Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad - Y Bumed Senedd

Legislation, Justice and Constitution Committee - Fifth Senedd


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

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

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

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 14:30. 

The meeting began at 14:30. 

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

Okay, this is a meeting of the Legislation, Justice and Constitution Committee. We move straight on to item 1: we have apologies from Suzy Davies today. The usual housekeeping rules apply. Are there any declarations of interest? Because, if there aren't any, we'll move straight on to item 2. 

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

We move on to the Local Authorities (Capital Finance and Accounting) (Wales) (Amendment) Regulations 2020. And, again, you have before you the report, the regulations and the explanatory memorandum. These regulations amend the Local Authorities (Capital Finance and Accounting) (Wales) Regulations 2003, and they insert a new regulation into the 2003 regulations to provide that a local authority must not charge an amount to its revenue account to reflect any fluctuation in the fair value of a local authority’s investment in a pooled investment fund. Instead, such amounts must be recorded in a separate account established and used solely for that purpose. There has been, I think, one merits point identified. 

There are two merits points.  

The first point, on pack page 1, notes an incorrect cross-reference in the footnote. While footnotes are not actually part of the legislation, and the error may appear to be quite minor in this case, it's worth noting that footnotes like these help readers track how legislation has been amended over the years. If you want to find out what the law says, and you don't have access to a commercial provider like LexisNexis or Westlaw UK, then these footnotes are really helpful for you to see how legislation has been amended over the years so that you can find out what the law actually says. So, when a footnote tells you legislation has been amended by x but, in fact, it's been amended by y, it's going to be confusing.

The Welsh Government response was received this morning, so Members should have hard copies there. The error is accepted, though the Welsh Government calls it a minor error, but, for the reasons I just gave, I think it's an important error as well.  

I think we could just respond to that. I don't think it—. It is minor in one sense, but it is important, and I think making the point that those footnotes must be accurate—they are about the issue of access to legislation, understanding it, and we wouldn't want it to slip into a way of thinking that these things aren't really that important when, in actual fact, they are very, very relevant. Is that okay? We'll—.

Yes, sorry, the second point, on pack page 2, notes an error in the explanatory memorandum. Again, explanatory memorandums are not part of legislation, but they do help everyone understand the law. And, in this case, the explanatory memorandum states the wrong commencement date. The Welsh Government accepts the point, but does not propose to correct the explanatory memorandum, as the regulations themselves are correct. And, yes, the regulations are correct but, in this case, the explanatory memorandum will remain incorrect regarding the commencement date. 

Yes, I don't know what you'll think—these are my views. I think that approach is wrong. Mistakes do get made, errors do arise, but we've got to recognise that they are important when they occur and where you have differentials and so on. We could just incorporate that into the letter.  

Yes. Often, of course, a lawyer will look at the explanatory memorandum to get an idea of what's in the legislation, and, if the EM is wrong, then people might be misled into thinking that what they're looking for lies elsewhere. 

No, that's right, and it's about ensuring good and robust practice, isn't it? So, we will take that up and perhaps a robust letter on those points. Thank you for that. No other points on that? No.

We'll move on to the National Park Authorities (Wales) (Amendment) Order 2020. This is an Order that makes amendments to the National Park Authorities (Wales) Order 1995/2803 to reduce the membership of Brecon Beacons National Park Authority from 24 to 18, and the Order comes into force on 1 April 2020.

Again, I think there are merits points identified with regard to regulatory impact assessments. 

Yes, there are three merits points. The first, starting on pack page 11, notes a relatively minor error in the explanatory note. So, this isn't the explanatory memorandum, but it's in the explanatory note included at the start of every piece of statutory instrument made by the Welsh Ministers. The Welsh Government response on pack page 12 accepts the error, and will correct this by correction slip.

The second point on pack page 11 notes that Welsh Ministers do have the power to reduce the membership of national park authorities, but nothing was said here about whether members had received the proper notice periods before their memberships were removed. The Welsh Government response, again on pack page 12, confirms that they would have been recent resignations and, therefore, no issues with regard to notice periods for terminating memberships arose in this case.


Okay. Can you just reiterate the point again on the regulatory impact assessments with regard to the Welsh Ministers' code on that, and clarify that? 

Yes. The third point, again on pack page 11, asks why no regulatory impact assessment was carried out. The Welsh Ministers' code on regulatory impact assessments sets out certain circumstances where no impact assessment is required, but it wasn't clear in this case which of those circumstances applied. The Welsh Government response on pack page 12 accepts that a regulatory impact assessment should have been carried out, and will now be carried out.

It's up to Members whether they wish to respond further to that, but it seems that carrying out an impact assessment is something that really needs to be done before the event and not after. And the code itself says that impact assessments apply to proposed legislation, and that the impact must be considered when the options for development of the policy are being considered.

I suggest we just write and draw attention to that, and just reiterate that particular point, as a matter, again, of good practice, isn't it. Okay, if there's nothing else on that, thank you for that.

We move on to the Common Agricultural Policy (Direct Payments to Farmers) (Miscellaneous Amendments) (Wales) Regulations 2020. Again, you have all the necessary documentation in front of you, including a letter from the Minister for the Environment, Energy and Rural Affairs to the Llywydd, which is dated 31 January 2020. These regulations are made under the Direct Payments to Farmers (Legislative Continuity) Act 2020, which received Royal Assent on 30 January 2020. They are made in order to address failures of retained EU law governing the common agricultural policy direct payment schemes to operate effectively, and deficiencies in that retained EU law. And this is the one, of course, that is not being deferred to the end of the year. Any further comments on that?

Yes, there's one reporting point on pack page 22, which notes an error in the explanatory memorandum regarding the date of direct payments to farmers. They are to continue with the 2020 Act that received Royal Assent. The Welsh Government response on the same page, accepts the error, and an updated explanatory memorandum has already been made.

And again, it's just worth noting that EU exit-related point—Members may remember that all EU exit-related subordinate legislation, which was due to come into force on exit day, has generally been deferred, unless something is carved out of that deferral. Well, here is another carve-out from that mass deferral. Legislation around direct payments to farmers needed to come into force on exit day—that is 31 January—because a direct payment scheme is not continuing as normal under the withdrawal agreement, therefore a direct payment scheme needed to be operational as part of domestic law from exit day onwards.

Okay. Shall we just note that? If there are no comments on that, then we move on to item 3.

3. 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'r DU yn gadael yr UE
3. 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 move on to the negative resolution instruments. The Food for Specific Groups (Information and Compositional Requirements) (Wales) (Amendment) Regulations 2020. These regulations amend the Food for Specific Groups (Information and Compositional Requirements) (Wales) Regulations 2016. The amendments provide for the enforcement in domestic law of EU Commission Delegated Regulation 2016/128 in relation to the specific compositional and information requirements for food for special medical purposes developed to satisfy the nutritional needs of infants. You've noted a number of EU implications from this.

Yes. Only to note that these regulations are in EU law territory, so they will form part of retained EU law at the end of the transition period on 31 December 2020.

Okay. Any comments? If not, we move on to the next item, which is the Infant Formula and Follow-on Formula (Wales) Regulations 2020. Again, you have all the paperwork there. These are regulations that make provision for the enforcement in Wales of the specific requirement to set out in Commission Delegated Regulation (EU) 2016/127 on infant formula and follow-on formula. The delegated regulation supplements the overarching EU regulation 609/2013 on food and specific groups, which sets out general rules governing the composition and labelling of food intended for infants and young children amongst other matters. I presume the same EU point—


The same point, yes.

The same EU point emerges there. Any comments or observations? If not, we then move on.

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

To the Official Controls (Animals, Feed and Food, Plant Health Fees etc.) (Wales) Regulations 2020. You have the report and the Welsh Government response. Now, you'll remember that we considered these regulations at our meeting on 10 February and we laid our report the next day before the Assembly on 11 February. We've now had a response from Government, which I think accepts nearly all the points we raised, but there is an issue in translation that you've identified. 

Yes. As I've said, the Government accepts most of the points there. I think it's worth noting that the Government says that it will take steps to make corrections and there's no hint as to what those steps might be or when they might be taken. Will they be amending legislation? Will there be correcting slips? Will they be as soon as possible? What's the next available opportunity? We don't know.

I'd also like to draw attention to the seventh reporting point, which noted an inconsistency between the Welsh and the English. The original reporting point is set out halfway down pack page 76, so that's reporting point 7. In brief, the English text refers to, 'Specifying the breach of certain requirements', and the Welsh text refers to,

'Pennu'r modd y torrwyd y gofynion'.

So, one seems to say, 'Specify the breach of the requirements', and the other seems to say, 'Specify the way the requirement was breached'. The Welsh Government response is at the bottom of page 78. It maintains that the translation is accurate and that a more literal translation would be unnatural and inelegant in Welsh.

Well, the first thing is in respect of steps. We can certainly seek clarification because I think they should specify the steps they do intend to take rather than leave it broadly open. But in terms of the other point, in terms of the inconsistency in translation, are there any views on that?

Well, the linguistic point is as made. There's more specificity in the Welsh rather than the English. It depends which one you want to go for then, and presumably people at the bar will spend hours discussing this in a court case, if it came to that.

If there was absolutely nothing else happening. [Laughter.]

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

All right, then. We'll move on, then, to item 5. We have the letter from the First Minister with regard to Wales's changing constitution. You've seen the letter there, 12 February and 23 January, a letter to the First Minister. So, just to note that, unless there are any issues anyone wants to raise. We can raise them in private session, but it seems to me that they're there on the record.

Item 5.2 is a letter from the Minister for Finance and Trefnydd to the Llywydd: withdrawal of statutory instruments. Again, one to note unless there are any particular issues to note. No.

Item 5.3 is a letter from Lord Kinnoull, Chair of the House of Lords European Union Committee, engagement with devolved legislatures. I think we should respond to that. We should, of course, confirm that we do want to continue our high-quality, I think, engagement with them, certainly through the inter-parliamentary forum. I thought the points they raised that we have a particular interest in—some of the points they raised with regard to the Northern Ireland protocol, I would have thought. But any other comments beyond that? Otherwise, we'll put a response together to Lord Kinnoull to that effect.

Item 5.4 is a letter from the Minister for Finance and Trefnydd: UK-wide statutory instrument—The Financing, Management and Monitoring of Direct Payments (Amendment) Regulations 2020. This, again, is another letter to be noted. Any comments on that? If not, we move on to the next one. We have the letter from the Minister for Finance and Trefnydd: UK-wide statutory instrument—The Rules for Direct Payments to Farmers (Amendment) Regulations 2020. Now, there are some issues there that have been identified. I think. Sarah, you had some comments there on that. 


It's one small point. These regulations are relevant to this ongoing issue about the need for a section 109 Order under the Government of Wales Act 2006, because the drafting of the provisions mean that it may engage the consent requirements in schedule 7B of the Government of Wales Act 2006. I'd just draw your attention to the letter that we've already considered under item 5.1 from the First Minister, who has provided an update on this section 109 Order. The First Minister says that he will provide an update in due course. 

6. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
6. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of 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.

I think there are just one or two matters to consider in private session. So, in accordance Standing Order 17.42(vi), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do the Members agree? 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:46.

Motion agreed.

The public part of the meeting ended at 14:46.