Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee


Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

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

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Jennifer Cottle Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
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 14:43.

The meeting began at 14:43.

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

This is a meeting of the Constitutional and Legislative Affairs Committee. We move to item 1. I've had apologies from Dai Lloyd. In terms of the usual housekeeping rules, they apply, and we move straight on, then—. Sorry, are there any declarations of interest?

2. Offerynnau nad ydynt yn cynnwys unrhyw faterion i’w codi o dan Reol Sefydlog 21.2 neu 21.3
2. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

If there are none, then we move straight on to item 2, the Non-Domestic Rating Contributions (Wales) (Amendment) Regulations 2019. These regulations amend the Non-Domestic Rating Contributions (Wales) Regulations 1992. Under Part 2 of Schedule 8 to the Local Government Finance Act 1988, billing authorities are required to pay amounts to the Welsh Ministers, called non-domestic rating contributions. The 1992 regulations contain rules for the calculation of those contributions for Welsh billing authorities. These regulations amend the 1992 regulations and substitute a new Schedule 4, Adult Population Figures. Any comments or observations? There are none.

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

Moving on to item 3, we move to the School Teachers’ Pay and Conditions (Wales) Order 2019, and you have before you the report, an Order, a draft Order and an explanatory memorandum. The Order makes provision for the determination of the remuneration of schoolteachers in Wales, and other conditions of employment of schoolteachers in Wales that relate to their professional duties and working time. I understand there is a technical point that's been identified.

Yes. There's one technical point starting on pack page 2. Section 124(3)(a) of the Education Act 2002 says that when an Order refers to a document, which this Order does, the Order must include provision about publication of the document. This Order includes the information in the footnote, and the report raises a concern that this doesn't properly satisfy the statutory requirement to include provision about publication of the document in the Order. The Welsh Government have said that they will amend the Order at the earliest possible opportunity.


Okay. Shall we note that? Unless there are any other observations or comments, we'll move on to the next item, which is the Plant Health etc. (Miscellaneous Fees) (Wales) (Amendment) Regulations 2019. These are regulations that amend the Plant Health (Export Certification) (Wales) Order 2006 to provide for increases in the fees for services in respect of applications for phytosanitary certificates and related pre-export services, and to increase the maximum amount for services to which the concessionary rate for small exporters applies, from £250 to £750. Any observations there?

It's just a merit point noting that the regulations amend the fees payable to the Welsh Ministers in relation to certain plant health-related services.

Yes, I've got a comment on that one, and it's the use of the negative procedure, which, I suppose, at the time that this was made probably looked appropriate. But the fee has gone up from £250 to £750, so that's quite a leap. I suppose that, in retrospect, perhaps the affirmative procedure might have been a bit more useful for this, so that people could have had a chance to comment on it.  

Can I just clarify? With regard to that, that particular fee is in relation to a concessionary rate for small exporters. So, they would get a 50 per cent reduction on certain fees. Now, that used to be up to a value of £250, but—

They're actually getting more—

—of a reduction.

It's a good thing, but it isn't that a good thing for us to have seen, perhaps—

In terms of what we can do about that now, I think that we note that and it is what it is. So, no other comments or observations?

Okay. We'll move on to the next item, item 3.3., the Public Health (Minimum Price for Alcohol) (Minimum Unit Price) (Wales) Regulations 2019. Again, there's a report, regulations, explanatory memorandum and written statement. These regulations specify that the minimum unit price for the purposes of section 1 of the Public Health (Minimum Price for Alcohol) (Wales) Act 2018 is 50p. There's a merit point there again.

Yes. Just to repeat what the Chair has said, these regulations do set the minimum unit price of alcohol at 50p in Wales for the first time, with this new regime under the 2018 Act. There was a 12-week consultation on the preferred level of the minimum unit price and the draft regulations that was undertaken by the Welsh Government. The explanatory memorandum provides a detailed assessment of the impact of different minimum unit price levels that were considered.  

Any comments or observations? I think that this was a matter where there was quite a detailed canvas, wasn't there, during the debate in the Assembly. I think the issue was whether it would go on to the Bill or would be dealt with subsequently. So, this is the product. 

Well, I should add my well-rehearsed argument that they should have known this before they brought in primary legislation.

4. Offerynnau sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.2 neu 21.3 – trafodwyd yn flaenorol
4. Instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3 - previously considered

Okay, item 4, instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3. We move on to the Genetically Modified Organisms (Deliberate Release) (Amendment) (Wales) Regulations 2019. The report and Government response are there. These are the regulations that we considered on 21 October, and we now obviously have before us the response from the Welsh Government. In addition, the Welsh Government has now laid amendment regulations as a result of the committee's report, and we will consider those at next week's meeting, if that's okay. So, we note that. Any other comments?

There were comments. The report is on pack page 101, and the Government response is on page 104. So, the first point that the committee raised was the late implementation of an EU directive, and the report asked the Welsh Government whether there were any discussions with the European Union around this late implementation. The Welsh Government has responded that they discussed with the UK Government who is responsible for collating information regarding the transposition of EU legislation in this area.

The second point noted a cross-referencing error, which the Welsh Government will take steps to correct. The third point questioned why certain parts of the EU directive had not been reflected in the regulations. The Welsh Government is of the view that the text quoted by the committee in their report is captured by and reflected in the regulations without the need to expressly mirror the wording. And the fourth point raised some inconsistencies between the English and Welsh texts, most of which the Welsh Government have accepted and will correct. There was a specific point raised in relation to the words 'nodweddion' in Welsh, which is used to convey both traits and characteristics, which have two specific meanings in the field of genetics. The Welsh Government will consider the usage of those terms at an appropriate point in the future, with a view to differentiating between the two terms in the Welsh text. 


Yes, presumably reference to the English text can be made in order to help with interpretation in the meantime, can't it? 

That's how that works. Can I just ask what the view is, then, on technical scrutiny point 3.2—the point made about the failure to transport actual words from the directive into domestic legislation and the Government's response that what they have done is good enough? Any comments on that? I note it as a response, but I don't feel equipped to respond to that response. 

Yes, they have gone into further detail. There is more detail in the response. I can come back to you and write something further up for you on that, if that would help.

Is there anything you want clarified on that? It's a fairly detailed response, whether we—

There's no need to come back to me. I'll read it again, and I can always raise it with you separately. 

Okay. And I apologise—obviously, the report is here today, not at next week's meeting.   

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

We're on to item 5 now: the European Union (Withdrawal) Act and common frameworks. So, we have a written statement and report. The European Union (Withdrawal) Act requires the UK Government to report to Parliament periodically on matters relating to common frameworks and the use that is made by the UK Government of powers under section 12 of the Act temporarily to maintain existing EU law limits on devolved competence. These are the so-called 'freezing powers'. 

Welsh Government issued a written statement on 28 October linking to the fifth such report, which covers the period from 26 June 2019 to 25 September 2019, and the report notes that the UK Government has not sought to bring forward any section 12 regulations to date. Any comments on that? The report there is to note. 

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

Okay, we move on to the next item, which is the Rights, Equality and Citizenship Programme (Revocation) (EU Exit) Regulations 2019. Again, you have the written statement and commentary. This instrument revokes regulation 1381/2013 of the European Parliament, establishing a rights, equality and citizenship programme for the period 2014 to 2020. The regulation aims to protect and promote specific rights and freedoms of individuals under EU law, and it specifically provides funding for various projects. So, if, as a result of our departure from the European Union, the Commission ceases to provide funding to UK participants, the instrument allows the Secretary of State to provide financial assistance to make up the shortfall, and this provision will only apply to projects established under the regulations where funding had been granted. Any comments, observations, on this?  

Yes, I do have one comment. Sorry—I have lost my place. What page are we on in the Chair's brief? 

Basically, it's a position to make up any shortfalls in funding, isn't it? Are there any issues on that? 

My apologies. Yes, no comments in relation to that. 

No, okay. So, we'll just note that.

Okay, then, we move on to the Agricultural Products, Food and Drink (Amendment etc.)(EU Exit) Regulations 2019. We have there the written statement and commentary, and the paper starts at pack page 131. These regulations amend retained EU food and drink legislation, and the provision in these regulations largely amends the rules on wines and spirit drinks, and most of them concerning geographical indication schemes. The amendments generally replace the current EU GI schemes with UK GI schemes. There are also a number of EU exit amendments to EU law on food and agricultural GI schemes. Is it GI or G1?


GI—geographical indication.

Yes. So, currently, EU regulations provide for the registration and protection of geographical indicators in the UK, and these regulations provide for the domestic administration and enforcement of UK GIs. There is disagreement between the Welsh Government and the UK Government as to whether geographical indicator schemes are devolved. Now, despite this, the Welsh Government agrees with the UK Government policy in these regulations, and the Secretary of State has provided written assurances that all of the devolved administrations will have a role in the development of the new GI scheme. So, the Welsh Government does not object to the content of the regulations. 

And you'll see on page 134, consent is there from the Government position. Consent has been given subject to satisfactory conclusion of establishing the arrangements for the scheme that will deliver on this commitment on the basis that it is without prejudice to the position on legislative competence. So, making progress but sidelining for a moment a dispute over competence. Any comments or observations on that? No.

Okay, we move on to item 6.3, the Common Agricultural Policy (Market Measures, Notifications and Direct Payments) (Miscellaneous Amendments) (EU Exit) Regulations 2019. The instrument amends provisions of the European Union legislation relating to the EU common agricultural policy to ensure that the provisions remain operable after the UK's withdrawal from the EU. The instrument amends four European directly applicable instruments concerning producer groups, producer organisations and notifications in the fruit and vegetables and processed fruit and vegetable sectors. Nothing on that? Any comments or observations?

If not, we then move on to item 6.4, the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2019. A written statement and commentary are within the papers, and these regulations make corrections to ensure that the regulations of the European Parliament on persistent organic pollutants function once the UK leaves the European Union, and, as regards devolved policy in Wales, the regulations contain provisions that enable the Welsh Ministers to exercise functions without encumbrance. The regulations also contain provisions for Welsh Ministers to provide consent for the Secretary of State to exercise functions in relation to Wales. Any issues there?

Yes. Just that in relation to UK Ministers having power—. Sorry, the regulations create functions for UK Ministers to exercise powers in devolved areas with the Welsh Ministers' consent. The Assembly doesn't have power to modify or remove those functions so far as they're exercisable by UK Ministers without consulting UK Government. 

Okay, we'll note that. Any comments or observations on that?

If not, then we move on to the Creative Europe Programme and Europe for Citizens Programme (Revocation) (EU Exit) Regulations 2019. These regulations revoke EU legislation that would form part of the retained EU law on exit day relating to the Creative Europe programme and Europe for Citizens programme, and the written statement explains that the regulations were made without the knowledge or the consent of the Welsh Government, and this was a breach of the inter-governmental agreement by the UK Government that occurred in March of this year. There are obviously some comments there. 

Yes. So, the written statement does provide a transparent explanation as to how the regulations were made without the knowledge or the consent of the Welsh Government. However, it appears that the Welsh Government became aware of the breach between March and July 2019, and it's not clear why the Assembly wasn't notified of the breach until 29 October 2019.


Okay. That is set out within the papers there. I think all we can really do there is to seek clarification as to why that was the case. Any other comments or observations on that?

There was one more comment, that, in the event the UK leaves the EU without a deal, the EU Commission will no longer be able to provide financial funding to the UK participants of these programmes. In relation to funding for Welsh participants, the UK Government would provide such funding under the terms of an agency arrangement entered into by the Welsh Government and the UK Government under section 83(1) of the Government of Wales Act 2006.

On the same terms or was it through Barnettising, then?

Is it what, sorry?

Would it be on the same terms as they would have had had they still been in the programme?

The regulations will only continue funding for participants in England and Northern Ireland. The regulations don't extend to Wales. So, the agency agreement is being used to fill the gap.

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


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


that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

In which case, we then move on to item 7. So, in accordance with Standing Order 17.42, I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree? Okay. We'll move into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:01.

Motion agreed.

The public part of the meeting ended at 15:01.