think there's a proper balance to be struck about what shouldn't be on the face of the Bill and what makes good law. I think we could end up writing a book instead of an Act, and the guidance allows you to have something that looks more like a book, that says, 'Here is the range of circumstances where you consider it to be more than minimal'. And given the range of areas in which healthcare is provided—I understand that—I think it should be much more user friendly for the public, the service user, but also for staff within the service to understand whether the duty could or should have been triggered.

Ocê. Symudwn ni ymlaen i adran 4, sy'n dilyn o'r hyn ac sy'n ei gwneud hi'n ofynnol i reoliadau gael eu gwneud mewn perthynas â phryd mae'r ddyletswydd gonestrwydd yn dod i rym. Oes yna unrhyw sôn am unrhyw fath o gosb pan fydd y rheoliadau yma ddim yn cael eu gweithredu fel y dylen nhw? Yn Lloegr, mae methiannau i beidio â dilyn rheoliadau o'r fath yn cael eu dirwyo neu sancsiwn tebyg. Felly, oes yna fwriad i ddefnyddio cosbau neu sancsiynau am fethu â chydymffurfio efo'r ddyletswydd gonestrwydd, ac, os felly, pam nad oes yna gyfeiriad atyn nhw ar wyneb y Bil?

We'll move on now to section 4, which follows on from this and which requires regulations to be made in relation to when the duty of candour has come into effect. Is there mention of any sanction in relation to a failure to comply with the duty of candour? In England, such failures in terms of adhering to the regulations are subject to a fine or a similar sanction. So, is there an intention to use penalties or sanctions for failing to comply with the duty of candour, and, if so, why are they not referenced on the face of the Bill?

I don't intend to try and introduce a financial sanctions regime. There are some philosophical differences between us and the current administration in England as to the use of fines as a mechanism to try and drive improvement. In this area, there have been a relatively small number of fines introduced since a similar duty was introduced in England. So, you have to think philosophically about what you're trying to achieve, and then the practical side of it as well. So, I don't think it necessarily means that organisations are more likely to comply if you have an element of financial sanctioning within it, because even if I then decided to fine groups of people, I would then have to decide what the level is, how to do it, set out a scheme for doing so. I would then also have to consider what would be the impact on the behaviour of that organisation and where it goes? So, taking money out of them is one thing, but then I have to think whether that then helps to provide services for the members of the public that that health body has a duty to provide services for, and I don't think it does. If I fined an organisation, I would then probably—and I'm assuming that it's the Minister or the Government who would end up doing the fining, rather than creating a separate body; I think you could ask a regulator to be the organisation that fines, but that's a different point—. Having taken that money off an organisation, the regulator would be aware—you'd expect us to make them aware, and you'd expect it to have an impact on the escalation status and choices that I make on the basis of the tripartite advice that I currently receive. So, I actually think that, if there's a failure in the duty of candour, those things would happen anyway. The regulator would be made aware, and it would be a factor in considering the status of the organisation.

I really do think that it's not just a philosophical challenge of, 'Is this the right way to deliver improvement?' This is about having a more open culture where people recognise upfront in the conversation that takes place with staff and the public about where failings are taking place, because most people want an acknowledgement of that. Most people don't want to run action against the national health service, and I see that both as a constituency Member but also in my Government position as well, about people's motives for complaining. So, there's, if you like, the different philosophical side.

The other part that I touched on is the practical side of having to have a mechanism with appeals. Then you need to think about whether you're running a mechanism that actually soaks up more money than it's actually going to deliver. And I don't think you can make a case to say that having a financial fining, sanctioning regime would actually be the right thing to do to drive the sort of improvement you want, and I think it could well end up costing money, given the experience in England, where they have a very small level of sanctions being applied. 

13:40

Yn yr un modd—dyma'r cwestiwn olaf sydd gen i nawr—mae adrannau 5, 6, 7 ac 8 o'r Bil yn ei gwneud hi'n ofynnol i adroddiadau dyletswydd gonestrwydd gael eu paratoi, eu darparu a'u cyhoeddi—a dwi'n dyfynnu nawr—

'cyn gynted ag y bo'n ymarferol'

ar ôl diwedd pob blwyddyn ariannol. Beth ydy canlyniadau methu â chydymffurfio â'r gofynion cyn gynted ag y bo’n ymarferol?

In the same manner—the final question I have in this section—sections 5, 6, 7 and 8 of the Bill require reports on the duty of candour to be prepared, to be supplied and to be published, and I quote, 'as soon as practicable' after the end of each financial year. What are the consequences of failing to comply with these requirements as soon as practicable?

Well, again, that goes into our oversight and monitoring of the wider system. If someone doesn't provide a report within a time frame, then that would obviously flag a range of concerns about how seriously the duty is being applied within that organisation. If any organisation, after the introduction of this new way of working, should the Assembly agree to it, didn't provide a report in good time, it would be extraordinary if the regulators themselves did not take a greater interest and didn't have a significant bearing on any escalation choice made by this or a future Minister. So, the real practical teeth within it I think would certainly apply to the reporting time frame as well. But also they'd need to think about the content of that report. I'm not expecting people to provide a one-side piece of A4 saying, 'Everything is fine; nothing to see here.' That certainly wouldn't meet the legitimate expectations we would have, and that's also why I think, in the process of getting to what the guidance would be and the expectations in it, it's important that we have a wide range of people, if you like, co-producing what we think the guidance should be and how the practical duty should be met. 

The duty of candour, obviously, appears on the face of the Bill. You've already made the point that you don't want to go down the English route of fining. I'm just wondering, then, what the sanction would be. Are we talking here about the creation of an actionable tort, namely breach of a duty of candour, or are we talking about something that would attach itself to the existing duty of care? I take the point you made that most people don't want to go down that line, and that's my experience as well. Most people want an explanation and an apology. But if somebody were to decide to take action based on what would then be the Act, does that mean that this would create a new tort?

No, we're not creating a new statutory tort, we're not changing the law of negligence. If someone were bringing a claim and they thought that there had been a breach of the duty, that might go towards evidence, but it won't change the test that exists about formal legal action being taken. This is, really, not about trying to create new offences, because it doesn't; it's not about trying to bolster the legal process for taking claims. It really is aimed at helping to move further forward the culture within the health service to be more open and to want to learn from mistakes where they do take place. Because all of us accept objectively that, with the industrial scale of activity, with all the people involved, the great room for compassion and excellence, with human beings you have room for error as well, and even with mechanisation there is still room for error as well. So, it's about what's gone wrong and why, how we learn from it, how we improve, and how we are much more honest at an earlier point with the public if that's happened. 

13:45

Okay, that's clear—you don't see this as an actionable tort. This would be a scenario where you encourage culture change, clearly, and the duty would be there in order to facilitate resolution of a problem, rather than you seeing this becoming something that will create an extra cause of action in the future. You've got that clear. 

Section 10, if I can refer you to that, of the Bill talks about guidance issued by Welsh Ministers, and it says, 

'an NHS body must have regard to any guidance issued by the Welsh Ministers.'

Of course, the Bill also mentions regulations. What do you anticipate as being properly—. I take your point about not having too much on the face of the Bill, but what do you anticipate as being what the regulations will deal with and what the guidance will deal with? 

In section 4, you'll note that we set out a range of factors to be taken into account and regulations for the duty of candour procedure. So, again, that's to give some certainty about what must be in there as opposed to all the things that will—so, again, making provisions for an apology to be offered, making provisions about record keeping and about notification, and when and how the duty is triggered in the first place. You see that in section 4 of the Bill as drafted. 

So, we've been clear about regulations there, and in the guidance, as I said earlier, we'd want to provide where and how the duty applies, where we can be more descriptive and where I think it's genuinely supposed to be helpful. You want to try and draw people into that, in the sense that we want our staff who are currently involved and their representative groups to be involved in how we think this duty should work, because staff bodies themselves are typically positive about the duty of candour. We have seen it applied in Scotland and in England with pretty decent support. We've seen a range of reports in England and here in Wales calling for the duty of candour.

You'll be aware, because you commissioned the report, that the report into Robbie Powell and also the Ruth Marks review all called for a duty of candour to be introduced. Then, to set out what that looks like in practice, I think guidance rather than regulation is the way to do that because, again, even if you're drafting regulations, your ability to be properly descriptive in those of how you think a situation might apply is very, very difficult to do in regulations that are, essentially, written for lawyers and for representatives about how legal duties apply, as opposed to how you help people to understand what this should mean for them. If you're a member of staff working in the service and you've got a concern, what does it mean for you? If you're a member of the public wondering about what's happened, how do you have something that is much more accessible?

So, the process of getting there, involving patient representatives, as well as staff, should help us to understand more clearly what that looks like.   

So, the guidance is the public face of this aspect of the Bill. 

And to make it as accessible as possible to the public. 

Yes. Again, I think there is always a balance about where you use guidance not regulations, and, in not having something on the face of the Bill in a prescriptive way, about the flexibility that that gives you because, of course, our understanding of what quality and candour look like may shift over time, and if guidance is the way to try and say, 'Here is what we're doing'—. In the explanatory memorandum, we set out a range of factors that we consider on current evidence, and there is always a prospect for improvement. There is always a prospect for change in what we understand is possible. We want to make sure that the guidance we have keeps up to date with the technical changes that exist, but that's always got to come back to what it means to people working in our service, what it means for people taking part in and receiving care as well.  

Okay. Could I move on, then, to the explanatory memorandum, which states this:

'The duty of candour only applies where the health care is delivered in Wales as part of an NHS service.'

Do you have it there? 

Okay. 

'If, for example, a LHB enters into arrangements with an English provider for the provision of health care services, it is the English duty of candour under the Health and Social Care Act 2008 that will apply in relation to that care should anything go wrong.'

The issue that arises there, of course, is the issue of consistency between the two different countries. What thought has been given to try and ensure as much consistency as possible for Welsh patients receiving treatment in Wales and, of course, then who receive their treatment in England and subject to different legislation when it comes to the duty of candour?    

It's one of the challenges that we currently have in the way that we operate healthcare. There is regular cross-border health and care provision. There are people from England, who are resident in England, receiving care in Wales. Some of that takes place in secondary care; more likely to be in primary care. You'll be familiar that we essentially have more people who are English residents receiving primary care in Wales than in the other direction, and conversely we have more Welsh residents receiving secondary care than come in the other direction. So, we already have a variance in the systems that exist. The challenge would be, if we said that we wanted the Welsh duty of candour to apply for Welsh residents receiving care in England commissioned by Welsh providers, we would then end up with a challenge where, potentially, two duties apply, whether there's a potential for conflict there, and how that actually features in the commissioning of that care as well, just as you already have some challenges in the nature of the so-called NHS constitution in England.

So, we've made a practical choice. Is it more likely to be clear about which duties apply, who to, and where, if we say that the Welsh duty applies to provision in Wales, or whether we accept that there would be an overlap? And the choice we've made is not to have an overlap, where we're trying to extend the Welsh duty onto English providers. I think that would be a fruitful area for lawyers, and I'm in recovery. I don't think that would necessarily improve the quality of care and what individuals could expect to receive. 

13:50

That's twice now the Minister has referred to something I've done in his evidence, Chair, which is worrying about what's coming next. [Laughter.] The last question from me on this section. When I look at section 13, the general objective in relation to the citizen voice body, we see there that its general objective in exercising its functions is to represent the interests of the public in respect of health services and social services. It's a very wide definition. I'm wondering is that deliberately so, deliberately widely drawn. And are there any plans to issue any guidance, statutory or not, with regard to how that might be defined in the future?

No, I don't intend to issue guidance to the citizen voice body as to how it should exercise its functions. There will be a remit letter, but no more than that. We're deliberately looking to create a citizen voice body with much greater operational independence than the current community health council movement has. That's why it's deliberately drawn with the breadth that it is here. We do then say that the citizen voice body must seek the views of the public, but we've given significant latitude for them on how to do so. We may posit a couple of things that they might want to think about, but, ultimately, it will be for the new body to determine.

One of things that is unusual about this Bill is that there's a perception that we're somehow taking away the independence that exists in the CHC movement, and, actually, this section makes it very clear that we're not seeking to do so; we're not seeking to try and trammel them with guidance; and, in fact, the current CHC movement is a hosted body within the national health service. I don't think that's appropriate, and I think it's a real positive that we're looking to move them to have much greater arm's-length independence and genuine operational independence for setting their own objectives, for example, objectives about how they do their work, where they do it, the regional structure, the local structure of doing so. Those are things for the citizen voice body to determine and to be accountable for. 

Okay, thank you for that. Just one last question from me on this. The clause, as it's currently drafted, is again very wide, and I can see the reasons for that—representing the public in respect of health services and social services. How can we be sure that the body will have the right level of access to those services? It's one thing of course to say, 'This is what you are able to do', but if they were to find themselves with perhaps an uncooperative body that they were dealing with, how could you ensure that the body that they were seeking access to gave that appropriate access?

Well, in sections 17 and 18, we talk about the duty to promote awareness of the activities of the citizen voice body, and the duty to supply information to the citizen voice body. I do expect us to provide some further guidance on what that will look like, again, to provide a description of how we expect people to interact with each other. You'll also note the point in section 15 about making representations as well. So, there's some of that as you can see in, if you like, the advocacy function, and some of it will be more than that and about the opportunity to visit places where care is provided.

We are looking to take forward the conversations that are already happening between my officials and the current CHC movement about what that would mean in practice, and to find a way through that means that they understand that they've got a firm footing for their work to take place. We haven't gone to the point of having on the face of the Bill a right to enter premises, because some of these premises will be somebody's home. We already deliver healthcare in people's homes, and we look to do more of it. The district nurse, when visiting people, is delivering care in someone's home. And social care, of course, and residential care homes, that's someone's home. So, we need to think about not just the entitlement of a different body saying, 'I am coming into your home', which is very different to if the person who is resident in their own home invites the citizen voice body to come and be with them whilst they're receiving care.

So, we're looking to find a way through. We actually have a meeting in the second week of October between officials and the current CHC movement to try and find a way through, to think about how this would work in practice. There are some process points, but it's getting to what I think is the same objective, about how we make sure that they are empowered to do their job in being the voice of the citizen.

13:55

You mentioned section 18, the duty to supply information to the citizen voice body. What if a local authority, for example, refuses? Let's say we've got a recalcitrant local authority that refuses point blank to provide the information that they're under a duty to supply. How could that duty be enforced?

Well, funnily enough, during the passage of the Bill, I have actually considered that section and a way to find a way forward. And, again, it's a part of conversations with other stakeholders who have a direct interest in this. And I think we will need to find a way through to be able to determine that. I'm not attracted to setting up a formal legal process; I think that automatically gets people into an adversarial relationship. But if you are not able to resolve that, between the citizen voice body and the local authority or the health board, or anyone else, then I do think there needs to be a way to find someone who will determine whether there's been a reasonable request and a reasonable refusal, or an unreasonable request or an unreasonable refusal. So it's got to bind both sides to this. So I expect to bring forward some Government amendments to try and set out a process to resolve that. Because I can anticipate that, at some point, there could be a dispute, and it can't just be left with people going off to find lawyers for a judicial review action. I think that's really unhelpful. So I'll be trying to set out a way to do that.

Symud ymlaen i bwerau dirprwyedig rŵan, o dan y Bil yma. Ac eto, o ystyried arwyddocâd cynnwys y rheoliadau sy'n ymwneud â'r weithdrefn dyletswydd gonestrwydd eto, a'r rheini sydd wedi cael eu nodi yn adran 4(2) ac adran 4(3) o'r Bil, pam nad yw'r rheoliadau hynny'n ddarostyngedig i'r weithdrefn gadarnhaol i ddod â nhw i mewn i fodolaeth?

Moving on to delegated powers now, under this Bill. And again, given the significance of the content of the regulations relating to the duty of candour procedure again, as set out in section 4(2) and section 4(3) of the Bill, why are those regulations not subject to the affirmative procedure?

There are perhaps three things that I'd say. The first is the general point about whether negative or affirmative procedures are applied. And I know that most subject committees test which one of those has been provided, so I expect that to be the case. I don't want to get into a formulaic, 'We say one thing, you say another.' So, the first point I'd make is that, if this or the subject committee makes a case why it's the right thing to change the process, and how that potentially leads to a better set of regulations, then I am open-minded about that. So I'm not going to say, 'No, no, nay, nay, and thrice nay'—to channel my inner Frankie Howerd.

The second point that I'd make is that I expect to consult on the regulations to be provided, certainly when we provide them for the first time. So, the subject committee and this committee would have an opportunity to look at those during a consultation period, because I think that's the right thing to do. So you go through wanting to have a drawing of people in to try and co-produce things about what makes sense, in terms of the guidance around this, with the regulation thing about how do we then make that work practically, and then to have a consultation period on those—certainly before they're issued for the first time.

And the third point is that, I think that when the regulations are provided, they'll largely be technical about what will happen. The impact is one thing, but the regulations themselves will be pretty technical.

But, as I say, if there is a case about how we can improve the quality of what we provide that goes beyond the process I've set out, then I do have an open mind, as opposed to a straightforward bidding war that goes from negative to affirmative to superaffirmative. So, I'm interested to hear what you have to say, both at this fora and indeed in another room when you're in the Chair.

14:00

Indeed. Yn dilyn yr un math o drywydd, allaf i ofyn pam y mae'r pŵer wedi'i gynnwys yn adran 4(4), y tro yma, o'r Bil i Weinidogion Cymru wneud unrhyw ddarpariaeth arall mewn perthynas efo'r weithdrefn ddyletswydd gonestrwydd sy'n briodol yn eu barn nhw, a pham dyw'r rheoliadau yma ddim yn ddarostyngedig i'r weithdrefn gadarnhaol? Rydyn ni'n rhoi rhyddid i'r Gweinidogion fynd â hi a dim gweithdrefn gadarnhaol.

Indeed. Following the same sort of idea, could I ask why has a power for the Welsh Ministers to make any other provision in respect of the duty of candour procedure that they consider appropriate been included in section 4(4) of the Bill, and why are any such regulations not subject to the affirmative procedure? We're giving freedom to the Ministers and no affirmative procedure.

Again, I think my points in response to your previous question apply. I think the more useful point about this area is that having set out in subsections 1, 2 and 3 of section 4 some areas of prescription, this really allows us to consider what comes from the engagement with the service and with the public and in the consultation. Because it's entirely possible to find things that are useful and important to put in, so this makes clear that we're not completely restricted in only subsections 1, 2, 3 and 4, so it allows us—and, again, going through the same process of making regulations and a consultation, which I've indicated would take place, certainly in the first instance when we make these regulations. I recognise they're novel in that sense. 

Minister, I can take you now to section 26 of the Bill, which is the power to make transitional and so on provisions. You'll be aware that one of the functions of this committee is in terms of the actual use of powers, the drafting of the legalisation in respect of the powers that are available and the accountability of the use of those powers. This seems to be an extremely broad section that allows Ministers to make amendments that they consider necessary or expedient. Why is the word 'expedient' in there?

Because different tests apply to what's necessary and what's expedient in legislation. The much stricter necessity test may mean that where we would commonly, regardless of our business around this table, recognise it may be positive in terms of meeting the purpose behind the Bill, or the Act as I hope it becomes, we may not nevertheless be able to get to meet the necessity test. So, we may end up having something that is unhelpful, and there's general recognition of that, but not being able to resolve that. So, it's a drafting point about the extent and the nature of powers, but it doesn't give Ministers carte blanche to do whatever they feel like. There is, and you'll understand this, a technical understanding of what 'expedient' actually means.

You'll understand the concerns that we raise with the use of words such as 'expedient' in other legislation. But if you take this in conjunction with section 26(2), where

'Regulations under this section may amend, repeal or revoke any enactment',

this is a very broad range of Henry VIII powers, which effectively enable legalisation to be amended by you without any real accountability. Do you consider this to be rather an excessive licence in respect of the drafting?

No, I would not agree that it's excessive, you won't be surprised to hear me say. Equally, I recognise that this committee has regularly tested whether any of these powers are necessary and helpful in terms of Bills being provided. I can give you examples of other Bills in the last few years that have gone through the Assembly with similar provisions. We've tried in Schedule 3, I think, to set out the areas where we do think there'll be amendments made, but it is always possible that we will find something that gets in the way of the scheme of the Act and its purpose. So, it's not that unusual to have a power like this, but it is then about the way in which that power is exercised. I think this is in the affirmative scheme, so it wouldn't simply be that I would sit in my office and decide to change something because I felt like it. The Assembly would positively have to agree to do so. I think Sapna's got some examples of where we've had other Bills and Acts in the recent past that have used similar powers. 

14:05

Yes, most recently the Legislation (Wales) Act 2019. Similar provision was in the Public Services Ombudsman (Wales) Act 2019. We also saw a similar provision in the Regulation of Registered Social Landlords (Wales) Act 2018. So, it is something that does come up. 

We're aware on this committee that it seems to be increasingly appearing in parts of legislation. I think our concern gets expressed with regularity, often to limited effect. I suppose the concern here is this—I'll just outline it now. Firstly, it applies to Welsh Ministers. It's a power that applies across the board to all Ministers. Secondly, the use of the term 'expedient' is basically what's convenient to Government, and, of course, our function in legislation is to ensure that there are checks and balances in the ability of Ministers to be able to exercise those powers. Would you agree with us that—? Is it your view that an amendment to section 26, which perhaps qualified, in some way—that that might be something that's worthy of consideration in terms of an amendment to this legislation? 

Well, I wouldn't say now that no amendments will be considered at all. This is a scrutiny process about legislation going through. But equally, I wouldn't agree with your characterisation of 'expedient' being whatever is convenient for the Government. That isn't a technical understanding of what 'expedient' means—desirable, useful, or having a practical benefit. I think that goes well beyond just convenient for the Government. I do understand and accept that this committee regularly probes and tests whether powers are appropriately set out on the face of the Bill. That's part of the point and the function of scrutiny. So, I'm expecting you to raise questions in your report and in the debate, and, as I say, if there is a good case made about how it improves the legislation and it means that the powers that we take are practicable and useful to achieve objectives, then I'm prepared to consider them. But, as I say, the regulation-making power in this—. Whichever Welsh Minister sought to exercise that regulation-making power would need the consent of the Assembly to do so in an affirmative motion in the Chamber. So, it's not quite the Government being able to do what it likes when it likes. I don't think that's a fair characterisation. 

It's just a suggestion, really. The definition of 'expedient'—we love this sort of thing on this committee, by the way—

There are two definitions. The first one is 'convenient and practical although possibly improper or immoral'. I don't suggest that's the interpretation—

The second interpretation is 'an action suitable or appropriate'. I just wonder whether it might be better to say 'necessary or appropriate' to make it absolutely clear on the face of the Bill. In the Welsh, it's even more difficult, because the word used on the Bill for the Welsh is hwylus. Now, hwylus, to me, means 'well'. It actually means 'full of sail' literally—hwyl is from sailing—but to me, hwylus is a word that means 'well'. It doesn't mean expedient. Again, it's a bit vague, okay? I just wonder whether the word addas—the word addas means 'appropriate' in Welsh. There's no doubt about that. There's no other meaning to it other than 'appropriate'. So, I was obviously wondering whether 'appropriate' in English and addas in Welsh would actually be better from a drafting perspective than 'expedient' and hwylus. It's something to consider, perhaps.  

Well, as you know, I'm more than happy—. I do generally have an open mind about how we phrase matters to try and get over what we really do want to be able to do, as opposed to some of the concerns I know that do exist. So, that's certainly something for us to take on board and consider. I'm also relaxed, if we agree that that would be an appropriate thing to do, about whether it's a Government or a backbench amendment. I'm not precious about all the amendments coming from me on the floor of the Chamber. 

Yes, on section 26. One of the issues I was going to ask was about how the Government intends to use it's powers under section 26. I suspect the answer to that is 'We don't know yet'.

No, we don't have any intention, and I'm not intending to try and store things up to try and use and try and amend under this process. This is part of—you'll understand this—the backstop that exists, not to want to use a term much used and loved or not loved so much in current discourse. But that's why it's got an affirmative process around it. So, the Assembly has to positively agree to any changes made using the powers in this section. 

Finally, what's the timetable now for the Bill? When do you anticipate it coming into force?

14:10

Let me just check, so that I'm clear about this. Assuming all goes to plan, and who knows about plans at present, we're expecting the Bill as passed by the Assembly to receive Royal Assent in spring next year, 2020. We then expect to bring the duty of quality provisions into force in summer 2021 and candour in spring 2022—that would allow us to go through all of the consultation and co-produced guidance that I set out—the new citizen voice body to become operational from autumn 2021, and for NHS vice-chairs to be appointable by Welsh Ministers from spring 2021 as well. I hope that's helpful.

Any further questions? Well, Minister, thank you for your evidence and for your time and the time of your officials. You'll get a transcript in due course, and of course, we will present our report in due course. Thank you very much.

We'll take short break now. We're slightly ahead of time, so we'll take a break.

Gohiriwyd y cyfarfod rhwng 14:11 a 14:29.

The meeting adjourned between 14:11 and 14:29.

14:25
3. Y newid yng nghyfansoddiad Cymru: Sesiwn dystiolaeth 2
3. Wales's changing constitution: Evidence session 2

This is the Constitutional and Legislative Affairs Committee. We're on item 3 of our agenda, which is on Wales's changing constitution. I welcome Sir Paul Silk and Lord Salisbury to give evidence in respect of the Constitution Reform Group. I think we have all seen the article in the Western Mail today, which I think draws attention to the growing importance of the issue of constitutional reform. I have just a couple of opening questions that perhaps I could—

Chair, I should declare that I have been asked to join the group. I think it's important that I say that, so that people are aware of what my potential future connection might be with the CRG.

Okay. That's fine; we note that for the record. So, the opening question, really, is why you think the UK needs constitutional reform.

14:30

I hope that Paul will feel able to interrupt and correct me when I go wrong, which is all too likely. But I wonder whether I could try and set this in a slightly broader context as a means of trying to answer your question. I start off, I suppose, like everybody else, with a prejudice, and my prejudice is that I'm a UK unionist. I do believe that the whole is greater than the sum of the parts, and I think all our group feel the same way, although how they interpret that is, of course, very different, which is, I suspect, one of our great strengths.

I do think that the measures introduced since 1997 have led to a certain incoherence. There was a feeling of rush and lack of overall plan, and it seems to me that where we are now is in a situation where we're neither a unitary state, which we were substantially before 1997, nor a fully federal one. And this means that, inevitably—particularly when you consider the speed with which devolution was introduced throughout kingdom—there are a lot of loose ends. As a result, I think the desirability of a long-term constitutional settlement has not been met and is very much unfinished business. Indeed, it has led, I think very much, to the initiative remaining with the separatists. Obviously, Wales has its separatists in the form of Plaid, the SNP self-evidently so, and Northern Ireland as well. But I do think the initiative is there, and if you do believe in the union, it makes it much more difficult in our present situation to make the case or, indeed, to make the constitution function properly. You're in a permanent state of uncertainty. We will come on to Brexit in a minute, but uncertainty is piled on uncertainty.

I believe, whatever one's previous views, that you cannot go back to a unitary settlement; that genie is out of the bottle. There have been obvious benefits, which you will appreciate much more than I do in the Senedd here, to devolution, and it seems, I think to us, that the time has come to attempt a much more coherent settlement. In the end, given that we are where we are, what is essentially what we're proposing—a federal solution—is probably the only practical basis on which we can proceed. And it does seem, I think, to us, that if this is going to work, the terms of such a solution must be negotiated by the four nations of the kingdom on equal terms, and that this is not a sort of Westminster what the French would call de haut en bas business—that the four nations must look each other in the eye and say, 'If we want to make this work, how do we make it work as, effectively, equal partners?' And I suspect the feeling that particularly the three—if I can call them Celtic—nations have rather felt that they were victims of a de haut en bas approach has probably, to some degree, poisoned relations in that, but you'd know more about that than I would.

I should emphasise that this Bill, which I think you've been kind enough to read and want to comment on, is very much work in progress. For instance, I think we are aware that, probably, in practical terms, the weakest parts of it are the financial aspects, and, as we know, money is the root of all difficulty, particularly constitutional difficulty. We have appointed a very distinguished group of people, including people from Wales, who are looking at how we might improve that aspect of it. If you wanted to, we can obviously come back to that. But I think, overall, what we do feel is that our basic approach is reasonably coherent, and although I think all of us would agree that, whichever way you go on their Lordship's house, it's a pretty radical proposal, we think that it is a practical approach. It's been drafted by a very distinguished former parliamentary draughtsman, who, I think, knows Wales very well, and his approach has been, I think, very sensibly to change only what would need to be changed, which makes life a little bit easier than trying to go from a comprehensive settlement, which inevitably means that you will forget or—. Thinking of the Fixed-term Parliaments Act 2011, how these things operate, you usually forget the bits that are most difficult in the event.

So, I think what we do hope is that, if each nation does want to continue as part of the union, it really has to do so by looking at a new settlement, which it buys into and agrees with the centre what the centre should do. And there are slightly different wordings—and I think you want to talk about this—between what we propose for Wales and for Scotland. I think that Paul and I would argue that these are more a matter of language than substance. But I think the important point I would like to try and leave with you this afternoon is that the negotiation should be one that is freely entered into, agreed wholeheartedly by those negotiating on behalf of the four nations, and that, once the Bill has been agreed and passed through Parliament, it should not be brought into force until it has been approved by a referendum in all four parts of the kingdom with a 60 per cent pass rate. And I think, from that point of view, that would approach the consent question and the question of whether the four individual parts of the kingdom are behind the idea.

I think there are two other very quick points, if you'll allow me to make, which I'd like to make. One is—if I can put it this way—the big elephant in the room is England. It's 85 per cent, as you know, of the whole; it is the source of much of the cross subsidy, particularly to Scotland, which, I think, perhaps this group would agree has done rather better out of being subsidised by England, for instance, than Wales has or, indeed, the east end of Newcastle, and I think we'd like to try and think about that. But we do feel that our Bill is specifically thinking about the future relationship between the four nations of the kingdom. We're working very closely with, for instance, John Denham, who, as you know, has given a lot of thought to the question of England, and, indeed, the great historian David Cannadine, who, with the British Academy, has been doing similar things, and we've had joint meetings with them about how devolution could happen with England. And one of the things that I think would be important if this were to go any further is to realise that, for instance, I imagine parts of Wales would very much like to think about how its relationship with border regions in England might work, because I know, for instance, there are questions over the health service and so on that are practical there. That's the first thing.

And the second thing is that, inevitably, this would not be the only piece of legislation. Big reforms will obviously need follow-up pieces of legislation—not only legislation, but also practical ways of making things work. I'm a great believer in convention. A lot of our conventions have fallen constitutionally at Westminster in the last few years, particularly in the last few months, but convention, if everybody can agree, is a nice and flexible way of going about it, and you can only evolve that through practice.

14:35

Well, thank you for those comments. Paul, you wrote about this, as I mentioned, in an article, and you've commented in the past on this, but, with the potential leaving of the EU and the removal of the EU legislative or constitutional umbrella, obviously that exposes, I suppose, some of the fracture lines within our constitution even more. What is the urgency of the need for constitutional reform? What are the consequences of not taking constitutional reform seriously?

14:40

I would agree entirely that leaving the European Union presents what I know some commentators have described as a constitutional moment. I know that Lord Salisbury was involved in this proposal for the constitutional reform group before I joined, and I think it was in anticipation of the problems that would be caused by leaving the European Union that you formed this in the first place.

Well, a slightly different emphasis—I thought that we needed a new constitutional settlement before the referendum, whose result I did not expect, I have to say, but I feel that it's even more urgent as a result of what happened in 2016 than it was before.

And I agree entirely with that proposition, that the urgency has been exacerbated by the result of the referendum and the constitutional chaos in which we might describe we are at present—the possibility, which not every member of the group agrees with, that this will result in reunification of Ireland and the independence of Scotland. That is a particular problem, as I see it, for us here in Wales.

You'll be aware also that, in terms of proposals that have come from constitutional bodies—parliamentary bodies—on reform, they have tended to focus on the Joint Ministerial Council and reform of that. Of course, you'll be aware, obviously, that there was—. I think there's fairly common agreement of the current system not being fit for purpose, regularly reiterated. Is it your view that the JMC is—I don't want to put words into your mouth, but is purely a transitional body rather than a long-term solution to the issue of constitutional reform?

I would very much defer to Paul, who I think was involved in a report on this. But, it seems to me that, whatever arrangements there may be over and above the legal framework for any new constitutional settlement, there are going to have to be some practical meetings that make the machinery work. I imagine—Paul may disagree—that, if something like this were to be introduced, some form of JMC arrangements would have to take place. But I would hope that they would be consequential and within the framework and, I hope, would be logical developments.

The criticism of the JMC, as I understand it—. And I'm very conscious that one of your members knows considerably more about this than I do, but one of the criticisms of the JMC has been the arbitrary way in which it has met—the discretionary power that the Prime Minister has to assemble the full plenary JMC. I understand that it has worked better when it has looked at sectoral issues rather than at a plenary level. But what the Bill and what our proposals are all about is greater parity of esteem, which is, of course, the phrase that we all use and hasn't really been implemented in the way in which one would hope that it could have been, as I understand it, in the way that the JMC has operated. So, it is dependent on London calling and Wales, Scotland and Northern Ireland answering. That doesn't seem to be the way forward, and is certainly not the thesis that is behind the proposals that we have, which, as Lord Salisbury has said, is all about the four nations co-operating on an equal basis. 

Can I come in just on that? Paul's referring to me with my experience of the JMC—nine years of it. The JMC is pretty much a talking shop. It doesn't really decide very much, if anything. The JMC plenary is basically an argument. We would go there and we would raise grievances, and those grievances would be listened to and there would be much nodding from the UK Government. It doesn't achieve very much. 

On top of that, the dispute resolution process, which does exist on a formal basis, exists on the basis that it is the UK Government that decides at the end of the day. So, if you are in dispute with the UK Government, the UK Government decides it. In fact, when Northern Ireland got £1 billion and we objected, saying, 'Well, there's health and education spending there; that should attract a Barnett consequential', the UK Government wouldn't accept that there was a dispute at all. So, we ended up in a position where we couldn't use the dispute resolution process because one party said, 'Well, I'm sorry, there is no dispute.' 

To my mind—. I'm sorry to give evidence, but, to my mind, the JMC needs to become something closer to the European Council in the sense that it would become a forum where common issues would be decided—for example, issues such as the operation of the UK's own internal single market. And it would be in that body that those issues would be dealt with at Government-to-Government level, whereas, at the moment, it's basically—. It's not window dressing, that's taking it too far, but it is not a body that can actually do anything or take any decisions, and, with a new constitutional settlement, there needs to be an inter-governmental mechanism that is able to take decisions and get agreement around all the Governments of the UK.

14:45

We're going to be very lucky, since you're very kindly joining us, to have your experience, because I think one of the things we're going to need to explore, apart from the provisions of the Bill itself, is about what the consequences might be. That kind of experience would be extremely helpful.

We do have one clause in the Bill that deals with what is called the ministerial council, and I certainly think that could be expanded and made tighter. There is an advantage that the ministerial council, in our proposal, becomes a statutory body, which, of course, the JMC is not. But the problems of it being a talking shop, which Mr Jones has identified, might still be there.

Well, I think one of the things that is helpful about the draft Bill is that it does provide a framework for, I think, a fairly focused discussion of constitutional issues. Dai Lloyd.

Diolch, Cadeirydd. Wrth gwrs, cefndir eich presenoldeb y prynhawn yma ydy fel rhan o'n hadolygiad ni fel pwyllgor i sut mae llywodraethiant yn yr ynysoedd hyn yn newid y dyddiau yma. Yn naturiol, dŷn ni'n croesawu'r dystiolaeth a hefyd eich Bil gerbron—Bil yr undeb. Yn benodol ar Fil yr undeb, felly—ac, wrth gwrs, fel dŷch chi wedi'i grybwyll, mae gyda ni i gyd ein rhagfarnau; fy rhagfarn i ydy fy mod i'n aelod o Blaid Cymru—ond, nôl yn benodol i Fil yr undeb, allaf i jest ofyn i chi sut dŷch chi'n gallu cysoni'r Bil efo egwyddor sofraniaeth seneddol a goruchafiaeth Senedd y Deyrnas Unedig?

Thank you, Chair. Of course, the background of your presence here this afternoon is as part of our review as a committee into how governance on these isles is changing these days. Naturally, we very much welcome your evidence and the Bill that you've put before us—the Act of Union Bill. With regard to that specific Bill—and, as you've mentioned, we all have our prejudices; my prejudice is that I'm a member of Plaid Cymru—but, returning to this specific Bill, can I just ask how the Bill can be reconciled with the principle of parliamentary sovereignty and the supremacy of the UK Parliament?

Well, Paul will also have views about that, but I think the key to this is the source of authority for the new federal structure, whether it's option A, which is rather a radical approach to their lordships—abolishing them. I should say in parenthesis that that was my idea; I'm afraid my Labour colleagues thought that this was a bit too radical. But, if the source of authority for the new settlement is the four nations of the kingdom, then it does seem to me that what they have done is they have leant their sovereignty to the centre, and therefore it reverses precisely the present situation. And, when we come to discussing the Sewel convention, I think this does begin to have certain relevance to that as well.

I think there are Acts of Parliament that have become Acts that are not going to be lightly changed, one assumes—this is a convention, now, of the constitution, and conventions of the constitution are not, as we know, policeable by the Supreme Court, or not, for the time being, policeable by the Supreme Court. But it's a convention of the constitution that something like the devolution settlements are not going to be reversed by a simple Act of Parliament. It's one of the provisions, of course, of section 1 or section 2 of the Wales Act 2017, and there are other older Acts of Parliament that are in that category; you can't imagine the Bill of Rights being simply repealed by an ordinary Act of Parliament. So, I think that reconciling a fundamental constitutional Act with parliamentary sovereignty is possible under our constitution. So, if this Act were ever to be passed, then it would be in that category.

Diolch am hynna. Yn dilyn ar hynna, i fynd i mewn i fanylder Bil yr undeb, allwch chi olrhain yr egwyddorion gwnaethoch chi eu defnyddio i benderfynu ar y meysydd polisi a rhestrir yn y Bil fel y rhai a gedwir yn ôl gan Senedd y Deyrnas Unedig? Sut ddaethoch chi i'r casgliad am beth sy'n aros yn fanna a beth sy'n dod i fan hyn?

Thank you very much for that. Following on from that, going into the detail of the Act of Union Bill, could you tell us about the principles that you applied to determine policy areas listed in the Bill as reserved to the UK Parliament? How did you come to the conclusion about what remains there and what comes to this place?

14:50

This has to be a cockshy. I do want to emphasise yet again that we are talking about work in progress. We want to encourage as broad a debate as possible. I'm delighted that more and more people are showing an interest, both at official and public as well as academic level. But it seemed to us that there were some obvious areas that were the responsibility of the centre—foreign policy, defence, foreign aid—and the most difficult part of all, of course, is money, finance. So, if you take, for instance, the question of borrowing, we've had long debates on this and we aren't finished with them yet. But it did seem to us that if you just take the example of borrowing, everyone you talk to in the markets would assume that if, for instance, the Government of Scotland went out and borrowed vast sums of money on the international markets, and if the UK Treasury said, 'Sorry guv'nor, it's nothing to do with us—it's entirely the Scottish Government', the markets wouldn't believe you. And, in fact, when push comes to shove, the UK Government would actually have to stand behind the Scottish Government.

So, that's why we came to the idea of a borrowing board, which you see is encapsulated in the Bill, and that that board would have strong representation from all nations on it so that they could come to, one would hope, a consensus about what would be prudent in the market, but I merely quote that as a practical example. But, again, this is open for debate, and I'm rather hoping that when our group is looking again at the financial aspects of this, we will put that on our website; it'll be interesting to see how people like you react to it. 

Thank you. You mentioned earlier the elephant in the room—the English question—and we seem to refer to it increasingly. And, of course, when Lord Kilbrandon's report came out in 1974, it very much had a concept of almost a sort of decentralisation model, rather than federalisation—maybe they blurred in part—but talked very much about regional Government within England, and, of course, the problem of having something that was nation-based because of the size of England, which you've referred to, in that. You suggest two models: one is, I think, a sort of regionalised model of Government, but the other one is also the UK Government being able to sit operating as an English parliament. Some would suggest it probably does that already, but, of course, there are difficulties with that because of how you delineate between what happens in England and how that affects others and so on. I wonder what your thinking is in terms of the issue of the English question, what your, perhaps, preferred thinking is at this stage, without, obviously, a commitment to further debate, and the idea of regional Government within England.

I very much hope, in view of what I think I can deal with as the substate text of your question, Mr Chairman, that you will begin to take an increasing part in our debates. I think it was out of kindness to me more than anything else that we've got option A in the Bill. Most of the people around the table were doubtful about it. I'm always attracted by the idea of keeping things as straightforward as possible, and I think there is a very powerful reason, particularly in our present circumstances, for endeavouring to do so.

Certainly, the theory of the British constitution before 1973 was very simple: you had an elected Parliament; at the end of the term, or if the Prime Minister called an election or was defeated in a vote of confidence, then the electorate had the opportunity to turn the rascals out. For various reasons, that has become more and more complicated, at a when the electorate is feeling more and more alienated from those who are supposed to represent them. So, I do think there's an increasing—. There was always a premium on having a clear basis for our constitution, which, in a way, could be put in an elevator pitch. And anything that is more complicated makes it more difficult for us people—I mean, I'm long retired from politics—to understand clearly the authority and the basis for the way we're governed. And if you don't, it makes it much easier for people to say, 'I don't agree, and I will not follow the law or do what the majority says, and I have an absolute right to follow my own opinion.' That way lays chaos, so I think there is a tremendous premium, particularly nowadays, on having clarity, which is why I like the idea of parliaments for each of the four members of the United Kingdom, and why I like the idea of a directly elected federal parliament, and therefore that the House of Commons would become, effectively, the English parliament. It is clear, it is absolutely clear, who elects whom, and the relationship between the federal and the rest.

Alternative B is more complicated. It basically makes a more powerful provision for what I think is called EVEL—English votes for English laws. And that's the only way you can do it. As you yourself imply, you then have what is overwhelmingly an English parliament, but which is dealing with UK issues, and then you have difficulties. Paul was a clerk, he knows about this much better than I do, but, certainly, when I was in the House of Commons, even under Scottish rules, if it was all good in Scotland, you could usually fiddle around a bit to make sure that Westminster won in the end, and I don't think that's good for relations between the two nations. Clarity is the thing, and I suspect that, if you rely on EVEL within an overwhelmingly English House of Commons, you would lose that clarity. That's my prejudice, and I have to say my colleagues don't entirely agree.

14:55

Well, I'm probably one of those who doesn't entirely agree, with respect, with Lord Salisbury about this. I think one of the things we identified, when I was chairing the commission on devolution, was what the Plaid Cymru member of the commission kept on hammering on to us was the problem of England, and that things would be so much simpler if England had embraced regional devolution, legislative devolution, inside England. That would make the constitutional settlement of the United Kingdom much easier. But I can see that, in parts of England, the likelihood of there being any sort of acceptance of a legislative regional assembly is very small. So, that is, as I see it, the fundamental problem with that in England. But an English parliament would be so much larger than the Parliaments of Scotland, Wales and Northern Ireland, and I think that also brings its problems. But we are stuck with our history, and we have to move on with our history, and I think it was the political scientist Richard Rose who wrote, some 50 years ago, about England being a concept rather than anything in the same way as Wales and Scotland regard themselves as countries. I can't remember exactly what Richard Rose said, but it was something along those lines.FootnoteLink

I think, if I may, it's relatively easy to have devolved assemblies in parts of England. You can think of the north-east, for instance, where John Prescott tried it, and was rejected in a referendum. You can think of the north-west, and you can think of the great urban conurbations. The difficulty comes in places like where I live, like Hertfordshire, where we have a very unsatisfactory local government organisation, in the sense that the boroughs are too small for things like planning, and where, it seems to me, it would work much better if you had unitary authorities. But the idea of that part of the world, as Paul says, being subject to fully elected assemblies, with very substantial devolved powers, is I think, in practical terms, pretty problematical. So, that's one of the things we've been talking about with people like David Cannadine and John Denham. So, how do you deal with the places in between the obvious ones? And I think there are ways to do it, but you're breaking my prejudice in favour of simplicity, because you have different models, and I think that is inevitable.

One other thing, if I may, and I'd be very interested in your ideas about this, is, if you were to have, for instance, regional assemblies with devolved powers along the western fringe of England, against the Welsh border, would it be an advantage, therefore, that you could effectively make deals with those, in practical government matters?

15:00

I think that's a very important point. And I suppose also another question within the England question is the London question, which is perhaps another version of the same challenge. Dai Lloyd.

Diolch yn fawr, Cadeirydd. Mae'n ddiddorol iawn, a dweud y gwir—a dwi'n credu y gallwn ni athronyddu am oriau, ond efallai y buasai'n well inni drio cyfyngu'r drafodaeth.

Y cwestiwn nesaf sydd gyda fi: dŷch chi wedi rhannol ateb hwn yn barod, ond er mwyn y record, allwch chi esbonio yn benodol pam fod y Bil yn gwneud darpariaeth wahanol i Gymru, o gymharu â'r Alban, a'r gwahaniaethau rhwng trefniadau llywodraethu arfaethedig Cymru a'r Alban yn y dyfodol? Sut ydych chi'n gallu esbonio ymdriniaeth wahanol o Gymru o gymharu â'r Alban? Dwi'n edrych ar Paul, efallai, am ddiffiniad.

Thank you, Chair. It's very interesting, really—and I think we could philosophise on this for hours, but we'd better keep to the discussion.

The next question: you've partially answered this already, but just for the record, could you explain specifically why the Bill makes different provision for Wales, as compared to Scotland, and the differences in the proposed future governance arrangements between Wales and Scotland? How can you explain the different consideration for Wales compared to Scotland? I'm looking at Paul, perhaps, for a definition.

I think this is—I hope this is more language than substance. It's something that we've discussed—you and I, Paul. I don't know whether you want to kick off with this one.

Yes, I think it is simply a question of the draughtsman having a different approach the two ways. It was raised when Peter Hain and I made a presentation at the Wales Governance Centre about this. And I took it back to the person who drafted this Bill, who I think is known to many people here in the Assembly—Daniel Greenberg—and Daniel said, 'Well, I just thought I'd have a different way of writing it.' And he assures me that there is no difference between the approaches to Wales and Scotland here, and that was not the intention of us to make any difference between Wales and Scotland.

It's a bit of a Daniel jeu d'esprit, I think. But, again, if I can re-emphasise, if you'll allow me, this is work in progress. If anybody around this table wanted to engage, and could improve on it, we would very much welcome such a thing. It's a suggestion. If Wales were to adopt this approach, obviously it would have its own agenda in the negotiations, and what it asks for might be something very different from what's suggested in this Bill.

As the chair said earlier on, this has been an attempt—it's long enough already, but it has been an attempt to just articulate and put on a piece, or several, pieces of paper what the thinking of the Constitution Reform Group was. But as you will see in almost all of the clauses of this Bill, it says this will be set out in greater detail in another Bill to follow. So, if this were ever enacted, it would be a very much more substantial Bill than we have in front of us. So, it's headlines, in a sense, rather than anything else.

It is. And it might well be, if you would talk to—we've been talking to two very distinguished justices of the Supreme Court, now retired. They liked the way this Bill was drafted very much, because they thought that it was extremely economically done. It might well be that if you did pass this piece of legislation, and I think I've already said this afternoon, there would be consequential pieces of legislation, as with almost any constitutional reform, in any country—it's not embodied. Even the US constitution has had consequential legislation. So, you would expect that.

Diolch am yr eglurhad yna, achos ar gefn hynna, yn y bôn, y ffaith bod Lloegr, neu Brydain, yn deddfu nawr, ac wedyn mae yna ryw fath o ffafriaeth fel yr Alban sy'n dilyn yn ail, ac wedyn yr argraff dŷn ni'n ei chael yn y fan hyn ydy bod Gogledd Iwerddon wedyn yn dilyn, a Chymru, efallai, ydy'r pedwerydd, hyd yn oed, i lawr y lein—. Buaswn i ddim yn licio gweld unrhyw Fil newydd sydd yn edrych i gysoni neu roi pobl ar yr un un math o safle sydd i fod—dŷn ni i fod yn fwy cyfartal. Wedyn, dyna pam mae'r ieithwedd, hyd yn oed, yn bwysig, achos dŷn ni'n trio symud i ffwrdd o sefyllfa pan mae Lloegr, yr Alban, Iwerddon, Cymru—yn y drefn yna—os dŷn ni'n sôn am gyfartaledd, yntefe. Dyna'r math o bwynt roeddwn i eisiau edrych arno, a diolch yn fawr iawn am yr eglurhad.

Ac yn benodol, wedyn, allwch chi esbonio ymhellach y darpariaethau yn y Bil sy'n ymwneud â rheolaeth Cymru dros ei threfniadau llywodraethu ei hunan? Er enghraifft, rydych chi'n sôn am gael gwared ar bŵer Senedd y Deyrnas Unedig a Llywodraeth y Deyrnas Unedig i ymyrryd ym materion Senedd Cymru a Llywodraeth Cymru. Yn naturiol, buaswn i'n croesawu hynny'n fawr iawn, a hoffwn weld os allech chi egluro neu roi mwy o esboniad o hynny. Diolch yn fawr ichi.

Thank you for that explanation, because on the back of that, essentially, the fact that England, or Britain, legislates now, and then there is some sort of situation where Scotland follows second, and then the impression we get here is that Northern Ireland then follows, and then Wales is perhaps fourth—. I wouldn't want to see any sort of Bill that looks to put people in the same position—we need to be more equal. And that's why the language, therefore, is important, because we're trying to move away from a situation where England, Scotland, Ireland, Wales—in that order—if we're talking about equality. That's the sort of point I wanted to make, and thank you very much for that explanation.

And specifically, then, could you further explain the provisions in the Bill relating to Wales's control of its own governance arrangements? For example, you mentioned the removal of the power of the UK Parliament and the UK Government to intervene in the affairs of the Welsh Parliament and Government. Naturally, I would welcome that, and I would like to see whether you could provide us with a further explanation of that. Thank you. 

15:05

I go back to the point I attempted to make about authority. If this Bill is going to work, effectively, what it does—it doesn't quite say it perhaps in this way—is it gives back to the four nations of the Kingdom, from the centre, full sovereignty. And in the same piece of legislation, after previous negotiation, it gives back authority for the central Government to govern on those agreed powers. The clear indication to me of that process is that what has not been given back to the centre is the business of the individual nation concerned. You can see that it might be possible that Wales or Scotland or England or Northern Ireland would legislate for something that would go against the givens of the United Kingdom. Therefore, we make an attempt at the beginning to give an unquantified series of givens that we think we have in common. But in the end, of course, if you do have a dispute, you get to a position where somebody has to be able to arbitrate and it may well be that that has to become justiciable. I would regret that enormously, because it seems—. Having lived in America, in California, for a good part of my early life, I was very conscious of how difficult it is when you have a politicised supreme court. It's much better to avoid that if you can.

Some might argue we're already heading in that particular direction. Carwyn Jones. 

I express myself as carefully as I can.

Thank you, first of all, for the proposed Act. Really, I've got some observations and some questions in terms of how you see this playing out. If we look at Part 2 of the Act, these are central policy areas. Now, sensibly, you would have central policy areas that are defined in the Act that are held by UK Government, and then everything else held by the different national Governments within the UK, which makes perfect sense.

The problem is, you run into the mythical country of England and Wales. For example, there are functions, justice being one of them, that are administered on an England-and-Wales basis. So, to my mind, I don't think it's possible to have central policy areas unless they are central policy areas that are the same for every country. I think that's an important point to make. If we look at the list of powers that would be held centrally, it does emphasise that the UK Government actually delivers very little across the whole of the UK. So, yes, Parliament in Westminster, as a UK Parliament, wouldn't have an awful lot to do compared to what it does now. I think that's pretty true.

If we look at some of the powers there, there are just two points from me; one is a detail point but the other is a more radical one. If we look in the Schedule, one of the powers, at 23, that would be held federally, if I can put it that way, is extradition. Well, extradition is devolved in Scotland and it's devolved in Northern Ireland. Once you have a separate jurisdiction then you have extradition from that jurisdiction. You'll know that in the States, if Nevada wants to extradite somebody from California, there's an extradition process. So, extradition couldn't be a UK Government function, because there is no UK jurisdiction, unless you create a federal UK jurisdiction. So, that's one issue. 

But secondly, this is a very radical proposal, saying that Wales is a sovereign nation that would then pool its sovereignty with others. It's pretty much like the EU, actually, in that sense, in some ways. That's a very, very different scenario to what we have now with parliamentary sovereignty with a theoretical possibility of Parliament being able to do whatever it wants. I think that's refreshing. I think we could look at Canada as an example of where pooled sovereignty works to the benefit of everyone. It doesn't lead to chaos, but it does lead to greater equality. 

As far as Wales is concerned, this would confer substantial devolution. Justice is the obvious one, but it also includes employment law, health and safety, driver and vehicle licensing—because Northern Ireland controls all those areas in Northern Ireland. So, it's a very, very radical step—not one I find unwelcome, necessarily, but a very radical step—which is why we find, with the British constitution, that what seems simple never is as soon as you get into the detail and the way it's been cobbled together over the years. So, it's just a point to make that these are issues that need to be looked at. And that means, of course, that Part 5, which deals with Wales, will need to be redone, because that suggests that the current devolution settlement would remain in place, and clearly that can't happen if—that would contradict Part 2. So, that would need to be looked at.

In terms of Parliament abolishing the House of Lords, just a few things from me, really. The House of Commons will become a parliament of 146—

15:10

Well, the federal assembly.

The federal assembly. Okay. I just want to see if I'm getting this right—

You're talking about option A.

Yes. Forgive me, option A. As I understand option A, it means that each European constituency would elect two members. It that right?

That's as provided there. Again, I think it would be fair to say that around the table, there was not unanimity about this. But it was put in, really, as a cockshy. I have, perhaps you may think, an old-fashioned Tory prejudice in favour of single-member constituencies. I don't know what your experience was—

There are some who would agree with that in this room.

—but my experience was, in my constituency, my constituents liked to know that they could have a go at me rather than me shuffling over the responsibility to a colleague.

The reason I ask that question is that Wales is a European parliamentary constituency. That would mean Wales would have two members, it would seem, in a 146-member parliament. 

I strongly agree with that. What we do think, however we set it up, is that in this federal assembly, there would have to be a representation that would be equivalent to the population balance, but we also recognise that historically in the United Kingdom, there has been a bias in terms of constituency numbers in favour of Scotland in particular, but also Wales—Northern Ireland was different, you'll remember—and that there is an argument for having a slight prejudice in number terms in favour of non-London areas. And in a way, that was partly the implied deal—if we're going to talk about money, they were slightly over-represented in numbers terms in exchange for being part of the United Kingdom and actually being financed, effectively, from south-east England. 

If I can just add that 146 members—. I think that there are four MEPs at present in Wales—or five?

Four—so there would be eight MPs from Wales. So, eight out of 146.

So it would be two from each—

So, twice the representation that currently exists in the European Parliament. I've got you. I can see the issue—. The House of Commons, as it were, equivalent would be based on population. The revising chamber—would that be based on population, or would we seek equal numbers from each of the four nations, such as the US Senate?

I think, at the moment, it would be a directly elected assembly based on numbers. 

Yes, if you maintained a reformed House of Lords under option B. But, as you can imagine, a large part of the latter part of my political life was spent thinking about the reform of our Lordships, and my experience is that if you have three people in a room, there are at least four ways in which you could reform their Lordships, expressed with great vim and vigour. I think this is something that the Bill would do well, if we go for option B, to think about a lot more, because I've always thought that there was a strong argument for regional representation in a second chamber. If you do it purely on numbers, of course, you under-represent the regions, in a way, who have a particular interest, not least of which is the cultural aspects. 

Thank you. In version B, again, to clarify this, is it suggested that the revising chambers for the three Celtic Parliaments, if I can put it that way, would be drawn from the Commons?

15:15

In version A, I think we're suggesting that the revising element should sit as effectively second chambers for the four Parliaments. The advantage of that, it seems to us, would be that it does provide an institutional link between the national Parliaments and the federal. And if you like the idea of revising chambers—and my prejudice is that they have a useful function to perform; what the great Conrad Russell used to call 'the legislative housemaid'—it does seem to me that there are advantages in that, so long as it's clear where the ultimate authority lies, which must be in the lower house.

I think, importantly—this is in clauses 30(5) and 34(4)—the only functions that those revising chambers would have are functions conferred upon them by the lower House, if you like. So, that means that they could have no functions if, in the case of any of the nations, that was what the principal house wanted.

Just two more points—they're very small. The first one is the separation of the High Court—fine—but of course it go further than that, because the High Court is one part of the jurisdiction and you've got the criminal courts as well, so you would need to create a Welsh jurisdiction. So, if it does go beyond that—. On the civil service, the civil service is not a UK civil service, it's GB—the Northern Ireland civil service is separate.

Yes, that's true.

There's another more substantive point to make as well. There's an ongoing debate about whether there should be a GB civil service. There are advantages in terms of being able to dip into a large pool of talent, but it's curious that the Welsh Government, for example, has no—'control' is the wrong word—but has no responsibility for the senior civil service. And so the Permanent Secretary can be appointed entirely by Whitehall without any input from the Welsh Government. Now, that's never happened. Actually, it has worked very well, the relationship between Welsh Government and Whitehall when it comes to appointing a Permanent Secretary, so it hasn't been a problem in practice—I need to emphasise that. But it does seem very curious that somebody else appoints your senior civil service for you, and that's something I think that needs to be looked at. Those are all the points I'll make for now.

Paul will have things to say about this. I think I'm right in saying—you can confirm whether I'm right or wrong—that Lord Thomas is looking at the question, at the moment, of a Welsh—

So, we're very conscious of that and therefore we hope to be guided by him, and we have been informally in touch with him. So, we're looking forward to his report. I always thought that there were great advantages—and Mr Jones, you, I think, accept this in your question—to having a unified UK civil service, because I think it is very much a unifier for the United Kingdom. I know that there is a Northern Ireland exception. I'm not always certain, in my experience of Northern Ireland, that it has necessarily worked as well as it should've done—

Well, for a population of—what is it—1.6 million, it's remarkably large. You yourself say, by implication, that at the moment, the Permanent Secretary—I imagine you are heavily consulted on the subject, and that has worked quite well. If you were to have a unified civil service of the United Kingdom, which I would favour myself, it would seem to me an extremely important convention that senior officials, at least, should not be appointed without full consultation and approval of the Cabinets or at least the chief Ministers of the countries concerned. It would be quite provocative not to do so, I would suspect.

Jest dau gwestiwn byr ar gonfensiwn Sewel. Wrth gwrs, mae'r Bil yn cynnwys darpariaethau lle gallai'r deddfwrfeydd nad ydynt wedi'u canoli, fel fan hyn, ddeddfu'r tu allan i'w meysydd cymhwysedd gyda chydsyniad Senedd y Deyrnas Unedig. Sut allai hyn weithio'n weithdrefnol, ydych chi'n credu, efo confensiwn Sewel?

Just two quick questions on the Sewel convention. Of course, the Bill contains provisions whereby the non-centralised legislatures, such as this place, could legislate outside of their areas of competence with the consent of the UK Parliament. How might this work procedurally, in your opinion, according to the Sewel convention?

I suppose it will work in the same way as the Sewel convention works—or doesn't always work—at present. But you have highlighted an issue that, if conceivably I can understand that there might be an argument between Cardiff and London about whether a proposal that Cardiff was making trespassed into an area that London didn't want it to trespass into, at present, of course, the other way around, London can override Cardiff. Can Cardiff override London is our problem, and I suppose there would have to be some sort of mechanism for arbitration in those circumstances if what Cardiff was doing was so clearly trespassing on territory that properly had been reserved to London. I've always been somebody who approaches these things with an optimistic bent—that really you should avoid these sorts of arguments if you can possibly do so. The idea of having some sort of binding arbitration has always appealed to me, and, of course, appears in the report of the commission on devolution—to avoid issues going to the Supreme Court, having a proper arbitration process instead.

15:20

If I could come in, would that not be the Supreme Court fulfilling that function? That, to some extent, is what it's doing at the moment, isn't it—filling in the disputes in terms of the delineation of responsibilities?

Yes, I think it has to the final—to use a word one shouldn't use anymore—backstop. But before issues come to the Supreme Court, then—

—they should be resolved, and the possibility of an arbitrator being involved in that process could avoid things going to the Supreme Court.

I don't know what your impression is. I don't think the Supreme Court really wants to be dragged into politics. I know it has been accused of doing so at the moment, with enormous enthusiasm, but I really don't think that it does. Perhaps one of the benefits of this Bill is not that it will eliminate all potential sources of friction and disagreement, but I hope might narrow the potential for disagreement a good deal further than it is at the moment. That would be progress.

Na, popeth yn iawn. Jest i orffen, os gallaf i gyfuno rhai sylwadau a chwestiynau yn fan hyn, a ydych chi fel grŵp diwygio cyfansoddiadol yn rhagweld atgyfodi neu ddychweled i'r rheol a sefydlwyd gan y llysoedd a oedd yn caniatáu deddfu ar faterion 'yn ymwneud â' meysydd datganoledig, sef rheol a gafodd ei dileu gan Ddeddf Cymru 2017, ac, o gofio hynna, a fyddai hyn yn dilyn egwyddor bresennol confensiwn Sewel o beidio â deddfu ar faterion datganoledig 'fel arfer' gan wrthdroi confensiwn Sewel i bob pwrpas?

No, that's fine. Just to conclude, if I can combine a few comments and questions, do you as the constitutional reform group envisage a return to or a resurrection of the 'relate to' rule established by the courts, which was removed by the Wales Act 2017? Bearing that in mind, would this follow the current Sewel convention principle of 'not normally', so that the Sewel convention would be effectively inverted?

I think that's right. The Sewel convention, as I think I responded before, would be inverted.  I remember that Lord Judge described 'normally' as a weasel word, and it would equally be a weasel word if it was being implemented here or in London.

I think it would be fair to say that Lord Judge is not a fan of our proposals. He is constructively against us, and we benefit greatly from his arguments, actually, and welcome them.

I'd like just to take us back to the idea of a constitutional convention. It is certainly something that has been argued from a number of quarters. It has been, I think, a call from Welsh Government for quite a number of years, and, of course, there have been reports by this committee and, in fact, further work done and at one stage a suggestion of a Speaker's conference to in many ways bypass, I suppose, the parliamentary block that was there. In your view, do you have a view on the merits of there being a constitutional convention and what its purpose might be, and how it might be initiated?

Paul has views on this, I know, and we have discussed this many times, actually, around the table. I think that one of the advantages of a Bill is that it gives you enormous flexibility in debate. Certainly, when I had something to do with these matters before 1997, I used to try and encourage as much as possible Bills to be subject to select committee procedures, for instance, which could happen at any site. But you can also use consultation in an extraordinarily flexible way and it can become part of a legislative process or a run-up to a legislative process, which we all understand. We know about how Acts of Parliament are passed, how they work and that, it seems to me, is an advantage of using the legislative approach. It doesn't preclude, particularly for a matter of this fundamental importance, some really serious debate before the final version of the Bill is introduced into Parliament.

It's interesting, of course, that it would have to be the UK Parliament that passed this Bill. That would be the means by which it would be done. I would think it would be odd if you didn't have a forum of some kind to discuss it in the run-up to the final drafting of the Bill. My personal preference, because it would very much have a parliamentary label, would be a Speaker's conference, because the difficulty of a constitutional convention is they tend to be rather outside the general machinery of government, however discredited some of us might feel it is at the moment. I think it would be very much to the nation's advantage if it was seen to be part of established procedures how we get from the old ways to the new ways. It would be seemly and in a way that we understand. So I think labels are important—you talked about language—and I would personally vote for a Speaker's conference for those reasons. I know that the Scots looked at a constitutional convention, but what I thought was interesting was that not everybody took part in that convention in Scotland. 

15:25

Yes, of course. 

Paul, did you want to make any last comments?

I largely agree with that. I think that there was an advantage. I accept that not every party took part in the Scottish constitutional convention, but I think that the Scottish Bill was much better than the Government of Wales Bill, because the Scottish convention had existed. 

That is true. 

I think pre-legislative scrutiny is good for simple Bills, but, for something as complicated as this, then something rather grander than the normal pre-legislative scrutiny is necessary. There are disadvantages if it becomes a mammoth undertaking, like Kilbrandon was, that goes on for years. Actually, I think a lot of fruits of Kilbrandon have come much further down the track but not immediately were there fruits of Kilbrandon. So, you don't want something to become such a juggernaut that it becomes a block on change, but I think having some sort of constitutional convention and actually labelling it as a Speaker's conference, which I hadn't though about before, might be a very good way of doing it, because it looks like something that is intrinsically parliamentary. Perhaps a Speakers' conference, rather than a Speaker's conference. 

And maybe the 'Speakers' could include the Speakers of the Parliaments of the four nations as well. It would make sense under these circumstances. 

Okay. I think that brings us to the end of this session. First, can I thank you for your thoughts and your ideas? This is an area that we are continuing as a committee to explore. On 14 October, we have quite a number of constitutional experts in what's going to be, I think, an open round-table to explore these, because 'constitution' was one of those words that was never allowed to be mentioned and, of course, now I think we are bearing the consequences, perhaps, of that for some time. 

There will be a transcript of the evidence that goes to you, and I think we all recognise that these are the development of ideas and that the Bill provides a framework for at least looking at some of these issues. Thank you very much for your time. 

Well, thank you for asking us. We're extremely grateful, and very grateful for the well-informed interest you've shown, and you've given us much food for thought as a result of your questions. As I keep saying, anybody can play if you—. The more you can help us with your suggestions, the more grateful we will be.

15:30
4. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3 ond sydd â goblygiadau o ganlyniad i ymadawiad y DU â’r UE
4. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3 but have implications as a result of the UK exiting the EU

Okay, we now move on to item 4 on the agenda: instruments that raise no reporting issues under Standing Order 21.2 or 21.3 but have implications as a result of the UK exiting the EU. We're on to the Rural Affairs (Miscellaneous Amendments) (Wales) (EU Exit) (No. 2) Regulations 2019. You have before you the report, regulations and explanatory memorandum. These regulations amend several items of subordinate legislation relating to animal and plant health, and I think that the Plenary debate on these regulations is scheduled now for 8 October 2019. Any comments?  

Yes. The draft report simply notes that these regulations reflect what appears to be a mini, UK-wide common framework in the field of animal trade, with that framework having been created in a different set of UK Government regulations that the committee considered back in July. 

5. Offerynnau sy’n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.7
5. Instruments that raise issues to be reported to the Assembly under Standing Order 21.7

We move on to item 5: instruments that raise issues to be reported to the Assembly under Standing Order 21.7. We have the 'Code of Practice for the Welfare of Meat Chickens and Meat Breeding Chickens'. This is a code of practice issued under the Animal Welfare Act 2006. It applies to all meat chickens and meat breeding chickens for which a person is responsible. The existing code of practice reflected the science and legislation in force at the time. A review was required to catch any changes in those areas and to ensure that the standards being advised are still appropriate. The purpose of the code is to ensure that those who are responsible for an animal are aware that they have a legal duty to take reasonable steps to ensure that welfare needs are met. Any comments?   

The draft report notes two fairly minor issues, starting on pack page 98. The first is that the code says that animals must be thoroughly checked at least twice a day, whereas the legislation underpinning that requirement says that animals must be checked at least once a day. So, there is an inconsistency there, the code being the stricter requirement. The second error is an incorrect reference to one specific piece of EU legislation. The Welsh Government response hasn't been received yet. 

Okay, so, we're waiting for that. Shall we note that? 

6. Papurau i’w nodi
6. Papers to note

Okay, we'll move on to the next item, which is item 6.1, the letter from the Counsel General to the Chair of the Finance Committee on the Senedd and Elections (Wales) Bill. Of course, the letter also deals with the various recommendations that we have made and includes all amendments to section 27. Are there any comments on this from the lawyers? No? Okay. 

7. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o’r cyfarfod
7. 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, we will move on to item 7, a motion under Standing Order 17.42. So, in accordance with Standing Order 17.42(vi), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree?

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:33.

Motion agreed.

The public part of the meeting ended at 15:33.

The existing duty of quality is in the Health and Social Care (Community Health and Standards) Act 2003 not the NHS (Wales) Act 2006.

Professor Rose in fact wrote 'England is a state of mind, not a consciously organised political institution' (Rose, R, Understanding the United Kingdom, Longman 1982, page 29)

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