Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee

14/11/2022

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Alun Davies MS
Huw Irranca-Davies MS Cadeirydd y Pwyllgor
Committee Chair
James Evans MS

Y rhai eraill a oedd yn bresennol

Others in Attendance

Dr James George Uwch-gwnsler Deddfwriaethol, Llywodraeth Cymru
Senior Legislative Counsel, Welsh Government
Gwilym Hughes Pennaeth Cadw a Dirprwy Gyfarwyddwr, Llywodraeth Cymru
Head of Cadw and Deputy Director, Welsh Government
Mick Antoniw MS Y Cwnsler Cyffredinol a Gweinidog y Cyfansoddiad
The Counsel General and Minister for the Constitution

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gerallt Roberts Ail Glerc
Second Clerk
Kate Rabaiotti Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Sarah Sargent Ail Glerc
Second Clerk
Sian Giddins Dirprwy Glerc
Deputy Clerk

Cynnwys

Contents

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau 1. Introductions, apologies, substitutions and declarations of interest
2. Bil yr Amgylchedd Hanesyddol (Cymru): Sesiwn dystiolaeth gyda'r Gweinidog 2. Historic Environment (Wales) Bill: Ministerial evidence session
3. Offerynnau nad ydynt yn cynnwys unrhyw faterion i’w codi o dan Reol Sefydlog 21.2 neu 21.3 3. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3
4. Offerynnau sy’n cynnwys materion i gyflwyno adroddiad arnynt i’r Senedd o dan Reol Sefydlog 21.2 neu 21.3. 4. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3
5. Offerynnau sy’n cynnwys materion i gyflwyno adroddiad arnynt i’r Senedd o dan Reol Sefydlog 21.2 neu 21.3 - trafodwyd eisoes 5. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 - previously considered
6. Offerynnau statudol y mae angen i’r Senedd gydsynio â hwy (Memoranda Cydsyniad Offeryn Statudol) 6. Statutory Instruments requiring Senedd consent (Statutory Instrument Consent Memorandums)
7. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C 7. Written statements under Standing Order 30C
8. Cytundeb Cysylltiadau Rhyngsefydliadol 8. Inter-institutional Relations Agreement
9. Papurau i'w nodi 9. Papers to note
10. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod 10. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting

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

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

Cyfarfu’r pwyllgor yn y Senedd.

Dechreuodd y cyfarfod am 13:01.

The committee met in the Senedd.

The meeting began at 13:01.

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

Croeso, pawb. Croeso i chi i gyd y prynhawn yma.

Welcome, everyone. Welcome to you all this afternoon.

Welcome to this afternoon's meeting of our committee. We've got a very packed agenda this afternoon. Just some of the normal housekeeping announcements: we are conducting proceedings in person today, although we also have somebody on our visuals as well, joining us virtually, I understand. Is that right? Not for this session; okay. Not for this session, but for later on. So, Standing Orders are all as per normal.

This meeting is being broadcast live on Senedd.tv and, as per normal, we'll be publishing the proceedings after the event today as well. We have no apologies today. We have full quorum of our current membership, although we're awaiting news on how we go forward, shortly, for future meetings. But thanks to Members for being here today, and we've got full quorum.

2. Bil yr Amgylchedd Hanesyddol (Cymru): Sesiwn dystiolaeth gyda'r Gweinidog
2. Historic Environment (Wales) Bill: Ministerial evidence session

We have a busy session ahead of us, so we're going to move straight to the first substantive item on the agenda today, which is to look at the Historic Environment (Wales) Bill. We're glad to see once again the Counsel General and Minister for the Constitution, Mick Antoniw, with us today, and also, with him, alongside him, we have Gwilym Hughes, deputy director and head of Cadw, and Dr James George, senior legislative counsel for Welsh Government. Thank you, by the way, for keeping engaged with us on this, and for the correspondence and engagement in between sessions of the committee. I think it's vitally important in order to get this very first consolidation Bill right that we have that engagement.

We've got a lot of very detailed questions to go through, so, Counsel General, I'm happy if you either want to answer these directly yourself or indicate one of your colleagues to come in.

Thank you. If I can just say, firstly, Dr James George is the senior legislative counsel, so he's been working on the Bill. So, for some of the technical aspects of the Bill, it may be appropriate for me to refer there. But also he's working on the planning consolidation project as well, and there are some overlaps there. Also, Gwilym Hughes is deputy director and head of Cadw, as you've said, but some of the evidence may relate to Cadw and the operational practices, and obviously it's quite an important part of this Bill, so where those areas arise, I will defer over. So, there may be a bit of movement backwards and forwards on those.

Thank you very much, Counsel General. Right, let's crack on. I'll lead off, and then we'll go into some detailed questions from James. An hour and a half, and we've probably got about 30 areas that we want to cover, so we'll keep it really snappy. First off, Counsel General, in July you told us there were a number of areas where you had had to write to the Secretary of State for Wales seeking consent, and that you were awaiting a response at that time. Can you give us an update on the latest position?

Yes, disappointingly we've still not received a response. I will be writing again. I think my letter was on 13 May 2022, so I'll be following that through with the new Secretary of Wales, the Rt Hon David Davies MP, on this matter. I don't anticipate that there should be any issues. The two areas where consent is involved, one relates to civil sanctions, which is a concurrent function and has never been used in that area, and the other one is the national security issues, which are now redundant in any event. Maybe because of events in Westminster it's taken longer to get it than might have been the case, but I will press on with that.

13:05

That's great. It's reassuring that you don't see any big-red-light issues there from your take, but you'll have that in writing before we can proceed, yes.

Thank you, Chair. The explanatory memorandum for the Bill describes assessments you have undertaken as regards the Welsh language, equality, children and justice. We've previously asked you about section 2(3) of the Bill, which relates to the meaning of 'monument' and 'site of monument', and you mentioned ensuring compatibility with the convention rights. Have you undertaken a broad assessment on human rights? 

The answer is 'yes'. In respect of all legislation, it's necessary for me to give a statement of competence, and competence obviously requires compliance with the convention on human rights and any other international obligations that there are. So, we've given the same level of care, and I am content that the provisions in the Bill have been assessed adequately to ensure that they are convention compliant. 

Thank you, Counsel General. We previously asked you about a new power of entry in section 152(4) of the Bill. Notwithstanding your view that the absence of this power in the Planning (Listed Buildings and Conservation Areas) Act 1990 was an oversight, have you considered the human rights implications of creating a new power of entry under section 152?

Yes. I've had a look at section 152 and it has the effect, doesn't it, of adding a power to enter land to determine whether a temporary stop notice should be issued. We consider the matter to be very minor because there's already a power to enter land to assess whether unauthorised works are taking place, so its only effect is that the person entering the land can also assess whether the work should be made to stop immediately. And I'm satisfied that, within that context, it's justified and convention compliant. It is also the equivalent of provisions that already exist in the provisions about planning control and scheduled monuments.

Okay, thank you. I just want to ask you a couple of questions now about changes that you made during the process of consolidation. When you wrote to us in August, you said some references to what an authority considers 'appropriate' have been retained in the Bill where you think the references are necessary. You also said you were going to review these references, so I have three questions on this and I'll lump them together in the interests of time, Chair. Has your review resulted in you wishing to change any of the references? No. 2, section 148 of the Bill relates to a grant or loan by a local authority for repair or maintenance of a building. Subsection (6) provides a broad power to local authorities. Can you confirm why the use of 'appropriate' in section 148(6) is necessary? And finally, Counsel General, section 180 of the Bill deals with payment of costs of the Welsh Ministers. Can you confirm why the use of 'appropriate' in section 180 is also necessary?

Thank you for the question, and it would be difficult to attend a session of this committee without talking about terms like 'appropriate' and 'expedient' and 'necessary', and so on, I suspect. But we've done an assessment of the use of the word 'appropriate' in the Bill, and it's been undertaken by the Office of the Legislative Counsel, particularly in light of the correspondence that has come from the committee that identified, I think, a number of references that could potentially be removed if the Bill proceeds. 

I'll give one example of that. Section 192(2) of the Bill requires Welsh Ministers to decide whether it would be appropriate for an entry in the register of historic parks and gardens to include any adjoining buildings, water or land, et cetera. I think the analysis is, really, there's no practical difference between requiring Ministers to decide whether it would be appropriate to include something in a register, and then simply requiring them to decide whether or not they would actually include it. So, removing the reference 'it would be appropriate' would probably achieve the same thing. This is something that I'd like to return to later on in the detailed committee consideration stage.

I don't know whether, James, you want to—. You've obviously looked at this; I think you've even counted up the number of references to 'appropriate', so—.

13:10

Yes. Thank you, Counsel General. Well, although it is our general approach that we don't put in the word 'appropriate' just to say that Ministers or public bodies can do what they think is appropriate; that doesn't mean we never use the word. So, if we think it is the best way to express something, we will still use it. And, yes, having counted up, there are about 60 examples of 'appropriate' still in the Bill, because we think they are helpful in some way.

On the examples you mentioned: in section 148 about loans, the reference to an authority being able to make a grant on any conditions it thinks appropriate is really to indicate that it's meant to be a very wide power. And it also introduces a specific example about conditions to do with public access, which is something that perhaps you might not expect, unless it was mentioned.

In section 180, the thing about the appropriate proportion of costs is because if you've got somebody like a planning inspector working on an inquiry, there's a standard daily amount per day, and the reference to the appropriate portion is just saying that if somebody works for less than a whole day, they get an appropriate proportion of that standard amount. It is really just to indicate that it's meant to be a reasonable proportion that has some connection to how much work they've done. We just thought, in that context, it was helpful to keep in the words and give that flavour, rather than going into a lot of detail about how you would work out what to pay them.

Can I just say that I'm grateful for this being raised? This is something that I will take away and will consider further, so I look forward to your report on this specifically.

Thank you, Counsel General. I've got some more questions for you; you've heard a lot from us today. In your letter to us in September, we asked you what the status will be of subordinate legislation made under the Acts that are being consolidated, and we provided the Scheduled Monuments (Review of Scheduling Decisions) (Wales) Regulations 2017 as an example. I've got three questions on this, Counsel General; as I did last time, I'll lump them all together in the interests of time. Why is only one ground of review in regulation 4 of the scheduled monuments being consolidated but the others are not? Will the ground that has not been consolidated remain law? And how long will it take to consider and bring forward the package of subordinate legislation needed to implement the Bill?

Okay. Thank you for that. I think in terms of the grounds of appeal, what the Bill actually does is bring them together. Our intention to provide a ground of appeal against this kind of decision was really for reviews to occur solely on the basis of whether a newly scheduled part of a monument was of national importance, and that's how regulation 4(b) in the Bill has been applied; it's understood to come into force. So, the approach adopted in the Bill reflects upon intention at the time of the 2017 regulations, when they were drafted, and current regulation 4(b) provides a ground of review that covers a material amendment to expand a scheduled area. The Bill in section 9(2) goes on to state that the ground for review is that a scheduled monument is part of, or a part of it, is not of national importance. So, this encompasses the regulation 4(b), and I think it means that the Bill is able to refer just to the single ground of review. I hope I've explained that clearly. I've read through the clause several times, just to make sure that I've been clear about that.

And in terms of subordinate legislation: well, that is something that will be worked on. Work has already begun on the necessary analysis in terms of subordinate legislation and, of course, what's important is maintaining the continuity and expertise to enable that to happen, and I hope that's a stream in terms of all legislation that we bring forward. So, the majority of the work will be taking place after the Bill is passed, but during the implementation period, really: 2023 to 2026.

Lovely. And finally from me for the moment, Counsel General: I want to talk about elements that are excluded from the Bill, of legislation. In your letter to us, dated 28 October, you said that the accessibility of law for the marine historic environment was 'unquestionably an issue'. If it's not appropriate to pursue the consolidation of marine historic environment legislation in this Bill, when will you and the Welsh Government push reforms to this area of law, and will you do it at the earliest opportunity?

Yes. It's an important part, because these are areas that I know have been considered very, very carefully because of potential overlaps with the legislation. You have to be careful in terms of areas that go into the marine area, areas that go into the planning area, and of course part of the purpose of consolidation and also the process of codification is to actually create workable units within which legislation can actually take place. I think it's one of those things we're going to have to think about further. Obviously, I can't make any hard-and-fast promises now as to when it will be done, because obviously we want to concentrate on this particular piece of legislation, but you're right that there are those particular areas. There were some specific areas that I think had to be excluded because of the potential competence issues that they began to raise and the complexity, I think, to do with wrecks and so on.

So, I should say, it's quite nice being asked about further aspects of legislation for consolidation and so on, particularly after the questions in the last Senedd session suggesting that we shouldn't be wasting our time on too much of this, but that's a separate matter. I take the point, because there are a number of these areas and obviously it's an ongoing process in terms of consolidation and looking at the areas, and of course we know that one of the next stages is planning. I don't know, James, whether there was anything you wanted to add.

13:15

Can I just quickly just follow on from that? You talked about competence issues. What discussions are you having, then, with the other Governments around competence issues, to make sure, if we do bring this legislation forward, that there aren't the snags and we get drawn up in a quagmire we can't get through?

Well, what I'll do is I'll ask James to talk about the wrecks issue and the complications that arose when we were looking at those.

Yes. I think one of the complications with wrecks is that there is a section in the Protection of Wrecks Act 1973 that is specifically excluded. It's named as a reserved matter in the Government of Wales Act 2006, so we wouldn't be able to restate the whole thing.

The other issues we get into about competence with the marine environment are the geographical limits on the Senedd's competence, only being able to cover Wales, which only takes you out to 12 nautical miles into the sea, so, anything that goes further than that, we get into problems there as well.

Good. Thank you very much. Thanks, James. Before we go to Alun, let me just turn to a couple of questions. Back in our letter to you in September, we asked for further explanation as to the effect of the current provision in the Ancient Monuments and Archaeological Areas Act 1979 being uncertain. In your response to us, you used phrasing including 'seems' and 'most likely', and you state that the position arrived at in the Bill,

'involved a degree of speculation'

on your part. So, do you have any concerns that this type of statement doesn't provide robust enough evidence to us, as the committee responsible for recommending to the Senedd if the Bill can proceed as a consolidation Bill?

Well, I think you have those concerns right at the beginning and then you have to address them and, obviously, take decisions as you come along. I'll go to James a little bit on this in a minute. But there are clearly judgments that have to be made along the way. I mean, one of the classic areas, and it's not an area I'd been familiar with until we started looking, was between the concept of the word 'ecclesiastical' as opposed to 'religious', and, of course, there is some case law on it. Case law isn't necessarily definitive in these areas, so you have to make a judgment, particularly if you're ensuring that the legislation is human rights compliant, and, of course, if 'ecclesiastical' might possibly be construed legally as referring to the Church of England as opposed to 'religious', which then becomes inclusive, well you have to opt for the term 'religious' on the basis that otherwise the legislation you're consolidating then becomes discriminatory. So, it's one of the things that's had to be addressed in the consolidation process and the judgment decided. I think one of the problems also is that, of course, some of the terms have never really been tested as to precisely what they do mean. Some of them were made some time ago, and language, of course, changes from time to time, so it is necessary, I suppose, to bring that up to date. James, did you—?

Yes, I think, as the Counsel General has said, throughout the Bill we've had to test and examine how the current legislation works, and sometimes that's not entirely clear, and the example about 'ecclesiastical buildings in ecclesiastical use' not counting as monuments has been probably one of the trickiest examples of that. But, as the Counsel General said, we've had to be informed by considering the European convention on human rights position and the need to avoid discrimination, which is why we think it's best to interpret it as 'religious', which has a wider meaning, rather than 'ecclesiastical', which could be interpreted as being limited to the Church of England or Christian churches. So, that's why we've adopted that approach.

13:20

Okay. That's helpful. Thank you very much. In that letter to you in September, we also suggested that the regulation-making power in section 2(3) was a new power that allowed the Welsh Ministers to apply historic environment law to buildings that could not previously have been subject to historic environment law. Could you confirm for us that this is indeed the effect of the new power and why this, if that's correct, amounts to a minor change?

Yes, this picks up on the answer to the last question, really. We didn't want to keep the doubt about what 'ecclesiastical' meant, so we've adopted a reference to 'religious buildings used for religious purposes', but the effect of that is, potentially, that it has a slightly wider meaning than the current provision. Now, I think Cadw's intention is not to change the policy on this at all, but the regulation-making power is in there in case any adjustments are needed in the future. So, if it turned out that, actually, we did need to deal slightly differently with different religious denominations, for example, then the regulation-making power would allow that to be done. 

I'm very happy with that. I think that the distinction between 'ecclesiastical' and 'religious' is difficult, and it was a term that had been adopted in the original legislation to cover a particular area. But, that legislation was made in the days before the European convention on human rights. This will work. 

Thank you. I'm still considering that final question. Perhaps uniquely, I'm quite enjoying this process of consolidation. It's something we've debated and discussed over many years, and it's good to see it moving forward. In terms of how we restate law, the Country Land and Business Association has expressed some concerns about the drafting of section 20, as you're aware. Now, they believe that some of that section, Schedules 4 and 6, for example, are unintentionally misleading. Now, we had this conversation, or we brushed past this conversation, in the summer. Are you content with the situation as it's being restated at the moment? Do you have any response to what the CLA has been saying in terms of an unintentionally misleading restatement of the law in this area?

I think the first thing is that I am content. Scheduled monument consent can be revoked or modified under section 4(3) of the 1979 Act. In section 9 of the 1979 Act, there's a duty to pay compensation in certain circumstances for expenditure, loss or damage and where works affecting a scheduled monument cease to be authorised. So, the Bill doesn't change the position with regard to when compensation is available and where scheduled monument consent is revoked or modified, as long as the relevant conditions are satisfied.

With regard to the concerns of the CLA that the drafting of the Bill is misleading, I think the provisions on compensation are clearly identifiable. I understand the point they're making; I don't agree with them, because if you read through—if you look at section 20 and then you follow through, immediately after you've got section 21 there, which is compensation for the refusal of scheduled monument consent, et cetera, and then it continues to follow through sections 23 and 24—I think it is there, and I think anyone who is referring to that—. I think the compensation provisions there are clear. I don't think they do mislead at all. Incidentally, I'd just make the comment what a pleasure it is when you're reading through all these different pieces of legislation to actually be reading them in one place, which makes it a lot easier to understand and explain. 

Yes, I agree very much with that final point. In terms of taking us forward to section 39(2)(c), appeal against enforcement notice, you have told us, Counsel General, that you think a provision added to the 1979 Act via the 2016 Act was actually a mistake. It would be interesting for us to understand why. I was on that Bill committee, as you might remember, and we laboured hard and long on that Bill. It would be interesting to understand what mistake we made.

13:25

Well, to ascertain the precise details of that mistake, I'll go over to James again, who I think has researched this thoroughly.

Yes. Thanks, Counsel General. One of the things that's happened in this process is we, obviously, looked very closely at all the legislation, and you do pick up the odd mistake as you do that, and that's not any criticism of anybody who was involved in any capacity in what happened; it's inevitable. [Laughter.] And I think, probably at some point in the future, somebody will find mistakes in this Bill. In every Bill, if you look at it closely enough, you'll find something. In this case, we do know for certain that there was a mistake in the drafting.

How can we know for certain there was a mistake? And how do we know it wasn't intentional?

We know there is a mistake because the section 9ZE(3) that was inserted in 2016 has a reference to

'works of repair or...support'

that doesn't really make any sense, because it assumes that it would have been okay and permissible to do works of repair without needing scheduled monument consent, whereas, actually, that's not the case, and if—

But it is the case if it's in the Bill—if it's in the Act.

Well, it's not the case, because the list of things that require scheduled monument consent specifically includes repairs, so they definitely do need consent. So, really, that ground of appeal, and that bit of it, doesn't really make much sense. We don't know quite how that mistake came about, and I think, in the previous correspondence, it was suggested that it might have been because the provisions about listed buildings might have been copied, because, in that context, you can do repairs to a listed building without needing consent, so that's possibly how it came about. But I think, and I hope the committee would agree, that it doesn't really matter so much how it happened, but it's just the fact that we've identified it and we fix it.

Chair, I think I'd probably say no blame attaches to anyone who might have been involved in the legislation at that particular stage.

But the overall effect of the change in the Bill is simply to remove a redundant provision that requires a person who appeals against an enforcement notice to argue that they could not have done repair works without consent because they could never do repair works without consent in any event. So, I hope that settles the matter as well as can be done, looking backwards.

Thank you. That's a very elegant way of providing the necessary clarity. [Laughter.]

Thank you, Alun. Let's turn to the issue of conservation as opposed to preservation, and you've probably seen, I suspect, some of the CLA evidence to us and the concerns that they've raised, and they do describe their objections to this as quite a fundamental point in the change towards conservation from historic preservation, and then describing it as far more than a semantic point; it's the way it will be interpreted, and, as we're consolidating and clarifying legislation, they don't want there to be any confusion for people interpreting this. So, let me ask you—. It's not just CLA Cymru, but it's also Historic Houses Wales that have raised this issue about conservation versus preservation. We understand that the Bill continues the use of the word 'preservation', even the

'Welsh Government historic environment policy has been based on "conservation"',

and CLA Cymru told us that you had said

'that standing order 26C prevents the new Bill’s terminology being updated to align with'

Government policy. Is that correct? 

Okay. So, what is your understanding, in light of this Bill in front of us, of the difference between 'preservation' and 'conservation'? If there is a significant difference between the two terms, why does Welsh Government guidance and policy refer to 'conservation', when the law says 'preservation'?

Okay. I think this raises a number of issues both from a policy perspective and also from the drafting perspective, so I suppose, having said that, if I go over to the policy perspective first, and then to the drafting perspective—

I will do my best. [Laughter.] We've done a lot of thinking and discussion, as you can imagine, on this, and, indeed, we've had conversations with the country landowners association, and I suppose I have a certain amount of sympathy for what they say, but what they're asking for is actually very difficult in the context of consolidation. The dictionary definitions of the two terms are actually very similar. The Concise Oxford English Dictionary describes 'conserve' as to protect from harm or destruction, whereas 'preserve' is to keep safe from harm or injury. That sounds, actually, very similar, but, in reality, in practice—and that's why I am responding to this—in the historic environment sector, they have come to mean different things. 'Preserve' and 'preservation' have come to mean maintain in its original existing state. Consequently, 'preservation' is regarded as a requirement to keep a building or a historic asset unchanged, frozen in time, unresponsive to the changing demands of modern life. 'Conservation', on the other hand, is now understood as the careful management of change. Back in 2011, Cadw published 'Conservation Principles', which forms the basis for our subsequent guidance and policy for managing the historic environment. But that guidance I've referred to does still use the term 'preservation' when making specific reference to the legislative provisions. So, when treating the routine management of—. I'm sorry to go into length on this—

13:30

It is important. When treating the routine management of historic assets, our guidance uses conservation terminology, particularly in terms of the use of the term 'significance', because it reflects the current philosophy and practice as embedded in those conservation principles. So, the aim of conservation is, effectively, through the careful management of change, to preserve the significance of a historic asset, if that makes sense, and still allow change to take place for the future. For example, with reference to listed buildings, the intention is to preserve the special interest of that historic building. That doesn't preclude change from taking place to preserve the special interest. The supporting guidance that we've prepared sets this out and sets out how this can be achieved. In this way, what we're able to do, and what we've done since 'Conservation Principles' was published, is maintain this current system where the policy of conservation can be achieved through the existing legislative structure that employs that language of preservation. I hope that helps.

That's helpful, but just to draw out from you, you are being quite clear in saying that the term 'preservation' does not necessarily mean preserved in aspic. You see an interplay between the terms 'preservation' and 'conservation' in practice.

In practice, absolutely. Again, to go back to that dictionary definition and, indeed, case law, it doesn't mean that preservation doesn't allow change. Preservation can allow change. It's just that, over the decades, it's come to mean something that has this different connotation within the sector, as demonstrated, actually, by the comments of the Country Land and Business Association and the Historic Houses Association. But, again, I would stress that the supporting guidance and how we set it out sets out how preservation of the significance of historic assets can be achieved through conservation.

I was going to suggest, Chair, that in order to get the precise legislative drafting issues regarding replacing 'preservation' with 'conservation', it's probably appropriate to go back to James.

And I wonder, Mr George, if you could draw as well on the comments made by the House of Lords in the South Lakeland case that preservation does allow change. So, over to you for the legally precise interpretation of this.

We've had regard to the practice—the fact that conservation as it's understood in the sector does happen even though the legislation refers to preservation—and we've obviously had regard to the case law about preservation that indicates that it doesn't mean keeping things exactly preserved in the same state forever. I think, also, if you look at the context in which the legislation uses the word 'preservation'—. Well, 'conservation' is used to describe the overall aims of the management of heritage. 'Carefully managed changed' I think is how Gwilym described it. 'Preservation', when it's used in the legislation, is not talking about the aims of the entire system, it's used in particular contexts.

For example, quite a lot of the references are in fall-back, emergency powers where buildings and monuments are in danger and then there are powers to do emergency works or to acquire them in order to preserve them. So, in that context, we're not really talking about conservation, we're talking just about keeping the thing standing. Then, if you look at the provision about listed building consent, they require special regard to be had to the desirability of preserving the building and its special features. But, again, that's in a context where somebody's applying to do works to make a change to the building, or even to demolish it. It's really just saying that the need to preserve what's special is a very important consideration when you're deciding whether to allow the works to go ahead. But it doesn't stop the works happening. You could still get consent to demolish a building in appropriate circumstances. 

I suppose, going on from that, as drafters of legislation who aren't heritage specialists, we were not at all sure what difference it would make if we changed 'preservation' to 'conservation' in the legislation, given that the dictionary definitions are similar. There's case law about preservation, but there isn't case law about conservation in this context. So, what effect it would have if we changed the words, we just were not at all sure what difference it would make. And although we have changed some of terminology to reflect the language that people use in the field when they're talking about listing buildings and so on, we didn't think it was safe to do it here, because we just weren't sure what effect it would have. If it did have a major, dramatic effect, then it would definitely be outside a consolidation Bill. If it didn't, there probably wouldn't be any point. 

13:35

Could you just give us a flavour of how your discussions with the CLA and Historic Houses Wales have gone on this? Are they reassured by what you are telling us, that this is a matter of interpretation, it does not stop, there is not a clear, defined line, legally or in practice and policy, between preservation and conservation? How reassured are they by what you are currently saying? Because their focus is very much on how this will be interpreted by their members and others.

I wouldn't want to put words into their mouth, of course. They did want reassurance, and we did everything we could to give them that reassurance. For example, the explanatory note makes it very clear, I think, that the distinction and the intent is not to change. And, indeed, we will be restating the current arrangement, should this Bill proceed, within the guidance and the planning advice. They refer to a technical advice note, for example.

So, you're in line with their suggestion that the TAN advice should be clarified to clarify that conservation remains Welsh Government policy, and where the term 'preservation' is used in the legislation, it should be interpreted as not conflicted with that conservation approach?

To be fair, it already does. Technical advice note 24 was drafted relatively recently, and we have no intention of changing the way the intent is expressed in that. In fact, we will be revisiting the guidance, should the Bill proceed, to make sure that the terminology is retained and maintained. So, the intent and the current practice won't actually materially change as a consequence of what we're doing.

Chair, these assurances, which are on record and part of the proceedings of the passage of the Bill, will hopefully give assurance as well, if there remain any concerns. 

That's why we're pushing so hard on this. It's important to get this on record. Thank you very much indeed. James, back to you.

Thank you. I want to move on to buildings of special architectural or historic interest. The CLA had some views and opinions on this. CLA Cymru believes that section 76(5) should expressly state that only structures ancillary to the listed building are covered by the listing. This is the position according to case law in the House of Lords case, Debenhams versus Westminster council. That was reaffirmed in a recent case, which was Hampshire County Council versus Secretary of State for Environment, Food and Rural Affairs. When you were putting this through—the explanatory notes to the Bill state this—did you consider including the word 'ancillary' before the word 'structure' in section 76(5)(a) and (b) in order to clarify the effect of the law on the face of the Bill?

13:40

Thank you for the question. This is an area that we've given some thought. Of course, the evidence from the CLA, I think, is very, very welcome. I think the detailed input that they've put has actually been very constructive and very useful. So, I suppose, just as a matter of record, I probably ought to formally be thanking them and the stakeholders who've actually taken the trouble to go through this and to look at those details, because it expresses there, I think, their concern and the importance of this particular exercise that we're going through on consolidation. I'm just looking at section 76(5)(a). What I can say is that I think, in terms of the need to represent the case law that exists, that you've already mentioned, it is logical that the definition should also reflect that and for objects and structures to be ancillary. So I think this is an area that—. I suppose I can confirm now that it is an area I'm going to look at with regard to bringing forward an amendment with a view to inserting the word 'ancillary' into that particular part of section 76. 

That's really positive news. Thank you, Counsel General, for that. CLA Cymru have also raised concerns that section 90(4) of the Bill does not accurately reflect the current position, particularly the requirement in existing regulations for an assessment of the impact of the works on the special architectural or historic interest of the building and its significance, rather than a statement of this, as required in the Bill. How do you respond to those concerns, Counsel General? Do you also think that changes to the Bill are going to be needed through an amendment to address this point?

We don't agree that section 90(4) fails to reflect the current position, but I'll refer over to Gwilym on this. 

It's the distinction between an assessment and a statement. The regulations currently require a historic impact statement to be submitted in support of a consent application. A heritage impact assessment is really the process of getting to that statement, and, indeed, we explain this in quite a lot of detail in Cadw's supporting guidance on heritage impact assessments in Wales. It is actually all set out there quite clearly. So, we don't think it is needed, this change, because it's already there in regulations. It's the statement that is the important part, not just simply doing the assessment, if you see what I mean. I think that we're confident that paragraph (a) is based on the wording currently found in the regulations. It has been added to give a sense of what a heritage impact statement is all about, but it's not the full story, of course, and further detail on what a statement must contain continues to be set out in regulations. 

Thank you. Taking that forward, archaeological officers have told us that the Bill may have some unintended consequences, and may weaken protection for the historic environment. For example, it believes that, whilst section 97(5) may appear to be a strengthening of provision, there is a potential for conflict or duplication with current planning practices. Do the explanatory notes draw a parallel with other processes or do you believe that the two are not comparable? Do you believe that the statements currently in the Bill are sufficient to provide the protection that they want to see? 

Thanks. Just to reiterate what the Counsel General was saying about stakeholders, we're also, as the drafters, very grateful for anybody who comments on the Bill, and particularly for the people who have the experience of actually operating it, because it's really helpful to us. This one is quite a subtle point of statutory interpretation, and we think it probably is one that ought to be addressed in the Bill, if it proceeds. At the moment, the listed buildings Act has a provision that says the royal commission have to be given a chance to make a record of a building before it's demolished and the works are not authorised unless that happens. In the Bill, we've changed it slightly, and provided for that requirement to be included as a condition of the listed building consent and said it's got to be done that way. That's not meant to change the legal effect at all, but the way it's presented is then more consistent with how other requirements that apply to demolition are set out in the Bill.

But the question the association have asked is whether making it a mandatory condition of the consent might create an unhelpful implication that it's limiting the ability to impose other conditions in the consent as well, possibly limiting the ability of a planning authority to include conditions about recording by somebody else apart from the royal commission. We do feel they have a fair point there, that you might read that implication in, and there might be a risk that having this mandatory condition could limit other conditions, which is definitely not the intention at all. We're not trying to change anything about what conditions can be imposed otherwise. So, we do think it would be safer to put something into the Bill to spell out that that provision doesn't limit anything else that could be done in the consent.

13:45

Chair, I can confirm that, if the Bill proceeds, we intend to bring forward amendments to take on board those particular points, if that helps. 

Thank you. I'm grateful to you for that. Going back to some of the concerns expressed by the CLA in Schedules 8 and 10, that it would be desirable to include written representations as well as a hearing for some of the matters being described there—termination orders and the rest of it—what is your view on that?

Thank you, Alun. Thank you very much. Let me turn for a moment to recovery of costs and compliance with enforcement notices under section 132(5). We've had some exchange of correspondence on this and some answers from you, Counsel General. One of the things we asked was whether this was a change of policy, moving from a discretionary charge on the land for recovery of costs to putting it slap bang on the face of the primary legislation, seemingly without any discretion over it. Previously, the regulations could, but didn't have to, provide that the costs incurred for compliance with an enforcement notice were a charge on the land, but as a result of this Bill the primary legislation now says that the costs incurred will always be a charge on the land, and there is no longer any power to change this. Are you confident that it is not necessary to retain the power to change this position to allow some discretion?

Thanks for that, because I think it related, didn't it, to the power to make regulations that created options. I'll go over to you, James. 

As you've said, what we've done is move a provision that is currently in regulations onto the face of the Bill. One of the reasons we did that was just to be more consistent. There are other provisions about recovery of costs being a charge on the land that are on the face of primary legislation already, so we wanted to make it a more consistent position. I think more generally, wherever we've left out a regulation-making power in the Bill, that's on the basis that we concluded with Cadw that we can't foresee any need to make regulations in the future, that we don't think there's any significant likelihood of the power being used. We can't be 100 per cent certain that that's going to be the case, but I think the general approach has been that if things are well established and we can't foresee any need for change, then we shouldn't be keeping regulation-making powers just in case some need for them might turn up in the future. 

Okay. Is there anything that you want to add in terms of that aspect—that previously, at least in principle, it had some discretion around it, but now, within this Bill, it takes away that discretion?

It doesn't change the current law, because the regulations do currently do that. 

The point is that we're consolidating the law as it is, rather than what options might be to make changes to that. It seems to me that that fits in logically with the consolidation process. 

Okay. Thank you for that. Let me turn to another observation. You were complimentary about the CLA—they did put very detailed submissions in on this. CLA Cymru told us that preservation notices have never been implemented, and they're unlikely to be implemented because they would be very harmful to listed building protection. CLA argues that it would be better if they were removed from the Bill entirely. Do you have a view on this point?

The inclusion of the preservation notices was a late amendment to the Historic Environment (Wales) Act 2016. I think that, as an organisation, they have consistently argued against the introduction of preservation notices. They made it clear that they would—and I think they always have—welcome legislation that would change that. Of course, the removal of section 147 is what they are seeking. I'll ask Gwilym to come in in a minute about the Cadw position on this, because I know there's been some work that has been carried out. I'd very much welcome getting this committee's views on that, and I think if your inclination or the conclusion that you come to is that that is a sensible recommendation, it is something that we could consider at the next stage. Perhaps we'll go over to you, Gwilym, on this. 

13:50

When we were developing the Historic Environment (Wales) Act, or Bill as it was then, back in 2015-16, we tried to be very proactive about undertaking detailed research about what the potential implications of particular measures might be. Because this was quite a late amendment, the research was rather retrospective, and it certainly highlighted, that research, a number of the unintended consequences accompanying the introduction of preservation notices, not least the potential for the active discouragement of individuals and organisations taking on listed buildings at risk, because there'd be the potential possibility of preservation notices and penalties if they did so. And that view was certainly endorsed by the Country Land and Business Association at the time, and other organisations representing owners of historic buildings. So, the research does offer quite a lot of support for their view and the potential impact on listed buildings at risk. Obviously, this provision, as they rightly say, hasn't been commenced and could potentially be repealed, so as the Counsel General has said, we'd welcome the committee's views on this. 

I'm taking from that, Mr Hughes, that from a policy and practice perspective, you don't see particular utility within this provision. As the CLA have argued, it hasn't been used. In fact, the use of it could be damaging to conservation and preservation. 

At the moment, it would be difficult to see how it could be commenced without having some adverse impact. The research is available on the Cadw website, so I'm happy to give you the link to that if you want to do some more analysis of this. 

And Chair, just to reconfirm, we'll obviously await the conclusions that the committee comes to and any recommendations that you make. Obviously, we'll look seriously at that and take that on board. I can indicate that, certainly, my thinking is one that is supportive of that approach. 

Thank you, Chair. I just want to talk a little bit about transparency. In a letter to us in October, you said that reference to a building of 'outstanding' interest being changed to refer to 'special interest' was being made for consistency and clarity, and that this had been shared with the task and finish group at Cadw and they had no concerns that they raised at the time. The committee previously asked about the pre-introduction consultation work that was done with stakeholders and if that was going to be published, and at the time, Counsel General, you said that the exchanges were never intended to be made public. Given that the views of this task and finish group are important for supporting the change from 'outstanding' to 'special interest', do you think it is possible that the details of the organisations who participated in the task and finish group can be made public? Will you will work with Cadw to ensure that the work undertaken by that group and the proposals that came forward from it for the Bill can be made public, in the interest of transparency and openness? Because I think it is important that people who are a bit uncomfortable about this do see the rationale behind it. 

This is unusual. There wasn't a formal consultation prior to the introduction of the Bill, and the task and finish group actually didn't comprise of organisations; it comprised of expert individuals—trusted individual experts, effectively, in particular bits of heritage practices, who were invited to consider particular elements of it and just to say was this going to change the practice. So, they were there as individuals rather than representing organisations. However, the majority of those people did work for professional organisations and stakeholder groups, such as local planning authorities, national parks, the Welsh archaeological trusts, the royal commission, the two UK-based archaeological organisations, CLA Cymru, the Church in Wales, the National Trust and Glandŵr Cymru. They work for those organisations. Again, I'd like to place on record, as we've already done, actually, our thanks for the input that those individuals gave, and freely, in terms of their time and expertise. But they effectively acted as an informal sounding board, a panel of experts, if you like, so we could understand how the current legislation was interpreted and applied in practice. They were there, really, to provide expertise, but also it was informal and in confidence. So, there weren't any formal meetings of this group; we were writing to individuals to ask them if they felt that this legislation was appropriate and suitable. There were no formal meetings, and so it was never intended that they'd be public, because of that confidential nature. But just to follow up on what you've just said there, there's no doubt in my mind that, as a consequence of those interactions and the participation of some of those individuals, that has clearly helped some of the very helpful responses you've received, for example from the Country Land and Business Association and from the Association of Local Government Archaeological Officers Cymru. It's obviously been informed by their engagement with this exercise. So, I think it's been a successful exercise.

13:55

Can I just come back? My personal view is that Cadw is a public body, and if people are doing work that has changed the law, changing definitions with wording, I think it is right that the people who may have concerns about the wording change get some rationale as to why it was done, and perhaps the understanding of why it was changed. I know it was said it was done for clarity and consistency, but I do think perhaps it should be said why it's come to this rationale, rather than, 'They're trusted individuals on a confidential basis, so we're changing it for that'. Can you see why some people might say this is a bit cloak and dagger? If it's open, then what's there to hide?

If I can come in, I think it's because it's not a task and finish group that's related to policy or the development of policy, even the rights and wrongs of aspects of policy and how things might change, but when you've gone out specifically, and in a very specific way for consolidation, and that is to seek expert views as to how do we reflect this law. So, we're not changing a law in any particular way, but we're consolidating it, and it's really just getting expert views on the understanding of it. I think the problem is, if it's gone out to people in that particular way, unless you specifically said, 'We intend to—', et cetera, I think it's inappropriate retrospectively, probably, to do so. But I think the fact is what we're looking at is things that don't change the law but are really helping to actually draft the legislation and pull together legislation from a variety of sources, and get people's understanding of it. I think it's very different to if, for example, say with the CLA, there might be a comment saying that the law should be changed in a particular area, et cetera, as opposed to just 'Does this accurately reflect what the legal situation is?'

Okay. One more. Obviously we're not going to get the minutes or anything from that—that's what I'm getting back from you. But maybe something for the Counsel General: perhaps as we go through, there are going to be other areas of consolidation, and when we do seek views from people about changes of wording and the rationale as to why it's come to the change of wording, perhaps for the future, those things, Chair, as a recommendation, could be made public in the spirit of openness and transparency.

If there's a specific process that's taken place and that's engaging, et cetera, then I think those are things you'll take on board. Of course, I think those things have to be put upfront with people who are engaging in that process as well, and, of course, the nature of it, the nature of the engagement as well, what format it takes place in.

As you say, it's a learning curve to some extent. We did want to just make sure that the practice met the expectation. And that was done with the best of intentions so that we weren't actually changing the law.

Everything is done with the best of intentions, but we don't want to get into a situation where someone says, 'Well, that's been changed because maybe X and Y person was sat there and wanted a change for said reason.' Okay, thank you.

14:00

Okay. Thank you very much. Let's turn to one of those areas that always, from a policy perspective, excites a degree of interest, and it's whenever there's a power to enter property, or in this case a power to enter land, under section 152(9). Now, again, we've had some correspondence, so I just want to go a bit beyond where we got to in correspondence, because we'd previously asked you, in respect of this particular section, how it was appropriate to use a consolidation Bill to reinsert a provision that was repealed by the UK Parliament when it passed the Planning and Compensation Act 1991, as is being done in section 152(9). Now, in response, you told us that the Schedule within the Bill that repealed the particular provision was added to the Bill 'without any debate in Parliament'. Now, it is often the case that decisions are taken by Parliaments without debate. So, can you clarify for us why the inclusion of section 152(9) is appropriate when the policy it covers has not been part of the law for over 30 years?

Thank you for the question. I think we do think that it is an anomaly, but in order to explain that anomaly, I will come to you, James.

I should say, on the point about it not having been debated in Parliament, obviously we accept that lots of sentences in Bills have not been debated, and I think the only reason that that was mentioned in the annex to the Council General's response was just to explain that we haven't identified any public explanation of what the reason was for the change that was made 30 years ago. And I think, because we don't know what the reason was, we've really just approached it by looking first of all at whether we can see any reason for this difference, because the Ancient Monuments and Archaeological Areas Act 1979 and the Town and Country Planning Act 1990 have powers of entry that do include the power to bore the land to see if there are minerals there. So, the question was: well, why would that not be the case for the Planning (Listed Buildings and Conservation Areas) Act 1990? We just can't think of any rationale there might be for that. We also looked at just what's the effect of this, and this is all about really going onto land to assess claims for compensation, and we think if there isn't a power to check for the presence of minerals under the listed buildings provisions, that potentially puts somebody who is claiming compensation at a disadvantage, because their land might be undervalued, because the minerals are ignored as part of valuing the land. So, I think, on that basis, we think this is an anomaly. We can't identify any reason for it, so we thought it was appropriate to put the position back to how it was before.

Okay. Your argument seems to make good sense there, so—

Chair, that's why I asked James to give the explanation. [Laughter.]

Can I say, our committee was appalled by the idea that every single word within particular provisions are not debated within any Parliament whatsoever, because we love trawling over this?

Let me turn to a different aspect here. The Association of Local Government Archaeological Officers Cymru has suggested that clarity is needed on whether references to demolition include partial demolition. Did you consider clarifying the meaning of 'demolition' as set out in case law on the face of the Bill, and will the meaning of 'demolition' be clearly set out in guidance?

Yes. It's another one of these, isn't it? In the case law on it, really the question as to whether the demolition of a building is partial or whole is a matter of fact and degree, so that's really the court saying, 'Well, to be honest, unless we can look at the actual facts of what actually happened, we can't define it one way or the other.' You have to interpret it on the basis of what has actually happened. Our intention in the legislation is not to change what demolishing a building means or how the conservation area consent system operates in practice. We took the view on the legislation—I'll perhaps just refer to James, if he agrees with me on this—that it wouldn't be helpful to introduce new wording into what is a consolidation Bill. I do know that Cadw have established or published—you've published, I think—guidance on that. I mean, do you want to say something about the guidance, and perhaps I'll just go to James to check?

The 'Managing Conservation Areas in Wales' guidance has been produced. It's one of a suite of about 11 guidance documents that we produced in the aftermath of the 2016 Act, actually, and it certainly refers to how the courts have interpreted this complex issue of demolition in conservation areas.

14:05

So, that might add to why it probably wouldn't be helpful to change the wording, particularly in view of the case law. But, is there anything to add to that, James?

Well, just to say that we couldn't really think of any way that you could add wording that would really make things much clearer, because what the courts have said, as the Counsel General has said, is effectively it's a common-sense judgment. They've said, 'Well, it's a question of has something been substantially demolished?' So, you can't say that, just because there are a few bricks left it's not totally demolished. And it's a question of fact and degree. But, I think that's really just saying that you look at the word 'demolition' and interpret it sensibly. So, that's why we haven't tried to say any more in the Bill.

Thank you. Moving forward on the same sort of issue, section 163, you've told us, clarifies that powers of entry apply for the purpose of conservation area consent as well as for listed building consent. You've justified this on the grounds that the UK Parliament would not have intended for different powers to apply. Now, we've had a flavour of this conversation in previous responses, but these are similar but different regimes. So, how can you have that level of confidence? 

I think in my correspondence I did try to explain it, really, within the context of our interpretation of the 1990 listed buildings Act, and I know in the drafter's notes and, I think, in my letter, both of them are saying that what we're trying to do is to, I suppose, restate the position more clearly. And I think it would be, perhaps, a curious anomaly if powers of entry were not available in relation to conservation area consent in the same way as they are available in relation to listed building consent. I think also it puts us in conflict with some of the earlier legislation. I don't know if there's anything you can add to that.

It's all because of the way that conservation area legislation works at the moment, which is mostly by applying provisions about listed buildings, and then you get into issues about exactly which provisions you need to mention. There's also a problem about the structure of the current legislation, in that some of the provisions that need to be applied come after the bit about conservation areas, so do they apply? And some come before. There are, throughout the legislation, lists of provisions that are applied to other things and, sometimes, the lists aren't quite right or sometimes maybe different approaches have been taken to whether you need to spell out that you're not talking just about section x, but that you're also talking about section x as it's been applied to conservation areas as well. So, it's all quite tricky interpretation. But, our interpretation is that we haven't changed anything here, that these provisions do apply to conservation areas as well.

And we're not creating new powers of entry. I think what we're doing is clarifying and restating what those powers actually are, within a consolidated piece of legislation.

Okay. I think I'll read the transcript before I respond on that. [Laughter.]

In terms of other areas, ALGAO Cymru is concerned that other changes that you've made in terms of restatement, in terms of 'compiling and keeping up to date' as per the Historic Environment (Wales) Act 2016, to 'maintaining' historic environment records as per this Bill, could lead to a reduction in the priority provided to those areas of work. Is that a concern that you share? 

It is, and it's one of those areas, again, where we've had to look very, very carefully at what previous legislation has had, what it says, what it actually means. It's the difference between 'compiling and keeping up to date' and then 'maintaining'; what does 'maintaining' actually mean? So, I think the approach that we've taken is, really, that a duty to maintain a list or register is a duty to keep it going and to keep it up to date. And I think the reality is I don't think you could say you were maintaining it if you just compiled it once and then you let it go out of date, although that—. I don't know, does that adequately reflect the situation?

14:10

Well, I don't have a concern with this. 'Maintain' is a very active word. It does mean you're still working on it; you're managing that record and making sure that records are added as and when they become available, and in fact, it is supported by the statutory guidance for public bodies on how a historic environment record should be compiled and maintained and kept current, effectively. So, I don't have a concern with the—. I see that the wording is meant to be consistent with other elements, other records, which are being—other uses of that term, effectively, in other parts of the legislation.

Okay, I can see that. In terms of section 201, civil sanctions, you have told us that the need to apply Part 3 of the Regulatory Enforcement and Sanctions Act 2008 to the offences inserted by the Historic Environment (Wales) Act 2016 was missed during the drafting of that legislation. By comparison, in relation to section 39, you have said that the current Welsh Government is uncertain as to how a particular provision found its way into the 2016 Act, which begs a number of questions, because there have been a number of questions this afternoon about that Act. I think it says two things, Chair: first of all, the need for post-legislative scrutiny of legislation, because I think it's something that we talk about but we rarely do, and I think it would be a good use of the time of the Senedd, but also, of course, Government drafters, because Government constantly tell us that only the Government can draft legislation, which isn't something I necessarily agree with, but it talks to the drafting of that legislation, doesn't it? And your assertion today is that the omission was not intentional.

Firstly, what it does do is show the benefits of the consolidation exercise. When you've brought all these bits of legislation together, you then do actually scrutinise the meaning and the consistency across the board. My understanding is that most of the officials who were involved in the preparation of that Bill, the 2016 Bill that became an Act, are still working with Welsh Government, and that their advice and recollection has been sought. I don't know whether there's anything you can add to that, James.

No, but we have checked with the people at the time and they have confirmed that if the point had been raised, then they would have asked for a provision to be in the Bill dealing with this point.

Yes, it does help. Thanks. Let's ask the officials rather than—

Yes, so in summary, it was an oversight that we think that we can establish now.

It's always good to actually ask the officials rather than the politicians who were involved; I accept that.

When we previously asked you to clarify how and why section 208(3) of the Bill removes gaps in the current law by extending the provisions around compensation so that they apply to all compensation under the Bill, you told us that you had been unable to tell whether the so-called gaps were a deliberate choice or an oversight. Can you expand further on this?

I'm going to go to James again, I think, on that one.

Well, these provisions are about compensation, and it's about paying compensation to the Church of England, which obviously would be very rare in our case, because the Church of England doesn't have much land in Wales. But the issue is that the freehold in Church of England property rests in the incumbent of the benefice, which is like the vicar or the rector, which can cause problems for quite convoluted legal reasons where legislation is referring to the owners of land, particularly if there's a vacancy in a benefice. So, to kind of overcome these problems, the legislation treats the diocesan board of finance as being the owner of the land. We are confident that the inconsistency, the fact that section 86 of the 1990 Act doesn't do this for all the compensation in the Act is an anomaly, because we just can't identify any reason why the board of finance should be treated as the owner for the purposes of some compensation but not other types of compensation. There's no logical reason for any different position. Also, there's no reason why the legislation about scheduled monuments, which does treat the board of finance as being the owner for all purposes, should be different from the legislation for listed buildings that has these gaps in it.

So, again, going back to your point about the 2016 Act, having consulted our records and officials, we do think it was just an oversight not to add the new types of compensation created by the 2016 Act into this provision about the board of finance. We're not sure for the other ones, because they were created, I think, in 1968 and 1991, but, again, we just can't see any reason why the legislation wouldn't have dealt with everything in the same way, and it's the kind of thing that's probably quite easy to miss, because this is a technical provision right at the end of the legislation and you might miss the need to change.

14:15

These are quite minor issues we're debating at the moment, but there are other issues that are more profound around the 2016 Act. What advice would either official have given the Minister on how to take these matters forward had these items been identified as issues but there wasn't a legislative vehicle available in the form of a consolidation Bill to actually make the adjustments that you are seeking to make now to the statute book?

I think it's fair to say that. when we were preparing that 2016 Act, we were dealing with legislation that was quite old—

No, no. I'm thinking as I'm speaking, and, obviously, it was quite difficult to make those connections. Perhaps the one that could be argued to be most significant, because there was inconsistency in the Bill, was the one over the consenting regime, wasn't it? There was a conflict within that, wasn't there, and we've picked it up as a result of this consolidation Bill exercise. If I'm honest, we didn't see it at the time, and that's a fact—

But what advice would you give to a Minister today, having seen that without the Bill providing a vehicle to change the law?

It would depend if it ever arose within any legal context. Otherwise, it would just remain there, wouldn't it?

It would, yes—

Unless an issue arose where that piece of legislation had to determine some issue to do with Church of England land—

I'm talking in general, because there have been a number of different—

We'd certainly have to flag it up. We'd certainly have to make Ministers aware of that inconsistency—

Isn't it the case that what would happen is that if something was identified, and from time to time things like this are identified, the question is how significant is it? Does it warrant an amendment—a piece of amending legislation—that needs to be taken through, et cetera? That would be the way forward. I suppose it just depends upon the weight of it, how likely is it that it's going to arise, and what the urgency of it was.

What the impact of that would be, as well, yes, so it's the likelihood and impact. So, it's a risk assessment. I think that would have to be the advice we'd have to give to the Minister at the time, 'This has been identified, but the impact's likely to be low, and the chances of it happening are likely to be low, and so it probably isn't a problem.' But if it's high, then an amendment might have to be made.

Thanks, Alun. Isn't it strange what this process of consolidation throws up?

I'm interested in the wider issue about how we look back at legislation that's been enacted. I've got no issue with the explanations given by either one of the officials here. These things will always happen, and I'm quite content with that, as it happens. It's how we identify those issues and then resolve those issues, I think, is what's going through my mind at the moment.

It raises the issue of post-legislative scrutiny, doesn't it?

Also, the experience of this element of the work that we're doing at the moment on the planning consolidation is it's often the least used provisions where you spot these problems—

14:20

—because they're the ones that we don't use very often.

Yes, it rarely happens.

Good. We'll head to—. We're rapid. We're doing very well, by the way, and rattling through these massive areas of questions. James, over to you.

Thank you, Chair. I just want to talk quickly about implementation. The Royal Town Planning Institute Cymru told us that the timescale for implementation, as set out in the explanatory memorandum, is very underestimated, given the extent of the legislation, the terminology, the new guidance, which will, obviously, have to be taken away, read, understood and embedded. At a time when resources and capacity are very stretched in many sectors, how do you respond to this, Counsel General?

I'm not sure that should be an issue, because, with the consolidation process, we're not actually changing the law, or organisations or anything; it's not actually reforming the law. So, nothing should actually change in terms of what actually happens. There will be, of course, some changes, I suppose, in terms of forms, in terms of some of the terminology, and the same in terms of some of the guidance. I said early on, didn't I, that the intention is to, obviously, keep the expertise there for the purpose of an implementation strategy that would take place in 2023-26. I think, within that context, that's reasonable, so I don't share those concerns. Obviously, it's something we'll keep an eye on during the implementation process, but I'm not sure it's something that causes me any significant concern or any need to change the strategy that already exists.

Okay. Could I ask Cadw what you are going to be doing around implementation? Obviously, industry bodies and professionals are going to be using this new—well, it's not a new piece of legislation—the consolidation Bill, to make sure that they're all aware of changes to the terminology and things they're going to have to do. I think it might give some assurances to people who are concerned that it's not going to be just this new piece of legislation, 'Here you go, get on with it. 'I think that Cadw can explain exactly what's changed, what hasn't changed and how they're going to work their way through it.

Well, we are already doing that process of active engagement now. We've had an open invitation to stakeholders to just be briefed on the process, both the content of what we're doing and the timetable, both for this process and for the implementation, should it proceed. So, that process is already under way. We've had several, actually, workshops and invitations to provide briefings for key stakeholders. The general response has been very warm and very welcoming to the process. And, obviously, after the process has been completed, there will be a programme of support for the sector to acclimatise to the new terminology. But we don't envisage it to be a particularly challenging exercise. There'll be other things, like—I've already referred to this—updating guidance and advice with the new terminology to restate, to make sure that it still sits within the current management framework that we have for the historic environment. So, all that process will be extended, and we'll be the same team. I'll be here for a few more years, yet, I hope. [Laughter.]

Very good. We'll turn, then, unless my colleagues have any other questions, to just one final question here, in the time available to us. One of the other aspects raised by the Royal Town Planning Institute was to do with concerns that it previously raised in response to the 'Planning Law in Wales' 2018 consultation. It's to do with the separating out of the rural and historic environment legislation from planning. Now, the concerns largely relate to ensuring the separation doesn't undermine the application of core planning law across urban and rural contexts. So, can we ask two things? One is how did Welsh Government respond to those concerns when they were raised at the time, back in 2018, in the consultation, and how do you now respond to those concerns, which they've put once again?

Well, I think these are matters, aren't they, that partly went back to the Law Commission. Because the Law Commission made certain recommendations at one stage, I think, in terms of having separate codes, for example, in the rural environment, et cetera, and in those particular areas. Bearing in mind, then, with the Law Commission's report on consolidation of planning, I don't think there's any intention for us to create those separations within the code, other than where they can be justified. I don't know whether there's anything you can add to that, because you're obviously involved in the planning consolidation as well. 

14:25

Yes. Well, I think, in their final report, the Law Commission thought that perhaps the RTPI had slightly misunderstood what they were suggesting. The Law Commission cast their net very broadly and brought in countryside legislation, legislation about rights of way, areas of natural beauty and all kinds of things, but, then, their report is about what we normally think of as planning law, and the other environmental and countryside legislation, if it were to be consolidated, would be in a separate code. So, I think that the concern that the RTPI has about somehow separating planning law between rural areas and urban areas is not something that anybody's been contemplating. 

No, it's something that would go contrary, wouldn't it? Previous legislation is based on the Town and Country Planning Act 1990, which actually kept them together. These issues do arise in terms of the issue of codification, and, of course, there are areas where there are overlaps. I just hope that explains where we are. 

Yes. That's great. Thank you very much indeed. Thank you for this evidence session. We've covered a lot of ground there. We'll send, as per normal, to you the transcript of it. Sorry, I'm just checking—no further questions from my colleagues? Nothing else you want to add, Minister, or your officials? 

Well, thank you very much for your time. We'll send it to you to check for accuracy. And thank you for your engagement on this, and the detail you've gone into and the time you've spent with us. I think it is very important within this consolidation exercise.  

I think this is an incredibly important learning exercise for the next one that comes, as well. 

Thank you very much. We'll just give you a moment to depart, before we proceed with our next item on the agenda. 

Chair, can I suggest we take a five-minute comfort break? Would that be okay? 

That's a great idea. So, we will pause, with our clerk's help, and we'll return at 2.35 p.m., at the latest? Yes, there we are. Good. Thank you very much. 

14:30

Gohiriwyd y cyfarfod rhwng 14:27 ac 14:35.

The meeting adjourned between 14:27 and 14:35.

14:35
3. Offerynnau nad ydynt yn cynnwys unrhyw faterion i’w codi o dan Reol Sefydlog 21.2 neu 21.3
3. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

Prynhawn da. Croeso yn ôl.

Good afternoon. Welcome back.

We are returning to our public session of the committee today. Having concluded the ministerial evidence session, we move on to item 3 on the agenda, which is a standard item: instruments that raise no reporting issues under Standing Order 21.2 or 21.3. Under this, we have item 3.1, SL(6)273, the Renting Homes (Wales) Act 2016 (Consequential Amendments to Secondary Legislation) (Amendment) Regulations 2022. Now, our lawyers have not identified any points for reporting on this. Are we happy to agree the draft report? We are. 

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

So, we will go on to item 4, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. So, we have, under item 4.1, SL(6)274, the Renting Homes (Rent Determination) (Converted Contracts) (Wales) (Amendment) Regulations 2022. We have a draft report and a Welsh Government response. Now, our lawyers have identified one technical point for reporting here, and we have a Welsh Government response, I understand, as well. What do we know? 

The technical point seeks clarity from Welsh Government as to how the amended regulations will apply in relation to licences, as opposed to tenancies. In response, the Welsh Government confirms that the only type of licence within the scope of the amended regulations will be an assured agricultural occupancy.

That's brilliant. Are we happy to agree that reporting point? There we are. Good. Thank you very much.

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

We move on to item 5, which is instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, which we have previously considered. We have two here to turn our attention to. Under item 5.1, SL(6)272, the Child Minding and Day Care (Disqualification) (Wales) Regulations 2022. We looked at this at the 7 November meeting, we laid a report later that day, and we've had the Welsh Government's response.

Then we have item 5.2, SL(6)276, the Renting Homes (Fitness for Human Habitation) (Wales) (Amendment) Regulations 2022. Again, we considered this on 7 November and laid a report that day. We've had a Welsh Government response to the report, which is in the pack. Could I just ask, do we have any comments on either of those?

Yes. On the Child Minding and Day Care (Disqualification) (Wales) Regulations 2022, the committee's report had 11 technical points and five merits points. The Welsh Government's response confirms that the issues will be corrected by way of new regulations that will revoke and replace the existing regulations. There are just a couple of points to note about the Welsh Government response. In response to the second technical reporting point, the Welsh Government disagrees that the issue amounts to defective drafting. The committee's legal advisers remain of the view that the amendment in question is defective for the reasons set out in the report. But we do agree with the Welsh Government that, in context, it is possible for the reader to work out the location of the amendment.

Reporting point 14 was a merits point that raised concerns about the accessibility of the regulations. The issue here was that the reader needs to check the schedules to ascertain which orders, determinations or offences disqualify a person from involvement in regulated childcare. But some of the entries in the schedule did not identify the specific provision of legislation that provides for such an order, determination or offence. 

There was also an issue that some of the legislation comes from the Isle of Man or the Channel Islands, and some of the relevant provisions have been repealed, so are difficult to access. In response to that point, the Welsh Government confirms that it will insert references to the specific provisions of legislation into the list in the schedules to assist the reader, and it will clarify a reference to the Isle of Man Parliament. The Welsh Government's response doesn't address the broader issue of the difficulty in accessing repeal provisions for those who don't have access to specialist legal software. But, overall, the steps that the Welsh Government is going to take will clearly improve the accessibility of the regulations.

Thank you very much. Are we content with those reporting points? We clearly have one area where we agree to disagree with the Welsh Government, but it is open to interpretation. Happy to agree that? We are. And, in terms of item 5.2?

We had no comments on that.

No comments. Okay, there we are. So, I suspect that we are happy to agree that. 

6. Offerynnau statudol y mae angen i’r Senedd gydsynio â hwy (Memoranda Cydsyniad Offeryn Statudol)
6. Statutory Instruments requiring Senedd consent (Statutory Instrument Consent Memorandums)

So, we turn to item 6, then. Item 6 is statutory instruments requiring Senedd consent. Now, we have one in front of us here under 6.1, a statutory instrument consent memorandum, the Climate Change (Targeted Greenhouse Gases) Order 2022. The consent memorandum was laid before the Senedd by Welsh Government on 21 October 2022. The memorandum notes that the objective of the Order is to extend

'the scope of emissions captured and reported under the Climate Change Act 2008 (“the CCA”) by including nitrogen trifluoride (“NF3”) as a targeted greenhouse gas',

and just for Members to note that the Minister has stated that she's not minded to table a consent motion to seek the Senedd's agreement to the making of this Order. Can I suggest that we might want to defer discussion on this to the private session? And we'll note it for now if you're happy to. 

14:40
7. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C
7. Written statements under Standing Order 30C

Then, we move on to item 7, which is our written statements under Standing Order 30C. Under 7.1, we have written statement 30C(6)018, the European University Institute (EU Exit) Regulations 2022, where we are informed that the Welsh Government has given consent for the UK Government to make that set of regulations. The draft regulations were laid before the UK Parliament on 17 October and the statement notes that the regulations remove

'from domestic law any rights, powers, liabilities [et cetera] which might derive from the UK’s membership of the EUI Convention and which otherwise, despite the UK’s exit from
the EU and that Convention, remain on the statute book as "retained EU law"'.

I don't think we have any points to note on this from a legal perspective. Are we happy to note that? We are. 

Then we have written statement 30C(6)019, the Common Organisation of the Markets in Agricultural Products (Amendment) Regulations 2022. This is under item 7.2. In this statement, the Senedd is notified that the Welsh Government has given consent for the UK Government to make the Common Organisation of the Markets in Agricultural Products (Amendment) Regulations 2022. They were laid before the UK Parliament on 8 November and the regulations make 

'amendments to address deficiencies and ensure clarity to [a number of] retained direct EU legislation and EU derived domestic legislation relating to marketing standards for agricultural products in both England and Wales'.

And again, I don't think we have anything in particular to note. Are we happy to note those? We are. 

8. Cytundeb Cysylltiadau Rhyngsefydliadol
8. Inter-institutional Relations Agreement

Then, we have under item 8 notifications and correspondence. For the purposes of this committee today, just to read into the record, we have written correspondence under 8.1 from the Minister for Rural Affairs and North Wales and Trefnydd in respect of the Phytosanitary Conditions (Amendment) (No. 3) Regulations 2022. The Minister states that she's giving consent to these regulations 'for reasons of efficiency' and 'expediency', and states that 

'The amendments have been considered fully and there is no divergence in policy'.

Under item 8.2, we have correspondence from the Minister for Economy in respect of the British-Irish Council ministerial meeting on the social inclusion work sector, which took place on 21 October 2022. We also have a range of correspondence then under subsequent items relating to correspondence from the First Minister on the British-Irish Council summit; correspondence from the First Minister on the meeting of the Prime Minister and heads of devolved Governments council, which took place at the end of last week; correspondence from the Minister for Rural Affairs and North Wales and Trefnydd in respect of the inter-ministerial group for environment, food and rural affairs outlining the discussions that took place at that meeting, and confirming the date for the next meeting. Are we happy to note those and return, if we need, in private discussion later to those?

I think we should also welcome the presence of the Prime Minister at those meetings. It's the first time for some years that the Prime Minister has—

I hear it's going to be quite a regular occurrence, too, from what I'm told.

Yes, a very good point made. The Senedd has frequently made this point about the quality and the regularity of the inter-ministerial, but also the First Minister, two Ministers, from the Prime Minister to devolved Government Ministers as well. So, yes, we note that. Thank you, Alun.

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

On to item 9, then, papers to note. We have a range of papers here, and again, I'll go through them for the record. Briefly, we have correspondence from the Counsel General and Minister for the Constitution, including a letter, report and written statement from the Counsel General on the publication of the first annual report on the Government's programme to improve the accessibility of Welsh law. Just for Members to note if you're happy, the general scrutiny session with the Counsel General in September could be used as an opportunity to discuss any matters that arise from this within the annual report.

We then have, under item 9.2, correspondence from the Minister for Finance and Local Government, which is informing the committee that, should it be necessary to lay the Non-Domestic Rates (Chargeable Amounts) (Wales) Regulations 2022, it's likely that a timetable for this scrutiny will need to be expedited. And the Minister states that this is as a result of the UK Government's autumn statement scheduled for this week, 17 November, and the need for Welsh Government to have all the available information before making a policy decision on the regulations. Any regulations have to follow the draft affirmative procedure and they must be enforced prior to 1 January of the year of the revaluation.

So, the draft regulations may not be available to be laid until 6 December, with the intention of them being debated on 13 December, so it is quite an expedited process. So, if we note that. If we need to return to it, we will. Now, the Minister does acknowledge that this is a much compressed timetable for our consideration, and is therefore seeking the committee's assistance in expediting scrutiny. If Members are happy, we can send a response to the Minister saying that we'll do our best to meet the request because, clearly, the timetable is one that the Government is up against there, but also asking the Minister to keep the committee and our officials up to date with relevant developments. Would you be happy with that? Yes, okay, we'll do that.

Item 9.3, we have correspondence from the Minister for Climate Change asking the committee to expedite the scrutiny of the Renting Homes (Wales) Act 2016 (Consequential Amendments) Regulations 2022. As indicated in the Minister's letter, these regulations were laid on 10 November, they need to be debated on 29 November so that, if approved, they can come into force in time for the implementation of the Renting Homes (Wales) Act 2016 on 1 December. Could I suggest again to colleagues that what we do is write to the Minister and say that our committee and our officials will do our very best to meet this request? 

14:45

I think, given that the Government has waited for five or six years to implement this legislation, or thereabouts, it's a bit of a cheek to ask us to expedite our work on these matters, but I suspect that we should probably do so. 

Thank you, Alun, yes. Okay, so we'll do that. Thanks, Alun.

Then we have item 9.4, correspondence from the Business Committee in response to the concerns that we raised in our annual report regarding the reasons used by Welsh Government to using UK Bills to legislate in devolved areas. Now, Members will note, just for interest and for the record here in public session, that the Business Committee agrees with our position that it is not appropriate for Welsh Government to use arguments relating to the Senedd's timetable for scrutiny to justify using a UK Government Bill to seek to legislate in a devolved area. And the Business Committee has, we understand, copied the correspondence to the Counsel General and to the Trefnydd. So, we'll keep on batting on that particular wicket. 

It's an important letter, but it would be nice to know what the Business Committee intends to do about it. Noting it is one thing; doing something about it is another. 

No, it's a very important letter, because it does say very clearly to the Government that they can no longer use Senedd resources and Senedd time as a reason not to put Government business in front of the Senedd. It's a very, very important point of principle, actually. I think we should very much welcome it again.  

Yes, we welcome that and thank the Business Committee for that helpful response there.

Item 9.5, we have correspondence from the Counsel General and Minister for the Constitution and the Permanent Secretary to the Welsh Government, following our meeting on 10 October. It's a very informative and interesting, in different ways, response that we've had, and could we perhaps defer discussion on that to the private session? 

Item 9.6, we have correspondence from the Minister for Climate Change to the Local Government and Housing Committee's request for further information on the legislative consent memorandum on the levelling up and regeneration Bill. And just to note for Members that the Minister intends to lay a revised LCM as soon as possible. 

Item 9.7, we have correspondence from the Minister for Education and Welsh Language to both our committee's and the Children, Young People and Education Committee's request for further information on the LCM on the schools Bill. Are we happy to note that correspondence? We are. 

14:50
10. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
10. 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.

Motion:

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

Cynigiwyd y cynnig.

Motion moved.

So, we move to item 10, which is our standard motion so that we can move into private session. So, under Standing Order 17.42, could I ask Members if they're content to exclude the public for the remainder of this meeting? We are. So, we'll move into private session, please. 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:50.

Motion agreed.

The public part of the meeting ended at 14:50.