National Assembly for Wales

Good morning, everyone. This is a meeting of the Constitutional and Legislative Affairs Committee. Just a few housekeeping matters: the usual housekeeping issues apply. We've had apologies from Suzy Davies for items 1 to 3. She will be joining us later. If my voice sounds a bit slurring it's because I've been to the dentist, not for any other reason. Are there any declarations of interest?

Okay. We note that. 

We move on then to item 2, the National Health Service (Indemnities) (Wales) Bill. I welcome the health Minister, Vaughan Gething, Frances Duffy, the director of primary care and health science at the Welsh Government, and Sarah Tyler, a lawyer with the Welsh Government. Thank you for attending this morning. If you're happy, we'll go straight into questions on this. Obviously our scrutiny is related to the structure and the format of the legislation rather than specific policy issues. I suppose the starting questions from me are really the fairly standard ones that we need to identify: firstly, that you're satisfied that the Bill falls within the Assembly's competence. Have you had any discussions with the UK Government in relation to the Bill? Are there any human rights issues that have been considered that are relevant to this?

In terms of competence, yes, we're satisfied it's within competence. The Llywydd has indicated in her determination it is as well, and human rights issues are taken account of in both the Government's and the Llywydd's determination on competence too, and we don't think that there are any human rights issues that arise from the legislation.

In terms of conversations with the UK Government, I haven't had a direct conversation with Ministers, but officials between the two Governments certainly have, and there's a broad degree of policy agreement between the Governments about the policy intent and purpose that goes beyond the obvious cross-border issues. But, yes—constructive conversation between Governments. 

As I understand it, there's similar legislation going through in England as well for the English NHS. 

Yes. 

Thank you. Okay. So, over Carwyn Jones. 

Thank you, Chair. I think it's very clear why the legislation is necessary. I assume it's to do with ensuring there's no difference between Wales and England on this.

Yes, to make sure we don't have a difference between GPs practising on either side of the border; it would interrupt flow in terms of staff as well as cross-border provision. But obviously the requirement is the state and the nature of the changes in the indemnity market that affect general practice. It's not just about Dr Lloyd; it's about the whole profession. 

You're using the expedited Stage 1 procedure. What's the reason for that?

To make sure we have a scheme in place for the start of April next year. If we'd gone through the, if you like, normal procedure then we wouldn't have had regulations in place and it would not have been good either for GPs based in Wales or indeed people who use services in England across the border for us to have our regulations in place at a different time. We're looking at a scheme of regulations that are as similar as possible and that is the work that is going on between the two Governments. So, to make sure that everything is in place at the right point of time we're using the expedited procedure and I'm glad that the Business Committee agreed to do so. 

And then finally from me, I'm going to refer to the explanatory memorandum—I'm not going to ask you to look at it. I'll repeat what it says. Paragraph 4.5 of the memorandum states that no open consultation was undertaken on the draft Bill, and normally of course there would be an open consultation. What was the reason for taking a different approach on this occasion?

As you say, it's a short Bill of a technical nature and it's a discrete subject matter as well. We've had regular conversation with stakeholders directly involved in their representative groups, and there's widespread agreement, which isn't always the case when legislation is being provided, both by general practitioners but also by the medical defence organisations themselves. And, again, if we go through the longer and extended process that we'd normally do for legislation, then we won't be ready to have the regulations in place. And, given the widespread agreement that this is the right thing to do, we're following a process that allows us to do that but still with proper engagement with all of our stakeholders.

Okay. Thank you. Dai Lloyd.

Again, if you like, the legislative amendment that is required on the face of the Bill is to make sure that we do have powers to indemnify individual GPs for contributions they've made in the past. That's in contrast to the future scheme that we've provided—the future liability scheme—because we're able to do that through local health boards and the contract; we can't do that for existing liabilities. So, actually, the legislative amendment that's required is short and discrete. That's why we have the Bill that we have in front of us. The nature of the regulations themselves—. The short answer is, 'Yes, I am satisfied at the balance between the face of the Bill and the regulations', and we followed a relatively similar process for the future liabilities scheme successfully, with agreement from stakeholders, as well, and I think a similar balance here is the right way to move forward.

Well, as you know, we're taking the powers because the pre-existing situation, where Ministers had no duty through a scheme of this sort, had lasted relatively well up until more recent years. And we're acting because of the practical reality of where we are, where indemnity insurance, if left to itself, would mean that a number of people would mean that a number of people would withdraw from areas of general practice. Now, that's a discrete area, if you like, of people involved in providing general practitioner services, but, actually, there's a significant public interest in making sure they're able to do so. So, it's about the ability to do so, but it may well be that in the future you might not need to have a scheme of this sort. So, I think requiring regulations to be made isn't necessary, so we're taking a power to enable us to do so. We set out in the explanatory memorandum the sort of areas that we'd want to look at and how we'd want to go about that. And, obviously, you've seen the future liabilities scheme, and the sort of regulations that we have introduced.

Well, assuming that the Bill receives Royal Assent in the timetable, we'd want to bring forward regulations in pretty short order—so, by the end of February—so that people can see them so that they in place for the start of April. So, again, that goes back to the questions that your comrade to your geographic right asked about the timeframe for the Bill.

Yes. We don't think that's necessary; we are consulting with and working with stakeholders, as we have been for more than a year when considering the introduction of state-backed indemnity schemes. So, we're already working with them and so I don't think there's a need to have a specific duty on the face of the Bill because that is what we're doing in any event. And I think—you may take an interest in this—but I think you'll hear more about that and the view of stakeholders in the subject committee later on this week.

As we've rehearsed and gone through, the regulations themselves would be pretty technical in nature, but also there's a point of consistency and the powers that exist. So, the powers to issue the regulations come from the National Health Service (Wales) Act 2006, and it's sections 203 and 204 of that Act that prescribe the procedure to be followed. So, we would potentially take out a wholly novel way of making regulations under this Act if we decided to have the affirmative, not the negative.

And it's also worth again reminding ourselves that the future liability scheme regulations were produced under the negative procedure following consultation and working through with stakeholders, and the Assembly didn't raise a particular issue about those. So, the real issue here is that I don't think it's a technical scheme of how we do this, it's actually the objective and the purpose of the Bill and what that will do for the future of primary care that I think is the most important thing. And, again, I don't want to stray into matters that you will consider on Wednesday wearing a different hat.

Indeed. Diolch yn fawr.

If I may ask a question—and I think probably the final question on this—the new subsection 10 to be inserted into section 30 of the National Health Service (Wales) Act 2006 gives a very broad power in respect of indemnities, the extent to which the indemnities provided can be broadened to other bodies, et cetera. I'm just wondering if you have any further information, any views as to how that power might be used. It is a very broad power. Why is it so broad and what consideration do you think you've given to possible expansion of this or the use of it?

I don't think it's the breadth of the power that's been taken. That new section is to make clear that it doesn't limit the powers that already exist, because the section says that nothing in this section limits or affects the powers of the Welsh Ministers under this Act. So, it's being clear that we're not trying to trammel the powers that already exist; we're making a specific provision to allow us to provide an indemnity scheme on the existing liabilities that are already there. So, we're trying to make clear that we're not trying to unduly or by accident affect the other powers that exist, so it's about trying to clarify that in the way that it's drafted.

So, there isn't any specific consideration being given to the application of indemnities in any broader capacity, or whatever.

Well, if we needed to do something different, then we've got powers that exist through the way that the contracts work, because the existing powers that we use to make the future liability scheme would exist in any event. So, for people employed by a health board, we could do that in any event. We have a range of contract provision, so we could do that through the contracts that exist—for example, the pharmaceutical contract. There are contracts that exist. This is about those existing liabilities, and it's about dealing with that particular issue in general practice, and that's why have this Bill. And, like I say, we're trying to make sure that we don't cut off other avenues for the future and unduly and by mistake affect the powers that Welsh Ministers already have under the piece of legislation that we're seeking to amend.

Okay. I think that's all the questions. Are there any other questions anyone wishes to ask? If not, thank you, Minister, and your officials for attending this morning, and for your succinct answers.

I propose that we now move into private session. We have a slight gap, so if we go into private session and proceed, in accordance with Standing Order 17.42(vi), to invite the committee to exclude the public. Is that agreed?

Okay. We move into private session. Minister, thank you ever so much for attending. 

Thank you.

This is a reconvened meeting of the Constitutional and Legislative Affairs Committee. If I can welcome Lesley Griffiths, Minister for Environment, Energy and Rural Affairs. Thank you for attending this morning, together with your officials Jackie Price, senior responsible officer for the Wild Animals and Circuses (Wales) Bill, Richard Lewis, a lawyer from the Welsh Government legal services department, and Tom Henderson, senior Bill manager of the circus Bill. 

Once again, we're considering the Wild Animals and Circuses (Wales) Bill and, if you're happy, we'll kick off with the questions. As you know, our concern is not with the specific policy aspects, but really with some of the technical aspects of the Bill. So, we have a number of standard questions to ask you. The first one, again, for the record, is really whether you have any issues or concerns with regard to the issue of competence. Really, if you could—. Well, let's start with the competence issue firstly, if there are any issues there that you wish to raise. 

No issues at all. I'm very happy that we have the legislative competence, and I have had an exchange of correspondence with the Secretary of State for Wales. 

Okay. And in respect of the policy objective, could you outline what the policy objective is and why the Bill is necessary to achieve this objective? That is, why it's necessary to legislate, as opposed to using existing powers that the Welsh Government has already.

The policy objective is to ban the use of wild animals in travelling circuses in Wales. We don't have any circuses based here in Wales, but we do have, at the moment, two circuses that do visit Wales. You may be aware that Scotland has already introduced legislation to ban the use of wild animals in travelling circuses. The UK Government are going through the process now. So, we want a consistent approach across Great Britain. We do not want Wales to become a sanctuary for travelling circuses, with the other two countries having introduced a ban. So, I went out to consultation last year. We had about 6,500 responses and 96 per cent of respondents agreed that we should legislate to ban the use of wild animals in travelling circuses. 

And this legislation, I understand, is similar to legislation being introduced in England as well. And no view, then, as to whether or not it could have been achieved by means of secondary legislation; that it was necessary to have primary legislation to achieve this. 

Initially, the Westminster Government did ask if we wanted to go with secondary legislation under their Bill. At the time, we had no idea of the timeline that the UK Government were going to use. I think it's safe to say it's progressed much, much quicker than we anticipated it would, but, by the time they came forward, we'd already started our process, and I think this is the correct one. 

Thank you very much. Carwyn Jones. 

You mentioned earlier on, Minister, that you'd had an exchange of correspondence with the Secretary of State. Has there been any other contact with any other UK Government department?

No. Apart from that initial response as to whether we wanted to go in with the UK Government Bill, I have had no other discussions. I know Tom has regular—probably monthly—sessions around circuses in general and the current position, and zoos and animal exhibits, but not specifically, no. 

You mentioned the need for consistency across Great Britain. Are there any differences in approach or policy between, for example, Wales and, let's take the Scottish legislation, or are you looking to get complete consistency with England and with Scotland?

They're very similar; I wouldn't say they're identical. So, for instance, Scotland have legislated to have regulation powers, as have we, and the UK Government haven't. So, they're not identical, but they're very similar. 

Dai Lloyd.

Human rights: we're satisfied that the provisions in the Bill comply with the Human Rights Act 1998. Obviously, the Bill focuses on ethical concerns surrounding the use of wild animals in travelling circuses, so, beyond the impact on the two travelling circuses, I think the real benefit will be measured in terms of addressing those ethical concerns that have been raised with me many, many times by the Welsh public and third sector organisations. 

You're quite right that that's what our view is; that's what the impact assessment on completion agreed to. We commissioned a huge range of research around this. I know we looked at briefings and journals, general articles, and none of them identified any impacts in this area. Travelling circuses are commercial operations, and they exist to provide entertainment, so banning the use of wild animals in travelling circuses would be expected to impact equally on all affected people. It will not be specific to any one protected characteristic. 

I do not have the evidence to show that there are welfare issues. Obviously, I can't say 100 per cent with confidence that there aren't, but you have to assume that every circus is heavily regulated, and if they weren't complying with the regulations around animal welfare, we would know about it. There have only been two prosecutions in relation to animal welfare in travelling circuses in the last 20 years. I think the last one was about seven years ago. So, I could not bring forward this Bill on animal welfare grounds and, certainly, Scotland and the UK Government came to the same conclusions with their Bills too.  

Circuses normally travel between March and November. So, if you look at when we would get Royal Assent, assuming everything goes the way that we would allow for, the date of 1 December was to allow the animals—. If we brought the date forward whilst the animals were touring, it would be much more difficult, I think, for them. But I'm not saying we couldn't bring it forward if that would be the will of the committees and the National Assembly. 

Carwyn Jones. 

Just a few questions from me. The first one is to do with the balance between what appears on the face of the Bill and what's left to regulations. Historically, of course, Bills tend to deal with longer term issues and structure, and regulations tend to deal with policy and with legislation that needs to be flexible, and may need to be changed once or maybe even several times during the course of a year. Was that the approach that was taken?  

We think the definitions within the Bill should be sufficient. However, the regulations only really look at the definition of 'wild animals' and 'travelling circuses'. So, if you think about wild animals, it could be that, in future, animals that are considered to be wild at the moment might not be. The only example we've been able to come up with is llamas, which 40 years ago were considered to be exotic and now they're considered to be domesticated. So, I suppose that could happen. So, that was one of the reasons.   

I suppose it's not as easy as it looks to define a 'wild animal'. 

No. Again, the definitions are the same as those that Scotland and England have used. They're also in line with other regulations and legislation—so, in the Zoo Licensing Act 1981, for instance, the definition is the same for wild animals there. 

What plans do you have in terms of public consultation before you bring any regulations forward? 

So, what we would firstly do is consult with stakeholders and get expert advice. Any regulations would be affirmative procedure, so in-between those we would then consult as appropriate. 

And, of course, to make the Bill effective, there'll be a need to take forward the secondary legislation that you've already mentioned. What timescale do you have in mind for bringing forward legislation on 'circus' definition and definition of 'wild animals'? 

I don't think we've looked at times. 

No, we haven't looked at timescales. I think the idea is that we're reasonably happy with the definitions we have, which are in keeping with other legislation, but those powers to make regulations are there should we need them in the future, should things change or should clarification be required. 

But presumably there'll be a need for regulations to make the Act, as it will become, effective to define 'circuses' and 'wild animals'. 

No, because they're defined in the Act already. 

I see. 

It's only if we needed to change those. As I said, I think the regulations, really, are only about those two definitions if things were to change. We don't envisage they would be needed, because we think the definitions are sufficient in the Bill. 

So, there will be definitions on the face of the Bill.

Yes.

Right. So, the kind of regulatory powers you're looking at, they're Henry VIII powers, aren't they?

What powers, sorry?

Are they Henry VIII powers?

Henry—

I don't know what that means, I'm afraid.

They're more for clarification, the regulations.

Yes.

Well, this is CLAC, so we have to—[Laughter.]

Sorry, I looked at the wrong official then.

Henry VIII is—

Yes, I know.

I was just asking because I was just wondering about the process. If the definitions appear on the face of the Bill and a regulatory power is to be taken to change the definitions in an Act, that's a Henry VIII power, isn't it?

Yes.

All right. That's fine, okay.

We'll make a note of that. I think those are all the particular issues that we identified within our remit in terms of the scrutiny of this Bill. I don't know if there's anything anyone else wants to ask. If not, obviously a transcript will be sent to you in due course. Thank you very much for your prompt and succinct answers on this, and we'll now move on to item 4.

Thank you.

Thank you very much, Minister.

Okay, we move on to item 4 then, which is the National Health Service (Amendments Relating to Serious Shortage Protocols) (Wales) Regulations 2019. These are regulations that amend the terms of service for NHS pharmacists in Wales to facilitate compliance with serious shortage protocols issued under the Human Medicines Regulations 2012. The regulations also extend the definition and scope of those to include a written protocol issued by Welsh Ministers in circumstances where Wales or any part of Wales is, in the opinion of Welsh Ministers, experiencing or may experience a shortage of a specified drug. Are there any comments or observations? No.

In that case, we move on to item 5.1, the M4 Motorway (Rogiet Toll Plaza, Monmouthshire) (50 mph Speed Limit) Regulations 2010 (Revocation) Regulations 2019. You have before you a report, the regulations and an explanatory memorandum. The regulations revoke the 50 mph speed limit on the westbound carriageway of the M4 motorway at Rogiet in the county of Monmouthshire. In consequence, the national speed limit will apply to that carriageway upon the coming into force of these regulations. I think there's one or two comments on that. 

Yes, there are two merits points, starting on pack page 28. The first point raises a question about why there was no regulatory impact assessment carried out for these regulations. There is a statutory code of practice that the Welsh Ministers must follow, which sets out when regulatory impact assessments must be carried out for subordinate legislation. The Welsh Government response on pack page 29 says that these regulations 'have no major policy effect' and therefore no RIA was required under the code.

It may be worth noting that these regulations increase the speed limit from 50 mph to 70 mph on a section of the M4. Across Wales, speed limits are currently being reduced generally in order to improve road safety and improve air quality. But, in this case, the Welsh Government is increasing speed limits, yet still saying in the explanatory memorandum that this is for 'road safety and air quality' reasons, which is on pack page 35.

And if I could make one additional related point, the Welsh Ministers have a duty under section 76 of the Government of Wales Act 2006 to keep this code of practice under review. The only version of the code we can find is dated 2009, so it's unclear whether the Welsh Ministers have been reviewing the code as required.

So, there are two issues there, the issue of whether there should be a regulatory impact assessment and then there's a secondary issue, and that is—. We can perhaps deal with the secondary one first. We should write and ask whether there are any plans for review of these regulations, since there's been no review carried out since 2009. So, it's a 10-year period since there was a commitment for a review, we can raise that in correspondence. Is that agreed? 

Yes.

Then, the other issue is in terms of whether we should do anything about the issue of a regulatory impact assessment. 

I suspect I know the reason. The toll plaza of course had a 50 mph limit because you had so many lanes converging into three. Now the toll plaza has gone, there's no purpose to the limit, I'm guessing. It seems to me—.

Shall we just leave that there? We note that, but we'll make the point in terms of the review, because that's a general point that emerges out of this.

Okay, we move on to, then, the Genetically Modified Organisms (Deliberate Release) (Amendment) (Wales) Regulations 2019. Again, the report, regulations and explanatory memorandum are before you. The regulations amend the Genetically Modified Organisms (Deliberate Release) (Wales) Regulations 2002 and the Genetically Modified Organisms (Deliberate Release and Transboundary Movement) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. I think there's a few minor technical points on this.

There are four technical reporting points, starting on pack page 37. The first point notes the late implementation of an EU directive. Various decisions around this late implementation have been influenced by the shifting date of exit day. The upshot is that the UK did not implement this EU directive by the deadline of 29 September 2019, but is implementing it now. The draft report asks whether the Welsh Government has had any discussions with the European Commission around this late implementation.

The second reporting point notes what appears to be an incorrect cross-reference in the regulations. Cross-references are important because if you must comply with, say, paragraph 14(g) but the legislation incorrectly tells you to comply with paragraph 14(f), then the person who must comply with the law is going to be confused.

The third technical point asks why some of the text of the EU directive does not seem to have been reflected in the regulations. If the regulations are intended to implement the EU directive, it's unclear why certain chunks of the directive appear not to have been reflected in the regulations.

The fourth and final technical point raises some inconsistencies between the English and Welsh texts, but the Welsh Government has not responded yet.

So, we'll await the response on that. We note that for now and we'll have a response in due course, which will come back here.

On to item 6, then, and the Sea Fishing (Miscellaneous Amendments) (Wales) Regulations 2019. These are regulations that make amendments in relation to Wales to secondary legislation that relates to sea fisheries. There are a number of issues that have been identified there as well. No, there are not. Okay, shall we just note those, unless there are any comments or observations?

We now move on to item 7, the Legislation (Wales) Act 2019 (Commencement) Order 2019. The Order brings Part 2 of the Legislation (Wales) Act 2019, which makes provision about the interpretation and operation of Welsh legislation, fully into force on 1 January 2020. So, Part 2 of the Act will apply to Assembly Acts that receive Royal Assent on or after 1 January 2020 and to Welsh subordinate instruments made on or after that date. I think there's a couple of minor issues that have been identified.

A couple of very minor things are identified on pack page 67, one simply noting a very minor error in the Welsh language translation—nothing that, we think, would affect the understanding of this commencement Order. Secondly, it simply notes that this Order is made under both section 38, which is a power to make regulations, and under section 44(2), which is a power to make an Order, and that the Legislation (Wales) Act itself allows those powers to be combined. So, regulations and Orders are combined into a single instrument, in this case labelled an Order, not regulations.

Okay, any comments or observations?

If not, we'll move on to the Food and Drink (Amendment) (EU Exit) Regulations 2019. The Welsh Government issued a written statement in August on these regulations, and we considered them at our meeting on 16 September. The written statement was then withdrawn and re-laid. However, the regulations remain unchanged. If there's nothing further to add to that, shall we just note that again? No observations or comments.

In which case, we'll move on to 8.2, the Common Fisheries Policy and Animals (Amendment etc.) (EU Exit) Regulations 2019. EU existing common fisheries policy legislation will be converted into retained EU law on EU exit. These regulations are required to ensure that fisheries management in the UK can continue to operate efficiently after exit. Any key issues that have been identified there?

A couple of things are noted in the report on pack page 80. The first is a point that has come up numerous times before the committee. These UK Government regulations create functions that can be exercised by both the Welsh Ministers and UK Ministers in devolved areas. As has been noted before, the Assembly does not have powers to modify or remove such concurrent functions, in so far as they are exercised by UK Ministers, without UK Government consent.

The Welsh Government mentions that it is in discussions with UK Government around making an Order under section 109 of the Government of Wales Act to address this impact on the Assembly’s powers. I understand the committee is already writing to the Government seeking further information about any such section 109 Order.

And, finally, we note that these UK Government regulations were made following the urgent procedure set out in the European Union (Withdrawal) Act 2018, because there simply isn't time to follow the standard procedures while the aim is to get the regulations ready in time for 31 October.

Okay, so we've already taken the action we can in respect of the competence issue. Any other comments or observations on the other points? 

If not, we move on to the Pesticides (Amendment) Regulations 2019. I think there's also a letter addressed to me as Chair from Lesley Griffiths. Now, the primary objective of these regulations is to correct out-of-date references to EU law relating to the placing of plant protection products on the market. The Welsh Government laid a statutory consent memorandum in respect of these regulations on 4 October 2019. We've had this letter here where the Minister says,

'I had intended a statutory instrument consent motion to be tabled...but...due to an administrative error this has not happened. As a result there is no time for the Assembly to debate the Regulations before they come into force.'

And, 'We'll make sure this doesn't happen again.' Any further comments on that, other than to note that correspondence and the explanation that’s been given by the Minister?

Okay, so we then move on to item 10, papers to note: a letter from the First Minister regarding the new policy document, 'Reforming our Union'. This was, of course, discussed and I think most of us participated in that debate in the Plenary last Wednesday, I think it was. It was Tuesday or Wednesday. So, we've had the letter now, we have the document there and we will be having the First Minister to come and give evidence in due course. Any other comments on that now or just to note that?

Okay, and then we have a letter. Item 10.2, a letter from the Minister for Environment, Energy and Rural Affairs just notifying us in respect of the quadrilateral meeting with the Secretary of State for Business, Energy and Industrial Strategy. So, that's just a letter to be noted.

Item 11. So, I think it's time to move into private session. 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. Is that agreed?

Agreed.

So, we move into private session.