Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad - Y Bumed Senedd
Legislation, Justice and Constitution Committee - Fifth Senedd05/10/2020
Aelodau'r Pwyllgor a oedd yn bresennol
Committee Members in Attendance
|Carwyn Jones MS|
|Dai Lloyd MS|
|Mick Antoniw MS||Cadeirydd y Pwyllgor|
|Suzy Davies MS||Yn dirprwyo ar ran David Melding|
|Substitute for David Melding|
Y rhai eraill a oedd yn bresennol
Others in Attendance
|Ceri Planchant||Cyfreithiwr, y Gwasanaethau Cyfreithiol, Llywodraeth Cymru|
|Lawyer, Legal Services Department, Welsh Government|
|Georgina Haarhoff||Dirprwy Gyfarwyddwr, Cwrwiclwm ac Asesu, Llywodraeth Cymru|
|Deputy Director, Curriculum and Assessment, Welsh Government|
|Kirsty Williams MS||Y Gweinidog Addysg|
|Minister for Education|
Swyddogion y Senedd a oedd yn bresennol
Senedd Officials in Attendance
|P Gareth Williams||Clerc|
|Rhiannon Lewis||Cynghorydd Cyfreithiol|
|Sarah Sargent||Ail Glerc|
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.
Cyfarfu'r pwyllgor drwy gynhadledd fideo.
Dechreuodd y cyfarfod am 09:30.
The committee met by video-conference.
The meeting began at 09:30.
I welcome Members to this 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. This meeting is being broadcast live on Senedd.tv and the Record of Proceedings will be published in the usual way.
Aside from the procedural adaptation relating to conducting proceedings remotely, all other Standing Order requirements remain in place. Apologies have been received from David Melding and we welcome Suzy Davies attending as substitute. The usual housekeeping rules apply. Are there any declarations of interest? I don't see any declarations of interest.
We move straight on to item 2, which is an evidence session on the Curriculum and Assessment (Wales) Bill, which was introduced on 6 July of this year. I welcome Kirsty Williams, Member of the Senedd and Minister for Education, together with Georgina Haarhoff, deputy director, curriculum and assessment in the Welsh Government, and Ceri Planchant, lawyer, the legal services of the Welsh Government. Can I welcome you to the committee? Is there anything that you wanted to say by way of opening, Minister?
No, I'm content to go straight to questions, Chair.
Okay, thank you very much, and thank you very much for attending today. Obviously, one of the areas we're focusing on is the issue of the Senedd's competence, and there are obviously a number of issues that we will want to address, particularly with regard to the Bill's provisions for religion, values and ethics, RVE, and relationships and sexuality education, RSE, complying with the various articles of the European Convention on Human Rights. So, I wonder if I can just perhaps put two matters to you just by way of opening, and those are: are you confident that the provisions of this Bill do fall within the Senedd's competence, and have you had any specific discussions on this Bill with the UK Government?
Thank you, Chair and thank you, colleagues, for your interest in this work. With regard to competence, I am satisfied that the Bill is within the competence of the Senedd and this was confirmed to me in a letter that was sent to the First Minister by the Llywydd, confirming her view and her satisfaction that the Bill is within competence.
With regard to discussions with the United Kingdom Government in relation to the Bill, none of the provisions in the Bill require Minister of the Crown consent and, due to that, we haven't had detailed discussions with the UK Government. However, we have been in touch with them to make them aware of the existence of the legislation—but no substantive discussions with them.
Thank you, Minister. In your letter to us, you say that,
'It is important to note that I do not assume that any Denominational RVE will not be pluralistic. In conversations with my officials the Catholic Education Services have been very clear that they consider the RVE provided in Catholic schools is pluralistic.'
Obviously in terms of this Bill, this has raised a degree of controversy and a number of representations, particularly in respect of the religious schools, and, with regard to the need to design the RVE syllabus, I wonder if you could perhaps take us through that—how that has developed and any particular issues that you see arising from that, particularly with its application. Because it seems to me that there are a number of issues—there's the design but then there's also the teaching and delivery of this.
Okay, thank you for that. I think the first thing to remember is how we got to this stage of bringing forward the legislation. The roots of this lie in the work undertaken by a previous Welsh Government, by Professor Graham Donaldson, when he was asked to review the current Welsh curriculum by a previous education Minister. In his report, 'Successful Futures', he recommended that religious education be a compulsory part of the Welsh curriculum going forward. And I agree that that is an important part of a child's education, but, obviously, we need to ensure that that part of the curriculum, which is important in delivering the purposes set out for the curriculum, is pluralistic in nature. And whilst, quite correctly, as I said in my letter to you, Chair, we don't assume, nor do we have evidence, that religious education that is currently being delivered in many of our faith schools is not pluralistic, we have to take steps in the legislation to ensure that it is.
So, as Members will be aware, there are a number of categories of schools, and the way in which we would expect RVE to be treated in those schools is slightly different. So, if you were in a foundation or voluntary controlled school, then the curriculum should be based on the agreed syllabus, and also supported by any Welsh Government guidance in this regard—for instance, the area of learning and experience for humanities and the 'what matters' statements within the humanities AoLE. With schools that are voluntary aided, then, obviously, the default position would again be the agreed syllabus. But the assumption in the Bill—. Indeed, the Bill makes provision for denominational education to be delivered, but to ensure that it is compliant with human rights legislation, because there is no right to withdraw, it needs to be pluralistic in nature. And, therefore, whilst it is expressly stated in the Bill that denominational RVE is the default, if a parent requested the agreed syllabus, then that also would need to be delivered.
Well, thank you for that, Minister. Because of the reference to the human rights issue, the Human Rights Act 1998 and the European convention, the articles in the convention we're concerned with are articles 2, which is the right to education, and article 9, freedom of thought, and article 14, protection from discrimination. Now, you've referred to, really, what I think are some of the safeguards that exist. One of the areas that might be of concern is that it's one thing to design a system with safeguards built into it, but what safeguards exist in respect of the actual delivery that is at the coalface, so to speak, the delivery at the teaching level? How will that be guaranteed?
So, with regard to how we have sought to create those guarantees within the Bill, first of all is the name change from religious education to religion, values and ethics. The purpose of the change in the name is to reflect the expanded scope of this aspect of the curriculum and to ensure that it is clear, from the legislation itself, that the new subject should include non-religious views. That was done by linking the Bill provision to the term 'philosophical convictions', which is found in article 2, protocol 1, and that was reflected in section 62 of the Bill. In other words, the RVE provided, pursuant to the Bill, has to be compatible with article 2, protocol 1, in that it must include teaching on philosophical convictions, the definition of which is outlined in article 2, protocol 1.
Secondly, we're changing the constitution to the agreed syllabus conferences and to the standing advisory councils on religious education. So, the Government has chosen to retain the agreed syllabus conferences, but the Bill amends the constitution so that it requires a local authority to include, in its ask, groups of persons to represent such non-religious philosophical convictions as, in the opinion of the authority, ought to be represented. So, this reflects current guidance that was issued by me to local authorities and agreed syllabus conferences previously to expand their membership.
The Bill also includes powers for Welsh Ministers to publish statutory guidance to local authorities and to the agreed syllabus conference, which they must have regard to in respect of the adoption of an agreed syllabus. There's also a power in section 66 to issue statutory guidance to a range of persons. So, there are a number of steps within the Bill, and clearly—. So, that's the legislative context in which practitioners will be working, and then, of course, we will have the usual checks and balances in terms of ensuring that schools are delivering a curriculum that is in line with the curriculum. So, that's a job for the governors, that's a job for individual local education authorities, for our regional school improvement services and, actually, ultimately for the inspection regimes, whether that be the religious inspection regime or Estyn.
Thank you for that, Minister. We will explore some issues around the codes, which are obviously very important, later on. If I can move on to Carwyn Jones, please.
Good morning, Minister. The first question from me, really, is a question we always ask witnesses before this committee when legislation is before us, and it's this: what is the purpose of the legislation?
Okay. So, the purpose of this legislation is to ensure that children in Wales have the opportunity to develop the knowledge, skills and experiences for them to be successful adults, to empower the teaching profession to use their pedagogical skills to develop curricula that are suitable for the children sitting in front of them, and, ultimately, to raise standards within the Welsh education system. So, that's the purpose of what we're doing. It's a fundamental piece of education reform, as I said, to raise standards, to equip children with what we believe they need to be successful adults, and to empower teachers with the professional autonomy to deliver a curriculum themselves.
Thank you. And why is legislation necessary to deliver that purpose?
Okay. So, the current curriculum that we have in Wales finds its roots in the reform of 1988, and, indeed, the Education Act 2002. That's before—in 1988, before the fall of the Berlin wall, before we all carried computers around in our pockets. So, basically, the fundamentals of our curriculum are rooted in a time that we've moved on from. Successive reports have highlighted, from employers, from children themselves, that the current curriculum isn't reaching their needs. We've also, potentially—inadvertently I'm sure—but we have robbed our teaching profession of their professional autonomy. We have often reduced teaching, in some cases, to a tick-box exercise, and we're not giving the children and young people what they need to see that step change in outcomes for them and, ultimately, our nation, in terms of our economic development and our well-being in our society.
Well, it's so long ago that that's the year I graduated and before my hair turned the colour that it is. Could I ask you, in terms of consolidation, is education still an area where consolidation of legislation is being considered? The committee heard evidence from the Counsel General regarding the United Kingdom Internal Market Bill that there is a huge danger to consolidation because of the way that Bill has been drafted. But, from your perspective, are you still looking to consolidate education legislation in the future?
Whilst the internal market Bill is not something that sits within my portfolio, I am concerned to see the inclusion in that Bill of Westminster powers to fund educational matters within Wales, and I think we need to question why that is there, but that's a matter for another day and a matter for another Minister.
But with regard to consolidation, the Bill does not codify the law, as you have suggested, but I think it does make a valuable contribution to improving accessibility in terms of understanding legislation that pertains to Wales and Welsh education, especially with regard to the curriculum. The vast majority of the provisions of the Bill are new, free-standing provisions to be enacted in English and Welsh. So, it doesn't codify the law, but I think it does make a step in making it easier for Welsh citizens and those that are interested to understand how the law around the curriculum in Welsh schools is underpinned by law.
Okay, thank you.
Diolch yn fawr, Cadeirydd, a bore da, Gweinidog. Fel rydych chi wedi crybwyll eisoes yn eich atebion, rydyn ni'n mynd i fanylion rŵan fel pwerau is-ddeddfwriaethol ac ati, ac fel rydych chi'n gwybod, mae'r Bil yma yn cynnwys 14 o bwerau i Weinidogion Cymru wneud rheoliadau. Mae yna dri phŵer i gynhyrchu codau—mwy am hynny yn y man—mae yna ddau bŵer arall i gynhyrchu canllawiau, ac mae yna bwerau eraill i gyfeirio at llywodraethwyr, ac ati, a phwerau eraill sydd yn cyfeirio penaethiaid i wneud pethau, ac ati, ac ati, fel rydych chi'n gwybod.
Felly, wedi gosod y cyd-destun yna ynglŷn â'r pwerau is-ddeddfwriaethol, a allech chi ddweud wrthym ni pam eich bod chi'n ystyried bod y cydbwysedd cywir wedi'i daro rhwng pa ddarpariaethau sydd ar wyneb y Bil a'r hyn sydd ar ôl ar gyfer is-ddeddfwriaeth? Eto, un o'r cwestiynau yma rydyn ni wastad yn gofyn yn y pwyllgor yma: y cydbwysedd rhwng beth sydd ar wyneb y Bil a beth sydd ar ôl ar gyfer is-ddeddfwriaeth. Diolch.
Thank you very much, Chair, and good morning, Minister. As you've already mentioned in your responses this morning, we're going into details with regard to subordinate legislation powers, and as you know, this Bill includes 14 powers for Welsh Ministers to make regulations. There are three powers to create codes—more on that later—and there are two powers to create guidance, and there are other powers with regard to governors, and so on, and other powers that direct school leaders to do things, and so on, as you will know.
So, having set out that context with regard to the subordinate legislation powers, could you tell us why you believe that the correct balance has been struck between the provisions included on the face of the Bill and what has been left for secondary legislation? Again, this is one of the questions that we always ask in this committee: the balance struck between what's on the face of the Bill and what is left for secondary legislation. Thank you.
Diolch yn fawr, Dai. It's a question well worth asking. Dai, I've sat in your position and have been wary of Welsh Ministers taking on additional powers. The script usually goes, 'Well, I don't want to do anything malevolent with these powers', and the answer always comes back, quite rightly, from those scrutinising the Bill, 'Yes, you might not want to, but once it's on the statute book, it's on the statute book and a different Minister could use them to different effect.'
So, there are no right and wrong answers. It is a question of balance, isn't it, as you said? I'm of the view that we have achieved the right balance between the level of content on the face of the Bill and what will sit in codes, guidance and subordinate legislation. I think it's really important as well to understand the philosophical principles behind the curriculum. So, I've just said in answer to the former First Minister that one of the reasons why we have the new curriculum is to empower our teachers to be able to develop curricula that are fit for purpose for their own individual settings. Therefore, having too much detail and diktat on the face of the Bill potentially would undermine the very philosophical principles and pedagogical principles behind the approach to the legislation. So, there's a balance to be struck, from a legislative point of view but also from a conceptual point of view, of having enough structure and scaffolding and detail on the face of the Bill, so that practitioners, parents, children and young people and those who are interested aren't left floundering, but at the same time, not having so much detail on the face of the Bill that we dictate to the teaching profession once again everything that is to be taught in precise detail in schools, therefore undermining one of the very principles that underpin the approach to developing a new curriculum in Wales.
Diolch yn fawr am hynna, Gweinidog. I fanylu, felly, allaf i holi ymhellach am sut mae'r codau a roddir o dan adrannau 6 i 8 y Bil yr ydych chi'n credu y dylent fod yn ddarostyngedig i'r weithdrefn negyddol, sut mae'r codau hynny yn y dair adran yna yn wahanol i'r cod anghenion dysgu ychwanegol sy'n ddarostyngedig i'r weithdrefn gadarnhaol? Beth sydd yn wahanol yn y codau o dan adran 6 i 8 sydd yn negyddol, i'w gymharu â'r cod anghenion dysgu ychwanegol, sydd yn weithdrefn gadarnhaol? Pam fod adrannau 6 i 8 yn negyddol, hynny yw?
Thanks very much for that, Minister. So, to go into greater detail, can I ask you how the codes issued under sections 6 to 8 of the Bill, which you advocate should be subject to the negative procedure, how do those codes, then, in those sections differ from the additional learning needs code, which is subject to the affirmative procedure? What is different about those codes under sections 6 to 8 of the Bill, which are subject to the negative procedure, as compared to the ALN code, which is subject to the affirmative procedure? That is, why are sections 6 to 8 subject to the negative procedure?
Okay. Perhaps Georgina or Ceri can help me out, but from my perspective, although the word 'code' is common to both the ALN legislation and what we're talking about here, the nature of those codes and what they contain is substantially different. So, the codes that we're talking about in the development of the curriculum—so, for instance, the RSE code—are essentially a technical teaching document to support the profession. It's co-constructed with the profession, so it's very different, I would argue, from the code that we have talked about in the ALN legislation, which encompasses the rights of the child in their entirety. So, the codes we're talking about here are important, but they are limited sections of a child's education, whereas the ALN code covers the entirety of that child's entitlement. So, they're different by nature. I think the thing that I would be concerned about with the code is undermining that spirit of co-construction. So, you work with the profession to develop that code—it's part of our capacity building, actually, within the profession—and then that is undercut or professionals second guess whether that will be supported. So, I think the codes are different in nature, but I don't know whether Georgina or Ceri can add further to my answer.
Yes, Minister. As you correctly say, it's primarily about co-construction. Another factor is that we can foresee some need, perhaps on the RSE code, for example, to have to make some changes to respond to new and emerging issues that crop up from time to time, and to put something in the code to give a strong direction to schools how they should deal with some complex issues. We think the negative procedure lends itself better to that, just because we can progress that more quickly. It would still be subject to full consultation, of course; it would be still be laid and there would still be an opportunity for a vote if that was what was wanted.
Thank you, Ceri.
Can I—? Oh sorry, beg your pardon.
I was just going to add to the Minister's point about the content of the codes and what's already been published through the curriculum guidance. The progression code, for example, sets out the relationship between schools in delivering progression and what that needs to look like. So, it's exactly one of those areas that has been co-constructed with the profession for the profession, and the codes are quite similar in that regard. So, the point about them being quite different from the ALN code I think is really important.
Okay. Please carry on, Dai.
Diolch. Eto yn y pwyllgor yma, fydd y Gweinidog yn ymwybodol ein bod ni'n mynd yn nerfus iawn ynglŷn â'r weithdrefn negyddol achos yn unol â'n swyddogaeth ni i fod yn craffu, mae'n well gennym ni weld pethau sydd yn newydd yn dod o dan weithdrefn gadarnhaol. Dyna ydy'r pwynt sylfaenol achos mae materion negyddol i fod yn dechnegol iawn, iawn; hynny yw, manion. O gofio hynna i gyd, ydych chi wedi cysidro neu wedi rhoi unrhyw ystyriaeth i'r codau cyntaf yma fod yn ddarostyngedig i'r weithdrefn gadarnhaol, gyda fersiynau diwygiedig sydd yn dilyn yn ddarostyngedig i'r weithdrefn negyddol? Dwi'n clywed beth ddywedoch chi gynnau, Gweinidog, a hefyd beth ddywedodd Ceri a Georgina ynglŷn ag efallai bydd yn rhaid diwygio'r rhain nes ymlaen. Beth am eu cynllunio nhw yn y lle cyntaf o dan y weithdrefn gadarnhaol ac wedyn rheini i ddilyn o dan y weithdrefn negyddol?
Thank you. Again in this committee, the Minister will be aware that we are very nervous about the negative procedure because with regard to our scrutiny function, we prefer to see new things coming under the affirmative procedure. I think that is a fundamental point to make, because these negative procedure issues should be about very, very technical details. But bearing all of that in mind, have you given any consideration to the first codes being subject to the affirmative procedure, and then with subsequent revised versions being subject to the negative procedure? I hear what you said earlier, Minister, and also what Ceri and Georgina said with regard to the fact that these will need to be reviewed later on and amended later on, but what about in the first instance placing them under the affirmative procedure, and then the subsequent versions being subject to the negative procedure?
Thank you, Dai. I can give further consideration to that point. However, my original answer still stands in the sense that the nature of these documents, I believe, means that they are best suited to a negative procedure, due to their content, due to their job, really, within supporting professionals. But obviously, as would any Minister, we'll always give further consideration to any points that are made by the committee.
If I might just come in on that point, because bearing in mind the earlier questions and your answers to those in respect of what are really very important issues that this committee considers with regard to the convention—the human rights issues that we know are one of the most sensitive parts of the Bill, that there's a right to education, protection from discrimination, freedom of thought—the codes are actually quite a fundamental part of the protection of those rights and also the framework within which teachers have to deliver. I suppose they exist to make that point; you've indicated that you'll give consideration to it. But your view is—. I mean, do you agree with me that these codes are really almost the launchpad for these aspects of the curriculum Bill?
I think some of the codes will be more controversial than others. So, I think the progression code is very much one that will be of interest that is probably predominantly to the teaching profession. Given sensitivities around RSE, I can imagine that code will have a great level of interest. Indeed, that's one of the reasons why we have decided to proceed with the code for relationships and sexuality education, because of the sensitive nature of the content of that part of the curriculum. It's really important, from a practitioner point of view, that they have that additional level of support around what should be taught in that area of the curriculum. It's really important, from a parent's perspective, so they can see very clearly what the intention is in that part of the curriculum. I'm aware of some horrible misinformation that is currently being spread, not just in Wales, but right the way around the United Kingdom, about what the function of RSE education is. And there is often a great deal, as I said, of misinformation about what the intention of Governments—of different colours, around the UK—intend children to be taught. And that can frighten parents—it can make them really worried, and really concerned.
And it's also really important from a child and young person's perspective, so they can see very clearly what their entitlement is, and so that they know what a school should be doing to equip them in this particular regard of their life. And that's particularly important to me, Mick. Report after report has evidenced that young people feel that the current provision of this part of the curriculum is not meeting their needs. We're obsessed—absolutely obsessed—with talking about biology and the mechanics of sexual relationships. Children need to know about how to keep themselves safe. They need to know what a good relationship looks like, how they can take action and seek help if they find themselves in a toxic relationship or in a violent relationship. It helps them make good choices.
And so it's really important that the code is there, as I said, to provide guidance to practitioners, to provide reassurance for parents about what is being taught, and, crucially, sometimes what is not being taught, and why it's being taught, and also to ensure that children are aware of what their entitlement under this part of the curriculum is. But I will give further consideration to the points that you've made. But each of the codes is slightly different, I think, and therefore maybe a differential approach, depending on the nature of the code, might be appropriate.
Thank you for that very full answer. If I move on now to Suzy Davies.
Thank you, Chair, and thank you, Minister. Just on that last point, on Dai Lloyd's last question, I think it's also worth bearing in mind that codes—that no curriculum can be adopted unless they sign up to the code, and the code has to be agreed by the Senedd. If the code is agreed by the Senedd, we would have some concerns that a Minister could unilaterally make alterations to that, without us really getting a full opportunity to scrutinise. So, maybe that's another reason why the negative procedure should be ditched in favour of the affirmative procedure, because it's effectively our code, and if there are any changes made to it, we should at least have the opportunity to comment on them, without being in a position to call something in—it should be offered upfront, I think. And that's why I'm glad to hear you say that you're open-minded about possibly introducing changes on this particular issue. Perhaps you can also take the opportunity to reassure listeners that the ALN code is not co-constructed; the implication is that that's not been co-constructed. Well, I think there's been an awful lot of, shall we say, consultation done on it, so maybe you can clarify that for us.
On the issue of the codes, presumably those will have to be signed off by the Senedd before you would be in a position to exercise any powers under section 17. These are regulatory powers to add to steps that could be required before a curriculum is adopted or introduced for change. So, 17(a) and 17(c), you've indicated in your letter to us, are powers that you don't really intend to use. In that case, why are they included in the Bill? Obviously, we've got a Bill going through the UK Parliament at the moment where the inclusion of powers that aren't intended to be used is pretty controversial. So, why are we including powers here that you don't think you're going to need, and what would you use them for, if you did decide to use them?
Okay. First of all, with regard to the point you make, Suzy, about the ALN code, if I've given the impression that the ALN code also hasn't been subject to huge levels of co-construction and consultation, then, clearly, I need to address that. One of the reasons why the code is coming out later than we'd originally intended is because of responding to the first consultation on the code, where, clearly, there was much more work that the Government needed to do. But it is a different type of document, as I said, and the code in the ALN sector, as I said, encompasses the entire education of a child, whereas the codes we're talking about here are for individual sections of the curriculum.
With regard to section 17 and the powers to make supplementary provision about curriculum adoption, review and revisions, as I stated in the statement of policy intent and in response to your recent letter, at present I do not anticipate the need to make use of the regulation-making powers under section 17, other than to specify a date by which the curriculum must be adopted. If necessary, we may make provision that would set out a date by when a curriculum must be adopted or perhaps impose a consultation requirement. The key duties, such as who must adopt and what must be adopted, are actually on the face of the Bill.
However, should circumstances change or issues come to light, these regulation powers would enable the Government to make provisions as appropriate. So, for example, we could need to use these powers in relation to the revision of the curricula to reflect any significant change to curriculum requirements in the future. I would argue that these provisions are relatively minor in the overall Bill and therefore we felt that the negative procedure was appropriate in this particular instance. But, Ceri, I don't know if there's anything further I should add, or you would like to add.
Thank you, Minister. No, as you say, we don't intend to us them from the get-go, but we will be reviewing how the curriculum beds in, how schools manage the process. So, it's there in case we need to do something as issues emerge. So, as you say, if we feel schools need to be given a deadline, or some sort of timetable by which they need to do this, then these regulations would allow us to do that. Again, as you said, we see this information that will be in the regulations as a fairly minor technical level of detail with, as you said, the key principles already being on the face of the Bill. So, given all of that, we felt, on balance, that the negative procedure was the appropriate level of scrutiny.
Okay, thank you. So, they're 'just in case' powers, effectively. Do they need a sunset clause on them if they're mainly for early review of how well the curriculum operates?
I don't think so. It's not so much how it pans out, say, in the first year of the curriculum, for example. These issues could crop up at any point across a range of settings, so we would need to keep them in long term.
Okay, thank you. Well, they tie in with section 25 as well, which relates to the power to impose further curriculum requirements. What have you got in mind for the use of these powers?
Which sections, sorry, I didn't catch the beginning of that, Suzy?
Section 25, section 25(1) in particular—regulations can specify further requirements that a curriculum must comply with. Why is that different from 17?
Okay. Well, section 25, as you said, looks to give the power to impose further curriculum requirements, especially for 14 to 16. This is to ensure that there is a broad and balanced curriculum delivered right the way through to the end of statutory education. Suzy, you and I are aware that sometimes one of the unintended consequences of an accountability regime that we've had in the past has led to a narrowing of the curriculum, where the core is focused on, sometimes to the exclusion of other subjects and other experiences. So, we're looking to make sure that there are safeguards to ensure that there is a broad and balanced curriculum delivered right the way through to 16. The powers to make regulations, then—as I say, we could act if we felt, as I said, probably, the curriculum was too narrow, but it would potentially give us powers to effect change if we felt the curriculum was too broad.
Oh, right. Well, that's what I wanted to ask you about, because I understand this to say that you could instruct a school—let's keep it broad—to include more things on a curriculum, but can also narrow it as well. The bit that I didn't really understand was section 25(3)(b)—things that mustn't be included on a curriculum. Can you give us some examples of what you had in mind and what your concern was there?
Well, again, it's to make sure that the curriculum is appropriate. My main fear is a narrowing of the curriculum, especially if a child isn't necessarily taking a formal qualification. So, the intention of the Bill is that each child would study an element of each of the areas of learning and experience right the way through to the age of 16, even if they weren't going to sit a formal qualification at the end of it, to ensure that that experience was broad.
I guess, in the question of too much, inadvertently perhaps we could have schools expecting children to take a huge range of subjects, which might be detrimental, perhaps, to a child's well-being. We seem to have children these days that sit many, many more GCSEs than perhaps any of us certainly did, and that can put an immense pressure. So, again, it's about having that balance there. But, Ceri, I don't know if there's anything else you'd want to add.
No, you've answered the question, Minister. The only thing that I might add is that, at the moment, we have the local curriculum for the same cohort of pupils. We're not keeping that in exactly the same way in this Bill. But for the ages 14 to 16, we do allow those pupils to delve down into more detail in a range of subjects, and so we're retaining these regulation-making powers that originate from the local curriculum provisions at the moment. And so the kind of things we have in mind would be, for example, specifying a minimum number of courses or perhaps a maximum number of courses you could take. It's one of the things that we've done with the local curriculum regulations. Another example would be specifying you have to include a range of vocational and non-vocational courses to cater for a spread of talents.
Okay, thank you. So, those are quite significant changes. So, why do you think the negative procedure is the best way to introduce those changes, particularly as when you've got section 5 changes they'd be subject to the affirmative procedure?
I take the point. Section 5, as you say, is subject to the affirmative procedure. It's the Henry VIII power that allows us to amend the face of the Bill—primary legislation—and so we consider affirmative is important for that and appropriate. Here, we wouldn't be amending primary legislation, it would just be including provision by way of regulations. As I say, it's the continuation of the powers that we have to make regulations in this area for the local curriculum. Negative procedure attaches to that. And, again, the key principles are set out on the face of the Bill, in terms of allowing pupils in the 14-to-16 cohort to narrow down a little bit and focus in more detail on particular things. The detail that would be in here is just about minimum and maximum number of courses. It's the sort of thing that would evolve from time to time.
I think, Suzy, if I may say, these are not major changes. They aren't massively different from what's already included in the education and local curricula for pupils in the key stage 4 regulations of 2009. So, it's not massively revolutionary, it's just to provide those safeguards.
Well, this committee is never that keen just to say, 'This is what we've been doing already' as a reason, particularly with new legislation. But I wonder if I could just invite you to reconsider this, because the minimum and maximum number of courses that we've just been talking about is one example. It could be quite significant. I certainly would like to know if schools are being told, 'You have to take a maximum number of courses.' I'm sorry, I need to move on pretty quickly with this one now—
Yes, I was going to say that.
Sections 33 and 34, where the headteacher decides not to secure a pupil's choice of teaching and learning—you were thinking of putting a bit more of this on the face of the Bill but decided against it. This is a pretty important policy area, isn't it, particularly as you might have a pupil who's halfway through a course that suddenly gets too expensive to do. Can you just talk us through your thinking on this and why a regulation power rather than a clause on the face of the Bill is the most appropriate way forward?
Well, as you say, section 33 specifies the grounds on which a headteacher is able to refuse a pupil's decision to pursue teaching and learning chosen by the pupil under section 24. Subsection (2) of this section enables the headteacher to make a determination to refuse that choice. Subsection (4) means it's possible to reverse a decision to allow a pupil to take a course. It may be disproportionate cost or unacceptable—. It's limited: disproportionate cost and unacceptable health and safety risks to other pupils. They're not subject to a legislative procedure because it really is a matter for headteachers in the day-to-day running of their schools, and alongside their staff, they're in the best position to make such determinations. However, section 34(5) would enable the Welsh Ministers to make further provision to regulate these powers if that need arises. Again, we have to have a balance here in terms of the day-to-day runnings of schools. We could find ourselves in a situation where it was simply impossible for a school to make reasonable endeavours to provide that if that was the only child in the school that wanted to study that particular subject. So, we have to qualify that right in some way because of the practicalities of running an education system. But Ceri, I don't know if there's anything else.
Only to reiterate the point we were discussing earlier, which is that this set of provisions in the main replicates what's there for the local curriculum portion of the curriculum at the moment, and the sorts of information and details that would go in the regulations are of that sort of technical nature, with the key principles already being set out on the face of the Bill—so, for example, who makes a determination, under what grounds they make that determination.
I think we could use greater regulation powers, though, Suzy, to maybe put in some details about how that process would work. So, you might want to have some details and regulations about timescales and procedures around that, but the principles of when a headteacher can use those powers are on the face.
Thank you. And there's quite a lot of appeal information as well on the face of the Bill, to be fair. Thank you. Thank you, Chair.
Thank you, Suzy Davies. If I go on now to section 40 of the Bill and Carwyn Jones.
Thank you, Chair. Minister, could I draw your attention to section 40 of the Bill? That section allows the Welsh Ministers to give a direction to a school disapplying or modifying any of the curriculum implementation requirements for experimental or developmental purposes. Now, in your letter to us dated 18 September, you said that this might involve, and I quote,
'an innovative project that is designed to test a new policy idea and raise educational standards.'
I was just wondering whether you could give any particular examples of what sort of project would potentially lead you to consider disapplying or modifying any of the curriculum implementation requirements.
Okay. So, these are quite substantial powers, to be able to disapply the rest of the Bill, but in sections 41 and 42, we give some more detail about how that power can be used. But, for instance, let me think of a past example—the implementation of the foundation phase. So, you might have a new approach to teaching a particular cohort of the school and you might want to have pioneer schools that are engaging in the discussion, implementation and the trialling of that. So, in the new curriculum, you might use these powers to trial a new 'what matters' statement—so, if you were having a review of the 'what matters' statements. Or you could, for instance, perhaps be introducing a review of a part of an entire AoLE. You might be delivering a new AoLE. So, it's about giving the flexibility to allow for innovation within the curriculum. So, as I said, previously, you might think about the introduction of a play-based early years agenda, to create the space to do something like that, or as I said, to amend the 'what matters' statements, or perhaps create a new AoLE, or a different type of organisation within the curriculum. So, it's a space to allow innovation.
Thank you for that. Can I take you, then, to section 47(6) of the Bill? That provides Welsh Ministers with the power to make regulations about the procedure to be followed and time limits in respect of appeals about temporary exceptions for individual pupils. Now, you've not put this on the face of the Bill; these will be the subject of regulation-making powers. What's the thinking behind that? Is it flexibility, or any other consideration? But why not put it on the face of the Bill, rather than give those powers to Ministers to make regulations?
I would draw the Member's attention to my response to your letter of 4 August, setting out why we believe that putting detail on the face of the Bill would not offer the adequate flexibility that schools may need in this aspect of the work. Taking the point that I've just been reminded of by Members, that just because we've done it before it doesn't mean it's a good reason to carry on doing it—but the Bill sets out entirely new arrangements for the school curriculum, and it's important to assess how schools and, indeed, pupils need to develop. So, the right of appeal is on the face of the Bill, and we would expect that the detail to be included in the legislation [correction: to be included in the regulations] would be around the process of that appeal, such as timings, decisions, when decisions must be made. As I said, it's not dissimilar to what we already have in place. I have to say we are considering whether it would be helpful to use these powers at the outset to make regulations specifying time limits for appeal. So, we're doing some more thinking in this area. But it's about flexibility, primarily.
Thank you, Minister. Dai Lloyd.
Diolch yn fawr, Gadeirydd. Weinidog, rwy'n eich symud chi ymlaen rŵan at adran 67(1) o'r Bil. Mae hwn yn darparu pŵer eang i Weinidogion Cymru wneud rheoliadau ynghylch addysgu a dysgu i ddysgwyr sy'n derbyn addysg mewn mwy nag un lleoliad; rydych chi'n ymwybodol o hynny. Allech chi ymhelaethu pryd y gellid defnyddio'r pŵer hwn, a pham yr ystyrir bod y weithdrefn negyddol yn briodol ar gyfer pŵer mor eang?
Thank you very much, Chair. Moving on now to section 67(1) of the Bill. This section provides a wide-ranging power for Welsh Ministers to make regulations with regard to teaching and learning for learners who receive education in more than one setting. You will be aware of that, of course. So, could you expand on when this power might be used, and why the negative procedure is considered appropriate for such a wide-ranging power?
Thank you, Dai. As you said, the section enables the Welsh Ministers to make regulations about teaching and learning for learners who, for example, may be a registered pupil at a maintained school or nursery school, or a pupil referral unit, but also are receiving education at another such setting. This section also permits regulations of this type to be made about other children of compulsory school age who are described in the regulations themselves. This provision is needed to ensure that the regulations make provision about teaching and learning to be provided to children who are receiving part-time education, but not education in more than one setting. So, an example of that might be a child who is perhaps seriously, seriously unwell, or perhaps recovering from serious illness who may be receiving two hours of education a week at home. The curriculum requirements in the Bill would not be appropriate for a child in this position, I would suggest, and so provision will need to be made in the regulations about what criteria the education should meet. So, as you can imagine, there could be large numbers of permutations possible in that context, and the level of detail that would need to be entered into, so I consider it necessary to deal with the position of this small class of children by way of regulations, rather than the face of the Bill itself. So, I think, again, it's about flexibility and recognising that there could be some very specific needs of individual children who find themselves in this way, and having a curriculum that is appropriate for them.
Diolch, Weinidog. Dwi'n deall y pwynt, ond i fynd ar ôl y cwestiwn, ydych chi'n hapus i ddefnyddio'r weithdrefn negyddol, er eich bod chi potentially yn sôn am bŵer reit eang yn y fan yna? Fel rydyn ni wedi'i grybwyll eisoes, mae'r pwyllgor yma yn credu bod craffu yn allweddol bwysig, a dydyn ni ddim yn licio materion negyddol—dylen nhw fod yn fanion technegol, ddim yn rhywbeth sydd yn gallu darparu pŵer eang. Ydych chi'n mynd i ddal i fynd ar ôl y weithdrefn negyddol yn y fan hyn?
Thank you very much. I understand the point, but to pursue the question, are you content to use the negative procedure, even though you're potentially talking about a very wide-ranging power there? As we've already mentioned, this committee believes that scrutiny is vitally important, and we don't like to have these negative procedures—they should be left to technical issues, not something that could provide a wide-ranging power. Are you still going to proceed with the negative procedure here?
Well, we believe that it's appropriate for these powers to be exercised in a negative way. But, Ceri, I don't know if there's anything further, or Georgina, that I should add?
Thank you, Minister. The only thing I would say in addition to what you've already said is that we do understand the point being made that it's a regulation-making power that applies to a disparate group of pupils, and the reason we couldn't deal with it on the face of the Bill is just there'd be so many permutations it would just be impossible. Going to the particular question about the negative procedure, we would argue that the key principles are there on the face of the Bill, it's just making those work for this fairly narrow group of pupils. So, it wouldn't be setting out any new or substantive policy ideas or principles; that's all there on the face of the Bill. It's really about just making these different institutions work together to work for this fairly small cohort of pupils.
Diolch yn fawr am hynna. A'r cwestiwn olaf: rydyn ni'n symud ymlaen i adran 70 o'r Bil, isadran (1), ac mae'r adran yma yn rhoi pŵer i Weinidogion Cymru wneud rheoliadau i ddiwygio deddfwriaeth sylfaenol ac is-ddeddfwriaeth pan fo’n angenrheidiol neu'n briodol i alluogi'r fframwaith cwricwlwm i weithredu. Nawr, mae'r Bil yn ceisio caniatáu i Weinidogion Cymru ddiwygio deddfwriaeth sylfaenol heb droi at y Senedd, er bod yr un darpariaethau hynny yn ddarostyngedig i'r pedwar cyfnod craffu. O ystyried y byddai defnyddio'r weithdrefn gadarnhaol hefyd yn rhoi effaith i'r bwriadau polisi, pam nad ydych chi o blaid defnyddio'r weithdrefn gadarnhaol i newid y darpariaethau y cytunwyd arnynt gan y Senedd pe bai'r Bil yn dod yn Ddeddf? Yr hen bwynt craffu yna fel arfer eto. Diolch, Weinidog.
Thank you very much for that. And the final question now: we're moving on to section 70, subsection (1) of the Bill, and this section provides the Welsh Ministers with a power to make regulations to amend primary and secondary legislation where necessary or appropriate to enable the new curriculum framework to operate. Now, the Bill is seeking to permit the Welsh Ministers to amend primary legislation without recourse to the Senedd, despite those same provisions being subject to four stages of scrutiny. So, given that the use of the affirmative procedure would also give effect to the policy intentions, why are you, Minister, not in favour of using the affirmative procedure to change provisions agreed by the Senedd in the event that the Bill becomes and Act? So, it's that scrutiny point again. Thank you, Minister.
Well, Dai, I think that's a fair cop, and it's my intention to bring forward a Government amendment in relation to section 70, which will have the effect of ensuring that any regulations made under this provision that amend primary legislation would be subject to draft affirmative procedure. On reflection, the point that the committee makes today, and I know the committee has made previously, is that it's not appropriate to amend primary legislation in a negative way. So, we will bring forward amendments to address that at Stage 2.
Diolch yn fawr, Weinidog.
Thank you very much, Minister.
Thank you for that, Minister. I know there's a further question that Suzy Davies wanted to raise particularly with regard to issues around consolidation, which is obviously is a matter of concern to this committee. Suzy.
Thank you very much, Mick. Yes, just a couple of things here. One is about the consistency of how children and pupils are described throughout the Bill. So, Dai was just talking about section 67 now, where the way a child or a pupil is defined is slightly different from earlier in the Bill. But, more importantly, I wanted to know what your thoughts were on consolidation. There are many references in this Act to the Education Act 1996, which predates devolution, and I'm wondering if you'd given any thought to just repeating the relevant parts of that in this legislation so it's part of this legislation, rather than asking pupils and parents and teachers to flick back to a separate piece of legislation in order to know, for example, what the parent is.
I'll ask Ceri for his views on the drafting. Ceri.
Thank you, Minister. The Bill covers a wide range of pupils in a wide range of different settings—so, obviously, not just schools, but funded non-maintained nurseries, pupil referral unts, non-PRU EOTAS—and in each case, careful thought has gone into which is the appropriate label, if I use that term, to describe the group of pupils that specific section is talking to, and we do think we've got that right.
Well, in terms of consolidation generally, as the Minister has said, we recognise that's important, where it can be done, because it improves accessibility to the law, and education is an area that is often felt to be ripe for that exercise. What I would say is that it's often a very difficult question. There's a number of things to consider. For example, a key Act still is the Education Act 1996, where key terms are set out and defined. For the moment, we consider that, with this Bill, those key terms are best left where they are, because people know where to find them. Taking them out and putting them in this Bill can, sometimes, create more confusion than just leaving them where they are.
Can I just pursue that one point, though? Presumably, though, there is a consideration within your department, Minister, in terms of future consolidation of legislation, because, obviously, access, clarity and so on are important. Has there been that discussion? I can understand the point that's being made now, specifically in respect of the curriculum, but more broadly, in the longer term, is there a view in terms of consolidation? Has there been any discussion on that particular point?
Mick, like you, I think it's a really important principle, isn't it, of the rule of law: that people understand how they can get information, first of all to be able to influence the development of legislation and then have access to it to understand how it applies to them, and how they can protect and pursue their rights? These discussions are held within the department when looking at legislation, but at this stage, as Ceri has said, it's felt appropriate that this Bill is drafted in the way it is.
I would absolutely hope in future years that time and resources can be given to consideration about further consolidation within the education department. At the moment, though, I have to say that resources are stretched pretty thin and we're trying to prioritise what is needed at this time. But that should never preclude, in future, the need to look at further consolidation of Welsh education as we develop the Welsh statute book.
Thank you, Minister. I think that brings us fairly closely towards the end of the time allocated for this session. I don't know if there is any urgent matter any of the Members want to raise in the last couple of minutes. If not—I see that there isn't—thank you very much for your full and robust answers, and for the time you've allocated and that of your officials. You will, of course, get the transcript in the usual way, and we will, of course, give consideration to our report. I think you'll probably have an indication of some of the areas that are most exercising us. So, thank you for your attendance today.
No, thank you. Thank you very much.
Okay, Members of the committee, we will shortly move on, now, to item 3. We're now moving on to item 3.1, which is the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 14) (Cardiff and Swansea) Regulations 2020. Members have before them the regulations, the explanatory memorandum, a letter from the First Minister and, of course, the written statements that were made on 25 September.
These regulations were made on 25 September and came into force on 27 September. I don't think there are any issues that have been identified by the lawyers. Is that correct?
Yes, that's correct.
Okay. Any comments or observations from the Members? I see there are none. We then move on to—. Sorry, I think the point to be made also, of course, is that these regulations and also the regulations we're now going to discuss in item 3.2 are going to be debated in Plenary tomorrow, on 6 October, so I'd just draw your attention to that.
So, we move on to item 3.2, which is the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 15) (Neath Port Talbot, Torfaen and Vale of Glamorgan) Regulations 2020. These regulations were made and came into force on 28 September. Any comments or observations? I don't see any.
We move on, then, to item 4, which is the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 12) Regulations 2020. You have all the relevant papers in front of you. These are the twelfth set of amendment regulations that amend the international travel regulations that impose requirements on persons entering Wales after having been abroad. These ones were made on 25 September and came into force on 26 September. Any comments from the lawyers?
Yes. There is one technical point and one merits point starting on pack page 77. The technical point notes an incorrect cross-reference in the Welsh language text and the merits point notes a breach of the 21-day rule. A Government response has been requested to the technical point.
Okay, thank you for that. We note those particular points and the comments that have been made. Any comments or observations from Members? I don't see any.
We move on, then, to item 4.2, which is the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 12) Regulations 2020. These are regulations that were made and came into force on 24 September. Again, to the lawyers: any comments or observations?
Yes. There are three merits points on these, starting on pack-page 95. The first merits point notes that the regulations introduce a general tightening of restrictions in respect of premises that sell food and drink in Wales, and the Welsh Government's justification for any potential interference with human rights.
The second merits point notes that there has been no formal consultation, but that the Welsh Government has taken steps to bring the changes to the attention of the public.
The third merits point makes a number of general points with regard to the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020 as a whole, which I'll call the principal regulations. Firstly, the draft report raises the concern that there might be confusion about the restrictions across Wales, if Members are content with that. Secondly, it notes a provision in the principal regulations that is no longer required as a result of the amendments made by these regulations. And, thirdly, regulation 4(2) of the principal regulations place a duty on the Welsh Ministers to review the need for local restrictions by 24 September 2020 and then every seven days. The local restrictions in Blaenau Gwent, Bridgend, Merthyr Tydfil and Newport, which are the No. 11 restrictions, were slotted into the principal regulations on 22 September, so two days before the first review of local restrictions, and it's unclear what the Welsh Government's approach was to reviewing those No. 11 restrictions within the pre-existing timescale of 24 September. A Welsh Government response has been requested to this third merits point.
Okay, well, thank you for that. Obviously, that last point is an important one and we'll await the response on that. Any other comments or observations from Members? Well, thank you for—. Sorry, Suzy Davies.
It's just a question, really, because it may not be for this committee, it may be for another one. The UK Government is being asked the same sorts of questions about the regulations that are very similar to these about pubs and restaurants and so forth. At what point do we get to ask quite what the justification for this is? Is that the health committee or Plenary?
Well, obviously, Plenary is the area where questions can be raised when these come before that, and I think that probably is the point et cetera. I mean, if there are issues that—
No, it was just to clarify.
Oh, it was just to clarify. Okay, that's fine.
We move on, then, to item 4.3, which is the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 13) (Llanelli etc.) Regulations 2020. These were made and came into force on 25 September and introduced restrictions in respect of the Llanelli area. Again, a reference to the lawyers here.
Yes, two merits points, starting on pack-page 111. The first merits point notes that these regulations are a further tightening of restrictions and the human rights implications of this. The second merits point notes there's been no formal consultation, but, again, the Welsh Government has taken steps to bring the changes to the attention of the public.
Okay. Well, thank you for that. Any comments or observations? These points, particularly the human rights ones, are ones that we have identified and raised specifically in earlier, similar regulations.
Moving on to item 5.1, then, we have a letter from the Minister for Environment, Energy and Rural Affairs with regard to the Welsh Government's supplementary legislative consent memorandum, memorandum No. 4, on the Agriculture Bill, and we're invited to note the letter from the Minister. And, of course, we'll all be aware that this matter came up in the Plenary in the Senedd last year and was voted on. Any comments or observations? No.
In which case, I move on to item 5.2, a letter from the First Minister in relation to the Senedd and Elections (Wales) Act 2020 and specifically the provisions relating to the financing and accountability of the Electoral Commission. Of course, the Welsh Government has made the Senedd and Elections (Wales) Act 2020 (Commencement) Order 2020, which we will be considering at our meeting next week. Happy to leave it till then. Any comments or observations? If not—if there are, we can raise any of these matters when we move into private session.
Item 5.3: letter from the Minister for Environment, Energy and Rural Affairs. Again, this is a legislative consent memorandum on the Fisheries Bill. So, we're invited to note the letter from the Minister on the Fisheries Bill, and this letter corresponds to our report on the supplementary legislative consent memorandum on the Fisheries Bill and it also provides an update on the Bill's progress in the UK Parliament, including information on further amendments that are yet to be considered. And, of course, we'll all be aware that a consent motion recommending Senedd consent is going to be considered in Plenary tomorrow. Any comments? Otherwise, we can discuss this in private session if necessary. No, I don't see any.
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.
So, then, 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? I see there is agreement. We move now into private session.
Derbyniwyd y cynnig.
Daeth rhan gyhoeddus y cyfarfod i ben am 10:37.
The public part of the meeting ended at 10:37.