Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee


Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

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

Y rhai eraill a oedd yn bresennol

Others in Attendance

Dr Robert Parry Dirprwy Gyfarwyddwr, Pontio Ewropeaidd, Llywodraeth Cymru
Deputy Director, European Transition, Welsh Government
Ed Sherriff Dirprwy Gyfarwyddwr Ynni, Llywodraeth Cymru
Deputy Director for Energy, Welsh Government
James Gerard Dirprwy Gyfarwyddwr, Polisi Cyfiawnder, Llywodraeth Cymru
Deputy Director, Justice Policy, Welsh Government
Julie James MS Y Gweinidog Newid Hinsawdd
Minister for Climate Change
Mick Antoniw MS Y Cwnsler Cyffredinol a Gweinidog y Cyfansoddiad
Counsel General and Minister for the Constitution
Sophie Brighouse Dirprwy Gyfarwyddwr, Cyfansoddiad a Thribiwnlysoedd Cymru, Llywodraeth Cymru
Deputy Director, Constitution and Welsh Tribunals, Welsh Government

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
Sarah Sargent Ail Glerc
Second Clerk
Stephen Davies Cynghorydd Cyfreithiol
Legal Adviser

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

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

Cyfarfu’r pwyllgor yn y Senedd a thrwy gynhadledd fideo.

Dechreuodd y cyfarfod am 12:30. 

The committee met in the Senedd and by video-conference.

The meeting began at 12:30.

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

Prynhawn da, bawb. Croeso i chi i gyd.

Good afternoon, everyone. Welcome to you all. 

Welcome to this meeting of the Legislation, Justice and Constitution Committee. Just at the beginning of proceedings, just to remind everybody, we're broadcasting this live on Senedd.tv and the Record of Proceedings will be published as usual. We're not expecting a fire alarm, but if there is one, if Members, guests and witnesses could follow the ushers and follow them to the safe gathering place—. There's no test forecast for today. If we can ensure that all mobile devices are switched to silent mode, please, and as normal, we're operating through the mediums of Welsh and English today, so we have interpretation available. There is no need to mute and unmute your microphones, because that will be done for all of us. Before we begin, we have a new Member joining us today, but they're unfortunately detained at the Senedd Commission, so they'll be joining us shortly. 

2. Memorandwm cydsyniad deddfwriaethol Llywodraeth Cymru ar y Bil Ynni: Sesiwn graffu gyda'r Gweinidog Newid Hinsawdd
2. The Welsh Government’s legislative consent memorandum on the Energy Bill: Scrutiny session with the Minister for Climate Change

We're delighted to have with us, for a short period today, the Minister for Climate Change, Julie James—thank you very much for joining us, Julie, and also, Ed Sherriff, deputy director of energy.

We're going to turn directly to the main first item on our agenda, item No. 2, which is the Welsh Government's legislative consent memorandum on the Energy Bill. This is a short session and we want to go straight to the crux. We don't look at the intricacies of the policy issues here; we look at it very much through the lens of the Legislation, Justice and Constitution Committee. And what we want to focus on, Minister, is the process by which we've got to the laying of this LCM here. So, let me cut straight to the chase, then. We're trying to work out why it's taken 51 weeks to get a legislative consent memorandum laid on the Energy Bill, and not least because we're aware that the Scottish Government laid its memorandum 10 months ago and a supplementary memorandum six months ago. So, for us, we're trying to find out—. We're trying to get to the nub of this, keeping the Senedd up to date with developments, so that's why we asked you to come and try and explain to us why we're in this predicament.    

Diolch, Cadeirydd. It's good to be with you. I'm afraid, I do need to give you a short history of how we got here since that's very germane to the question in point. So, the Bill was first introduced back when Kwasi Kwarteng was the Secretary of State for the then Department for Business, Energy and Industrial Strategy. The UK Government paused work on the Bill to rush through the Energy Prices Bill. By the time they'd done that, the Bill was then led by the new Secretary of State, Jacob Rees-Mogg, and is now under its third Secretary of State within a new UK Government department. So, it was less than clear to anyone at all what was going to happen with this Bill, to put it mildly.

We do what we can to ensure that our legislature gets the opportunity to properly scrutinise UK legislation, which engages the Sewel convention. I genuinely do want the Senedd to be able to scrutinise that. It's very useful to the Government as well and, anyway, it's the right thing to do. But late engagement from the UK Government puts extreme time pressures on that. We would have very much wanted for the Welsh Government to have been involved in the development of the Bill months before the Bill was published. We would have had detailed discussions with UK Government Ministers on matters within our competence and so on. Not a single scrap of that happened at all. Nothing, absolutely not. So, we're continually challenging the UK Government to improve its engagement on this. This causes us really serious resource issues, because they literally come out of the blue. So we haven't had any build-up to it. You're just suddenly presented with something that officials have got to get themselves up to speed on, et cetera. 

The devolution settlement for Wales relating to energy is complex and difficult, unlike the devolution settlement for Scotland, which is much more clear-cut. So,  Scotland would have had a much more clear-cut position from an earlier stage than we do, because it's so complex here with the varying levels and competencies and so on, and, in all honesty, Scotland, has a big team of civil servants who are used to dealing with energy, because of their oil and gas history and so on, and we don't. So, today, Chair, another colleague, Rhiannon Phillips, should be here, as the person who's dealt with this all the way through. She has a very bad virus—not COVID—but is out of action, and so the deputy director is here, because there isn't anybody else. You have to bear in mind the resource constraints that we're operating under. Some of the issues in the Energy Bill are novel, so they're carbon capture and storage, for example, or hydrogen, where the Welsh Government hasn't necessarily got a developed policy to bring into play, so we're trying to twin-track some stuff. And, frankly, I'm quite annoyed by the situation the UK Government has put in where we're struggling to keep up with the changes in a Bill that are rapid and don't involve us at the right level at all. To lay an LCM, we have to be able to tell the committee what the LCM is going to do, whether we think it's a good idea for it to happen or not, and so on; we just haven't been in that position, that's the truth of it. We've gone back and forth, back and forth. As we are, we're not happy with the situation we've ended up in. It's not the situation I would have liked to have been in at all, both from the point of view of scrutiny, but actually from the point of view of the Bill itself, which is not at all what we want it to be. Like it or not, that affects our ability to lay the LCM and the officials that are working on it.

So, this is not a position I am proud of or would want to have happen, but I absolutely understand the poor policy officials who've been trying to twin-track this as they go along. I'd have loved to have been in a position to update you on the lovely inter-governmental work on the Bill and the fact that we were going to approve the LCM because we'd got it to where we—. That's not where we are, I'm afraid.


Thank you for that frank and honest assessment of why we are where we are. By the way, we extend our sympathies to the member of your team who was going to be with us today and can't be with us. You've laid out the issues of late engagement and difficult engagement of the UK Government, resource issues where you clearly say that the Scotland resourcing is more significant than it is here in Wales, that it is a more straightforward devolution picture in Scotland than it is in Wales, and parts of this Bill are novel. Okay, that's quite a stout argument of why we are where we are.

But then, if I can extend it, how do we then avoid this situation, recognising what you've just said, Minister? And by the way, we don't bring a Minister here in this situation in any way to put them in the pillories and so on. It's to try and understand how we can improve the scrutiny. I know you realise that as well, and you've expressed your regret. This would not be an ideal situation to be in. But how do we avoid the situation where we have to explain to the Senedd as a committee that, actually, what we're now being asked to do is to fast-track a piece of scrutiny within a matter of two or three weeks, when it's been 51 weeks in the offing? That's a difficult one to actually rationalise on the floor with elected Members.

Yes, I completely and utterly accept that. So, part of the complexity, forgive me, has been in trying to understand where the devolution settlement is in this and what parts of it are engaged. Assuming you accept our view, it's slightly easier, but I do accept it's not ideal.

Just to make the offer, Chair, our officials stand ready to support the committee both in understanding the Bill and the LCM, and are very happy to extend support to the clerking team over the summer if that's of any help at all. We do understand the difficulty.

There are new sections as well in the Bill, so we're going to have to put a supplementary LCM to you. We're going to work on that as soon as possible, but this isn't even the end stage, I'm afraid. So, this is an ongoing—. I mean, there's just nothing good to say about the way the UK Government has treated the devolution settlement. The Bill has been drafted without any nod to devolution whatsoever. If I'm honest—forgive me, Ed, I know the civil service wouldn't express this view, but from a political point of view, I would say that it's news to the energy team [correction: the UK Government energy team] that there is such a thing as a devolution settlement. It's been a hard-fought battle to get them to even understand what we're trying to say.

We'll come to James now, who'll take us into that territory, but one of the things we appreciate your frankness on, to be honest, as well, is the issue of resources and the constraints. I suspect this is something that we've flagged up on a number of occasions on different policy areas with Welsh Government, and to have it laid out as starkly as that, I think, is quite telling. James, over to you.

Diolch, Gadeirydd. Minister, it's interesting what you say, because in paragraph 9 of the memorandum, you did indicate that the Welsh Government was involved with some engagement with the UK Government and that Welsh Government asked for some clauses to be changed and included in the Bill. What specific engagement did take place and what clauses did UK Government share with you, and how did all this engagement take place, because what we've just got from you is that no engagement took place at all?

Well, I didn't say that no engagement took place at all. I said that it took place very late after the Bill had been largely drafted and that I would have expected to have been involved in the run-up to the Bill, not involved once the Bill has been submitted. So, in normal circumstances, if there was a Bill in the offing, we would work closely with the relevant sections of the UK Government on the draft Bill in the run-up. So, by the time we got anywhere near having to consider an LCM, we would have been involved all the way through. Well, that just did not happen in this case. So, what I would say, James, is that we’re playing catch-up all the time once that’s happened and the Bill has been drafted in that way.

So, there are a number of new policies in the Bill, so the British energy security strategy, which was published in April 2022, for example, there was absolutely no engagement with us prior to the strategy being published. So, the priorities and policies in it and the subsequent incorporation into the Bill reflect the UK Government position only, and don’t reflect our position at all. There were technical engagement sessions on some of the policy areas, but that was really around how we would deploy carbon capture and storage, rather than around the governance and regulation bits of it, which were the ones that we were interested in in a devolution sense, although in a policy sense, we’re obviously interested in all of it.

We had small extracts of the Bill shared in isolation, but all 346 pages of the Bill were shared the evening before it was published. And I will say, Chair, I have, a number of times, not just in this instance, been summoned to speak to a Minister of the UK Government at 17:30 with no idea of what they want to talk to me about, only to be told that tomorrow morning, they’re going to publish X, so that they can say they’ve consulted us. Well, I’m sorry, I don’t think that’s sufficient consultation at all. The officials have made themselves available for engagement and so on, but it’s been really, really difficult to do that, because the business models for hydrogen and CCS, for example, we have to develop the policy at the same time because of the way that they’ve done the Bill. So, you’re trying to twin-track both the Welsh Government’s policy development and the Bill. It’s just not ideal at all.

But they didn’t seek our views before publication, as would be normal, and nothing at ministerial level has fundamentally changed since it was introduced, really. So, I’ve had one ministerial meeting with Minister Bowie, which lasted 15 minutes, where it was very clear to us that UK Ministers were not going to have regard to devolution whatsoever. There are a number of letters that I have received no response to, including a letter requesting a meeting with UK Ministers to discuss the offshore wind environment improvement package, for example.

I mean, I’m sorry to be in this position, but really, it is what it is, so this has not been a happy development of a Bill. And I will say: it isn’t normal for it to be like this. We do normally have much better engagement. So, that’s why I say—and I want to be very clear that it’s a political view, and not the view of the civil service—but I think that what we’re looking at here is somebody who just did not realise that there was any devolution issue in it until the last minute.


It’s interesting you’ve raised that, Minister, because what my supplementary question was actually going to be to you was: is this something you’ve seen across your portfolio? Because as you said, there’s normally engagement at an early stage. Is it just this individual Minister or individual department from UK Government that has caused these problems? Because we’ve heard from other Welsh Government Ministers that some departments are very engaging with the devolved Governments and get them involved early. So, is this something just from the energy side of it, perhaps from UK Government, because that’s something we could follow-up on as well, then?

It’s really hard for us to say, isn’t it? It’s a new department, so it could be that people are being brought together from across—. Or I can speculate, but it would be speculation; I don’t really know. But it’s not normal for it to be like this. It’s happened a number of times more recently, which I’ve highlighted, but I’ve been a Minister for long time now, and this is getting more frequent just recently, but it hasn’t been the normal way to work. And I think from a policy point of view, our officials are used to working up the policy before a draft Bill even arrives. So, we’re in a far better position to understand what the draft Bill is going to do; we understand whether it requires an LCM or not; we understand what our governance and constitutional arrangements need to be to go with that Bill, and we can put that in train. We can get the Trefnydd to announce it in the right way, and so on. Well, if you’re just dumped with a Bill the next day, it’s near impossible to do any of that, and I’m afraid that that’s the situation we've found ourselves in here.

Can I just give you an example of some of the engagement? A week before the Bill was introduced, we were shared some of the clauses around the new powers for the oil and gas authority to oversee and implement the carbon capture use and storage regulations, so we had those six clauses, all relating to the powers for change of company ownership for carbon capture and storage, and we said, ‘Well, okay, that’s fine, but what is the regime that the oil and gas authority are overseeing? What’s the detail, what’s the policy?’ And that wasn’t shared to us, so we saw a very small detail, a detail that comes in at, I think, clause 92 to 95, that covers all parts A and B, and we didn't see the policy intent.


Yes, for this Bill—absolutely.

Minister, as you said, it's not an ideal situation to be in, and you've outlined that you don't think it respects the devolved competencies of the Senedd or Ministers, but we are where we are. What I'm interested in is, when you've written to the UK Government, what amendments to the Bill have been sought here for Welsh Ministers, on the face of it. Just so we can understand what you're trying to get out of this Bill as well.

The letter I've referred to is the letter I sent to the UK Government alongside the laying of the LCM, so you're familiar with that already. I've made a number of representations to the Secretary of State for BEIS, as it was then, and the Secretary of State and Ministers within the new Department for Energy Security and Net Zero. In March this year, following the UK Government amendments, with the offshore wind environment improvement package, I set out my concerns to the new Secretary of State on the clauses and on the initial considerations of the Bill. I've requested a meeting to discuss the concerns, but no offer to meet has been forthcoming. The first and only meeting on this Bill I have had with a UK Government Minister was with Minister Bowie in May 2023, and I have to say, in that meeting, Minister Bowie showed no appreciation that any kind of devolution settlement existed. There's no getting away from that. It was a very short meeting, and their view was that it just doesn't engage the devolution—[correction: engage the devolution settlement]. Well, they just didn't have any appreciation of it at all.

In the memorandum, I've set out the amendments that I think are required across the Bill. For most of the Bill, we do agree with the policy intent, but there are a number of areas where the Bill legislates for matters in a devolved competence and the Secretary of State is asked to notify the Welsh Minister or to consult the Welsh Minister. Well, I'm very sorry, but this is a devolved issue. They should be seeking our consent, not telling me or asking me. They can't just override the devolution settlement by patting me on the head nicely and saying, 'There, there—we've told you all about it.' That isn't how it works. I'm sorry, but we're not happy about it, as you can hear, and there's no need to have got to here. That's the frustrating point. There's no need to have got to here. If they had followed the proper inter-governmental protocols, we would not be having this conversation with you now.

We might well get into that, with the limited time we have, but you're being very frank and honest and we genuinely do appreciate that. Can I just ask you—? One of the four key factors that you used to explain the rationale why this has been delayed was the complexity. We do appreciate, of course, the complexity of the devolution settlement. It is more complex in Wales. It's different from Scotland. However, in energy, is it equally complex or is it more straightforward in terms of what's devolved and non-devolved in Scotland and so on? Just explain that to us, for non-policy people, non-energy people. Is it much more complex in Wales, and that's caused the problems?

Yes, because who controls the inshore waters and who controls the 12 to 200 miles, for example, and whether we have any say over the 12 to 200 miles or not, is not clear at all. It's clear we do have competence over the inshore waters, but this Bill reaches across that, so what happens when energy transmits across the bit that we have competence for? No cognisance of that is taken at all. The levels of megawatts that we have competence for or don't are far more complicated. It's a moveable feast. The marine issue and the land issue complicates it. So, I'm afraid it's not straightforward.

But all of this argues for far more extensive engagement with UK Ministers at a very early period to go through this. Mr Sherriff, you were nodding your head; is there anything you want to add?

Yes. I was just thinking about a very specific example about where that complexity came up, which is in Parts 3 and 4 [correction: Parts 3 and 7] around heat. That's an example where we had several—. Well, it's probably several months, actually, of discussions with the UK Government at legal level and official level about exactly whether the new provisions in there were devolved or not. There's a reservation around production, distribution and supply of heat and cooling, yet there is an exception to that, which is around schemes providing incentives for that. So, we had quite lengthy discussions just to actually understand whether the LCM procedures applied to those parts or not, and that took several months to try and resolve. Ideally, you'd have done that in the months preceding the introduction of the Bill, not after it's been introduced and then trying to unpick it.

And key to us in the argument you've put out, that would have been much simpler and much more straightforward in the Scottish context.

I don't know the detail of exactly what the Scottish devolution settlement is, but that was the example that we were going through, that was the process that we were engaging with.


We wouldn't know the detail of Scottish devolution, but in terms of energy generation, it's a lot simpler in Scotland.

I agree with you on that, actually; I think it is simpler in Scotland. I think this speaks to the very, very poor way in which the settlement has been established in Wales. I think it does create unnecessary difficulties, both for you and also, frankly, for the United Kingdom Government as well. The points that you made earlier, Minister, are well made in terms of resources available to you. I think that's something we have contacted the First Minister about before, and the Counsel General, and I think it's something we should raise with both of them again as a consequence of this.

If you are going to raise it, can I just add to it, then? The point being that, if you have notice in advance of a big Bill coming, you can tool up for it, effectively; you can ask for more resources. But if you're just dumped on it—you know, we have a team that's dealing with something, and then, all of a sudden, you have a 346-page Bill to deal with—well, it's not awfully surprising that we didn't know that was coming, we haven't got the resource in place. So, just to be clear.

I do accept that, but you are probably one of the biggest departments in Government, and if you don't have the resources to deal with legislative matters, that's a really serious matter that we need to take up.

As I say, Alun, though, if we knew it was coming, we'd have the ability to do it. But, obviously, we don't have people sitting around with nothing to do, waiting for the UK Government to dump a Bill on us.

I wouldn't expect that situation to be one that I'd recognise. So, okay, we've got that. And I also recognise what you say about being invited to a meeting at 5 o'clock, to be told by a UK Minister that something's happening at 9 o'clock the following morning—that's happened to me, I recognise it. It's happened to a number of Ministers; we recognise that, we've got no issue with that. The chaotic nature of UK governance over last year is something that anybody who reads a Sunday paper would recognise as well.

However, 51 weeks is a long, long period of time, 49 weeks after the deadline in Standing Orders, and I think that's the issue the Welsh Government needs to look at as well, because we understand all the other issues. You're not the first Minister or the only Minister to come to this committee with those issues, and we recognise them. However, 51 weeks after this was introduced, the Bill, as introduced, is the subject of an LCM, and I think it's difficult for this committee, and for the Senedd, to accept that's all the fault of the United Kingdom Government. I think we need to look at why that took 51 weeks.

Because all the matters you've discussed are all relevant, and I think they're all important issues, but I find it difficult that, collectively, they add up to a delay of 49 weeks, and that is where the committee's difficulty is. Because had you put together an LCM that included some of the amendments that have been made—. You said in your LCM that you will be putting further memoranda down, and in previous occasions, you've put a number of memoranda down subsequently—supplementary memoranda. So it's not an unfamiliar process to either the Welsh Government or to the committees. But on this occasion, we haven't had anything at all, and that's what troubles me with this. The Welsh Government, whatever's happening across the other side of the M4, has not troubled itself to put in front of the Senedd the relevant documentation that it should've done.

Well, I think saying we haven't troubled ourselves to do it is a bit rich. 

We can debate the terminology, but the fact is it hasn't happened.

I've set out the history of it. I mean, the Bill was halted, basically, so we weren't at all sure it was coming back—

We had to wait to see whether the Bill was actually going to do anything. So if you start from there, you end up with a big gap in the middle of it, where we're not even sure it's happening. And then, as I explained, we're having an argument with the UK Government about whether an LCM is even required, because they take a view that it's not engaging in the devolution settlement and all the rest of it.

I hear your point, Alun. We could've put one in and then said, 'Okay, there'll be another 12 coming', but, actually, we get letters all the time complaining about the fact that we are dousing the committee with sequential LCMs on the same Bill, why don't we wait until we've got a bit more certainty. So, I feel we're being a little bit criticised on both ends.

I'm not sure that's a fair characterisation of the committee's views on those matters, but we'll put it to one side. The fact is that we've waited 49 weeks for an LCM on a Bill as introduced, and I think we need to reflect—Government and the Senedd—on how we've ended up in this situation, where for 49 weeks there hasn't been an LCM, and then the Government asks the Senedd to turn it round in three sitting weeks. That doesn't feel to me like the system is working as it should, and I think it may be useful for your, Minister, or perhaps the Counsel General or First Minister, to look at these matters and to write to the committee outlining how you believe this should operate, because this clearly has not operated on this occasion, and it's a systemic issue. 


Just to add to Alun's point, it's probably something in the few minutes remaining we won't be able to get right to the bottom of, but it's the sort of reflecting on this. We're reflecting on this as a committee, what this means for the legislature, and from a Government point of view what this means. Alun is right in saying that from a distance you've seen, and probably some of my officials in the committee have seen, amendments being laid, and so on, but we've had no opportunity to actually update the Senedd on what's going on. So, the question remains: was there a point—? Is one of the lessons learnt from this from a Government point of view that there could be have been an earlier point to come forward, even in something interim, to say, 'We're not fully there, we don't know everything, we've got issues—however, just to be aware, the thing is moving on and there's going to be more supplementary LCMs to come'? That's what we're trying to get at. 

I completely accept that having a better protocol for a Bill with this kind of history—and I fear this isn't going to be the last one, either—is necessary, and I'm more than happy to participate in a discussion about how would the committee and the Senedd most like to have this. But, as I say, I have also appeared in front of committees who were complaining to me because I'm currently laying the fifth supplementary LCM for something. So, you are a little bit caught between a rock and a hard place.

I do think we were waiting to see whether we could get anything correct—. We'd prefer to bring an LCM that asks for approval, so there is a bit of a to-ing and fro-ing about whether we can get any amendments laid that actually address our concerns, and so on. And if you're in a negotiating—. Forgive me; I absolutely accept the scrutiny points, but if as a Government you're in a negotiating position with them and you're trying to get them onside, laying an LCM at that point that says, 'And we're not going to approve it', isn't necessarily the best negotiating stance, either. And that's not an excuse—I'm not trying to excuse it—I'm just saying it's part of the tapestry of trying to decide where you're going to get to. And who would have known that after all this time, the amendments wouldn't fundamentally change anything and wouldn't take up—? That's not where we wanted to be either. And now I am in a position, having laid an LCM so late, of having to tell you that there's another one coming, which is a ridiculous position to be in, really. 

Indeed. I suspect if you were sitting in the position of any one of these chairs on the committee, you'd be probing at exactly what we're probing at: do we need some improvements to the system, albeit recognising, really, that there is a judgment for Ministers to make here as to at what point do you do the great reveal, or an interim update or whatever, what point do you say we're going to give consent or not. There is a challenge here. But it's some appreciation of the mirror image of this that it looks like from the Senedd—at which point do you give some information, some update. And if it's not the full motion on consent, I think there is something of interest here in this space to have an update to say, 'This is how this important Bill is proceeding—we're not there, we have problems, we have resourcing problems, we have negotiation issues that we can't reveal, but here is where we are, expect this to come'. Because we want to try and avoid this. 

For what it's worth, Chair, I would be more than happy to help work up a protocol for complex Bills of this sort, because in all honesty you don't want us to lay a rapid series of supplementary LCMs as amendments come through, because you're debating something that's not the actual—. We already know that something else is coming at the point—. That's not optimal either. So, I would more than happily work with the committee to figure out a protocol for what to do in these circumstances, but, as I say, you do find yourself between a rock and a hard place, where you eventually lay the LCM and then immediately I have to say that there's a supplementary coming, because, obviously, we don't know what they're going to do with the next—. Because we're not being engaged, we don't know what they're doing with the next set of amendments. It's frustrating from the officials' point of view as well, because they're saying—. You can imagine the officials meeting where they're saying, 'Are there other amendments coming forward?', and if you're not in a position to know that, then you can't put up proper advice to the Minister and you can't—. It's hopeless, isn't it, really.


Indeed. Minister, look, thank you for coming today. We have run out of time. We said we'd only take 30 minutes, and that's what we'll do. We appreciate your time today. A couple of things just to point out in summing up: as per normal, we'll send the transcript to you for accuracy and so on, but one interesting—. The Standing Orders, as they currently are, are what they currently are in terms of what should be laid in front of the Senedd, but it may be that the committee does want to turn its head to what do we learn from this, and we might well come back to you—not straight away—but come back to you and to others where we've had similar examples. And of course one thing that does remain of interest to us is whether this Bill now will be taken through the inter-ministerial machinery, whether it will be escalated, based on the clear dissatisfaction of what you said. Is this something that gets tabled at the relevant committee and so on? Or has it been already?

So, that's not a matter for me; that's a matter for the First Minister. This isn't the only issue that's at issue with the inter-governmental protocols. So, the First Minister, I know, has a number of issues that are less than optimal, shall we say. 

You may be aware of some others in my portfolio. Just to say, we do know the Report Stage has been delayed—I hope the committee knows that—until the autumn. So, things are not quite as pressed as we thought they were.

I'm more than happy to co-operate with that, but I do want the committee to understand that we absolutely want the scrutiny to happen, but that we are always trying to figure out when the optimal time to do it is, and this is a Bill that—. I think it's a bit unfair to say that we couldn't be bothered to do it. This is a Bill that got beached, and that's the terminology that the UK civil service have been using. It got beached during the churn of all of the various Government Ministers coming round—

—and at that point we weren't sure that it was coming back at all. 

Indeed. You have been frank with us, and ideally you'd have wanted to have come before the Senedd earlier than this point. So, yes—thank you very much indeed. Thank you very much. Can I just say in advance—I know we've still got the week ahead of us in the Senedd, but I wish you and your officials well over what's going to be a busy summer, with lots of Bills, actually, in preparation in your portfolios? So, thank you very much indeed.

If we take a few minutes, colleagues, just to reset the tables here as well and move position. So, we'll go into private just for a moment.

Gohiriwyd y cyfarfod rhwng 13:02 ac 13:08.

The meeting adjourned between 13:02 and 13:08.

3. Sesiwn graffu gyda’r Cwnsler Cyffredinol a Gweinidog y Cyfansoddiad
3. Scrutiny session with the Counsel General and Minister for the Constitution

Croeso nôl. Prynhawn da, eto.  

Welcome back. Good afternoon. 

Good afternoon, once again. We're returning to this afternoon's meeting of the Legislation, Justice and Constitution Committee, and, before we commence with the substantive issue in front of us with our witnesses this afternoon in our second session, can I just welcome Adam Price to the committee and the membership? I'm delighted to have you with us and I know you'll play a full role within our interest in proceedings on this committee as well. You've come in at a good time, Adam, because, this afternoon, we have our scrutiny session with the Counsel General and Minister for the Constitution—regularly in front of this committee—so, we welcome you back, again, Counsel General. You have alongside you Sophie Brighouse, deputy director, constitution and Welsh tribunals within Welsh Government, James Gerard, deputy director, justice policy in Welsh Government, and Dr Robert Parry, the deputy director, European transition, Welsh Government. I think it shows, with the four of you lined up there, the scope of what we intend to cover this afternoon.

So, we'll dive straight in, if that's okay, and we're going to focus from the outset on legislation matters, if that's okay, because sometimes we get those squeezed to the end of this committee session. So, we want to properly—. Sorry, I was just going to use the phrase 'do them justice' this afternoon, but you know what I mean. In your statement on the devolution of justice, Counsel General, you announced the appointment of Dame Vera Baird KC as an independent expert adviser on justice devolution. Can you tell us a little bit more about that role's functions and your expectation of Dame Vera's contribution?


Thank you. Firstly, I very much welcome the fact that we have her services on board for 12 months. She's an individual with an outstanding legal record. She is a former victims' commissioner appointed by UK Government, a former Member of Parliament. But I think we have to see it within the context of the work that is going on with regard to the devolution of justice and probation and the work that's going on around the devolution of policing. As a Welsh Government, we've moved from a position whereby we are talking about the rationale and the reasoning behind the devolution of justice. Many of those were set out in the paper myself and the Minister for Social Justice launched, 'Delivering Justice for Wales', which set out a whole range of areas where Welsh Government is intricately involved within the justice system. We're now moving to a position where we are actually preparing for that.

I'll be frank: on the politics of this, we don't expect any changes to take place with the current Government. They've made it clear they do not see any prospect of change in respect of the devolution of justice. I was very disappointed in that, because it means, I think, a disregard for the arguments around the merits of that, and, of course, all the work that was done with the commission on justice chaired by Lord Thomas. That having been said, we've seen since then the Gordon Brown report. There will be a general election coming. I think it would be irresponsible as a Government if we did not consider what the possibilities might be in terms of change were there to be a change of Government. It's a perfectly responsible to thing to do. Oppositions do that when elections are approaching, and they get support from the civil service in ways that they might not have previously had.

The thing that concerns me particularly is that we have to almost prepare—. I hate to use the phrase 'oven ready', but, basically, to hit the ground running in terms of what do we mean by the devolution of justice, what do we mean by youth justice, how would it work, what would be the framework within which it worked, what would be the legislative changes that would be needed to enable that to happen. What would be the structure of such a devolution of youth justice, probation and, potentially, policing? So, what Dame Vera Baird brings is, I think, that practical expertise in terms of how that might actually happen if it were to be announced tomorrow that these things were going to take place. We need to be ready for it, we need to know exactly what we're talking about and how it will operate. It's not Dame Vera Baird on her own, of course; there's other work that's going on.

So, I'll bring James in now, but your response to the challenge that is made as to why would you be doing this when, currently, as you've rightly explained, the current Government is not intending to work with you on this, you're doing it in the expectation, a plausible expectation, that if there was a change of Government, then this would be immediately on the plate of Welsh Government to take forward and to work with UK Government on. That's the explanation to people who are watching what Government is doing and saying, 'Well, why are you spending time on this?'

Yes. If it is to happen, these sorts of changes need to happen very early on, otherwise, they get delayed and caught up in all sorts of other priorities. It's an important one to us, it's one we have been arguing for, certainly nearly all the time that I've been a Member of the Senedd. It has been discussed with UK Government in numerous fora over a period of time. Now there is a potential for it to actually happen in practice, and we need to make sure we've upped our game and we are ready for the implementation of it to make it happen.

[Inaudible.]—Counsel General, when you talked about the potential of the devolution of policing, over the UK, the public's perception of the police is actually going down, in their ability to deal with crime. I'm interested in how you believe that devolving policing to Wales will actually improve the public's perception of police, and how the Welsh Government being tough on crime will improve their reputation. I want to know your view of how you think devolving policing is going to improve those things.


Well, obviously, the perception of policing has a long, long history at UK level. In many ways, the current adverse perceptions are, I think, part of the reasoning why we should actually be pressing for the devolution of policing.

Putting all that to one side, there is a much deeper rationale, and that is that policing is integral to our justice system. Policing has changed over past decades; it is very much engaged in a whole series of areas where it has to engage with public bodies, public agencies and so on. So, it is part of that social justice jigsaw, and, in many ways, what has happened is, despite it not been devolved, we have engaged with the police and crime commissioners, we've engaged with the chief constables. My colleague the Minister for Social Justice, Jane Hutt, has engaged in putting considerable effort into developing the police partnership, the engagement where all these agencies come together. And it actually makes perfect sense, because, in many ways, so much of it is already devolved. It is just that the structure and the oversight et cetera is not, and when you have devolution that's devolved in different parts of the UK but not in Wales, you have to ask why. What is the logic for it not to be devolved in Wales when there is such a strong social and logical rationale for it to actually be devolved?'

We have a situation now where the police federation are not opposed to the devolution of policing. All the elected police and crime commissioners are fully supportive of it. In all the discussions I have, and the engagement, there is a considerable wave of recognition that this actually makes sense and that it doesn't undermine the cross-border specialisms and so on that take place; all those things remain there. But the devolution of policing, I think, just makes sense, just as it does in London and Manchester, Scotland, Northern Ireland and so on.

Before we even get to policing, you mentioned there that youth justice and probation, which do feature in the Gordon Brown report, which is what you explained to us you're anticipating, have a plausible expectation of, if there was a change of Government, being implemented, and that's why you're preparing. So, what's the expertise available to you in the work that you're doing? You mentioned in your statement two groups that are looking at these areas. What's the level of expertise that you're drawing on, and how is this being funded? Are we going to see when we analyse, for example, justice funding, as we now do, a line that identifies this?

Well, if devolution is eventually devolved in whatever format, then, obviously, the cost of that has to be devolved. It has to follow the devolution. That is an absolute fundamental. How that is worked out, obviously, is something that would be a requirement of a proper, constructive engagement.

The actual work that we're doing now is all contained within existing budgets. A lot of it is work that is actually being volunteered by specialists—people from those sectors who are so concerned and interested in this area that they are actually volunteering their services. We have Dr Jonathan Evans, professor of youth justice policy at the University of South Wales, and he is working in conjunction with another body of specialists within the Wales youth justice advisory group. There is also a probation development group. The one area where we have commissioned some research work is with the Wales Centre for Public Policy, and we are also looking now about developing some of this work into the area of policing, because there's an inevitable overlap.

So, there is not a specific devolution of justice budget. It is coming from those existing budgets where there is already provision for social justice work and so on, and this is really part and parcel of the creation of that.

Okay. We've had an interesting disaggregation of spending lines within justice, but, as this expands, I'm sure we'll get there. Alun, before I bring Adam in. Alun.

I'm grateful to you. I'm grateful to you, Counsel General, for that. I think the statements that you're making, the written statements—you've made a series of written statements in the Senedd about the devolution of policing and other matters, and the rest of it—are always useful to have, because they establish milestones, if you like, and certainly an understanding for us on where you're going. But I think James's question is a good one, as it happens, because it speaks to what this means in reality, and what this means to Blaenau Gwent or Brecon and Radnor, or wherever—Pontypridd. I think it's important that the Government is able to sketch that out. It feels to me that if we talk about policing discretely from the rest of justice, it might well require something like a Green Paper to outline where you believe we are today, what the next steps are going to be, what your objectives are for those next steps, what the timelines are going to be for that, and what you expect to achieve through this process of policy development and, hopefully, legislative action, so that people can actually begin to have the conversation about, 'So, we devolve policing. How does that affect Tredegar? How does that affect Church Village?', so we can have that conversation about taking this forward as a practical necessity.


Well, it is a good question, and, of course, it is not only work in progress but continual work in progress, because of the changing environment in which we exist, and we've seen events that occur. But, for example, the integral role of policing and all the other agencies—housing and community safety, and so on—in some of our communities where anti-social behaviour occurs, is a fundamental part of that jigsaw, and the fact that there is so much engagement now, and there has to be in terms of the way policing operates, in terms of those with mental health problems—those issues—or with violence against women, and so on. Of course, none of that actually detracts from the operational independence each of the police forces actually have, but what it is is the framework within which that operational independence is actually exercised in terms of priorities. We have police and crime commissioners who play a role within that, but the advantage to, I think, the devolution of policing, means that we can actually provide a comprehensive framework that is consistent and that is continuous and that is an integral part of all the elements of devolved responsibilities that make up the social justice sector. That seems to me to be the logic.

Counsel General, I'm already convinced of this. I've been convinced of it for some years. But it's important, I think, to establish the framework for that debate to happen, and I think the Government probably needs to root that in a series of ideas that it wants to take forward, and then to do that in a way that actually says, 'This is what we will do next year. This is what we want to accept and want to achieve by next year. By the end of this Senedd, we will have done the following with the following impact. We expect policing to have this impact on communities in Wales.' Because, with the best will in the world, you know, listening to Welsh Ministers blaming funding from London for issues is not an unfamiliar experience for all of us. Simply having the funding and the budget isn't sufficient, I don't believe, to demonstrate the arguments and to demonstrate the impact on the person in the street of these policies. I think the Government needs to ground that in a piece of work, because at the moment it does feel like there's a lot going on, but we need to gather it together.

I totally agree with Alun, perhaps not on the devolution point of it, but actually, selling it to the public, it does need to have that wider piece of work, and I think, from where I sit in things, just around the resource element as well, is resource going into policing going to pull Welsh Government resource from the NHS, from our education department? I think that's something that really does need to be considered. And one thing that I'm interested in, Counsel General, since the Welsh Government are doing work on this—. The police and crime commissioners are here in England and Wales because of a Bill that was brought through the UK Parliament. I'm just interested—. Would you have police and crime commissioners here in Wales if policing was devolved to Wales? I'm just interested because I'm not quite sure where the Labour Party's view is on PCCs at the minute.

Well, I think the answer is 'I don't know', because I think that is still very much work in progress. One of the things that will be happening, and I do want to happen, of course, is that I want to have further round-tables in terms of the discussion, so we have the clarity of understanding, and you rightly raised that, in terms of what we're talking about and what we want to happen. I'd just give the one indicator—. The first question I asked when they started looking at these things was: we talk about youth justice—what do we actually mean by 'youth justice'? What actually is it? So, getting that understanding was important. But you're absolutely right, and there are papers that are being prepared in respect of youth justice and there's a lot of that work being done, and, at some stage, they have to come together, I think, in a presentation as to what does devolution of these things mean. And I think you're right—there has to be engagement on it, as well as ensuring that it actually happens. But I think, for that to happen, we have to have much greater clarity of what it would actually look like. If a decision were to be taken tomorrow and we say, 'Okay, we're going to do it. What is it you want to happen?', that is what we need to have the clarity of. How would it happen, what would be the benefits from it, how would it work, how would it be reviewed, and so on? So, I think that's where we are. It is work in progress, but it but it is work at pace, and it's work that is oriented towards the practical implementation of change and the options for that change.


Thank you very much. Now, it's early in the afternoon, but I've already lost control of this committee entirely. We've got about two or three questions into the subject matter we want to; we've got another 20 to go and we have 25 minutes. So, we're going to go to our newest committee member, who's going to get us back in shape here. Adam.

Wel, cyn i fi wneud hwnna, Cadeirydd, mae arnaf i ofn dwi wedi cael fy ysbrydoli gan fy nghyd-Aelodau, jest am funud fach, i gadw gyda'r pwnc yma o'r weledigaeth sydd yn gefnlen ar gyfer y cais am ddatganoli—felly, datganoli i ba bwrpas. A dwi jest yn gofyn, Cwnsler Cyffredinol, a fyddech chi'n fodlon ymrwymo i adlewyrchu ymhellach ar yr hyn rŷch chi wedi'i glywed ac ystyried a thrafod gyda chyd-aelodau’r Cabinet a gyda rhanddeiliaid, sydd, fel rŷch chi wedi dweud, yn gefnogol i'r egwyddor o ddatganoli heddlu a chyfiawnder yn gyffredinol, ond y posibilrwydd, wedi hynny, o osod hyn mas, fesul cam—hynny yw, mynd trwy'r camau—gan ddechrau gyda chyfiawnder ieuenctid a'r gwasanaeth prawf, mynd ymlaen i heddlua, ac wedi hynny y system gyfiawnder gyfan oll? Beth fyddech chi, fel Llywodraeth Cymru, yn rhagweld gwneud gyda'r pwerau hynny fyddai'n cael yr effaith o ran y canlyniadau ar lawr gwlad roedd Alun Davies yn cyfeirio atyn nhw? Lle mae'r buddion? Byddai hynny'n gyfraniad gwerthfawr, dwi'n credu, i'r drafodaeth ehangach ynglŷn â datganoli, achos bydd e'n ffocysu—er bydd yna farn wahanol ynglŷn â'r pwyntiau polisi o reidrwydd—ar gwestiynau ynglŷn â strwythurau ac yn y blaen. A ddylem ni gael un llu heddlu i Gymru, er enghraifft? Hynny yw, mae yna wahaniaeth barn yn mynd i fod ynglŷn â'r cwestiynau hyn, ond mi fyddai fe'n ddefnyddiol i Lywodraeth Cymru osod fframwaith, yn gosod mas beth fyddem ni'n gallu gwneud gyda'r pwerau, wrth inni gael y drafodaeth ynglŷn â datganoli ei hunan. A fuasech chi'n fodlon cymryd hwnna yn ôl, trafod gyda chyd-aelodau'r Cabinet, a dychwelyd atom ni gyda rhyw fath o awgrym?

Well, before I do that, Chair, I have been inspired by my fellow Members, just for a moment, to stick to the subject of the vision that's the backdrop for this bid for devolution, and to what purpose. So, I'd just ask, Counsel General, if you would commit to reflecting further on what we have heard and to considering and discussing with fellow Cabinet members and with stakeholders, who, as you've said, are supportive of the principle of devolution of the police and justice in general, the potential, then, of setting this out, step-by-step, starting with youth justice and the probation service, then going on to policing and the whole justice system. What would you, as Welsh Government, anticipate doing in terms of those powers having an impact in terms of the outcomes at grass-roots level, as Alun Davies was referring to. Where are the benefits? That would be a very valuable contribution, I think, to the wider discussion about devolution, because it would focus—there will be a difference of opinion on policy points, of course—questions about structures and so forth, such as whether we should have one police force for Wales, for example. There is going to be a difference of opinion on these issues, but it would be useful for Welsh Government to set a framework in order to set out what we could do with the powers, as we have this discussion about devolution itself. So, could you please take that back to discuss with fellow Cabinet members and come back to us with some kind of suggestion?

Well, the answer is 'yes', and this is an ongoing discussion and debate that we're going to have that I hope will be hardened by a strong evidential base, which is what I've been talking about with regard to the work that's going on. But, just to give you some indications of where some of that work is already going on and which I think fuels the logic of the change: what is the purpose of the justice system? Well, the purpose of the justice system isn't to impose penalties on people or to put people into prison, and we have, as you know, the most extraordinarily high prison rates, and unfair prison rates in terms of the backgrounds of those who end up in the prison system. But, within the family courts, for example, the pilot, even though it's not devolved, that we are part funding—the drug and alcohol court in Cardiff—is now a year and a half down the road, where the object of the court is to actually bring agencies together, so that when you have people there, you look at what the problems are, what it is that has brought people into the justice system. How do you actually solve the problems that lead to them actually being there, whether it is the particular addiction problems that they particularly have, whether many things arise from the housing or the education or, basically, the social environment that they are in? So, it's about addressing those.

Similar is another project that we've been discussing, which is, again, one that's being done and is a MOJ-funded project, but it is about, basically, almost dispute resolution in private family matters, et cetera, where parties are brought together for the interests of the children. It's a project that has proved to be incredibly successful that we would want, if we had the power over this, to have this rolled out much more. So, we've had all those particular meetings. It's also about, for example: how do we keep young people out of the criminal justice system? How do we stop them from getting criminal records, ending up on that road that leads them into prison? And, for example—and I only say this because it's just something that I'm giving thought to at the moment—how might our devolved tribunal system—bearing in mind it deals with mental health, the mental health tribunal, the educational needs, the exclusions, and so on—be part and parcel of it? It seems to me that a lot of youth justice systems would actually well fit within that sort of modelling.

Now, that's obviously work to go on, and the same with probation. The issue of people coming out of prison, the support they get, the housing—all the devolved things that we are responsible for, even though that is not devolved. How do we actually take the measures that are necessary to stop recidivism, stop people ending up back in prison? And we know that where people have, for example, ongoing family contexts, the likelihood of that happening is significantly reduced. So, there's that and many other factors that make this something that is about how we actually co-ordinate devolved functions. But it means that we have to look at the justice system differently to how we have historically, from Victorian days to today, because we still have a bit of a legacy of that, I'm afraid.


Wel, dwi'n ategu eich radicaliaeth, Cwnsler Cyffredinol. Rŷch chi wedi crybwyll fanna y system dribiwnlysoedd datganoledig, ac, wrth gwrs, rydym ni wedi cael papur gan Gomisiwn y Gyfraith yn benodol ynglŷn â hyn. Mi oedd comisiwn Thomas yn cyfeirio ati, a rŷch chi nawr wedi cyhoeddi Papur Gwyn eich hunain. A fedrwch chi jest amlinellu i ni yn fras y gwahaniaethau rhwng eich argymhellion chi a'r ddau gomisiwn arall wnes i eu crybwyll, a'r rhesymau pam, lle rŷch chi wedi mynd ar hyd llwybr gwahanol, a phryd ŷch chi'n disgwyl i Fil gael ei gyflwyno yn y Senedd? 

Well, I do support your radicalism in that regard, Counsel General. You mentioned there the devolved tribunals system, and we had a paper from the Law Commission specifically about this. The Thomas commission referred to that, and you have now published a White Paper yourselves. Could you outline to us in general the differences between your recommendations and those of the two commissions that I mentioned, and the reasons why, where you have diverged, and when do you expect a Bill to be introduced to the Senedd? 

Thank you for those questions. In terms of divergence, first of all with the White Paper, there's got to be scope within it for options for consideration. So, the questions in the White Paper are often presented in a way that invite either approval of a particular approach, or suggestions for differences on that particular approach? I don't see very significant divergences within that. There are some over the educational chamber of the tribunal in terms of exclusions becoming part of the tribunal system, and subsequently, in due course, admissions. There are some issues around how we manage the independence of the tribunals, because we do have to ensure that what we are creating is now a body that is completely independent of Government, and what sort of model that might be. And I think that's still fairly open, other than the fundamental principles that it has to be absolutely secure as a justice system that is independent of Government.

The Ministry of Justice operates an executive mechanism for the management of the justice system. We are looking at the creation of a statutory body at arm's length of Government that would take over that function. Of course, there is always an interlink because, ultimately, it's Government that provides the funding that goes into the tribunals system, but that should not be the mechanism that actually determines how justice is operated, and its independence. I'm not aware that there are any significant areas of divergence within that, although I'm happy to address any ones that you think are or that I may not have identified.  

Ie, jest ar yr un pwynt o wahaniaeth rydych chi newydd gyfeirio ato fe ynglŷn â'r strwythur, yr endid corfforaethol, mi oedd Comisiwn y Gyfraith wedi awgrymu, os ydw i'n iawn, adran anweinidogol fel y strwythur rŷch chi'n tueddu tuag ato—corff wedi'i noddi gan Lywodraeth Cymru—ond rŷch chi'n gosod yr opsiynau gwahanol yn y Papur Gwyn. Ydych chi'n gallu esbonio i ni eich teithi meddwl ynglŷn â pham rŷch chi'n gwyro tuag at y corff wedi'i noddi ar hyn o bryd yn hytrach na strwythur gwahanol?

Just on that same point of divergence that you just referred to then about the structure, the corporate entity, the Law Commission did suggest, if I'm right, a non-ministerial department as the structure that you tend towards—and that would be a body sponsored by the Welsh Government—but you are setting out those different options in the White Paper. Can you explain to us your thought process as to why you are tending towards a sponsored body currently rather than a separate structure?


No, I'll bring James in in a minute, because he's given a lot of thought to that. There are no specific reasons other than the fundamental principle that, whatever model you choose, there are different models you could create. They have to be independent of Government, they have to be at arm's length of Government, so Government is not perceived to be in any way managing or in control of the tribunal system. So, that is one aspect to it.

All of the models have pros and cons to them. Beyond that, one of the reasons it's reflected in the way it is within the White Paper is really to invite those particular considerations from those to make an input into it—

Oh, listen, absolutely. The White Paper is a genuine White Paper consultation where we want to hear the input of those who have expertise within the area, who may have views on it, who may have practical experience as to how one or other different models operate, or even as to alternative models. I think the common agreement will be on the fundamental principles to it. The precise mechanism—. I mean, with a statutory body, if you create it, well of course it’s there permanently. If it’s an executive agency, it's there, Government could abolish it at any particular time. Is that likely to happen? Well, I don’t know. Does that mean that it’s slightly less independent? That may be a matter of judgment. If I perhaps bring James in. Is there anything really to add?

Okay. No, it's the main thing. So, we've been clear in the White Paper that we're not expecting it to be an executive agency for exactly the reason that I think the Counsel General just said—that that wouldn't require any provision in statute, and therefore it wouldn't require statute to remove whatever protections for independence you put in place. So, we're talking about two main models, both of which are statutory, and in a way there are decisions you could take that you could apply whether you go down the sponsored body route or the non-ministerial department route. There are no set rules about who chairs a sponsored body, who chairs a non-ministerial department, who's the chief executive, how they're funded—all of the detail that actually matters is set out in the body of the legislation. 

I think there are differences. I don't think either is inherently more independent than the other. I still am not sure, although we've been looking at it for a while, that we've properly understood all of the implications of the choice. So, non-ministerial department is very feasible as an option, but we're conscious that there is an existing body, the Valuation Tribunal for Wales, that is a sponsored body at the moment, and no stakeholders, including the tribunal itself, have suggested there are any problems with that model in terms of the independence.

There is a difference for the staff of the bodies. So, the staff of a non-ministerial department are civil servants and the staff of a sponsored body are public servants, but not civil servants, so some staff might need to—. Well, either way, I think, some staff will move from one status to another, potentially, so trade union consultation is very important in terms of thinking through the implications of that. It’s quite technical, I think, ultimately, and the important commitment, I think, it seems to me, is that it’s a statutory body, so it has that protection of independence.

Yn olaf, rŷch chi wedi crybwyll y cwestiwn yma o'r graddau y dylai fod dyletswydd i warchod annibynniaeth y tribiwnlysoedd yn cael ei ymestyn o'r Llywodraeth i gynnwys pob Aelod o'r Senedd. Mae yn cyfateb i rywbeth tebyg sy'n bodoli yn yr Alban. Dwi ddim yn siŵr am y sefyllfa yn San Steffan; efallai rŷch chi'n gallu ymhelaethu ynglŷn â hynny. Allwch chi jest esbonio pam ŷch chi'n meddwl bod hwnna'n gwestiwn pwysig i'w ofyn, ac i ba raddau—? Efallai dylwn i, ar y pwynt yma, ddatgan buddiant fel Comisiynydd fy hun, ond a ydych chi un ai wedi neu yn bwriadu cynnal trafodaeth gyda Chomisiwn y Senedd ynglŷn â'r cwestiwn yma?

Lastly, you have mentioned the question of the extent to which there should be a duty to protect the independence of tribunals, and for that to be extended from the Government to include all Members of the Senedd. That does match something that already exists in Scotland. I'm not sure about the situation in Westminster, but perhaps you could give us more information on that. Could you just please explain why you think that's an important question to ask, and to what extent—? Perhaps, at this point, I should declare some kind of interest as a Commissioner, but have you had or are you intending to have a discussion with the Senedd Commission on this issue?


The answer is: I'm not really certain one way or the other over this. What I can say is that my personal thinking on this is disinclined towards the idea that Senedd Members would take an oath on something like this. I think it's what they have in Scotland. I don't know, really, how that is operated, how it is worked out, what the implications are. I see certain problems in, actually, going to the Senedd and what it is you're asking them to make an oath to. What does it actually mean, how does it impact on the ability of the Senedd to operate freely in terms of the decisions it might want to make in terms of legislation? Does it mean, then, that if someone disagrees with legislation and says, 'I don't think this is as independent as it should be,' therefore, you have broken—? It just seems to me it is an unnecessary complication that doesn't really add anything to it, but it's there because it is one of the models that has been put in place. Clearly, people who take up judicial appointments take an oath, just as we do when we become Members of the Senedd, just as we do when we take up Government ministerial positions as well. So, it's there for views within that consultation. I don't think it's a major part of it, but it is one of those factors. It was, I think, referred to in the tribunal in the Law Commission's report. So, it's therefore a valid part of the consultation process in the White Paper.

Beth fyddai diben y peth mewn termau ymarferol, hynny yw, bod Aelodau o'r Senedd ddim yn ceisio ymyrryd yn uniongyrchol mewn prosesau o flaen y tribiwnlysoedd? Neu, hynny yw, a oes ganddo fe'r potensial i fod yn ehangach na hynny, fel roeddech chi'n awgrymu, Cwnsler Cyffredinol, a'i fod e, i ryw raddau, yn lliniaru ar hawl Aelodau'r Senedd i ddeddfu, hyd yn oed, mewn ffordd fyddai'n lleihau annibyniaeth y tribiwnlysoedd? Ac, wedyn, dwi yn gallu gweld eich pwynt, achos mater o farn, mater o bersbectif fyddai hynny, a phwy sy'n arfarnu ydy hynna'n gywir neu beidio? 

What would the purpose of this be in practical terms, that is, that Members of the Senedd wouldn't interfere directly in processes before tribunals? Or does it have the potential to be wider than that, as you suggest, Counsel General, and that it would, to some extent, interfere with the right of Members of the Senedd to legislate, even, in a way that would reduce the independence of the tribunals? And, then, I do see your point, because it's a matter of opinion or perspective, and who evaluates whether that is correct or not?

The answer is: I don't really know what the answer is to that—[Laughter.]—

That's very honest of you, if you don't mind me saying.

—other than, I think, the issue of the independence of the judicial system, which we'd be setting up through tribunal reform, the independence of that is what is determined in the legislation and the Senedd decides what its view is on how that should operate through the legislation that it passes. What would an oath add beyond that, other than confusion over what it actually means in reality—. So, my inclination is that I'm not quite sure that it adds anything. I look with interest to see what the White Paper consultation produces on that.

Thank you. Alun, over to you. We had a session recently with Lord Bellamy, and I think you're going to take us into that territory. 

Yes. He was rushing off, Counsel General, at the end of our session, to visit the civil and family justice centre, a centre you've brought up in committee on a few occasions. I wondered if there was any progress being made as a consequence of Lord Bellamy's visit.

Well, firstly, I was glad that Lord Bellamy, as a UK Government Minister, attended, because it was a specific request that he should go and see for himself. We had raised it with his predecessors and with the previous Lord Chancellor without, in fact, any response whatsoever, more or less. So, it was a positive sign that he went to do that. Just to say, since that occasion, of course, I've been around the civil justice centre in Newport, which, again, to some extent, horrifies me in terms of the state of parts of our courts estate. I was so amazed by this incredible device they've done for a flat roof that leaks. Instead of repairing the flat roof, what they actually have done is created a system of upturned umbrellas, which have a hosepipe to them, so they actually catch the water, which then drains through this hosepipe into a bucket by the wall. I thought, 'Quite ingenious, but is that really how we want our courts to be seen and to operate?'

The point I've made frequently is, within a devolved justice system, I just do not think that we would be able to get away with our courts, of such importance, in that particular state, because not only is it in terms of how the justice system is perceived, it is all the people who have to use those court systems themselves, but also the restrictions it places on the ability to develop the legal economy, to look at the expansion of that.

Getting back to the actual nub of the question that you asked about it, I raised it again with Lord Bellamy last week in a meeting that I had with him. The response, essentially, is that it's difficult, that there are financial constraints in terms of the availability of funding, but can we explore what options there might be in this post-COVID environment if we are looking to develop our tribunal system—and we would want that, independent of Government offices. The Law Council of Wales is looking at a dispute resolution centre. Maybe, in terms of capacity within estates, there are some grounds for exploring opportunities. That is where we are.

Do I think there is any realistic prospect at the moment of significant investment? I'm not getting any indication that there is. We're talking about potentially around £10 million just to put into a proper state the existing civil justice centre in Cardiff. What I'm very keen about is that the legal economy expands and that Cardiff becomes a centre for commercial law, a very significant part of the legal economy internationally. We see it in Bristol, Manchester, London. Why should it not be Cardiff? Why should a capital city not equally have that advantage? The reality is I don't think you can develop that when the first thing people see is a court that is not fit for purpose.


I think it's pretty disappointing that the UK Government is neglecting Wales's needs in this way. I think it's something, perhaps, Chair, we may wish to reflect upon as a committee at some point. But I'm grateful to you, Counsel General, for those responses.

One of the things that have inhibited our ability to debate these matters, of course, is our ability to understand disaggregated data and to have an understanding of the situation in Wales. Cardiff University and the school of governance there have done a fantastic job in actually painting a picture of the system of law and justice in Wales, which we haven't seen before. But one of the conversations that we had with Lord Bellamy was that the MoJ was in discussions with the Welsh Government about how disaggregated data can be developed and published to enable Governments, the Senedd and others to actually properly understand how justice is being administered in Wales and the impact that is having on the population.

The last point you make there is fundamental; if you want to make changes and improvements, you have to understand what is actually happening, which means you have to have that core data, particularly if you're looking at reform. Again, the issue of data is something I've raised, I think, on nearly every occasion when I've met with UK Government Ministers, and opportunities there. Again, it was another matter that was discussed with Lord Bellamy recently. We raised the issue again.

Can I say that there is a lot of cross-governmental support on this? It is something that, I think, there is a keenness to address. We did have a very helpful agreement, after the meeting, that the officials are going to actually work together in terms of identifying where the gaps are in terms of what information we have already, what are the gaps, what work needs to be done to achieve that. Of course, these are similar discussions to those I've had when we met with the Lord Chief Justice as well, and we'll continue to have those, no doubt, with the new Lady Chief Justice that's been appointed. Perhaps if I bring James in to see whether there's anything further he can add about that data disaggregation.

What I'd say is that this is an area where the conversations have been, I think, more fruitful or have felt more granular than in some of the other areas that we’ve talked about. In fact, we’ve shared quite an ambitious set of data. I think we understand that they’re likely to say that their analytical capability will not be able to produce all of these things, at least all of them at once, but we’ve shared a lot of things that—


Sorry, could you repeat that? I didn’t quite catch what you said at the end of that sentence.

Essentially, we have shared a very large spreadsheet with a large number of pieces of data that we would find helpful and we think are important, and they have begun the process of considering that. We don’t think that it’s likely that they’re going to say they’ve got the analytical capability to produce all of those necessarily—

Can I stop you there? Give me an example of where you believe a data set would be useful to the Welsh Government and to the Senedd and anyone else where you are not convinced or don’t believe or are unsure whether the UK Government has the analytical capacity to deliver it. 

First of all, I think there’s just an aggregation question. You could have 100 things that are all possible in and of themselves, but they won’t have enough data analysts to produce all of those 100, so you’re going to have to have a conversation about which ones. But there are things that are collected but not disaggregated, and then there are things that are not collected at all. A classic example you would get, if Dr Rob Jones was here, is the definition of a prisoner as being English or Welsh. They don’t have an agreed definition as to what constitutes an English or Welsh prisoner that is collected at the time when people enter into the justice system, so they then can’t be tracked through the system. So, you can’t say, ‘There are this many Welsh prisoners in England and this many English prisoners in Wales’, and lots of things follow on from that—

Sorry, can I stop you there? I've seen those numbers.

Yes, but not based on a consistent assumption.

Sorry, I don’t want to keep interrupting you, but I just need to understand what you’re saying. Because I’ve seen numbers given to me as a constituency Member on how many people from Blaenau Gwent are actually in the prison estate at any one time. It was given to me some years ago. So, what you’re saying is that those numbers are collected—I suppose from one particular place; you just have somebody with a permanent address or a linked address in that area—but in terms of the totality, there’s no definition of what would be seen as a Welsh prisoner.

Yes, last known address. But we can’t vouch for their accuracy, and we can’t vouch for the integrity of these numbers.

Yes, and also that information will follow them through parts of the justice system, but not others, so the prison service might hold the last known address of all the people in prison, but the police don’t necessarily hold the last known address of all the people who are offending or who are committing particular types of offence. We’re trying to get to that sort of level of granularity, so you can actually track people through the system. But it’s not set up to do that, because it’s not historically been interested in whether people have come from England or Wales, and last known address doesn't necessarily tell you whether people consider themselves English or Welsh anyway, of course, and where they’re likely to be when they come out of prison.

Alun, I wonder if I could just ask—. If that work is progressing well, as you say, and there’s some good engagement on that, I wonder if, at the appropriate time, you could share something with the committee on the detail of what you’re looking at beyond the helpful one example that you’ve used already. We’d like to understand a little bit more about where the challenges lie, but also where you are progressing.

Yes, we'd be very happy to do that. And I would say as well, I think we shared the draft of some with the committee in the past, but we’re also looking to produce some dashboards that will be publicly available with the best data that we are able to generate. There’s the creation of the data, and then there’s the sharing of the data as well. It is useful for us to have it, but we know there are lots of people out there as well who want to see it.

I’m grateful to Mr Gerard for that background, because that’s very, very useful to the committee, but it may be useful for the Counsel General to actually speak about this in public, because I always think that we need a public debate on the sort of data that we require. I accept it might not be the most popular debate that a politician’s ever launched, but it is useful, I think, because different people, different elements of the policy community would want to see different data in different ways. So, I think it would be useful, if you're beginning this engagement or are involved in this engagement with the UK Government, that there's a wider public debate about the sort of data we need and why we need it. 


I agree with that. I think we're still getting to grips with the data that we're beginning to get, the picture we're beginning to get. For example, the work with Cardiff University, which was predominantly based, as I understand it, on freedom of information requests, actually showed the number of persons with Welsh residential addresses in prison, but also the diversity of them, and the really rather shocking data that came out of that, that two thirds of those in prison are from ethnic minority backgrounds.FootnoteLink That is absolutely shocking. That is something you really would recognise needs to be addressed—why that is.

You then have the University of Manchester report, evidence and research that has been done in terms of diversity in the justice system across the board and the implications of that. That is really significant. And also then the rates of imprisonment, why it is that the figures appear to indicate that Wales has the highest, or one of the highest, imprisonment rates in Europe. That in itself is shocking. And that's beginning to tell us the picture that, if we knew all these things, if we had that open data, we would really be asking serious questions about the way the system is actually operating. And the more we find out, the more it actually leads us to this view that things are not right and things need to change. And the question is that you need the data to know what you want to change and how you want to change it. 

Just on that, while you are having these discussions on an inter-governmental basis—and let's hope you will make significant progress to that end—are the Welsh Government in discussion with Cardiff University, the Wales Governance Centre, to continue that work, at least in the interim? You referred to the shocking figures on incarceration rates overall, on the racial injustice of our criminal justice system in Wales, so there's a real imperative, because of other work the Welsh Government is doing in terms of its anti-racism action plan, for example, that we continue to have that data and to delve further into it in order to understand what lies behind it.

I think all these things also begin to produce their own data—the anti-racism blueprint that the Minister for Social Justice has been involved in, and so on. But in terms of ongoing, the actual data structural process—.

I think in terms of the academic community, obviously we welcome this growing academic interest in creating Wales-only data, and we have supported on occasion bids for research funding. We're in conversation with the Wales Governance Centre, and we've had conversations in the past about the potential for collaboration between the Government and the governance centre, but there are limits, I think, to how much—. As in all these things, there are limits to how much we can actually directly spend on generating research into reserved areas. As I say, there's a lot that we would like to know, but our preference on the whole is for the people who already hold the data to make it more easily available, rather than trying to get the independent people to do the job for them. And FOI shouldn't be the right route. 

Could I add one point? Of course, there are various databases or sources of data that are not part of any strategic structure. So, we know within the prison service, in terms of the detailed analysis they've done in terms of everyone who is within the prison service themselves, that there was a considerable amount of data there that I don't think forms part of any structures. This was raised with me at the probation workers conference that I attended that was actually looking at some of these issues. So, there are untapped sources, but it's the work that's needed to actually get those into a system where that data is available, it is consistent and it is usable. So, I think it's the fact that we are now strategically applying our minds to the importance of that data, and data that is very Wales specific, as opposed to England and Wales-specific, that is the really important part.


Right, now then. We're halfway through the innings. This is not test cricket, so we don't have five days with you in front of us; we've got two hours, and we've been very bad here at managing our time, and it's my fault as well.

We'll declare at three o'clock, come what may. So, all I would ask, now, myself as well, colleagues, is to focus on the ones we really want to get to, because we want to make full use of you and all your team here while you're in front of us.

James, you're going to take us into the vexed area of inter-ministerial machinery, which has been the focus of the earlier session today as well.

It has, and inter-governmental relations, as you know, Counsel General, is something that we do like to talk about a great deal in this committee, and how we can actually improve relations across all the Governments of the United Kingdom. But in the inter-governmental review, it did set out the dispute resolution process, so I'm just interested, Counsel General—under what circumstances would that process be engaged?

A very good question. I don't think there is a clear answer to that at the moment. We have the arrangements as part of the inter-governmental agreement from just over a year and a half ago. Of course, part of the purpose to having it is to actually provide a mechanism for avoiding having disputes. So, the processes would start, probably, at inter-ministerial group level, and I think there are about 20 of those. Those operate reasonably well, but they then rise up to the middle tier, which is the Interministerial Standing Committee, which I attend and which has a rotating chair, which is where a number of these disputes are meant to be dealt with and resolved, and then ultimately escalated to the meeting of the Prime Minister and the First Ministers of the devolved Governments.

So far, nothing from any of the Governments has been referred to the dispute process. I know there is a lot of thought that has taken place about how it would operate, what is it that you want to go there, and what is the issue that we're going to take there that would be the first, perhaps, pilot or test of that—what would be the magnitude of the issue that you would want to take there. So, there is thought that is going on in terms of the areas where there are concerns as to how that might be used, but there is no definitive answer I can give you yet, only that we're very aware of it and the question as to how it might operate and what we want to take there, et cetera, is something that is being looked at very closely.

It's interesting, Counsel General, because we've talked about LCMs in this committee a number of times. We talked about one this morning, about how inter-governmental relations work. There are Members on this committee who've been in both Governments and actually seen how that works and, actually, refusing consent of an LCM at one time was an extremely serious matter, and now we seem to refuse LCMs every single week. I don't think that's a position that we should be in. We should always try and find a consensus that actually works in the best interests of the devolution settlement, to make sure that things are working here for Wales. So, I'm just interested, do you think that the LCM process is something that should be taken through here, and perhaps should have been in the past, and should be something that the Government look to do before we actually have votes in the Senedd, so we can actually say to Senedd Members, before Government recommends refusal, that all avenues have been taken to actually address the problem in front of us, so that, actually, we're not tending to be voting for something on policy grounds, but it's actually been through a mechanism to see could we find consensus?

That might work in theory in terms of one of the models. Part of the problem is this. Firstly, if, say, for example, the issue is lack of engagement and there's a dispute over that—'You haven't engaged with us properly over this really important piece of legislation'—do you refer it up then through to the IMSC, then up to the meeting of the First Minister and the devolved Governments' First Ministers? Does it then go into a  dispute process, by which time, by the time that's happened, it's too late anyway, because the Bill's already got its passage through Parliament? There is a real sync issue in terms of whether it would be appropriate to take all those sorts of issues, and whether they are the sorts of issues you would want to take on every single occasion, to go all the way up through that particular process. I mean—

Sorry, Counsel General, but do you think doing that, though, would actually focus hearts and minds on actually getting these things right, getting the engagement right, rather than this long, drawn-out process—that this could be a mechanism to actually nipping all of this in the bud early on?


Only theoretically, because in practice, when you have Bill that's continually changing, continually being added to, and you see the number of supplementary legislative consent memoranda and so on, it's because of the very nature of legislation and the speed at which it is being pushed through. Take the recent strikes and minimum service levels Bills being pushed through with a very fast agenda. Would it have been feasible to do that? Well, possibly.

I think what is more likely to be the scope for dispute is in respect of Sewel overall. That is, we have here an example that, in the last 18 months or so, we've had eight or nine major breaches of Sewel, or potential breaches of Sewel, and you would refer something, collectively, to that. It might be on the financial aspects, for example. It might be in terms of whether the Barnett formula, et cetera, the consequentials, are being properly dealt with. It might be something to do with HS2, for example, in terms of would that be—. So, those are things that are happening. But they're also things that might be common across the different devolved Governments, and so on. So, those are the things that, really, I think, require quite careful planning and careful consideration as to what you want to take and the preparation that's necessary in terms of the outcome that you want out of that process.

With a lot of legislation, of course, one of the difficulties every time there's a dispute and taking that through the disputes process, is, of course, we do have a mechanism whereby—. There are considerable backward-and-forward negotiations that are taking place over a period, quite often, of a considerable number of months over the legislation before, eventually, there's either a concession to recognise that, yes, we won't do this as concurrent, and so on, we won't take concurrent powers here, and so on. And that process almost has to take its course as well. So, it's a very diverse series of things that are happening that don't fit very easily, to take this one issue there.

The crux of the problem with Sewel is either the lack of codification of Sewel—the lack of clarity as to what it means, and the diverse ways in which it is treated—. The fact that we don't have a common position any more, I think, in terms of what Sewel amounts to, is really the core of the problem. Now, maybe that would be the mechanism, by taking all the disputed legislation we've had, collectively, and trying to use the disputes process to try and resolve that. But, can a disputes process resolve what is, ultimately, a political process of a constitutional disagreement that doesn't have a real justiciable status?

So, I'm sorry if these are rather confusing answers, because there isn't really a very clear answer to it other than we know that it's there and, at some stage, it is going to be used. The question is what it is that we will take through it as really the first pilot so see how it actually operates.

James, do you mind if I ask—? Counsel General, if the Sewel convention and the different interpretations of it and its non-functioning, as you've described it eloquently and several times, is the crux of the matter, how do you then resolve that? Is it the inter-governmental machinery that you've described?

Well, the problem is, I think we've got to a situation where a number of things are happening. One of them is political. That is that there is a disregard for Sewel; it doesn't really matter what you decide, what you do, where you go with it, even if you go to disputes processes and so on, this is what we're going to do. You probably heard some of that from your previous witness. I think we're in a situation where you're in a year leading up to a general election—if I put this way, the dying embers of a Government—and, quite frankly, individuals who either don't know about devolution or don't particularly care about devolution, and they're going to do their own thing anyway. I think there's the politics of that.

Let me just push back a little bit, because Alun wants to come in, and then I'm going to bring James back in. If I accept what you're saying, which is that this is not the best time to look at that in the run up to a general election some time—

Right. And then, previously, we've been in the post-Brexit legislation period, which was not the ideal time to deal with these things in a calm—. I come back to my question: how do you resolve this issue? Does Welsh Government, Scottish Government and others have the means within the new inter-governmental machinery or elsewhere to resolve these issues?


Yes. The previous evidence session was pretty extraordinary in many ways. The Minister for Climate Change was very clear in her evidence to this committee that the reason for a failure to deliver an LCM for 51 weeks was due to a lack of engagement from the United Kingdom Government and a lack of knowledge within the United Kingdom Government on the basics of the devolution process. Now, given the evidence we've received from yourself and the First Minister over a number of years about the improving relationship and the inter-governmentalism as well as the inter-governmental agreements that have been put in place, that's a pretty strong condemnation, if you like, of the relationships within these islands, that a Minister can come to this committee and say that civil servants in London do not understand the devolution settlement in terms of the Energy Bill and the structures there. Ministers in the energy department disregard this place and disregard the settlement, and as a consequence, we're unable to deliver the basic Standing Orders of this place and the basics of Sewel in the way in which you've described. Now, that doesn't speak to me about an issue that comes and goes; it speaks to me of a systemic failure of inter-governmentalism. 

Yes. That was one particular example. There are others, of course, where, clearly, those officials who are engaged do understand.

And the Minister did reflect, to be fair to her, that, in other areas, it did work.

So, there is that, and there is a lot of good co-operation that works there. Ultimately, the officials are there to do the bidding of what the Ministers are directing.

They're there to advise and so on. Ministers, though, ultimately are the people who decide the direction. I mean, I'll give you the example we had with the retained EU law Bill. It was raised up to inter-ministerial level; the discussions we've had on a number of occasions were—. Well, the reason why we've got these concurrent powers that we've taken with these, is because the process of actually having to make so many changes, it may be to your advantage that you'll say, 'Can you do these on our behalf?' et cetera, et cetera. It was put to the UK Government then, 'Well, in that case, you'll have no problem, will you, with the idea that you should then have the consent of Welsh Government in respect of those'. That was not on the agenda, and, of course, we've been through concurrent powers and we still don't have a consent regime.

So, what is said and what happens in practice are different things. It would be naive to not believe that there were political interests in this in terms of the actual role of devolved Government and curtailing, really, the impact of Sewel. And I think that is what is happening—a normalisation of breaching Sewel, that Sewel is something you seek to achieve rather than something that has a constitutional status that has to be complied with.

I attended the public lawyers' annual general meeting in London and addressed them right at the beginning. It was interesting because the opening speaker was Robert Buckland, who basically explained why the Bill of Rights Bill was wrong and should not proceed; that was something that I very much welcomed. But, put it like this: Sewel is, effectively, as I describe it, the oil of an engine. If you take the constitutional arrangements as an engine, it's the oil that makes that engine actually operate. When Sewel breaches, the engine seizes, and that, I think, effectively, is what has begun to happen. So, there are some positives in terms of arrangements in certain areas, but in some of the most important areas, Sewel is being disregarded and you'll see, and I've described in really quite vivid terms what I thought of the way the UK Government's interpretation of Sewel or the way it was operating now is happening.

James, let me come to you for a final question on this section.

Yes. It's just that you say, Counsel General, that your view is that the UK Government is disregarding Sewel. You said in the Chamber that they use a

'centralised, unilateral and destructive approach to the devolution settlement'.

If you believe that and the way that things are coming through, there are these inter-governmental mechanisms now to sort these problems out. You said earlier that you haven't used the dispute resolution process yet, but if you strongly believe that these things are not working, surely, as Counsel General to the Welsh Government, you should be saying to departmental Ministers, 'Take this piece of LCM, or whatever issue you've got, through the proper mechanism to sort it out'. Because if we carry on doing this politicking for a term, saying, 'We don't agree with this' and we just vote something down, there are mechanisms there, and they have to be trusted, they have to be tried. So, do you accept that, sometimes, Counsel General, you should be advising Ministers to go down this route rather than just saying a blanket 'no' to everything? Because if we don't sort it out, what's the point of having the process in the first place?


I think there's a general view that the mechanism will be used.

Look, I think the question is precisely what we bring to it and what it is we want to have coming out of that. So, it is not the case that there's a disregard for it, but it is getting to the stage where that is going to happen. I don't think it is appropriate for every single dispute that happens on a piece of legislation, individually, to go through that, because the likelihood is that the fast momentum of legislation, the continual changing nature of that, is something that makes it very, very difficult to happen. But I think, collectively, in terms of the principles—. I'll give you one example: at the Interministerial Standing Committee, I sent a letter that basically outlined all the individual pieces of legislation we had concern with, put it in very robust terms, the way in which the mechanism was failing and so on. I've taken it up through the Interministerial Standing Committee. It has been taken away to be looked at, so that is using the process of that meeting—that meeting was chaired by Michael Gove. We're waiting to see what the full response is to that. It might be that that is something that we then take further, but the problem at the moment is we have not exhausted fully the steps that lead up to that. But you're right—I think we're at a stage now where, to put it bluntly, there's nothing left to lose.

On the not-using-it point, can you then see where other Governments could say, 'Well, this is just a bit of political mischief making. They're saying 'no' to these Bills, but not going through any process to try and get them resolved formally, which is in place, because of politics'. And, actually, what's the point of even having these structures if Governments in any part of the UK don't want to use them? It could be because we're running up to an election, who knows? But my personal view is that things should be tried and tested. Give it a chance to work, because, other than that, what is the point of us even trying to invest in a secretariat or anything if the Government aren't interested in it?

I do agree, but you have to be aware, I think, of the discussions that take place and the positions that are taken by Government Ministers when Bills are going through. But you're right, and I think we will get to a stage, probably in the not-too-distant future, where that process is actually used.

Okay. I think we've probably gone as deep as we want to go there for now. We might write to you on some of these areas with some follow-up questions as well. You mentioned a letter there. I wonder, if it is possible, whether you could consider sharing it with the committee.

Yes, I don't see any difficulty with that. I'll happily give that to you, yes.

That would be really helpful. Thank you very much.

Let's move on to another area, which is UKIMA, the United Kingdom Internal Market Act 2020. We won't spend too long on this, but can I just draw your attention to the written statement of 18 August, where you said that the Supreme Court's decision to reject your application for permission to appeal the Order of the Court of Appeal in relation to the claim for judicial review of UKIMA, in quotes,

'left the door open for this matter to be considered at an appropriate time in the future.'

Well, the Act is now operating; we've got examples that come in front of this committee. Is it still your intention to bring forward an appropriate legal challenge against the UK internal market Act, to test it, and, if so, what would that be?

What the Court of Appeal said, what the Supreme Court said was, 'Well, of course, until we've actually got something practically in front of us, we can't really determine this. We can't really determine it purely on the sort of principled arguments that you're putting. We need to see what would happen in practice'. And, of course, the Environmental Protection (Single-use Plastic Products) (Wales) Bill was one of those where we thought, 'Well, this is likely to receive a challenge to it because it contains items within it that go beyond any of the other similar legislation.' Of course, when legislation is passed, you get to the stage where either I can refer it to the Supreme Court or the Attorney-General can refer it to the Supreme Court. The view I took is that we are clear in the position we've put, and that is that the Government of Wales Acts of 2017 and 2006 are not legally trumped by the internal market Act. That is, it's a protected, constitutional piece of legislation and, therefore, that's what stands and it doesn't restrict our powers to operate. I took the view that I wanted to see whether the Attorney-General would accept that or would refer it to the Supreme Court. The Attorney-General chose not to refer it to the Supreme Court and has not made any adverse comment on it whatsoever. I intend to take that as being an acceptance by the Attorney-General of the arguments that we have maintained in terms of our devolved powers, our constitutional powers. Now, that doesn't mean that the issue is completely resolved. I think it is an important precedent. I didn't think it was appropriate, having got to the stage where the Attorney-General was saying that it was within our competence, that I should then say, 'Well, hang on, I'm going to refer it to the Supreme Court, just in case', because I'm prepared to accept that the Attorney-General has effectively accepted the legal analysis that we have.

There will be, clearly, other areas, I think, that will emerge. I don't believe this issue has gone away. So, we reserve our position in respect of a challenge. It might be in other areas; it might be, for example, in terms of deposit-return schemes, and so on. My role in this is not to interfere in the policy of the Minister that has that particular portfolio, but, of course, I pay attention to what the competence issues are and the constitutional issues that concern me. The stage may come where there is a challenge to what we might want to do. It might relate to some of the action being taken or being proposed in respect of food standards, and so on—things like that. And I think there are a number of issues that are arising where it may well be that these matters do end up in the Supreme Court, and those points are there.


Would you accept that we need to draw a clear definition between the issue of competence and the issue of the practical delivery of policies that are decided within Wales, through Welsh legislation and Welsh policy frameworks, and how UKIMA bites on it? Because this is one of the challenges we've had in trying to engage with Ministers, who will say, 'As far as we're concerned, UKIMA does not bite'. And then we say, 'Ah, that's quite interesting, because we can see exactly how UKIMA may bite'.

Well, I think we can only work by the analysis we have of what we think is the true position and what should be the correct position, and I think the two coincide. And our position, if our position is genuinely—and it is genuinely—that UKIMA does not impact on the devolved powers we have and the ability we have by virtue of a protected constitutional piece of legislation, tour obligation then, I think, is to proceed on that particular basis. It seems to me—

Well, the policy is effective until such time as it is challenged. So, the Environmental Protection (Single-use Plastic Products) (Wales) Bill, which is now an Act, is effective, it has not been challenged and it is the law. And I think we proceed on that particular basis. It is up to others if others believe or think that this is out of competence, and then there are those that have those powers to be able to make those challenges, either on a private basis—that is, either from industry or externally—or from the Attorney-General's office itself. And I think, were that to happen—and I hope it will not happen—then we will put our legal arguments and we will basically defend our constitutional status.

Thank you for that. Alun, you're happy that we've covered questions that we wanted to on that issue of UKIMA, yes?


The Office for the Internal Market provides a great deal of advice to all Governments of the United Kingdom. I'm wondering how you're engaging with them, but also, perhaps more importantly, how you believe the work that they do, as well as the Competition and Markets Authority do, can actually help, support and sustain policy making within the Welsh Government.  

Obviously, the Office for the Internal Market is essentially an advisory body but a body that can put together evidence and assistance in terms of the operation of the internal market. How do they operate? Well, it seems to me that its main function would be to operate in conjunction with the common frameworks, and that is that where issues of internal trade, and so on, are covered by the areas of the various common frameworks, and that if there were requests or actions for exclusions, and so on, within that, or there was interest in what the implications of certain policy proposals might be, then they would be actually a source of doing that. And, of course, they do have—I have met with them—a presence now in Wales itself, which I think is important.

So, I think that is something that would fall into other ministerial portfolios, because it's more to do with the development of policy. By the time I'm looking at these sorts of issues—and I do try and look at a spread across nearly all legislation—that is, are there any issues that impact on the constitution or the integrity of the Senedd? Those are the aspects that I look at in terms of what the legislation is. So, there is a role there. I think it's an untested role as to how that works out, but I think that would more likely be something that other ministerial portfolios would engage with themselves. If they did engage with them, then, obviously, whatever conclusions they came up with would be something I would be interested in, certainly in terms of the operation of the common frameworks, but also if there were any internal market issues that had emerged.

Okay. Thanks, Alun. We're going to move on to the issues relating to the Retained EU Law (Revocation and Reform) Act 2023, which itself has been very much a moving feast as well, with lots of changes, even in recent weeks there. I've just returned now from the UK-EU Parliamentary Partnership Assembly. We heard there that the European Commission is working its way through the list of retained EU law in Schedule 1 that's going to be written at the end of this year. We've had a letter from you hot off the press, and we thank you for that, and in that letter you said that your assessment is

'that there are no apparent problems for areas within devolved competence'. 

So, have you reviewed the Schedule to assess its implications for Wales more broadly, not just within matters within devolved competence, because there could well be a read-across here? We know that environmental bodies have concerns about Schedule 1 of retained EU law to be revoked. The Welsh Government's own interim environmental protection assessor, who appeared in front of another committee that I sit on, has told the Senedd that the Bill, now an Act, is a big concern. So, are you scanning this? Are you doing the detailed work? 

The first thing that changed, which was very welcome, of course, was the decision to abandon the sort of Blitzkrieg abolition of all retained EU law by 31 December. 

But there's a temptation there to step back and go 'Whew, that's over. We'll sit back'. 

Well, there was a bit of that, because I think there's a certain justification for that, not just for Wales but for Scotland and, I think, for the UK Government itself. So, we have these 600 pieces that are the ones that have been identified. So, what has been able to happen is to basically turn the focus onto those—what are they, what is the impact of them, what is the analysis of those? Now, that is work that is in progress that officials have been looking at. They've been engaging very closely with UK Government officials as well. I suppose, in terms of the outcome of that, the position that we have is that we don't think that there is anything there that causes us any concern in terms of— 

What I'll do is I'll bring in Dr Robert Parry now, who perhaps might be able to tell us a little bit more about that process. 

Just to flesh this out a little bit, we're a little bit worried that we might not be taking as proactive a step, particularly after, as you’ve described it, the Blitzkrieg approach has gone, and then we take a step backwards. But we still have to do the analysis of not just what’s within competence with Schedule 1, but also the wider implications of the REUL. Are we on the front foot with this, Mr Parry?


We have been through the instruments in the Schedule and taken into account the point that you've made for at least certain instruments. You kindly read out what we'd put in the letter, and I think that reflects our position. It's a bit of a—. We are being asked to prove a negative, if you like, which is—. I think it's difficult to do that completely, 100 per cent. But, insofar as we’ve been able to go through the Schedule, as I said, as far as we’ve been able to identify it, we don’t think there are problems arising from the revocation of those instruments. 

Are there any limitations on—? Sorry, I'm not sure whether to address this to you or to the Counsel General.

Are there any limitations in the approach you're taking—you have constraints through resources, constraints through—? Is there anything holding you back from applying a forensic analysis to this? Not just what's been presented to you, but you doing your own detailed scoping?

Well, my understanding is that the analysis that's been done of those—. And of course there is still ongoing analysis; I understand that, in fact, UK Government have identified a certain number that actually have absolutely nothing whatsoever to do with Wales or even the UK, but some were there that would be need to be removed, which obviously don't cause us any concern. Our interest is: do any of those impact in any adverse way in terms of either the constitutional integrity or in terms of the standards that we have? Are they, essentially, things that are by and large not relevant to us or have no impact on us or are basically just technical, minor changes that need to take place because of changes in names and so on, things that may have been omitted from the general process that this committee has been through, looking at many, many pieces of legislation and trying to correct as a consequence of leaving the EU? I don’t know whether there’s anything—. Is there anything more than that that you can add, Robert?

I don't think so. I think, from the UK Government's point of view, the Schedule was put together very quickly, so I think it's not inconceivable that the UK Government itself may reassess what's in the Schedule. I have no detailed information on that. But, as I said, we've been through the Schedule and we haven't identified problems that would arise from the revocation of the instruments in the Schedule, as far as we're able to determine. 

And what's your response—before I pass to James—to the wider concerns that are still out there, including from environmental non-governmental organisations, for example, within Wales, about the wider impacts, not just within competence, but the wider impact of the REUL and how that will wash over? Are those concerns misplaced?

I'm not aware of them; they would come up with other ministerial portfolios. None have been identified. I think the crux of our oversight approach on this is you've got these 600 items, analysis is obviously being carried out by those officials with expertise in those particular areas to identify are there any of those pieces of legislation, any of those items, areas that would cause us concern if they were revoked, are there any adverse or unforeseen potential consequences that we would begin to be worried about and so on. As I understand it, it is still work in progress that is going through it, but at this stage the oversight of that is that, in actual fact, rather pleasingly, we have no major concerns at this stage about that. But obviously that will be something that we will want to scrutinise much more closely leading up to that particular point as well. But the engagement with UK Government officials as well, et cetera, is equally important, and that’s continuing.

No. No, we're doing our own analysis, our own understanding of what they are. We have officials with considerable expertise in these areas of agriculture, food standards, environmental issues and so on. 

Diolch, Cadeirydd. There has been concern, Counsel General, that the Bill does give very broad powers to both Ministers here within Wales and Ministers of the Crown at the UK Government, and there is a very, very serious risk that the Senedd would be bypassed completely with regard to scrutiny, and also with UK Government Ministers coming into devolved areas and actually making powers in devolved areas. So, what I want to know is: what is the Welsh Government going to do to minimise the risk of the Senedd being bypassed, and how are you, as Welsh Government, going to ensure that Senedd Members in the Chamber behind us are able to fully scrutinise anything that comes forward, to actually make sure that we are doing our jobs here, as elected by the people of Wales?


Well, thank you for that. The starting point, of course, is that we've opposed all along the concurrent powers, and it was the primary basis—. There were a number of others as well: the regulatory burden issue, the divergence issue, the intervention powers of the law officers et cetera. But the most significant one—the glaring concern we have—is, of course, the concurrent powers, because we do not see a logic to that; that is a breach of Sewel, and that’s why we refused legislative consent.

It's a matter that was raised—I raised it very strongly—at the Interministerial Standing Committee meeting. I think that we do have a concession, which is, basically, that they will not engage those powers. This is not on the face of the Bill. This, again, is one of those dilemmas in terms of legislation and within these areas, but we have a concession, I think in writing, that, basically, the UK Government—it is in correspondence—will not legislate in these areas without the consent of Welsh Government. I don't know whether—. Is there anything that you can add to that? No. So, that is where we are on it.

At the moment, we don't know what may happen in those particular areas. Obviously, there will be areas that we will want to be looking at the legislation ourselves, in particular areas in terms of standards and so on. But, equally so, UK Government will be looking at legislation, and we have to engage with them to know what their interpretation is and what they are actually proposing. They may actually choose to do nothing, but there may be areas where they do choose to seek to affirm or to revoke, for example, EU legislation. But the concession we have at the moment, although it's not on the face of the Bill, is that the UK Government will not do that in devolved areas unless we consent to it. So, we'll have to see how that operates.

So, just to—. On what we discussed earlier, if they do go back on their word and the concession that you have had, what is the Welsh Government going to do to ensure that there is proper scrutiny of all of this legislation? 

Well, if that were to happen, then the ultimate position we have is that we legislate ourselves in an area to recreate standards or to re-establish new standards, for example.

Adam, I'm going to come to you in a moment, just for anything that you want to add in terms of legislative consent, because we've covered it in some detail, but you might have something to add. But before I do, I just want to ask one key question here on the area we're just on, which is: you have got the powers to save retained EU retained law from Schedule 1, but those powers have got to be used before 31 October. Do you plan to use them?

I think the answer is 'no'. Because our analysis of those powers is that they don't cause us any concern, et cetera, if they are revoked, then there's effectively nothing for us to do. 

Fel rŷch chi'n ei ddweud, Cadeirydd, rŷn ni wedi treulio tipyn o amser y prynhawn yma ar y diffyg democrataidd, fel mae’r pwyllgor yma wedi ei ddisgrifio fe, yng nghyd-destun y memoranda cydsyniad deddfwriaethol—erydu Sewel, confensiwn Sewel, ond hefyd nifer cynyddol y memoranda cydsyniad deddfwriaethol sy’n dod atom ni. Hyd yn oed o fewn unrhyw femorandwm, wedyn mae yna femoranda atodol sy’n cymhlethu pethau ac yn ei gwneud yn anodd i’r Senedd yma wneud ei gwaith o ran craffu. A dyna’r cwestiwn yr hoffwn i ffocysu arno: yn y cyd-destun hwnnw—sy’n anodd, yntefe, yn sicr—beth mae Llywodraeth Cymru yn gallu ei wneud i helpu’r Senedd i wneud ein priod waith ni o graffu? A oes unrhyw syniadau, argymhellion, cynigion gyda chi er mwyn ein cynorthwyo ni i wneud hynny yn fwy effeithiol nag rŷn ni’n gallu ar hyn o bryd?

As you say, Chair, we've spent a great deal of time this afternoon on the democratic deficit, as this committee has described it, in the context of the legislative consent memoranda—the erosion of the Sewel convention, but also the increasing number of LCMs that come before us. Even within a specific memorandum, there are supplementary memoranda that come forward that complicate the scrutiny function of the Senedd. So, in that context—and that difficult context, certainly—what can the Welsh Government do to help the Senedd to undertake our task of scrutiny? Are there any ideas, recommendations, proposals that you have to assist us to fulfil that scrutiny function more effectively than we currently can?   

Well, I think, across the board, we're all concerned about the scale of LCMs, or the scale of UK Government legislation that requires LCMs. Because LCMs are not something where we really have a choice. By Standing Orders, if UK Government—. I think we've got 38 pieces of UK Government legislation, and we've had 86 LCMs or supplementary LCMs as a consequence. If UK Government doubled the number of UK Government Bills, then, presumably, those figures would double again, and we'd be talking about 160, 170 legislative consent memoranda, because our Standing Orders require that if there's legislation that does two things: (1) if it impacts on the powers of the Senedd or Welsh Government Ministers, it requires legislative consent; the second aspect, of course, is things that may be in a reserved area, but impact on the exercise of devolved responsibilities, the classic being the Illegal Migration Bill, which is a reserved area, but has a significant impact in a whole variety of other areas. So, we have to bring those in.

Of course, this committee is absolutely right, that is part of the nature of our constitutional structure at the moment. It takes up a high degree of time, but, of course, what it does do is, in the formation of that legislation, to some extent, limit the area of scrutiny. The scrutiny of the Senedd is, essentially, in terms of the extent to which it scrutinises a Bill that's taking place in Westminster, or scrutinises the legislative consent memorandum, or scrutinises Government Ministers in terms of the negotiations or discussions that are taking place inter-governmentally. So, it is a factor.

It's a factor that could be improved very significantly were there to be, firstly, a much stronger constitutional status for Sewel. I think that would change the nature of LCMs dramatically, and that's why I'm very supportive of the approach that's been adopted in the Gordon Brown report in terms of Sewel, but, equally so, in terms of early engagement, that is, proper engagement on a parliamentary basis, which should happen with properly thought-out legislation. It is not unfair, I think, to say that the UK Government's legislative programme, the way it has gone about it and the way it has been chopped and changed as it has gone along has been chaotic. You, obviously, heard evidence earlier today in respect of the Energy Bill. That is a classic, perhaps a more extreme, example of it, but there are others as well. The fact of the matter is the system is not working in the way that produces or should be able to produce good-quality legislation that is a product of proper engagement amongst all those legislatures that have an interest in it.


Mae'r achosion hynny lle mae Llywodraeth y Deyrnas Gyfunol yn gweithredu mewn meysydd datganoledig yn groes i ewyllys y Senedd, wrth gwrs, yn peri pryder. Ond mae yna enghreifftiau, onid oes e, lle mae'r ddwy Lywodraeth wedi medru dod i gytundeb ar ôl anghydfod, lle mae Llywodraeth y Deyrnas Gyfunol wedi hynny yn gosod gwelliannau ar lawr un o'r ddau Dŷ yn Senedd San Steffan sydd wedi cael eu drafftio gan Lywodraeth Cymru. Yn y sefyllfa yna, oni fyddai fe'n bosib, Cwnsler Cyffredinol, i greu gofod i'r lle yma, y Senedd hon, weld y gwelliannau drafft yna cyn iddyn nhw gael eu gosod yn y lle arall, boed hynny trwy bwyllgor neu ar lawr y Senedd, fel ein bod ni yn cael cyfle fel Senedd i roi ein barn ni ar y datrysiad arfaethedig i'r anghytundeb sydd wedi bod yn wreiddiol rhwng y ddwy Lywodraeth?

The cases where the UK Government operates in devolved areas contrary to the wishes of the Senedd are a cause of concern, of course. But there are examples, aren't there, where both Governments have been able to come to an agreement after a dispute, where the UK Government then tables amendments in one of the Houses of Parliament that have been drafted by or with the Welsh Government. In that situation, wouldn't it be possible, Counsel General, to create a space for this place, for this Senedd, to be able to see those draft amendments before they are laid in the other place, be that in a committee or on the floor of the Senedd, so that we as a Senedd have an opportunity to share our views on the proposed solution to the dispute that there has been originally between the two Governments?

Well, there certainly should be a much better mechanism for scrutiny of legislation and engagement with devolved Parliaments and devolved Governments. The momentum and the way in which legislation takes place at the moment I don't think are particularly conducive to that, and that's why we, effectively, have the legislative consent process that we actually have. It should be the case that legislation or amendments that are being proposed in Westminster to legislation should be capable of being not only debated, but in terms of recommendations in terms of the direction that should take. That would require a far more sophisticated legislative framework than the one we have at the moment. The legislative consent mechanism that we have is very much a top-down one, isn’t it? That is, UK Government is taking a decision on legislation in an area that it’s chosen to engage in, to potentially legislate in certain areas; do we agree, or don’t we agree to it? And that really puts most of the responsibility into the hands of Government to engage with that. There are, of course, some mechanisms, but it is not the same as a complete parliamentary mechanism.


I just wanted to just, very briefly, just on that, but taking that process through, this is a very unique or a very particular set of circumstances, so these are amendments, and Ministers in Westminster are often explicitly saying, 'This has been drafted by the Welsh Government and we’re happy to table it to solve the problem.' Presumably, even in very truncated processes, there will have been a point, there will be a process, won’t there—? There will be a timetable when a problem has been identified; you’ve drafted an amendment as a solution, and then it will take some time to come to agreement, and then it will eventually be tabled. Is there no point, early on in that process even, when you have an idea about a solution to the problem and it’s in the form of an amendment, when you could bring it quickly to some form of scrutiny process here? Because it is troubling, isn’t it, that we have a Government here that is tabling legislation, it’s actually drafting the legislation, but there is no legislative scrutiny here at all, and there is in two Chambers in Westminster.

In theory, one would want that to be the case; in practice, you have to see what the processes or amendments were, as you can get literally dozens or hundreds of amendments coming through at different stages over periods of time. Many of them are whittled away. Many of the ones that we’re mainly concerned with are the ones that we engage with UK Government on, saying, 'This is unacceptable; we can’t recommend legislative consent if this happens or that happens.' It goes backwards and forwards and so on. So, you have a process, almost a sort of ping-pong process in terms of negotiations and engagement, that probably doesn’t fit in easily with the idea that every time that happens it goes for scrutiny in the Senedd, because what you’d be doing, effectively, is almost creating a parallel process as to what was happening in Westminster; whether we have the capacity and time to do that—. Certainly, a more truncated process at a stage; now how that might work, I’m not completely sure, but in terms of whether it’s supplementary legislative consent memoranda, or whatever—