National Assembly for Wales

Prynhawn da. Good afternoon, everybody. Croeso i'r pwyllgor. Welcome to this virtual meeting of the Legislation, Justice and Constitution Committee. Just as a reminder right at the outset of the meeting, we have had apologies from one of our regular committee members, Alun Davies, who's not able to be with us today. That does mean, just to let people know, that if we have technical difficulties in this virtual meeting, we need to bring all the Members back in, so we will temporarily suspend and then reconvene if we have any technical difficulties, but let's hope not. Otherwise, we're all present and correct. The meeting is being broadcast as usual live on Senedd.tv. The Record of Proceedings will be published as usual. Apart from the adaptations for conducting proceedings in virtual setting, all the other Standing Order requirements are in place. As per normal, if I could just ask Members to make sure that their mobile devices are switched to silent. We're operating through the mediums of Welsh and English today and we have interpretation available during the meeting. And just a reminder that the sound operator is controlling the microphones; we don't need to do anything ourselves.

With that said, we go on to the first substantive item on the agenda. It's item 2, which are proposed negative instruments that raise no reporting issues under Standing Order 21.3B. First of all, if I could just provide some background to the proposed negative instruments in front of us, the European Union (Withdrawal) Act 2018 and the European Union (Future Relationship) Act 2020 provide for a Senedd committee to sift certain regulations that the Welsh Ministers propose to make under the negative procedure. This committee's role is to report on the appropriate procedure to be followed using the criteria that are set out under Standing Order 21.3. That sets some of the background for these items.

Let's turn to item 2.1, then. The first of these today is the pNeg(6)004, the Marketing of Seeds and Plant Propagating Material (Wales) (Amendment) (EU Exit) (No. 2) Regulations 2022. We have a draft report in our pack. These regulations correct the errors identified by our committee in our report on the marketing of seeds and plant propagating et cetera regulations 2022. The Welsh Government's response to our report on the original regulations is included as item 6.1 of today's agenda. In particular of interest, these regulations revoke the original regulations and they remake the relevant operability amendments to the Seed Marketing (Wales) Regulations 2012 and the Marketing of Fruit Plant and Propagating Material (Wales) Regulations 2017. The regulations were laid for the purposes of sifting under the EU (Withdrawal) Act 2018 in accordance with Standing Order 27.9A.

The draft report that you have in front of you, James and Peredur, suggests that the appropriate procedure for these regulations is the negative resolution procedure. Is there anything from our committee team that we need to pick up on this? No. In which case, James and Peredur, are you happy to agree that report? We are. Thank you very much.

We go on then to item 3, which is very familiar to those who follow this committee. It's the proposed negative instruments that raise issues to be reported to the Senedd under Standing Order 21.3B. Under this item, you'll be pleased to know today we have no items to discuss, which is unusual.

We'll skip straight ahead to item 4, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. Here we have, under item 4.1, a made negative resolution instrument, SL(6)294, the Non-Domestic Rating Contributions (Wales) (Amendment) Regulations 2022. Again, we have a draft report in front of us. The regulations in front of us here amend the Non-Domestic Rating Contributions (Wales) Regulations 1992, also known as the 1992 regulations. Under Part II of Schedule 8 to the Local Government Finance Act 1988, billing authorities are required to pay amounts called non-domestic rating contributions to the Welsh Ministers. These regulations in front of us today amend the 1992 regulations by substituting a new Schedule 4 with adult population figures. If I'm correct from our lawyers, we have no reporting points on this. We have nothing to report on this. So, colleagues, any comments, or are you happy with that report? Okay.

Colleagues, I just want to flag for you that this might well be something we want to return to in private session to discuss further, just to raise some issues around this and the laying of the report this week within the Senedd. But if you're happy, we'll return to that in private. Thank you.

We go to item 5, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. The first of these is a made negative resolution instrument, SL(6)293, the Common Organisation of the Markets in Agricultural Products (Amendment) (Wales) Regulations 2022. Again, we have a draft report in our pack to consider. These regulations make various technical amendments to retained EU and EU-derived domestic legislation relating to marketing standards for agricultural products. The amendments fall into two categories—first of all, consequential amendments resulting from the introduction of the Agriculture Act 2020, and, secondly operability amendments arising from the UK's exit from the European Union. I'm going to hand over to our lawyer Kate for a moment. You identified one merits point for reporting, but I don't think we need a Welsh Government response to this.

That's correct. The merits point just notes that similar amendments were made to other retained EU legislation and EU-derived domestic legislation in relation to Wales through UK regulations made by the Secretary of State on 7 November. The Minister for Rural Affairs and North Wales, and Trefnydd laid a written statement before the Senedd on 9 November in relation to the UK regulations.

That's brilliant. Thank you, Kate. Colleagues, any comments on that? No. Okay, I think we're happy to agree that report there, Kate.

That takes us on to item 5.2, SL(6)295, the Local Authorities (Capital Finance and Accounting) (Wales) (Amendment) Regulations 2022. We have a draft report here, colleagues, and a letter from the Minister for Finance and Local Government to the Llywydd of 30 November. These regulations amend the Local Authorities (Capital Finance and Accounting) (Wales) Regulations 2003 by inserting regulation 24L, which makes provision about the accounting practices to be followed by a local authority where a component of an infrastructure asset has been replaced. Regulation 24L applies to accounts for financial years in respect of the periods beginning with 1 April 2021 and ending with 31 March 2025. As such, it will apply retrospectively to local authority accounts for the financial year 2021-22 where an audit has not yet been completed. Kate, you've identified four merits points for reporting, and we haven't had a Welsh Government response yet, is that correct?

Yes, that's correct. If I just draw your attention to the third and fourth merits reporting points, because those are the ones on which we've requested a response. The third point asks the Welsh Government to clarify whether the changes to the treatment of assets provided for by these regulations could potentially result in inflated accounts. Apologies, we have received the Welsh Government response. In response, the Welsh Government explains that this is unlikely to inflate accounts.

The fourth merits point sets out Welsh Government's justification for not providing a Welsh language explanatory memorandum, but notes that the clearly drafted English explanatory memorandum provides considerable assistance in explaining the really complex issues addressed by these regulations and so, clearly, Welsh language readers would have benefited from similar assistance. In response on that point, the Welsh Government repeats that the urgency of the regulations meant that it was not practicable to provide a Welsh explanatory memorandum.

Okay. Thank you very much, Kate. James.

The host and I were having an unmuting and muting session, I think. 

I think we should go back to Welsh Government and push them again on this. We can't say to UK Government that, when they do joint legislation, they should be doing joint drafting in English and Welsh and then let the Welsh Government get away with not doing an explanatory memorandum in Welsh because of the urgency of a document. Even if it takes a little bit of time to come, it should come as part of the regulation. There's just no excuse for it. We're a Welsh bilingual Parliament. It's just not on, I'm sorry.

Peredur, would you be in agreement with that bit of pushback here to Welsh Government?

Yes, certainly. Even if, as James said, it came before us in English but that the Welsh was following then I'd have no problem with that, as long as it arrives. For expediency, it might be, 'Send it through', but for fullness, and for the same point that James made, it needs to be in both languages.

Okay, thank you both for that. I think that's quite helpful in terms of later discussion in private. I think we're agreed that we're happy to agree the reporting points, Kate, but we'll pick up that issue of how we take this up with Welsh Government and push back on the use of English and Welsh here. 

This takes us on to the affirmative resolution instrument under item 5.3, which is SL(6)292, the Trade in Animals and Related Products (Amendment and Legislative Functions) and Animal Health (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2022. These regulations, colleagues, seek to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the United Kingdom from the European Union. The regulations do this by modifying retained EU law and amending the Trade in Animals and Related Products (Wales) Regulations 2011 and the Animal Health (Miscellaneous Fees) (Wales) Regulations 2018.

Now, pause, hold your breath for a moment. Our Senedd lawyers have identified, as you can see there within the report, 27 technical points and seven merits points for reporting. We have not had a Welsh Government response yet, and it's probably unlikely that we'll have one before this appears in the Senedd this week. Kate or Gareth, is there anything in particular that you want to pick up with significant issues? I think we'll need to take this into private to discuss it in some detail, but is there anything significant you want to flag now, while we're in public, arising from the draft report and the Welsh Government response?

If I can just summarise the points for you. In relation to the technical points, five of these relate to defective drafting, 10 of them note differences between the Welsh language and English language texts, and then the remaining 12 are matters that we require further explanation from Welsh Government about.

I'll also just draw your attention to four of the seven merits points, which are potentially quite significant. So, reporting point 29 draws your attention to the concurrent powers that will exist as a result of these regulations and the equivalent UK regulations, which the committee was made aware of in a letter from the Minister for Rural Affairs and North Wales, and Trefnydd, dated 21 October. So, as a result of these two sets of regulations, there will be powers that can be exercised in Wales either by the Welsh Ministers under these regulations or by the UK Ministers under the UK regulations, but only with the Welsh Ministers' consent.

Reporting points 30 and 31 seek further information about regulation-making powers that are provided for by these regulations and by the modified directives. In particular, the draft report draws attention to an apparent Henry VIII power that appears to be subject to the negative procedure. So, we need some more clarity from Welsh Government on that.

And then, finally, I'll just mention reporting point 32, which notes the general lack of clarity within these regulations, and highlights some particular issues that could have an impact on the accessibility of the law in this area.

I also just need to ask you to note that there are two errors in the draft report, which we're going to correct. So, there's a typo in reporting point 10, which we will correct before the report's finalised, and the second paragraph in reporting point 11 needs to be removed from the report. So, we'll, obviously, deal with that before the report's finalised.

That's great. Thank you very much, Kate. Colleagues, I'm going to—. I give a clear steer here that we need to spend a bit of time on this in private session and get into some of the detail of this, because this will—. The intention is, because it has a deadline on it that it needs to be laid and passed, that it will appear in front of us this week in the Senedd, and the range of deficiencies that have just been outlined mean we're really going to have quite an in-depth discussion on this, I think, to plot the way forward. We probably won't be able to do it justice here fully within public session, but it might take us a bit of time in private. James, go ahead.

Just for the interest of the public, Chair, I think it would be useful for anybody in the public watching to know when this regulation has to be agreed by.

Yes, indeed. Kate, I understand that it's 31 December of this year that it needs to be agreed by to allow the continuing functioning of the adjustments that these regulations seek to make. The challenge we have is, in seeking to make these adjustments, we've identified quite a range of deficiencies within this. Kate.

Yes. So, the issue is that the power under which these regulations are being made expires on 31 December this year, so it can't be exercised after that point.

That's fine. I wanted to raise that, Chair, just so that any members of the public, following our discussions in private, understand the decision that we've come to.

Yes, very important. And, of course, we will, James, as per normal, produce our report on the back of our discussions this afternoon, which we will make public as well, and, of course, it's highly likely we'll be taking part in the debate on this as well. Peredur.

I'm just wondering what the risk of this not passing is. For the public, what does it actually mean? 

It's a very astute question. Can I suggest, before we start delving into it, that we pick that up in private? It's a very pertinent question, as to what is the risk of not having this passed this week, as opposed to the risk of passing it with deficiencies. Yes? It's the right question to pose.

Yes, that's it.

Okay. Thanks, Peredur. Kate, thank you very much for that. I think we can agree on the reporting points that you've picked up on there—there are many—and we'll take that into private session to try and plot the way forward from our committee's perspective.

Then we go on to—let me just check here—item 5.4, SL(6)296, the Non-Domestic Rating (Chargeable Amounts) (Wales) Regulations 2022. Colleagues, we have a draft report, a letter from the Minister for Finance and Local Government of 8 November, and a letter to the Minister for Finance and Local Government of 16 November. These regulations prescribe rules to be used to calculate the chargeable amount for hereditaments with increased non-domestic rates liability of over £300 as a result of the increase in rateable value of their hereditament, following the compilation of the new non-domestic ratings rating list on 1 April 2023.

Now, just for Members to recall, the Minister wrote to us in early November to seek our assistance in expediting scrutiny of these regulations, so that a Plenary debate could take place before the Christmas recess. So, there's a bit of a backdrop to this. Now, our lawyers have identified one merits point for reporting. Kate.

Thank you. The merits point simply notes the phased introduction of the increase in non-domestic rates liability and the cost of this to the Welsh Government, which is all set out in the regulatory impact assessment, and we haven't requested a Welsh Government response.

That's brilliant. Are we happy with that, colleagues? We are. Okay.

On then to item 6, which are instruments that raise issues to be reported to the Senedd under those Standing Orders 21.2 or 21.3 that we've previously considered. And the first of these is under item 6.1, it's SL(6)267, the Marketing of Seeds and Plant Propagating Material (Wales) (Amendment) (EU Exit) Regulations 2022. We have a report, a Welsh Government response—the initial Welsh Government response—and a Welsh Government response of 8 December 2022. We looked at this instrument at our meeting on 24 October. So, Members are invited to note the Welsh Government's further response, which has now been received, and, as mentioned earlier in this meeting, the Welsh Government has now brought forward replacement regulations. Anything particular, Kate, we need to be aware of on this? Or is it just to note for now? 

It's just to note. The original intention of Welsh Government was to correct the issues by way of a correction slip, and it then turned out that this wasn't possible, and so that's why there are now replacement regulations.

That's brilliant. Thank you, Kate. Are we happy with that, colleagues? We are. Okay.

On to item 6.2, SL(6)291, the Food and Feed (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2022, and we have, again, a report and a Welsh Government response of 9 December 2022. We looked at this instrument at our last meeting, and our report was laid the following day. We've had the Welsh Government's response. Kate, nothing particular on this? It's simply to note? 

Yes. This is just to note that they intend to make the relevant corrections. 

That's great. I think we're happy with that then.

So, then we go on to our regular item 7 of written statements under Standing Order 30C. So, under this item, we have only one to look at today. It is WS-30C(6)021, the EU Agencies (Revocations) Regulations 2022, and we have a written statement in your pack, together with a commentary and a letter from the Minister for Education and Welsh Language of 8 December.

The written statement notified the Senedd that the Welsh Government has given consent for the UK Government to make the EU Agencies (Revocations) Regulations 2022. Within the statement, it notes that agreement was sought by Alex Burghart MP to make the regulations so that they apply in relation to England and Wales, Scotland and Northern Ireland, and the regulations were laid before Parliament on 1 December, to come into force on 22 December. In the letter from the Minister, he notes that on 27 June this year, he wrote to us to share his intention to give consent to the regulations, and we considered that letter on 4 July. So, colleagues, are you happy to note that? We are. That's great.

We'll go on to item 8. These are notifications and correspondence under the inter-institutional relations agreement—another regular item on our agenda. Under item 8.1, we have correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd, in respect of the Welsh Government consenting to UK Government subordinate legislation. If you're happy to note that for now—. If there's anything that arises from it, we can come back to it in private.

We'll go on to item 8.2. If you'll note the written statement by the Minister for Rural Affairs and North Wales, in which she confirms she has given her consent to the Secretary of State for the Environment, Food and Rural Affairs for the Organic Production (Amendment) (No. 2) Regulations 2022 to be made in the UK Parliament, and these regulations make provision in a devolved area on behalf of the Welsh Ministers in relation to Wales. They were laid before the UK Parliament on 6 December, to come into force on 31 December, and we considered a letter from the Minister in relation to these regulations back on 28 November. So, again, if you're happy to note, and if there's anything arising, we can return to it in private.

Item 9, then, we have papers to note. I'm going to go through these—[Inaudible.]—to raise. I'll just put them on public record, but if there's anything you want to raise, just shout to me, then. We begin with 9.1, the letter from the Minister for Rural Affairs and North Wales, and Trefnydd, to the Economy, Trade, and Rural Affairs Committee, stating that,

'a small number of corrections...are required to be made to the Explanatory Memorandum'

accompanying the Agriculture (Wales) Bill, following a further review by Welsh Government officials.

Item 9.2, we have correspondence from the Minister for Education and Welsh Language to the Children, Young People and Education Committee, regarding the implementation of the Tertiary Education and Research (Wales) Act 2022 and the publication of a revised explanatory memorandum.

Items 9.3 and 9.9 are correspondence relating to the Environmental Protection (Single-use Plastic Products) (Wales) Bill. I draw your attention to the correspondence from the Llywydd and from the Minister in response to our letters about the Senedd's consideration of the Environmental Protection (Single-use Plastic Products) (Wales) Bill. Again, if there's anything from that, we can pick it up in private.

Item 9.4 is a written statement on the interim report of the Independent Commission on the Constitutional Future of Wales. It's from the Counsel General.

Item 9.5 is correspondence from the Minister for Climate Change in respect of the Social Housing (Regulation) Bill. It relates to our consideration of the first two legislative consent memoranda on that Bill.

Item 9.6, we have correspondence from the Public Accounts and Public Administration Committee regarding its new inquiry into public appointments.

Item 9.7, we have the report on the second meeting of the UK-EU Parliamentary Partnership Assembly. And just to remind Members that our committee and one other send an observer to the UK-EU Parliamentary Partnership Assembly. On the last occasion, it was myself and Luke Fletcher, in his role as a member of the Economy, Trade, and Rural Affairs Committee. So, the report has been agreed between Luke and myself. I hope it's interesting reading, both for you as committee members, but for anybody externally as well. And, again, we can come back to that in private.

Item 9.8, we have correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd, seeking to respond to further questions we asked in our letter of 25 November, following the evidence session on 21 November on the Agriculture (Wales) Bill. And that brings us to the end of all our correspondence, et cetera, to note.

So, finally, colleagues, I just need to ask you under Standing Order 17.42 if you're happy to resolve to exclude the public for the remainder of the meeting so that we move into private. We are. We will move into private session, then, please.