Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee

03/10/2022

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Alun Davies MS
Huw Irranca-Davies MS Cadeirydd y Pwyllgor
Committee Chair
Peter Fox MS Yn dirprwyo ar ran James Evans
Substitute for James Evans
Rhys ab Owen MS

Y rhai eraill a oedd yn bresennol

Others in Attendance

Hefin Gill Cyfreithiwr, Llywodraeth Cymru
Lawyer, Welsh Government
Julie James MS Y Gweinidog Newid Hinsawdd
Minister for Climate Change
Nick Howard Uwch-gyfreithiwr, Llywodraeth Cymru
Senior Lawyer, Welsh Government
Richard Clark Pennaeth Ansawdd Amgylchedd Lleol, Llywodraeth Cymru
Head of Local Environment Quality, Welsh Government

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Gerallt Roberts Ail Glerc
Second Clerk
Josh Hayman Ymchwilydd
Researcher
Kate Rabaiotti Cynghorydd Cyfreithiol
Legal Adviser
Lucy Valsamidis Ymchwilydd
Researcher
Nia Moss Ymchwilydd
Researcher
P Gareth Williams Clerc
Clerk
Philip Lewis Ymchwilydd
Researcher
Robin Wilkinson Ymchwilydd
Researcher
Sara Moran Ymchwilydd
Researcher
Sarah Sargent Ail Glerc
Second Clerk
Sian Giddins Dirprwy Glerc
Deputy Clerk

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 13:30.

The committee met by video-conference.

The meeting began at 13:30. 

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introductions, apologies, substitutions and declarations of interest

Prynhawn da. Croeso i chi i gyd.

Good afternoon. Welcome to you all.

Welcome to this afternoon's session of the Legislation, Justice and Constitution Committee. We're shortly going to be going into the substantive part of this meeting, which will be the evidence session with the Minister, Julie James, and her officials, but, before we do, just some basic housekeeping. We're operating in a virtual setting today, but all Standing Orders apply as normal, even in this setting. This is being broadcast on Senedd.tv and a transcript will be available shortly after our deliberations today, of course. Mobile devices—if they can be switched to silent. We are operating through the mediums of Welsh and English today and there are translation facilities on your screens that you can use. You don't need to mute and unmute yourself, because the sound operator will do that for you.

So, we have one apology today, from James, our colleague. We always have good attendance for this committee, so it's an exception for James not to be with us, but we're delighted to welcome back Peter, Peter Fox, who of course is a former member of this committee as well, so is more than able to step in at a moment's notice and to help us in our evidence session and our discussions today.

2. Y Bil Diogelu'r Amgylchedd (Cynhyrchion Plastig Untro) (Cymru): Sesiwn dystiolaeth gyda'r Gweinidog
2. The Environmental Protection (Single-use Plastic Products) (Wales) Bill: Ministerial evidence session

So, on that basis, we'll move straight to the substantive item in front of us, which is item No. 2 on your agenda, the Environmental Protection (Single-use Plastic Products) (Wales) Bill, and our ministerial evidence session. We have in front of us today, as well as the Minister, Julie James—Minister for Climate Change—Nick Howard, the senior government lawyer, Welsh Government, in respect of this Bill; Richard Clark, head of local environment quality for Welsh Government; and Hefin Gill, Government lawyer, Welsh Government. So, Minister, you and your officials are very welcome indeed here today. Thanks for giving us your time. 

We're obviously going to focus on the issues to do with the propriety and the constitutional aspects of the proposed legislation today, and I know you've been in front of other committees looking at the policy implications, and so on. It's unlikely we'll go extensively into that, because we want to see that this is fit and proper for the Senedd to be deliberating upon. So, you won't be surprised with the first question, our standard question to any Minister bringing forward a Bill: are you satisfied that this Bill is within the Senedd's legislative competence?

Thank you very much, Huw, diolch yn fawr. Yes, of course, we're satisfied that the Bill is within the Senedd's competence, and we're very pleased to say that that's also the Llywydd's assessment. 

That's brilliant. I'm just going to ask a slightly odd follow-up for you: with that welcome clarification, you are clear and very satisfied that this is within the Senedd's competence.

Yes. Good, okay, because it might flow into some of the other questions about the way this Bill is making its way through, but thank you for that. 

Secondly, can I ask you whether you've made a human rights assessment of the implications of this Bill?

Yes, thank you very much. Obviously, the purpose of the Bill is to protect the environment by tackling the negative impacts from plastic pollution on our environment, on our wildlife, and our health and well-being. We're satisfied the Bill is compatible with the European convention on human rights, very specifically with articles 6 and 8, and article 1 of protocol 1. We think it achieves a fair and proportionate balance between the protection of the rights of those affected by the Bill and the effectiveness of the enforcement of the proposed regime. 

Were there any particular tricky issues within this, or was it fairly straightforward in your consideration of the human rights balances that you always have to judge?

We always go through the balance, obviously. So, we always look to see whether it's proportionate, there's a public interest consideration, that the impact on any individual business is proportionate and just considering the outcome, and we've come to the conclusion that it's entirely appropriate and does not breach any of the provisions of the Bill. As I say, we specifically looked at article 1 of protocol 1—my old friend, where I have to look at that quite a lot on my homelessness legislation, as well—and we're very happy that there's a public interest consideration, and that this is both proportionate and lawful. 

Okay, that's really helpful. Thank you very much. Rhys, we'll go to you, then, to take us on a little bit. 

13:35

Diolch, Huw, and thank you, Minister. Why was it necessary to use the expedited process with regard to the challenge to the United Kingdom Internal Market Act 2020?

Diolch, Rhys. The focus of the Bill, as you know, is environmental protection, which is a long-term commitment to prohibit the supply of some of the most commonly littered single-use plastics in Wales. It's been drafted to deliver robustly and competently our environmental policy commitments in Wales, set out in the programme for government. As it happens, I'm speaking to you today from the National Botanic Garden of Wales, where I'm in the middle of the biodiversity conference and launching the outcome of the deep-dive. If you were listening to the people here, you would be very convinced that not only do we need to do this fast, we should have done it already, and the faster we can get these harmful items out of our environment, out of our marine environment and out of our land and freshwater environments, the better. So, it's expedited because it's important to get these items out of our environment with the best speed that we can manage. The scale of the climate and ecological emergencies means we've got to prioritise our environment, and this will allow us to reduce our dependency on single-use plastics as quickly as we can. 

I don't disagree with that at all, but that wasn't the reason given previously, especially by the First Minister in a letter to the Senedd. The reason given was that it was to be used as an example to challenge the UK internal market Act. Is that still the position? 

So, on UKIMA, we think that UKIMA does not bite on this Bill. We think that the provisions of the Bill are entirely within the legislative competence of the Senedd. It's not our intention—. It's not for me to decide this as well, Rhys, I should say, but it's obviously the Counsel General's opinion, but it's not my understanding that the Counsel General is planning to refer this proactively to the Supreme Court, assuming it gets through the Senedd and we get to that stage. Obviously, if the UK Attorney-General does that, then we will react accordingly. It's our position that this Bill is entirely within our competence, and that UKIMA is not capable of changing the devolved competence of the Senedd. 

When did the emphasis move, then, Minister, from the letter from the First Minister stating that Stage 1 had to be removed, because it was to be used as an example to challenge the UK internal market Act? When was that changed, then? 

I'm not sure, to be honest—you'll have to ask the First Minister what the reasoning was for that. I'm very clear that the reason for the expedition here is that we do not want to fall behind the Scottish and English Governments, in particular. We certainly don't want a situation where people are trying to dump single-use plastics on Wales because they're banned everywhere else in the United Kingdom. So, from my point of view, the expedition of this Bill is to do with making sure that we are at the forefront of this legislation, that we don't have products in Wales that are permitted anywhere else, and, frankly, that climate and nature emergencies are so extreme that we need to get this sorted out and out of our supply chains as fast as humanly possible.  

And are you concerned that, by removing Stage 1, there won't be proper scrutiny of this? I know the timing is very important, but getting the Act right is very important, too. Do you have any concerns about the lack of scrutiny? 

We have engaged with a wide range of stakeholders through the development of the policies that fed into this Bill. This has been under discussion for some considerable time. We've also undertaken targeted engagement with key stakeholders, industry, retail representatives to explore all the feedback we've got to refine the proposals in the Bill. We are working closely with anyone impacted by the proposed changes to manage the implementation phase for them to be able to swap to more environmentally friendly products. We've sought to mitigate any issues that were raised with us around exemptions. You'll be aware, I'm sure, that in the Bill there's an exemption for straws for medical purposes, for example, because we were made aware by various organisations acting on behalf of people with various disabilities that straws are a very important part of some of their essential kit. We've worked very hard with a series of stakeholders, so I don't—. None of this is going to be any surprise to anyone in Wales, let's put it like that. So, I don't think so. 

And then, you'll know that, to support the scrutiny process, on 15 August we published the draft Bill that enabled this committee, other committees and interested stakeholders an opportunity to see the proposed scope and direction of the Bill. The Climate Change, Environment and Infrastructure Committee also had an opportunity to consult, themselves, on the proposal, and I wrote to the Chair of that committee at introduction, to set out some minor changes we intend to propose to the Bill at Stage 2, which have arisen because we'd already published the draft Bill and we didn't want to change it as we went into this stage for the various committees.

13:40

If time was of the essence, why introduce a Bill rather than regulatory powers, using your secondary legislation, like the the UK Government and the Scottish Government did?

So, we think it's very important that this is set out in primary legislation, and specifically, Rhys, we are very keen to be able to keep this up to date. So, in our consultation responses—and my officials will correct me if I get this wrong—around 60 different products were put forward by people across Wales as possible inclusions on the list of banned single-use products. So, I'm very keen that the Bill allows us a power to add in products once we've got the right evidential base for that and we're satisfied about the impact on the manufacturers and the suppliers, and so on. So, actually, it's very important for me that it isn't just a list of what's going to be banned right now, but it's a vehicle by which we can keep this legislation up to date, and as the technology moves and as the environmental impacts of this stuff become more widely known for each individual product, then we'll be able to add it in. And I think that's actually one of the fundamentally most important parts of the Bill.

Ocê. Diolch yn fawr, Gweinidog. Diolch, Cadeirydd.

Okay. Thank you very much, Minister. Thank you, Chair.

Diolch, Rhys. Minister, I just wonder if I can come back to a couple of your responses there to Rhys. It would be helpful if the committee could understand the grounds on which the argument was put to the Business Committee to accept an expedited procedure, because you can see, from the role that our committee has, this is exceptional, if not unique, to say, 'We're going to bypass some of the existing procedures in order to expedite a Bill'. Our understanding is that the original reason, as Rhys was saying was because—[Inaudible.]

I've lost him. Have we only lost Huw, or have I lost everyone? Oh, no, other people are moving.

If we've lost Huw, then the committee's agreed that I will take the chair, which, I accept, would be a horrific proposition for you all. [Laughter.] Huw, are you still with us? I will adjourn the committee for five minutes, to see if we can find a connection with Huw rather than to carry on the session without him. So, the committee's adjourned for five minutes for a technical break.

Gohiriwyd y cyfarfod rhwng 13:43 ac 13:44.

The meeting adjourned between 13:43 and 13:44.

Croeso nôl. Welcome back to the proceedings of our committee this afternoon. We had a short break there for technical interruptions. Just to clarify that if we do have any further interruptions of that nature, then Alun Davies, it's been agreed with the committee, will step in and take over the chairmanship whilst we have those problems, but hopefully we're okay.

Minister, before we were interrupted, I was simply trying to enquire with you—. It's clear from what you're saying today that the argument for an expedited procedure has changed from that which was originally given to the Business Committee, which was that it could enable clarity that could be used then for a legal challenge. This has now changed. Are you aware of when the new argument was put in front of the Business Committee, or indeed whether it has been, or whether the reliance on the go-ahead for an expedited procedure still rests on that legal challenge?

13:45

I wasn't at the Business Committee, Huw, as I'm sure you realise, so I'm not too sure myself, I'm sorry, about what quite was taken into account there. But we have consistently made the argument that the reason that we need to do this in this expedited way is because we want to ensure that we get this single-use plastic banned as fast as possible. We don't want to fall behind the other UK nations that are also introducing their own, or have already introduced their own bans, although our ban is slightly more extensive than theirs. And we certainly don't want to have any chance of there being supplies of single-use plastics dumped in Wales, because we're tail-end Charlie—that would be absolutely catastrophic—and therefore, we need to get this onto the statute book as fast as possible.

Obviously, the UK Internal Market Act 2020 judgment, as I'm sure that the committee is very well aware, probably more aware than I am, effectively shelved the question of the competence issue because it didn't have a specific example in front of it. And I believe, at that time, the First Minister and the Counsel General made statements to the Senedd about the possibility of this Bill being the actual live example that might bring it back into the court's competence. But my understanding is, and in my conversations with the Counsel General this has been the case—that our view is that this does not engage UKIMA, because the constitution of Wales can't be impliedly repealed by a route that doesn't specifically say that it's changing the devolution settlement. So, our view is that this is within the devolution settlement for Wales, therefore it's clearly within our competence, and we plan to legislate for it.

I'm sure that one of the lawyers who's with me, Huw, will go into the nth detail of that if the committee wants him to, and I'm very happy if you want him to. But I am very clear that we think that UKIMA does not bite on this Bill, because it's within our competence—clearly within our competence—and the need for expedition is to make sure that we do not fall behind the UK nations and that we do not have any possibility of being the last bastion of these products in the UK. And then, as I say, because I'm down here at the biodiversity conference, you've only got to listen to the people talking about the problems in our marine environment, in our freshwater rivers and so on, for you to get a fire into your belly to get these things out of the market as fast as humanly possible. So, I really do think that there is a time imperative for this that is overriding everything else.

Okay, that's interesting. Look, I suspect you'll have a lot of allies on this committee in arguing that same urgency for dealing with this, and other environmental issues as well. The challenge that we have as a committee is actually looking at whether the correct procedure is being carried out, and whether it's being carried out for the reasons that have previously been argued by the First Minister and others. I'd welcome, if there are any comments from your legal team on this, because clearly the arguments that would have been marshalled for Business Committee would have been ones that would have come not only from the First Minister but also from discussion across the policy team taking this forward. But just one thing, just so we're not getting confused on differences between challenge to a Supreme Court and competence and challenge to the operation of UKIMA, our understanding is that UKIMA doesn't directly affect the Senedd's competence to make law. This is different; it reduces the practical effect of the Senedd law, because you can't enforce the law against producers who are outside the UK. So, I wonder—I don't want to dwell on this overlong, but perhaps if there are any helpful interventions from your legal people or anybody who dealt with the Business Committee on this as to why we are doing an expedited procedure—

13:50

Huw, let's see if Nick wants to come in and say anything more than I've said already.

Thank you. Well, we've considered it in some detail with the Counsel General, as the Minister said. We take the view that the Bill is within competence, for the reasons that the Minister has said. We don't think that UKIMA can have the effect of reserving what are devolved matters by the back door. So, we think it's within competence to legislate about this. We're legislating in relation to Wales because the Bill bans the supply of these items into Wales, to consumers in Wales, and we think that we can do that. 

Yes, that's good, but sorry, the question is about the expedited procedure.

On the expedited procedure, I think the Minister has set out the reasons why.

Yes, okay. Thank you, Nick. Thank you, Minister. Alun, we'll go on to you, please. 

I've got some sympathy with the Government on the issue of expediting the legislation. As a Minister, I did it twice myself. I'm not in a position to cast judgment on this. But I think there needs to be clarity on why the Government is doing it, and simply saying, 'We have a policy imperative' isn't sufficient, really, to expedite a Bill. You wouldn't expect a Government to put forward a Bill saying, 'This isn't important and we don't see it as being a priority.' So, I think there needs—. It's the role of the Government to make sure that its legislation meets its political objectives and the legislature has to be given sufficient time, then, to consider that. So, I think there needs to be further explanation from the Government about that. Like the Chair, I don't intend to pursue that this afternoon, either. 

In terms of the legislation itself, as published, Minister, you've spoken about—. One of the roles of this committee, as you'll be aware, is to examine the balance between what is done by regulation and what is on the face of the legislation. You intend to rely on guidance, I think you told the Climate Change, Environment and Infrastructure Committee last week, concerning the interpretation of key terms and provisions of the Bill. Why do you intend to do it by guidance—I assume you mean statutory guidance by that—rather than attaching a Schedule, for example, to the legislation, which could outline an interpretation of the key measures contained within it?

Thank you, Alun. So, it's not unusual for definitions or wording in a Bill such as this to be open to interpretation, in inverted commas, a little bit. Legislative drafting is, as you know, a trade-off between ease of understanding and absolute certainty. So, we all think we know what we mean by 'single-use plastic', but there will be some room for doubt. So, the guidance will be very, very clear in terms of what we think are examples of single-use plastics. The one I was using in the committee the other day was that, if you're selling single-use forks but you're selling them in a packet of 50, the argument that therefore it is not single-use because it's obviously got 50 uses in it is not going to bite, because we're going to say that each individual product in that multipack is caught.

The committee also explored the possibility of more rigid or more substantial plastic being used and then the argument being made that that can be used more than once as it's more substantial. But, there will be tests in the guidance: is the purpose of producing this product that it is thrown away after use? The fact that, if you were a bit more frugal you might take it home and wash it is neither here nor there, the point is: is the thing produced in order to be a single-use plastic? I, for one, have routinely, out of a mixture of frugality and knowing what damage plastic does to the environment, taken stuff like that home and reused it many times, but the truth is it's made to be disposable, and we think there are lots of other substitute things—you can make disposable cutlery, for example, out of bamboo or various other things that are completely compostable. So, the guidance will assist local authorities and suppliers, and, indeed, retail outlets, and especially those in hospitality, because that's what we're talking about for a lot of these products, to understand more about what we mean by the definition than is possible to put on the face of the Bill without making it ridiculously cumbersome.

And we also are very keen with this Bill to futureproof it, so  as I said to Rhys in answer to one of his earlier questions—and I'm sure the committee will get on to this in more depth—we've given ourselves the power to add-in additional plastic items and a reporting facility under the Government of Wales Act, and the idea of that is that, as this agenda changes, and as more and more things become available in recyclable products, then we'll be able to take the non-recyclable ones out of the market, and I think I already said in answer to a question to Rhys or Huw—I can't remember which—earlier, in the consultation, we had around 60 extra items suggested to us by people in Wales as things that should be banned right now. And so, I was very keen to see a measure in the Bill that made Welsh Ministers consider each year whether or not they were going to add something into the list and what the evidential base for that is. So, we will have to report on whether or not we've added something in and why.

So, I think that's an imperative to keep the thing under review as well, to make sure that we are taking these really very damaging products out of our supply chains as fast as possible.

13:55

I accept that. As a politician, I agree with the Government's imperative here; I think you're absolutely right in taking this action. My concern is how we do it and that we do it properly and we ensure that people, both within the country, but also, then, suppliers and stakeholders, understand the process that you're following. My understanding of your answer to that question is that you will be ensuring that any statutory guidance that comes out of this section, if you like, of the legislation, is subject to scrutiny here, but also consultation with stakeholders. Did I understand you correctly? 

No, no. And, in particular, we've worked very hard with the Welsh Local Government Association and our trading standards partners to make sure that their understanding of what is banned and our understanding of what is banned is the same; that we issue guidance in conjunction with them and co-produced with them, so that it's fit for purpose; and that we have the same attitude to slightly more tricky issues like the multipacks and so on, in each part of Wales as each local authority takes up its enforcement role. And I expect that we'll come on to this as well, but we are expecting—just like the single-use carrier bags—that there'll be an implementation phase of training and education, where we basically approach businesses and say, 'Are you aware that you shouldn't be supplying this stuff anymore? Please don't'—guidance and so on. And then, we'll have very few prosecutions, because actually, there'll be a small phase of just making people understand and then actually, they'll come on board. And that's what happened with the single-use carrier bags and we're very much learning from that how that legislation worked and putting it into practice here.

I'm very grateful to you for that. One of the issues that we came across—I was on the committee on single-use carrier bags at the time—was that of the public understanding, which I don't think, in retrospect, was there when we introduced it; I don't think we made the argument to the general public sufficiently well at that time. And secondly, the conversations with manufacturers and producers of these materials. And I think the parallel that you made in that previous answer, Minister, was a good one; I think it's a useful parallel to make, actually, and therefore, it's important that we learn the lessons from that. So, in terms of the consultation—I'm trying to keep this on the technical side of this rather than the policy side of it—that you're undertaking on this, you will be consulting not just with the statutory authorities in terms of the ones you've just described, but also with manufacturers and producers. 

Yes, indeed. And, in fact, we were, as I'm sure that the committee is aware, very seriously considering adding wet wipes to the list of banned items, or wet wipes with plastic content. In fact, we have decided not to do that as a result of conversations with the manufacturers, because actually, at this point in time—and this isn't in our competence—there isn't any imperative to label your wet wipe saying whether it's got plastic content or not. So, in fact, it would be completely unenforceable, because when you buy a packet of wet wipes, you can't tell from the outside of that packet whether it's got plastic or not. And in discussing it with the three manufacturers that we have in north Wales of wet wipes—you learn lots of new things as a Minister in this Government; I didn't know that until we were looking at this Bill—what we'll be doing instead is working with them to ensure that we help them get the plastic out of their production.

Also, I'll be putting pressure on the UK Government to change the labelling laws so that products that are made with plastic in them are labelled as such. I don't know if the committee's aware of this, but some teabags, which are obviously compostable—most people put them in the compost—have plastic in them. It makes them more robust, apparently. So, I think those products should be labelled accordingly, so at least consumers can make a choice. But, obviously, just from the point of view of banning them, it's very hard to ban them if there's no way of telling what's in the thing at the point of sale.

14:00

Sorry, I'm—. In listening to your answer, I think it's—. I'm a bit concerned about having all that plastic in my tea.

Well, quite. So, actually, trying to find out whether your teabag has plastic in it is actually quite problematic.

I would expect any manufacturer to tell me if I'm putting plastic in my tea or not, and I think there's an issue there, perhaps, for another committee rather than ourselves. Can I return to human rights legislation? Because you do have a power here that stands out, I think. Section 10 allows a Justice of the Peace to issue a warrant authorising a local authority to enter a person's home by force if necessary. This seems to be quite a draconian power. I wonder if you could explain the rationale behind it, Minister, and whether you—you've already answered the question that you're content that the legislation conforms to human rights legislation, but entering a person's home with the use of force seems a very, very draconian power, given the subject matter we are discussing.

So, I'll defer to Nick in a moment on this, Alun, but, basically, what we're talking about here is making sure that we don't have supplies going on to the market in circumstances that would have a detrimental effect on the environment, obviously. This has a criminal sanction associated with this. Let's just be clear: we're making a criminal offence here. There are some civil penalties involved in the Bill as well. So, we're making a criminal offence here, and the criminal offence is supply on to the market, so what we're doing here is giving trading standards a power to ensure that the supply isn't there. But I'll defer to Nick for the better legal explanation of it. Nick.

Thank you. There are different powers of entry for different types of property. So, section 9 is the power of entry for commercial premises, essentially. The Bill is aimed at supply in the course of a business, but we recognise that some businesses can operate from domestic premises too, so section 10 is a separate power of entry for those premises. There does have to be a warrant issued by a Justice of the Peace, and they themselves will be a section 6 Human Rights Act 1998 public authority, so when the Justice of the Peace is considering a warrant application, they have to assess that as being proportionate and necessary with convention rights as well. So, it's only really allowing entry to dwellings, as I say, with a warrant where a Justice of the Peace is satisfied as to the matters in section 10, and they are that it is reasonable to believe an offence has been committed and that it really is necessary to enter those premises in order to investigate that.

Okay. I'm grateful to you for that. Can I, finally, return to one of the points that Huw Irranca-Davies opened with and that Rhys ab Owen pursued, and that is the relationship between this Bill and the internal market Act on the subject of single-use carrier bags? If this Bill is restricting the supply of these carrier bags and there is no such restriction elsewhere in the United Kingdom, and England is the obvious example to use, I'm interested as to what you believe the process would be to actually deliver this legislation in reality. I was surprised, to some extent, by your earlier rationale in answer to earlier questions, in that you said 'UKIMA', as you were calling it—a new term for me, so I've learned something this afternoon—it isn't—. It doesn't engage with this legislation. You were very robust in your defence of the settlement, which I was very pleased to hear, but is it possible that the courts would take a different view in terms of an item that is manufactured or imported for supply across the United Kingdom if it is restricted in Wales? Our powers to actually achieve that in practical terms are quite limited as a consequence of the internal market Act, I would have assumed, unless it was on the list of items that had been taken out of the internal market Act subsequent to the agreement with the Scottish Government for similar legislation, or am I wrong with that assumption? 

14:05

So, Alun, we take a slightly more robust view of that, basically. So, we're saying that neither UKIMA, as we do call it, or the exemption bite, because the Bill deals with non-reserved matters within the Senedd's competence, but we're clear and consistent that our view is that the internal market Act cannot limit the Senedd's competence to legislate on matters that are devolved. The Counsel General's challenge to the UK internal market Act rests on the argument that the Government of Wales Act 2006 is a constitutional statute and cannot be impliedly repealed by other Acts; it has to be specifically repealed if it's going to be repealed. That's our position. There's no doubt at all that this Bill is capable of providing the contextual example that the court spoke about when it deferred the judgment on that, but my understanding, in my conversation with the Counsel General so far, and Nick has just confirmed it and I'm sure he'll add to this as well, is that, at this point in time, our Counsel General does not intend to refer the matter to the Supreme Court itself; we're just going to let the legislation go through the Senedd in the normal way and, assuming it passes, then we will put it up for the King's consent and it will then be our law. Of course, the Attorney-General could refer it in from the English side—it will be interesting to see whether they do that or not, I suppose. We'll see, but it's not our attention to do that, as I understand it. I do emphasise to the committee that's not my decision; that's a decision for the Counsel General. Nick, I don't know if you want to add to that.

I'm not sure there's much I can add. As you say, it is open to the Counsel General to refer the Bill, as it is with any other Bill that the Senedd passes. He has to take that decision within four weeks of the Bill being passed, and the reason that that's the appropriate time to take the decision is, until then, you don't know what the final content of the Bill is. But, as the Minister said, the Counsel General did say, at introduction, that he's not currently minded to refer the Bill, and that's because he's taken the view, as has the Llywydd, that it's within competence, that these are matters that we can legislate about and that we can ban the supply of these items into Wales. I think the question was whether it's possible for a court to take a different interpretation. It may be that the UK Government takes a different interpretation and, as the Minister says, it's then open to the Attorney-General to refer the Bill, and the issues would be have to be considered by the court. But we're clear, in our view, that we think we can do this.

I very much welcome the Government's robust interpretation of these matters. Thank you.

Thank you, Alun. I think, indeed, the Minister has been very, very clear that this falls clearly within competence, which is helpful for us—as with the Llywydd as well. We'll go on to Peter to take us forward on other aspects of enforcement. Peter.

Thank you, Huw. Good afternoon, Minister. Some of your questions—some of my questions, rather—you've already covered. I'm pleased to note that there will be robust guidance in place for local authorities, because I was anxious that there may not have been, but you clarified that, and also the powers, in answer to Alun's question, in section 10, so that gives the powers to the local authorities to take some specific action. Are you comfortable, then, that the guidance does give enough information to local authorities in relation to products that have been supplied from other parts of the UK?

Thank you, Peter. We will absolutely be co-producing this guidance with the WLGA, and we will be taking as much advice from the trading standards officers on the ground as we are from our other experts in terms of enforcement. We're also doing quite a bit of learning, as I said, from the single-use carrier bag legislation that went through. So, there'll be a period of non-enforcement, where we're doing learning engagement, understanding, just explaining to people, basically, 'Do you know you're no longer allowed to supply these products? Could you stop, please? Here are alternative suppliers', and so on. You'd have to be a pretty obtuse business somewhere in Wales not to know this is coming. We've been talking about it for a good long while now, and it's not the only place in the UK.

So, I don't think it will be a big revelation to people that this stuff is coming. But, nevertheless, we will have that period of working with them, and the trading standards officers are very keen on that themselves. They don't want to be prosecuting people for no good reason who just broke the law by mistake. So, we anticipate that the people who are prosecuted under the Act will be those who are deliberately flouting the law, not people who've strayed into it by accident, and therefore—. Actually, in the policy committee, I was asked about resources for local authorities and so on. So, we think, in conjunction with the WLGA, because we've been talking to them about it a lot, that actually there'll be upfront admin costs and there'll be upfront change-of-regime costs, and on an ongoing basis there won't be that many costs because we think that compliance will be very high indeed, as it was for single-use plastic bags, very, very quickly. So, we think it'll follow the same pattern. But obviously we'll work with our stakeholders about developing communications around the Bill, including the provision of information to suit businesses, consumers and local authorities. There'll be a public information campaign about it, and why we're doing it and the damage to the environment that goes alongside these single-use plastics.

So, I think it will be very important to keep the guidance under review, and to make sure that it's a practical, working document fit for purpose, and we can only do that if we do it in conjunction with the enforcement bodies, which are the local authorities. 

14:10

Yes, thanks, Minister, and I thought that would be the case. The biggest issue—and it's not for this committee—is the upfront resourcing, probably. So, I can see that. So, you're confident that local authorities have got the guidance, we're confident that they've got the powers to enforce, and so that's pretty clear.

We talked a little bit about the UK internal market Act. The explanatory memorandum, though, and the impact assessments, do not include information about the potential impacts that the UK internal market Act could have on the practical effect of the Bill. Are you concerned that this could lead to individuals and businesses being unaware of the full extent of the law in Wales? Now, I know that they will know it's coming, but will they know how serious it is?

Yes, I think it's fine. We take a very robust view that the internal market Act does not bite. So, having taken that view, it would be very odd to put it in our explanatory memorandum, wouldn't it? We just take the view that it's not relevant. It doesn't bite, it doesn't affect our competence, and therefore we're not taking it into account. It would be very self-contradictory to then set out some 'what ifs', if you like. So, I'm very confident that that's the right thing to do, and, as I say, more generally, we will be putting out a big public information campaign about this, and, anyway, we've been working with all of our various stakeholders, and you can imagine them, and there will be advice available through Business Wales and various other things, not only that you should stop supplying the products banned under this Bill, but how to get alternative suppliers and all the rest of it, and, actually, and I think very importantly for the businesses, how to market the fact that you're not using these products. Because actually it's very marketable. People are prepared to go out of their way to avoid these very damaging plastic products. And then we know, for example, that, in the original list that we put out, they were the most frequently littered products in Wales, and we know that, in the couple of years since we've started to talk about it, three of them at least are no longer the most highly littered products in Wales because they've largely gone out of—. Nobody uses them anymore. So, plastic stirrers are one of those. People use wooden ones now, don't they?

Thank you, and I'll put on record, Chair, that I'm absolutely supportive of what this Bill is trying to do, but we needed to just follow up these questions. So, thank you, Chair—that's all from me. 

Peter, thank you very much indeed. Minister, before we go back to Rhys, can you enlighten us on—? It's welcome, your robustness today, it really is, the clarity: this falls firmly within the devolution settlement, there is no need to resort to any legal challenge and so on. But how did we get from that point where, originally, this was seen as potentially not just the justification for the Business Committee, but a good vehicle to test those boundaries, to a position now where there's absolute clarity that what we're trying to do here, what you're trying to do here as Welsh Government doesn't have any—

a good vehicle to test those boundaries, to a position now where there's absolute clarity that what we're trying to do here, what you're trying to do here as Welsh Government doesn't have any—

14:15

I think the committee's going to have to ask for evidence from the Counsel General as to the transformation of the policy, Huw. It's been my position all the way through that this is devolved to us, and that we should act. That's why it was in the manifesto. That's why we've wanted to do it all the way through. So, from my point of view, this is well within devolved competence—let's get on with it. 

Diolch yn fawr, Cadeirydd. I just want to ask one question about the Stage 2 amendments, Minister. Are you satisfied that both amendments, especially the second one, are within the Senedd's competence? 

We are, Rhys. The amendments that we're trailing already—which is an unusual situation; it's because we produced the draft Bill—are around the practical drafting effects of various language inside the Bill. I really am going to defer to Nick, I'm afraid, to explain exactly what the drafting issue has been. We've had long and involved conversations about it. It's about limiting the effect of the Act to people supplying products in Wales. But Nick is in a much better position to explain the difference in the drafting than I am. 

Certainly. Just so that I'm clear that we're talking about the same amendment, are we talking about the amendment to the offence of offering to supply in Wales? 

Yes. It's the second amendment that maybe raised more questions about competence, the one on offering on premises in Wales to supply a prohibited single-use plastic product to consumers. Basically, are you satisfied both are within Senedd legislative competence, especially the second one?

Yes, we are. The reason behind the amendments—. As you said, there are two parts to them, really. The case law on what is an offer in contractual terms has developed over the last 100 years. I think when we looked at the Bill again, we just wanted to be clear. We talked about definitions earlier on. We wanted to be clear what we meant by criminalising an offer to supply. I think the distinction that we're making with the amendment is that once it becomes a criminal offence to supply these items to people in Wales, there's no legitimate reason, really, to have them displayed on a shelf in Wales. And so, an offer to supply, in that sense, would be a criminal offence. There might be—

Sorry, can I interrupt you very quickly? It's my fault. As I was saying the question, I knew I got them mixed up. It was the first amendment I was more concerned about—the supplying of prohibited single-use plastic products to a consumer who is in Wales. I can see that offering on premises in Wales would definitely fall within the Senedd's competence. Do you have any concerns about that first amendment? 

No, because we think that there's a sufficient connection to Wales by the fact that the offence is supplying it to a consumer, a person, who is in Wales. So, there is that cross-border element there that we've talked about in other contexts already, but we think that there is a sufficient connection to Wales by the fact that what's criminalised here is the supply to an address or to a consumer in Wales. 

You say 'including by delivery'. So, that would also include not by delivery, then. Somebody supplying something to somebody—in England—who happens to be from Wales, would that then fall within the Senedd's competence? 

I might look to Hefin here to just confirm that I'm right about this, but what we're criminalising is the supply to a consumer who is in Wales, or to an address that is in Wales, not outside. 

Correct, yes—someone who is in Wales. 

I'm based in an address in Canton in Cardiff. If I go to Bristol to buy these single-use plastics from a company in Bristol, that still would be an offence under this Act, and you're satisfied that that falls within the Senedd's competence. 

No, sorry. Perhaps I wasn't clear. It's where the supply takes place in Wales. And we deem 'in Wales' to be where the supply includes delivery to an address in Wales, to a consumer who's physically in Wales at the time.

14:20

I think the wording of the amendment may be slightly confusing, because this is what it says:

'supplying a prohibited single-use plastic product to a consumer who is in Wales'—

so, to a Welsh consumer—

'including by delivering the product to a consumer who is in
Wales'.

So, it's got to be done in Wales, then.

Yes. So, Rhys, if you use the example—. This is the one I was talking through with officials. So, I think I've got a loophole in the law, so I drive to Bristol and I buy my packs of 50 forks and all the rest of it, and then I drive them back into Wales. The person who sold them to me hasn't committed an offence, but at the point in time that I supply them to somebody else, then I am committing an offence. So, I can't come and put them up in my shop or use them for my party that I'm getting somebody else to pay for. I can't supply them to somebody in any other way. You can't get round it by just driving over the border, picking them up and bringing them back in your van, basically.

And you're content that that falls within Senedd competence, then.

Yes. But if you're a consumer who went to Bristol and bought a bag of chips and they gave you a plastic fork with it, and you carried that home in your bag, you would not be committing an offence. I've looked at my lawyers for them to nod happily. Yes, that's right. So, that's the example we've been using.

Okay. Good. Sorry, Chair, for going into real detail there.

No, Rhys, you're asking exactly the questions that were flying through my mind there as well; it's these practical considerations. And it shows, of course, Minister, the necessity, then, for detailed guidance that flows from this legislation to make it clear for consumers and for enforcement officers.

Indeed. That's why the amendments have become necessary, because in looking at the current wording, we were not happy that we were making that as clear as it ought to be—hence the amendment.

Yes, indeed. Okay. I'm just going to check across colleagues as to whether we have any other questions. It's rare of us to finish a session early, but I think, from our perspective, we've probably covered everything that we need to do. Because we don't delve deep into the policy; it's how the policy will work in legal and constitutional terms, and the guidance. But I can't see colleagues—. No, I think we've exhausted it, particularly Rhys diving into that detail there as well. In which case, Minister, unless there's anything you want to add, we will leave you go. Thank you to you and your officials for appearing in front of us. Good luck with the rest of the conference that you're at at the moment on diversity, as well—very interesting for those who've been following it online. Thank you very much. We'll send you a transcript, obviously, for you to check for accuracy. I'm sure there'll be some discussions we'll have in private, and any action points we have from there clearly we'll convey to you as well in advance of the next stage of this Bill. But thank you very much to everybody for your evidence today. Diolch yn fawr.

We'll just leave our guests for a moment to virtually leave us. We'll return to that, obviously, in private session for some discussion. 

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

We'll move on now to item 3, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 that we have previously considered. We have here item 3.1, SL(6)257, the Food Information (Amendment of Transitional Provisions) (Wales) Regulations 2022. We have a report in your papers and a Welsh Government response as well. We looked at this instrument at our last meeting on 26 September and we laid our report the next day. I just invite Members to note the Welsh Government response, which has since been received. There are no comments from our lawyers on this, Kate. No. All fine. We're happy to note that, I think.

We'll go on to item 3.2, SL(6)258, the Non-Commercial Movement of Pet Animals (Amendment) (Wales) (No. 2) Regulations 2022. Again, we have a report and a Welsh Government response since we last looked at this instrument at our meeting of 26 September and laid our report the next day. Again, I don't think we have any particular observations on this, just to note the Welsh Government's response.

14:25
4. Cytundeb Cysylltiadau Rhyngsefydliadol
4. Inter-institutional Relations Agreement

That takes us to item 4, notifications and correspondence under the inter-institutional relations agreement. Under item 4.1, if we can note the letter from the Minister informing us that an inter-ministerial group for housing, local government and communities is scheduled to take place on 24 October 2022. 

Then we have correspondence from the Minister for Health and Social Services, letting us know that she's intending to sign a memorandum of understanding setting out the terms of consultation between the UK Government and devolved Governments on the development of the regulations to establish a UK-wide medicines information system. Again, that's just to note. 

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

Then we have some papers to note under item 5. The first of these, under item 5.1, is for Members to note the joint letter from the Women's Equality Network Wales and Oxfam Cymru, providing an outline of the key recommendations from their report, 'Feminist Scorecard 2022'—those that are relevant to our own committee's remit. This has probably gone to other committees as well, with a breakdown for their individual committees. So, if you're happy to note that, we can return to that in private discussion, then.

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

Cynnig:

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

Motion:

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

Cynigiwyd y cynnig.

Motion moved.

That brings us to item 6, a motion under Standing Order 17.42 resolving to exclude the public for the remainder of the meeting. Are we happy to do so, colleagues? We are, so we'll move into private and we'll just wait for the confirmation from our clerks that we are in private.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:26.

Motion agreed.

The public part of the meeting ended at 14:26.