National Assembly for Wales

I welcome Members to this week's virtual meeting of the Legislation, Justice and Constitution Committee. In accordance with Standing Order 34.19, I determined that the public are excluded from the committee's meeting in order to protect public health. In accordance with Standing Order 34.21, notice of this decision was included in the agenda for this meeting, published last Thursday. This meeting is, however, being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual. Aside from the procedural adaptation relating to conducting proceedings remotely, all other Standing Order requirements for committees remain in place.

Apologies have been received from Suzy Davies, but we welcome David Melding, who is attending as substitute. Now, the usual housekeeping arrangements apply. Can I just ask if there are any declarations of interest? I don't see any declarations of interest, so we move straight on to the agenda.

So, we're on to item 2: the Education (Student Support) (Miscellaneous Amendments) (Wales) (No. 2) Regulations 2020. These regulations are made under the Teaching and Higher Education Act 1998. They make amendments in relation to the payment for financial support to students studying courses of higher or further education. Are there any legal comments? Any observations from Dai, Carwyn, David? I see there are none.

We move straight on, then, to the European Union (Regulated Professions Proportionality Assessment) (Wales) Regulations 2020. You have before you the report, the regulations and the explanatory memorandum. I think the explanatory memorandum starts at page 23 in my bundle; I'm looking at and reading mine on the iPad. The Welsh Ministers are required to complete proportionality tests when regulating professions. The purpose of these regulations is to transpose into domestic law the relevant EU directive, which established a detailed framework for conducting such tests before adopting new or amending provisions relating to the regulation of professions. Senedd lawyers have identified one technical point for reporting, in addition to noting implications as a result of the UK's exit from the EU. Over to you, Gareth.

The technical point simply notes some incorrect cross-references to the European Union (Withdrawal) Act 2018, and the Welsh Government has not yet responded.

Okay. So, are there any other observations—Dai Lloyd, Carwyn Jones, David Melding? No.

In which case, we go straight on to the Health Protection (Coronavirus, International Travel and Public Health Information to Travellers) (Wales) (Amendment) Regulations 2020. Again, you have the report, regulations, explanatory memorandum, and the letter from the Minister for Finance and Trefnydd, and, again, a written statement. These regulations amend both the Health Protection (Coronavirus, International Travel) (Wales) Regulations 2020 and the Health Protection (Coronavirus, Public Health Information for Persons Travelling to Wales etc.) Regulations 2020. A number of merits points have been identified—Gareth.

Yes. There are five merits points, starting on pack-page 22. The first merits point notes a breach of the 21-day rule and the reasons given by the Welsh Government for the breach. The Welsh Government says this was part of a UK-wide approach to dealing with international travellers coming to the UK. The second merits point notes the Welsh Government statement that these regulations have the potential to impact on human rights, but then any such impact is justified. The third merits point notes the review period for international travel regulations changed from a review every 21 days to a review every 28 days. This is part of a UK-wide approach, creating a consistent review date for each of the four parts of the United Kingdom. The fourth merits point notes there's been no public consultation or regulatory impact assessment in respect of these regulations. The fifth merits point notes that these regulations correct some incorrect cross-references that were previously raised by the committee. Given the nature of these reporting points, the draft report does not request a Welsh Government response.

Okay. Are there any other comments or observations, Dai Lloyd, Carwyn Jones, David Melding? If not, then we'll move on to the next set of international travel regulations—the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) Regulations 2020. You have again before you the various papers. These regulations impose requirements on persons entering Wales after being abroad, and they make amendments to remove Serbia from the Schedule 3 list of exempt countries and territories. Schedule 3—they were originally within the list and are now being exempted. There are some technical and merits points. Gareth.

Yes, there's one technical point and four merits points, starting on pack-page 54. The technical point is that in one place the regulations say 'international travel amendments' when they should say 'international travel regulations'. 

The first merits point notes again another breach of the 21-day rule. The Welsh Government says there was urgent need to remove Serbia from the list of exempt countries. The second merits point really notes how quickly things change. The original list of exempt countries, which included Serbia as an exempt country, came into force on 10 July. By the next day, these regulations were in force, removing Serbia from the list of exempt countries. The third merits point notes the Welsh Government's paragraph from the explanatory memorandum regarding human rights and the Welsh Government's statement that the regulations are justified. The fourth merits point notes there's been no public consultation, which the Welsh Government says is due to the serious and imminent threat arising from the coronavirus pandemic. Again, given the nature of these reporting points, the draft report does not request a Welsh Government response.

Okay. Are there any other comments or observations, Dai Lloyd, Carwyn Jones, David Melding? I think we note the various points there, and appreciate the attention to detail, Gareth, with those slight drafting errors.

In which case, we move on, then, to the next set of international travel amendment regulations of 2020. It's item 3.4. These regulations also amend the Health Protection (Coronavirus, International Travel) (Wales) Regulations 2020 to remove Spain from the list of exempt countries and territories. Again, several merits points have been identified. Gareth.

Yes, two merits points, starting on pack-page 67: the first, again, noting another breach of the 21-day rule, and the second merits point notes how difficult it can be to find the right guidance. The merits point gives an example of someone going to the Welsh Government website, being directed then to the UK Government website, only then to be redirected back to another part of the Welsh Government website. A Welsh Government response has been requested in respect of that merits point.

Okay. Well, we'll see that response when that comes through. Are there any other observations? I suppose just to make the point that we are in a very fluid situation and, of course, these changes may emerge from time to time, depending upon the international data that Government receives. Any comments, Dai Lloyd, Carwyn Jones, David Melding?

If not, we move on to item 3.5, the Countryside Access (Local Access Forums) (Wales) (Coronavirus) Regulations 2020. These regulations make temporary provision in relation to the administration of local access fora to ensure that they are able to continue to meet and take decisions during the period of disruption caused by COVID-19. I think one merits point was identified, Gareth.

Yes, one merits point on pack-page 78, just noting there's been no formal consultation, but the Welsh Government says it has been in regular contact with local authorities and Natural Resources Wales. The draft report does not request a Government response.

Any comments or observations? I don't see any.

In which case, we move on, then, to item 3.6: the Relaxation of School Reporting Requirements (Wales) (Coronavirus) Regulations 2020. Again, you have the various papers before you. These regulations make amendments to several sets of regulations in relation to school reporting requirements, and, again, these have been made in response to the impact of coronavirus on schools. Again, a number of technical and merits points—over to you, Gareth. 

Yes, one technical point and four merits points, starting with pack-page 90. The technical point raised the question about the retrospective operation of these regulations, but the Welsh Government response, which was received on Friday, and will be included in the final version of the report, disagrees that there is retrospective provision. I would say I agree with the Welsh Government—these regulations seem to bite on the future provision of information and what that future information can include. Therefore, I don't think there is an issue with the retrospective application of the regulations.

The first two merits points note some typographical errors in the footnotes in the regulations. The third merits point notes the reasons given in the explanatory memorandum for there being no regulatory impact assessment. The fourth merits point notes that the effect of the regulations could have been made clearer, especially around what information must be provided to parents of registered pupils regarding the school year 2019-20. The Welsh Government response accepts the regulations could have been clearer, but it is also satisfied that the legal effect of the regulations is as intended.

Okay, we note that, and also note the comments on retrospectivity. Any other comments or observations? I see there aren't any, in which case we move on to the Coronavirus Act 2020 (Assured Tenancies and Assured Shorthold Tenancies, Extension of Notice Periods) (Amendment) (Wales) Regulations 2020. We also have a letter with the papers from the Minister for Finance and Trefnydd of 23 July 2020, and also the written statement. These regulations essentially temporarily extend from three months to six months the notice periods that landlords must give tenants under the Housing Act of 1998. The notice periods had already been extended by three months by Schedule 29 to the Coronavirus Act 2020, and obviously these are extensions taking place within the context of the public health issues arising from COVID-19. Over to you, Gareth—a number of technical and merits points. 

There are three merits points, starting with pack-page 105. The first merits point notes the breach of the 21-day rule, and the second and third merits points are in the same sort of area. They ask the Welsh Government to set out its justification for the human rights impact of these regulations, given there is no reference at all to human rights in the explanatory memorandum. The Welsh Government has not yet responded to the merits points.

Yes, I notice in the pack the reason given, that

'Due to the urgent timetable there has been no time to carry out a meaningful consultation or a Regulatory impact Assessment.'

That's the point you make there. Are there any comments or observations? There aren't any, then.

We move on to 3.8: the Representation of the People (Electoral Register Publication Date) (Wales) (Coronavirus) Regulations 2020. Again, we have the report, the regulations, the explanatory memorandum and a letter from the Minister for Housing and Local Government on 17 July 2020. These regulations set a revised date of 1 February 2021 for the end of the period during which revised versions of the electoral registers of local government electors for the county or county borough local government areas in Wales must be published. This is in accordance with section 13(1)(a) of the Representation of the People Act of 1983. The current deadline is 1 December 2020, so there's a significant extension there. You'll notice the letter from the Minister, which really responds to the various concerns that we raised with her at the start of July. Gareth, over to you for merits points. 

Yes, one merits point, on pack-page 126, simply noting that the revised date for publishing the register is around three months before the date of the next Senedd election, and, of course, to vote in a Senedd election, you must be registered in the relevant local government register. The draft report does not require a Welsh Government response to that point. 

Okay. Any comments or observations? Dai Lloyd. You're muted.

Just to reiterate the point I made in the earlier meeting, really—the timings are incredibly tight here. I note what the Minister has said in response to that, but, frankly, there is no scope for error. It's a complicated enough situation with registering electors as it is, and the timings have just got incredibly, incredibly tight, and I'd continue to flag up that as a challenge.

Yes, I think we all note that—an incredibly tight timetable. Any other comments or observations?

If not, then we move on to the three sets of regulations that are all scheduled to be debated in this Wednesday's Plenary meeting, which relate to the restrictions that have been put in place in Wales as a result of COVID-19. I'll take them individually as we go through them, if that's okay. The first one is the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020. We have the papers, a letter from the Minister and a written statement. This is item 3.9. The regulations revoke the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 and all the regulations that have amended them. The regulations were made on 10 July. Over to you, Gareth.

Yes, if I could just give a bit of background, Members may remember that two previous sets of coronavirus regulations were not considered in Plenary because they were revoked and consolidated into a new set of regulations. Well, these are the new consolidated regulations, though, by today, they've already been amended three times. 

On these consolidated regulations, there are three technical points and six merits points, starting on pack-page 137. The first and second technical points turn on the drafting of the commencement provisions of the regulations. We believe there is a small error, which means that some of the regulations may not have come into force immediately, as was planned. The third technical point notes several differences between the Welsh text and the English text. 

As to the merits points, the first merits point asked the Welsh Government to be a bit more specific in its assessment of how human rights are being affected. The point is raised given the impact the coronavirus restrictions have on human rights.

The second merits point asked the Welsh Government to clarify how the concept of extended households works when one of the households is in Wales and one is in England, and maybe a practical example might help readers understand how the restrictions apply.

The third merits point asks the Welsh Government to clarify how should owners of self-contained accommodation check whether they are letting the accommodation to people who are all in the same household. It's an offence for an owner of self-contained accommodation to let the accommodation to people other than people in the same household, so those owners are likely to want to know how exactly they can comply with the law so that they do not commit a criminal offence.

The fourth merits point notes that the regulations expire on 8 January 2021 but that the explanatory memorandum says they expire on 9 January 2021. This may simply be a typographical error in the explanatory memorandum, but these are particularly important regulations. 

The fifth merits point seeks clarity from the Welsh Government on various things relating to powers of entry and fixed-penalty notices. For example, do officers who exercise a power of entry have to provide evidence of their authority to enter premises, or do they just have to identify themselves? And if the restrictions are breached in a national park, to whom would a fixed-penalty notice be paid?

The sixth merits point welcomes that the explanatory memorandum includes a summary of the equality impact assessment carried out, which is something raised in one of the committee's previous reports. 

Okay, thank you for that, and, of course, yes, we asked for those—we raised those issues with regard to the equality impact assessments, and I think it was the issue also raised by the Equality and Human Rights Commission with us. Just to mention that, of course, I'll be speaking on these three sets of regulations—this one and the next two—in Plenary on Wednesday, so a number of these are points that will obviously be made. Any other comments, observations, from Members? No. I see there are none. 

We move on, then, to item 3.10, which are, again, the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) Regulations 2020. These regulations amend the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020, which we've just considered. They were made on 17 July. Over to you, Gareth.

There are three reporting points, starting on pack-page 183. And the three merits points raise inconsistencies and typographical errors in the footnotes and the explanatory materials to these regulations. The Welsh Government has not yet responded. 

Okay, so we await that response and, of course, these regulations I think increase the enforcement provisions as well. So, we move on to—. Are there any observations? No. Move on to item 3.11, which is the next set of amendments, which make further amendments to the regulations, and the regulations were made on 24 July. And you've identified two further merits points, Gareth.  

Yes, starting on pack-page 198. The first merits point questions the need for the additional word 'or' included in the regulations, and the second merits point notes there's been no consultation or regulatory impact assessment for these regulations. 

Okay. Well, as I mentioned, we'll make these various points when we have the debate in Plenary. They are important points—these are important regulations—but we understand the context within which they're being made. Any comments or observations? If there are none, we move on to the Land Transaction Tax (Temporary Variation of Rates and Bands for Residential Property Transactions) (Wales) Regulations 2020. You have the various papers, including the letter from the Minister for Finance and Trefnydd. These regulations were made on 22 July. They amend the Land Transaction Tax (Tax Bands and Tax Rates) (Wales) Regulations 2018 to provide for a temporary variation to the tax bands and percentage tax rates of land transaction tax applicable to certain residential property transactions.

The Minister for Finance and Trefnydd has indicated that she intends to hold the Plenary debate in respect of this instrument on 29 September 2020. So, these are important taxation changes. There will be a full Plenary debate. Are there any comments or observations to be made now? 

There's one merits point on pack-page 219. It notes the helpful explanation provided in the explanatory memorandum of how the temporary variation of land tax transaction tax works, but the merits point also disagrees with what the explanatory memorandum says would be the effect if the Senedd annulled or did not approve the regulations. It is our understanding that the effect would be that, at the end of the day of such a vote, that is when these regulations would cease to have effect, and, if anyone paid less tax before then, then that wouldn't be a case of underpayment; it would simply be a case of paying the correct tax that was in place at the time. 

Okay. Any comments or observations on that? If not, we move on to item 4. 

Item 4.1, the Education (Induction Arrangements for School Teachers) (Wales) (Amendment) (Coronavirus) Regulations 2020. Now, we considered this instrument at our meeting on 6 July. We laid our report on 13 July. We have now had a response from the Government; I think you have a copy of that. Any comments on that from the lawyers? No. Okay. Any other comments or observations? If not, we move on to written statements under Standing Order 30C. 

We have the European Structural and Investment Funds Common Provisions and Common Provision Rules etc. (Amendment) (EU Exit) (Revocation) Regulations 2020. You have the written statement and the commentary. The Welsh Government's written statement provides notification that it has consented to the making of the European Structural and Investment Funds Common Provisions and Common Provision Rules etc. (Amendment) (EU Exit) (Revocation) Regulations 2020. The statement notes that there is no divergence between the Welsh Government and UK Government on the policy for the correction. Are there any comments, Gareth, to be made? 

Only to note that a set of regulations made in 2019 were needed in case the UK exited the EU without any deal, including without a withdrawal agreement. Given that there was a withdrawal agreement, those 2019 regulations need to be revoked. 

Right, okay. And Government have had that drawn to their attention.

Item 5.2, the Cleaner Road Transport Vehicles—. Sorry, I beg your pardon—any comments or observations from Members on those? I didn't see anyone raising their hands.

So, we move on to the Cleaner Road Transport Vehicles (Amendment) (EU Exit) Regulations 2020. Again, the Welsh Government statement provides notification that it has consented to the making of the Cleaner Road Transport Vehicles (Amendment) (EU Exit) Regulations 2020, and, again, the written statement notes that consent was given as there is no divergence between Welsh Government and UK Government on the policy for the amendments. Any comments from the lawyers?

The deficiencies being corrected by these UK Government regulations include things like changing references to a relevant EU state to a reference to the United Kingdom, and changing references to amounts in euros to amounts in pounds sterling. However, with regard to the written statement itself, there's very little detail included, and there's no statement as to what, if any, impact the regulations have on the powers of the Senedd or the Welsh Ministers, and such a statement is required under the Standing Orders.

Okay. Any comments, observations? No. We note that.

We move on to item 6, then, papers to note. We have the letter from the Counsel General with regard to the Joint Ministerial Committee with regard to EU negotiations. So, we're invited to note the letter from the Counsel General, which informs us of his attendance at a meeting of the Joint Ministerial Committee on the EU, which took place on 16 July 2020. This, of course, is a letter that we've received in accordance with the inter-institutional relations agreement that we have with Government, and it just informs the committee—. Sorry, a letter informing us of the outcome of the meeting hasn’t been received by us yet, but we should receive that in due course. Any comments, observations, on that?

If not, we move on, then, to the letter from the Minister for Education—Disapplication of Curriculum Requirements in Wales Notice 2020. We're just, again, invited to note that letter, which responds to queries that we raised following our previous scrutiny of the notice. Any comments, observations? No.

Again, a letter from the Minister for Environment, Energy and Rural Affairs on the Agricultural Wages (Wales) Order 2020. Again, to note the letter from the Minister, which responds to, again, queries that we as a committee had raised following our scrutiny of the Order. Any comments, observations? No.

A letter from the Minister for International Relations and the Welsh Language—ministerial forum for trade. Again, we've had a letter from the Minister, which informs us of her attendance at a meeting of the ministerial forum for trade, which took place on 21 July, and the letter again is one that's been sent to us in accordance with the inter-institutional relations agreement and, in due course, we will receive a letter on the outcome of the forum meeting; we haven't had that yet. Any comments, observations, on that?

Okay, moving on, then, 6.5, a letter from the Minister—data on access to justice. This was the letter that we sent as part of our inquiry on making justice work in Wales, specifically the issue of data on access to justice. Just to mention also that the First Minister and Counsel General have both accepted our invitation to attend our meeting on 12 October to discuss justice matters more broadly, and, if there are any issues on that, perhaps we can discuss those in private session. Any comments, observations, on the letter? We're well aware, I think, obviously, of the difficulties that exist, but also the lack of real, I suppose, processes in respect of Welsh data. That, obviously, is being addressed, but, clearly, we're not in a position at the moment to make massive progress on that. So, there will be, obviously, still issues there on the amount of information that we've got.

In accordance, then, with Standing Orders 17.42(vi) and (ix), I invite the committee now to resolve to exclude the public from the remainder of the meeting. Do Members agree? Okay, so we now move into private session.