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

Legislation, Justice and Constitution Committee - Fifth Senedd

16/11/2020

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

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Lucy Valsamidis Ymchwilydd
Researcher
Nia Moss Ymchwilydd
Researcher
P Gareth Williams Clerc
Clerk

Cynnwys

Contents

1. Cyflwyniadau, ymddiheuriadau, dirprwyon a datgan buddiannau 1. Introduction, apologies, substitutions and declarations of interest
2. Offerynnau negyddol arfaethedig nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B 2. Proposed negative instruments that raise no reporting issues under Standing Order 21.3B
3. Offerynnau nad ydynt yn codi materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 neu 21.3 3. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3
4. Offerynnau a drafodwyd yn flaenorol ar gyfer sifftio ac sydd bellach yn destun gwaith craffu o dan Reolau Sefydlog 21.2 a 21.3 4. Instruments previously considered for sifting and now subject to scrutiny under Standing Orders 21.2 and 21.3
5. Offerynnau sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3 5. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3
6. Offerynnau sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3 - trafodwyd yn flaenorol 6. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 - previously considered
7. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C 7. Written statements under Standing Order 30C
8. Papurau i'w nodi 8. Papers to note
9. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod 9. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting

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

Welcome, Members, to this week's 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 meeting in order to protect public health. In accordance with Standing Order 34.21, notice of this decision was included in the published agenda for this meeting. This meeting is being broadcast live on Senedd.tv and the Record of Proceedings will be published as usual. Aside from the procedural adaptations for conducting proceedings remotely, all other Standing Order requirements remain in place. The usual housekeeping arrangements apply. Are there any declarations of interest? I don't see any.

2. Offerynnau negyddol arfaethedig nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.3B
2. Proposed negative instruments that raise no reporting issues under Standing Order 21.3B

So, we now move straight on to the agenda, on to item 2. We have four sets of regulations, which have been laid for the purpose of sifting under the European Union (Withdrawal) Act 2018 in accordance with Standing Order 27.9A. We have the Environmental Assessments and Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020. These proposed regulations make amendments to two sets of 2019 regulations that deal with environmental impact assessments and town and country planning, with the aim of ensuring that the statute book remains operable following the UK's exit from the EU. The amendments made by these regulations reflect the transition period in article 127 of the withdrawal agreement. Are there any comments or observations from Members? I don't see any.

So, we move on to the next item, which is the National Health Service (General Medical Services Contracts) (Prescription of Drugs etc.) (Wales) (Amendment) (EU Exit) Regulations 2020. These are regulations that amend the National Health Service (General Medical Services Contracts) (Prescription of Drugs etc.) Regulations 2004, to ensure they remain operable at the end of the transition period following the UK's exit from the EU. Any comments or observations from Members on these? I don't see any.

So, we move on to item 2.3, which is the Waste (Wales) (Miscellaneous Amendments) (EU Exit) Regulations 2020. These proposed regulations amend the Waste (Wales) (Miscellaneous Amendments) (EU Exit) Regulations of 2019, to make necessary technical changes to ensure that the legislation continues to operate effectively following the UK's withdrawal from the European Union. Any comments or observations on those? I don't see any.

So, we move on to item 2.4, which is the Food and Rural Affairs (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020. These regulations make amendments to subordinate legislation that apply in relation to Wales in the areas of food and rural affairs. The amendments are made in order to address failures of retained EU law and other deficiencies arising from the UK's withdrawal from the EU to reflect the protocol on Ireland/Northern Ireland in the withdrawal agreement and to correct transitional provision. Are there any comments or observations on those? There aren't any.

3. Offerynnau nad ydynt yn codi materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 neu 21.3
3. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

So, we move on to item No. 3 of the agenda. We have 3.1, the Additional Learning Needs Co-ordinator (Wales) Regulations 2020. These regulations supplement section 60 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018. They set out the qualifications or experience that additional learning needs co-ordinators must have and confer functions on additional learning needs co-ordinators relating to the additional learning provision for pupils or students with additional learning needs. Are there any comments or observations on those? There aren't any.

So, I move on now to item 3.2 of the agenda and that is the Legislation (Wales) Act 2019 (Amendment of Schedule 1) Regulations 2020. These regulations amend Schedule 1 to the Legislation (Wales) Act 2019, which sets out general definitions that apply to terms used in the Acts of Senedd Cymru and Welsh subordinate legislation. Are there any comments from the lawyers on this? I don't see any. Any observations or comments from the Members? I don't see any. 

09:35
4. Offerynnau a drafodwyd yn flaenorol ar gyfer sifftio ac sydd bellach yn destun gwaith craffu o dan Reolau Sefydlog 21.2 a 21.3
4. Instruments previously considered for sifting and now subject to scrutiny under Standing Orders 21.2 and 21.3

So, we go straight on to item 4 of the agenda. We have the Environment (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020. Members have before them the report, the regulations and the detailed explanatory memorandum. These regulations make amendments to subordinate legislation relating to air quality to ensure that retained EU law operates effectively once the UK leaves the EU. The regulations were previously laid for the purpose of sifting and considered by the committee on 2 November 2020. Can I just refer to the lawyers if there are any merits points or issues to be raised?

No, nothing further.

Okay. Any comments, Dai, Carwyn, David? No, I don't see any specific points to be raised.

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

On to item 5, then, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. We start with the Waste (Wales) (Miscellaneous Amendments) Regulations 2020 and, again, Members have before them the report, the regulations and the explanatory memorandum. These regulations are supplementary to the Waste (Circular Economy) (Amendment) Regulations 2020 and make a number of consequential amendments to primary and secondary legislation to ensure consistency and to transpose changes introduced by the EU circular economy package. Gareth, there are some issues to be raised by you, I think.

Yes, there's one technical point and two merits points. The technical point notes that a quotation mark appears in the wrong place, which could cause confusion as to the words intended to be captured by the quotation marks. The first merits point notes there has been light-touch consultation, but no formal consultation, and that the approach to these regulations has been agreed among all four Governments in the United Kingdom. The second merits point notes a minor error in a footnote, and the Welsh Government response says it will correct the two minor errors at the next available opportunity.

Okay. Are there any comments or observations from Members? I don't see any.

So, we move on to item 5.2, which is the Welsh in Education Strategic Plans (Wales) (Amendment) (Coronavirus) Regulations 2020. Members have before them the relevant papers. The regulations make amendments to the Welsh in Education Strategic Plans (Wales) Regulations 2019 in relation to the timescales for the Welsh in education strategic plan, and the changes are being made in response to the COVID-19 pandemic. Over to the lawyers.

There is one merits point, which notes there's been no formal consultation on these regulations because of the pandemic situation and because the only changes being made are to the timetable of commencing Welsh education strategic plans. And although there's been no formal consultation on the timetable changes, the Welsh Government has sought the views of local authority directors of education.

Okay, thank you for that. Are there any other comments or observations to be made? I don't see any.

So, we move on to item 5.3, the National Health Service (Performers Lists) (Wales) (Amendment) Regulations 2020. These regulations amend Part 4 of the National Health Service (Performers Lists) (Wales) Regulations 2004 relating to dental performers lists to reflect the changes to the employment position of foundation dentists. I think there are a number of merits points that have been identified. Gareth.

There are two merits points. The first notes there's been no formal consultation, but the key stakeholders were invited to comment on these changes. The second merits point notes there's been no regulatory impact assessment, and while moving a contract of employment from an approved trainer to Velindre University NHS Trust may in itself just be an administrative task, it seems as if there might be more to it than that for Velindre, which will now deal with any contract management or contract dispute issues that arise. So, the draft report probes a bit more as to why there was no regulatory impact assessment.

09:40

Okay, thank you for that, Gareth. Any comments or observations from Members? I don't see anything.

So, we move on, then, to the next item on the agenda, 5.4, the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 18) Regulations 2020. Again, Members have before them the report, the regulations, the explanatory memorandum. We have also the letter from the Trefnydd of 6 November and the written statement, of course, of 6 November as well. These regulations remove Denmark from the list of exempt countries and territories. The regulations were made on 5 November and came into force at 4 a.m. on 6 November. Further legislative provision in relation to travel from Denmark came into force at 4 a.m. on 7 November via the Health Protection (Coronavirus, International Travel and Restrictions) (Amendment) (Wales) Regulations 2020, which we'll be considering at item 5.7 in today's agenda, so we'll deal with that shortly. Any comments from the lawyers?

There are five merits points. Most of them are familiar reporting points relating to human rights, consultation and breach of the 21-day rule. The third merits point notes there has been no equality impact assessment published for these regulations, and although the regulations were urgent, it would be helpful to see the Welsh Government's response as to its approach to equality impact assessments in such cases.

Okay. Any comments or observations from Members? Those points have been taken up with the Welsh Government, and presumably we wait to hear from them on that, so that will come back to us in due course. 

So, 5.5, the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 19) Regulations 2020. These regulations remove Germany and Sweden from the list of exempt countries and territories. The regulations were made on 6 November and came into force on 7 November. Over to the lawyers again.

The draft report raises the same merits points as the previous regulations.

Okay, any comments or observations on that? If not, we'll move on to item 5.6. We have two sets of regulations, 5.6 and 5.7, on our agenda that are scheduled to be debated in tomorrow's Plenary meeting. That is on 17 November. So, we'll go on to those now, one of which is the Health Protection (Coronavirus Restrictions) (No. 4) (Wales) Regulations 2020. We have, again, within the papers there, the letter from the First Minister of 5 November and the written statement of 2 November. These regulations impose a number of restrictions and requirements in response to the risks to public health arising from coronavirus, following the expiry of the Health Protection (Coronavirus Restrictions) (No. 3) (Wales) (Regulations) 2020 on 8 November. The regulations were made on 5 November and came into force on 9 November. Over to the lawyers.

There are four merits points. Again, they raise some familiar points relating to human rights and consultation, et cetera. As regards impact assessments, the explanatory memorandum provides a link to a lengthy and helpful document that includes various impact assessments carried out by the Welsh Government. Finally, the fourth merits point asked the Welsh Government to set out evidence as to why these regulations apply on an all-Wales basis, given that areas such as Merthyr Tydfil and Caerphilly have far more cases than other parts of Wales.

Okay, thank you for those comments. Are there any other observations or comments from Members? I don't see any, so we move on to item 5.7, which is the Health Protection (Coronavirus, International Travel and Restrictions) (Amendment) (Wales) Regulations 2020. So, as noted under item 5.4, these regulations came into effect at 4 a.m. on 6 November and required persons entering Wales who have been in Denmark in the previous 14 days to isolate. The regulations extend the isolation requirements to all members of the household of any person entering Wales who has been in Denmark in the 14 days before. Gareth, any points?

09:45

There are four technical points and two merits points. The technical points note minor errors, such as incorrect cross-references and one inconsistency between the Welsh version and the English version. 

The first merits point asked the Welsh Government to justify, on human rights grounds, the stricter rules that apply to a person who has recently arrived in Wales from Denmark, particularly as the stricter rules also apply to anyone in that person's household in Wales. And the second merits point notes that there was no formal consultation.

Okay, thank you for that. Are there any additional comments or observations to that? I don't see any.

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

So, we go on to instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. The committee considered regulations relevant to the following three items; we considered those on 2 November and the reports were laid on the same day.

So, we go on to the Health Protection (Coronavirus, Public Health Information for Persons Travelling to Wales etc.) (Amendment) Regulations 2020. Members have the report, and, of course, the Welsh Government response. So, today, we're really just noting that the response has been received from the Welsh Government in respect of those issues that we raised with them. Any comments from the lawyers, comments from Members? No.

In that case, we move on to item 6.2, which is the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 19) Regulations 2020. Again, Members are invited to note the Welsh Government's response to the issues that we raised on that occasion. Are there any comments on that? No, I don't see any.

So, we move on to item 6.3, the Health Protection (Coronavirus Restrictions) (No. 3) (Wales) Regulations 2020, again to note the Welsh Government's response to the points that we raised on that occasion. Gareth.

Could I just say that we haven't had much time to consider this particular response in detail? And I think it deserves taking time over it, because the committee raised some important questions. So, if Members are content, can we go away, look at it closely and come back to the committee if any issues do arise?

Yes. I think absolutely. Is there any objection to that? I think everyone agrees that approach and we'll consider that at a future meeting. Thank you for that.

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

We now have item 7, written statements under Standing Order 30C. The Chemicals (Health and Safety) and Genetically Modified Organisms (Contained Use) (Amendment etc.) (EU Exit) Regulations 2020. Members have the written statement and commentary. The Welsh Government's statement gives notification that it has consented to the making of these regulations, and its statement notes that consent was given for the reasons of efficiency and expediency to ensure the consistency and coherence of the statute book. The regulations confer a regulation-making function on the Secretary of State and reporting functions on the Health and Safety Executive, both of which have implications for Schedule 7B to the Government of Wales Act 2006 and therefore the future competence of the Senedd. Gareth, over to you—any points?

Yes. Only to reiterate that point that these regulations confer functions on the Health and Safety Executive. Therefore, if the Senedd wanted to remove those functions in future, it would need UK Government consent.

Okay. Are there any comments or observations to be made by Members? I don't see any.

We move on to item 7.2, the Tobacco Products and Nicotine Inhaling Products (Amendment) (EU Exit) Regulations 2020. You have again before you the written statement and the commentary on that. There's disagreement between the Welsh Government and the UK Government as to whether consent is required for these regulations, and consent has not been sought by the UK Government. Nonetheless, the statement notes that the Minister for Mental Health, Well-being and the Welsh Language has written to the Minister of State for health to raise concerns that consent was not sought and to provide consent. Gareth, over to you.

No, nothing further.

Nothing further to add. Any other comments from Members? Again, this highlights, doesn't it, the lack of dispute capacity.

Item 7.3, the Aquatic Animal Health and Alien Species in Aquaculture, Animals, and Marketing of Seed, Plant and Propagating Material (Legislative Functions and Miscellaneous Provisions) (Amendment) (EU Exit) Regulations 2020. And again here the Welsh Government's statement gives notification that it has consented to the making of these regulations. The statement notes that the amendments made by the regulations reflect the change in legislative position following the withdrawal agreement and the Ireland-Northern Ireland protocol. Gareth, over to you.   

09:50

Only to note these regulations do create concurrent functions, which raises the now familiar issue as to the effect that has on the Senedd's powers.

Okay, any comments or observations from Members? No. In which case we move on to the Veterinary Medicines and Residues (Amendment) (EU Exit) Regulations 2020. And again Welsh Government's statement gives notification that it has consented to the making of these regulations. Any comments, Gareth? No. Any comments or observations from Members? No.

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

On to item 8, papers to note. We have a letter from the First Minister with regard to the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020. So, really a letter there to be noted, and the First Minister responds to issues that we raised after our consideration of the regulations. If there are any issues there, perhaps we can defer that to private session. Okay.

Item 8.2, we have a letter from the Deputy Minister and Chief Whip. This is with regard to the Public Procurement (Amendment etc.) (EU Exit) Regulations 2020, and Members will recall that at last week's meeting we considered the letter from the Deputy Minister and Chief Whip that stated that the Welsh Government would be bringing forward a consent motion on this statutory instrument. Following last week's meeting, we'd laid our report on the statutory instrument consent motion, noting this fact. The letter received last Thursday from the Deputy Minister states that the Welsh Government has now decided not to schedule a debate. Can I go over to—? Sorry, Gareth, the lawyer, are there any issues there that you wanted to raise? Gareth, the clerk, were there any issues there that you wanted to raise?

No, just to remind the committee that last week the committee agreed to write to the Llywydd about the issues relating to SICM, and we're in the middle of preparing that letter and we can take account of the correspondence as part of that letter to the Llywydd. 

I think we do need clarification on this, particularly once we're given notification that there is to be a debate and we've prepared a report and the report has been laid, et cetera. Government has effectively now decided not to have a debate on it, which takes away the purpose of the report.

In terms of the status of this, we have raised this matter before. Can I just suggest that we just raise, very clearly, within our correspondence to the Llywydd, our concern over this state of affairs, and also seek clarification from her in terms of the application of the relevant Standing Orders? Is everyone agreed with that approach? Okay, so we can do that. And if there's any other issue, we can raise that in private session.

A letter from the First Minister—scrutiny of regulations arising from the UK’s exit from the European Union. So, we have the First Minister's letter on 12 November to be noted. And the First Minister confirms he is content with the revised protocol between the Welsh Government and this committee in relation to the scrutiny of regulations arising from the UK’s exit from the European Union. So, the revised protocol will now be made publicly available. We can discuss this further in private session, if Members are agreed. Is that okay? Yes.

9. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
9. 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 Rheolau Sefydlog 17.42(vi) a (ix).

Motion:

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

Cynigiwyd y cynnig.

Motion moved.

Okay. So, we now move—. We have, obviously, the draft report on the United Kingdom Internal Market Bill to consider in detail, so we should move into private session. So, in accordance with Standing Orders 17.42(vi) and (ix), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do the Members agree? I see the Members agree, so we now move into private session.

Derbyniwyd y cynnig.

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

Motion agreed.

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