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

Legislation, Justice and Constitution Committee - Fifth Senedd

12/10/2020

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Carwyn Jones MS
Dai Lloyd MS
David Melding MS
Mick Antoniw MS Cadeirydd y Pwyllgor
Committee Chair

Y rhai eraill a oedd yn bresennol

Others in Attendance

Chris Warner Dirprwy Gyfarwyddwr yr Is-adran Materion Cyfansoddiadol a Chysylltiadau Rhynglywodraethol, Llywodraeth Cymru
Deputy Director, Constitutional Affairs and Inter-governmental Relations, Welsh Government
James Gerard Dirprwy Gyfarwyddwr yr Is-adran Trawsnewid a Datganoli Cyfiawnder, Llywodraeth Cymru
Deputy Director, Justice Transformation and Devolution, Welsh Government
Jeremy Miles AM Y Cwnsler Cyffredinol a'r Gweinidog Pontio Ewropeaidd
Counsel General and Minister for European Transition
Mark Drakeford AM Y Prif Weinidog
The First Minister

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Sam Mason Cynghorydd Cyfreithiol
Legal Adviser
Stephen Davies Cynghorydd Cyfreithiol
Legal Adviser

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

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

Can I welcome Members to this virtual meeting of the Legislation, Justice and Constitution Committee? In accordance with Standing Order 34.19, I have 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. We have a full committee today, so no apologies. Can I just ask Members if there are any declarations of interest? I don't see any declarations of interest. Can I also just say that the usual—? Oh, there are declarations of interest—David Melding.

Can I just put on record that I am the chair of the ministerial advisory group on outcomes for children, which has some application when we discuss matters relating to family law?

Thank you for that. We note that for the record. Can I say the usual housekeeping arrangements apply?

2. Gwneud i gyfiawnder weithio yng Nghymru: Sesiwn dystiolaeth 2
2. Making justice work in Wales: Evidence session 2

We're now continuing our making justice work in Wales evidence session, and I welcome the First Minister, Mark Drakeford, and the Counsel General, Jeremy Miles, together with Christopher Warner, deputy director of constitution and justice, and James Gerard, deputy director, justice transformation and devolution with the Welsh Government.

Just for clarity, because of events with regard to an urgent meeting that the First Minister has to attend, the First Minister will be with us for the first 30 minutes and the Counsel General will be with us for the full 60 minutes. Some of the questions we'll therefore jump straight to, specifically directed at the First Minister, if that is in order. And I will go straight to the first couple of questions that I wanted to ask. One of the recommendations of the justice commission was that there should be a justice Minister or a deputy justice Minister, and in the committee's recent focus group survey of legal practitioners, one of the comments that came through very clear from that was that there is lack of clarity as to a figurehead for justice in Wales. I wonder, First Minister, if you could let us have your views on those comments and on that recommendation.

Well, Chair, I think that if the commission's recommendations in the whole were to be positively pursued, then, of course, the case for a separate ministry for justice and a separate Cabinet colleague for justice would of course be strengthened, because we would as a result of the transfer of those functions to us become funded in order to have a Ministry of Justice or Home Office function. We're not, and we have neither the power, the competence nor the funding to create one.

So, what we have done in the interim is to create the Cabinet sub-committee on justice. That was a direct response to the recommendations of the Thomas commission at this point. I chair it; its membership comprises myself, the Counsel General, and Jane Hutt, the Deputy Minister in the First Minister's office, who on a day-by-day basis takes forward most of our work with the police, the prisons, and other aspects of the criminal justice system, and I think that it's fair to say that, in a professional leadership sense, the Counsel General has a significant role to play and a significant profile in Wales in that space. And, for now, I think that is the way we try and co-ordinate action across the Government to give it a coherence, to give it a focus, and while it doesn't amount to a single figurehead, I still think that it helps people beyond the Welsh Government to know where to go to see where leadership across the Government is being exercised.

Thank you for that. We can explore that point further, actually, with the Counsel General in due course. Recommendation 78 of the Thomas commission stated that,

'The Welsh Government should begin the process of reform by listing the recommendations it will seek to implement whilst the current scheme of devolution continues.'

I'm just wondering, First Minister, is there such a list, and can you elucidate the content of that list?

09:35

Well, first of all, Chair, I'm very keen to pursue that recommendation. We have developed a work programme in order to do so. It has five streams within the programme. I'm happy to share that with the committee, so you will be able to see how we are trying to take those recommendations forward. It will be no surprise to any Member of the committee if I say that it has been a challenge over the months of this year to find people in the field of justice in Wales who have the capacity to engage on that agenda. So much of the system is simply struggling to survive or to deal with the extraordinary circumstances they face. I mean, there's not just a matter of capacity within the Welsh Government; it's been a matter of capacity with our partners, who we would rely on to take forward recommendation 78, for them to have the ability to make the contribution they would need to make in order to make a reality of that recommendation. 

Diolch, Cadeirydd. Bore da, Prif Weinidog.

Thank you, Chair. Good morning, First Minister.

Jest cwpwl o gwestiynau byr, technegol rili. Mae cofnodion cyfarfod cyntaf is-bwyllgor y Cabinet ar gyfiawnder, fel dŷch chi wedi'i nodi eisoes, yn nodi y cyflwynwyd papur i'r cyfarfod yn darparu dau fodel posibl ar gyfer y rhaglen trawsnewid cyfiawnder. Allwch chi, yn sylfaenol, esbonio beth yw'r ddau fodel, ac oes yna un yn rhagori ar y llall?

I have just a few brief, technical questions. The minutes of the first Cabinet sub-committee on justice state, as you have mentioned, that a paper was presented to the meeting containing two possible models for the justice transformation programme. Can you explain what each model is and whether one is better than the other?

Wel, jest yn fras, Cadeirydd, wrth gwrs, roedd y papur yn cael ei gyflwyno yn ôl jest ar ôl y Nadolig, ar ddechrau'r flwyddyn bresennol. Y ddau fodel a oedd yn y papur oedd (1), Llywodraeth yn San Steffan fyddai eisiau bwrw ymlaen gydag agenda'r comisiwn mewn ffordd bositif. Pan oedd y papur yn cael ei baratoi, roedden ni jest ar fin etholiad cenedlaethol, so doedden ni ddim yn siŵr pa Lywodraeth fyddai yn San Steffan. So, un model oedd cael Llywodraeth fyddai eisiau bwrw ymlaen, a'r ail fodel oedd Llywodraeth yn San Steffan heb y diddordeb i symud yn gyflym gydag argymhellion y comisiwn. Wel, rydyn ni'n gwybod nawr fod Llywodraeth gyda ni yn San Steffan sydd wedi dweud ei bod yn agored i gael trafodaethau manwl gyda ni ar argymhellion Thomas, ond mewn cyd-destun lle maen nhw'n dal i ddweud dydyn nhw ddim wedi cael eu perswadio am yr achos cyffredinol i drosglwyddo cyfrifoldebau yn y maes yma i ni yng Nghymru.

Well, just briefly, Chair, the paper was presented just after Christmas at the beginning of this year. The two models contained in the paper were (1), having a Government in Westminster that wanted to proceed with the commission's agenda in a positive manner. When the paper was being drafted, we were just on the cusp of the general election, so we didn't know what the Government in Westminster would look like. So, we had one model with a Government that wanted to make progress, and a second model was a model that assumed that the Government wouldn't perhaps be interested in making swift progress with the commission's recommendations. Well, we now know, of course, that we have a Government in Westminster that's stated that they are open to having detailed discussions with us on the Thomas recommendations, but in a context where they still say that they are as yet unpersuaded about the general case to transfer responsibilities in this area to us here in Wales.

Diolch yn fawr am hynna, Prif Weinidog. Yr unig gwestiwn arall sydd gennyf i ydy: yn naturiol, rydyn ni gyd yn deall effaith pandemig COVID-19—mae wedi achosi cryn dipyn o anawsterau ynglŷn â chydweithio a sefydlu pwyllgorau ac ati, a hefyd oedi yn yr holl broses. O gofio am y cyd-destun yna, felly, mae cylch gorchwyl is-bwyllgor y Cabinet ar gyfiawnder yn nodi y bydd yn cyfarfod oddeutu bob yn ail fis. Allwch chi gadarnhau bod hynna wedi digwydd, a rhoi rhyw wybodaeth ynglŷn â'r gwaith mae'r is-bwyllgor yma wedi bod yn ei gyflawni? Diolch yn fawr.

Thank you very much for that, First Minister. The only other question I have relates to the fact that, naturally, we all understand the impact of the COVID-19 pandemic, and that that would have caused some difficulty in terms of collaboration and establishing committees, as well as delays in the whole process. Given that context, the terms of reference for the Cabinet justice sub-committee state that it will meet approximately bimonthly. Can you confirm that that is the case and give us some information as to the work that this sub-committee has been undertaking? Thank you.

Diolch yn fawr, Cadeirydd. So, rydyn ni wedi colli un cyfarfod oedd yn y cynllun gwreiddiol. Roedd cyfarfod lawr ar gyfer mis Mawrth, ac, wrth gwrs, ym mis Mawrth roedden ni jest ar ffin y cyfnod clo. So, fe gollon ni'r cyfarfod yna. Rŷn ni wedi cwrdd ym mis Gorffennaf, rŷn ni wedi cwrdd ym mis Medi, a'r bwriad yw i gwrdd unwaith eto cyn diwedd y flwyddyn. So, rydyn ni, fwy neu lai, yn y lle roedden ni eisiau bod ynddo yn wreiddiol. Ar hyn o bryd, mae'r is-bwyllgor wedi canolbwyntio ar sut rydyn ni'n gweithio, ein rhaglen waith ni, sut rydyn ni'n gallu bwrw ymlaen gyda'r argymhellion sy'n dod atom ni fel Llywodraeth. Y gobaith sydd gyda fi yw i ddatblygu'r gwaith mewn ffordd lle dŷn ni'n gallu—beth yw 'publish' yn Gymraeg?

Thank you very much, Chair. We've missed one meeting, as set out in the original plan. We were due to meet in March, and, of course, in March we were just moving into lockdown. So, we missed that meeting. We did meet in July and in September, and it's our intention to meet again before the end of the year. So, we are, more or less, where we had wanted to be originally. To date, the sub-committee has focused on how we work, our work programme, how we can make progress with the recommendations that we receive as a Government. My hope is that we can develop this work in a way where we can—what's the Welsh word for 'publish'?

09:40

Cyhoeddi. Rydyn ni'n gallu cyhoeddi mwy o'r gwaith mae'r is-bwyllgor yn ei wneud. 

Yes. We can publish more of the work of the sub-committee.

Bendigedig. Diolch yn fawr. Diolch, Gadeirydd.

Excellent. Thank you very much. Thank you, Chair.

Thank you, Chair. Bore da, Brif Weinidog. On the lack of persuadability of the UK Government on justice, I listened to a speech given by my old friend and colleague Robert Buckland, the Lord Chancellor, at the Legal Wales conference on Friday morning. I think it's fair to say that he was unpersuaded of the need particularly for a Welsh jurisdiction. But have there been any conversations between the Welsh Government and the UK Government with regard to the Thomas report and its recommendations?

Yes, Chair, we have had those. They've not been of the sort or of the intensity that we would have hoped for or had planned back in January and February of this year, but I have myself with the Counsel General held a meeting with the Lord Chancellor. On many aspects it was a very positive meeting and he did make it clear that he wanted detailed discussions on a number of the Thomas recommendations. So, it wasn't that the door was being slammed shut, but it was against the context, as he did make clear to us, that his ministerial colleagues were not persuaded of the general case that Thomas had made.

I've discussed the recommendations with the Lord Chief Justice as well, and Jeremy has had some further opportunities to explore a number of the points made in the report with UK Ministers. But we've never in this year reached a point where there is the capacity and the calm water that we would need with the UK Government to get them around the table to do that detailed work. As I said in an earlier answer, there was a point at the end of July where there were some indications that those opportunities might begin to come our way, but by the time August was over and we were back at the beginning of September, the sky was already darkening on the coronavirus front again and those opportunities haven't come our way.

Thank you, First Minister. Back in 2013, I first mentioned and made the case for a constitutional convention. As you can see, not a great deal of progress has been made in that time, but I won't take it personally in that regard. But do you detect any appetite amongst the UK Government for, firstly, legislative devolution and, secondly, wider constitutional change in order to put the UK on a more sustainable footing?

Well, Chair, Carwyn Jones was listening to Robert Buckland's contribution; I recently had a chance to listen to his contribution at a seminar in Aberystwyth devoted to these topics and I absolutely commend it to anybody who has the opportunity to listen to it, because it demonstrates—and I'm not saying this just because the former First Minister is on the call—a maturity of consideration and a depth of thought behind these matters that are very sadly lacking when you raise these very, very important matters with the UK Government. 

Let me be positive for a moment, though: under the most recent Chancellor of the Duchy of Lancaster we have seen more rapid progress in the last few months on the inter-governmental relations review that the former First Minister agreed with the then Prime Minister over two years ago at a JMC plenary. It has loitered in the weeds for a long time, but when I last spoke to Michael Gove last week, he was much more upbeat about bringing that to a conclusion and bringing it to a conclusion with some genuine gains that would have met some of our ambitions as part of that review. So, the picture is not entirely bleak, because there are some areas of progress.

More generally though, my own view of that broad constitutional frame is that, far from dealing with a Government who are looking to entrench devolution or to make sure that relationships between the four nations of the United Kingdom are put on a basis of parity of participation and esteem, there are too many voices in the current UK Government who simply believe that devolution was a mistake, and the conclusion they draw from the coronavirus experience is that the wings of devolution need to be clipped and that it needs to be rolled back so that the United Kingdom can have a more assertive centre, demonstrating to people across the United Kingdom the advantages of being part of it. I think that is deeply wrong-headed and will lead to the opposite result that they claim to have in view. But I'm afraid that that is where I think the centre of gravity of the debate currently lies in the UK Government rather than at the end of the spectrum that Carwyn suggested in his question.

09:45

First Minister—. Sorry, Carwyn, did you want to—?

No, just to say that I see that imperial arrogance is not dead in Whitehall. That's all.

First Minister, just to follow on from that, before I go over to David Melding, there's of course been, on this issue of a convention or discussion on the decentralisation of power—there has been increasing noise from, for example, the Greater London Authority, from some of the metropolitan mayors and so on, and, of course, we need to pay attention to the fact, of course, there has been a level of devolution or decentralisation taking place with England, perhaps in a slightly dysfunctional manner. Has there been any engagement with any of those authorities from the Welsh Government side?

From the Welsh Government side, we certainly have had contact with metropolitan mayors. We have some very important devolved authorities right along our border. And, you know, if you're listening to news speculation today, then in three quarters of an hour's time, I'm likely to be in a meeting talking about new measures in Liverpool, the closest of those, with a very direct impact on the economy of north-east Wales. As a result, we have had those discussions. The Mayor of London has, at various times, been included and excluded from discussions involving devolved administrations and the UK Government. I think the general point, Chair, that you were alluding to in that supplementary question is that we can't make a sensible resolution of these issues without thinking of England, and devolution in the English context, as well as between the four nations.

Thank you, Chair. Good morning, First Minister. I just have one very focused question relating to the all-Wales criminal justice board that was established in the wake of legislative powers coming in 2011. So, this is under the Welsh Government's control, unlike most other bodies in this sector that try to liaise on these issues and deal with the Ministry of Justice and so forth. Anyway, Lord Thomas said that the board should be strengthened and made transparent, with the publication of minutes and reports, and it should set a clear strategy and report to the Senedd. This is all under your control. Has any of that been done?

Well, Chair, I would need to check something pretty fundamental in the question, because my understanding may be less secure than Mr Melding's. From my memory, this board is not under the control of the Welsh Government and it was set up by the UK Government. Now, I may be wrong in that, so I'm very happy to check and make sure we give you a proper answer on it, because I'm relying on my memory of if. But—

Sorry to interrupt you, First Minister. I mean, this is a thicket, and it may be that I have made the misimpression, but there is also an England and Wales criminal justice board, and that may be what has confused you.

Well, let's make sure that we get a note so we are both better informed on this part of the thicket, indeed. What I do know, though, Chair, is that the all-Wales criminal justice board itself has recently set up a group to look at its own functioning, its own remit, its own approach to developing policy and strategy, and they've done that as a result of the recommendation of the Thomas commission. If we're talking about the board that I am recollecting, then that board doesn't have Welsh Government ministerial representation on it and that was one of the things that lay behind the Thomas commission's recommendation. I think we had thought that it was sensible to wait for that board's own review of its current priorities and way of working and that, at that point, on the basis that it was a UK Government-established body, we would go to the UK Government on the back of that review and then argue for its remit and its membership to be widened to allow Welsh Ministers to be members of it, because that would open the door to the second part of the Thomas proposals, because then there would be a route for reporting its work directly to the Senedd and for Ministers to answer questions and to be accountable for participation in the board's work.

09:50

No. I don't know if any officials could just explain, because I do apologise if I've—

Just to say that the First Minister is right to say that the all-Wales criminal justice board was established by the UK Government, by the Home Office and the Ministry of Justice. It brings together the local criminal justice boards across Wales that, in turn, were established by the criminal justice board for England and Wales. So, it's part of the UK Government infrastructure and it's chaired by the head of Her Majesty's Prison and Probation Service in Wales.

Chair, can I just—? I apologise for my error. We don't have much time, and I fear I led the First Minister up the garden path a bit there.

That admission we have on the record formally, so I thank the Member for that.

Just a couple, then, of very short questions. We had what was a historic scrutiny session with the president of Welsh Tribunals a little while back, and, of course, the second report of the president of Welsh Tribunals is going to be debated in Plenary on 3 November, I think, which we all welcome. Can I just ask a question very much about the spending on justice and the clarity of that? Because one of the points the Thomas commission raised was, of course, that a significant amount of spending on justice is actually spent by the Welsh Government rather than the UK Government. I'm just wondering what discussions you've had with the UK Government on, I suppose, improving transparency on overall spending on the justice system in Wales.

Chair, there have been a number of discussions with the UK Government on both data on justice and making that more specifically available in relation to Welsh justice matters. I think we made some progress there. We made less progress in our discussions with the UK Government on spending on the justice system. Their argument to date has been that because justice is not devolved, then it's not easy for them to disaggregate budget figures. Now, we continue to make that argument to them, but I think their systems don't easily allow them to do that, and they make the point to us, which I think is probably a fair point, that spend in Wales doesn't necessarily reflect spend on Wales, because not all Welsh prisoners are accommodated in Wales, for example, and not all Welsh court cases are heard in Wales. So, I think that is an additional complication in getting transparent figures on the spending on justice. I don't, myself, detect in the correspondence and discussions we've had with the UK Government that it's an objection in principle. It is a significant practical challenge to them, because their systems—the way they do things, their computer programmes and so on—just don't produce the data in the way that we would find most helpful.

First Minister, thank you for that. Those are the specific questions that we wanted to direct to you, and we're aware, obviously, of the urgent meeting you have. Did Members have any specific questions they wanted to put to the First Minister? Otherwise I'm going to release the First Minister—a rather unfortunate turn of phrase when we're discussing justice. In which case, First Minister, thank you for your session. We appreciate the urgency of the other matters you've got to discuss. If it's in order, we can release you now and go over to the Counsel General to continue our scrutiny session.

09:55

I regard it more as parole rather than a release, given that I will no doubt be back in front of you. [Laughter.]

I appreciate that. Counsel General, we now revert to you. Can I just take you back to one of the issues raised right at the beginning? The First Minister referred to the justice committee that exists and the five streams that are in operation. I don't know if you're able to say any more about those streams, but certainly it would be helpful for us to have a note of them, so that we can consider those. But if there's anything you wanted to add about that now, then it would be helpful to have it now.

Just to say, Chair, if I may, I think we will provide you with a note if we may, because that will give a fuller picture to the committee. But necessarily, some of the actions that are capable of being taken can be taken in the short term with a fair wind, and others need a longer term horizon to be able to be pursued to maturity. But there have been, despite the circumstances that we've been living through and the pressures on Governments and partners in the sector at large as a consequence of coronavirus, there have been some items of progress to report, Chair. So, I'm very happy to outline some of those if you'd find it helpful pending that broader description from—

If I just choose five or six of them, perhaps, to give you a sense of progress. I'm very pleased to see the changes to the civil procedure rules, for example, which we're grateful to His Honour Judge Jarman, in particular, for pursuing with vigour. The effect of that is a very practical effect: it will be compulsory from now on for cases against Welsh public bodies that are around challenging lawfulness—judicial review cases, effectively—so, cases against Welsh public bodies will now have to be issued and heard in Wales, which some members of the committee may be surprised to hear wasn't previously the case. But that's a significant positive development.

The work around national procurement, the National Procurement Service contract, the new solicitor service framework, which was a point that was raised around building the capacity of the sector. We expect that to be available to use by the end of November, beginning of December this year, and baking in to the criteria some of the points that the commission itself made around encouraging firms to develop relationships with educational establishments, to be clear in their commitment to innovation, and so on, so some of the issues that the commission identified in that space.

There's some really good progress, perhaps surprisingly, actually, with the SRA, the Solicitors Regulation Authority, which is now committed to delivering the solicitors qualifying examination in both Welsh and in English, and will, over a period of four years, move to parity between the two languages, which obviously is positive.

The committee will know, I think, about the work we've been doing with the UK Government around residential centres for women. So, an announcement in May for one of those to be planned for Wales, so I think that will be very positive when that comes to fruition. The work on the blueprints that the commission obviously acknowledged in its report has been progressed.

And lastly, I think, Chair, to draw to your attention—you mentioned the work of the tribunals a moment ago—the Law Commission project in that space. Obviously, we see that making progress; we're very keen on that. We hope it will be in a position to report next summer, summer 2021, and that, I think, will be a very significant contribution to rationalising that part of our justice landscape in Wales.

Thank you for that. I think that's been very, very helpful. I'll go over now to some of the other areas we wanted to discuss. Dai Lloyd.

Diolch yn fawr, Cadeirydd. Dwi'n credu bod y Prif Weinidog wedi ateb fy nghwestiynau mewn modd cynhwysfawr iawn. Diolch yn fawr.

Thank you very much, Chair, but I think the First Minister has responded to my questions in a very comprehensive manner already. Thank you.

10:00

Thank you for that. Well, can I go over, then, to Carwyn Jones? 

Diolch, Cadeirydd. Un cwestiwn sydd gen i—mae'r Prif Weinidog wedi delio â'r cwestiynau oedd gen i—a hwnna yw: pa fath o gydweithrediad sydd wedi bod rhwng Llywodraeth Cymru a Llywodraeth y Deyrnas Unedig ar gyfiawnder? Rŷn ni'n gwybod yr ateb i hwnna, ond ym mha ffordd ydy hwnna wedi newid, efallai, neu o gwbl, yn ystod y pandemig?

Thank you, Chair. I've one question. The First Minister has dealt with many of them, but one question: what kind of collaboration has there been between the Welsh Government and the UK Government on justice? We heard a response to that, but how has that changed, if it has changed at all, during the pandemic?

Wel, mae'r pandemig, wrth gwrs, fel rŷn ni wedi esbonio eisoes, wedi bod yn rheswm pam, efallai, fod llai o gynnydd wedi bod yn y trafodaethau a'r maes hwn yn gyffredinol nag y byddwn i wedi dymuno a chynllunio. Ond mae hefyd wedi bod yn enghraifft fyw o'r system gyfiawnder ar waith mewn cyfnod pwysig, ac wedi dangos, buaswn i'n dadlau, pam y mae'r achos sy'n cael ei wneud yn adroddiad y comisiwn mor bwysig. Hynny yw, y cwestiwn yma o'r ffin rhwng yr hyn sydd wedi ei ddatganoli a'r hyn sydd wedi ei gadw nôl. Mae hynny wedi bod yn glir yn y cyfnod diwethaf, buaswn i'n dadlau.

Ar lefel weithredol, hynny yw, ar lawr gwlad, mae rôl unigolion yn y system gyfiawnder mewn amryw o feysydd wedi bod yn rhagorol, ac rydym ni wedi bod yn ddibynnol, buaswn i'n dweud, ar ewyllys da ac ymroddiad unigolion o fewn y system i gael canlyniadau positif, a hynny, os caf i ddweud, er gwaethaf y setliad, nid oherwydd y setliad. Rwy'n credu bod y pandemig wedi taflu goleuni ar ystod eang o bwerau sydd gan y Llywodraeth yma yng Nghymru a'r Senedd mewn cyd-destun penodol am ein bod ni wedi arwain ar amryw o gamau ac o feysydd lle efallai y buasai pobl Cymru yn y gorffennol wedi ei chymryd hi'n ganiataol mai cyfrifoldeb Llywodraeth y Senedd a'r Llywodraeth yn San Steffan fyddai hynny. Felly, mae hynny, rwy'n credu, wedi newid. Mae wedi gorfodi, hynny yw, yn y cyd-destun hwnnw, cydweithredu ar draws y Deyrnas Gyfunol, ond buaswn i'n dweud ei fod e wedi cryfhau'r ddadl dros yr hyn mae'r comisiwn yn galw amdano fe ac mae Llywodraeth Cymru yn galw amdano fe. Dros y cyfnod hwn, mae amryw o sefyllfaoedd wedi codi lle rŷn ni wedi gofyn am ymrwymiadau gan y Llywodraeth yn San Steffan, er enghraifft, sut mae'r llysoedd a'r carchardai yn gweithredu ar lawr gwlad, o ran bod yn ddiogel yng nghyd-destun COVID ac yng nghyd-destun y rheolau penodol sydd gennym ni yma yng Nghymru ar gyfer y gweithle, er enghraifft, sydd yn effeithio ar hynny.

Rŷn ni wedi galw hefyd, yn y cyfnod yma, am gefnogaeth, er enghraifft, i'r proffesiwn, o ran cefnogaeth economaidd. Ac, ar fwy nag un achlysur, rwyf wedi ysgrifennu at y Twrnai Cyffredinol yn San Steffan i'w hatgoffa hi o ddyletswydd y Llywodraeth y Deyrnas Gyfunol i fod yn eglur gyda phobl ynglŷn â chyfathrebu beth yw'r gyfraith. Ar y dechrau, roedd sialensiau amrywiol o ran hynny, fel rwy'n siŵr eich bod chi'n cofio, a bu'n rhaid i fi ysgrifennu i sicrhau bod rheol y gyfraith yn cael ei chefnogi gydag eglurder ar ran pob Llywodraeth yn y Deyrnas Gyfunol.

Well, as we've explained, the pandemic has meant that there has, perhaps, been less progress in the discussions and this area generally speaking than we would have hoped for or planned for. But it's also been a living example of the justice system in action at an important time, and it has demonstrated, I would argue, why the case made in the commission's report is so very important. It's this question of that boundary between what is devolved and what's reserved. That's been quite clear over recent months, I would argue. 

On an operational level, on the ground, if you like, then the role of individuals in the justice system in many areas has been excellent, and we have been reliant, I would say, on the goodwill and commitment of individuals within the system to have positive outcomes and that, if I may say, is despite the settlement, rather than because of it. I think the pandemic has cast light on the broad range of powers that the Government here in Wales and the Senedd have in a very specific context, because we have led the way in a number of areas where, perhaps, the people of Wales in the past would have assumed that it would be the responsibility of the Westminster Government. So that's changed, I think. In that context, it's required collaboration across the UK, but I would say that it's strengthened the argument for the commission's recommendation and what the Welsh Government is calling for. And of course, over this period, a number of scenarios have arisen where we've asked for commitments from the Westminster Government, for example, in terms of how courts and prisons operate on the ground, in terms of COVID safety and the particular rules that we have here in Wales in terms of workplaces, which would have an impact on that.

We've also called during this time for support, for example, for the profession in terms of economic support. And, on more than one occasion, I've written to the Attorney General in Westminster to remind her of her of the UK Government's obligation to be clear with people in terms of communicating the law. At the beginning, there were many challenges related to that, as I'm sure you'll recall, and I had to write in order to ensure that the rule of law was supported with clarity on behalf of all Governments in the UK.

Diolch. A gaf i ofyn felly cwestiwn mwy eang, yn codi o araith yr Arglwydd Ganghellor ddydd Gwener diwethaf? Yr argraff oedd yn cael ei rhoi oedd hyn: pe tasai Cymru yn cael awdurdodaeth ei hunan, byddai rhyw fath o rwystr i gyfreithwyr o Loegr neu Ogledd Iwerddon neu hyd yn oed Ynys Manaw o ran ymarfer eu proffesiwn yng Nghymru. Nawr, wrth gwrs, rydyn ni'n gwybod o enghraifft Gogledd Iwerddon ac Ynys Manaw dyw hynny ddim yn wir. Mae'n ddigon rhwydd i gyfreithiwr o Gymru a Lloegr i weithio yn yr awdurdodaethau hynny. Ond yr argraff sy'n cael ei rhoi wastad yw y byddai Cymru'n rhywbeth fel yr Alban, lle y byddai'r gyfraith yn gymysgedd o gyfraith Rufain a'r gyfraith gyffredin. Allwch chi gadarnhau taw—wel, eich barn chi? A gaf i ofyn eich barn chi ynglŷn â pha fath o awdurdodaeth fyddai Cymru? Ai awdurdodaeth y gyfraith gyffredin, lle byddai'n rhwydd i gyfreithwyr fynd nôl ac ymlaen mewn a mas o Gymru—wrth gwrs, mae'n bwysig bod ein cyfreithwyr ni'n gallu gweithio yn Lloegr—neu ryw fodel o'r Alban? Achos yr argraff dwi wastad wedi'i chael yw taw'r un cyntaf yw'r un byddem ni'n moyn gweld yng Nghymru.

Thank you. Could I ask a broader question, and it arises from a speech made by the Lord Chancellor last Friday? The impression given was this: that if Wales had its own jurisdiction that there would be some sort of barrier in terms of lawyers from Northern Ireland, England or even the Isle of Man practising law in Wales. From the examples of Northern Ireland or the Isle of Man, we know that that's not the case. It's easy enough for England and Wales lawyers to work in those jurisdictions. But the impression given is that Wales would be more akin to Scotland, where the law would be a combination of Roman law and common law. Could you—? May I ask your view as to what kind of jurisdiction Wales would be? Would it be a common law jurisdiction, where it would be easy for lawyers to work inside and outside of Wales—and it's important that our lawyers can work in England—or would it be along the Scottish model lines? Because the impression I've always had is that it's the first that we'd want to see here in Wales.

10:05

Rwy'n gwerthfawrogi'r cwestiwn. Mae'n rhoi cyfle i fi fod yn gwbl eglur ar y testun hwn sydd, wrth gwrs, yn bwysig yng nghyd-destun sylwadau’r Arglwydd Ganghellor ac, i fod yn deg, yn bwysig yng nghyd-destun amheuon sydd mewn elfennau o'r proffesiynau. Rwy'n cydnabod bod hynny, wrth gwrs, yn bodoli. Felly, a gaf i fod yn gwbl eglur yn hyn? Fel mae'r comisiwn ei hun yn ddweud, gyda llaw, ac fel mae tystiolaeth Llywodraeth Cymru i'r comisiwn yn dangos, dydyn ni ddim yn gweld bod unrhyw achos dros gyflwyno unrhyw rwystrau i gyfreithwyr yng Nghymru a Lloegr allu bod yn gyfreithwyr ac yn practisio yn y wlad arall, fel petai. Felly, does dim angen unrhyw rwystrau yn hynny. Mae'n berffaith bosibl sicrhau bod y ddwy gangen o'r proffesiwn yn y ddwy wlad yn gallu gweithredu yn gyflawn yn y ddwy wlad arall heb rwystrau. Felly, mae hynny'n gwbl gyson gyda'r hyn sy'n cael ei argymell yn yr adroddiad a'r hyn sydd yn nymuniad Llywodraeth Cymru fel cynllun ar gyfer y dyfodol. 

O ran y cwestiwn hwnnw am y system gyfraith gyffredin, wrth gwrs, mae'r rhelyw, mae'r rhan fwyaf o'r cyfreithiau sydd yng Nghymru ac yn Lloegr yn gyffredin oherwydd y datblygiad dros ganrifoedd, ac mae hynny yn mynd i fod yr un peth am ganrifoedd eraill yn y dyfodol fe fuaswn i'n awgrymu, oherwydd natur datblygiad y gyfraith dros gyfnod. Ac mae argymhelliad y comisiwn, hynny yw, o edrych ar y system llysoedd a'r system farnwriaethol mewn awdurdodaeth sydd wedi'i diwygio, yn cynnwys ar y brig rôl barhaol i'r Goruchaf Lys. Rhan bwysig o hynny yw bod y Goruchaf Lys yn goruchwylio datblygiad y gyfraith gyffredin ar draws y Deyrnas Gyfunol yn gyfan gwbl, ond yn sicr yng Nghymru a Lloegr. Felly, rwy'n gwerthfawrogi'r cyfle i allu bod yn glir am hynny ar y record. 

I appreciate that question. It gives me an opportunity to be quite clear on this issue, which, of course, is important in light of the Lord Chancellor's comments and also important in the light of some doubt within the professions. I accept that that does exist. So, let me be quite clear on this. As the commission itself says, and as Welsh Government evidence to the commission demonstrates, we don't see that there is any case for introducing any hurdles for lawyers in England and in Wales to practice in either of the two countries. So, there's no need for any barriers to be put in place there. It's perfectly possible to ensure that both branches of the profession in both nations can operate fully within those jurisdictions without barriers. So, that's entirely consistent with what is recommended in the report and with the Welsh Government's aspirations in terms of the future. 

In terms of that question on common law, of course, most of the laws made in England and Wales are common because of developments over a period of centuries, and that will remain for centuries to come, I would suggest, because of the nature of the development of law over a period of time. And the commission's recommendation in looking at the courts system and the judiciary in a reformed jurisdiction gives a permanent role to the Supreme Court. An important part of that is that the Supreme Court would oversee the development of common law across the UK in its entirety, but certainly in Wales and in England. So, I appreciate the opportunity to provide clarity on that and to put it on the record.

Good morning, Counsel General. In the report, Lord Thomas says that the quality of data needs to be improved because you can't really scrutinise without good data, and this is particular for any enhanced role for the Senedd in terms of scrutinising this area. I notice that the First Minister has written to us to say that co-operation with the Ministry of Justice has improved, but COVID is making things difficult. But in terms of disaggregating data, where are we and are you fairly optimistic that even if progress has been somewhat delayed, the intention to improve the data is a shared intention now between the Welsh Government and the UK Government? 

I thank David Melding for that question. I think there has been progress in relation to this question generally, and it is, as you were saying, David, essential to the question of a fuller understanding, plainly, of the operation of the justice system in Wales. So, as you mentioned, the First Minister has written to the committee. There has been joint working with the Ministry of Justice in this space to bring together, if you like, the data that is published about justice specifically in Wales, and we are, as a Government, developing a justice dashboard that, essentially, brings together that data.

That's currently in development, if you like, in a beta stage within the Welsh Government to test whether it does the best job that it can do. Obviously, our ambition is for that to be then more widely available, but in order to get to where we are there has been a pretty comprehensive, I think, assessment of what data is readily available, i.e. what sorts of data, what categories of data, as it were, are available on justice in Wales, and that has thrown up, as you would expect, gaps, clearly, which, in a sense—. Obviously, gaps are not helpful, but knowing that they exist is helpful. So that, then, provides the basis for, bluntly, being able to try to plug those gaps together with the Ministry of Justice. So, that's where we are. When that justice dashboard is a more functional tool, I would very much hope that we'd be able to share that more widely. 

10:10

Well, thank you for that answer, and I'm sure we'll be very interested to follow progress. Another aspect, which I thought was very interesting, a very subtle point actually, in Lord Thomas's report, is that the Ministry of Justice itself needs to be a bit more aware of its services in Wales, and if we continue to have this single jurisdiction—it's not an English or Welsh jurisdiction, it's England and Wales—he says that it would be helpful if there was a UK Minister that was specifically looking at this aspect of MOJ services in Wales, and I believe that the joint justice in Wales working group has also made a similar recommendation. Has any progress been made on that, or is this not something the UK Government thinks is a priority? 

Well, on the justice in Wales working group more broadly, certainly—. Essentially, that was a UK Government initiative, reporting to UK Government Ministers. But I think one of the benefits of having a number of interventions, if I can say that, if I can put it in that way, in the justice space over the last four or five years, I guess, is that it's all provided a body of reflection on different aspects, which has then been taken into account by the commission most recently in its very comprehensive report. So, I think that's all contributed to that broader picture. But there is obviously ministerial contact, as you heard the First Minister say earlier, both at the First Minister's level and also at a ministerial level with Ministers in the UK Government. I think the point that the Lord Chancellor has made previously, including in public speeches and so on, is that his concern isn't so much around process, as it were, but around outcomes. I, myself, think that provides ground for optimism, because if we are focused laser-like on outcomes then we organise our arrangements in whatever way achieves the best set of outcomes, and I think that provides a constructive context for us to take these discussions forward. 

I agree that outcomes are what matters, but, for instance, does the Ministry of Justice board ever meet in Wales to discuss Welsh interests? Are Welsh matters specifically ever on the agenda? Or is it all incorporated into the joint—[Inaudible.]? 

I might ask—. I don't, I'm afraid, myself know the exact answer to that question, David. I might ask James perhaps if he could help with that. James.

The short answer, I'm afraid, is I don't know either. I'm not aware of the Ministry of Justice board having met in Wales, and I wouldn't necessarily know what has been on the agenda. 

Okay. Well, I think it would be useful for us to get that information.  

And then, similarly, the independent expert advisory committee, to add to the thicket, which is—. I know this is chaired by the Ministry of Justice. Anyway, that was established in 2018, and I just wonder what assessment you've made of its contribution at the moment. 

Well, I think it was—. My impression, certainly, Chair, and I hope I'm not doing anyone a disservice in this, is that it was a one-off process, really, with an end point, rather than the beginning of a longer term horizon piece of work. I may be wrong in that, but my understanding is that it hasn't met, as it were, since then, since its report—[Inaudible.]—last summer. So, there's a challenge, isn't there, in how one approaches this when you don't entirely accept the premise of an undertaking. So, Welsh Government officials engaged in that, really, without prejudice, if I can put it like that.

So, the Government's position is that justice should be devolved. I think the work of that committee was predicated on—and it's populated with people of great standing, clearly, and great expertise, but it was predicated on answering a question that says, more or less, 'Divergence is posing a problem for the arrangements that we currently have in place—how do we solve that problem?' And I think if you start with a fixed point—and the fixed point is the arrangements you currently have in place—if you start with the immutability, if you like, of the current set-up, then, bluntly, you're not going to get the right answer if your actual interest is in the outcomes.

So, that's why I think, just to echo the point I made earlier, if you start from the outcomes, that's a much better kind of context for discussion. If you start from looking at divergence as a problem to be solved in the context of a fixed set of arrangements, then, although the contribution to solving that question is important, it doesn't answer the bigger question, if I can put it like that.

10:15

Counsel General, the final question I have relates to family justice, family law, and this is of particular interest to me as chair of the ministerial advisory group on outcomes for children, which, you will know, the First Minister, when he was health and social services Minister, set up, with one of its priorities to examine the level of court orders and the number of children being taken into care and to see if they could be safely reduced. I think there's a very strong consensus that too many court orders—[Inaudible.]—and this is having a big impact on public policy. Lord Thomas was very interested in this—he specifically looks at this issue of the disparity in the numbers taken into care in Wales compared to other parts of the United Kingdom. He recommends that the delivery group needs to give focus to the family justice network for Wales, and it particularly needs leadership and accountability. Now, do you agree with that, and has anything been done to sharpen its leadership and accountability?

Well, just to say, I recognise the point that you make, David. The first conversations, I think, which I may have had with Lord Thomas in relation to the work of the commission at a reasonably early stage—it was incredibly clear the urgency of his focus on this part of the justice system and the level of his commitment to addressing it. It seems to me, it seems to us, that the proposal is a sensible proposal. I think it also needs to be seen, though, in the context of a range other interventions in the space, and so how you would approach it needs to look at the broader context. So, there's the work of the peer learning and support group, for example, and then there's a transformation support team, all of which are designed to, frankly, develop best practice and share best practice, and to work alongside local authorities to deliver better outcomes. So, I think all of that needs to be looked at together, really, in terms of how we address that focus on delivery, as you suggest.

Thank you for that. Can I ask a couple of questions that follow on from that? Now, obviously, the justice system, or the larger part of the justice system, is not devolved—it's under the Ministry of Justice—but, obviously, there are significant implications in terms of our responsibility for consequences. So, for example, within the criminal courts, within the family courts and so on, there are substantial delays because of the situation we're in with COVID. Has there been any assessment carried out as to the levels of backlogs of court cases and so on within Wales, and what implications that may be having for those services that are our responsibility, that are in support of those court services within Wales?

Yes. There's an ongoing set of discussions around that, and I know that's been raised on an inter-ministerial level as well. The point that you make, Chair, is important on a number of different bases, and I think one of them is the impact, as you say, on other services. I think perhaps, in the extraordinary circumstances that we've been working through in the last few months, we will all have understood the extent to which individuals in the justice system have responded, I think, with commitment and vigour to making those situations work as best they can, and, indeed, the system as a whole has adapted, but I think the fragility of the system going into that level of pressure as well is not to be set to one side in that overall picture.

And, to go back to the point that you raised with the First Minister earlier around expenditure on the system, I noted, for example, in the comments that the Lord Chancellor made at the Legal Wales conference on Friday that part of the rationale that he gave for the continued conjoined jurisdiction of England and Wales was to enable there to be a sharing of resources and efficiencies. Well, bluntly, I think what we've had is a sharing of austerity in relation to justice expenditure, and we would like to be in a position to develop different sorts of initiatives in some of these areas. The family justice area that David Melding was asking me about a moment ago is a very good example of this, around how things could be done differently within a different set of existing policies, existing agencies, and a different approach in terms of the outcomes sought, perhaps. There's a debate around how best to approach these things, but clearly we have a different view in Wales in some of these areas than exists in England, and I think that's why the proposals for devolution in this space are so constructive, because they do allow a different way of approaching some of these quite longstanding challenges.

10:20

Do we have any data, then, on the performance of the Welsh courts in comparison with the courts in England? If there is that data, is there compatibility or is there any significant variation?

Chair, if you'll allow me, I'll see what information that can be made available and let you have whatever we can, if you'd be happy with that.

Okay. Thank you for that, Counsel General. Can I ask one further question? And I'll then ask the other Members for any final questions. We spend in the region of, I think, £8 million a year within Wales in providing advice services. Many of those are advice services that were previously covered by the extended legal aid scheme and, of course, the Welsh Government has picked up those responsibilities. How are we evaluating the value for money of those—the quality of those services, the delivery of those services?

Well, there's been a lot of work in this space, as you will know, Chair, both in terms of putting in place a robust framework for quality evaluations—. So, with the quality framework, for example, across the independent advice network generally, and information network generally, we now have a separately evaluated set of quality frameworks, quality assessments, which gives confidence, then, in terms of the advice services being provided. And I think that the rationalisation, if you like, or the bringing together, of the funding through the single advice stream has provided greater flexibility. I think the regionalisation of how this is delivered provides real potential for delivering advice really deeply into the heart of the communities that need it most. And I think—. There's a case, it seems to me, to explore whether the single advice fund, for example, might be extended beyond its initial 12-month period to give a slightly longer time horizon, which, obviously, advice services, as we will all know, are very anxious to be able to secure for themselves. But I think the foundation of the quality framework and the action plan from 2016—2016, I think it was—provides a good foundation for some of those services.

Again, though, the commission makes a recommendation for bringing together advice funding and legal aid, and that's a very creative, very ambitious recommendation, it seems to me, and it's a very, very interesting recommendation, certainly, but, plainly, when the boundaries for devolution are where they are today, there's an obvious obstacle to delivering that in practice. But it's that sort of big, creative idea that I think is very—you know, should be under consideration. Chris is indicating that he—

Thank you, Chair. I just wanted to add that the other thing that we're doing is we've been looking closely at the post-implementation review of the legal aid reforms that the Ministry of Justice published some time ago now. We asked for some specific engagement with them on the situation in Wales and we haven't been able to follow that up as quickly as we would have done given other events, but that's still very much on our list, to look at that end of the picture.

10:25

Thank you for that. Can I make one suggestion, Counsel General? It's just this: we will have on 3 November the president of Welsh Tribunals doing a, you know—it will be the first, in fact, full discussion on that aspect of the justice system that will be coming before the Senedd, so I think that's a really important step.

In terms of all the things we've been talking about today, do you not think it would be appropriate that there should be each year an annual justice report on justice in Wales that brings together all these things that are part devolved, some devolved, many of them not devolved, but which impact massively, and that there would be an annual justice debate, I think, and scrutiny of the justice system within Wales, outside—? I just wonder if that's something you think might be worth consideration by the committee you sit on with the First Minister.

It's certainly worthy of consideration, Chair, for the reasons that you give, and I myself very, very strongly welcome, for example, the extended remit of this committee, and the visibility that we all wish to see on the floor of the Senedd and in the Welsh devolved public space, if you like, to justice. And I would be very interested to hear, perhaps, this committee's further recommendations around such an annual event.

Thank you for that, Counsel General. Dai Lloyd, did you have any further questions you wanted to ask? David Melding, any further questions? Carwyn Jones, any further questions?

Well, Counsel General, can I thank you for, firstly, stepping in, but also for the fullness of the answers? We appreciate the difficult circumstances in which we are, and also the fact that the amount of progress I think we would have all wanted to see is obviously restricted to some degree because of the events to do with not only Brexit legislation but also the COVID pandemic. There will be a transcript of evidence that will of course go to you in the usual way. We thank you for your attendance and that of your officials today. Thank you very much.

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

We now move on to item 3, and we move on to 3.1: the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Wales) Regulations 2020. The Act increased the notice period landlords were required to give a tenant when seeking possession. These regulations extend until 31 March 2021, the period during which increased notice must be given to tenants granted tenancies under the Rent Act 1977, and the Housing Acts of 1985, 1988 and 1996. Previously, the end date was 30 September 2020. If I can just go over to Gareth now for some legal views.

There are four merits points starting on pack-page 34. The first merits point notes a breach of the 21-day rule, but questions why there was a need to bring these regulations into force just one day after being laid. Did a last-minute emergency arise or was this something that could have been planned a little more in advance?

The second merits point notes the impact that the extended notice period will have on landlords and the landlord's human right to do what they want with their properties. Of course, during this period, there's been a huge impact on tenants, but there still needs to be a consideration of the rights of landlords. It's a balancing act between the rights of landlords and the rights of tenants, but there's no reference to that balancing act in the explanatory memorandum.

The third merits point notes that this is a change of law that applies to already existing tenancies; it isn't just for new tenancies. And the fourth merits point notes the lack of consultation in making these regulations and the apparent lack of consideration of the impact on landlords, all of which really ties in with the earlier point about the balancing act between the rights of landlords and the rights of tenants. The Welsh Government has not yet responded to these points.

I agree with public policy in this area, just given the additional vulnerability that—on average, anyway—tenants are in. But it is troubling that the 21-day rule has been broken—it's obviously extending a policy. I don't think it's an emergency measure; it is extending a policy because we're still in a public health crisis, and that may last another six or 12 months. Well, we've known that for some time, frankly, and I don't think there's a justification to have broken the 21-day rule; far less to do it so abruptly as well—just a day. And I think, you know, we've made earlier comments that we need some sort of assessment of how this is affecting landlords—not that it will shift public policy, but if there is particular hardship being caused, and they are a very diverse group landlords, then not even to consult with them to see if there's any evidence there—. I accept that what the Government can do actively to gather data maybe somewhat limited in this situation, but not to consult—I just think that's very poor. 

10:30

Any other comments? No, I see there are none. I mean, I certainly take those points on board. When we do get the response, I think there are issues that actually arise here, because I think that point David's making is, of course, these regulations were predictable, rather than things that have occurred as a result of changes taking place and so on, and I think there are valid issues to look at there. But perhaps we note those when we get the response from Government on these particular points, and particularly, I think, the valid point in terms of the 21-day breach, which I think is valid.

So, we then move on to item 3.2: the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 13) Regulations 2020. These are the thirteenth set of amendment regulations, which amend the international travel arrangements, imposing requirements on persons entering Wales after having been abroad. The regulations were made on 2 October and came into force on 3 October. Again, I go over to Gareth for some legal comments. 

Just the one merits point on pack-page 67, noting a breach of the 21-day rule.

Okay, we note that. Any comments or observations? If not—. And we have, of course, been collating all the 21-day breaches, for reasons we've previously discussed.

I move on to the Smoke-free Premises and Vehicles (Wales) Regulations 2020. Members have the explanatory memorandum, the Government statement of the 29 September, and the report and regulations. These are regulations that exempt certain premises from the requirement to be smoke free, under the Public Health (Wales) Act 2017, and they've set out the circumstances in which vehicles are to be treated as being smoke free. The regulations also make provision about displaying signs and provision relating to enforcement. Gareth.

There are three merits points, starting on pack-page 81. Under these regulations, more homes that are workplaces will be captured by the smoking ban, and the first merits point notes that the explanatory memorandum makes no reference to any potential impact this may have on human rights, namely the right to a private life and to do what you want in your own home. The second merits point asks the Welsh Government if it can confirm when various sections of the Public Health (Wales) Act 2017 will come into force. As regards the third merits point, these regulations set out the technical specification of no-smoking signs, for example that the signs must include an image of a burning cigarette inside a circle, with a line cutting through the burning cigarette. That is a type of technical specification that had to be notified to the European Commission and all EU member states, in case there were any objections at EU level. There were no objections, so the regulations could be laid before the Senedd. A Welsh Government response has been requested for the first two points, but no response yet.

Okay. The Plenary debate on these regulations is going to be on 20 October. Any comments or observations? No. 

So, we move on to item 3.4: the Senedd Cymru (Disqualification) Order 2020. Now, prior to each Senedd general election, an Order in Council under section 16 of the Government of Wales Act 2006 is made, and that specifies the offices whose holders are disqualified from membership of the Senedd. At present, the National Assembly for Wales (Disqualification) Order 2015 is still in force, therefore persons holding any of those offices specified in that Order are disqualified from membership of the Senedd. So, this regulation will revoke the 2015 Order and set out an updated list of disqualifying offices before the next Senedd general election. Gareth.

10:35

There are two merits points, starting on pack-page 149. The first point notes the role of this committee's predecessor, the Constitutional and Legislative Affairs Committee, in determining the list of disqualified offices. The second merits point notes that further consultation was carried out, which resulted in further offices being added to the list of disqualifying offices. These include the secretary of the Boundary Commission for Wales, the Information Commissioner, commissioners and non-executive board members of the Law Commission, commissioners of the Judicial Appointments Commission, and the Judicial Appointments and Conduct Ombudsman.

Thank you for that. And, of course, the Plenary debate on this is also going to be on 20 October. Any comments or observations? No, thank you for that.

We now move on to the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 16) (Conwy, Denbighshire, Flintshire and Wrexham) Regulations 2020. Members have the various papers in front of them. These regulations amend the principal regulations. They designate the county boroughs of Conwy, Wrexham, the counties of Denbighshire and Flintshire as local health protection areas subject to local restrictions and requirements. These regulations were made on 30 September and came into force on 1 October. Gareth.

There are three merits point, starting on pack-page 168. The first merits points is something new—it asks the Welsh Government to set out the evidence when it makes significant changes to the coronavirus restrictions in Wales, if Members are content with that approach. In the event of the restrictions being made before being laid before the Senedd, the report also says that evidence of that urgency should also be provided. And the draft report suggests that the evidence should be included in the explanatory memorandums. The Welsh Government has not yet responded to this point.

The second and third merits points note that these regulations are a further tightening of the restrictions—this time capturing Conwy, Denbighshire, Flintshire and Wrexham—and that there has been no formal consultation, but the public has been made aware of the changes by public information broadcasts, and that these changes were announced in the Senedd on 29 September.

Thank you, Chair. I think the point about evidence is the crucial one, because, as we've said many times in this committee, we are passing these coronavirus regulations retrospectively all the time, and so now we're obviously still passing them retrospectively, and not clear on the basis that they were passed in the first place. So, I think that point about evidence is a very strong and valuable one, particularly in view of our scrutiny role. We cannot scrutinise—we just end up, then, just nodding through things. So, it's an important point for the whole scrutiny process.

Yes, just to back up what Dai has just said, I mean, clearly, we're in a situation where regulations are being made in a manner that we would regard as quite irregular in a settled, normal environment. I think the balance here is that if you had to act very quickly, very little consultation even with the main authorities, let alone the people, then I think you have to have strong evidence, and that needs to be provided, and I think to set that out in the explanatory memorandum. I mean, it doesn't need to be exhaustive; if the evidence is strong, you only need a few pieces, I presume, to indicate the infection levels or the number of critical care beds being occupied, things like that. So, I think, to get the public consent over a long period for this sort of thing, you need the evidence.

10:40

We know also that Members receive many requests asking what the evidential basis is. I think that it's appropriate. I gave that commitment, actually, in the report I did last week in the Senedd, and this is something, Gareth, that we do need to pursue with Welsh Government. So, we await that response, et cetera, but I think this isn't something we can allow to bypass. I think the point, David, that you make is very proper—that this does not require voluminous information, but it does require the basic criteria. It also enables us, from set of regulations to set of regulations, to see what the criteria are that have been taken into account and what changes are occurring that are determining what those regulations are. It seems to me that is something that is very important to have on the record and to understand.

Okay, we move on then to item 3.6, which are the health protection No. 17 regulations of 2020. These make amendments to the 2020 regulations. They were made on 2 October, came into force on 3 October. Gareth.

There are two merits points, starting on pack page 183. The first notes the Welsh Government's justification for any interference these regulations may have on human rights. The second merits point notes, again, there's been no formal consultation.

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

In that case, we move on to item 4, the health protection No. 12 regulations 2020. We considered these regulations on 5 October, and we laid our report on that day as well. We've received now the Government response. Any comments, Gareth?

The committee had raised the point that the coronavirus restrictions are becoming increasingly difficult to keep up with and to understand and that there seems to be general confusion across Wales. To me, the Welsh Government response on pack page 200 just does not address the point about confusion among the Welsh public.

The committee also raised a point about the review of the restrictions, in particular, when new areas are added to the list of local lockdown areas, what happens if this happens just two days before the already existing review date? So, for example, there was a fixed date to review the local lockdown areas by 24 September, and Bridgend was added as a lockdown area on 22 September. My understanding is that the Bridgend lockdown should have been reviewed by 24 September, and I think the Welsh Government response is saying that reviewing the Bridgend lockdown within two days would have been superfluous and, therefore, was not done.

Okay. We can pursue—. Certainly, I think that first point on the confusion is a very valid point that has not been dealt with, and we can pursue that by going back to Welsh Government and asking for greater clarification on that. Any other comments or observations? No.

In which case, we move on to item 4.2, which is the international travel No. 12 regulations, which we considered on 5 October. We laid our report, again, the same day, and we've had the Welsh Government's response on that. Gareth.

Only to note that the error raised by the committee has now been corrected.

And that's good to note. Any other comments or observations? If not, we move on to item 5.

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

We're on to the Senedd and Elections (Wales) Act 2020 (Commencement) Order 2020. This is an Order that brings section 28 of and Schedule 2 to the Senedd and Elections (Wales) Act 2020, which makes provision about financial and oversight arrangements of the Electoral Commission, fully in force on 1 October 2020. Gareth.

There's one point in the draft report that notes that these bits of the Senedd and Elections (Wales) Act 2020 are coming into force now that the necessary preparations have been made, including changing Senedd Standing Orders, putting funding arrangements in place and establishing a Llywydd's Committee.

Thank you for that. Any comments, observations? If not, we move on to item 6.

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

We move on to the Environment (Miscellaneous Amendments etc.) (EU Exit) Regulations 2020. The Welsh Government statement gives notification that it has consented to the making of these regulations. The written statement notes that the Welsh Government gave its consent for reasons of efficiency and expediency, and to ensure consistency and coherence of the statute book. The statement also notes that, in the view of the Welsh Government, there is no divergence in policy between the Welsh and UK Governments. Any comments on that, Gareth?

10:45

Any other comments or observations from Members? No, in which case we go on to item 6.2, which is the Nutrition (Amendment etc) (EU Exit) Regulations 2020. We have the Welsh Government statement, which gives notification that it has consented to the making of these regulations. The statement notes that the Welsh Government gave its consent because, again, there is no divergence between the Welsh Government and the UK Government on the policy for the corrections. The written statement also notes that the purpose of the amendments made by the regulations is to give effect to the Northern Ireland protocol. Any comments from lawyers?

Only to repeat that point of significance, that these regulations reflect the Northern Ireland protocol. They ensure that certain functions that would be transferred from the EU to UK level will no longer be transferred in relation to Northern Ireland. 

Thank you for that. Any comments, any observations from the Members? No. 

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

We move on, then, to item 7, papers to note. We have the letter from the Counsel General: follow-up to committee scrutiny session on 21 September 2020. We're just invited to note that. These points include the anticipated section 109 Order relating to the legislative competence of the Senedd and the impact of COVID-related subordinate legislation on the programme for legislating for exiting the EU. Unless there are any comments on that, we can raise any matters in private session in due course. No, I see there are none.

There's a letter from the Secretary of State for Wales on the United Kingdom Internal Market Bill, and, again, this was a matter that we specifically raised with regard to the Sewel convention. So, we're invited to note the letter from the Secretary of State for Wales and we'll note that the Secretary of State has said that the UK Government remains fully committed to the convention on legislative consent. I don't know if there are any issues on that. Perhaps we can defer those to private session. 

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

Cynnig:

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

Motion:

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, now I think it's time to move into private session and, 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 we now move into private session? 

It's agreed, so we go into private session. Thank you.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 10:47.

Motion agreed.

The public part of the meeting ended at 10:47.