National Assembly for Wales

Can I say, in accordance with Standing Order 34.19, I have 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 that decision was included in the agenda for this meeting, published last Thursday. The meeting is, of course, 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.

Let's move on, then, to item 2 on the agenda: instruments that raise no reporting issues under Standing Order 21.2 or 21.3. Paper 1 at pack page 1 is the National Health Service (Pharmaceutical Services) (Wales) Regulations 2020. This is an affirmative resolution instrument. These regulations revoke and replace the National Health Service (Pharmaceutical Services) (Wales) Regulations 2013 as the regulations that, in Wales, govern the provision of pharmaceutical services as part of the national health service. The Plenary debate of this instrument will be held on 23 September. Are there any comments from Members? Dai, first of all. Hello, Dai. Dai, can you hear me? Could I ask David: any comments?

I have none.

Okay, and I'm not going to Dai. 

Let's move on, then, to item 2.2 on the agenda, which are made affirmative resolution instruments, namely the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 5) Regulations 2020. You will find these at pack page 2. These regulations make amendments to the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020. They were made on 14 August and will be debated in Plenary this Wednesday, 26 August. I can say that Senedd lawyers have not identified any points for reporting in respect of these regulations. However, I draw Members' attention to the fact that additional sets of amending regulations will be considered at items 3.7 and 3.8 of today's agenda. Any comments, David?

I will have a comment at 3.8, but I'll wait until then.

I'll come back to you then. Dai, any comments? None, okay.

Let's move on to item 3, then: instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3—negative resolution instruments. Item 3.1 on the agenda, and you will find this at pack page 15, is the Traffic Orders Procedure (Amendment) (Wales) (Coronavirus) Regulations 2020. These regulations make provision with respect to certain traffic orders made and notices given in Wales, under the Road Traffic Regulation Act 1984. The regulations were made in breach of the 21-day rule. I know that Senedd lawyers have identified both technical and merits points for reporting, and a Welsh Government response has been received. Gareth, could I ask you as our lawyer to comment?

Diolch. The technical point notes the cross-reference in the regulation seems to create an unintended consequence of capturing notices issued by the concessionaire—that is a person who has the right to charge a toll on a special road in Wales. The Welsh Government response accepts that the cross-reference creates an unintended consequence, but that it has no practical or legal effect because there are no concessionaires in Wales any longer and, therefore, there is no need to make amending regulations just to address that issue.

The merits point asks why these regulations are so urgent, bearing in mind they breach the 21-day rule. The Welsh Government response says that even though restrictions have been eased, there are still practical difficulties in making traffic orders, and by the time the Government prepared the regulations and consulted on them, there was a backlog of traffic orders that needed to be made if the 21-day rule was broken.

Thank you, Gareth. David, any comments?

No.

Dai, any comments? Okay, thank you.

Let's move on to item 3.2, then—the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 3) Regulations 2020. These are to be found at pack page 38. These regulations amend the Health Protection (Coronavirus, International Travel) (Wales) Regulations 2020. Senedd lawyers have identified four merits points for reporting. Gareth, if I could ask you to tell us what they are.

Yes. If I wrap up all four, briefly, together: they note the breach of the 21-day rule; they note the fact there's been no public consultation; they also note the human rights position; and that the regulations address an error previously raised by the committee.

Okay. David, any comments?

None.

Dai, any comments? None. Okay.

Let's move on, then, to item 3.3 on the agenda—the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 4) Regulations 2020. These are to be found at pack page 55. These regulations make further amendments to the Health Protection (Coronavirus, International Travel) (Wales) Regulations 2020. Senedd lawyers have identified three merits points for reporting. Gareth, if you could identify those for us.

Again, similar points to the previous item: they are noting the breach of the 21-day rule; no public consultation; and are noting the human rights position set out by the Welsh Government.

Thank you, Gareth. David, any comments?

No.

Dai, any comments? There are none. Thank you very much.

Item 3.4, then—the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 5) Regulations 2020. These are to be found at pack page 70. These regulations, again, make further amendments to the Health Protection (Coronavirus, International Travel) (Wales) Regulations 2020. Lawyers have identified some merits points for reporting. Gareth, what are they?

And, again, the same three points as raised in the previous item.

Okay, thank you, Gareth. David, any comments?

None.

Dai, any comments? There are none.

Okay, let's go on to item 3.5, then—the Marketing of Seed, Plant and Propagating Material (Wales) Regulations 2020. These are to be found at pack page 85. These regulations amend certain domestic marketing legislation to update and amend the pest requirements on plant reproductive material intended for marketing. I understand that lawyers have identified technical and merits points for reporting. They've also noted the implications as a result of the UK's exit from the EU. Gareth.

The first technical point is just about the extent of some of the changes being made by the regulations. The preamble and the explanatory note say that some changes are only formatting changes, but the changes seem to go a bit further than simply dealing with formatting. The second technical point notes that the English word 'nil' is used in the Welsh version of the regulations.

The first merits point notes that the Welsh Ministers had a choice of following the negative procedure or the draft-affirmative procedure in making these regulations. The negative procedure was chosen, which seems appropriate given the nature of the regulations. The second merits point notes the delay in the implementation of certain EU law requirements, but given the circumstances around EU exit and the coronavirus pandemic, the report does not push that point any further. The third merits point asks whether a reference in the footnotes to the Legislation (Wales) Act 2019 should in fact be a reference to the Interpretation Act 1978. Both Acts deal with interpretation, and it just shows it can be difficult at times to work out which one applies to Welsh legislation. And the final merits point places a question around cross-referencing. When you look at the legislation that is published on legislation.gov.uk, the cross-reference doesn't seem to work. There may have been an issue there with the numbering.

Thank you, Gareth. David, any comments?

None.

Dai, any comments? None.

Okay. Let's move on, then, to item 3.6: the Education (School Day and School Year) (Wales) (Amendment) (Coronavirus) Regulations 2020. These are to be found at pack page 117. These regulations amend the Education (School Day and School Year) (Wales) Regulations 2003, which set out the minimum number of half-day sessions for which maintained schools must meet within a school year. Again, I understand the lawyers have identified one merits point for reporting. Gareth.

Yes. The merits point asks the Government to explain a bit more about the consultation it carried out, especially as previous regulations in this area attracted quite a wide interest. And the merits point also asks the Welsh Government to set out a little more detail about the equality impact assessment it carried out with these regulations.

Thank you, Gareth. David, any comments?

Yes, Chair. I do think it's strange that, having carried out a consultation, there is no reporting of it in the explanatory memorandum, even if it was to say they didn't have any adverse responses, or any responses, given the volume of work of what's going on at the moment—who knows? But these are significant things in terms of how schools are going to operate, and it's mystifying that, if they've had a consultation, they've not reported on it. It's quite deficient, actually, and we should strongly ask them to rectify it.

Okay, thank you. Dai. No. Could I suggest, then, that we write to the Minister, expressing the concerns that David has outlined to us this morning and asking for an explanation as to why there is no reference to the consultation? Content with that, David?

Yes.

Do Members wish to wait to see the Government response first? I don't think we've had a Government response quite yet. Or we can go ahead and write now, of course.

No, I think we should write now. The matter's been raised now in open committee, and I think it's important that we raise that point, because it might influence the response. Okay, are Members content?

Yes.

Yes, okay. Thank you.

Let's move on, then, to made affirmative resolution instruments. Now, the next two sets of regulations are scheduled to be debated in this coming Wednesday's Plenary meeting. If I could start, then, with 3.7 on the agenda: the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 3) Regulations 2020. I do not envy any lawyer going through all these regulations in years to come. This starts at pack page 127. These regulations were made on 31 July and they amend the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 3) Regulations 2020. Lawyers, I understand, have identified one merits point for reporting. Gareth.

Yes, and that merits point notes there's been no public consultation and no regulatory impact assessment carried out for these regulations. It also notes the Welsh Government considers that easing of restrictions should have a positive impact on equality, because the restrictions have had a disproportionate impact on disadvantaged groups.

Okay. David, any comments? Sorry, David—

No.

Okay. Dai, any comments? Okay. Could I ask you, then—? On the system that I'm using, I can't actually see you. I think I only see you if you actually say something. You may be shaking your head and I can't see you. Could I ask you—? When I ask you in the future, if you could just say 'No comment', I'll know that you're definitely with us in terms of being able to comment. Can you hear me, Dai? Can we—?

I think there may be a problem with his setting on his—. I'll ask for the setting on his system—. I'll ask IT to see if they can access it remotely. That might cause some disruption—

Okay. Has he been nodding or shaking his head?

He has been nodding, yes.

Right, okay. As long as his head isn't in his hands, then I think we can assume that things are okay so far. Okay. Well, if we can, I'd like to see if we can sort that out, really, before the next item, but I'll start the next item anyway, if I may.

So, item 3.8: the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 4) Regulations 2020. This is to be found at pack page 144. These regulations were made on 7 August and, again, make further amendments to the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020. Lawyers have identified technical and merits points for reporting. Gareth.

Yes, there are two technical points and two merits points. 

The first technical point notes that the regulations create new offences and provide for punishment by imprisonment or a fine, but the Public Health (Control of Disease) Act 1984, which enables these regulations to be made, says that such offences cannot be punishable by imprisonment, they can only be punishable by a fine. The Welsh Government has already made regulations to rectify this. Those are the regulations under agenda item 2.2 in today's papers.

The second technical point seeks a bit more information about the use of evidence that is given to enforcement officers—that is, enforcement officers who may have to close premises because the premises have failed to take reasonable measures to minimise the risk of spreading coronavirus—for example, what information can enforcement officers require, and how can that evidence be used in proceedings against the person who provided the information. 

The first merits point notes that the coronavirus restrictions are constantly changing as a result of changing circumstances, and the merits point asks the Welsh Government for information about its approach to enforcement of law that is constantly changing, what challenges this creates, and how does the Welsh Government work with various enforcement agencies, for example the police, local authorities and the Health and Safety Executive et cetera. 

The second merits point notes that local authorities will be required to enforce the new offences created by these regulations. There's no reference in the explanatory memorandum to consultation with local authorities or how local authorities will resource these new enforcement powers, so the draft report seeks a little more information around that.

Okay. Thank you, Gareth. David.

Chair, I think it is a serious drafting error not to have realised that a term of imprisonment was actually ultra vires. You know, I know they're working at pace and everything, but imprisonment is a very severe punishment; even a six-month period is highly disruptive. So, I would have expected them to have known that they didn't have those powers. And I just want to have the reassurance of Gareth, our legal adviser, that people accessing these regs would simultaneously access the amendment to them that makes it clear that imprisonment isn't a punishment available to the courts, because, you know, otherwise you could have people accessing these and thinking that imprisonment is still a penalty that may be applied.

These came into force on 10 August and they were amended on 17 August. So, for those seven days, I think the law did say it was punishable by imprisonment, then on the seventeenth it was corrected. So, anyone accessing the up-to-date version now should get the correct version that says it's punishable by fine only. And the technical point asks the Government to explain whether, during those seven days when this was enforced—what practical effect did that actually have. 

I do think we need to make that point that it is quite a significant breach to have thought you could apply a term of imprisonment when you didn't have the powers to do it.

I'll ask Dai to come in first before I comment. Are you there, Dai? We're still having difficulty with Dai.

Yes, I'm afraid, Chair. They're trying to connect to his machine. They're trying one last thing. I'm just being messaged now. They're not able to get to the machine—

Can you see him? 

Yes, I can see him. Yes.

Can he hear us?

Yes, he can. Yes.

If he has any comments on this, perhaps he could just nod his head.

He has no comments, Chair.

Okay. That's fine. Can we note—this is all very ad hoc, but can we note that, then, as part of the proceedings? 

I have some comments. I do share David's concerns. In terms of the practical effect for a week, I suspect they're minimal if not zero. I mean, nobody will have been charged and convicted and sentenced within the course of a week, but I do however share the concern that David has that imprisonment was included. What they've done is taken the standard sentence for a summary offence, I suspect, and a six-month imprisonment is part of that. They have changed it now. I just wonder, given the seriousness of the situation and given the possibility that somebody might—it's a small possibility, but might—find themselves staring at a sentence of imprisonment, whether we may want to write to the Government asking how they will—. Well, firstly, whether there has been any effect in the week that these regulations were enforced and secondly whether they have any plans to inform the magistrates courts, drawing their attention to the drafting error and to its correction. David, is there anything else you'd want as part of that letter?

No, that's—I agree with that approach.

Could I just add—? I think, in the explanatory memorandum to the regulations that do correct this, the Government says it did contact the magistrates, Her Majesty's Courts and Tribunals Service and the judiciary, I think, to let them know of the error. 

So that's been done. Okay. Perhaps instead of asking them to do that, if we could ask them how they did that. Okay? So, first question: have there been any practical effects of the drafting error? I doubt it, but we'll ask that question anyway as part of our work. And secondly, how have the courts service, the judiciary and magistrates been informed. Okay? 

Chair, if I may, they're still having problems with Dai Lloyd. One option may be to suspend the meeting temporarily to allow access, if that would be appropriate—

I don't know whether we—. Well, look, what I'll do is I'll carry on. You can see him. Dai, presumably, can hear me. If he wishes to speak, if he could raise his hand, and if you then, Gareth, could tell me, we'll see how that goes. If that doesn't work, then I will suspend the meeting. 

Okay.

Okay? And clearly, if Dai has something to say, I will then suspend the meeting at that point in order for him to be able to do that. 

Let's move on, then, to the next item on the agenda. We'll move on now to instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. Agenda item 4.1: The Health Protection (Coronavirus Restrictions) (Wales) (Amendment) (No. 7) Regulations 2020. Members can find this at pack page 171. The committee considered this instrument at its meeting on 13 July and laid its report the same day. Members are then invited to note the Welsh Government's response. Any legal issues, Gareth? 

Only to note that it's a helpful and considered response. With regard to the equality point raised by the committee recently, which was in response to a letter from the Equality and Human Rights Commission, the Welsh Government has provided a link to equality impact assessments carried out. It seems that the pace of change in particular at the start of lockdown was so great that equality impact assessments did not go ahead as normal, but as the Welsh Government has become accustomed to changes and new ways of working, assessments started again around mid June, it appears. 

Thank you, Gareth. David, any comments?

Yes. I was going to ask if—. I think my query now has been answered—that if they were finding it difficult just because of the sheer pace of what's happening, to have very specific equality assessments, whether we could have a general statement on how they're approaching equalities issues in these regulations in a fast-moving field. So, I think Gareth has just indicated that they seem now to have addressed these issues and are reporting in a way that we think is appropriate. So, as long as Gareth can confirm that, I wouldn't have any further comments, other than to note the fact there was a lot of early pressure and an unsatisfactory situation arose, I think, because equality is very, very important here in how various groups have been affected, but they have put that right. Because you can't just claim pressure and speed of work. That excuses the fundamentals in terms of quality assuring regulations. But I do think they've got where they need to be, by the sound of it.

Gareth, can you confirm what David has said?

Yes.

There we are. Does Dai have any comments?

Dai has no comments.

Okay. Thank you very much for that.

Let's move on, then, to 4.2 on the agenda, the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020. These are to be found at pack page 179. The committee considered this instrument on 3 August and laid its report the same day. Members are invited to note the Government's response. Any legal issues, Gareth?

No, only to note again that it's a helpful and considered response from the Government.

David, any comments? David, any comments?

No—sorry, Chair.

Does Dai have any comments?

Dai has no comments, no.

Okay. Item 4.3, then: the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) Regulations 2020. These are to be found at pack page 192. The committee considered this instrument on 3 August and laid its report the same day. Members then are invited to note the Government's response. Gareth, any comments?

No.

David, any comment?

None on this, Chair.

Okay. Dai—does he have any comments?

Dai has no comments.

Okay. I'm addressing him as if he was—in a very, very formal way: 'Does the gentleman have any comments?'

Item 4.4, the Coronavirus Act 2020 (Assured Tenancies and Assured Shorthold Tenancies, Extension of Notice Periods) (Amendment) (Wales) Regulations 2020. These are to be found at pack page 195. The committee considered this instrument on 3 August and laid its report on 4 August. Also, Members are invited to note the Government's response. Gareth, any legal issues? Gareth, any legal issues?

No, nothing—sorry, Chair. 

David, any comment?

Yes, I would just like to say that—and I hadn't quite picked this up at our earlier meeting, I suspect—it is strange that the 21-day rule was breached, because this is a question of quite deep policy, extending the notice period for eviction, in essence. I think it's only until the end of September, is that right, Gareth, that they've ended up extending it, but they would have been thinking about this for a long time, so I think the 21-day breach is strange.

What I do find odd, and I don't think has been satisfactorily addressed, is why the issue of landlords' rights in terms of access to property has really not been addressed in the explanatory memorandum, so that the limiting of those rights, which, of course, is legal under certain circumstances—but at least if it stated why they think they can be limited, it is then challengeable, whereas, at the minute, landlords wouldn't have any redress if they thought the Government was behaving unreasonably, or at least no redress through the explanatory memorandum. So, it's a significant thing, isn't it, extending a notice period from three to six months, it's not trivial and there should be some explanation for it. I think there is a fairly clear justification for what the Government is doing, and they should just state it, and then that could be challenged if necessary if people did think it was not a sufficient reason. I think it's disappointing they've not done that.

Dai—does Dai have any comments?

Dai has no comments.

Okay. Well, what we should do then, in my view, is to write to the Minister asking the question that David has asked, namely what is their reasoning behind moving from three months to six months. Okay? David, are you happy with that?

Yes, I think it's more—. Because I think the policy here is that the Government has been constructing a scheme that gives financial aid, in effect, to landlords. So, I think they are trying, genuinely, to have a balanced approach, and they are fearful of an increase in homelessness if they don't extend the notice, and I myself think that that's probably a very defensible policy. But why they haven't stated anything in the explanatory memorandum—. And we know—we have had people contacting us—there are very many landlords, and some of them have only one or two properties, and they've not understood the reasoning of the Welsh Government's policy in this area. And so I do think—. And the only way they're going to get it in this whole process is if it's in the explanatory memorandum, let's face it, and they should have taken the opportunity. This is big stuff in terms of how it affects citizens—it's not a minor issue—and even under the pressure of the public health emergency an explanation was warranted in the explanatory note, and it's—. Why on earth have an explanatory note if you're not going to deal with something as central as that?

Can we encapsulate that in a letter, then, to send to the Minister?

Yes.

Thank you. Okay. Happy with that, David?

Yes.

Okay.

Yes, Chair.

Let's go on to item 4.5 then—the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 2) Regulations 2020, to be found at pack page 200. Again, the committee considered this instrument on 3 August and laid its report on the same day, and so Members are invited to note the Government's response. Any legal issues, Gareth?

No.

David, any comment?

None, Chair.

Okay. Does Dai have any comment?

Can someone indicate for me? Gareth, can you indicate for me?

Dai is indicating he has no comments.

Thank you.

Item 5 on the agenda, then, is a Welsh Government report, 'The legislative response by the Welsh Ministers to the coronavirus pandemic'. That is to be found at pack page 203. We have the report first of all, paper 51, and the written statement of 19 August, paper 52. So, Members are invited to note the Welsh Government's report on the making of coronavirus-related legislation and the use of powers under the Coronavirus Act 2020, and that report was laid before the Senedd on 19 August. David, any comments?

Yes, Chair. This strikes me as very good practice. I just want to check my understanding is correct—perhaps Gareth, our legal adviser, will indicate that. It does seem that they've not needed to use the 2020 Act very much at all because of existing powers, but, instead of just hiding behind the fact that they've not used the Act very much, they've given a full report on what legislation has been used and what levers they've used. I think that's really transparent and, if Members agree with me, I think we should write to Welsh Government saying that we feel this really did respond in the spirit of the letter of the law, as it were, and this type of reporting and being flexible to ensure that they cover the whole range of the regs that were needed under legislation rather than just specifically limiting themselves to what they've done under the 2020 Act. So, I think we should commend what seems to me very good practice.

Okay. Thank you. Does Dai have any comment?

Dai has no comments.

Okay. Let's do that as suggested by David, then. The situation in Wales, of course, has been a little different to Scotland and Northern Ireland in the sense that the public health Act 1984 extended to England and Wales, and, of course, many of the ministerial powers derive, and the secondary legislation derives, from that Act rather than the coronavirus Act, which was of more assistance to Scotland and Northern Ireland. But I take David's point and perhaps we should agree to write along those lines. Are all content?

Okay, let's go on to item 6, then—papers to note.

Item 6.1 is a letter from the Minister—is to be found, rather—on pack page 225, a letter from the Minister for Environment, Energy and Rural Affairs on the basic payment scheme and rural support legislative framework from 2021. Now, Members are invited to note the letter from the Minister, which relates to the launch of a consultation on proposals to establish an interim regulatory framework to provide agricultural support from the end of the EU withdrawal agreement implementation period—namely 31 December 2020—until new powers are introduced through the proposed Agriculture (Wales) Bill. Perhaps, if there are any issues to be raised on this, we could defer that to the private session. Are Members content? Okay.

Item 6.2, then, is a letter from the Minister for Finance and Trefnydd on the Cleaner Road Transport Vehicles (Amendment) (EU Exit) Regulations 2020. At pack page 227, Members will see a letter dated 11 August, and Members are invited to note the letter from the Minister, which responds to queries raised by the committee following its previous scrutiny of the written statement for the regulations. Gareth, do you have any comments from the legal perspective?

Only to note the letter is clear that there is no impact on the powers of the Senedd or the Welsh Ministers, which is the information the committee was looking for in the original written statement.

Okay. David, any comments?

No, I'm content.

Right. Does Dai have any comments?

Dai has no comments.

Thank you very much indeed. Item 6.3, then, is a letter from the Counsel General on the UK Government's internal market White Paper to be found on pack page 228. Members will see the letter is dated 14 August. We are invited to note the letter from the Counsel General, which includes the Welsh Government's analysis of the UK Government's internal market White Paper. Perhaps we could defer any discussion of this to the private session. Are we content?

Content.

Thank you, David.

Dai is content as well.

Content. Thank you. Item 6.4, then, is a letter from the Minister for International Relations and the Welsh Language on the ministerial forum for trade. That is to be found at pack page 239. Members will see the letter dated 14 August from the Minister in relation to her attendance at a meeting of the ministerial forum for trade on 21 July 2020. That letter has been sent in accordance with the inter-institutional relations agreement. David, any comments?

None, Chair.

Does Dai have any comments?

Dai has no comments.

Thank you.

Let's move to item 7, then. This is a motion under Standing Order 17.42 to resolve to exclude the public from the meeting for the remainder of the meeting. Could I ask the committee, then, to resolve to exclude the public in accordance with that Standing Order? So, in accordance with Standing Order 17.42(vi) and (ix) I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree? David?

Agreed.

Does Dai agree?

Dai is content.

Thank you. We now, then, move on to private session.