National Assembly for Wales

Welcome, everybody, to this meeting of the Legislation, Justice and Constitution Committee on 21 November. Proceedings for the session are being televised on Senedd.tv as normal, and of course the transcript after the event will be there on public record as well for people to look at. We've got quite a busy session ahead of us today, including with the Minister here and her officials. I'm delighted to see you; thank you, Minister, for coming in. Before we do, just a couple of opening remarks. We've had apologies today from Alun Davies MS and Peredur too, so we're delighted to have Mike Hedges joining us as a substitute for Alun, and Mabon ap Gwynfor is attending as a substitute for Peredur. You're both very welcome indeed. Thanks for coming along there. 

As I mentioned, we're live on Senedd.tv. We do have bilingual translation. We operate through the medium of English and Welsh, so there's interpretation available for today's meeting. No need to mute and unmute your sound controls because that is done for you.

So we'll move, then, straight ahead to the substantive item in front of us to begin with, which is the session now with Lesley Griffiths MS, Minister for Rural Affairs and North Wales, and Trefnydd, accompanied by your officials. Perhaps I could ask you either to introduce your officials or to pass to them to make some introductions.

I'll let them do it. I'll start over there with Bill. 

I'm Bill Cordingley from the Welsh Government legal services, environment and energy team. 

Prynhawn da, James Owen, deputy director for land management reform.

I'm Dorian Brunt from legal services, advising on rural affairs matters. 

Thank you, all, very much, and we're going to turn our attention directly to the Agriculture (Wales) Bill, which has been in front of another committee as well, but it's now within our remit today. Can I open, Minister, just with the very standard question we always ask? Are you satisfied as Minister that the Bill is within the Senedd's legislative competence?

Yes, I am. Agriculture is wholly devolved, and certainly, that's my assessment; I'm very satisfied that it is, and obviously the Llywydd is as well. 

Thank you very much. Now, one of the things this committee has been very interested in is the operation of common frameworks and the potential they have to make some of these issues across the UK work effectively, if they're working well. So, can I ask you what discussions you've had already with other UK administrations, not just at a UK level, but the Scotland and Northern Ireland administrations as well, regarding the provisions and the policy objectives of the Bill?

So, in relation to discussions around the Bill, obviously, I've just said that agriculture is wholly devolved. So, I think as soon as we left the European Union, it was very apparent that we would all have our own agricultural policies and legislation. So, we did discuss it at our inter-ministerial groups, and we still actually discussed it the last time—was it at the Royal Welsh Show—I forget which country, I think it was me. 

Yes, it was us.

We discussed our policy at the Royal Welsh Show whereas the other countries had brought their policies forward as well. So, there's been a significant number of discussions, not permissions sought or anything like that, but the fact that we were all having the opportunity to do a bespoke agricultural policy for the first time for many decades. I think we were all very interested in what we were each doing. 

You mentioned common frameworks. Obviously, that's been a huge part of the inter-governmental work since we left the European Union, and all Ministers obviously have signed off all the common frameworks. 

Okay, that's good to hear. James, are you okay? I can see you were looking quizzical there—

No, I'm fine—I'll save it. 

Okay. That's brilliant. Mike, we'll come to you, please, to take us on to another area of questioning. 

Diolch, Cadeirydd. The first question is—and all these questions are on human rights—what account have you taken of human rights in preparing the Bill, and what assessments have been undertaken in relation to the human rights impacts of the Bill?

Account has been taken of convention rights issues in preparing the Bill, and I'm very satisfied that where provisions of the Bill have engaged with convention rights, any interference with those rights has pursued a legitimate aim. They're very necessary and they're very proportionate.

Thank you. Have you taken specific steps to limit the interference with the human rights of those affected by the Bill?

I suppose one example in relation to specific human rights would be the safeguarding around powers of duty. So, if there are any powers of entry into a private dwelling, for instance, that that would require a warrant from a Justice of the Peace. 

Thank you very much. Apart from provisions relating to powers of entry, are they compliant with human rights requirements right the way across? 

Yes, absolutely. We've published a full integrated impact assessment, and that does include our assessment of the impact of the Bill on human rights. 

That's your justice impact assessment, so can you explain if the conclusion of that assessment has resulted in changes of approach in relation to the Bill?

Sorry, could you repeat that, Mike?

I assume it was the justice impact assessment in relation to the Bill. Can you explain if the conclusion of that assessment has resulted in a change of approach in relation to the Bill? 

So, for the two justice impact assessments undertaken with regard to the snares and glue traps, and also the forestry, we concluded, along with the Ministry of Justice, who we did engage with, that the Bill will have nil or minimum impact to the justice system. 

Thank you. 

Thank you for that. Before we move on to another area of questioning with James, can I ask: are there any fine-edged judgments here around your human rights analysis, because it's always effectively a balance between the different human rights of different individuals? Did either the Minister or any of your officials think there was a difficult decision to be made? 

I'll go over to Dorian, I think. 

I would support the Minister in what she said, in that we took full account of human rights, and in particular the test in section 108A of the Government of Wales Act 2006, which requires Senedd legislation to be compatible with convention rights. And so, we've looked at a range of issues in the Bill. As the Minister pointed out, powers of entry, we've taken a particular line with that by inserting an additional safeguard regarding Justice of the Peace warrants. Also, in relation, for example, to section 11 on enforceability, regulations to be made regarding powers of entry could contain rights of appeal, and also those regulations follow the affirmative procedure. So, there are a number of layers of safeguards in the Bill, and we are satisfied as a result that it's fully compliant. 

That's really helpful. Thank you very much. Thank you, Minister, and thanks, Mike. James, over to you. 

Diolch yn fawr iawn, Cadeirydd. Good morning, Minister. 

Good morning.

I've got some questions on key definitions. In the drafting of the Bill, did you consider including an express definition of sustainable land management on the face of the Bill, because does that lack of a definition for this purpose leave it open to interpretation, and do you think it makes the legislation less precise?

No, not at all. No, not at all do I think the Bill is less precise. The Welsh Government defined 'sustainable land management' within the context of this Bill through four SLM objectives in section 1. What this Bill is about is made-in-Wales agricultural policy, and the SLM objectives take account of the specific policy and the specific legislative objectives that we have, going forward. And obviously, we've got very specific legislation that we have to incorporate, and that's the Well-being of Future Generations (Wales) Act 2015, and, of course, the Environment (Wales) Act 2016 as well.

As you know, we've done several consultations, and we've had those three consultation exercises and also the White Paper. And one of the things that we took into account was the definition of SLM from the United Nations definition of SLM, so we've incorporated that, and we've developed the objectives around that. I think presenting the SLM objectives in the way that we have gives us a very clear framework. This legislation is going to be here for several decades, and I think it's important that we have an agricultural policy that's fit for purpose here in Wales. And I think that's absolutely what this Bill does. 

Okay. Moving on then, you say that this piece of legislation is going to be here for a long time. So, why is it appropriate for the Welsh Ministers to amend section 49—the meaning of 'agriculture' and related references—sorry, section 48 that was, and section 49—the meaning of 'ancillary activities'—by subordinate legislation? Does this provide a mechanism then for any future Welsh Governments to fundamentally change the nature of this Bill without it going through any proper Senedd scrutiny?

So, the short answer to your question is 'No'. Obviously, there'll be affirmative procedures, so it'll have to have significant scrutiny by the Senedd. I think what's important to note here is that, unlike the UK Government's Agriculture Act 2020, the Bill's definition that we have here builds on the last significant definition that was used in agricultural legislation and that goes back to 1947. So, that reflects farming practices that have evolved more recently, and I think it's about futureproofing as well, because obviously farming practices are going to evolve as we go forward. So, we did consult with all policy areas within the confines of the Bill, to ensure that all provisions in the Bill operate in the way that captures that range of innovative practices that we have here in Wales and that will obviously come in the future.

So, if those areas are amended, how are you going to make sure that the Senedd is able to scrutinise any future changes to legislation? Because it's very important that we do have the democratic oversight of legislation and obviously, the look-back that we've talked about before, haven't we, Chair, to make sure that everything's working properly. So, if things are amended, how do you intend the Senedd to actually look at that to make sure that it's right?

We'll use the affirmative procedure.

You would use the affirmative procedure for that. That's fine. Okay, I'm going to just talk a bit—

Just before you continue—and I'm genuinely not trying to ask a trick question here, but this committee tends to look at legal clarity and so on, and definitions become very important. I'm aware that I was on the committee the other day that you were in front of as well, so I'm not trying to re-rehearse that, but could I ask you: what, then, is sustainable land management?

The definition that we've used?

No. What is it?

What is it?

So, it's referred to within the Bill and, of course, it's also within your wider policy agenda, so somebody who looks into this Bill, or the proceedings of this committee, and says, 'So, Minister'—or, a lawyer—'what is sustainable land management?' What is it?

So, it's the four objectives that we've outlined in this Bill. So it's food, it's your ecosystems, it's the social, cultural—and I've lost one—climate.

Climate, yes.

Yes. Okay. How do you respond to those various outside organisations that say, 'Actually, you've got some really well-worked definitions that already exist out there'? Some of them are very contemporary. Wouldn't it be just simpler, for clarity for the people interpreting legislation, to say, 'Use those'? How do you respond to that? James. Sorry, Minister.

Yes. I'll pass to James.

Yes. It may be useful. So, of course we followed the discussions from stakeholders in the evidence sessions that the Economy, Trade, and Rural Affairs Committee took, and actually, from my perspective, from a policy perspective, it was really interesting to see that, actually, different stakeholders were citing different definitions. So, whether that be the UN definition that we used as a starting point for our legislation here—and we've consulted on a number of times—or the World Bank definition or definitions relating to agroecology and other things like that. What I think we've tried to do in our policy development is translate—starting with the UN definition, we tried to translate that into something that is meaningful, to provide support and future powers for the Minister to support the sector in the future. And I think that's where we, during the drafting process of the Bill, settled on defining it, effectively, as those four objectives around supporting farmers for sustainable production of food, action to mitigate and adapt to climate change, respond to the nature emergency. And also, I think really importantly, which perhaps doesn't feature so much in the UN definition, for example, is the social and cultural aspects of sustainable land management, as we see it, particularly around the Welsh language.

Okay. Thank you very much. Sorry, James, for interrupting.

No, no, it's absolutely fine. I think it was very important you made that point, Chair. The Bill does contain a wide range of delegated powers to Welsh Government Ministers. Given that the Bill has been in the pipeline for a long period of time, why is it necessary to have so many regulation-making powers included?

So, I go back to what I was saying before about making sure that we futureproof it; there's the flexibility in the future as well. But what the Bill has been developed to do is to support the agricultural sector now and in the future. So, I think I am satisfied, on balance, with the Bill and the use of the regulation powers that you've just referred to. It's not overly prescriptive, but there is that ability to be able to adapt or react to any future changes that will come, I'm sure, in the agricultural sector in the next couple of decades. I don't think that, as I said before, it impairs Senedd scrutiny in any way, because we will have the affirmative procedure, so there will be that Senedd scrutiny.

Okay. I'm going over it again about Senedd scrutiny being slightly impaired, because of the lack of significant detail on the face of the Bill. Do you think it would've been better, from the outset, to see the full picture of what was going to be done?

So, as you know, at the moment, we are co-designing the sustainable farming scheme. There will be a significant amount of detail in that scheme, and we're—. What's the date today? Is it the twenty-first?

It is.

It is, so today it closes, yes. It closes today. That's crept up on me. And we extended it. So, obviously, we've come to—. Today we will finish the co-design part, the engagement, and then we will go through now to bring the scheme forward, out to consultation again. So, there will be a huge amount of detail in the scheme as well.

Okay. You also talked a lot about the affirmative procedure. There are parts in the Bill that are part of the negative procedure—you know, the subordinate legislation in sections 15, 16, 17, 18, 22 and 46. It does allow Welsh Ministers to make regulations using that negative resolution procedure, including the power to modify retained direct EU legislation. Why is it appropriate for these powers to follow the negative procedure, and do you anticipate that there could be any risks from using that procedure to modify?

They're largely technical and procedural, so that's why we think that the negative procedure is correct there. They'll only be used, where necessary, to make changes to current detailed scheme rules that are currently contained in retained EU law.

Okay, because section 15(1) does enable Welsh Ministers to alter or modify the basic payment scheme. That's a very, very broad power, so why is there so little information about how the power will be exercised and what regulations could be used for, because that could fundamentally change an awful lot of the agriculture Bill?

I've announced my intention to continue with the basic scheme, as you know, until 2023, because obviously we need to provide support to our farmers as we work together to transition to the sustainable farming scheme. I've made it very clear that we won't transition to that scheme until that scheme is absolutely ready. You've just heard what I said about the sustainable farming scheme, so we're a little way out yet.

We've gathered a lot of evidence through the co-design scheme, I think it's fair to say. That's going to feed into the wider evidence base that we have, alongside other evidence work streams, and I mentioned earlier that we'll be consulting next year on that.

Okay. I might come back to that, Chair, if that's all right later, but I'm finished for now. Thank you.

Yes, that's great. Thanks. I'm going to pass to Mabon in a moment, but just to push you a tiny bit further on the areas that James has been doing. I guess the concern that we have when we look at a Bill like this that's been in fruition for such a long time is that, when you take quite a broad range of regulation-making powers for the future, for us as the constitution and legislation committee, it doesn't afford the same level of scrutiny to the Senedd. It simply doesn't. So, we always look for the balance to be struck with getting as much detail as we can that is open to full scrutiny on the face of a Bill, or some other way of bringing it forward so that the Senedd can get its teeth into it. So, when we talk about some of the things James was mentioning, including the power to affect the basic payment—. Now, I get what you're saying, Minister, that you're doing technical adjustments to the basic payment scheme. However, the basic payment scheme is fundamental in where we're transitioning from and to. So, it's more than technical; it's changing, significantly, the livelihoods of individuals. So, do you have any sympathy here with our call that we want to see less far-ranging futureproofing regulations, and we'd prefer to see more on the Bill?

I do have sympathy, and I hear what you say about balance, and for me it's absolutely about being satisfied about the balance. Now, whether my satisfaction is the same as your satisfaction, of course, yes, I do have sympathy, but it is a significant balancing act, I think. I don't know if James wants to say anything else.

Yes. I think in publishing the scheme proposals, it set out a really clear signal of intent to start the process of phasing out the basic payment scheme in Wales at the same time as introducing the sustainable farming scheme over an extended period of time. So, in that publication we talked about a multi-year transition period that would take us up towards the end of the decade, so we'd be working with the new powers in the Bill to provide support for farmers through the sustainable farming scheme and using the existing powers, essentially, to continue running the basic payment scheme. I think the other really important thing to say is that the Minister has always been clear that we'll consult on proposals to transition from one to the other. So, whilst there's a clear intent to phase out the one over the period of this decade, essentially, it's really important that the Minister will consult openly around the proposals for moving from BPS to SFS.

Okay. Okay, thanks. Mabon, over to you.

So, predominantly it is a framework Bill and, as you say, it's been a long time in being brought forward. So, that's why it's necessary not to have everything on the face of the Bill and to have those regulation-making powers in the Bill, and striking the balance that I suppose I've just been talking about in relation to the Chair. I don't know if there's anything else—.

Yes, maybe just to add that to respond to development is the other reason. So, framing sustainable land management around the four objectives enables Welsh Ministers, then, to provide support to the sector for things that we perhaps can't predict now. And I think in trying to develop a Bill that is futureproofed for the next generation, it's important to have some flexibility to respond to events. So, for example, events of the last couple of years around the pandemic, or whether it be the current cost pressures that the agricultural industry are facing, just ensuring that Welsh Ministers have the flexibility in the powers provided by that framework to support the sector in different ways in response to that event. So, we felt that it was important to bring a level of flexibility in. 

'Places a duty on the Welsh Ministers to exercise certain functions in the way they consider best contributes to achieving the SLM objectives, so far as consistent with the proper exercise of the function.'

No, I don't think it does, and I think one of the things that we've worked very hard on with the sustainable land management objectives is making sure that everything's complementary. There's no hierarchy with those objectives. I think it was really important to make that point, that there is no hierarchy and they're complementary. And no, I don't think it does give the Minister too many powers.

And just, I think importantly, to add there, the duty is for the Minister to consider all of those objectives and consider which one best contributes to delivering. So, you can't, for example, ignore one of the objectives on the face of the Bill in making that assessment, you have to consider all four as part of that duty.

So, one of the questions—. I'm probably going too much into policy now from this committee's point of view, but one of the things we were saying is, if you had a peat bog, for instance, and that ticked off one of the objectives in relation to ecosystem but it could have a negative impact on another objective, it would be about getting that balance.

Shall I just come back on that, sorry?

So, what we will do is we will publish targets and we will publish indicators to make sure that it's very open and transparent. I think that's fair to say. 

Absolutely, and that's a requirement on the Bill, for those targets and indicators to be published. 

So, providing a power to make the regulations enables consultation and scrutiny to take place on the relevant provisions as and when they're required. So, before any enforcement provisions are made, they will be subject to the affirmative procedure again, so there'll be full Senedd scrutiny. And, as these areas develop, it might be necessary to make different enforcement provisions for different matters, so, again, the regulation-making powers provide flexibility for that to happen.

I don't, but I will take some legal advice here.

I do support what the Minister's previously said. So, there are four sustainable land management objectives, there's no hierarchy, and the way the system is meant to work, as you say, you've referred to section 2, which says that the Welsh Ministers must exercise relevant functions in the way they consider best contributes to achieving SLM, so those functions are listed: ones in the Act and then ones about the regulation and support for agriculture. So, when the Welsh Ministers come to apply that SLM duty, exercising the functions, they must consider all the objectives, and as the Minister says, there needs to be a process of setting sustainable land management indicators and targets, there's a full consultation process in relation to that, and that will lay a basis for when Welsh Ministers exercise those functions in accordance with section 2. And if there are issues that people may have with the exercise of those functions, well, they can refer to all of the information that we've put out there in the public domain in terms of indicators, targets and the objectives, and they could challenge the Welsh Ministers on that basis. So, it's not a complete free-for-all, and they're only functions exercisable by the Welsh Ministers that are subject to the SLM duty as well. That's what section 2 is about: it's Welsh Ministers' functions only. So, we would say, as we've said previously, that it's not a complete free-for-all; it's not unregulated. There will be a lot of measurements by which the public can challenge and scrutinise the Welsh Ministers when they're exercising their duty under section 2.

James, you'd like to come in on this, if that's okay, Mabon.

Yes, it is a point, and I hear what you're saying about the public can challenge, but where is the duty to consult within the Bill? This Minister has been very clear that she wants to consult about changes, and that's fine, but a future Minister might come in and just say, 'Well, I don't want to consult. I just want to change the regulation with the powers that I have', with no consultation with the industry whatsoever. So, do you think there could be something put in the Bill where there is a duty to consult the public and industry bodies on this?

The targets and the indicators will be part of that process going forward, so I don't think there's any necessity to have it in the Bill.

There are specific requirements that the Welsh Ministers must prepare the indicators and targets, and there's a lot of detail there on what they must do and what they must publish, and there will be engagement with the public as part of that process.

And then, as part of that process, it's not just so simple as that; the Welsh Ministers must also have regard to national indicators in the Well-being of Future Generations (Wales) Act 2015, the 'State of Natural Resources Report', and the natural resources policy published under the Environment (Wales) Act 2016, so there are lots of checks and balances that will have an impact on what the Welsh Ministers can do and how they undertake their SLM decision making.

Yes, because I do hark back to section 15, which—[Inaudible.]—around basic payment. That is fundamental to sustainable land management and whatever objectives are going to be in the agriculture Bill, and if Ministers can change that without consultation, it could create a wedge between the industry, the people who are actually accessing basic payments, and the Government. So, I'm trying to be helpful, by saying, 'Wouldn't it be better to put something with a duty to consult on those things?' Because then you'll feel like you're taking people with you, rather than things being done to them, and I think sometimes it's a better way of making legislation and changes, rather than the sledgehammer to crack a nut.

Shall we—while you—[Interruption.]

I don't think we can say any more, really, apart from Dorian's answer.

Have a think about it.

While you meditate on that for a moment, Mabon, let's come back to you.

I think that any legislation is quite difficult to understand, isn't it? We've tried to make it as simple as possible. Through the consultations, it has changed a lot. So, from that first consultation back in 2018 to where we are now, I hope that people, such as your father-in-law, who I'm sure put into those consultations, would see that change and that it was clear to see. Obviously, the level of detail that we've already published around the outline of the sustainable farming scheme—. I think you have to see the two things together. Certainly, I've been told that was very clear. I think we got it out there before the Royal Welsh Show for the specific reason of being able to engage with farmers predominantly, but other members of the public as well. Any legislation's quite hard for the lay person, I would say, and even for myself—it is hard to really drill down, isn't it, unless you're a lawyer. But I do think the scheme, particularly, has laid things in a very clear manner for farmers.

I think what we tried to do with the scheme was to bring the legislation to life for the farmer, in essence, by making the connection between farming management practice, so the actions that a farmer could undertake and that the Government would want to support them for in the future, and the delivery of outcomes that correlate to the purposes of support that we put in the Bill. So, we've made a direct link, if you like, between the very specific farm action we'd want to support the farmer to undertake and why we would want them to undertake it to deliver those outcomes. I think, in publishing the scheme, we've tried to bring the legislation to life for the farmer themselves.

So, if you look at the tiers in the scheme—the three tiers—and then look at the four objectives in the Bill, I think, for me, it is very clear how we expect those two to marry up.

As with data sharing or the carcass classification, for instance, the marketing standards again provide a framework for a marketing standards regime that, again, will allow Welsh Ministers to make provisions within the scope of those powers that can be consulted upon and will be subject to the affirmative procedure. I think it's fair to say that the requirements for specific marketing standards will change over time, so, therefore, again, to have that flexibility around making regulations, I think, will be necessary, rather than placing provisions on the face of the Bill. It allows for that bit of futureproofing that I referred to before, and also to keep pace with developments, because it is a sector that does develop quickly.

Regulation-making powers mirror the powers that are available under the EU regulations now, so, again, you've got the ability to add or take away from the specific requirements. Currently, we don't have any specific plans to amend agricultural marketing standards legislation using these powers, but, as I say, we do believe that it's good to have them there for the future.

Maybe just to add this is one of the areas where we took time-limited powers though the UK Agriculture Act in 2020, so it's an area of devolved competence, but, because of the nature of the Act, it was important for Welsh Ministers to have some continuity in case things changed across the UK. So, these are one of the, if you like, sunset provisions that we've taken from the Act, and so, in essence here, we're ensuring, through putting these provisions in the agriculture Bill, in the Bill before you, that Ministers have those continuity powers even though, at this stage, there's no policy intention to vary marketing standards.

That's right. So, certain provisions in Part 4, which relate to forestry, come in the day after we get Royal Assent, then there are some provisions around sustainable land management, Welsh Ministers to provide support, powers to modify legislation relating to financial and other support, agricultural tenancies and wildlife, which come into force two months from the day after Royal Assent.

No, I think that will be—. We will make sure everybody's got the correct information and guidance that's needed, and it will be very clear. I'm trying to think of other legislation where I've had different dates. No, I don't think it causes confusion.

So, what is your—just to follow up, Mabon—in-principle approach to whether these provisions should actually come in front of the Senedd, bearing in mind there are different timescales of when they will commence?

Dorian may want to come in here, but I think what we've tried to do is articulate when we think the various provisions will commence—so, as the Minister mentioned, the forestry provisions the day after the Bill receives assent, and then some of the key powers around SLM and the objectives two months after. I think the other provisions in the Act, such as collection and sharing of data, the proposals come in by way of a separate commencement Order. Some of the policy complexities, I think, in terms of drafting the Bill, meant that we didn't feel that they should be automatically commenced, but to be commenced by Order. But no real difference in timing; it was just the difference of approach to commencement. 

There's such a myriad of areas of policy that you're currently working on, some of which will be brought in at slightly different times. Would it be your intent that this comes in front of the Senedd—that it isn't simply a flicked switch with the regulation and the Minister commences it because we have a commencement date, we have whatever? Would it be your intention, on significant parts of this, that it is placed in front of the Senedd?

In terms of regulation-making powers?

If they're affirmative procedures, yes.

Yes, particularly for the scheme, I think. The conditions of the scheme, I think, would be that—. It may be helpful for the committee just to outline broadly the timetable that we're working to. Obviously, subject to passage of the Bill, the Minister's proposed to consult on the final sustainable farming scheme that is currently going through co-design at the moment, in 2023, and, alongside that, to publish our economic analysis of the scheme, with a view to then making a decision on bringing the scheme into effect from 2025. So, there's quite a lead-in time, if you like, to the primary purpose, if you like, of some of this legislation, which is to reform agricultural support, and a very clearly articulated process about how we get from Senedd scrutiny now of the Bill to introducing a scheme in 2025.

Okay. That's helpful. Thank you. Sorry, Mabon.

So, we did consider it, I think it's fair to say, but we decided on balance the Bill already contains the relevant powers to modify legislation that relates to CAP. And, obviously, as James has just set out very clearly, we'll exercise those powers when the sustainable farming scheme is ready, which we hope will be by 2025. So, we don't have any plans to sunset either the BPS or the CAP continuation powers at this stage. 

Thank you, Mabon—brilliant. Mike, we'll come to you to take us on to a very different area. 

Diolch, Cadeirydd. The first question I've got is: section 43 amends section 11(1) of the Wildlife and Countryside Act 1981 to make it an offence to use certain devices in order to kill or take certain animals, or to use those devices where it is likely that they will catch certain animals or cause injury to them. A person guilty of an offence is liable upon summary conviction to up to six months' imprisonment or an unlimited fine. Is this proposed penalty proportionate? Do you foresee risks with this approach, and why haven't you brought in that there'll be a minimum fine for the first offence, and then multipliers in terms of fines for future offences, which you use quite regularly for people who engage in fly tipping, for example? They get a fine first time, and then multiply it by two every time they do it, and after it's been done several times, the only thing the court can do is send them to jail. Why didn't you consider that?

So, as you said, Mike, the Bill amends the Wildlife and Countryside Act 1981, and that bans the use of snares and glue traps. As such, I think the penalties are in line and proportionate with the other offences that are in that Act.

The Bill prohibits the use of snares, glue traps and other cable restraints. Why haven't you extended that to the possession of snares et cetera? Because if you're possessing them, why would you possess them apart from intending to use them? Shouldn't that be treated exactly the same way as using them?

We did, again, look at that, and I know other countries have also looked at that, and I've had discussions with other Ministers. One of the things is—and you know yourself, Mike—it's very easy to make a snare, so would we then have to ban the materials that would be used to make one, for instance? That would be incredibly difficult to do. I've seen some that have been handmade with just a piece of wire, but they can still cause a great deal of pain and suffering to an animal. Obviously, we couldn't ban wire, because that's used for lots of other reasons as well, and glue traps the same. They can be made with a very simple piece of card and some non-drying adhesive. So, I think we have to be very careful about that, and that's the reason why we didn't do it in the way that you've just suggested. 

Well, we ban guns, don't we? And somebody with a printer can actually print a gun using information they can get off the internet, yet we still ban guns, even though they can be home made. Why is this different?

I don't think I can add any more than what I said about materials. Obviously, the materials that you would use to make a snare, for instance, can be used for other things. I mentioned wire, for instance—so, that could be used not just to make a snare. So, I think it would be very hard to ban those materials.

I wasn't asking you to ban the materials, I was asking you to ban things that can be made as snares. Now, I think it ought to be done; you don't think it ought to be done. All I'm asking is why you don't think that possession of a snare should not be treated exactly the same as using it. 

I think I'll bring Bill in on this one.

I think one of the reasons behind the decision was the difficulties that there would be with enforcing a ban on possession. Clearly, someone who's got pre-made snares, that would be quite straightforward, but if someone was stopped with a reel of wire and a pair of pliers, it may well seem likely that they are about to produce some snares to use for themselves, but it would be very, very difficult to prove that and to enforce it. So, I think the decision was taken on that basis not to include it. 

Well, why can't you bring it in for pre-made snares, then? It's not as far as I would like to go, but why can't you bring it in for pre-made snares? You said you could do that. Why don't you want to?

Again, I think it's a difficulty with—. A pre-made snare can be dismantled and made to look like something else quite straightforwardly as well. So, I think it would be putting quite a burden on those enforcing authorities to have to deal with that sort of thing. 

I think if you look, Mike, at what we did with electric shock collars, we've taken that approach. We banned them, didn't we? And we made it an offence to even attach one to a dog or a cat, and I think that's the sort of parallel we can use in relation to animal welfare legislation.

Obviously, I don't agree with you, but my view is not of any importance. What I would ask, however, is: how are you going to catch people who put down snares? Because snares, by their very definition, are placed there and then left for some time when animals undergo substantial suffering. How are you going to catch the people unless you catch them laying the snare? If possession of a snare is not an offence, they're walking to put the snare down, they don't put it down, therefore they haven't committed an offence. 

We're already doing that, if you think about it, with our wildlife crime officers. We've got one in each police force now in Wales. They'll remain the primary enforcers of snare-related offences. Already they investigate incidents where snares are used illegally. But certainly, the conversations I've had with them and with the commissioner—the wildlife crime commissioner that we support—is that there can be substantial challenges in being able to prove those offences. So, what they think is that a clear ban on snares and glue traps will really help them with enforcement. If you have that clarification of the law, it's more likely to have successful enforcement. 

The point is that if somebody is walking up to put a snare down or put a glue trap down, and they see somebody who looks like a bailiff or somebody who looks like an enforcer coming along, and they then put it back in their pocket or in their bag and don't put it down, they haven't committed any offence, have they, under the proposals? 

It's like any legislation; you have to assume that the majority of people will adhere to the law. We have to start on that basis, don't we? From the discussions I've had with them, they will continue to do it, but things will be much clearer for them, and they think then enforcement will be easier for them, too. 

Diolch, Cadeirydd. 

Thank you, Mike. James, you wanted to come in on this as well. 

I wanted to make a quick point. I don't think guns are banned as long as you have a correct licence and appropriate person to use them. I just wanted to put that on the record just in case someone looks back and says we're banning guns in Wales.

One thing I did want to ask, Minister, because there are probably people out there who would like to know this: if there was a rise in a certain type of species that were, for example, killing curlews or reducing curlew population numbers, or a rise in vermin or rats and different things, and it was seen that perhaps the only way to address that could be with the use of one of these devices—either a snare or a glue trap—is there going to be any derogation within the Bill to say that under exceptional circumstances, where evidence is paramount that it is needed to use a glue trap to catch mice or rats, for example, that could potentially be used in those exceptional circumstances, rather than just the outright ban? Because I know there has been concern raised around certain use of glue traps, how it's the only way to control certain types of vermin, and with an outright ban, it could make that situation a lot worse. So, I just want to know if there's anything you're looking at with derogations.

We rehearsed this, as the Chair knows, last week—

I didn't see the committee—

It was good; I recommend it. 

We talked about this in quite a lot of detail, didn't we, last Thursday. Certainly, particularly in relation to curlews, some of the evidence that I saw was that the biggest threat to curlews was actually livestock—sheep, mainly, destroying the nests. So, I hear what you're saying, but we've had lots of—. The decision to ban snares and glue traps—. When I was Minister with responsibility for environment, we had a lot of consultation, and that's been ongoing under Julie James as well. But certainly, we haven't looked at that at all. We've not really considered a licensing scheme, I don't think, have we? 

No. I think for glue traps specifically, in the explanatory memorandum, one of the options we did consider was introducing a licensing scheme around glue traps, but we felt that a total ban was the preferred option that we would take forward through the Bill, again, partly because of the feedback from the sector. I think Rentokil is the one that always comes to mind. They provide pest control services on a number of public health grounds—schools, et cetera—at the moment, and they've already taken a policy decision not to use glue traps because of the suffering they cause. So, we felt, on balance, on taking the evidence, that a full, complete ban on their use was the most appropriate action. 

I think all 22 local authorities—. Was it all of them? 

I think you agreed to write to the Environment, Trade and Rural Affairs Committee about the local authorities' engagement, particularly on the consultation.

No, local health boards. It was local health boards we've agreed to write to the ETRA Committee about. But in relation to the local authorities, I don't think any local authority now uses them at all, and hasn't for some significant time. Because the question that was asked last week was whether we were concerned about public buildings—our hospitals, our schools, et cetera—but they're not used at the moment.

Okay. That's fine. I just wanted you to clarify that, because I do think there are some people who probably would like to know whether it will be considered as an amendment, potentially, to the Bill. Thank you.

Thank you very much. Mabon.

In relation to glue traps, we've done some significant consultation. I just mentioned the local authorities, because they're the ones that do the most pest control for us here. James mentioned Rentokil that we'd had discussions with. What we wanted to do was understand the scale of use before we brought this in. As I said, I think all 22 local authorities said that they no longer use glue traps. There were other stakeholders as well. I know officials—I don't know if it was James—did meet with the British Pest Control Association, and they were very good in providing case studies, for instance, about what they used. That's in relation to glue traps. As I say, on snares, it's been a very, very long road in consultation. We've consulted—I think it started in about 2014, and then I'm sure I consulted about three times, when I was in that portfolio. Obviously it was a Labour Party manifesto commitment, it went into the programme for government, and I think there was further consultation on snares. I know officials again met with organisations such as the British Association for Shooting and Conservation, for instance, to hear their views too.

Thank you, Mabon. Thank you, Minister. We're going to move away from this for a moment, certainly from issues of glue traps, anyway. James, take us on to the UK internal market.

It's on snares, this one is, Minister. With the United Kingdom Internal Market Act 2020, how do you think that's going to affect the provision for banning snares in Wales, with that in place?

The Counsel General has made it very clear that the UK Internal Market Act cannot and does not cut across Senedd competence to legislate in relation to non-reserved matters, which obviously this is, so I don't think it will have any impact.

So, you're quite confident that putting it in won't end up in a legal challenge.

'Quite confident'. I've said that before and—

We can't predict where a challenge would come from, but we're confident that we could defend any challenge.

Yes. That's the better way of saying it.

I think it's important for our committee to get underneath these things; we don't want to see things going into Bills that are going to potentially be legally challenged in the High Court and then overturned and then have to change legislation after because it wasn't—. It may be within competence overall, but the UK Internal Market Act might affect legislative competence.

We don't think that Act does. It takes one person to challenge. One person, that's all. But I think Dorian put it the best way: we feel that we could defend it.

And through your consultation period on the banning of snares, as that Act came in, is there something that any organisations or individuals have raised with either yourself or the Counsel General, that they potentially could be taking this to High Court because of that Bill?

Not with us.

Not to our knowledge.

That's fine.

And not to my knowledge with the Counsel General.

That's fine. Good. I'll move away from snares now and move on to carcass classification, if that's okay. Do you think the internal market Act will have any issue on carcass classification as well?

No. We'll be able to make our own standards in relation to that. 

Good. And did the provision of the UK Subsidy Control Act 2022 impact upon how the Bill has been drafted, and how will it impact upon any provision made during secondary legislation?

Obviously, what this Bill does is create a framework for delivery; it doesn't directly create subsidies. So, no, I don't think this Bill will have any impact either.

Lovely. That was quite quick and over and done with. Thank you.

Thank you. We're not going to get through all the questions; I know we'll have to write to you in advance, unless we can keep you for another half an hour or so. But let's see how far we can get. From much of what you've scoped out, it seems clear to us that with all the policy areas in it—. Is there a fair expectation that there's going to be additional primary legislation required in the near future in the agricultural field?

Officials are currently considering that, because as you know the White Paper had more things in it. That was much more ambitious, I think it's fair to say, than what we've been able to put in this Bill. So, currently, officials are assessing if we will need further legislation.

Right, okay. So, there could well be an agriculture Bill mark 2. Clearly, legislative time within this Senedd—. Within this Senedd or a subsequent Senedd?

Well, we're considering it.

Right, okay. Would this make provision for national minimum standards?

It could do.

Okay. We're definitely moving on. Would that, also like this one—. You've described this one as a framework Bill; would that also be a framework Bill, anticipating futureproofing, lots of regulations and so on?

I'll ask the official who is currently considering.

I'll just maybe focus on national minimum standards. I think really important there is that the proposal in the White Paper was to consolidate, effectively, existing EU and domestic law, so that it would make that law more accessible to Welsh farmers, so that they could be really clear about what the regulatory baseline was in Wales relating to that law. That specific proposal was essentially a consolidation and proportionality exercise coming out of the EU, rather than creating new legislation or changing the regulatory baseline. Because obviously that is already in domestic and EU law, it's right that we consider all the routes to enact the proposal around national minimum standards. That could be through primary legislation, but it could be through non-legislative means as well, and that's the work that the Minister alluded to in terms of considering the right route to introduce those national minimum standards.

Okay. Brilliant. Can I just ask, in the light of the fact that you've described this as a framework Bill, and from your approach to it it feels a little bit like that, is this a Bill, then, where if we do not have— If you were taking some of those regulations forward at subsequent dates and so on, so it wouldn't be that full scrutiny in the Senedd, although you've made real commitments here to go out for transparent scrutiny with stakeholders and so on, is this a Bill where you think that it would be worthwhile amendments being brought forward to probe you on some of these areas? Sorry—I know Ministers will say, 'Please don't bother around with amendments' or whatever, but some of the things that we've touched on today are ones that need to be explored to test those questions: 'Well, what are you intending to do?', 'Where is your policy developed in this area or this area or this areas?', 'When are the guidelines going to be coming out?' Is this a Bill that actually screams out, I'm asking you, 'We should probe this with amendments'?

As you said, most Ministers would say 'no'. It would be a matter for you, Chair, and for the committee.

Okay. That's leaving it open to us.

Maybe just to add, the Bill, necessarily I think, gives Welsh Ministers a range of powers. We talked about the UK Agriculture Act and the sunset provisions in that Act where through a consent motion Ministers took powers in that Act, and we are moving those powers out of UK legislation into Welsh domestic legislation, which I think is really important. I'm talking here about marketing standards and carcass classification et cetera. There isn't a policy intent behind, for example, changes to that at the moment, but if we don't legislate now, those powers will expire, so Welsh Ministers will no longer have the powers after that sunset provision elapses in the UK. So, I think on the one hand you've got those aspects of this Bill. The other aspect—if you like, the flagship—is the significant reform we're proposing through the framework of sustainable land management. Again, we have put out a significant amount of detail over the course of three consultations and two co-designs about how Ministers intend to use the powers taken through this Bill to change the nature of farming support in Wales.

If I can just add to that. When we had the sunset clause in the UK Agriculture Bill, at that time the most overriding concern was that we were able to continue to support our farmers. We knew we would have to bring that legislation forward here, the bespoke legislation, in order to pay our farmers—that's the crux of it. However, I think it's fair to say that obviously as time has progressed the sustainable land management and what we want to achieve from the scheme has come far more to the fore, if you look at the climate emergency, for instance. It's nearly six years now, isn't it? I appreciate that the UK Agriculture Act was 2020, but certainly, over the last three or four years, I think we've—. For me, that's just as important. 

Yes. Look, we've gone over time, Minister, and I know you'll have other things that you want to get on to, and my apologies to colleagues, because we wanted to touch on a range of other areas that we'll need to write to you on. But could I just ask you one final question? It's a very contemporary question. The matter of the Retained EU Law (Revocation and Reform) Bill: does this impact upon this Bill in any shape or form? Do you anticipate it will impact on this Bill in any shape or form?

Well, at the current time, we don't know what's in it, so it's very hard to give you a straight answer there, because it could change. Obviously, it's going through its journey through the House of Commons and the House of Lords. We had a very early discussion at our last inter-governmental group meeting two weeks ago, three weeks ago—very early. DEFRA are just starting to share some further information on that, so it's something they're obviously going to have to keep a very close eye on. But it could change. So, even if we made a decision now, it could change as it goes through its journey. 

So, at this very moment, we simply don't know whether the Retained EU Law (Revocation and Reform) Bill will impact on this Bill. 

Well, what we're having to do at the moment is consider our response to that. Obviously, it's a UK Bill. We're having to consider our response and, as I say, it could change, and it could change significantly. So, we're just keeping a very close eye and trying to get as much information—. I think it's fair to say that, in the beginning, we weren't getting much information, but it is starting to drip, drip through now. 

Yes. Okay, thank you. We'll keep a close eye on that, and we may need to follow up that and other issues in writing, if that's okay. But, with apologies to colleagues, because we couldn't cover everything, we'll go through this in private session and look at the areas that we might want to follow up on as well, and some of the ones we didn't get to. But, Minister, and your officials—. Oh, sorry.

Sorry, Chair. If I could just make one point. You mentioned the committee might be considering amendments. I just wanted to respond to something Mr Evans raised earlier about there being no statutory duty to consult in the Bill. Well, I knew it was in there, but I've found it as we've been talking. So, section 5(3) places a statutory duty on the Welsh Ministers to consult in relation to SLM indicators and targets. So, hopefully, that won't feature in your recommended amendments. 

Okay. Thank you very much. 

I should say as well—

I have a follow-up question—[Inaudible.]

Yes. So, interestingly, because section 5(3) is in front of me now—

Can I just say something for the record, Huw? There is a ban on hand guns and semi-automatics.

Sorry, Mike. 

There is a ban on hand guns and semi-automatic weapons.

Thanks, Mike. Thank you, Mike. 

'The Welsh Ministers must consult—

'(a) the Future Generations Commissioner for Wales, and

'(b) any other persons they consider appropriate.'

And that was purposely put, because obviously that's very much a catch-all. 

That's brilliant. Thank you very much indeed. Sorry we've run out of time. We'll send you a transcript as normal to check for accuracy; we'll follow up in writing as well. But thank you so much all of you for your time. 

Thank you. 

We really appreciate it. Thank you.

So, colleagues, can I suggest that we take a very short break now, just as a breather? We will recommence as soon as everybody's back in the room, but I suggest by, what are we now, 13:40 at the latest, but if we're back earlier we'll commence before. And Mabon, I know you have to go, but thank you very much for your attendance today. We really appreciate it. 

Diolch.

Diolch yn fawr.

Welcome back to this afternoon's session of the Legislation, Justice and Constitution Committee. We took a short break following our evidence session with the Minister, but we now move on to other business, but, just before we do, James, over to you, just to draw our attention to your record of interests.

Yes. Thanks, Chair. I would just retrospectively like to make you aware of my register of interests on the last agenda item. Thank you.

That's brilliant. Thank you very much, James.

Okay. So, we'll move on now to the next item on the agenda, which is item 3. We have instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, and under this we have, first of all, a made-negative resolution instrument, SL(6)277, the Feed Additives (Authorisations) (Wales) Regulations 2022, and we have a draft report as well. Are there any particular things we need to be aware of in relation to this?

There's one technical point and one merits point. We've received the Welsh Government's response, and we're content with that, so it's just to note.

That's great. So, Members, can I just ask: are you happy to agree the reporting points? We are. Thank you very much.

We'll go on to, then, item 3.2, an affirmative resolution instrument, SL(6)281, the Renting Homes (Wales) Act 2016 (Amendment of Schedule 12 and Consequential Amendment) Regulations 2022, and we have a draft report and a written statement of 10 November, and again, could I just ask our lawyers if we have anything to report on that? 

We raised one merits point asking about the human rights impact assessment undertaken by the Welsh Government, and, in response, Welsh Government confirms that one was carried out.

That's great. Thank you. Again, colleagues, are we happy to note that and agree the reporting points? We are. Thank you.

We'll move then on to item No. 4. Again, a regular part of our agenda: notifications and correspondence under the inter-institutional relations agreement, and, at 4.1, we have correspondence from the Counsel General and Minister for the Constitution stating he is giving consent for the Secretary of State to make the Producer Responsibility Obligations (Packaging Waste) (Amendment) (England and Wales) Regulations 2022. They were laid on 3 November, we are told, using powers in the Environment Act 2021. So, the consent will allow these regulations to roll forward the existing targets for 2023 until a new extended producer responsibility regime for packaging collectively agreed by Ministers across the UK comes into force in 2024. Are we happy to note that? We are.

Then, we go on to item 4.2. Under this agenda item, a written statement and correspondence from the First Minister in respect of the British-Irish Council summit on 10 and 11 November. Happy to note that? We are.

And then we have several papers to note. I'll go through these, and Members can shout at me, then, if they want to stop me in my tracks. So, we have, under item 5.1, correspondence from the Minister for Finance and Local Government responding to the Climate Change, Environment, and Infrastructure Committee's report on the legislative consent memoranda for the UK Infrastructure Bank Bill. Just to inform Members: we've not yet received a response from the Minister to our report on that.

Item 5.2, correspondence again from the Minister for Finance and Local Government, this time in respect of the committee's report, the Welsh Government's response to our committee's report, on the LCM on the Procurement Bill.

And item 5.3, a written statement by the Counsel General and Minister for the Constitution in respect of the Independent Commission on the Constitutional Future of Wales.

And then, item 5.4, correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd in respect of asking us to expedite scrutiny of the Marine, Fisheries and Aquaculture (Financial Assistance) Scheme (Wales) Regulations 2022. These regulations, as we read in the Minister's letter, were laid on 15 November. They need to be debated on 29 November so that, if approved, the scheme can be opened before the end of 2022. Can I suggest to colleagues that we write to the Minister to say, as we often do, that our committee and our officials here will do our best to meet this request? We're happy with that, so we'll do that. Okay.

In which case, item No. 6 brings us to our normal Standing Order 17.42, which asks Members if they're content to now go into private for the rest of the meeting. And we are, and we'll move into private session.