National Assembly for Wales

Welcome to this meeting of the Legislation, Justice and Constitution Committee. As agreed at last week's meeting, I'll be chairing today's meeting. This is because Huw Irranca-Davies will not be participating in the committee's consideration of the Senedd Cymru (Members and Elections) Bill, and has given his apologies for today's meeting. We have Carolyn Thomas joining us as a substitute for Huw. Similarly, Adam Price will not be participating in the committee's consideration of this Bill, and we have Luke Fletcher joining us in place of Adam. You're both very welcome. I think it's the first time you've joined this committee. You're both very welcome, and very good to see you both, and James Evans is joining us from Brecon. As a reminder, this meeting is broadcast live on Senedd tv. and the Record of Proceedings will be published as usual. If there is a fire alarm, Members should leave the room by the marked exits and follow instructions from staff. Can we all ensure that our mobile devices are on silent mode? And, as we are aware, the Senedd operates through the medium of the Welsh and English languages, and interpretation is available. And Members are reminded that the sound operator is controlling microphones; you do not need to mute or unmute yourself. 

The second item today is the evidence session with the Counsel General and Minister for the Constitution. I'd very much like to welcome the Counsel General. You're a regular participant in our affairs here in this committee, and we're always very grateful to see you and for your contribution to the consideration of the committee's work. We're going to be discussing the Senedd Cymru (Members and Elections) Bill this afternoon, and I'm very grateful to you for your time, Counsel General. Could you introduce your officials, please, for the record? 

Yes. I might ask them to introduce themselves. 

I'm Anna Hind, Welsh Government legal services.  

And Will Whiteley, deputy director for Senedd reform in the Welsh Government.  

Thank you very much. We've got a number of questions, as you'd imagine, Counsel General. We've probably got far too many questions than we've got time to cover this afternoon. So, with your consent, we'd be very happy to write to you at the conclusion of this meeting, if there's a need to do so. I'm going to start things off by asking some of the questions that you're familiar with and that we would ask any Minister bringing legislation in front of this committee. First of all, are you satisfied that the Bill is within the legislative competence of the Senedd? 

Thank you for that. The answer is yes, I am satisfied. I have considered the competence issues in detail, and I do not consider that there are any competence issues in this Bill as drafted. 

Now, this Bill, of course, is different to some of the other legislation that you've brought in front of us and that others have brought in front of us, in that it's a constitutional Bill. It has significant aspects of it that will change fundamentally the way this place works and the way our democracy works. The normal practice would be to bring a Bill of such significance to the committee perhaps in draft form prior to the Bill being published. You've decided not to follow this course of action on this occasion. It would be useful for the committee to understand the processes you've followed in developing the Bill as published. 

I think the reason is not that it's a decision not to do that, but it's a question of whether it was feasible or practical to actually do so. As you know, in terms of the timescale that's required for legislation like this, it has to be in place at least six months ahead of the elections themselves. There are the issues in terms of the preparation of the conduct Order. So, when you start counting back on the dates and so on, the timescale just doesn't enable that to happen. In terms of justification for really not doing so, this is an issue that we've been discussing probably for the past 20 years, certainly before I came on to this Senedd, and there has been quite considerable engagement with the electoral bodies as well that would be involved and with the Senedd as well. So, basically it's not feasible to do so. But we do hope that we will have the legislation—there will be enough time for scrutiny—in place in good time to enable the 2026 elections to operate in accordance with all the requirements and conventions that we have. 

I accept that. The Kilbrandon commission, of course, reported in 1973. I was in primary school in 1973. So, it's certainly true that we've been debating and discussing these matters—the shape of any democratic institution in Wales—for quite some years. But that debate in general, of course, is different from the debate in particular on the legislation itself. For example, the form of election system and structures aspect of the Bill are very different to the general debate around the shape and structure of democratic self-government in Wales. So, can I press you a little further? If it's a matter of timing, surely it's more important to get this right than to get it done quickly.

Well, it's a question of getting it done in time so that it can actually be implemented, because, within the tight timescales that we're in, any delay that takes us beyond that could mean that the legislation would not actually operate. I think another factor in it, of course, is that the Welsh Government's in a sort of unusual position in this—or, I'm in an unusual position in this—in the sense that my job is to actually implement the recommendations that come from the special purpose committee and to ensure that legislation is effective, viable and within competence. So, there has been that discussion by way of, almost, engagement with all Members through that special purpose committee, as well. I don't know if there's anything to add to that.

No, I don't think there is anything to add to what you've said.

No.

I'm interested by your answer there, Counsel General. It's an answer very similar to one that the First Minister gave me in the Chamber when I asked him about certain aspects of the legislation: 'We're carrying out the wishes of the Senedd', which is slightly different to usual Government Bills that are delivering the Government's programme, and I accept the reasons for that. I accept the argument that you are carrying out the wishes of the special purpose committee. Does this mean, then, that the Government is more open to amendments to the legislation? Because if the Senedd, for argument's sake, wished to see changes to that, does that mean that we're not facing a Government whip or a Government approach or a Government policy, manifesto commitment; we are dealing with the consequences of a debate in committee—for example, the issue that I raised on recall procedures for Members? I think it's important that we do have some sort of recall mechanism here. So, would the Government be quite open to consideration of different amendments to the legislation?

Yes, I mean, ultimately, this is something that emanates from the Senedd. My instructions are with regard to the specific recommendations of the special purpose committee. It will require a two-thirds majority of Members for this to be passed. There are certain practicalities in terms of any recommendations that come forward. The main ones for me are actually in terms of the timescale, in terms of the competence issues and also the practical integrity of the legislation itself. We are working within a very tight timescale, and there is very little scope for deviation from that if it's to be implemented by 2026.

Okay. Just to conclude this first section, setting out the context for the legislation, you've introduced a number of pieces of legislation recently—I think Carolyn is dealing with the elections Bill that you introduced a few weeks ago on the Local Government and Housing Committee, for example. You've given a commitment to introduce further Senedd reform legislation and I think what's become known as the gender quotas Bill. I wonder if you could outline to us why you're doing this separately, why it's not being included in a single piece of legislation and the timescale that you have in mind for delivering the suite of legislation that you have in front of the Senedd at the moment.

Well, it is the intention, as you rightly say, to bring forward a gender quotas Bill before the end of this particular year, and, again, the same reason being in terms of the timescales that are available for the preparation for implementation of legislation in an election. 

The gender quotas Bill engages a much more complex series of legislative issues, and I think one of the aspects of that is that it's essentially work in progress at the moment; there is still work under way. I think we're almost there in terms of that Bill coming forward. But I think it's also true that, what is important is that, firstly, the core elements of the changes to take place for 2026 are there in place now. Any complication that is likely to arise on gender quotas and so on, because of its interaction with the Equality Act 2010, is something that is going to be taken through—well, that whole legislation is going to be taken through—by another Minister.

By another Minister.

Yes.

Okay. That's interesting. You've described there the engagement of different pieces of this legislation with other existing legislation. I assume, therefore, that you have debated or discussed these matters with the United Kingdom Government. Have you discussed this Bill with any UK Minister of the UK Government through its inter-governmental arrangements?

It is. There are certain modifications to the Secretary of State's functions under section 13A(1)(b) of the Government of Wales Act 2006, which are a consequence of the Bill removing the scope for a Senedd by-election, and therefore the Secretary of State's powers involving by-elections and so on. It's a fairly technical matter, but we've consulted over that. On 11 September, I wrote to Michael Gove, the Secretary of State for Levelling Up, Housing and Communities, and to two Parliamentary Under-Secretaries, with regard to those similar issues. As of 13 October, we hadn't received a response. I don't consider there are any issues there, and I don't consider there are any Minister of the Crown consent requirements as well within the legislation that is before you.

I'm grateful to you for that. I'm going to bring Carolyn in next and then James Evans and Luke Fletcher. Carolyn.

Good morning, Minister. Has the Welsh Government undertaken an assessment of the Bill's impact on the human rights convention?

Thank you for the question. The answer is 'yes'. In all legislation that comes forward, one of my obligations as Counsel General is to consider competence, all aspects of it, which would include the convention rights, but also all the other conventions that we are required to consider, which you'll see, in the impact assessment there, are set out. There are no human rights convention issues, I think, that are of any consequence that would need raising specifically.

So, in response, because I was going to ask you what was the outcome of that assessment, will you be publishing the assessments?

It's not normal to do so. If there are any specific concerns that the committee has on any human rights convention issues, then I'm more than happy to reply in correspondence. But, to be honest, this is a matter of a Parliament setting out its own electoral arrangements within its framework. There were no issues that would really raise their head that would need to be considered other than in general. So, we have looked at it, have considered it, but, quite frankly, there was no human rights convention issue that would require any more detail.

Section 6 of the Bill disqualifies a person from standing as a candidate or from being a Member of the Senedd unless they are registered in the register of local government electors in Wales. So, what assessment has been made as to whether section 6 of the Bill is compatible with the convention rights?

Section 6 is compatible. Many other countries set their own residency requirements. We are completely in accord with that. Where it has been tested in legal cases has only actually been as a peripheral issue, and there was no need, I think, within that particular case for there to be any specific commentary. It was taken that a state setting its own residential requirements in terms of its own electoral system is something that is not in breach of that, provided it fits within the parameters of those human rights conventions. We are in accord with a number of countries that set that position, Ukraine being one of them.

It's always good to follow the example of Ukraine in these matters. I'm sure the Counsel General enjoys that.

Thank you, Chair.

James Evans.

Diolch, Cadeirydd. I just want to go on with this a bit further, Counsel General. What is the aim of the Welsh Government in pursuing the introduction of residency requirements for candidates? This isn't something that's pushed in Scotland, it's not something that's being pushed in Northern Ireland, and I just want to know what the Welsh Government's aims are in doing this part of the Bill.

I think it's relatively straightforward. Firstly, in terms of residency, residency is well defined within existing legislation in terms of the Representation of the People Act 2000, so that gives clarity in terms of the residency qualification there. The question is, really, whether it is appropriate that persons who don't live within Wales, who are not subject to the laws of Wales, should be in a position to actually make the laws of Wales that do apply to the people of Wales. So, I think it is a very basic democratic feature for us as a new democracy. It's an opportunity for that to be considered. If there are, of course, representations from the Senedd in respect of this, then obviously we can consider those, but it seems to me to be a logical parameter in terms of the reforms that we're carrying forward.

But why is this considered important? Because we always want the best person, Counsel General, as well. For my own constituency of Brecon and Radnor, someone could live in Cusop, for example, which is just across the border from my constituency, who was a Welsh resident, born and raised in Wales, who is now not eligible to stand. Do you think that's fair, that a Welsh person couldn't stand for their own national Parliament just because they lived, say, a stone's throw over the border? Do you think that's fair?

I think it is. Where do you actually draw the boundary? No pun intended there. Whether you’re 10 yards over, 100 yards, 100 miles over, I think the principle is: if you are making laws for the people of Wales, then you should live within Wales, or be registered within Wales and be entitled to and be subject to the laws and requirements of that citizenship.

Because the requirement under section 6 of the Bill is that you have to be registered to vote anywhere in Wales, as opposed to a specific constituency; for example, somebody from north Wales could represent Cardiff, or vice versa, who's over four, five hours away, but somebody in Bristol, who is just across the bridge, which is 30 minutes away, could not. So, please can you explain whether there’s a rational connection between the aims of the Welsh Government in doing this in pursuing and drafting section 6?

Well, if you’re a Member of the Senedd, you’re making laws for the whole of Wales, so I think it’s reasonable that in terms of being able to be a candidate within Wales, as long as you’re on the electoral register—. The electoral register in a constituency, of course, is where you are entitled to vote, but once you are elected to this place, you are in fact not only subject to all the laws of Wales, but you’re also making laws for the whole of Wales.

I think there are also proportionate issues that if you are within Wales as well, the potential of boundaries to change has an impact and with the pairing of the systems that we have, I think it is a reasonable framework. Of course, if there are concerns or representations that the committee wishes to make around that, then those obviously are things that can be considered. But what I did have very much in mind in terms of residency was that there was simplicity and clarity, and that’s why the use of the electoral register as essentially the qualification was the most important part.

Just for clarity for my own mind then, Chair: say a Member was elected to the Senedd at the next Senedd election, living in Wales, and then through no fault of their own, through circumstance, they may have to leave Wales, does that mean that they’d have to stand down as a Member of the Senedd?

The answer is 'yes'. If you are no longer within the—

But are there going to be any personal circumstances—? Some people might have to move for personal circumstances that we're not aware of. Is there going to be some flexibility around that for people?

It is something that we looked at very, very carefully. The problem is this: the moment you start trying to look at special cases, special circumstances and so on, you actually enter an area where it’s almost impossible to legislate. I know there have been other nations that have looked at this particular issue as well, and they’ve actually come to the conclusion that it’s almost impractical or unfeasible to actually do that. You end up with such a long list of exemptions and potential qualifications and so on, that in order for simplicity, and also, I think, in terms of the maintenance of democratic accountability, that would apply. But in many circumstances, if someone, for example, had a relative across the border and they needed to provide care for them, it doesn’t stop them remaining on the register within Wales; that maintains their qualification. The question is why they would actually come off the actual register itself, which would then disqualify them from being able to continue as a Senedd Member.

Just one final question, Chair, if that's okay. On this point, have the Welsh Government done any work around this, if someone was to make a challenge under the Equality Act on this?

Well, it's one of those things that has been considered. You'll see from the impact assessment that equality issues have been considered. We don't consider that this is an equality issue; this is an issue, basically, of what the democratic framework is in terms of being able to participate in the making of the laws of Wales, as well as being accountable to them. There is flexibility that is naturally there in terms of someone who has to go outside Wales for whatever reason, et cetera, but that doesn't prevent them from actually maintaining their status. So, if someone were to break that status, it would have to be a very specific choice that they would be making, and, of course, in recognition of what the consequence would be.

Okay. Diolch, Cadeirydd. 

Luke. 

Diolch, Cadeirydd. Just to build on some of the points that James made there, I'm thinking of the scenario that he raised around somebody just living over the border, a couple of metres, perhaps, over the border, and not being able to stand in Wales even though they might have been born in Wales, and so on. Has any thought been given to the residency requirement only applying, then, to Members of the Senedd? So, once you're elected, rather than to candidates as well.

Yes, there was considerable thought given to all of the different options around that. We're looking very carefully at the sort of discussions that have taken place, the considerations over residency, how it might work, discussions that have taken place, of course, through the co-operation agreement as well that exists. But the reality is that I think you still come back to the same thing, which is that you have to set a framework, you have to draw a line somewhere within which residency is the criteria, and the problem is, as I just said earlier, the moment you start saying, 'Well, I've got somebody whose back garden is in Wales but he's registered in England', or whatever, well, those are the criteria that are actually set in order to be able to qualify for standing. It seems to me it fits very much within the democratic framework that would be appropriate within Wales, if you accept the principles that candidates should live within Wales, they should not only be accountable to the laws of Wales, as well as the fact that they would actually be making the laws of Wales. 

So, what if those people who are just across the border, then, work in Wales? So, in the same way that, in a local government election, if you work in the local authority area you could stand in the local authority area, has any consideration been given to maybe making that a rule in the Senedd elections?

Well, if there are recommendations to that effect, that's a matter that would obviously have to have consideration, but at the moment, the fact of the matter is that someone may be working in Wales—there are many people who work in Wales who don't live within Wales. The question is: are we saying then that every single person there who has chosen to make their home outside Wales should nevertheless have the same entitlement as those who live within Wales and are registered within Wales?

Okay. If I could move on to something slightly separate; it's more around the question of second homes. So, if you had a primary address in England but had a second home in Wales, would that meet the residency requirement if you decided that you wanted to stand in the Senedd election, based on the fact you've got a second home?

Well, the only requirement is that you're on the electoral register, and if you're on the electoral register, then you qualify to be a candidate, you qualify to stand to become a Senedd Member. 

So, the answer would be 'yes', then. 

That's the only requirement, and it's simple, it's clear, and it's one that probably is the clearest in terms of ensuring there is no confusion as to qualifying rights.

Okay. Good. Diolch, Cadeirydd.

I was enjoying the conversation there, but I want to bring you back to other matters as well, Counsel General. You'll be very aware that this committee doesn't like giving Government powers unless there is a reason for doing so. Now, you have asked for powers to further increase—. The legislation increases the number of Ministers available to be appointed, I think, to 17. That is in the legislation and is quite clear. But you've asked for further powers to be able to increase it to 19, I believe. And you've also said that you have no intention of using those powers. So, why do you need powers that you've no intention of using?

If I can just say, first of all, the recommendation in terms of increasing the size of Government, I think that was one of the things that was recognised in the special purpose committee and it's also recognition of the fact that with increased responsibilities and so on, the size of the Government needs to be not only capable of taking on those responsibilities from the Government perspective, but also capable in terms of futureproofing as well. Now, it's the futureproofing, I think, that is probably the point that you'll raise with regard to the ability to go from 17 to 19. That, of course, would depend upon what the decision of the First Minister was in terms of what the needs were. It would only be able to be achieved by an affirmative vote of the Senedd itself. So, the Senedd would have to approve. There would be no obligation on the First Minister to actually do that. At the moment, as things stand, the figure of 17 is what is considered that would be appropriate for the 2026 Senedd, but there is a capacity to futureproof whereby the First Minister can come back and actually say, 'Well, we have certain additional responsibilities that have been given; we need to create an additional ministerial post. Do you approve?' And that would be a vote of the Senedd in order to achieve that.

I appreciate that, Minister. I've read the legislation. But it's not going to be difficult for a newly elected First Minister to gain a majority, is it? It's not a real hurdle or barrier. I can certainly think of two Members in those circumstances who'll be very anxious to vote in favour of it. But, you know, Ministers will quite often come here and say, 'Well, we're looking at futureproofing legislation.' The question that is screaming back at you is, 'Why don't you put it in the legislation, then?' If you believe it's necessary, put it in the legislation and do it now, rather than give yourself, or, as you say, another Minister in another Senedd at another time, the potential to do that themselves.

Well, I think that's because, in terms of looking forward to what we anticipate some of the demands of Government would be in an increased Senedd, looking at the existing pressures on Government in terms of ministerial functions and capacities, you can look ahead and say 17 is clearly a figure that is reasonable and—

So, what led you to 17? That's the interesting question, isn't it? What led you? Is it 12 at the moment? Perhaps I should know. It is 12, yes.

I'm just trying to remember now whether it was one of the recommendations of the special purpose committee.

The special purpose committee recommended that there should be an increase, but asked the Business Committee of the Senedd to look at it in more detail. The Business Committee actually undertook a consultation in relation to that matter, as well as other matters that were referred to it by the SPC, and it was a conclusion of the Business Committee that it should be raised to 17—as you said, it's currently 12 Ministers plus the First Minister and the Counsel General—so, to raise it to 17, but also to have that ability to increase it further through a delegated power, with the approval of the Senedd.

It sounds like a bit of a cop out, doesn't it, to increase it further through a delegated power that somebody else will exercise. I don't want to spend the afternoon pursuing this, I have to say, but it would be useful if there was rationale for that. I don't know if the Business Committee published a rationale for 17, rather than going straight to 19 or sticking at 15, because to some extent these numbers are—. You can give and take a few, can't you? What's important is what the Ministers actually do. But without putting words in your mouth, Counsel General, I'm anxious just to clarify my own understanding of what you're saying, and what I understand you are saying is that these additional Ministers may be required if the powers available to the Senedd or to the Welsh Government are expanded or deepened or broadened in the future.

That's absolutely right. It is futureproofing.

'Futureproofing' is not a word this committee enjoys hearing, but we will leave it at that and move back to Carolyn. Thank you very much.

I think it's Luke, was it?

Carolyn.

Oh, that's my question—sorry. Sorry to hold you up there. Regulations made to implement the Democracy and Boundary Commission Cymru boundary recommendations under paragraph 9 of Schedule 1, and new section 49J of Schedule 2 must be laid in the Senedd, but are not subject to any formal Senedd scrutiny procedure. Please can you explain the rationale for this?

I think you're specifically referring to the system of pairing that will take place, and then the reporting to the Senedd. I think it's basically a recommendation, as well, of the special purpose committee, if I recall correctly, that the process of the new boundary commission et cetera should be to report to the Senedd, but that it wouldn't be subject to a Senedd vote. I think that satisfied, really, a view on, within the timescales that there are, the extension that would be, but I suspect, more importantly, keeping, I suppose, the politics out of a decision over a boundary. So, what has happened is that certain principles have been set in terms of what they will do and how they will go about it, but, ultimately, as long as they're working within that, the only challenge would be by way of a judicial review. Other than that, there would be no political interference from political parties, ultimately, in the recommendations of the new boundary commission.

Thank you. And then going on, regulations to implement the Democracy and Boundary Commission Cymru boundary recommendations in time for the 2026 elections must be laid within 14 weeks of its report being laid before the Senedd. Regulations to implement boundary commission recommendations in time for the 2030 elections must be laid within six months of a report being laid. Please can you explain this discrepancy in time limits for laying regulations?

Thank you for that. I think it purely comes down to the time frame that we're in in order to get the recommendations there in time, and again, counting back. The way I've looked at this is I think that we'd be looking at a commission report, if the legislation goes through in accordance with the timescale and all the things that need to take place, somewhere around the beginning of April 2025. You've then got 14 weeks in which the regulations need to be put together, which takes you to July 2025. The Gould convention is a convention that came in as a result of, I suppose, problems that arose over electoral legislation in Scotland but is one that I think we very much adhere to. If you count back from that, that leaves only a leeway of approximately three months. So, basically, going through the timescale within 14 weeks allows very little room for manoeuvre, to ensure that those conventions are complied with. But, of course, it'll be different then. Once you're past 2026, you're starting right from the beginning of the four-year period, so the ability to have a longer period of time for that process is there, is built in to that.

Okay. Thank you.

Thank you. Before returning to Luke Fletcher and James Evans, can I ask you to confirm a couple of things, Counsel General? It refers back to some of the matters you'd expect us to ask you as a committee. You have section 20 powers to make consequential, incidental and transitional provisions. The committee recognises that most pieces of legislation will contain a power to do that and to make such provisions, and we accept that, and we accept there is a requirement to ensure that the statute book is complete and coherent. So, the power is required—I accept that. However, the limitations on the power is, I believe, an important matter, because this is a constitutional piece of legislation, and I'm wondering if you can help the committee understand where a consequential, incidental or transitional provision ends and where a more substantive matter begins.

Consequential is essentially changes that occur as a result of your legislation or other legislative changes—the type of changes because a name needs to be changed and so on—but they do not change the actual policy intent of the legislation itself. So, it is basically just making the legislation consistent in terms of the way it operates. I'll go over to our lawyers now. Have you got anything to add to that that helps?

Just to confirm that what the Counsel General said is obviously correct, and that the purpose of that power, and the scope of that power, is that it's to do anything for the purposes of, in consequence of, or for giving full effect to the provisions of the Bill. So, that, as the Counsel General said, it's anything that's in consequence of those provisions, not something that's directly contradictory to those provisions, and you couldn't do anything more substantive to the main operative provisions within the scope of that power. That's how we would put it. 

And that's exactly the point that I wanted to press: 'which is consequent to the scope and the purpose of the legislation'. For example, you could easily see a circumstance where, for the 96, 'delete 9, insert 8' or 'delete 9, insert 11' could easily be seen as a consequential amendment. 

I think that would not be achievable under this legislation, and it would not be a reasonable interpretation of 'consequential' to do that. That would be a very substantial change and would, in fact, expose the legislation to legal challenge as well.  

Which is what we were hoping you would say and help us with. Can I ask you a question? I feel something of a fraud asking this question, considering the conversations that you and I, Counsel General, have had, and other Members have had, over the past few years. Section 3, of course, amends the frequency of ordinary Senedd elections, and I think it's fair to say that you and I have both argued for a return to four-year terms and not maintaining the recent practice of having five-yearly elections. This goes back to our opening conversation, where you made the point that you are delivering on the special purpose committee's decisions and the recommendations of that committee, rather than delivering the policy of the Government, and I accept that. But this, of course, wasn't a part of those recommendations; this is something that I believe the Government—. But I think it's got widespread support in all parties represented in the Senedd today, so it is something with broad political support, to ensure greater frequency of elections. But it might be useful, Counsel General, if you placed on the record the rationale for that, so that we can understand that. 

It is an important point. The technical rationale is essentially this, isn't it? From the commencement of the National Assembly for Wales, which has now become the Senedd, the Welsh Parliament, four years was always the period of time that was considered appropriate. That changed purely for, I think, convenience reasons when the UK Government introduced the—what was the name of the legislation now—

The Fixed-term Parliaments Act 2011. 

The Fixed-term Parliaments Act, and that was brought in for very specific reasons. It was extended for the Senedd to five years, solely to avoid all the complications and difficulties that would arise if polls were taken on the same day. That legislation has been repealed, and it seems to me it's a natural step that, now that it has been repealed, we revert back to four years. There is, I think, an additional argument that adds onto it: what it does do is it gives a more regular say to the democratic process, to electors—that they will have the choice of Government and those who implement policy and legislate every four years as opposed to every five years. So, there is an argument there that it is reverting back to an improvement in democracy and democratic accountability. But the technical reason, which I think is the reason why it's so specifically there, is because of the Fixed-term Parliaments Act being repealed.  

Thank you very much for that. We're making good progress here, Counsel General. I'm going to ask Luke Fletcher to continue our questions, and then bring in James Evans and Carolyn Thomas. 

Diolch, Cadeirydd. I'm just looking at the sections around imposing duties on the Llywydd—so, sections 7 and 19 of the Bill—and the requirement for the Llywydd then to establish two new Senedd committees. I'm just wondering, is it constitutionally appropriate for a Government Bill to be imposing duties on a Llywydd or any future Llywydd? 

Can I say that I think it is? I think this isn't a traditional Government Bill in that sense—this is Government facilitating legislation that it is bringing, but it's on behalf of the Senedd. There can be semantics about how that is interpreted, but the Welsh Government is not determining, effectively, the policy. We know there are obviously discussions that go on through the co-operation agreement and so on. We’re talking about the two things: job sharing and the review.

Can I say, first of all, that what this doesn’t do is create any obligation in respect of any legislative change or constitutional change whatsoever? But what it does do is facilitate and ensure that there is a debate that takes place. The debate doesn’t impose any duties on the Senedd itself. What it does do is impose a duty on the Llywydd, who has an obligation to table a motion as soon as practical, not later, if I recall right now, than six months, but certainly to report within 12 months, firstly on how this legislation has operated, including, I think, a very useful term that's in there, 'democratic health', as one of the criteria, but, basically, how has this reform actually worked, et cetera. That brings the matter completely into the hands of the Senedd. The Senedd could be doing this in any event if it wished, but the legislation merely ensures that it does actually happen, by the tabling of a motion.

The other aspect, which is a very similar provision, is for the Llywydd also to table a motion in terms of the issue of job sharing. Job sharing is an issue that has arisen in the special purpose committee, but in particular from the co-operation agreement. Again, it doesn’t in any way create any legislative obligation. What it does is ensure that it will be debated or be on the floor. How the Senedd chooses to deal with that, the nature of that debate, the parameters of that debate, will be completely a matter for the Senedd. So, it means that it will be discussed, but it goes no further than that.

So, much like other parts of the Bill, if the Senedd decided that it didn't want this in the Bill, and there was a recommendation, the Government would be happy to take it out. 

Absolutely. All it does is create a duty on the Llywydd to table a motion to enable that discussion to take place. 

Because you can understand how it can look like the branch of the executive imposing duties on the legislature. Whether that's on the Llywydd or the Senedd itself, it's still the branch of the legislature, isn't it?

Well, I think, in a relatively minor way, because it again requires the Senedd to agree by two-thirds majority that it wants that duty to be there. That duty is something that has come via the co-operation agreement to be there, to ensure that it actually happens. But as I say, once that motion is tabled, it is completely a matter that's within the ambit of the Senedd. The Senedd could, in fact, do it in any event, but I think it was felt appropriate that this would strengthen that happening by having it on the face of the Bill. Have I summed that up—?

Yes. If I can add, just to say I think the reason why the Llywydd was chosen, and the time frame, is of course that would be the point of the next Senedd when the organisation of committees would be being considered by the Business Committee, which of course the Llywydd chairs, and I think the motions in relation to the establishment of other committees at that time are generally tabled by the Llywydd as chair of the Business Committee. 

In that case, there were no considerations to potentially giving those motions under sections 7 and 19 to Welsh Ministers at all.

I think from the starting principle that this is a Bill that emanates from recommendations from the Senedd itself, it seems to me this is also a matter for the Senedd rather than government to determine. It belongs to the Senedd, and where it proceeds beyond the tabling of the motion is ultimately a matter for the Senedd. But I think it keeps it in complete compliance, which I think are the principles where this change emanates from.

Notwithstanding the issues involved here, I think many of us will share the misgivings that Luke Fletcher has outlined there, that a Government is asking the Senedd to impose duties on the Llywydd, but those duties will be on the next Llywydd and the next Senedd as well. It's a pretty curious piece of legislation asking any Parliament to impose duties on its successor Parliament. You couldn't do it, of course, in Westminster. I'm not sure it's correct to do it here. But I think that's a matter that this committee would like to consider further before coming to a conclusion on these matters. But it is a very novel way of working.

Yes. If I could just add, I think it is the Senedd asking the Government to put this on the face of the Bill, rather than the other way round. But you're absolutely right that, of course, in practical terms, once the Llywydd has done that, then it's up to the Senedd whether it wants to continue with it, what the parameters might be, whether it wants to go down that road at all. All it does, I think, by Government being asked to put this on the face of the Bill, is to ensure that debate happens. My understanding is that there's a two-thirds majority of Members who want that to actually happen, want that strengthened position to actually be there on the face of the Bill, so we've incorporated it within the Bill to achieve that. There's probably not much more I can add than that. 

I'm sure there isn't. But it isn't two thirds of Members asking this Senedd to do something; it's two thirds of Members asking another Senedd to do something—a subsequent Senedd—and that, I think, is where the difficulty arises. 

Can I just come in? I don't think—. It's not asking the other Senedd to do something—

Well, it is. 

—but it is, as you say, giving a duty to the Llywydd to do something. 

Yes. But it is novel and unusual, and it is something that, I'm sure, the committee will return to. James Evans. 

It's just on this. I just want to know what work the Welsh Government did look at, in terms of using other legislative options instead of asking the Presiding Officer to table motions to establish new committees. There must have been other options that the Government looked at putting in the Bill. I'd just like to know what those were. 

Well, the only other option is, really, not to put it in the Bill at all, on the basis that the Senedd could do it in any event, and there isn't a strict necessity for the Llywydd to have that duty imposed. But, again, legislation as it develops—. And as the special purpose committee specifically asked for the issue of job sharing and so on to be considered, this is really what the outcome of that was, that it was felt through those discussions that it was something that wanted to be on the face of the Bill. The point that the Chair makes is absolutely right. It is novel, but then I think we are in a novel situation. This is the first time ever that a Welsh Parliament has introduced legislation to increase its size. 

Yes, because it is asking the Senedd to do policy development, and, as Luke Fletcher said, that is the job of the Executive not the the legislature that we are. But what I'd like to know, Counsel General, is, if the Senedd said, 'We won't agree to setting up a committee', who is going to undertake this work going forward? Is this something the Welsh Government might bring back as another type of Bill, or—? How would you would work it if the Senedd said, 'No, we don't want to do this'? 

Well, if the Senedd says it doesn't want to do it, it, basically, doesn't happen. 

And the Government wouldn't push this any further then?   

No. 

That's fine. My questions are done, Cadeirydd. Thank you. 

Thank you very much, James. Carolyn, and then Luke. 

Okay. I'll just ask some questions regarding section 19. So, a committee established under section 19, if any, would be required to review the operation and effect of electoral changes made by Parts 1 and 2 of the Bill, which includes the increase in the number of Members and the change in voting system. Why is section 19 necessary? 

Section 19, I think, is there, really, for the same reasons, but, essentially, that this is an important piece of legislation. It makes an important change to the structure of the Senedd for the future. It makes important changes in terms of the voting system. I think the clause you're referring to also includes a provision in respect of democratic health, which is something I'm particularly interested in and something I think Parliaments should be looking at. And I think it is appropriate for Parliaments to actually review the operation of legislation that is passed and I think it follows on from the other clause as well. This is something that is considered to be appropriate to be on the face of the Bill to make sure that that debate happens and it happens very early on. I think it's something that is probably going to be—. I would hope that it would be universally welcomed. I suppose there is an argument, in many ways, that other legislation should be reviewed more regularly to see how effective it is and how it is working and so on. But this specifically will apply to this piece of legislation. I don't know if there's anything—

Only to reiterate that, again, the function is on the Llywydd, though it's not binding a future Senedd in any way, in the same way that the job sharing one is not. And if the Senedd did not want to set up a committee to consider this, then it has the ability to reject the motion, and it's precisely for that reason that it's set up that way.

Thank you. Can you explain what other legislative options the Welsh Government considered for post-legislative review as an alternative to requiring the Presiding Officer to table a motion proposing the establishment of this new Senedd committee for that task? 

I think the only logical alternative way of doing this is what might normally happen in progress and that is the Senedd choosing, of its own volition, that this is something it would want to consider very early on, and that applies to the previous discussion we've had about the job-sharing issue. All those powers lie with the Senedd and all these clauses actually do is ensure that a debate actually does take place. So, it's an interesting provision in the way it operates, and I think it is no more than that.

Okay. It says here that, if established, the committee, under section 19, would be required to review

'the extent to which the elements of a healthy democracy are present in Wales'.

So, can you explain what the elements of a healthy democracy encompass?

Yes. The elements of a healthy democracy—it's a phrase I have been using ever since I've had this area of responsibility. Because, I think, apart from various well-being provisions that we all consider—environmental, equality, and so on—the state of our democratic institutions and our democratic system, our civic system, is important. I think it would relate specifically to looking at how the election, how the system, has actually operated, how the voting system has worked, what the turnouts are, what the accessibility issues that have been learnt are. I think all those are things that go into the question of democratic health. If you have a situation where people aren't participating, then I think that falls within the democratic health, or why people are not participating—what is it, et cetera? So, all the issues that relate to accessibility, motivation, the impact of the voting system, how that has operated and impacted and engaged as well, maybe specifically in terms of sections of the community that have or have not participated within elections; I think all those fit within the broad frame. I think it is open for the Senedd itself to broadly interpret how it sees the issue of democratic health, but, for me, I actually think it is a very, very important part of discussion that needs to take place on a regular basis in the Senedd.

Okay, thank you. Following the conclusion of any review into job sharing, under section 7 of the Bill, Welsh Ministers are required to formally respond to the report setting out what steps, if any, they intend to take in response to the recommendations. Are they required to formally respond to it?

I think Government always respond to recommendations from a committee. The issue of what it can or cannot implement obviously goes into another dimension. But the issue of job sharing, which clearly was raised in the special purpose committee as an issue and has had subsequent discussions, I think is an important one. It doesn't involve any commitment to either implement or legislate whatever, but it is something that is worth exploring at the various levels, whether it be from individual Senedd Members, whether it be job sharing in terms of committee Chairs—things like that—but also at ministerial level. It does raise a whole series, I think, of very important democracy issues in terms of democratic accountability—who is being elected, what specific functions take place in terms of Ministers and certain specific ministerial positions as well. But, as I say, it becomes a matter for the next Senedd to consider and to explore all of those and to see where that actually goes. And if there are recommendations that are there, those would obviously be responded to by Government as to what is practicable, what is feasible, whether it is an area that Government would want to legislate in, or whether it is an area that the Senedd, of its own input, would want to legislate.

On that point, though, could you explain why there's no corresponding duty on Welsh Government to formally respond to any committee recommendations under section 19 of the Bill?

I'm not sure why that's the case, because I just take it for granted that, if a committee produces a report, Government has a political and ethical responsibility to respond to that. It's part of our democratic process. But it is a matter that can be dealt with by Standing Orders, rather than legislating per se, and I would have thought that would be the direction. I'm trying to think off the top of my head now what the Standing Orders provision actually is. I don't know if anyone's able to help me.

I don't know off the top of my head, but there is a Standing Order provision in relation to it, if helpful. The distinction, I think, between section 7 and section 19 was that, of course, section 7 in relation to job sharing is looking at the feasibility of introducing provision in relation to something that doesn't currently exist, whereas section 19 was reviewing the introduction of new law, so it didn't necessarily follow, with the section 19 review, that there would then be action for Government to take. Whereas, with section 7, Ministers were keen to follow or to provide a pathway that followed the model of the special purpose committee, so for Senedd consideration for it, and, if endorsed by the Senedd, then an action on Government to then bring forward proposals to give effect to that.

I think you can probably hear a committee recommendation coming on here at this point. [Laughter.] James Evans wanted to ask a supplementary question here.

Thank you, Chair. It was on this point that I was going to ask the Counsel General, because, as said, there is no requirement for the Government to respond to any recommendations that any committee is going to make regarding changes, if the Senedd wants to. I was going to see if the Counsel General—what his thoughts would be about having provision in the Bill to make it legally binding that the Government has to do something if the Senedd asks it to, because the Government is asking the Presiding Officer to do something, and perhaps it would be very good if the Government was a bit more accepting the other way as well.

I think the appropriate way is probably through Standing Orders themselves, I would have thought, rather than the necessity of putting something on the face of the Bill. If there are recommendations from this committee or whatever, then, obviously, we'll give consideration to them and the practicalities and the timescale within that. It's one of those matters, of course, where I'm open to receiving recommendations. 

Thank you very much. The Government doing something that the Senedd asks it to do would be a very novel approach. But have you got an extra five minutes, Counsel General, for us to finish the next section of questions, perhaps?

Yes, I think I'm okay for five minutes.

Okay. Luke Fletcher.

Diolch, Cadeirydd. If I could focus on the element of vacant seats and particularly section 9, which discontinues the use of by-elections when a vacant seat arises, what happens then if we find ourselves in a situation where an independent has been elected and so there are no candidates that back that person up then if they decide to resign or if something happens? Equally, the same could happen with parties as well, where we might exhaust the party's list in that constituency as well. What would happen in that scenario?

I suppose the starting point is that, looking at the experience of the past couple of decades, really, the number of situations where this has arisen—because we obviously have a closed list system already for one third of the seats—has been very remote. But it's a valid point to raise, and it's one that a lot of thought has been given to. I think the view we've come to is this: if we're now establishing what is a wholly proportional system using the closed list system, if that, I suppose, fairly rare situation might arise where the list of eight is exhausted, that is, there are six Members there, it's unlikely that any single party is going to win all six of those, so you'd have to be going down through quite a number of places before you actually exhausted that list, but, if you came to the end of that, well, then that remains vacant. The same would be the case if there was an independent that stood, and that person for some reason either became disqualified or for some reason wasn’t there. And it is one of those areas we’ve had to give a lot of thought to as to, ‘Well, should there be a mechanism for replacing that individual?’ And again, I’m open to thoughts on this.

One of the difficulties I find with it, of course, is that as you start trying to look at how you might do that, what you are then beginning to do is disturb the proportionality basis on which the electoral system actually works itself. My view is that that probably is acceptable within a system of where you are increasing the number of Senedd Members from 60 to 96. But it does mean that it is a possibility; it might be very rare, or may not happen at all during the lifetime of a Senedd, but it is a possibility that is there. But I think the conclusion that I’ve come to on this is that it should remain vacant. I think that was also probably the position of the special purpose committee on that, were that situation to arise.

[Inaudible.]—but that doesn't mean to say that it won't happen at all. I mean, the odds of me winning the lottery are probably impossible, but I still hope that it'll happen, but obviously in this case, we don't want seats to remain vacant. Because it strikes me that if those seats remain vacant, that goes against the entire principle of this Bill in the first place, doesn't it, which is strengthening Welsh democracy. You yourself as well said the very same in an interview to BBC Radio Wales, I think, on 19 September.

Yes. It's completely clear, isn't it, that if for any reason a vacancy occurs that can't be filled, it is not a strengthening of democracy. The question is whether attempting to have a sort of by-election system that then really can't reflect the proportional basis, whether that weakens democracy by weakening the proportionality element, or it intrudes within it, and those are really the balances to consider: which one do you prefer, one over the other? The position that we've come to—and I think it was the position of the special purpose committee—was that in those circumstances it should remain vacant. Obviously, if there are recommendations or views from the committee, those are obviously ones that can be considered.

Has the Government thought of any potential options at all?

Well, not really. One option would be that you have a first-past-the-post by-election, but the problem with that is it goes totally contrary then to what has happened in terms of the balance through the proportional voting system, which has distributed seats in a particular way. So, it undermines that; it undermines that. So, on the one hand, there's certainly not a strengthening of democracy if you have a vacancy, but equally so, looking for an alternative to it can actually, I suppose, weaken the basis of the proportional system itself.

So, ultimately, then—I'll end on this, Chair, because you have given me time—it's fair to say, then, that this provision increases the risk of seats remaining vacant until the next election.

Yes, it is a risk, but I think it is a very remote risk, and again, I'm sure it's one of those things that would want to be reviewed, that will be part of the reviews that take place afterwards. I don't know, is there anything you can add?

Only as the Counsel General said, first-past-the-post was one option that was considered. There is an alternative where you have a sort of count-back mechanism, where you apply the original vote, but the returning officer would go to the next party, obviously after you've discounted the party that had exhausted its list, but the conclusion that the Counsel General and Ministers took was that the best way to protect the proportionality of the original vote was to carry the vacancy.

It would also add in an individual in that way whose name hasn't been on the ballot paper, who has no mandate. So, it's a question of balance within that. One would hope that it is a very, very remote possibility, something that's not going to happen regularly, but one that maintains the proportionality thing, even though it might mean there's a possibility of it happening.

We seem to have reached a natural break in matters, so I will bring this session to a close there. In saying that, I'm not sure that the circumstances that Luke has described would be that rare; we had a pretty chaotic session in the last Senedd, where we had a lot of disruption to our democratic representation, as the Counsel General is aware. So, it may well be useful if the Government did wish to consider this matter in more detail and perhaps bring some consideration to it when we report.

But I'm grateful to the Counsel General and his officials for your time this afternoon. It's always a pleasure, Counsel General, when you give evidence to the committee. You are aware, because of your frequent visits, that you will have a copy of the transcript to check for factual accuracy, and I'm grateful to you for your time. The committee will report, of course, in the normal way.

And with that, I'm going to ask the committee to adjourn for five minutes to reset matters before we continue our meeting. Diolch yn fawr i ti, Counsel General.

Diolch yn fawr.

Diolch yn fawr.

Thank you very much and welcome back to this meeting of the committee. We're going to move on to item 3, which is instruments that raise no reporting issues under Standing Order 21.2 or 21.3. Paper 3 is a draft report—made negative resolution instruments—on item 3.1, SL(6)389, the National Health Service (Optical Charges and Payments) (Amendment) (Wales) Regulations 2023. These regulations amend the 1997 regulations, which provide for payments to be made by means of a voucher system in respect of costs incurred by certain categories of persons in connection with sight tests and the supply, replacement and repair of optical appliances. I understand that our lawyers have identified no reporting points. Is this correct?

Yes, that's correct.

Do Members have any comments or observations? Otherwise, I will assume that Members are content. Members are content.

So, we'll move on to item 4, issues that do raise issues to be reported to the Senedd under relevant Standing Orders. Made negative resolution instruments: item 4.1 is SL(6)388, the National Health Service (Ophthalmic Services) (Wales) Regulations 2023. These regulations make provision for primary ophthalmic—I've got to get that right, haven't I?—services under the NHS in Wales. These supersede, consolidate and revoke previous regulations in this area. The regulations replicate, in large part, the provisions of the revoked regulations in respect of the arrangements to be made by local health boards for sight tests, and require local health boards to make arrangements for the provision of eye examination services under the NHS in Wales.

Now, Senedd lawyers have identified 22—dau ddeg dau—technical reporting points and one merits reporting point, and we've not yet had a response from Welsh Government. Kate, can you highlight the issues you found here, please?

Yes. Thank you. Seventeen of the technical points are seeking further information from the Welsh Government in relation to parts of the regulations where the drafting could have been more precise. And the other five technical points identify inconsistencies between the Welsh and English texts of the regulations. And then, finally, the merits point reminds the Welsh Government of the importance of describing the divisions of legislation correctly, and we're waiting for their response.

When do you expect to have that response? Do we know?

The report was circulated last week.

We've had a number of reports where we've had a large number of technical reporting points over recent weeks or months, and it may be useful for us to bear that in mind the next time this happens, and speak to the Government about it. Because the reporting points that you've outlined shouldn't really exist in legislation of this sort. So, it might be something we would wish to highlight—perhaps, Gareth, in an annual report format, if not in a direct response to Government. Are Members happy with that? Yes, I see Members are happy. Okay, thank you. I'm grateful to you, Kate, for that.

Item 4.2 is SL(6)391, the School Teachers' Pay and Conditions (No. 2) (Wales) Order 2023. This provides for the remuneration and conditions of employment of schoolteachers in maintained schools in Wales. It does so by giving effect to the School Teachers' Pay and Conditions (Wales) Document 2022, which makes changes for the 2022-23 year and gives effect to the 2023 document of the same name. The Order comes into force on 28 October 2023, so the end of this month, and changes made, therefore, include retrospective provision. Such retrospective provision is permitted under the Education Act 2002. Senedd lawyers have identified one merits reporting point, and a Government response, I understand, Kate, is not required to this.

That's correct. The merits point is just to note that the Order is part of the Welsh Government's response to concerns about pay and conditions for teachers in Wales.

Are Members content? I see Members are content.

Affirmative resolution instruments: item 4.3SL(6)390, the Environmental Protection (Single-use Plastic Products) (Wales) Act 2023 (Commencement No. 1) Order 2023. Now, this Act prohibits the supply of specified single-use plastic products to consumers in Wales, unless an exemption applies. On 7 June of this year, the day after the Act received Royal Assent, several provisions of the Act came into force. This Order brings into force all other provisions of the Act, with the exception of three entries in the table of prohibited single-use plastic products. Senedd lawyers have identified three merits reporting points. Kate.

Thank you. The first merits point is just to note that it's very unusual for a commencement Order to be subject to the draft affirmative procedure. The second merits point asks the Welsh Government for further details of its proposed phased approach to commencing the prohibitions on plastic products in the Act. And then the third merits point notes the potential impact of the United Kingdom Internal Market Act 2020 on the three prohibitions that have not been commenced by this Order, and so the Welsh Government is asked whether it continues to take the view that the Act will be fully effective and enforceable when those three remaining prohibitions are brought into force, and we're waiting for the Welsh Government response.

That's quite an important issue to reflect upon, and it may be something where committee does reflect. And, of course, the committee has, on a number of occasions, asked the Government to bring forward legislation under the affirmative process, so I think we should probably welcome it when it does. Do Members have any other comments or observations? No, they don't. 

Item 5, instruments that raise issues to be reported to the Senedd under the relevant Standing Order, as previously considered. Item 5.1—we've just got one item on this area today—is SL(6)382, the Local Elections (Principal Areas) (Single Transferable Vote) (Wales) Rules 2023. Now, we considered this instrument at our meeting on 2 October and laid the report the same day. Members are invited to note the Welsh Government response to the report, which has since been received. Do you have any comments first, Kate?

Yes, just two things to draw to your attention. Firstly, there is a very helpful table included in the response that sets out the corrections that have been put in place before the instrument was signed by the Minister. So, that's very positive. The second point is that one of the corrections has inserted wording in slightly the wrong place, but we've alerted the Welsh Government to that informally so that they can address it.   

Thank you very much for that. Do Members have any observations or comments to make? I see we do not, so we're content with that.  

So, we'll move on to item 6, correspondence and notifications under the inter-institutional relations agreement, and we have just the one item this afternoon, which is correspondence from the Counsel General and Minister for the Constitution on the Interministerial Standing Committee. This is in relation to the fourth meeting of this committee, which will take place on 19 October. I think that's later this week, isn't it? The Counsel General informs us that the standing committee meeting will be chaired by Scotland's Deputy First Minister and Cabinet Secretary for Finance, Shona Robinson MSP, and the discussion that will take place will focus on UK legislation and international relations. The Counsel General has undertaken to provide an update after the meeting. Do we have any comments or observations? Can I just say one thing? If it's discussing international relations, I assume that the relevant committee will also be informed of that. Yes. That's fine. 

So, we'll move on to item 7, papers to note. Item 7.1, correspondence from the Minister for Climate Change in response to recommendation 1 in the committee's report on the Welsh Government's legislative consent memoranda on the Energy Bill. This is responding to the committee's request for full details of the internal processes followed by individual Government departments and the Welsh Cabinet when liaising with the UK Government on UK Bills that engage Standing Order 29. This may be something that we could defer to discuss in private in the private session, if Members are content. I see Members are content.

Item 7.2 is correspondence from the Counsel General and Minister for the Constitution on the availability of disaggregated data on the criminal justice system in Wales, and this is an update on the work being taken forward by the Welsh Government. I assume Members are content with that. 

We have correspondence, under item 7.3, from the Counsel General and Minister for the Constitution on the Retained EU Law (Revocation and Reform) Act 2023. Here, the Counsel General responds to questions we asked in relation to the relevant legislation. Again, this is something we may wish to discuss in private.

Now, we've reached item 8, which is a motion under Standing Order 17.42 to resolve to exclude the public for the remainder of this meeting. Are Members content? I see Members are content, so I'll ask the clerk to take us into private session.