National Assembly for Wales

Prynhawn da. Croeso, bawb. Welcome to this afternoon's meeting of the Legislation, Justice and Constitution Committee. Just as a reminder, the meeting is being broadcast live on Senedd.tv and the Record of Proceedings will be published as normal. Apart from procedural adaptations for conducting these proceedings in a virtual format, all the other Standing Order requirements remain in place. So, if we can just make sure—and I'm doing that myself—that all our mobile devices are switched to silent mode. We are operating through the mediums of the Welsh and English languages. We have interpretation available during today's meeting and, of course, just a reminder that the sound operator is controlling our microphones. With that—and we're fully quorate; all Members are here—we're going to get under way.

We move to item No. 2, then, instruments that raise no reporting issues under Standing Orders 21.2 or 21.3. We have one item here under this section. It's SL(6)416, an affirmative resolution instrument, the Representation of the People (Electoral Registers Publication Date) (Wales) Regulations 2023. The regulations extend the deadline by which electoral registration officers must publish revised versions of the registers of local government electors maintained for areas in Wales for the year 2024 to 1 February 2025. There are no reporting points. Are we happy to agree that? We are. That's good.

We'll move on to item No.3, where we have instruments that do raise issues to be reported to the Senedd under Standing Orders 21.2 or 21.3. So, we'll begin here with item 3.1, a made negative resolution instrument, SL(6)414, the Education (Student Loans) (Repayment) (Amendment) (No. 3) Regulations 2023. In our papers, we have a draft report and a letter from the Minister for Education and the Welsh Language. These regulations amend the Education (Student Loans) (Repayment) Regulations 2009 to cap the interest that would otherwise be payable on certain undergraduate and postgraduate student loans. The regulations also provide for the fixed instalment rate for plan 1 student loans to be calculated in the same way as for plan 2, plan 3 and plan 5 student loans. Now, our lawyers have identified one technical and three merits reporting points. Kate, is there anything you want to flag for our committee members here?

The first technical reporting point just notes that it's a composite instrument, so it's been made in English only. The first merits point is noting that the regulations are implementing a permanent provision to create an in-built cap on interest rates where this would otherwise exceed the prevailing market rate, and this avoids the need for amending regulations to be made each quarter, which is what happens at the moment. The second merits point notes that there's been no consultation. And then, the final merits point asks the Welsh Government where this monthly interest rate cap will be published. We have received the Welsh Government's response, but we've literally only just received it, so we'll give it proper consideration and bring it back to you next week.

That sounds good. Are we happy to agree those reporting points and that our lawyers will take that away and consider the Welsh Government response for next week? Thank you, Kate.

That takes us on, then, to item 3.2, SL(6)415, the Renting Homes (Miscellaneous Amendments) (Wales) Regulations 2023. Again, we have a draft report in our pack, and a Welsh Government response. These regulations make amendments to three sets of regulations made in 2022. The changes being made do various things, including clarifying when compensation is payable to the contract holder and to correct errors in the English language text. Our lawyers have identified two technical reporting points. Back to you, Kate, please.

Thank you. Both of the technical reporting points identify inconsistencies between the Welsh and English language texts of the regulations, and, in addition, the second point also identifies that the regulations failed to correct an existing error in the prescribed form that is being amended. In response, the Welsh Government takes the view that the issues identified with the Welsh text do not cause any problems. The Welsh Government acknowledges that it's regrettable that the existing error has not been fixed, but the Welsh Government takes the view that this has no impact on the operation of the regulations.

Thank you, Kate. Okay, are we happy to agree those reporting points? We are.

So, we'll move on then to item No. 4. We've got several items under this, which is instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 that we've previously considered. The first of these, under item 4.1, is SL(6)404, the Environmental Protection (Single-use Plastic Products) (Civil Sanctions) (Wales) Regulations 2023. In our papers, we have a report and Welsh Government response. We considered this instrument at our meeting last Monday, and we laid our report the same day. So, we invite Members to note the Welsh Government response to the report that since been received. Kate, any comments on this?

Yes, if I could just draw your attention to the response to the fourth reporting point, which asked the Welsh Government how the requirement to provide information would be enforced. The Welsh Government's response is that there is no mechanism to enforce this requirement, and so you may just wish to note that it is not good practice to include an unenforceable provision in legislation, and, in this case, the regulations enable a regulator to require a person to provide information, but that person will not face liability for ignoring such a requirement.

Thank you very much, Kate, and it's good to have that on public record. We may come back to that in private session, as to whether there's anything we do beyond putting that on public record here today, that we don't consider that good practice. But, colleagues, you're happy to agree those points there. We are. Thank you.

In which case, we go on to a number of items that are grouped together for discussion this afternoon. These items are 4.2, 4.3 and 4.4. These are SL(6)405, the Waste Separation Requirements (Wales) Regulations 2023; SL(6)406, the Prohibition on the Incineration, or the Deposit in Landfill, of Specified Waste (Wales) Regulations 2023; and SL(6)407, the Prohibition on Disposal of Food Waste to Sewer (Civil Sanctions) (Wales) Order 2023. In our packs, colleagues, we have a report, the Welsh Government response, a separate report and the Welsh Government response, and a separate report and the Welsh Government response—to these three regulations. Now, we considered these three instruments at our meeting last Monday and we laid our reports the same day. So, again, as per normal, we're inviting colleagues to consider the Welsh Government responses to the reports, which we've now received. Kate, is there anything from a legal perspective you want to draw our attention to? 

Yes, thank you. Overall, these are really helpful responses. Particularly, they each include a table that sets out how each instrument will be amended prior to making to address the majority of the points. However, there is an inconsistency between the responses in relation to a reporting point that was raised for each instrument. Those reporting points relate of the Welsh words used to mean 'determine' in the context of determining variable monetary penalties in paragraph 11(1) of each Schedule to each instrument. Taking into account the Welsh Government’s responses, it appears that there are going to be two different Welsh words used in equivalent provisions across three sets of regulations, and so that inconsistency could cause confusion as to whether or not the provisions are in fact intended to have the same effect. There’s also a lack of clarity in the Welsh Government’s response to a related reporting point about the Welsh words used to mean ‘determining’ or ‘establishing’, and, in this case, the Welsh Government’s response doesn’t appear to actually address the reporting point that was raised, so you may just wish to consider writing to the Welsh Government to get some clarity on these two issues.

Fascinating. Yes, thank you, Kate. Again, we’ll return to it in private session, but that aspect of consistency in legal terminology is the same in Welsh as it is in English, so I think we will return to this in private session and see how we can assist the Welsh Government in this in our role as the LJC committee. Thank you, Kate. Are we happy to note those reporting points? We are. Good.

We’ll move on to item 4.5, which is SL(6)410, the Regulated Services (Special School Residential Services) (Wales) Regulations 2023, and we have a report and a Welsh Government response in our pack. Again, we considered this instrument at our meeting last Monday. We laid a report the same day and we’ve now had the Welsh Government’s response. Kate, what did you make of this?

In its response, the Welsh Government acknowledges that it would have been better to precisely signpost where the definition of ‘hospital’ may be found in other legislation, and so we’ve got no further comments from a legal perspective.

That’s great. Thank you. If we’re happy to note that, colleagues, then we’ll move on then to item No. 5. Thank you very much for that to our legal colleagues here on the committee.

Item No. 5 is notifications and correspondence under the inter-institutional relations agreement. The first of these items is item 5.1, where we have a letter from the Minister for Economy in respect of the Interministerial Group for Trade. Just to formally note this correspondence, which we considered at last week’s meeting, it informed us of a meeting of that Interministerial Group for Trade being postponed, but I draw your attention to the follow-up letter from the Minister now, in which he informs us that the meeting has been rescheduled for Wednesday 29 November 2023—this week. And the Minister confirms that the agenda will cover the ongoing negotiations with India, the UK-US state level memoranda of understanding, the upcoming World Trade Organization thirteenth ministerial conference, and engagement between devolved Governments and the UK Government around negotiations. So, there’s plenty of interest to us and to other committees in that agenda here in the Senedd.

Then, we have item 5.2, correspondence from the Minister for Finance and Local Government in which she informs us that a meeting of the Inter-ministerial Group for Housing, Communities and Local Government is due to take place on 13 December. And the Minister tells us that agenda items will include the supply of affordable housing and building safety, and that the Minister for Climate Change will attend as the item falls within her portfolio. The Minister also undertakes to provide an update following that meeting.

I’ll keep going through this—this is the final item of correspondence related in this section, colleagues. We have correspondence, under item 5.3, from the First Minister about the fortieth summit meeting of the British-Irish Council, which was hosted by the Government of Ireland last week. And the First Minister tells us that the theme of the summit was transforming children’s lives, tackling child poverty and improving well-being, and that he will undertake to share a communiqué detailing the discussions that were held in due course. Are we content to note those items of correspondence? We are.

In which case, that takes us on, then, to item No. 6, which is papers to note. The first of these—in fact, there’s only one in this section today—is item 6.1. We have correspondence from the Minister for Economy in respect of the Trade (Comprehensive and Progressive Agreement on Trans-Pacific Partnership) Bill, which was introduced into the House of Lords on 8 November. In the correspondence, the Minister advises that the Welsh Government's initial analysis is that the Bill makes relevant provision for the purposes of Standing Order 29 and will therefore require a legislative consent memorandum to be laid. However, the Minister states that consideration of how certain provisions in the legislation could potentially influence Wales's future policy-making activities in certain areas means that the Welsh Government's analysis is proving more complicated than originally anticipated. So, the Minister states that the legislative consent memorandum will be laid as soon as possible. However, he confirms that this will be outside the normal two-week deadline. I suspect it's as they unravel those complexities it's probably going to be laid in time to be considered by the Business Committee during December. Alun, let's come to you.

Thanks very much, Huw. This raises a number of issues, doesn't it? We're going to be discussing later on in the meeting issues around UK legislation. Now, this implements a trade agreement. I would suggest that it probably has two impacts that we should be considering. First of all, a constitutional impact on the settlement, which the Minister seems to be referring to in that paragraph. But, secondly, of course, it has an impact on our trade and our economy. And it appears to me that we wouldn't be doing people a service if we simply considered this as an LCM. I think this raises some really serious issues around the ability to trade and also the constitution. So, I think we just need to bear that in mind as a committee and, if we have the opportunity, to ask the relevant policy committee to perhaps do more than simply note an LCM, because given the timescales I doubt if we've got much time to do very much. But, we certainly need to, for example, ask the farming unions what they think of these things, because I can imagine that they would be pretty devastated by some of the provisions in it. 

Thank you, Alun. Some really good points there. And these areas over the international trade agreements and also, in a slightly different way, the operation internally of the United Kingdom Internal Market Act 2020 within the UK and the impact on devolved competences now and in the future have been something of a theme for this committee. So, I think, if Members are happy, we'll return to this in private session and take up Alun's point there, because there may be something for us to do and there may be something that we can do in concert with other committees, seeking their assistance to consult with others. The timescale, of course, is very, very short indeed, but that doesn't mean we can't do anything. Thank you, Alun. In which case, we'll return to that in private.

Before we do go into private, there's one final thing we need to do, colleagues, under item 7. Next week, I will be away at the PPA, which comes under the partnership agreement, in London. Also, this committee will be considering not only our regular run of regulations, statutory instruments and so on, but also the issue of Senedd reform, as well, will be coming back. As I won't be here, I wonder if we could agree a replacement Chairman for that meeting. Alun has offered. Could I just put that to the meeting? We're content. Thank you. Alun is chuckling away. I didn't— 

The word 'offered' is doing an awful lot of hard work in that sentence. [Laughter.]

Alun, genuinely, I really appreciate it, and committee members do as well. There will be somebody substituting for Alun, then, because he's chairing it, and somebody substituting for Adam as well, possibly, for next week, but we'll get all of that in order. Thank you very much for that. So, that was in accordance with Standing Order 17.22, we have nominated and agreed a temporary Chair for the meeting of 4 December, and that will be Alun Davies, as nominated there, I think, by James and seconded by Adam. 

We'll then move to item 8, a motion under Standing Order 17.42 to resolve to exclude the public for the remainder of the meeting so that we can go into private discussions. Are we content to do so? We are. We will move into private session, and we will wait until our clerking team tell us we are in private.