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
Dai Lloyd
Mick Antoniw Cadeirydd y Pwyllgor
Committee Chair
Suzy Davies

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Sarah Sargent Ail Glerc
Second Clerk

Cyfarfu'r pwyllgor drwy gynhadledd fideo.

Dechreuodd y cyfarfod am 09:30.

The committee met by video-conference.

The meeting began at 09:30. 

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

Welcome, Members, to the first virtual meeting of the Legislation, Justice and Constitution Committee. In accordance with Standing Order 34.19, I've determined that the public are excluded from the committee's meeting in order to protect public health. In accordance with Standing Order 34.21, notice of this decision was included in the agenda for this meeting, published last Friday. This meeting is, however, being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual. Aside from the procedural adaptation relating to conducting proceedings remotely, all other Standing Order requirements for committees remain in place. 

There are no apologies and we have full committee attendance. There are a few housekeeping arrangements. Can Members ensure all mobile devices are switched to silent mode? The National Assembly for Wales operates through the medium of both the Welsh and English languages. Interpretation is available during this morning's meeting. Members are reminded that the sound operator is controlling the microphones and, as such, there's no need to mute or unmute during the course of the meeting. Are there any declarations of interest? I see shaking of heads, so there are no declarations of interest.

2. Offerynnau sy'n codi materion i gyflwyno adroddiad arnynt 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 straight on to item 2: instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3. So, we move straight on to the Single Use Carrier Bags Charge (Wales) (Amendment) Regulations 2020. Members have before them the report, the regulations, the explanatory memorandum and the letter from the Minister for Finance and Trefnydd of 8 April 2020. The Single Use Carrier Bags Charge (Wales) Regulations 2010 require sellers of goods who supply single-use carrier bags for the purpose of allowing those goods to be carried away or delivered to make a charge for each such bag supplied.

These regulations amend the 2010 regulations in order to exempt bags used solely for the delivery or collection of groceries from the charge. The exemption is to be temporary, for a period of three months from the date these regulations come into force. I understand Assembly lawyers have identified merit points for reporting, which notes that this instrument was laid in breach of the 21-day rule, which I think we will understand. Are there any comments from the lawyers?

Diolch. Yes, there's one merits point on pack page 1, noting the breach of the 21-day rule and the public health reasons given by the Welsh Government for that breach. Retailers like supermarkets have stopped the bagless option for delivery services and collection services. Now bags are always used, with bags left, for example, on customer doorsteps in order to minimise the risk of spread of the coronavirus. Retailers were concerned that this amounted to forcing customers to buy carrier bags where they would not normally have done so. So, retailers have been covering the charge of the carrier bag themselves, which could cause a legal risk because retailers are supposed to charge customers for carrier bags. So, the Welsh Government, in discussion with the other Governments in the United Kingdom and the retail sector, have addressed this issue by introducing this temporary exemption to the single-use carrier bag charge.

Thank you for that full explanation. Suzy Davies, do you have any comments? 

If so, then, we move on to the next item, which is the Health Protection (Coronavirus Restrictions) (Wales) (Amendment) Regulations 2020, and, again, you have the full set of documentation in front of you, consisting of a report, a copy of the regulations, the explanatory memorandum, and a letter from the First Minister dated 3 April 2020. These regulations amend the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020. The new provision inserted by these regulations relate to general restrictions on places of work and guidance issued by the Welsh Ministers in maintaining a 2m gap between persons. These regulations, along with the health protection regulations 2020, are scheduled to be debated in Plenary tomorrow. There, again, have been identified some technical points and merits points for reporting, so if I can go over to the lawyers again.


Yes, there are two technical points and three merits points, starting on pack page 13. The first technical point notes that some text appears to be missing from the preamble to the English version of the regulations, but, when I looked at the published version of the regulations this morning, that error has already been resolved. The second technical point raises another question with the preamble. The preamble lists the powers the Welsh Ministers are using to make these regulations. There's a question as to whether the Welsh Ministers should have cited section 45C or D of the enabling Act in the preamble, as they appear to be doing things that come under that specific enabling power. The Welsh Government has been asked to respond to that point.

The first merits point notes that the explanatory memorandum correctly refers to interference with articles 8 and 11 of the European convention on human rights. Those articles relate to respect for private and family life, article 8, and freedom of assembly and association, article 11. But we think that article 9 is also relevant. Article 9 protects freedom of thought, conscience and religion, and the regulations address issues such as social distancing in places of worship and the ability to leave the home in order to attend a funeral. Therefore, we believe that article 9 of the European convention of human rights is relevant, as is the corresponding right that appears in the charter of fundamental rights of the European Union. Now, none of that is to say there is a breach of human rights, of course. Interference with such rights is, in the circumstances, likely to be justified. The reporting point simply notes that article 9, freedom of thought, conscience and religion, appears to be relevant.

The second merits point notes the missing brackets in the explanatory notes, and the third and final merits points notes that there are differences between the approach in Wales and the approach in England. The draft report suggests asking the Welsh Government for some reasoning around those differences, if Members feel that that is appropriate to ask.

Finally, just to say that the main regulations were further amended on 25 April to respond to changing circumstances, so there will be another set of amending regulations for the committee to consider at its next meeting, and there's further information about this under agenda item 6.4.

Okay, thank you, Gareth. I invite Suzy—do you have any comments to make?

Not particularly on this. The Welsh Government can make its arrangements differently from those of UK Government, but we may want to explore why there are differences if they're material.

Na, mae'n iawn—jest dilyn yr adroddiad.

No, I will just follow the report.

No, none. As far as I can see, the regulations in terms of how they differ are on policy issues rather than constitutional or legal issues, and that's a matter, of course, for Government and scrutiny elsewhere.

Okay. I don't propose taking any action on this. We've noted the various comments. We've noted the various points about the references to the various human rights articles and so on, and, of course, they can be overridden by social justification, et cetera, and we understand the circumstances within which these regulations are brought. Are there any further comments that anyone wants to raise? If not, we will note those various points. 

3. Is-ddeddfwriaeth nad yw’n cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.7
3. Subordinate legislation that raises no reporting issues under Standing Order 21.7

Then we will move on to the next item that we have to deal with: subordinate legislation that raises no reporting issues under Standing Order 21.7. We are on to the Abortion Act 1967—Approval of a Class of Place for Treatment for the Termination of Pregnancy (Wales) 2020. Now, this approval is made by the Welsh Ministers under powers given to them by the Abortion Act 1967. The approval provides that the home of a registered medical practitioner is approved as a class of place for treatment for the termination of pregnancy for the purposes only of prescribing the medicines known as mifepristone and misoprostol. The home of a pregnant woman who is undergoing treatment for the purposes of termination of her pregnancy is approved as a class of place where the treatment for termination of pregnancy may be carried out. The approval will reduce the need for social contact and thus reduce unnecessary risk of exposure to coronavirus.

Now, I understand no points have been raised by the lawyers. Is that correct? I see Gareth is nodding his head, so let's go to Suzy Davies. Any comments?


Just to note that there's been a fair bit of e-mail traffic on this to Assembly Members, I would say. Maybe not a matter for this committee, but perhaps worth registering.

Yes, I mean, obviously the policy matters are for other committees; the constitutional and legislative aspects are for us to consider. Dai Lloyd, any comments?

Yr un peth â Suzy—dwi hefyd wedi derbyn nifer helaeth o e-byst ynglŷn â'r mater hyn, ac, fel dŷch chi wedi crybwyll, mater polisi ydy hwn ac i bwyllgorau eraill.

Like Suzy, I've received a number of e-mails on these issues. As you mentioned, this is a policy issue and therefore for other committees to deal with.

Well, I'd agree, and echo what my colleagues have just said.

Okay, so we note those points and we note the report as I've given it today.

4. Is-ddeddfwriaeth sy'n codi materion i gyflwyno adroddiad arnynt i'r Cynulliad o dan Reol Sefydlog 21.7
4. Subordinate legislation that raises issues to be reported to the Assembly under Standing Order 21.7

Moving on to the next item, which is the declaration of threat to public health in Wales due to coronavirus. There's a report and the declaration. You have the copies in front of you. The Welsh Ministers have made this declaration under Schedule 22 to the Coronavirus Act of 2020. The effect of the declaration is to enable the Welsh Ministers to use the powers conferred on them by the Coronavirus Act of 2020. Part 4 of Schedule 22 gives powers to the Welsh Ministers to make directions relating to the prohibition or restriction of events or gatherings and to the closure of premises or imposition of restrictions on persons entering or remaining inside premises. The directions may be made or varied from the time this declaration is made until such time as the declaration is revoked.

I refer first of all to the lawyers for any comments.

The draft report notes the importance of this declaration because it triggers the availability of powers that can be used by the Welsh Ministers under the Coronavirus Act 2020. Further, those powers can be exercised by merely giving a written direction. They do not have to be formal regulations like the regulations we've seen already today.

The draft report notes that directions are not always easy to find, and that failure to comply with such directions can be a criminal offence. So, it's vital that people know about and understand such directions, and this is why the reporting point is labelled 'accessibility of the law'. However, I will say that since preparing the draft report, I've found a coronavirus legislation page on the Welsh Government website, which helpfully lists all coronavirus subordinate legislation made by the Welsh Ministers, including this declaration. As I understand it, the power to give directions under the Coronavirus Act has not yet been used, but, since this declaration was made, the power has been there for the Welsh Ministers to use at any time.

We know that this has been a matter of considerable public debate. It's extremely topical in the current climate. The powers are there for the Welsh Ministers to use, although, as has been said, they've not been used yet. I'll go to Suzy Davies for any comments.

Nothing from me. Just to acknowledge, though, Gareth, it is on the website.

Dim ond un ychwanegol—wrth gwrs, mater o bolisi ydy hwn ac felly mater i bwyllgorau eraill, ond hefyd, wrth gwrs, mae yna bwerau mawr y gellid eu cael a'u gweithredu gan Lywodraeth fel hyn, ac felly dwi'n credu bod gan y pwyllgor yma hefyd rôl i sicrhau yn y broses graffu fod y Llywodraeth yn ymddwyn fel y buasem ni'n dymuno iddyn nhw fod yn ymddwyn.

Just to add that, of course, this is a policy issue and so it's a matter for other committees to deal with. But there are major powers that could be implemented by Government here, so I do think that this committee does have a role in ensuring, through the scrutiny process, that the Government is conducting itself as we would wish them to do in this circumstance.  

Yes, I think that's right. Although these are policy matters, inevitably over time there may well be a role for this committee to look at how those policies are implemented from a legal and constitutional perspective. I don't think that time has come yet, but it may do. 


Yes. Members will probably recall from the last Plenary session that we were, I think, able to attend that I specifically sought an undertaking from Welsh Government that, where powers were used, there would be a statement issued by Welsh Government explaining how and why those powers were being used and that that would then be available for scrutiny. This is a very substantial power. We understand why the power is there, but of course we do need to ensure that any exercise of this and other significant powers is properly recorded and properly scrutinised to ensure that they comply with the undertakings that have been given.

Okay, thank you for all those comments. In which case, we then move on to the Coronavirus Act 2020 (Commencement No. 1) (Wales) Regulations 2020. Again, you will have seen the report and the regulations. These commencement regulations bring into force certain provisions of the Coronavirus Act 2020 in relation to the mental health tribunal for Wales and to local authorities' obligations under the Social Services and Well-being (Wales) Act 2014. Are there any points for the lawyers to report, Gareth? 

Yes. The draft report notes the importance of these commencement regulations as they bring into force significant provisions in the Coronavirus Act 2020 relating to the mental health review tribunal for Wales and the social care functions of local authorities in Wales. The draft report also points out that the Welsh Government is expected to keep under close review the need for these changes to remain in force and to report to the Assembly further changes. 

The draft report suggests that there is no need for a Welsh Government response to the points raised in the report, if Members are content with that approach. Finally, the draft report does not comment on the impact that these provisions are actually having on mental health or social care services in Wales, as that does seem more of a policy issue. 

Okay, thank you for that, Gareth. Suzy Davies, any observations?

Only to just reinforce the point that we've made as a committee over many years that we shouldn't just accept no procedure commencement Orders as minor matters or technical matters, because from time to time, they do throw up important issues like this.

[Anghlywadwy.]—efo Suzy ac, ar ben hynny hefyd, grybwyll, yn y materion yma ynglŷn ag iechyd meddwl a gwasanaethau gofal, wrth gwrs, materion polisi ydy'r rheini ond, wrth gwrs, mae yna bryder allan yn fanna—a dwi wedi derbyn sawl sylw—gyda phobl yn poeni ynglŷn â cholli'r grymoedd sydd yn y ddeddfwriaeth yma eisoes. Hynny yw, colli hawliau. Mae pawb yn deall ein bod ni mewn stad o argyfwng, ond maen nhw hefyd yn pryderu, yn enwedig ynglŷn â'r holl faes iechyd meddwl ac, yn benodol, yn y maes gofal. 

I would agree with Suzy and, in addition to that, I would also mention that, on issues around mental health and care services, of course, those are policy issues, but there is concern out there—and I've received a number of comments from people who are concerned—about losing the powers already in this legislation, the loss of rights. Everyone understands that we're in a state of crisis, but they are also concerned about the whole area of mental health and in particular in the field of care. 

I've nothing to add to what's already been said and the points that have been made. 

Okay. We will, of course, be wanting to scrutinise and to look at the exercise of all these extraordinary powers that exist, again, for the reasons that we understand but, again, we will need to review the basis on which they are exercised, if at all, and the reasoning behind that. 

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

We move on, then, to the next item, which is the European Union (Withdrawal) Act and common frameworks. Again, you have a written statement in front of you and a report. The European Union (Withdrawal) Act 2018—we haven't mentioned that for a while—requires the UK Government to report to the UK Parliament periodically on matters relating to common frameworks and the use that is made of powers under section 12 of that Act temporarily to maintain existing EU law limits on devolved competence—the so-called freezing powers. 

The Welsh Government issued a written statement on 23 March 2020, linking to the sixth such report, which covers the period from 26 September 2019 to 25 December 2019. The report notes that the UK Government has not sought to bring forward any section 12 regulations to date and that it is a result of the continuing joint progress and collaboration on common frameworks. Any comments, Suzy Davies? 


That's a positive observation, obviously, but I suppose we should just be cautious that, as we're approaching the end of the year, we are still given full information by Welsh Government on any matters relating to this—to Brexit. 

Ie, buaswn i'n cytuno efo beth mae Suzy wedi'i ddweud achos, wrth gwrs, mae nifer ohonom ni'n pryderu ynglŷn â'r pwerau yma i rewi ein pwerau ni yn y Senedd. Ac ie, dwi'n falch o weld nad ydyn nhw ddim wedi cael eu defnyddio eto ond, wrth gwrs, dŷn ni'n gynnar yn y broses, yn amlwg, fel rydym yn gweld. Ond, mae'r amheuaeth ac mae'r pryder yn dal i aros; o rewi ein pwerau ni, o bosibl byddwn ni yn colli pwerau o'r Senedd hefyd, ond mater polisi yw hynny efallai yn fwy na mater i'r pwyllgor yma.  

I would agree with Suzy's comments because, of course, many of us are concerned about these freezing powers and their impact on our Senedd. I'm pleased to see that they haven't yet been used but, of course, we're at an early stage in the process. But, the concern remains in terms of freezing our powers; we may then lose powers from the Senedd, but that is a policy issue more than a matter for this committee, perhaps. 

Bearing in mind, of course, that any powers that are frozen are frozen across the UK; that was part of the agreement with the UK Government. But again, without getting into a debate about that, that is a policy issue although, of course, there may well again be constitutional and legal issues that this committee might want to examine if, for example, there was a dispute between the Welsh and the UK Governments in terms of the interpretation or implementation of that agreement. 

Yes, I'm fairly certain that there will be issues that are going to emerge; negotiations are still under way. Obviously, there's not a lot of information coming through, but I think it will be a matter that will come before us at some stage in the not too distant future. I know it's also work that another committee is doing, so we will, where appropriate, liaise with that committee in terms of any review and scrutiny of any common areas. Okay, so we note that. 

6. Papurau i’w nodi
6. Papers to note

We have a number of papers to note. Item 6.1: letters from the  Minister for Housing and Local Government on the Local Government and Elections (Wales) Bill. So, we have a letter from the Minister dated 23 March 2020. We have a letter from the Minister to the Chair of the Equality, Local Government and Communities Committee dated 23 March 2020, and a letter from the Minister to the Chair of the Finance Committee, 23 March 2020. I think we're really just invited to note that particular correspondence, which all Members have seen. Is that okay? Are there any comments or observations on that? If not, we then move on to the letter from the Llywydd with regard to the functions of the Legislation, Justice and Constitution Committee, and you can see those letters of 9 April 2020 and 2 April 2020. And again, it is for us to note the specific arrangements being made for this committee to be able to meet virtually in terms of the functions we have to carry out. So, if there are no comments on those, we just note those. 

And we have a letter from the Minister for International Relations and the Welsh Language on the ministerial forum for trade, and we have a letter from the Minister of 21 April 2020. This letter really just notes the Minister's attendance at a meeting of the ministerial forum for trade on 22 April 2020, and this letter, of course, has come to us in accordance with the inter-institutional relations agreement. Right, we note those.

We have another letter from the First Minister to the Llywydd on the Health Protection (Coronavirus Restrictions) (Wales) (Amendment) (No. 2) Regulations 2020. That letter from the First Minister is dated 24 April 2020. This is a letter that just notes those regulations having been made, and those regulations we will consider at a future meeting. So, if that's in order, if there are no comments on that, it brings us to the end of those items of business.

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.

So, I'd now like to ask the committee to exclude the public from the meeting for the remainder of the meeting in accordance with Standing Order 17.42(vi). 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 the Members agree? 

All agreed? In which case, we now move into private session. 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 09:54.

Motion agreed.

The public part of the meeting ended at 09:54.