Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee

28/11/2022

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
Peredur Owen Griffiths MS

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

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

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

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

Cyfarfu’r pwyllgor drwy gynhadledd fideo.

Dechreuodd y cyfarfod am 13:31.

The committee met by video-conference.

The meeting began at 13:31. 

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

Croeso, bawb. Prynhawn da i chi i gyd.

Welcome, everyone. Good afternoon to you all.

Welcome, everybody, to this meeting of the Legislation, Justice and Constitution Committee. We are fully quorate today, with all our Members here as per normal. Just some housekeeping things: the sound operator will be operating the microphones through the meeting. We have Welsh and English spoken in these committee sessions. There's automatic translation available. If I do have a problem with connectivity and my Wi-Fi goes down, then Alun will step in as temporary Chair, so thank you for that, Alun. Just a word of welcome here as well for Peredur: great to have you with us, Peredur, on this committee. We do some real down-in-the dirt, interesting, detailed work here on legislation and constitution. I hope you'll enjoy it, and you're very welcome, your experience, bringing this to committee as well. So, we're being broadcast live on Senedd.tv. We will publish our proceedings as normal after the event. But, apart from the procedural adaptations for the virtual setting, all the other Standing Order requirements remain firmly in place.

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

So, we will go straight to our first substantive issue, noting that we have no apologies, and that's item No. 2. It's our standard item, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. And we have three items here, the first of which is a made negative resolution instrument, SL(6)285, the Child Minding and Day Care (Disqualification) (No. 2) (Wales) Regulations 2022. This sets out the categories of persons disqualified from registration in Wales as a childminder or provider of day care under Part 2 of the Children and Families (Wales) Measure 2010. These regulations revoke and replace SL(6)272, the Child Minding and Day Care (Disqualification)(Wales) Regulations 2022, and address technical points raised by the committee in its scrutiny of those regulations. So, I'm going to go over to our lawyers, but I don't think we have any reporting points for today on this.

No, no reporting points on this one.

That's brilliant. Okay, thank you very much. In which case, I think we'll be content—looking to colleagues—to agree with that draft report. No reporting points.

We'll go on to item 2.2. We have an affirmative resolution instrument, SL(6)283, the Non-Domestic Rating (Persons Required to Supply Information and Service of Notices) (Wales) Regulations 2022. So, this instrument specifies the descriptions of the types of business being carried out by a person in relation to a hereditament, and make provision as to how a billing authority may effect service of a notice on a person to whom paragraph 5(1D) of Schedule 9 to the Local Government Finance Act 1988 applies. Again, our lawyers have not identified any points for reporting, Kate. No. So, are we happy to agree that? We are. Good.

On to our final one under this item, item 2.3, SL(6)284, the Marine, Fisheries and Aquaculture (Financial Assistance) Scheme (Wales) Regulations 2022. We have a letter in the pack, of 23 November. This instrument sets out the basis on which Welsh Ministers may pay grants and make loans in respect of the activities listed in the Schedule to these regulations. They revoke and replace SL(6)260, the Marine, Fisheries and Aquaculture (Financial Assistance) Scheme (Wales) Regulations 2022, and they address the points raised by the committee in the scrutiny of those regulations. Again, no points to raise on this from our lawyers? No. Okay. In which case, I think we'll be happy to agree with that draft report.

13:35
3. Offerynnau sy’n cynnwys materion i gyflwyno adroddiad arnynt i’r Senedd o dan Reol Sefydlog 21.2 neu 21.3.
3. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3

It takes us on to item No. 3, instruments that do raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. With this, again, we have several items to look at. The first of which, item 3.1, is SL(6)279. It's a made negative resolution instrument, the Animal Health (Poultry Compartments and Animal Gatherings) (Fees) (Wales) (Amendment) Order 2022, which revokes provisions in the relevant Poultry Compartments (Fees) (Wales) Order 2010, providing for that to be added to fees charged under that Order. It also uplifts fees payable to the Welsh Ministers for services provided by the Animal and Plant Health Agency in relation to the Animal Gatherings (Fees) (Wales) Order 2018. Over to our lawyers, because they've identified one technical and two merits points on this.

Thank you, yes. So, the technical point notes an inconsistency between the Welsh and English language texts of article 3(2) of the Order. The first merits point just notes that the Order makes changes to fees payable in relation to statutory services delivered by the Animal and Plant Health Agency. And then the final merits point identifies that there are some issues with the explanatory memorandum that are likely to cause confusion to the reader, and so we've requested a Welsh Government response on the technical point and also on the second merits point, which is the one about the explanatory memorandum.

Thank you, Kate. Any comments from colleagues, or are we happy to note that? Happy to note that. Thank you. We agree with that. Thank you, Kate.

We'll go on to item 3.2, SL(6)280, the Renting Homes (Wales) Act 2016 (Saving and Transitional Provisions) Regulations 2022. We have a draft report there to look at in your pack. These regulations amend the Renting Homes (Wales) Act 2016 by making saving and transitional provisions in relation to particular processes relating to existing tenancies and licences that have been commenced on the date at which the 2016 Act comes into force, and also to certain entitlements existing for particular types of current tenancies that are preserved so that the parties to these existing tenancies are treated fairly when their tenancy undergoes conversion into an occupation contract, and also confirmation that certain provisions relating to temporary accommodation will not apply until 12 months after the coming into force of the 2016 Act. Now, Kate and our lawyers have identified quite a few technical and merits points here. Do you want to comment on those?

Yes. So, we've identified six technical and three merits points. In relation to the technical points, three of these relate to apparent defective drafting and three are matters that require further explanation from the Welsh Government. Of the three merits points, I'll just take you through the most significant of these, which is the first merits point in the draft report, which notes that terms defined by reference to the Rent Act 1977 are unclear, and so the draft report suggests that the reader would benefit from some additional clarity. So, by way of an example, the term 'restricted contract' is defined by reference to the Rent Act 1977, but there's no reference as to where in that Act the definition can be found. And that definition actually appears in a repealed provision of the 1977 Act, and although this has been saved, it could be confusing for the reader or quite difficult for them to locate. So, we've requested a Welsh Government response to all of the technical points and two of the merits points, including the one I've just summarised.

13:40

Kate, thank you very much indeed. That's really helpful. Any comments from colleagues? Alun, over to you.

Thanks very much, Huw, and thank you for that, Kate. That's a really important point, actually, isn't it, because one of the themes of the evidence we've received over the years has been around the accessibility of Welsh law, and the inability of professionals even—not just lay people, but professionals—to actually understand where Welsh law sits. If definitions are made with reference to a repealed section of previous law, then that makes all interpretation a lot more difficult than it needs to be. So, I think we need to place our response to this in the wider context of accessibility to law and understanding of law.

Thank you very much, Alun. With those comments, Kate, if those can be incorporated within the letter of any response that we do to this, with any report on observation, then I think we'll be happy, then, as a committee to agree to your reporting points there. Thank you, Alun.

So, we go on, then, to item 3.3 in the same section, SL(6)282, the School Teachers' Pay and Conditions (Wales) Order 2022 and, again, we have a draft report. This Order makes provision for the determination of the remuneration of schoolteachers in Wales, and other conditions of employment of schoolteachers in Wales relating to their professional duties and their working time. We have three merits points that our lawyers have identified. Kate, anything of interest in these?

Thank you. So, the first merits point notes that there are numerous errors in the explanatory memorandum, which may lead to confusion as to the effect of the Order, and so we've requested a Welsh Government response on that point.

The second merits point is just noting the retrospective effect of article 2 of the Order. Retrospective effect is expressly permitted by the enabling Act, and so the draft report is simply noting that the Order was not laid before the Senedd until 15 November, and it does not come into force until 7 December, which is more than three months after the changes in article 2 will have effect. And the explanatory memorandum explains that this was because of the tight timing of the pay process this year.

The final merits point notes the context of the Order, in particular that the 5 per cent uplift that it implements has not been accepted by relevant unions, and some of those unions are balloting their members in relation to potential industrial action.

That's great, bringing us right up to current issues there. Thank you very much, Kate. Colleagues, are we content with those reporting points? We are. Okay.

So, we'll go on to the final one in this section, which is a composite negative resolution instrument, SL(6)278. It's under item 3.4 here. Now, this is the Education (Student Loans) (Repayment) (Amendment) (No. 3) Regulations 2022. These regulations amend the Education (Student Loans) (Repayment) Regulations 2009 by making provision for a temporary reduction of the interest rate on specific undergraduate and postgraduate degree loans from 1 December 2022 to 28 February 2023, at which point the interest rate will revert back to the original rate. You've identified one technical point here for us, Kate.

Thank you, yes. The technical point notes that, as a composite instrument, the regulations have been made in English only, and the explanatory memorandum provides the standard explanation here that, because it's going to be subject to UK Parliamentary scrutiny, it was not considered reasonably practicable for the instrument to be made or laid bilingually.

That's great. Thank you, Kate. Are colleagues content with that? Yes, we are. Fantastic. Kate, thank you very much indeed for that.

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

We'll go on to item 4, then, which is instruments that raise issues to be reported to the Senedd that we've previously considered, again under Standing Order 21.2 or 21.3. So, there is one here we need to look at. It's item 4.1, SL(6)272, the Child Minding and Day Care (Disqualification) (Wales) Regulations 2022, and in the pack we've got a report, a Welsh Government response and an addendum to the Welsh Government response. Now, we looked at this instrument at our meeting on 7 November. We laid our report that day as well. So, I just draw your attention to the addendum to the Welsh Government response to the report, which has since been received. We considered the initial Welsh Government response at our meeting on 14 November. Any comments on this from our legal team?

13:45

Yes, thank you. Just to note that this is a very positive outcome. The committee's report suggested that Welsh Government should consider standardising the Welsh language translation for the term 'gross indecency', noting that several different translations have been used in legislation in the past. And this addendum confirms that the Welsh Government's translation service has considered the matter and concluded on an appropriate term, which is going to be added to the relevant terminology database. So, this should mean that any future Welsh language texts will use the term consistently, and that's obviously really important in terms of accessibility and clarity for users of Welsh language legislation. 

Thank you very much, Kate. Well, colleagues, that's a win; it's a palpable win, and we thank Welsh Government for their response on that as well and for working with us. It shows that attention to detail does definitely pay off. So, thank you very much, Kate, for that. 

5. Datganiadau Ysgrifenedig o dan Reol Sefydlog 30C
5. Written Statements under Standing Order 30C

If we're happy to note that, then, colleagues, we'll go on to item No. 5, which is written statements. Now, we have one item here to look at, under item 5.1: WS-30C(6)020, The Animals and Animal Health, Feed and Food, Plants and Plant Health (Amendment) Regulations 2022. Within your packs there you've got a written statement, a letter of 1 November 2022, and a commentary. So, the written statement notifies the Senedd that the Welsh Government has given consent for the UK Government to make The Animals and Animal Health, Feed and Food, Plants and Plant Health (Amendment) Regulations 2022. The statement notes that the regulations propose amendments to retained direct EU law relating to official controls on imports to Great Britain of animals and animal products, plant products including food, as well as rules on animal health and welfare, and rules on the marketing of planting and propagating material, following the UK's withdrawal from the EU. So, you can see, colleagues, that this is a policy-rich area, as I go through this. 

The statement revokes and replaces an earlier statement laid under Standing Order 30C in relation to the regulations, which the committee considered at our meeting on 7 November this year. We wrote to the Minister for rural affairs to clarify whether a provision within the regulations proposing an amendment to the Plant Varieties and Seeds Act 1964 required the laying of a statutory instrument consent memorandum—what we are now coming to be familiar with being called a SICM. Now, the Minister for rural affairs explains in her letter of 21 November, which is in your pack, that a SICM ought to have been laid and, indeed, has now been laid, and we will consider that SICM at our next meeting. We'll see a few of these so-called SICMs coming forward in future. If I could turn to our lawyers or team, first of all, for any comments you have in respect of this, because it's quite an interesting one. We can look at it again in private, subsequently, but, anything you want to mention now?

No comments from the legal advisers.

Okay. So, we may return to that in private subsequently, colleagues, but we're happy to note it now. 

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

We go on, then, to item No. 6, notifications and correspondence under the inter-institutional relations agreement, and we have a couple of items here. First of all, item 6.1, correspondence from the Deputy Minister for Mental Health and Well-being, telling us that she is giving consent for the UK Government to make the Food Supplement and Food for Specific Groups (Miscellaneous Amendments) Regulations 2022, and that the regulations will be laid on 14 December. The Deputy Minister states that she has given consent as it,

'ensures that there is a single legislative framework across the UK which promotes clarity and accessibility.'

If you're happy to note that for now, we can return to this in private as well. 

Item 6.2, we have correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd stating that she has given giving consent for the DEFRA Minister of State to make the Plant Health (Amendment) (EU Exit) Regulations 2022, and in the explanation, she states that she is giving consent to these regulations as, in quotes:

'provisions could not be made by Welsh Ministers in exercise of our own powers as the power to amend is consequential on an amendment being made by the Secretary of State.'

I'm reading that into the record because this is something, of course, that we as a committee have looked at ourselves quite a lot already, so we might want to return to that in private session.

Item 6.3, we have correspondence from the Minister for Finance and Local Government providing the committee with an overview of the discussions which took place at the Finance: Interministerial Standing Committee on 20 October.

Item 6.4, correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd in respect of the Organic Production (Amendment) (No.2) Regulations 2022. In the letter, the Minister states that she has consented to the making of the Organic Production (Amendment) (No.2) Regulations 2022, and notes that UK Government intends to make the regulations on 6 December, and they have been developed through the organics four nations working group. Again, we can defer any discussion on this to the private session, but it is quite interesting that there is an example here that the Minister is flagging with us of where the four nations working group in respect of this policy area is up and running, which is good to see. So, Members, if you're content with noting those.

13:50
7. Papurau i'w nodi
7. Papers to note

We've got some other papers to note as well under section 7. First of all, 7.1, we have correspondence from the Minister for Climate Change; the response to the committee's request for further information on inter-governmental working regarding the energy prices Bill.

We then have, under 7.2, a letter from the Minister for Finance and Local Government informing the Llywydd that should a further supplementary LCM be required for the procurement Bill, it will not be possible to lay this within the normal two-week Standing Order 29 deadline, and the Minister explains that the delay is as a result of preparing a single SLCM—supplementary LCM—to deal with two batches of amendments. The first batch was tabled on 15 November, the second batch is expected by 21 November. We're quite used, on these committees, to supplementary LCMs being laid, so this is quite familiar to us.

We then have, under 7.3, correspondence from the Minister for Finance and Local Government responding to our report on the UK Infrastructure Bank Bill.

Item 7.4, correspondence from the Economy, Trade and Rural Affairs Committee to the First Minister seeking further information regarding the second additional protocol to the convention on cyber crime on enhanced co-operation and disclosure of electronic evidence. We considered this in our committee at our meeting of the 26 September.

And item 7.5, the final piece in this agenda item, is correspondence from the Minister for Climate Change, responding to our letter earlier this month. We had a series of questions, which the Minister has responded to, and it confirms that a revised legislative consent motion would be laid as soon as possible, and Members will note that that LCM was laid on Friday. The Minister states also, by the way, that she intends to lay supplementary LCMs and that she fully supports our request for a revised reporting deadline to assess the provisions, and that the Trefnydd will discuss this with the Business Committee.

8. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
8. 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, colleagues, if you're happy, what we'll now do, then, is move into private, so I need to ask your permission, under Standing Order 17.42, if you're content to now move into private session. And we are, so we'll go into private and wait for our team to let us know when we've left public session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 13:54.

Motion agreed.

The public part of the meeting ended at 13:54.