National Assembly for Wales

Prynhawn da. Good afternoon, everybody. Welcome to this virtual meeting of the Legislation, Justice and Constitution Committee. Can I welcome Natasha Asghar, who's come to join us on the committee? We've had no apologies. I'd also like to thank Sam Kurtz for his contribution. As a reminder, the meeting is being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual. Please can Members ensure that all mobile devices are switched to silent? Senedd Cymru operates through the medium of the Welsh and English languages. Interpretation is available during today’s meeting.

Can we please go on to item 2, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, made negative resolution instruments? I'm suggesting that we group items 2.1 and 2.2 together. The two sets of regulations introduce a new dispute-resolution process relating to a tenant’s request for landlord consent to an activity that is restricted by the terms of their farm business or agricultural holding tenancy agreement, so that the tenant can apply for and access financial support under the Agriculture (Wales) Act 2023 or meet a statutory obligation. These regulations relate specifically to tenancies under the Agricultural Tenancies Act 1995, and those under the Agricultural Holdings Act 1986. The agricultural holdings regulations also update the suitability test for the Agricultural Land Tribunal. 

Senedd lawyers have identified seven technical and three merits reporting points in relation to the agricultural tenancies regulations, and nine technical and three merits reporting points in relation to the agricultural holdings regulations. A Welsh Government response has been requested to both draft reports. I’ll now pass over to Kate from our legal team.

Thank you. The majority of the technical reporting points on both sets of regulations are seeking further information from the Welsh Government, and, as both sets of regulations are making dispute-resolution provision for different types of agricultural tenancies, we've asked the Welsh Government to explain some inconsistencies between the two sets of regulations. So, for example, the agricultural tenancies regulations give the tenant a period of two months to refer a request to arbitration, whereas the agricultural holdings regulations are giving a period of four months for the same thing. It would just be helpful to understand from the Welsh Government why the different types of tenancies are being treated slightly differently, and we're just waiting to receive a response from the Welsh Government to both draft reports.

Thank you very much. Do Members have anything they wish to raise? No. Are we happy to agree the reporting points? Yes, you're all nodding. Thank you.

On to 2.3, the Education (Student Finance) (Miscellaneous Amendments) (Wales) Regulations 2024, paper 3, draft report, these regulations amend various regulations that make provision about, and in connection with, eligibility requirements for student finance. Senedd lawyers have identified four technical reporting points. A Welsh Government response has been received. I’ll now pass over to Kate from our legal team. Kate.  

Thank you. Two of the technical points are identifying historic errors in the legislation that's being amended by these regulations, and, in response, the Welsh Government confirms that it will be looking to make the necessary amendments in the next appropriate instrument, which is likely to be in early 2025. The other two technical points are just noting typographical errors in the instrument, and so, on these points, the Welsh Government confirms that it will look to correct these via a correction slip.

Thank you. Members, do you have anything to raise? Are we happy to agree the reporting points? Yes, okay. Thank you very much.

Item 2.4, the Government of Maintained Schools (Training Requirements for Governors) (Wales) (Amendment) Regulations 2024, paper 4, draft report. These regulations amend the 2013 regulations of the same name that set out the training requirements for governors of maintained schools in Wales. Senedd lawyers have identified two merits reporting points. A Welsh Government response has not been requested. I’ll now pass over to Kate from our legal team. 

Thank you. The merits points here are just drawing Members' attention to some of the information that's provided in the explanatory memorandum, specifically about consultation and about the regulatory impact assessment that was carried out in relation to these regulations. As these are just points to note, we haven't requested a Welsh Government response on this one.

Thank you very much. Do Members have anything to raise? No.

Item 3, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3—previously considered. Moving on to item 3, we have instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 that have been previously considered by us.

Item 3.1, the Procurement (Wales) Regulations 2024. A letter from the Cabinet Secretary for Finance, Constitution and Cabinet Office on 2 September 2024 and a letter to the Cabinet Secretary for Finance, Constitution and Cabinet Office in July 2024. We considered and reported on these regulations on 24 June. In her letter, the then Cabinet Secretary responds to our further request for clarification, regarding observing and implementing international obligations. Kate, do you have any views on this?

Yes, just that the Welsh Government were using outdated names in the regulations. So, for example, the National Assembly for Wales Commission, and they said that that was because of concerns about breaching international obligations if they were to use the correct name. So, it's obviously helpful that this letter provides more detail about that reasoning and it also confirms that they are now content that it would not breach international obligations if they were to change the name, and so amending legislation will be made. From a legal perspective, we'd just note that it would've been preferable if this could've been resolved before the first regulations were made, rather than requiring an amending instrument, but given that the correct names are going to be used going forward, that's obviously the most important point.

Do Members have any comments or observations? No. Okay. On to item 3.2, a letter from the Cabinet Secretary for Education, 13 August 2024. We considered and reported on these regulations on 8 July 2024. In her letter, the Cabinet Secretary confirms the matters that were corrected prior to the making of the regulations. Kate, do you have any views on the Cabinet Secretary's letter to draw to Members' attention?

We've got no particular comments on this. Thank you.

Do Members have any comments? No. Item 3.3, the Cockle Fishing Management and Permitting (Specified Area) (Wales) Order 2024. We considered and reported on these regulations on 16 July. 
Kate, do you have any views on the Welsh Government's response to draw to Members' attention? 

Just to note that the Welsh Government agrees with the majority of the reporting points and they are going to make corrections by spring 2025. In relation to some of the other reporting points, the Welsh Government considers that no clarification is needed. So, Members might just want to be aware that the committee's legal advisers would take a slightly different view; we think that further clarficiation would've been beneficial for users of the legislation, but, ultimately, that is a matter of judgment for the Welsh Government. So, we can agree to disagree and we wouldn't propose raising any further comments from legal.

Just one comment I'd make before we move on: if anybody feels that there is a need for clarification, I would've thought it would be good governance for the Government to respond by providing that clarification whether they thought it was needed or not. That's just my thought on it. Have Members got anything further to add? No.

Item 3.4, the National Health Service (General Medical Services Contracts) (Prescription of Drugs Etc.) (Wales) (Amendment) Regulations 2024. We also considered and reported on these regulations on 16 July. Kate, do you have any views on the Welsh Government's response to draw to Members' attention? 

Yes. The reporting point here was identifying a lack of clarity in one of the definitions and, in response, the Welsh Government accepts that further clarity is required and they say that they will make the provision clearer within the next 12 months. So, Members may just wish to note that the definition in question is quite fundamental to the regulations, so it's a bit disappointing that this lack of clarity could be on the statute book for up to another 12 months. We'd also note that the Welsh Government's response doesn't explain the potential impact of this lack of clarity and it also doesn't tell us what they actually intended the term to mean, so that would obviously have been helpful for the committee and for anybody looking at this legislation before that clarity is inserted. So, on that basis, Members may wish to write to the Welsh Government just to seek some further clarity on this point and find out precisely what the term is supposed to mean in this context. 

Are we happy to do that? Yes. Anybody else want to add anything? No.

Item 4, notifications and correspondence under the inter-institutional relations agreement. We have notifications and correspondence under the inter-institutional relations agreement and correspondence from the Welsh Government on the inter-ministerial group. We have a letter from the Deputy First Minister informing us that a meeting of the Inter Ministerial Group for Environment, Food and Rural Affairs would be held on 16 September in London. He tells us that this would be the first meeting of the group since September 2023 and is hopeful that this will usher in a new reset of relationships. Are Members content to note? Right, yes.

Item 4.2, correspondence from the Cabinet Secretary for Finance, Constitution and Cabinet Office: the British-Irish Council summit. The then Cabinet Secretary for Finance, Constitution and Cabinet Office confirms that the then Cabinet Secretary for Economy, Energy and Welsh Language, Jeremy Miles, represented the Welsh Government at the British-Irish Council summit, which was held on the Isle of Man on 20 and 21 June. Are we content to note that? Yes.

Item 4.3, correspondence from the Cabinet Secretary for Climate Change and Rural Affairs: the Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024. The Deputy First Minister informs us of his intention to consent to the UK Government making and laying these regulations, which will revoke the 2007 and 2023 regulations on packaging waste and introduce an extended producer responsibility scheme for packaging and packaging waste. The Deputy First Minister notes that, in this instance, it is appropriate for the regulations to be made on a UK-wide basis as it will enable a single statutory instrument to make provision for the UK-wide scheme. Any Members got any views? Can we note it then?

Item 4.4, correspondence from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs: the Windsor Framework (Retail Movement Scheme: Plant and Animal Health) Regulations 2024. The Deputy First Minister confirms that he has given his consent for the UK Government to lay these regulations in relation to Wales. The regulations have since come into force. The Deputy First Minister states that, on this occasion, it is considered appropriate for the substance of the amendments to apply to Wales, as although the instrument relates to a devolved area, it operates Great Britain-wide and has effect as to the acceptance of goods into Northern Ireland. Given the application to Northern Ireland, the Deputy First Minister states that it would not be within the competence of Welsh Ministers to make the instrument wholly on a Wales-only basis. The Deputy First Minister also states that the making of the regulations GB wide ensures there will be no risk of legislative divergence in the UK that would likely jeopardise the continued implementation of the Windsor framework. Are Members content to note this?

Item 4.5, correspondence from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs: the Sea Fisheries (Amendment) (No 2) Regulations 2024. The Deputy First Minister informs us of his intention to consent to the UK Government laying these regulations in relation to Wales. The Deputy First Minister states that the regulations relate to the measures that apply to the seabass fishery, which extends beyond the Welsh zone, and states that

'in order for them to be effective, they need to apply on a UK basis and apply to all vessels operating in UK waters'.

Are Members content? Okay.

We'll move on to the next item. Item 4.6, correspondence from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs: service level agreement between Welsh Ministers, the Rural Payments Agency and the British Cattle Movement Service. The Deputy First Minister notifies us of the publication of a service level agreement under section 83 of the Government of Wales Act 2006 in relation to the movement of cattle. Are Members content? Yes.

Item 5, papers to note, briefing by the Bevan Foundation: immigration legal services in Wales. This briefing provided by the Bevan Foundation provides an overview of the current provision of immigration legal services in Wales. Do Members have any comments or shall we just note it? Note.  

Item 5.2, written statement from the Cabinet Secretary for Finance, Constitution and Cabinet Office: the UK Government’s legislative programme. The written statement from the Cabinet Secretary for Finance, Constitution and Cabinet Office outlines the engagement which took place between the Welsh Government and the UK Government in relation to the UK Government’s legislative programme and on areas likely to impact on Wales prior to the King’s Speech. The then Cabinet Secretary notes that the UK Government’s legislative programme covers a wide variety of areas, including devolved issues such as transport, planning and energy. She states that the Welsh Government has previously supported proposals for reform in relation to renters’ rights, and tobacco and vapes, and it will engage with the UK Government on its intentions to legislate in these areas, as well as other areas of interest to Wales. Do Members wish to defer discussion on this item to private session? Yes. 

Item 5.3, the Deputy First Minister informs us of the appointment of Dr Susannah Bolton as the independent external chair who will oversee the statutory review of the 2021 regulations on nitrate vulnerable zones. Are we content to note that?

Item 5.4, correspondence with the UK Government, inter-governmental relations and the legislative consent convention. We have a letter from the Secretary of State for Wales, which responds to our letter highlighting areas where we believe changes for the better can be made to law making by the UK Government where it intersects with devolved legislative competence. These areas include the legislative consent convention, and engagement between the UK Government and Welsh Government on Bills introduced in the UK Parliament. The Secretary of State confirms that the UK Government is committed to a reset in inter-governmental relations and to strengthening the Sewel convention by setting out a new memorandum of understanding outlining how the nations will work together. In relation to our concerns regarding the legislative process and the role of the Senedd in implementing international obligations, the Secretary of State notes that the UK Government will always make Parliament aware of relevant matters concerning its Bills and their devolution implications, and will ensure that the structures and institutions of inter-governmental working improve relationships and collaboration on policy. On our agenda, we also have a link to the Secretary of State's written statement on the UK Government’s legislative programme and its application. Do Members wish to defer discussion on this to the private session? Yes.

Item 5.5, correspondence from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs, the Trade in Animals and Related Products (Amendment and Legislative Functions) and Animal Health (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2022. The Deputy First Minister responds to our letter seeking further information on the Welsh Government’s plans to correct an error in these regulations, and to identify a suitable vires to amend the scrutiny procedure applicable to one of the delegated powers in the regulations. The Deputy First Minister states that, although an initial draft of a statutory instrument to correct the error has been developed, it requires further consideration and, given that the error identified is of negligible impact at present, the Welsh Government has directed its resources to more pressing delivery priorities, which he has outlined in his letter. The Deputy First Minister also states that, while it remains his preference to use a Welsh Bill or statutory instrument to amend the scrutiny procedure, there are no suitable legislative vehicles currently available, and therefore he cannot commit to a timeline for this. However, he commits to keeping us updated. Are Members happy to defer discussion on this item to the private session? Yes.

Item 5.6, consultation and discussion paper by the Law Society Wales Office, 'From Caernarfon to Caerdydd: Reimagining Justice in Wales 2030'. This collection of discussion papers developed by the Law Society Wales Office details the unique challenges facing the legal sector in Wales over the next decade and the opportunities for growth amidst the wider political context. Do Members have any comments or observations? No.

Item 5.7, written statement by the Cabinet Secretary for Finance, Constitution and Cabinet Office, the 'Second bi-annual Welsh Government retained EU law (REUL) Act update: January 2024 to June 2024'. The then Cabinet Secretary for Finance, Constitution and Cabinet Office informs us that the Welsh Government has published its second bi-annual update on the Welsh Ministers’ interaction with the retained EU law Act between January and June. It complements the UK Government’s 'Assimilated Law Parliamentary Report' for the same period, which has recently been published. Are you content to note that? Yes.

Item 5.8, correspondence from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs, the Water (Special Measures) Bill. The Deputy First Minister informs us that his officials have been working in partnership with the UK Government on developing the Water (Special Measures) Bill, which was introduced in the UK Parliament on 4 September. The Deputy First Minister states that the Bill’s provisions relate to the devolved matter of water industry and the reserved matter of insolvency. He has agreed that some of the Bill’s clauses will apply to Wales and has sought equivalent powers for the Welsh Ministers to those of the Secretary of State. The Deputy First Minister confirms that the Bill will be subject to the legislative consent process, and he will support a legislative consent motion. Shall we defer discussion on this item to the private session? Yes.

Item 6. In accordance with Standing Order 17.42, I invite the committee to resolve to exclude the public from the remainder of this meeting. Do Members agree? Yes. We now move into private session.