National Assembly for Wales

Welcome, Members, to this virtual meeting of the Legislation, Justice and Constitution Committee. In accordance with Standing Order 34.19, I've determined that the public are excluded from the 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. The meeting is being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual. Aside from the procedural adaptation for conducting proceedings remotely, all other Standing Order requirements remain in place. We have a full attendance at the committee today. Can I ask if there are any declarations of interest? I don't see any. Just to say that the usual housekeeping arrangements apply.

We can move straight on, then, to item 2 of the agenda. We move on to the Education (Student Fees, Awards and Support) (Ordinary Residence) (Wales) Regulations 2021. These make a number of amendments to regulations related to higher education. The amendments concern ordinary residence requirements in those regulations and aim to ensure that persons who have been granted humanitarian protection, leave to remain as a stateless person or granted leave under section 67 of the Immigration Act 2016 are treated in the same manner as those who have been granted refugee status. Are there any comments from the lawyers? I don't think there are any. Any comments from the Members? If there aren't any, then, okay, we note that.

We move on to item 3. We move on to the Greenhouse Gas Emissions Trading Scheme (Amendment) Order 2020. Members have the report, the Order, the explanatory memorandum and a letter from the Trefnydd of 17 December 2020. We will recall that the UK emissions trading scheme was established by the Greenhouse Gas Emissions Trading Scheme Order 2020, and we considered the 2020 Order in September last year. The UK emissions trading scheme runs for 10 scheme years, which begin in 2021, divided into two allocation periods, that is the 2021-25 allocation period and the 2026-30 allocation period. Operators of certain industrial installations and certain aircraft operators are required to monitor, report on and surrender allowances equivalent to their greenhouse gas emissions in each scheme year. The Order amends the 2020 Order and other legislation, largely to provide for a registry for the UK ETS and for the free allocation of allowances. I think there were some matters that have been identified by the lawyers for reporting. Gareth, over to you.

There is one technical point, which notes that the Order is in English only. This Order will be laid before all four legislatures in the United Kingdom. There is also a merits point, which notes a breach of the 21-day rule. The explanatory memorandum explains that there is urgency in this Order in order to make sure there are no pauses in the obligations on monitoring emissions data, thus providing for a seamless transition from the EU scheme to this UK scheme.

Okay. Thank you for that. Any comments or observations from Members? If don't see any.

So, we can move straight on to the National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) (EU Exit) Regulations 2020. Members have the relevant papers. The regulations amend the overseas visitors charging regulations, which allow local health boards in Wales to recover charges from overseas visitors who are not ordinarily resident in the UK for certain categories of healthcare provided to them in Wales. These regulations are made in consequence of the UK’s withdrawal from the EU. They correct references to EU law that is inoperable after the UK's exit from the EU and make provision on the chargeable status of EU/EEA state and Swiss visitors using NHS services in Wales in the event of a 'no deal'. A number of technical points and merits points have been identified. Over to you, Gareth.

There are two technical points and two merits points. The first technical point notes an incorrect cross-reference and the second technical point asks the Welsh Government to explain its approach to the inclusion of Liechtenstein and Iceland and the non-inclusion of Sweden in the schedule of countries that are exempt. The first merits point notes a breach of the 21-day rule. These regulations were made before Christmas, when exiting the EU without a deal still seemed a possibility. So, at the time, they were urgent, but since then, of course, we've had the trade and co-operation agreement rather than a 'no deal'.

Okay. Thank you for that. Are there any other comments or observations? No. So, we note those.

We can move on to item 3.3, the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) Regulations 2021, which implement changes identified by the Joint Biosecurity Centre in the public health risk status of certain countries or territories as is necessary for the protection of public health. And again, over to the lawyers in respect of a number of merits point that have been identified.

There are merits points raising the familiar issues around justification for any interference with human rights and consultation. As regards human rights, the explanatory memorandum still refers to the EU charter of fundamental rights, which is a European Union instrument no longer applicable in our domestic law. So, the Welsh Government is asked to explain why it is still referring to the charter rights. The European convention on human rights is still part of our domestic law, of course, but the EU charter is not.

Okay. Thank you for that. Any comments or observations? No.

We move on to item 3.4, the Health Protection (Coronavirus, International Travel, Pre-Departure Testing and Operator Liability) (Wales) (Amendment) Regulations 2021. These amend the international travel regulations so as to introduce further measures to protect public health, in the form of a pre-departure testing scheme, which will require all arrivals into Wales from outside the common travel area to possess notification of a negative coronavirus test. They also introduce a new requirement on operators of international passenger services arriving into Wales from outside the common travel area to ensure that passengers on such services possess notification of a negative test result, which will be a criminal offence to breach. Again, over to the lawyers in respect of the technical and merits points.

There is a technical point that notes one incorrect cross-reference. Again, there are familiar reporting points, including the Welsh Government's reference to the EU charter of fundamental rights, which no longer applies in our domestic law. That particular point is an issue that is raised in several of today's reports.

Okay. We can note those. Any comments or observations? I don't see any.

On to item 3.5, the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 2) Regulations 2021. These international travel regulations include a requirement for persons arriving in Wales to isolate for a period determined in accordance with the regulations. The requirements are subject to exceptions, and certain categories of person are exempt from having to comply. Until now, persons entering Wales after being in one or more of the countries and territories listed in Parts 1 and 2 of Schedule 3 to the international travel regulations have not been required to isolate. Part 2 of these regulations removes all the exempt countries and territories listed in Schedule 3. Again, a number of merits points are identified. Gareth.

Similar reporting points as under the previous regulations.

Okay. Thank you for that. Any other comments or observations?

If not, we move straight on to items 3.6, 3.7 and 3.8, which are all to be debated in tomorrow's Plenary. If we start with 3.6, which is the Health Protection (Coronavirus, International Travel and Restrictions) (Amendment) (No. 2) (Wales) Regulations 2021. These regulations amend the 2020 regulations in the light of advice received from the Joint Biosecurity Centre in relation to specific countries. Gareth, over to you for the merits points.

Again these regulations raise similar merits points. It's also worth noting that parts of these regulations were superseded by the new stricter travel regime established by the regulations under today's agenda items 3.4 and 3.5. Also, two further sets of international regulations have been made since the papers went out—on Thursday 21 and Friday 22 January. 

Okay. Thank you for that, Gareth. Are there any comments or observations?

If not, we move on to 3.7, regulations that amend the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020. They were made on 19 January and came into force on 20 January 2021. There are some additional papers, which are in the supplementary pack that Members have received. Gareth, are there any issues?

There is one technical point, which highlights what appears to be a drafting error. The regulations refer to particular wording 'in both places it occurs', but that wording only seems to appear once, which causes some confusion. And again, there are familiar reporting points on merits. In this case, while there is no regulatory impact assessment, an equality impact assessment and a children's rights impact assessment have been published.

Thank you for that; that's helpful. Any comments or observations from Members? I don't see any.

We move on to 3.8, which is the other item coming up for debate in Plenary, the Marketing of Seeds and Plant Propagating Material (Amendment) (Wales) (EU Exit) Regulations 2020. These regulations are made under the European Union (Withdrawal) Act 2018 to address failures of retained EU law to operate effectively, and other deficiencies arising from our withdrawal from the European Union. They make amendments and corrections to domestic secondary EU exit legislation relating to seeds, plants for planting and reproductive material as a consequence of EU exit. The explanatory memorandum to the regulations states that the regulations do not make any policy changes. Technical points have been identified. Gareth.

There is one technical point, which notes an apparent inconsistency within the regulations regarding the giving of authorisations by the Welsh Ministers and who can apply to the Welsh Ministers for such authorisations. So, the draft report asks the Welsh Government to clarify who can apply for authorisations, and who the Welsh Ministers can give authorisations to, because those two should match up.

Okay. Thank you very much for that, Gareth. Any other comments or observations? No.

We move on to item 4.1, the Health Protection (Coronavirus, International Travel and Restrictions) (Amendment) (Wales) Regulations 2021. We have the report and the Welsh Government response. We considered this instrument in our meeting on 18 January, and we laid our report the same day. The Welsh Government's response was received by the committee for the committee's consideration and circulated to Members ahead of the Plenary debate on 19 January. Gareth, any comments? No, there aren't any. Any comments from Members, or observations? No.  

We move on to item 5.1, then, the Primary Care (Oxford/AstraZeneca Vaccine COVID-19 Immunisation Scheme) Directions 2020. These are directions that have been made under the National Health Service (Wales) Act 2006, which includes the power to give directions to local health boards in Wales relating to the health service. Local health boards in Wales must establish, operate and, as appropriate, revise an Oxford-AstraZeneca vaccine primary care immunisation scheme. The underlying purpose of the scheme is to enable the provision of services to administer the vaccine as part of the health service in Wales. Over to Gareth—I think one reporting point has been identified.

The Welsh Ministers have made lots of pieces of subordinate legislation arising from the pandemic that did not have to be laid before the Senedd, like these directions. As for the draft report, it notes that even something as significant as establishing a nationwide vaccine scheme can be done by directions, with the Welsh Ministers using the broad powers they already had under the National Health Service (Wales) Act 2006.

Okay. Any other comments or observations from Members? I don't see any. 

We move on to item 6.1, the Organic Production (Organic Indications) (Amendment) (EU Exit) Regulations 2020. The Welsh Government's statement gives notification it has consented to the making of these regulations, and the Government's statement notes that the consent was given for reasons including efficiency and expediency. Any issues raised by the lawyers? I don't see any. Any comments or observations from Members? I don't see any either.

We then move on to some papers to note. We have a letter from the Llywydd to the Chair of the Procedure Committee of the House of Commons. We're just invited, I think, to note the letter, which responds to the House of Commons Procedure Committee's call for evidence in relation to the House of Commons procedures and the UK's territorial constitution. I think we wrote to the Procedure Committee to welcome this inquiry. If there are any issues there, can we raise those in private session? I see that's agreed.

Item 7.2 is a Welsh Government written statement on a legal challenge to the United Kingdom Internal Market Act 2020. Members will be aware of the legal action that is under way, the statement that was made by the Counsel General around this obviously raising significant constitutional issues with regard to the devolution statutes, and, of course, you'll have seen the timetable to try and bring it to a conclusion for 31 March. Can I suggest any discussion on this we defer to private session? I see that's agreed.

Item 7.3 is a letter from the Commissioner for Public Law and the Law in Wales on a consultation paper on the future of devolved tribunals in Wales. Nicholas Paines QC is basically offering the opportunity for either an evidence session or a briefing on this important piece of work with regard to the Welsh tribunals. Can we defer that to a private session? Thank you.

We have a letter from the Counsel General with regard to the Government of Wales Act 2006 (Amendment) Order 2021. We have the letter of 20 January 2021, really a letter to note. The Order has been laid and is going to be debated on 2 February. Any comments or observations from Members? If not, if there are any matters, we can raise them in private session.

Which brings us to a motion under Standing Order 17.42, so, in accordance with Standing Order 17.42(vi) and (ix), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree? I see that's agreed. We now go into private session.