Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad
Legislation, Justice and Constitution Committee11/07/2022
Aelodau'r Pwyllgor a oedd yn bresennol
Committee Members in Attendance
|Alun Davies MS|
|Huw Irranca-Davies MS||Cadeirydd y Pwyllgor|
|James Evans MS|
|Rhys ab Owen MS|
Y rhai eraill a oedd yn bresennol
Others in Attendance
|Dr James George||Uwch-gwnsler Deddfwriaethol, Llywodraeth Cymru|
|Senior Legislative Counsel, Welsh Government|
|Dylan Hughes||Prif Gwnsler Deddfwriaethol, Llywodraeth Cymru|
|First Legislative Counsel, Welsh Government|
|Mick Antoniw MS||Cwnsler Cyffredinol a Gweinidog y Cyfansoddiad|
|Counsel General and Minister for the Constitution|
Swyddogion y Senedd a oedd yn bresennol
Senedd Officials in Attendance
|Craig Griffiths||Cynghorydd Cyfreithiol|
|Gareth Howells||Cynghorydd Cyfreithiol|
|Gerallt Roberts||Ail Glerc|
|Jennifer Cottle||Cynghorydd Cyfreithiol|
|Kate Rabaiotti||Cynghorydd Cyfreithiol|
|P Gareth Williams||Clerc|
|Sarah Sargent||Ail Glerc|
|Sian Giddins||Dirprwy Glerc|
Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.
The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.
Cyfarfu’r pwyllgor drwy gynhadledd fideo.
Dechreuodd y cyfarfod am 13:00.
The committee met by video-conference.
The meeting began at 13:00.
Prynhawn da a chroeso i chi i gyd. Welcome, this afternoon, to this session of the Legislation, Justice and Constitution Committee. We're meeting in virtual setting today via Zoom, but apart from that all of our Standing Orders apply as per normal.
We're delighted to be joined this afternoon by the Counsel General, who is with us, and his team, for a very important session this afternoon, actually—quite a historic session, let alone the Bill that it's dealing with. We also have full attendance, as we always do, from our committee colleagues, which we're grateful for, who are all on screen with us here as well.
So, hopefully everybody's audio and visuals are working. There are translation facilities here as well. It's the small translation button in the corner of your iPads or laptops and so on. You don't need to mute and unmute your microphones, because that will be done for you during the meeting. So, with no apologies received, just a reminder that this is being broadcast live on Senedd.tv. The Record of Proceedings will be published in the transcript as usual. Otherwise, all Standing Orders remain in place for this meeting. If we can make sure—famously, I'm not sure where my mobile is at the moment—that your mobiles are switched down and any other devices that might interfere with the session today.
We're now going to turn directly to the first substantial matter in front of us today, which is item 2, the Historic Environment (Wales) Bill, and our ministerial evidence session. We have with us Mick Antoniw, Counsel General and Minister for the Constitution, but also two colleagues with him as well. I wonder, Counsel General, if I could hand over to you to introduce your colleagues, unless you want them to do it, and I understand you might want to say a few words of introduction to what is a historic session on this Bill.
Thank you, Chair, and it is really just a few words. The two officials I have with me, I think, are very important to this session: Dylan Hughes, first legislative counsel, and James George, who is a senior legislative counsel. I think the reason their attendance is important at this is because this is very much a technical exercise. It is not about changing the law or reforming the law; it is about consolidating the law to make it more accessible.
I think the only opening comment I wanted to make is—. You all have before you, I think, an enormous number of papers, which are quite unique to this consolidation Bill, because they set out where the law that's being consolidated comes from, where it's being designated to, and also the explanations as to what the consolidation seeks to achieve. But I think the important thing for me is, if you put that to one side and if you just actually look through the main Bill itself, it does, to me, I think, read incredibly clearly when you think about where all the different destinations that the legislation actually comes from, and I think merely just looking at the Bill and looking through it, as I'm sure you've all done, I hope actually creates that impression. This is a learning curve, I think, for all of us as we go through this, and for any questions that come my way, where it's helpful to have the technical input from Dylan or from James, then of course I will defer to them or refer to them specifically. Thanks, Chair.
Thanks, Counsel General. So, with those opening remarks from you, we will begin our scrutiny here today, and I'm going to start with some opening questions, and just to say I know we've had this in discussion with you and your officials before. We're keen to get this absolutely right on this first consolidation Bill we have. So, in some of the questions we'll go through, we'll try and cover some big issues in today's session. We will definitely be writing to you because of the sheer scale of this. Even though you've described it as primarily technical, and that it's not the introduction of new policy, it's pulling together and consolidating the existing legislation that is out there, we've got to get this absolutely right, because there'll be others coming down the line.8
Let me turn to that first of all, then. This Bill is the very first of this type of Bill, of this type of legislative output, following what is indeed a significant piece of work by the Law Commission for England and Wales and, we guess, massive work by the Welsh Government. So, how have you and your team approached this mammoth consolidation exercise on what is a mammoth Bill?
Thank you for that opening question. As you allude to, it's something that we've aspired to do for quite some time, so I'm really pleased, and I'm sure we all are, that we now are introducing this first bespoke consolidation Bill. Although we've taken the opportunity on a few occasions in the past to restate existing law alongside reform, this is really the first of our Bills that's purely designed to make the law more accessible. It's taken a lot of work and I'm very grateful to the team of people that have worked so hard on this to get us to this point. I suppose it's fair to say that the process of preparing this Bill has been quite different from the usual process for preparing a Bill. As you know, policy reform Bills normally begin with an idea for a new policy that requires a change in the law, but the purpose to this legislation is to take all the existing law in a particular area that would benefit from consolidation to bring it together in a new form of legislation, a new piece of legislation.
Traditionally, when some of this has been done in Westminster in the past, it's normally adopted quite a conservative approach and has often been just a renumbering, a rescheduling. This, I think, goes far deeper; I think it is a far more genuine form of consolidation, because it also has to not only bring the bits of legislation together, but it has to make them understandable in a modern workable piece of legislation. So, it has to reflect devolution and other changes that have taken place since past Acts have gone. The language has to be updated and made more consistent. We've had to rearrange materials so that the structure of the provisions about each topic is more logical and more consistent. There had to be a movement about of certain materials from subordinate legislation to the consolidation Bill and vice versa. There are some provisions that have either never been used or have just become unnecessary for a variety of reasons, and so they've been removed from the legislation. All of this results, hopefully, in a consolidation Bill that sets out the law in a way that is much clearer and much more logical than in the past.
It might be appropriate just at this stage to bring in Dylan, who's overseen the actual work putting this together, so he's had the experience of this first exercise. I don't know if there's anything you want to add, Dylan.
Thanks, Dylan. And in bringing Dylan in, Counsel General, I wonder, Dylan, if you could reflect on whether you've had to take a different approach to the legislation that you've brought into this that predates devolution—different times, different contexts, not the bilingual approach that we take now, and a range of other things. So, has there been a different approach on that as well? Over to you, Dylan.
Diolch, Gadeirydd. Yes, as you say, we are bringing together legislation that predates devolution, so that is something that's different about this consolidation exercise immediately, because of course, we need to make sure that the Bill is within the legislative competence of the Senedd. So, that's something that wouldn't normally be done. Generally speaking, with any old legislation, the first step is establishing what it means, and you'd be surprised how difficult that can be. As the Counsel General mentioned, we've taken an approach here where we have involved far more people. James and one of our colleagues has been leading on the drafting, but it's been much more than that. We've been involving officials from the legal services department and from Cadw, and their input in particular has been important. You can do a consolidation as a technical exercise whereby legislative counsel like us look at the legislation, replicate what we see are the words on the page, renumber it, tidy it up, reproduce it bilingually, but there is a limit to how valuable that can be, because the older the legislation is, the more difficult it is, as I say, to understand it. What is crucial is to have an understanding of how the law is applied in practice, and this is where Cadw and other people come in. The end result that we have, we hope, is something that reflects reality, as well as being a legal exercise, and that's particularly important to make the law accessible.
Thanks, Dylan. Either you or Counsel General, one of the things we're interested in is not just what's made its way into this consolidation Bill, but what's been left out, because I'm guessing there must have been some quite nuanced decisions as to what to exclude from this. Have you excluded pieces of legislation? If so, can you flag a few up for us, and why you made that decision?
I can probably identify a few of them, and then, again, I'll probably bring Dylan back in again on it. It's one of the things that, during the preparations of the consolidation Bill, we had to discuss from time for time. For example, there is a very small Act, it's only four sections long, that deals with a very specific issue of protecting certain wrecks that are thought to be historically, archaeologically or in other ways important. It was passed many years ago as stop-gap legislation, creating what was meant to be a temporary mechanism for the designation and management of sites of historic wrecks. And so, once a site a designated, a licence is required in order to dive or undertake activities on it. Despite there being thousands of wrecks around the UK, there have only been six that have been so designated [correction: designated in Welsh waters]. So, effectively, the legislation has been used very little, and it hasn't been used for quite some time. So, things like that, I think, were not really considered to be a priority. They created certain complications that really would have, I think, created difficulties for the consolidation Bill, and also because of their territorial scope. There were some others. The Redundant Churches and Other Religious Buildings Act 1969 was one of those. Maybe at this stage I ought to bring Dylan in to talk a little bit more about that and some of the other items of legislation that have specifically excluded, I think, for good reason.
Diolch, Gwnsler Cyffredinol. I think the Protection of Wrecks Act 1973 that the Counsel General mentioned was probably the most difficult decision. It was probably the one that made us pause the most, because it could easily have been incorporated. I think, in respect of a few other provisions, the Redundant Churches and Other Religious Buildings Act 1969, and the Protection of Military Remains Act 1986—if you want the detail, James can give it you—generally speaking, we just felt that the subject matter—. Although it may appear as though it was relevant, once we dug into it, it was felt that it wasn't actually directly applicable to the protection of the historic environment, so it was decided not to incorporate it.
That's really helpful. James, we don't need to hear from you now, but I think, Counsel General, if you were to write to us with any other examples that you have. Because what we're particularly interested in is the rationale, the balance of decisions, to say, 'We should include, we shouldn't', because that flags up ones that may, at some time in the future, form part of a longer consolidation.
Let me go on to a slighter different question here, which is whether there were decisions you took where you did not bring something within this Bill for consolidation on the historic environment law because you weren't convinced it fell within competence or whether the competence could be argued and challenged. Did you come across those?
It's certainly the case that, as with any legislation, it has to be within competence, and, of course, it also has to reflect the transfer of functions and so on that has taken place under devolution, particularly when you're consolidating legislation that goes over quite an extensive period of time. It has to reflect and understand what are currently reserved matters as opposed to non-reserved. And also, it has to take into account things like the various convention rights and so on that are there, and the Human Rights Act 1998 and so on. There has been an analysis of competence and it has shaped the way in which the legislation has been brought together. There are a number of examples, I think, of that. Again, perhaps I ought to defer over to Dylan and possibly to James over this.
Thank you. I think, generally speaking, the subject matter hasn't been particularly problematic, but competence, of course, has a wider meaning. Convention rights have been considered in some detail and the territorial application, so there have been a couple of issues in that regard that we can go into, if you'd like to, but again, I'm happy to include that in correspondence if you'd prefer.
There are certain examples, aren't there? There was the Ancient Monuments and Archaeological Areas Act 1979, which relates to offences in territorial sea that can be treated has having occurred in any part of the UK. So, those things created particular issues, and so on. And again, as part of the process, there are certain references that had to be looked at—you know, references to ecclesiastical buildings and things that have been changed now to things like religious buildings, and so on. And there are certain planning areas, and so on, where there are overlaps that have been looked at. We'll be happy to set those out in more detail, and any specific questions, as you go along, and also as we set out our own thinking on the things that have gone in and gone out, and the way in which the legislation has been constructed.
Thank you, both. It'll be helpful to have some more detail in writing, even at this initial stage of consideration of this consolidation Bill coming forward, because our interest is in that decision-making process, that rationale that you have behind taking those decisions to exclude because you had doubts over competence and so on.
I'm going to pass, at that point, over to Alun to take us on. Alun, it's all yours.
Thank you very much. I'm grateful to you, Counsel General, for your time this afternoon. I'm quite excited by this, as you know. I think it's a great step forward in terms of how we order legislation in Wales and how we improve access to the statute book. I think that the Government should be congratulated on bringing this forward so early in this Senedd.
You've discussed, in answer to questions from Huw, some of the issues around competence and territorial expression of the legislation. I was wondering if you could, perhaps, characterise the relationship that you've had with the UK Government over these matters and issues where you've sought the consent, I presume, of the UK Government for modification, potentially, of Minister of the Crown responsibilities and all the rest of it.
Obviously, bringing a piece of legislation together raises a number of contradictions in terms of previously existing ministerial consents, and so on, and the need to update those. There are a number of areas where I've had to write to the Secretary of State for Wales—on 13 May this year, in fact—seeking consents over these. We're awaiting a response. I suspect that the current upheavals at Westminster, or changes that may be taking place, may delay that. But they're not issues that I think will in any way undermine or have an impact on the progress of this consolidation Bill. It's not one where I'd anticipate that there are any major disagreements, because, as I say, we're not changing the law, we're not reforming the law; we are consolidating and bringing that together. But we'll have to wait and see what happens on that.
There are a couple of areas. For example, one is in respect of civil sanctions. Again, I won't go into the detail of this, but it relates to a Minister of the Crown making Orders providing for civil sanctions in respect of certain offences contained in a number of Acts. There's also one that is with regard to access to evidence at a local inquiry. There are certain provisions there relating to national security and so on. So, we've sought consent really for the removal of those Crown functions, because in doing so, it just makes the consolidation and the flow and the clarity of the legislation that much better. Were there to be an impasse on it, we could make amendments that retained them, and that would not substantially impact on the direction of the legislation. Officials are continuing to engage with the Wales Office on this, so this is a matter that I can update the committee on in due course, but it's not one we anticipate that there are going to be any significant problems.
I appreciate that, and I presume from your answer you haven't received that consent yet, but we can move forward on that. Have you needed or will you be seeking Crown consent for any element of this legislation?
Well, we won't, unless, of course—. If the consents that we've sought to remove are agreed, then there won't be any areas where we're going to need Crown consent in this legislation. I think that's the position. I don't know, Dylan or James, is there any other issue in respect of Crown consents that need to be raised before the committee?
Is this a question about Queen's consent as opposed to Minister of the Crown consent?
Well, I was asking either, you know, because you do have some sections on the Duchy, of course.
I don't believe we've asked for Queen's consent or Duchy consent, but James may be able to correct me if I'm wrong.
No, we haven't sought consent, because all of the legislation that we're restating will have already received consent if it was needed.
Okay, thank you for that.
So, we don't think consolidation should need it again.
Thank you for that. In terms of taking this forward, you've had conversations with the Law Commission, I assume, as well, as part of this—
—and the Law Commission's asked for these elements. I think it's four elements to be included in the Bill: to appoint assessors; notification of purchase notices; application by planning authorities; and notifying owners of applications for consent. Is that relationship with the Law Commission ongoing through the process you're currently following?
Thanks for that. Yes, it is an ongoing process. As you know, we've had a lot of engagement with the Law Commission in a number of areas, and, of course, one of the future areas of consolidation that we'd hope to bring in the future will obviously be in respect of planning, and that's something again I think is an extremely important area to bring at some stage in the future. There is, of course, some overlap between this consolidation Bill and aspects of planning law in Wales that were covered by the Law Commission's report. So, what was felt necessary was that those areas where there might be minor changes forming part of the consolidation Bill—. It was necessary, I think—again following from the guidance from the Standing Orders that the Llywydd has provided—to ensure that the Law Commission was satisfied that those minor changes that we were making were—. Well, I think it's set out in the letter, which I hope you may have before you; if not, we can make a copy available. There's a letter where they said:
'We therefore recommend that such a change would be beneficial, would not represent a significant new policy, and would not be controversial.'
So, it's ensuring that they were satisfied that these were things that it was appropriate to do within a consolidation Bill. So, I think their guidance and their assistance in this has been important.
I'm grateful to you, Counsel General.
Alun, thank you very much indeed. We're going to cover quite a bit of ground this afternoon, Counsel General. We're going to turn our attention now to accessibility of Welsh law, and James is going to take us deep into this territory now.
Diolch, Cadeirydd. I'm not sure how deep we're going to go, but I will try my best, not being a man of the law; there are far more learned people on this call than me, but I will do my best.
Minister, in evidence to this committee on 29 November 2021, you suggested that the Welsh Government's aim for all citizens of Wales would be to access and interpret Welsh legislation that we put forward. So, how will people be able to access this Bill when it's enacted? And do you expect them to be able to interpret it, with the technical language that we do have in a lot of these Bills?
Thank you. This really goes to the core, I think, of what the purpose behind consolidation actually is. It is about accessibility, and I know we've discussed this in the Senedd many times and it's been raised before this committee many times, but I suppose you look at it from the point of view of, of course, lawyers and experts and all those who need to access the law, but of the citizens more generally. This will apply not just to this consolidation Bill, but I think to others.
The comments I made right at the beginning of the meeting I made deliberately, because when I started looking at this—of course, I've never been an expert in all the areas of law around historic environments going over considerable periods of time—trying to get an understanding as to what the law is, where you have to go to, all the different pieces you have to look at, the extent to which, sometimes, it overlaps into other pieces of legislation to do with planning or, indeed, in other areas—. At the end of the day, this is about whoever needs to access the law for whatever purpose being able to find a law in one place, that they will be able to read that and it will be in as clear English and as open English, and Welsh indeed, as is possible—that it'll be as understandable, I think, as is appropriate to do.
So, if you take the situation now, that if you are, for example, the owner of a listed building or a scheduled monument, or you had a historic monument or artefact on your property, and you wanted to know what the law was with regard to that, what can you do, what can't you do, well, without consolidation, what you have is really quite a confusing jumble of legislation that I suspect even professionals will have considerable difficulty in understanding. The fact that legislation is frequently then amended complicates it even more. So, if you look at the current provisions in force, the difficulty of trying to ascertain the meaning of the law in respect of ancient monuments and archaeological areas, for example, some of which applies to Scotland and so on—. So, the purpose of this Bill, the Historic Environment (Wales) Bill, is about pulling that together in a way that people can use, can be understandable, so those who need to access the law will know where it is. It's in one place, you don't have to look all over the place for it.
The thing that follows on from it as well, though, that I think is important is that it then means that the various help sites that you would have, Cyfraith Cymru and other sites, would be updated and they would be able to direct people to just one single piece of legislation, one single code that would enable them to go through it and know where the law is. So, that's really my understanding of what the purpose is in terms of accessibility, and that will probably be the measure of success, that if we achieve if we achieve that through this legislation, this will be the first step of, hopefully, many over the years to making Welsh law a lot clearer.
Thank you for that, Counsel General, and you did touch on this a little about pulling everything together, because in section 79(2) of the Bill, it says that the Town and Country Planning Act 1990 applies to buildings under this Bill. So, in order to understand the entire law that applies to historic environments in Wales, what other Acts or codes will people have to look at? If you have to defer here, Counsel General, that's fine.
Listen, that's a very valid point, because, as far as possible, we've tried to incorporate within the consolidation Bill—. There are one or two areas where it is necessary to make reference to other legislation. I think the intention has been to try to keep this to a minimum, to keep the consolidation Bill as self-contained as is possible. But you did refer specifically to section 79, and, of course, that's one that has specifically been addressed and is referred to in the legislation. So, there would be that cross-over. I don't know, perhaps, James, if you'd be appropriate to bring in on the issues around section 79 and why we've had to keep that specific reference to other legislation. Just to add one thing, of course, in many cases, where there has been other legislation that we've had to refer to, that's been restated within this. But, James, can you add anything further?
Yes. Thanks, Counsel General. I think on the specific issue of links to the planning legislation, we've reduced that a lot in the Bill because it's particularly an issue for listed buildings in conservation areas that the legislation actually all originates from the same Act. So, it was all in the Town and Country Planning Act 1971 with the planning legislation, and was then consolidated in 1990 in three separate Acts, so we had planning, we had one about listed buildings and we had another one about hazardous substances. But as part of doing that, there were various general provisions left behind in the Town and Country Planning Act that then applied across to the other Acts. So, if you read those other Acts, you still need to read the Town and Country Planning Act as well. We've got rid of that as far as we can so that rather than having to refer you to the Town and Country Planning Act, we've just set things out in full in the Bill. So, it should be a lot more self-contained than it was previously.
On the specific issue about section 79 of the Bill, the issue there is that it's about buildings that are treated as being listed due to various proposals to list them, and that has consequences under the planning legislation that somebody making a decision about whether to give planning permission has to take into account the importance of preserving listed buildings. So, it's a duty that's specifically about functions in the planning legislation, so we couldn't really put that entirely in our Bill, but we've got to reference across. That duty in the planning legislation currently sits in the Planning (Listed Buildings and Conservation Areas) Act 1990, which is a bit odd, because it's all about decisions about things under the Town and Country Planning Act. So, we are in our consequential amendments moving that duty to take account of the importance of listed buildings into the Town and Country Planning Act. So, we're also making the Town and Country Planning Act slightly more self-contained than it is at the moment. So, I think the whole exercise has been an opportunity to rethink how we divide things up. So, we have moved a few things around in that way.
It might be worth—
Thanks for that—sorry.
Sorry. It just might be worth saying that, generally speaking, whilst we are trying to divide the law by subject, it's not always possible to be completely neat. There will inevitably be some overlaps between the legislation, and what we're trying to do is to minimise them, and, as James said, to minimise the amount of times you have to cross-refer. But the reality is that it's not always possible to eliminate that entirely.
Okay. You said about cross-referring, and, Counsel General, the Bill does replace some significant terms used in existing Acts as regards to scheduled monuments, listed buildings and conservation areas with new terms. The drafters' notes state that these changes are intended to ensure that terminology is more accurate and more helpful. Can you explain why you believe these terms are more accurate and more helpful, and what consultation was undertaken with organisations and different stakeholders who use these pieces of legislation, and what were their views on the proposed changes?
Thanks for that. Language changes incredibly quickly—words that have been used and descriptions that have been used over the years—and when you're going back over legislation over quite some decades, sometimes even further, over centuries, when you're bringing together a consolidation Bill, certainly the approach taken with this, that if you're trying to clarify the language, make it clearer, more understandable and modernise it, you've actually got to look at the use of some of the terms that are there. So, it is very much a matter of, I think, judgment in doing that, and, of course, one of the functions, of course, of your scrutiny, would be to look at where that judgment has been exercised and if it is the case that the committee thinks that some of the terminologies are not appropriate or that you have views on that—well, of course, as I say, this is a learning curve for all of us.
I'm just thinking of some of the ones that jumped out to me as we were going through this. 'Ancient monument' is a fairly broad description as to what it actually means, and, of course, sometimes it's quite difficult to actually get a clear understanding from older legislation precisely what was intended, or certainly what was intended at the time that that legislation was brought in. 'Ancient monument' has been replaced in this by 'monuments of special historic interest', which I think is a much clearer terminology and a much more modern one.
There was some concern, for example, over 'ecclesiastical buildings' and whether that is a specific reference to an older use of the term 'ecclesiastic' to refer to, for example, the Church of England, the Church in Wales. But that has been replaced by the term 'religious buildings'. So, there are examples like that. I don't know, perhaps, Dylan or James, whether there are any others that you think are particularly worth drawing attention to.
There are a handful of similar things. The 'ecclesiastical' one is an interesting one, because the existing legislation uses it in different ways in different places. We have 'ecclesiastical land', which does just mean the Church of England, and we have references to 'ecclesiastical buildings', which actually, probably, means any religion. It was actually unhelpful the way things were worded at the moment, so we've made the distinction clearer by talking about Church of England land or religious buildings.
James, you did ask also then about engagement and so on, and, of course, this isn't a process where you can go through, when you're reforming a law, the normal sort of consultation process. But there has been engagement with the specialist groups and individuals that are involved, particularly Cadw, who set up a task and finish group. That was composed of members drawn from across the sector who had a good knowledge of the legislation. They were able to test some of the changes in terminology with the task and finish group and feed back any concerns into the drafting process, which I think is reflected either in the legislation itself or in the explanatory notes. I think it was also tested on Cadw staff, those who actually have to make regular use of the legislation itself. My understanding is that that's been really quite a productive exercise, it's been a useful exercise. Dylan or James, is there anything you can add about that process itself?
It might be worth mentioning one thing that's fairly significant, and that's the use of the words 'listed' and 'scheduled'. That's an interesting issue in its own right, because those terms actually derive from a drafting technique, essentially. So, in the original legislation, there was a list of buildings. That's how it was referred to in the Act of Parliament. And then, similarly, there was a schedule of monuments. We considered whether it would be appropriate to change those terms, because it's an accident of history, really, as to how those expressions have come about and, arguably, you could say that they're not particularly helpful as a description of what they are. But I think Cadw, in their discussion with their stakeholders, took the view that, strangely, despite the etymology, if you like, despite the history of these terms, they had become part of the common parlance. 'Listed building' is probably a very good example of something that people understand and, therefore, they were very reluctant to change that term, despite the fact that our instincts, or my instinct, perhaps, more accurately, was to change it to something that was actually more reflective of what it meant. So, I think that's just an example of how it really does depend on the circumstances and depends on how people use these words in real life, as well as the technical aspect of it as well.
That brings me on to my final question, Counsel General. Some of the language that we do use in these Bills, and even in this committee, sometimes goes over my head. It’s sometimes very difficult for people to understand, and the explanatory memorandum did state that expressing legal concepts in accessible language has, I quote,
'proved to be a challenging task'.
We did touch on this earlier, but can you explain a bit more what you mean by this, if that’s okay?
It goes over many people’s heads. You don’t have to not be a lawyer for a lot of these terms to go over your head. I always seem to remember the Rumpole formula, which was that an understanding of the law was a distinct disadvantage to a lawyer, and it probably reflects that a little bit. Honestly, people like James and Dylan who've been going through the process of constructing this consolidation have had to face this on a regular basis, but just from my grasp of the process, there have been quite a number of challenges, particularly when you come across provisions that are in some of the principal Acts that are relatively rarely used. So, trying to actually work out what those things mean when you transfer them into a consolidation Bill that you want to actually make sense, and not go above people’s heads, as you say, is quite challenging.
I know one of the examples was the use of the term 'owner' in legislation. In litigation, the legislation frequently doesn’t make clear whether references mean any owner or every owner, and it can be quite significant. One of the unique parts, again, about this process is the drafters’ notes, which set out, or try to establish, a clear and consistent practice in the Bill. So, for example, notices will be served on every owner, but the opportunities to exercise rights when making representations will be available to any owner. So, those are some of the areas. This probably would be a good time again for me to refer back to Dylan and James, who’ve had to work through this. Is there anything you can add that makes more sense and doesn’t go above anybody’s head?
James, do you want to come in on this?
I think one of the reasons that the drafting is so challenging is it goes back to what the Counsel General said right at the outset about this being different from a policy reform Bill, where we’d have a policy we were trying to achieve, and we’d look at the bits of law that needed changing to reflect that. In this exercise, we’ve had to look at all of the law on the subject, including all the bits that are very rarely used because they’re only there just in case, or they deal with some quite obscure situation. Those are pieces that the lawyers and officials who deal with the areas have far less experience of, and far less knowledge, perhaps, of what was originally intended, especially when we’re looking at things that are extremely old. I think that’s partly why it’s become challenging. For anything that’s not at all clear, the exercise of trying to work out what was intended and how the legislation has evolved through multiple consolidations—because most of this has already been consolidated before—has involved quite a lot of digging and working out what words that have been in law for a long time actually mean.
I understand also there were some stakeholders during the engagement process that advocated certain changes in terminology, and those were rejected—whether it was substituting 'conservation' for 'preservation', and what the implications of that would be. I think decisions were taken there along the way to basically keep some of that terminology—that it was necessary to contain, to a certain extent, things that began to push at the boundaries of reform as opposed to consolidation. So, that has happened again, and of course those may be areas again that you’ll obviously want to look at.
James, thank you very much for that. That was a fascinating section there, which we’ll return to in greater detail as this Bill progresses. It's not just exciting, as Alun was saying earlier on, but really fascinating from a legislation point of view. Rhys, we’re going to go on to you now, and just to say, if I disappear from the screen just momentarily, it's because I'm sitting in a room without any air conditioning and I need to open a window because the sun is streaming through into this office. So, Rhys, no disrespect to you or to the Counsel General, I'll only be a moment. Over to you, Rhys.
Diolch yn fawr, Gadeirydd, a gobeithio y byddwch chi'n fwy cyfforddus yn fuan iawn. Cwnsler Cyffredinol, rydych chi'n ymwybodol iawn o bryder y pwyllgor yma ynglŷn â defnydd cynyddol Llywodraeth Cymru o Filiau Prydeinig i ddeddfu. Sut ydych chi'n cysoni hynny â'r gwaith cydgrynhoi, ac onid ydy'r defnydd cynyddol o Filiau Prydeinig i ddeddfu ar ran Llywodraeth Cymru yn tanseilio'r gwaith pwysig yma?
Thank you very much, Chair, and hopefully you'll be more comfortable soon. Counsel General, you're very aware of the concerns of this committee regarding the increasing use by Welsh Government of UK Bills to legislate. How do you bring that into the consolidation work, and is the increasing use of UK Bills to legislate on behalf of Welsh Government undermining this important work?
It is something, within the context of everything that is happening and with UK Government legislative programmes, that you have to continually monitor and keep an eye on in terms of what's happening. And again, as you know from the many times we've discussed this, we often don't see Bills until the very last minute. We often don't see amendments, and so on. That's not always the case, although that is predominantly the case. I don't see that as being something that's going to impact in respect of our own consolidation programme. I think there's one area where possibly some issues have arisen or may arise; it's in respect of the levelling-up legislation, which may have some reference into and impact upon Welsh legislation or legislation that we might want to consolidate. What it won't do, though, is change the consolidation process and presentation itself.
For example, because we will create a historic environment code, and you will have within that this principal consolidation Act plus any subsequent secondary legislation or guidance, if there were to be something that came through that changed the law in this area, then it would need to actually change the principal legislation, the consolidated legislation itself. That is, it wouldn't mean that there was additional legislation in another place. So, whatever happened, for whatever reason and whatever judgments there are over what might happen, what might be consented to, what might be imposed as opposed to consented et cetera, it shouldn't change, and we would want to ensure that, in the way in which we are changing the law through its codification of consolidated legislation, bringing everything into one place, that would not happen.
The same would apply, for example, if there were even Welsh Government or Senedd legislation that sought to make changes that reformed the law in this area—that, again, it wouldn't be legislation in terms of separate pieces of legislation that added to, it would be by changing the principal legislation itself. So you would always retain the legislation in one single piece of codified legislation. That would make it easier for changes in the future, changes for reform. But, we would want to resist any external legislation that would go in any way contrary to that. Does that helpfully clarify?
Ydy, dwi'n credu. Dwi jest eisiau ei gwneud hi'n glir: beth fyddai'n digwydd pe byddai Llywodraeth y Deyrnas Unedig yn pasio Deddf o fewn maes datganoledig mewn ardal sydd wedi'i gydgrynhoi yn barod, er enghraifft yr ardal yma?
Yes, I think. I just want to make it clear: what would happen if the UK Government passed an Act in a devolved area of law that is consolidated already, for example this area?
If there was a piece of legislation that was passed that actually changed the law in a devolved area that we had not consented to, at every stage—. There would have to be an LCM in any event under our Standing Orders, and, in all the engagement that we would have with officials and so on, we would oppose, and we might refer to whatever disputes processes there were, et cetera. But, if that were to go ahead in any event, we would certainly want it to be by way of amendment to the principal consolidation Act, not by way of undermining it. And I think the point you're making is this: what would happen if they were to pass a piece of legislation? That would actually mean that, to find the law, you'd have to start referring not only to the Welsh consolidation Act, but then you'd have to start looking at other pieces of legislation, and so on, which would be the UK Government's. We would certainly want that anything that did happen would have to be by way of amendment to the principal consolidation Act. Now, if the UK Government was doing that, I think it would have to do that in any event, leaving aside the arguments over Sewel, and so on. If that were to happen, it would seem to me that it would have to be by amendment. That's certainly what we would want to achieve and see happen.
Allaf i adio at hynny?
Can I add to that?
Wrth gwrs, Dylan.
Of course, Dylan.
Sori, jest i ddweud, fel arfer, materion gweddol fach fyddem ni'n eu trafod. Petai Llywodraeth Prydain yn gwneud rhywbeth a oedd yn fwy o sylwedd, a bod y Llywodraeth yn fodlon cytuno i hynny, byddwn i'n disgwyl iddyn nhw—. Ein safbwynt cyntaf ni fyddai disgwyl iddyn nhw ddiwygio deddfwriaeth Cymru ac i wneud hynny yn ddwyieithog, ac mae yna ddigon o esiamplau o hynny'n digwydd eisoes. Ond petai'n rhaid i ni, byddai modd i ni wedyn ailymgymryd â'r broses gydgrynhoi a'i dynnu e mewn yn y ffordd rŷm ni wedi'i wneud nawr. Y math o sefyllfa a allai fod yn anodd yw sefyllfa lle byddai Llywodraeth Prydain yn paratoi cyfraith sydd yn gymwys ar draws y Deyrnas Unedig, er enghraifft, ar ryw fater, ac efallai byddai hwnna'n ei wneud yn fwy anodd iddyn nhw wneud hynny drwy ddiwygio’n deddfwriaeth ni, yn hytrach na chreu deddfwriaeth fyddai'n sefyll ar ei phen ei hun. Ond, nid ydym yn gweld bod hynny'n debygol o ddigwydd.
Jest un peth mwy cyffredinol am y cwestiwn cyntaf, am y cwestiwn yma o'r gyfraith yn cael ei newid mewn deddfwriaeth Brydeinig, rwy'n credu bod e'n werth esbonio hefyd fod hygyrchedd y gyfraith yn fater mae'n rhaid i ni ystyried yn rheolaidd pan rŷm ni'n deddfu hefyd. A'r tensiwn fydd wastad yn codi yw'r ffaith, gan amlaf, fod diwygio'r gyfraith yn—. Mae e'n haws ac yn fwy cyflym i newid y gyfraith drwy ddiwygio deddfwriaeth sy'n barod yn bodoli. Mae'n dipyn yn fwy anodd i ailddatgan y gyfraith ac i'w ail-greu yn ei chyfanrwydd, yn ddwyieithog, er mwyn gwireddu'r polisi. Felly, mae yna densiwn wastad.
Felly, unrhyw bryd rŷm ni'n diwygio deddfwriaeth Brydeinig er mwyn i ni gyflawni'r polisi yn fwy cyflym, mae hwnna yn fater—. Dydyn ni ddim yn gwneud hynny heb ystyried hygyrchedd, ond fel arfer rŷm ni'n wneud e er mwyn sicrhau bod y newid yn y gyfraith yn cael ei wneud yn fwy cyflym, a'r bwriad yw bod y rhaglen gydgrynhoi yn ein galluogi ni i fynd nôl at y gyfraith yna, ac i ailddatgan ac i greu cyfraith ddwyieithog. A dros amser, wrth gwrs, bydd mwy a mwy o ddeddfwriaeth Gymreig gyda ni a fydd yn golygu bob tro rŷm ni'n diwygio'r gyfraith, byddwn ni'n diwygio ein cyfraith ein hunain yn hytrach na chyfraith San Steffan.
Just to say that, usually, we would be discussing small issues. If the UK Government were to do something more significant, and if the Government would be willing to agree to that, we would expect them—. Our first view would be to expect them to reform Welsh law and to do it bilingually, and there are plenty of examples of that happening already. But, if we had to, there would be a way for us then to re-address the consolidation process, and do it in the way that we're doing now. The sort of situation that could be difficult is a situation where the UK Government is preparing a law that applies to the whole of the UK, for example, on a specific matter, and perhaps that would make it more difficult for them to do that by reforming our legislation, rather than creating legislation that stands alone. But, we don't see that that is likely to happen.
Just another general point regarding the first question, this question of the law being changed in UK legislation, I think it's worth explaining as well that the accessibility of the law is an issue that we need to consider regularly when we legislate as well. And the tension that always arises is the fact that, quite often, amending the legislation—. It's easier and quicker to change the law by reforming legislation that already exists. It's much more difficult to restate the law and to recreate it wholesale, bilingually, in order to deliver the policy. So, there's always tension.
So, any time that we reform UK legislation in order to deliver policy more quickly, that's a matter—. We're not going to do that without considering accessibility, but we usually do it to ensure that the change in the law is done more quickly, and the intention is that the consolidation exercise will allow us to go back to that legislation, and to restate and create bilingual legislation. And over time, of course, more and more Welsh legislation will be available, which will mean that every time we reform legislation, we'll be reforming our own legislation rather than Westminster legislation.
Ie, rwy'n gallu gweld hynny. Diolch yn fawr, Dylan. Y cwestiwn olaf rwy'n credu gen i, oni bai bod rhywbeth rŷch chi'n ei ddweud yn peri cwestiwn arall: oes yna unrhyw beth yn rhaglen ddeddfwriaethol ddiweddaraf Llywodraeth y Deyrnas Unedig sy'n peri unrhyw gonsárn i chi, sy'n gwneud i chi feddwl y gallai o bosibl effeithio ar y Bil cydgrynhoi yma?
I can see that, yes. Thank you very much, Dylan. A final question I think from me, unless something you say makes me ask another question: is there anything in the most recently announced legislative programme of the UK Government that causes you any concern, that makes you think that it could possibly impact this consolidation Bill?
I'm not aware of anything that is coming forward from the UK side that is likely to impact on this. It's a moving feast, often, with UK Government legislation, and the things that get added in and amendments that get proposed. In certain legislation recently, I think that there have been something like 300 amendments at very short notice, you know, which requires an enormous amount of analysis and work. So, I'm not aware of anything that would impact on this.
I think it's worth mentioning also, of course, that I am required to provide an annual report on accessibility, and I think things that might emerge that would impact in any way on our accessibility programme—obviously, incorporating the consolidation programme—would be things that I would want to refer to in that report and bring to the attention of the Senedd in any event. But, for the purpose, I think, of your work—the work of this committee and this scrutiny—I'm not aware of anything. I'm sure Dylan or James will come in if they know of anything to the contrary, but I'm not aware of anything at all.
You've already mentioned the Levelling-up and Regeneration Bill. There is a technical issue there that might need us to change some of the consequential amendments that we've drafted, but that's something that we're talking to the UK Government about.
I think that's another aspect, isn't it? Of course, there will, from time to time, be minor consequential amendments that don't impact on the substance of legislation, and that's, again, one of those things to be made aware of as and when they might emerge.
Diolch yn fawr. Mi oedd un peth arall yr oeddwn i am ofyn, Gadeirydd: mae'n annhebygol iawn bod y Bil cydgrynhoi yma yn mynd i gael ryw effaith fawr ar ein llysoedd ni ac ar y proffesiwn yng Nghymru, ond ydych chi wedi bod yn trafod â'r farnwriaeth a'r proffesiynau yng Nghymru, i ddechrau wrth siarad â'r stakeholders eraill ac yn ail i roi'r heads-up iddyn nhw fod y newid yma yn digwydd?
Thank you. One other thing that I wanted to ask, Chair: it's very unlikely that this consolidation Bill is going to have a great impact on our courts and the profession in Wales, but have you been discussing with the judiciary and the legal practitioners in Wales, initially when speaking to other stakeholders and then to give them the heads-up that this change is happening?
Thank you for that. That is important; it is important the judiciary know and understand, as well as, in fact, lawyers. So, we notified the Lord Chief Justice's office; we informed them of the Bill. We've sent a copy of the justice impact assessment. That, I think, happened around 28 April, in accordance with our standard practice of engaging with the judiciary. We've also updated the Lord Chief Justice's office regarding the introduction of the Bill, and I think as we get closer to a coming-into-force date we will liaise with Her Majesty's Courts and Tribunals Service and, indeed, with the Judicial College—the judicial training college—to make them aware of the changes and allow them to update their guidance and instructions.
I think it's also, perhaps, worth mentioning that, if enacted, the Bill will not come immediately into force on the day of Royal Assent, because there's still a certain amount of work that needs to be done in respect of subordinate legislation that will need to be made. I think guidance and the websites will need to be updated, and there will probably need to be a certain amount of awareness raising to make people aware of the consolidation. As normal, I think, that engagement will take place with all of the partners—so, the courts, the Crown Prosecution Service and even, I think, the police as well. I think that any of the guidance we have—. As I said, I've written to or been in touch with the Lord Chief Justice's office. We've not yet had a response, but that engagement will continue and we'll keep the Lord Chief Justice's office updated as necessary.
Diolch, Rhys; thank you very much indeed. If consolidation hasn't excited us enough, Counsel General, codification definitely does it for us. So, I wonder if you could give us some more details on your plans for a code of Welsh law on the historic environment. You've said that this will form part of that code. How do you see this working out? What plans do you have in place?
It's a good question, and I'll answer it, hopefully, without mentioning the word 'taxonomy', which used to emerge very regularly. [Laughter.] The intention is that this Bill will be the main piece of historic environment primary legislation, and any future drafting, changes or reforms would be to this Act as a stand-alone piece of legislation. We want to keep as much of the law as is possible in one place. So, basically, you're talking about a historic environment code.
What will the code consist of? Well, I suppose it'll consist of this Bill, or it will be an Act when it is passed and then implemented, and any secondary or tertiary legislation under it. So, where it's necessary to introduce secondary legislation or further legislation, that will form part of the code. So, if you want to know anything about the historic environment, you go to the historic environment code, and there it is: the legislation and any other supporting or secondary legislation that is relevant that you would need to know about in order to have an understanding of what the legal position is.
I think another impact of this as well, of course, is that, certainly for those who have to make the legislation available to people so that they can understand it and have to publish it, it makes it a lot easier for them as well, because again it's all there, it's all in that one place, et cetera. You don't have to have all the usual sub-notes and references and so on, because it's all in that piece of legislation.
That's very helpful to understand how you see this fitting within that framework of codification, codes of law, as well. We really are pushing at the boundaries here, and it shows the added significance of getting this particular first consolidation Bill right. You've explained in the explanatory memorandum that some of this will probably mean changes to Standing Orders. So, can you enlighten us a little bit more on that and tell us as well what discussions you've had already with the Llywydd and/or the Business Committee?
There will be a need for discussions. My intention is to certainly explore the ways in which the Senedd Standing Orders can be, I suppose, put into good effect, used to promote good practice. Because what we need to ensure as well is that the process of legislation that takes place, changing the law, has to actually the support the process of codification. What we don't want to see is that we codify the law now, and we consolidate the legislation, but then you lose all discipline in that area and you start legislating as we have done in the past. So, I think there'll need to be a review of Standing Orders to look at that.
It could be, for example, a form of requirement for Members who introduce Bills before the Senedd to have to ensure that the drafting takes place within a particular format, a particular process, one that is supportive of the code. So, if you were bringing a piece of legislation forward and we're much further down the road of codification, it would have to be by amendment of the code rather than a completely stand-alone piece of legislation. So, if, for example, there was an individual Members Bill that had something to do with historic environment, it wouldn't be a completely separate piece of legislation, it would be basically an amendment to the code. So, I think we have to look at how that might work in practice, because obviously the Senedd has its own empowerment in terms of legislation and those processes. But, equally, what we do want is to create a framework, a fairly disciplined framework, that actually maintains and supports the codification process.
Thank you, Counsel General. I'm going to hand over to James.
It puts it in a whole new light when you, as a backbencher, think, 'Right, I'm going to have this landmark piece of new legislation under my own name, the Irranca-Davies piece of law on the historic environment', but it'll now be part of the codification process. I'm sure we'll find ways to explain to our public what we're doing. Right, James, you're going to go a bit further on this aspect with us.
Yes, thank you. To explain things to the public who are watching with us, we're going to go very deep now. So, if they are watching, I don't know how they're doing to follow this, but there we go.
Counsel General, you're talking about the Standing Orders of the Senedd. They do allow for the incorporation of common law in the consolidation Bill exercise. So, how has common law influenced provision within the consolidation Bill?
I will defer on this in a minute, perhaps to James, but, of course, this has been an area, from time to time, where, when legislation is passed, what it actually does do is it actually puts into that statute—it incorporates what the common law legal position is. And that's happened in many areas. I think there are a number of area where there's been interpretation of legislation, which then is appropriate to incorporate into the actual legislation itself. And I think this is probably something that's going to emerge in subsequent consolidation Bills—maybe planning being one of those, for example. I don't know, perhaps this might be the best time to go over to you, James, because you've had to look at this very specifically.
Thanks, Counsel General. Yes, as the Counsel General said, we have incorporated case law in some places where there were cases about the interpretation of the legislation or how it applies. We've put in case law, really, because, without it, the restatement of the provisions wouldn't really be complete, or potentially could be misleading in some cases.
So, one example is section 76(5), which is the first section in Part 3 about listed buildings, and that defines a listed building, and the definition currently in the listed buildings Act includes the building itself and then objects that are within the curtilage of the building, which is a horrible technical term, but it's things like outbuildings in the garden, or possibly other features in the grounds of the building. We've included additional wording there that isn't in the current legislation to explain when you assess what was in the curtilage of the building to determine what counts as part of the listing. And there's case law about that that says that the question is decided at the time when you list the building. So, it's not whether it's there now, it's whether it was there whenever it was listed, which might be, obviously, 20 or 50, or however many years ago. That particular change was one that was recommended by the Law Commission. So, they looked at the case law, and I think it's not at all contentious what the effect of that case law is, in the sense that we should reflect it in the provisions. So, that's what we've done because, really, it fills in a gap that would otherwise be unclear if we hadn't done that.
There are a number of other examples. If you look later on in that part of the Bill, there are provisions for things called 'purchase notices', which is where, if somebody's refused listed building consent, or has their consent revoked, and their land becomes unusable as a result, they can force the council that refused the consent to buy the land off them, and there were quite a few cases that have changed how those provisions operate that wouldn't be obvious from the face of the legislation. There are cases saying that certain words actually don't do anything and should be ignored. There are cases setting out additional tests for what land is unusable. There are cases about whether you can withdraw and amend these notices requiring the council to purchase your land. So, we've incorporated a number of bits of case law in that set of provisions because, otherwise, you wouldn't really get the full sense of how the system works.
Okay. Thank you. I just want to touch now on the removal or omission of provisions. Standing Order No. 26C.2, states that the consolidation Bill may remove or omit provisions that are obsolete, spent or no longer of practical utility or effect, which can, in a way, make sense, it makes things a lot tidier. But in the Historic Environment (Wales) Act 2016, provision was made for an advisory panel. A panel was never established through this Bill. Those provisions are being removed now through consolidation. So, can you clarify why this decision has been taken when such provisions were only put in place in Welsh law only six years ago—it does seem like nothing's had time to bed in, really—and can you clarify how, in your view, this meets the requirement of the Standing Orders, given that removal for the need of a panel, approved by the Senedd, could be viewed as reforming the law that should equally require approval of the Senedd through a Bill subject to Standing Order 26?
I think, as you say, the panel has never been set up. I suppose the question is whether there was any realistic prospect that it ever would be set up, and I think the view that's been taken is that there was no realistic prospect that that would happen. So, it therefore fits within the prospect of legislation that is now remote or obsolete, or unlikely ever to be implemented. It really doesn't serve a purpose to incorporate within the consolidation Bill. And the main reason now is that, although Cadw is part of the Welsh Government, its board includes external members who are appointed through a public appointments process, and they provide that level of independent advice if the need arises.
This was considered by the Welsh language and culture committee some while back, and I think this was the sort of point that was considered by them, some time ago. And they made recommendations that have been accepted, which is, basically, that, if there was not likely to be a need for such a panel now for those very reasons, then there should be a change to the current law. So, in many ways, what we are doing is acting on the recommendation from the committee that basically said that we should change the law. And I think the Welsh Government's position at the time was that, well, when an opportunity arose, we would do so, and I think this is such an opportunity. That recommendation then was accepted. But equally so, this is one of those areas for the committee to scrutinise. I'd be very happy to see what the views of the committee are on this, and, obviously, it's one of those areas to be explored. But that is the way it's been approached within this legislation. James, is there anything that you can add to that?
I don't think so, really. I think we would say that the test is not how old something is, just whether it has any use, and that something could lose its use almost immediately, depending on what happened.
Diolch, Gadeirydd. Thank you for that. And as the Counsel General says, this is new territory for us all here, isn't it? So, we'll have to deliberate and see what we think on this one. Thank you.
Thank you, James.
A nesaf, yn ôl i Rhys nawr.
And next, back to Rhys.
Diolch yn fawr, Gadeirydd. Cwnsler Cyffredinol, pa ddarpariaethau o is-ddeddfwriaeth sydd wedi symud o fod yn rheoliadau i fod ar wyneb y Bil cydgrynhoi yma?
Thank you, Chair. Counsel General, what provisions of subordinate legislation have moved from being regulations to being on the face of this consolidation Bill?
Well, you see within all the papers that are in front of you, you've got the drafters' notes, you've got the tables of origins and derivations et cetera. Those are incredibly detailed and I think are very helpful. I think, generally, as far as subordinate legislation is concerned, we moved this into the primary legislation, into the consolidation Bill, where that's appropriate, and it's trying to get the right balance. I think probably it would be helpful, again, if I went over to Dylan and just asked him to perhaps set out some of the examples of where that has actually happened, where you've actually faced that in actually putting together the consolidation.
Generally speaking, we have moved provisions from subordinate legislation into primary legislation. So, in that respect, it's a good thing, shall we say? The reason we felt able to do that is because, often, the reason the power is taken and provision is made in subordinate legislation is because it's felt that we need flexibility and an ability to change the law quickly, as and when required. But sometimes it doesn't turn out like that, and some of the examples are examples of situations where the law hasn't been changed after the event, and it's felt, therefore, that it is established, and in consequence that it should be in the primary legislation. James can give us examples, if you'd like us to go through them.
Yes, happy to do so. One example is that, if you look at Schedule 3 to the Bill, that sets out what are called class consents, so cases where a scheduled monument consent is given for a whole category of works, without anybody needing to apply for it. Now, that's currently set out in an Order that was made under the 1979 Act, in 1994; it's not been amended since it was made nearly 30 years ago. And we took the view that, because it's an important part of the system, it would be more accessible to describe all those classes of works in the Bill so you can just see it all in one piece of legislation, and not have to go off to a separate Order. Another example would be that both the 1979 Act and 1990 Act have a lot of provisions under which people can claim compensation for various things that are done. They currently leave it to regulations to set out how long you've got to claim compensation, but it's a set six-month period in every case that's been set out in subordinate legislation that has never changed in many, many decades. So, we took the view, again, that it would be more helpful to just say this in the Bill, but keep flexibility for regulations to amend the time limits, if that proved necessary in the future.
Diolch yn fawr. Dwi eisiau rhoi enghraifft o rywbeth sy'n mynd y ffordd arall nawr. Yn adran 100(4) o'r Bil cydgrynhoi, mae gyda ni enghraifft o ddarpariaeth oedd ar wyneb y Bil yn Neddf cynllunio 1990, ond sydd nawr wedi symud i bŵer i wneud rheoliadau. Pam mae hynny wedi digwydd? Ydych chi'n credu bod hynny'n cyd-fynd â Rheolau Sefydlog sy'n dweud mai dim ond mân newidiadau ddylai gael eu gwneud? Ac a oes enghreifftiau eraill o bŵer yn cael ei roi i Weinidogion Cymru i newid polisi?
Thank you very much. I want to mention an example now of something that goes the other way. In section 100(4) of the consolidation Bill, we have an example of a provision currently on the face of the planning Act 1990, but that's now being moved to a regulation-making power. Why has that happened? Do you think that that is in line with the Standing Order that says that only minor changes should be made? And are there any other examples of powers being given to Welsh Ministers to change policy?
Thanks. Well, if we deal with that first point with regard to section 100, because the reason for the change in section 100 is basically to just improve the consistency. But I'll go to James on this, on that part, and then perhaps go on to the other point that you raised with regard to powers.
Thanks, Counsel General. Well, yes, as the Counsel General said, it's really about consistency. This is about cases where somebody applies for consent and doesn't get a decision, and, after a certain amount of time, if they hear nothing they can appeal, as if the application had been refused. So, there are three cases. In two of them, the period you have to wait is set in regulations, but in one of them, for no reason that we could really tell, it's set out in section 20 of the Planning (Listed Buildings and Conservation Areas) Act 1990, but the period is eight weeks in every case. We think it would be clearer just to have that set out in one place, rather than partly in the Act and partly in regulations. And we think it makes more sense for this to be dealt with in regulations along with other procedural matters and time limits and so on, in case it needs to change in the future.
On the powers point, generally, I think the overall effect of this consolidation Bill is that we would be relying on subordinate legislation far less than we actually do now. We have, within the Bill, omitted some powers to make subordinate legislation that wasn't considered necessary, and have moved some important material that's currently in subordinate legislation, as has been said, now onto the face of the Bill. And, again, this is obviously one of those areas that the committee will want to look at, and, of course, there might be changes in the future. So, the Bill does include powers to amend some of the provisions in the future, but they're all subject to the affirmative Senedd procedure, even if the existing regulation-making powers are actually subject to the negative procedure. There's a small number of new regulation-making powers in the Bill: a power in section 2 to bring religious buildings within the definition of monument. That power's been included because the scope of the existing ecclesiastical exemption is not completely clear, so it's in case it's necessary to clarify the exemption in the future. So, there are a number of examples like that, and obviously, as the scrutiny process is under way, I'm happy, if any questions are raised, to provide further clarification, if there are any from the committee.
Thank you very much, Rhys, indeed. We're going to go for our final set of questions to Alun, and I think that will probably take us up to time, but, Members, if we do find that we have a couple of minutes at the end and there are any other questions that you want, we'll come in there. But, Alun, over to you.
Thank you. I actually don't have many questions for the Counsel General. I think it's been a very good and informative session this afternoon. In terms of the way we go forward on these matters, Counsel General, I didn't catch any further consolidation Bills in the legislative programme published by the First Minister last week, so I'd be grateful if you could outline how you see the process going forward, and how you will be evaluating the success or otherwise of the process that is in train at present with this piece of legislation.
Well, thanks for that. I mean, you're right—a lot of the questions today have dealt very much with a lot of quite technical aspects. The areas that we'll be looking at in terms of—. I will be making a further statement or further report in the autumn, where I hope to give more information about issues around accessibility and consolidation, but obviously the issue of statute repeals is the more likely imminent one. But the big project, which is based on the work that the Law Commission has done, is in respect of planning law consolidation. That is certainly something that is considered will have very considerable advantages. It's a considerably difficult and complex area, but, again, I think a very important next step of substantial consolidation to take place.
In terms of evaluation, I think this is something we're going to need to give thought to, particularly once this piece of legislation has been completed and gone through. We have already begun to collect bits of informal feedback from, for example, members of the task and finish group amongst the Cadw staff and so on. We have had, again, some positive feedback on that, and this is the sort of work that needs to carry on, particularly from those who are experts in this field or who are engaged in this. The first step is getting a certain amount of informal responses from people to the legislation to evaluate that. I think, once the legislation is bedded in, what we plan to do is to collect opinions of users on the legislation's success, and of course that will take some time, and I suppose you'll have a number of stages. The first one is those engaged in the field who will have their views on their understanding of the new legislation in a consolidated format as to how it was previously, so that will give us a certain amount of feedback. I think secondly is where, in practice, the legislation has to be used and what the responses from the users of that are—whether it is found to be more effective, easier, better to understand. So, there's work on that and progress is on the way. Again, in terms of the legislation that's going to come forward, well, as I said, there's the planning Bill, the statute law repeals Bill, which I think I will report on to some degree in the next accessibility report that I will do, and again I'm happy for further discussions as time goes on with this committee as well. I'm happy to update you on this, and again there is my annual report in the autumn, which I think are probably the next stages in respect of assessing any sort of progress that's being made.
I'm grateful to the Counsel General for that. I'm happy with those responses.
Thank you, Alun. Counsel General, remarkably, we've covered a heck of a lot of ground and we're slightly ahead of time, which, unfortunately for you, then allows me to come back to a couple of areas just very, very briefly. You mentioned in terms of consultation on consolidation around Standing Orders that, clearly, our understanding would be as a committee there would be a role for the Llywydd, for the business committee and so on, but you use the example of private Members' Bills coming forward. On that basis, do you have a feeling whether there ought to also be some sort of consultation that extends beyond the Business Committee and so on, to those backbench Members themselves, to seek their views, or would you see that as something that is up to the Business Committee or the Llywydd to do?
No, I think it's one that's obviously got to engage. Individual Members' Bills belong to the Members and to the Senedd itself. I think it's very important for two reasons: so people, hopefully, will all be on board with the whole concept of consolidation of legislation and codification, and the way in which new legislation interacts with that. Because it's about changing a culture, isn't it, of legislation, and putting that into a far more progressive format for the future, for the benefit of everyone. So, I think any changes in Standing Orders will inevitably have to engage the Members; they have to engage the parties within the Senedd, and there has to be, obviously, consent to those changes. So, I don't think it's about an imposition; it's about engagement process, and, as I say, a lot of this is a learning experience for all of us and I think we'll learn a lot from this first one, and that will also give us an indication as to how Standing Orders might need to be adapted or modernised to take account of this new process.
Thank you, Counsel General. Before we close this evidence session with you on this consolidation Bill, can I just check with Members if they have any other questions? If not, then can I thank you and your colleagues, Counsel General?
Just to flag with you, we'll obviously need to keep close engagement whilst respecting the demarcation lines between our committee and you as the drafters and people bringing forward the legislation here. We note that we will be inviting you to our meeting on 14 November to discuss matters that will have arisen during our consideration of the Bill. We've got a fair bit of work to do now, including over the summer, to look in detail at what we've heard today but also wider, in depth at the Bill. It's good to have started it this side of the summer, I have to say as well, as it gives that additional time for us to do it.
I have one request, Counsel General. In addition to writing to you with further questions, we stripped a fair bit out today in order that we could cover in some detail quite a range of areas, but we've missed others, on which we'll want to come back to you. So, there will be quite a long list, just to forewarn you, that we will come back. We're wondering, though, would you be content with us engaging with the drafters of this—it's been very helpful today—to ask any questions about the drafters' notes, for example? We'd obviously respect the boundaries about what is appropriate to talk to Government officials about, and we want you to respect our boundaries too as the committee scrutinising this, but it might helpful, I think, to get under some of the skin of this. So, I wonder if you'd be happy with us making an approach there to you to see if we can speak to the drafters.
I'm happy to have engagement on anything that helps to build up our understanding of this process to make it work as effectively as possible. So, the answer is 'yes'. Obviously, there is clear delineation in respect of the scrutiny of the Executive and committee functions et cetera, but a lot of this is really to do with a quite technical understanding of what lies underneath, and anything that helps that, I'm more than happy to encourage.
That's great. Thank you for that. Well, we are even more excited now than we were the start of this, after that first session. But, genuinely, thank you very much for engaging with us in the detail that you have today, and we'll keep that engagement going. We will send you the transcript, as per normal. Check for accuracy, particularly on an item as detailed as this, and then we'll get back in touch with you and we'll take the work forward over the summer. Thank you very much indeed. So, we'll leave you go, Counsel General, and your colleagues. Thank you, all, for that. And as they leave the virtual room—
Diolch yn fawr.
Diolch yn fawr iawn.
As they leave our virtual room, we continue for the moment. Can I just check with colleagues that you're happy to continue now in public session? In which case—thank you—we'll go on to our other business. We'll return to looking at that session when we go into private and what we learnt and where it might take us.
For now, we'll go on to item No. 3. We have instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, and the first of these is a made negative resolution instrument under item 3.1, and it's SL(6)230, the National Health Service (Charges to Overseas Visitors) (Amendment) (No.3) (Wales) Regulations 2022. We have a draft report and we have a letter of 29 June 2022. These regulations amend the National Health Service (Charges to Overseas Visitors) Regulations 1989, which provide for the making and recovery of charges for relevant NHS services to overseas visitors. The changes allow for monkeypox to be included as a disease not requiring a charge to be made when receiving treatment. Our lawyers have identified one technical and four merits points for reporting. So, if I could hand over to our lawyer—Kate, we're all yours.
Thank you. The technical point notes that regulation 2(2)(b) appears to have retrospective effect where the authorising enactment does not give express authority for this. The Welsh Government's response is that, as this provision removes liability and confers a benefit on overseas visitors, this does not create an unfair result, and, as such, the Welsh Government considers that it's appropriate to use retrospective effect in these circumstances.
Three of the merits points are simply noting the breach of the 21-day rule, the lack of formal consultation and the lack of a regulatory impact assessment, which are all attributed to the urgent need to respond to the monkeypox outbreak. And then, the final merits reporting point notes that the explanatory memorandum is not available in Welsh, and the Welsh Government's response is that this was not deemed a priority for translation on the basis that the regulations affect only a small percentage of overseas visitors.
Thank you very much for that explanation there on the reporting points. Are we content with those reporting points? We are. Thank you.
So, we'll move on to the next. We've got a few legal instruments to get through today, as we head up to the recess, so bear with us, those who are following this, and colleagues as well. Item 3.2 is SL(6)231, the Council Tax (Amendments Relating to Discount Disregards and Exempt Dwellings) (Wales) Regulations 2022. Again, we have a draft report and a Welsh Government response. Now, these regulations ensure that households who host individuals under the Homes for Ukraine sponsorship will not lose out on council tax discounts or exemptions as a result of housing additional persons. Our lawyers have identified one technical and two merits points for reporting. Over to you, again.
Thank you. The technical point just queries why the words 'in England' are inserted into article 2(3A) of the exempt dwellings Order in respect of Wales. In response, the Welsh Government has stated that the policy intention is to provide exemptions relating to occupied properties in Wales and, as article 2(3A) relates to unoccupied properties, the wording is necessary to make it clear that this exemption is not available in Wales.
The first merits point asks the Welsh Government to explain why the regulations only apply in relation to those who enter the UK under the Homes for Ukraine scheme, and not those who have permission to enter under the Ukraine Family Scheme. The Welsh Government's response is that the approach is the same in England and Scotland, and that the intention here is to encourage take-up of the Homes for Ukraine scheme. The family scheme has different entry criteria, and there's an expectation that, in those cases, relatives will provide accommodation. Then, the final merits point notes that the explanatory note says that there is no regulatory impact assessment. However, there is a regulatory impact assessment, and the Welsh Government has responded that it will explore correcting this through a correction slip.
Thank you very much. Committee members, are we happy with that explanation and the reporting points? We are. Thank you very much.
That takes us on to item 3.3 and affirmative resolution instruments now. It's SL(6)222, the Plant Health etc. (Fees) (Amendment) (Wales) (EU Exit) (No.2) Regulations 2022. And it's just a draft report here. These regulations make a number of amendments to the Plant Health etc. (Fees) (Wales) Regulations 2018, which specify the fees payable to the Welsh Ministers in relation to plant health and certification services. The regulations are also relevant to the correspondence the committee has received on the Official Controls (Plant Health) (Frequency of Checks) Regulations 2022, which we'll be considering later today at item 6.2. So, Kate, we've identified two merits points for reporting here.
Yes. So, the two merits points are, simply, noting, first, that the regulations have to be reported under Standing Order 21.31, because they amend fees payable to the Welsh Ministers in connection with plant health services. And then the second point is simply noting the link that you just mentioned, Chair, with the Official Controls (Plant Health) (Frequency of Checks) Regulations 2022.
Thank you very much. Again, Members, are we happy to agree those reporting points? We are. Thank you.
That takes us on, now, to a suite of amendments coming up in front of us—items 3.4 to 3.7. They've been laid as part of a suite of regulations under the Renting Homes (Wales) Act 2016, which are due to be debated in Plenary tomorrow. So, item 3.4 we'll start with, SL(6)225, this is the Renting Homes (Wales) Act 2016 (Housing Association Tenancies: Fundamental Provisions) Regulations 2022, and we have the draft report and a written statement of 21 June 2022. These regulations limit the application of certain provisions of the 2016 Act in relation to a specific form of tenancy and they make minor consequential amendments to primary legislation to reflect this. But we have two—no, sorry, we have one merits point for reporting here.
Thank you. The draft report simply notes that no consultation has been carried out in relation to these regulations, and the reason given in the explanatory memorandum is that this is because the regulations make only consequential technical amendments.
Thanks very much. I'll return to your consent on this in a moment, if I rattle through the four of them and then we'll come back to any points. Item 3.5 is SL(6)226, the Renting Homes (Wales) Act 2016 (Amendment of Schedule 12) Regulations 2022. We have a draft report and a written statement of 21 June 2022. Now, these make a series of amendments to Schedule 12 to the 2016 Act, which sets out arrangements for tenancies and licences currently in existence that will convert into occupation contracts on the day that the Act comes into force. And, Kate, there are two merits points that you have on these.
Yes. The first is, again, simply noting that there was no consultation in relation to these regulations. The second point is to note that the regulations make use of Henry VIII powers to amend primary legislation by way of secondary legislation, and so the draft report simply draws attention to some of the matters that were considered by your predecessor committee when these powers were originally enacted.
That's brilliant. Thank you for that. I'm going to go on to the third one of these and then I'll pause for a moment. Item 3.6, SL(6)227, the Renting Homes (Wales) Act 2016 (Amendment) Regulations 2022, and we have a draft report and a written statement of 21 June 2022. These regulations amend a number of Schedules to the 2016 Act and make consequential amendments to the Immigration Act 2016 and the Renting Homes (Amendment) (Wales) Act 2021. The amendments include removing reference to certain types of accommodation provided for asylum seekers et cetera from the list of exemptions in each of those Schedules. And our lawyers have identified one technical and two merits points. Back to you, Kate.
Thank you. The technical point notes that one of the enabling powers appears to be missing from the preamble and so we've requested a Welsh Government response on that point. The two merits reporting points are the same as those that we raised in the previous set of regulations, so, noting a lack of consultation and noting the use of Henry VIII powers.
Thank you, Kate. And, committee colleagues, if I can just ask: are you happy on those three with the reporting points? We are. Good. We can agree those. There's a reason I paused at 3.7, which will become apparent in a moment. So, item 3.7, which is part of the suite, SL(6)229, the Renting Homes (Wales) Act 2016 (Consequential Amendments) Regulations 2022, and we have the draft report and a written statement of 21 June 2022. Now, generally, these regulations amend the 2016 Act in two ways. They ensure that the existing provision in primary legislation continues to have appropriate effect by referencing the relevant occupation contracts alongside references to existing types of tenancies or by including the terminology used in the 2016 Act, and, where the provisions of the 2016 Act are intended to replace elements of existing law, or the existing law is incompatible with that set out in the 2016 Act, these regulations disapply that law. Now, here's the point of interest: our lawyers have identified 31 technical and four merits points for reporting. I'm not sure if we have received a Welsh Government response, but I'm going to hand over to Kate to make the observations on this one.
Thank you. Yes, so we identified 35 reporting points in total, as well as a number of typographical, referencing and formatting issues, which we've sent to Welsh Government separately, because they're not reporting points. I won't take you through every reporting point in the report. The vast majority are technical. So, there are 23 reporting points that relate to defective drafting, and, just by way of one example, reporting point 26 sets out that regulation 32(5)(d) provides text that is to be inserted into section 11 of the Prevention of Social Housing Fraud Act 2013, but it does not say where in section 11 this text should be inserted, and so it's unclear how this amendment could operate without reference to the specific subsection that it's purporting to amend.
There are seven reporting points that seek further explanation about the formal meaning of the regulations. Again, I'll just set out one example, reporting point 25. Regulation 32 inserts references to 'secure contracts' alongside the existing references to 'assured tenancies' in the Prevention of Social Housing Fraud Act 2013. However, these provisions do not insert references to 'contract holder' or 'occupation contract' alongside the existing references to 'tenant' and 'tenancy' in that Act, and this is inconsistent with other amendments that have been made in these regulations, for example, regulation 34, and so the Welsh Government's asked to explain that inconsistency. The final technical point notes that there are a number of uses of gender-specific language.
There are then four merits points. These include a large number of errors in footnotes and also a failure by the Welsh Government to adhere to its own drafting guidelines, as set out in 'Writing Laws for Wales'. So, we've requested a response in relation to 34 of the 35 reporting points. And if I could finally just ask you to note that there is a minor error in the draft report, which we will correct before it's finalised.
Okay. Well, thank you very much for that, and committee members breathed a sigh of relief when you said you weren't going to go through all 35 there. But we have the report to study and which no doubt Welsh Government will want to study as well there. It's probably an unwelcome record, 35 points in all. However, we're doing our job in flagging them and sending them back for their consideration. We haven't had the Welsh Government response yet, have we?
No. Okay, that's great. Well, colleagues, as long as you're happy to agree those reporting points, we will send it back with some constructive and helpful pointers there. Kate, thank you very much for that.
In which case we'll go on to item 3.8, moving away from that suite that we've just been through. This is SL(6)232, the Welsh Language Standards (No. 8) Regulations 2022. We have a draft report and a letter of 29 June 2022. These regulations specify standards of conduct in relation to the Welsh language for healthcare regulators listed in Schedule 6 of the Welsh Language (Wales) Measure 2011. These regulations, just as a reminder, replace the original regulations, which our committee considered at our meeting of 27 June, but were subsequently withdrawn by Welsh Government. So, we have one merits point that our lawyers have identified.
Thank you. The merits point is simply noting that the committee has considered these regulations in a previous draft.
Thank you very much. Content, everybody? We are. Okay.
That takes us on, then, to item No. 4, our standing item on instruments that do raise issues to be reported to the Senedd under Standing Orders 21.2 or 21.3 that we have previously considered. The first of these is item 4.1, which is SL(6)218, the Provision of Information by Head Teachers to Parents and Adult Pupils (Wales) Regulations 2022, and we have a report and a Welsh Government response. We considered this instrument at our meeting on 4 July, and we laid our report the next day, so I invite Members to note the Welsh Government response to the report, which has since been received. Are we happy to note that? We are, thank you. We go on to item 4.2—sorry, Kate, unless there was anything you wanted to add in respect of that.
No, nothing. Thank you.
Well, thank you very much. Item 4.2, SL(6)228, the Restricted Roads (20 mph Speed Limit) (Wales) Order 2022, and we have in your papers a report and the Welsh Government response. As you know, we considered this at our meeting on 4 July, we laid the report the next day, so I just again invite you to note the Welsh Government response. By the way, this is being debated, of course, in Plenary tomorrow. Are we happy to note that? We are.
On we go to item No. 5, written statements under Standing Order 30C. The first of these is item 5.1, WS-30C(6)010, European Parliamentary Elections (Amendment and Revocation) (United Kingdom and Gibraltar) (EU Exit) Regulations 2022. We have a written statement of 5 July and a commentary. The statement notifies the Senedd that the Welsh Government has given consent for the UK Government to make the European Parliamentary Elections (Amendment and Revocation) (United Kingdom and Gibraltar) (EU Exit) Regulations 2022. These regulations correct deficiencies in domestic law by omitting redundant references to European parliamentary elections, political parties and political foundations in various pieces of domestic legislation as a result of the UK's exit from the EU. So, I simply do ask you if we're happy to note that. And we are. We are.
We move on to item No. 6, notifications and correspondence under the inter-institutional relations agreement. The first of these is item 6.1, where we have correspondence from the Minister for Economy that informs the committee that a meeting of the ministerial forum for trade was scheduled for 5 July, and that letter came in on 4 July, so just to note. Shout at me if you want anything raised on any of these, otherwise I'll rattle through them.
Item 6.2, we have a written statement and correspondence from the Minister for Climate Change stating that she has given consent for the UK Government to lay the Official Controls (Plant Health) (Frequency of Checks) Regulations 2022 in relation to Wales. Just to note as well, for committee members, the Minister states that the Welsh Government recognises the need for the UK Government to legislate in certain devolved areas in exceptional cases. In this instance, the Welsh Government notes that
'there is no policy divergence between the Welsh and UK Government in this matter'
and that a single instrument will ensure a coherent and consistent statute book.
So, we move on then to item 6.3. We have correspondence from the First Minister in respect of the British-Irish Council summit in Guernsey. He informs the committee that he and the Minister for Climate Change would be attending the thirty-seventh summit meeting of the British-Irish Council held in Guernsey last week.
That brings us on then to item 7, papers to note, beginning with item 7.1, and, again, shout at me, colleagues, if you want to pause on any of this. But the first one is correspondence from the Minister for Social Justice, noting the committee's request for further information following our consideration of the international agreement, the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. We can return to these in private session, but I'm going to assume you're happy to note that for now.
That takes us on to 7.2, correspondence from the Finance Committee on the Welsh Government draft budget 2023-24. We have an update regarding the engagement work that the Finance Committee has undertaken on the Welsh Government's draft budget and it invites the committee's views. Again, we can return to this in private.
And that does bring us now to item No. 8, our regular motion under Standing Order 17.42 as to whether we're happy to exclude the public for the rest of the meeting so that we can discuss things now in private. Are we happy to do so, colleagues? We are. In which case, we will move to private session, and we'll wait for our clerking team to inform us that we are in private.
Derbyniwyd y cynnig.
Daeth rhan gyhoeddus y cyfarfod i ben am 14:50.
The public part of the meeting ended at 14:50.