National Assembly for Wales

Welcome to this virtual meeting of the Legislation, Justice and Constitution Committee. It's our first meeting back after the Christmas recess, and before we start in full with our regular agenda, can I just welcome our new member, Sam Kurtz? Sam, welcome to your first meeting of the LJC committee. We're looking forward to having you on here and getting stuck into the business of this strange committee that we have, but I know from your discussions with our clerking team that you've been very enthusiastic about learning about what we do here. So, it's great to have you on board, Sam.

Diolch yn fawr, Huw.

And just, as well, I think all of us as a committee would like to pass our thanks on to James as well for his work on this committee. It may be—who knows—that we see him back in front of us at some point with the private Member's Bill as well. So, hopefully, what he learnt on this committee might stand him in good stead as he brings that forward, if he gets the opportunity.

So, just as a reminder, everybody, the meeting is being broadcast live on Senedd.tv and the Record of Proceedings will be published as usual afterwards. But apart from the normal procedural adaptations for conducting these proceedings in a virtual setting, all the other Standing Order requirements remain in place. As per normal, if you can just make sure that your mobile devices are switched to silent. We are operating through both the Welsh and English languages today and we have interpretation available, and the sound operator will operate the microphones for you, so hopefully you won't need to mute and unmute yourselves. So, with that, and fully quorate as we always seem to be, which is brilliant, we're going to move on to item No. 2. 

A regular item here: instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We'll begin, then, with a made negative resolution instrument under item 2.1, and this is SL(6)423, the Non-Domestic Rating Contributions (Wales) (Amendment) Regulations 2023. These seek to prescribe the rules for calculating non-domestic rating contributions to be paid by billing authorities in Wales to the non-domestic rates pool. The regulations amend Schedule 4 to the 1992 regulations to update the adult population figures, which are used to calculate the contributions. The regulations also make consequential amendments to Schedule 2 to the 1992 regulations. There are no reporting points, so if you're happy to agree that report, colleagues, we'll move on to item No. 3.

We have instruments that do raise issues to be reported to the Senedd under Standing Orders 21.2 or 21.3. Now, for the first item on this, I'm going to suggest that we group two related statutory instruments for convenience—item 3.1 and item 3.2, which refer to SL(6)419, the Water Resources (Control of Agricultural Pollution) (Wales) (Amendment) (No. 3) Regulations 2023, and SL(6)436, the Water Resources (Control of Agricultural Pollution) (Wales) (Amendment) (No. 4) Regulations.

In your packs, we have two draft reports and a letter from the Minister for Rural Affairs and North Wales, and the Trefnydd to the Llywydd of 15 December. So, the water resources regulations that we're considering here revoke and replace the Water Resources (Control of Agricultural Pollution) (Wales) (Amendment) (No. 3) Regulations—No. 4 replaces No. 3 regulations—which were due to come into force on 1 January 2024. The letter from the Minister confirms that the No. 4 regulations came into force on 31 December 2023, so they were already in place less than 21 days after they were laid. The Minister explains that the reason for not adhering to the 21-day convention in this case was that if the No. 4 regulations did not come into force on or before this date, then the No. 3 regulations would have come into force on 1 January 2024, and, quote,

'without maximising legal clarity, accessibility, and certainty for end users'.

So, the purpose of the No. 4 regulations, as colleagues will know, is to implement the second stage of a two-part process for introducing an enhanced nutrient management regime for the calendar year 2024 for certain holdings. Amongst other things, the regulations amend the 2021 regulations to change the implementation date for the annual limit on the amount of nitrogen in livestock manure that may be applied to holdings for holdings that were not previously in nitrate vulnerable zones where 80 per cent or more of the agricultural area is sown with grass, from 1 January 2024 to 1 January 2025. So, you can see the policy intent behind these. There's been quite a lot of public debate about this, including within the Senedd, but, from our perspective, our lawyers have identified three technical and two merits reporting points in relation to both the No. 3 and the No. 4 regulations. Unless you're going to update us, Kate, I don't think our lawyers have received yet any response from the Welsh Government, but, Kate, over to you.

Thank you. Just by way of context, the No. 4 regulations are very similar to the No. 3 regulations, just subject to the minor changes made by the Welsh Government for legal clarity, accessibility and certainty. So, the three technical reporting points that have been raised on both the No. 3 and the No. 4 regulations are identical, and those are namely one inconsistency between the Welsh and the English language texts and then two instances of potentially defective drafting.

The first merits point on each set of regulations is also identical, as it just notes the extent of consultation that is described in the explanatory memorandum. The final merits point on each set of regulations is slightly different. So, on the No. 3 regulations, it just notes that these are revoked by the No. 4 regulations. The final merits point on the No. 4 regulations is just noting the breach of the 21-day rule and the explanation provided in the letter to the Llywydd. And we are still waiting for the Welsh Government's response to both sets of reporting points.

Thank you very much, Kate. Colleagues, do you have any observations on this? Our focus is very much on the merits and technical points, as always, with these statutory instruments. If not, we will proceed, and if we're happy to agree those reporting points, and we'll await the Welsh Government response on them.

We'll move on, then, to item 3.3. Again, this is an SI with matters to report, so it's SL(6)420, the Feed Additives (Authorisations) (Wales) Regulations 2023, and there's a draft report in your packs. These regulations authorise, in relation to Wales, the placing on the market of 13 feed additives, including nutritional additives and technological additives. They also provide transitional arrangements due to an ID code change for one previously authorised feed additive to allow existing stocks to be depleted and to revoke spent authorisations. I'm going to turn to Kate, because our lawyers have identified two technical and one merits reporting point. Over to you, Kate.

Thank you. Both the technical reporting points identify potentially defective drafting, and we've received the Welsh Government's response, where they acknowledge that there are issues, but they state that they have decided not to amend the instrument. The merits point is just to note that a full regulatory impact assessment has not been produced, for the reasons set out in the explanatory memorandum.

Thank you, Kate. Fairly straightforward, I think, colleagues. Any comments, or are we happy to agree that? We're happy to agree that, Kate, and we will wait for the Welsh Government response.

That takes us on, under the same section here, to item 3.4, SL(6)426, the Building (Building Control Profession) (Registration, Sanctions and Appeals) (Wales) Regulations 2023. These regulations prescribe periods of registration of a registered building inspector and registered building control approver. They set out the sanctions for registered building control approvers and deal with appeals of a decision made by Welsh Ministers, who are the regulatory authority in relation to Wales. There's one merits point, Kate, that you've picked up from a legal perspective.

Yes, thank you. The merits point is just asking the Welsh Government to provide some clarity in relation to one of the enabling powers that have been cited, and we're waiting for their response.

Thank you again, Kate. Happy to agree that, colleagues? Thank you very much.

That takes us on, then, to item 3.5, SL(6)427, the Building Control Profession (Charges) (Wales) Regulations 2023. Again, there's a draft report. These regulations are made under the powers provided by the Building Act 1984, which allow Welsh Ministers to recover charges for and in connection with the performance of their functions under the 1984 Act. Amongst other things, these regulations allow Welsh Ministers to recover charges for determining applications for registration as a registered building inspector or a building control approver, investigating professional misconduct and responding to appeals. Our lawyers have identified three technical reporting points and one merits reporting point on this. Kate, over to you.

Thank you. The first two technical points seek further explanation from the Welsh Government in relation to the meaning of particular words used within the regulations. The third technical point identifies an inconsistency between the Welsh and English language texts, where there are words missing from the Welsh language text. The merits point asks the Welsh Government to confirm the status of the various documents that are referred to within the regulations, and we're waiting for their response.

Thank you very much again, Kate. Colleagues, are there any comments? If not, are we happy to agree that? We are. Thank you.

That takes us on to our final item in this section. It's an affirmative resolution instrument under item 3.6, SL(6)425, the Council Tax Reduction Schemes (Prescribed Requirements and Default Scheme) (Amendment) (Wales) Regulations 2024. We have the draft report and a written statement by the Minister for Finance and Local Government in our packs.

The operation of the council tax reduction schemes in Wales is governed by two sets of regulations made in 2013. These regulations in front of us today amend the 2013 regulations to uprate certain figures used to calculate an applicant's entitlement to a reduction under a council tax reduction scheme. To note as well, the regulations also make various other provisions, including ensuring that applicants living in Wales are not negatively impacted due to receipt of a widowed parent's allowance back payment, and ensuring that applicants in Wales are treated in the same way for any compensation or support payment made in connection with the failings of the Post Office Horizon system. Our lawyers have identified three technical reporting points on this instrument. Kate.

The first technical point is seeking further explanation from the Welsh Government in relation to the new definitions that are being inserted into the two sets of 2013 regulations. The second and third technical points have identified some potentially defective drafting, and we're waiting for the Welsh Government's response.

That's great. Thank you very much, Kate. Do you have any points, colleagues, or are we happy to agree that? We're happy to agree. Thank you, Kate. We'll move on to the next item, but don't leave us, Kate, because we still need you here.

We're going to move on to the section now of instruments that do raise issues to be reported to the Senedd under Standing Order 21.7. The first of these—there is only one in this particular section—is item 4.1, SL(6)424, 'Separate Collection of Waste Materials for Recycling: A Code of Practice for Wales'. There's a draft report in our packs. This code of practice provides guidance on how to comply with the separation requirements contained in the Waste Separation Requirements (Wales) Regulations 2023, which apply to the presentation, collection and handling of waste in respect of non-domestic premises. Our lawyers have identified three points for reporting under Standing Order 21.7 here. Unless Kate is going to update us, we have not yet had a Welsh Government response. Kate, over to you.

Thank you. The purpose of the code is to provide practical guidance on how to comply with these waste separation requirements, and the reporting points identify some places where this purpose may not have been entirely achieved—so, for example, where there are inconsistencies between the Welsh and English texts, or where the law has been incorrectly described. We're still waiting for the Welsh Government's response.

Thank you very much. Are we happy to agree that? We are.

That brings us on to our last instrument to be considered today. This is under item 5, where we look at instruments that raise issues to be reported to the Senedd under Standing Orders 21.2 or 21.3 that we have previously considered on the committee. We have only one here, as I mentioned, under item 5.1. It's a made negative resolution instrument, SL(6)422, the Recognition of Professional Qualifications and Implementation of International Recognition Agreements (Wales) (Amendment etc.) Regulations 2023. We have a report and a Welsh Government response in our packs. We considered this instrument at our meeting on 11 December and we laid our report the same day. So, I simply invite members to note the Welsh Government response to the report that has since been received. There are no comments on this, Kate, I'm assuming, or are there?

There's just one point I could draw to your attention. In response to the third technical point, the Welsh Government has stated that it is content that the word 'deddfau' in the Welsh text is sufficient to convey a broad range of primary and secondary legislation. Members may just wish to note that the committee's legal advisers are still of the view that the word 'cyfreithiau' would be preferable, because deddfau is generally used in the context of primary legislation. However, we are content that when the Welsh and English texts are looked at side by side, there is very little risk of confusion to the reader. So, it's really just a point for you to note.

That's great. It's well worth raising that, and it falls in line with a lot of our consideration of other instruments and legislation that have come through. Thank you, Kate.

Colleagues, in that case, with our thanks to our lawyers for their consideration over the Christmas period of these instruments coming forward, we're going to move on now to item 6. Beyond the instruments now, we're onto the notifications and correspondence under the inter-institutional relations agreement, another part of our remit as a committee.

We'll begin this by looking at item 6.1, where we have a written statement and letter from the Minister for Economy informing us that he attended a meeting of the Interministerial Group for Trade that took place on 29 November 2023. The Minister confirms in that correspondence that it focused on the ongoing negotiations with India, preparations for the upcoming World Trade Organization Ministerial Conference, and engagement between the devolved Governments and the UK Government around the US memorandum of understanding negotiations. Colleagues, I'll rattle through these, but yell at me if you want me to stop as we go through them on anything. And, of course, we can return to them in private session as well.

Item 6.2, we have a written statement from the Minister for Rural Affairs and North Wales, and Trefnydd, confirming that she has given consent to the making of the Sea Fisheries (International Commission for the Conservation of Atlantic Tunas) (Amendment) Regulations 2024 in relation to Wales. This is something we've discussed on the committee previously, related to this. The Minister informed us of her intention to consent on 7 December 2023. In the written statement, the Minister confirms that these regulations amend various retained EU laws and that consent was granted as they ensure that the UK is compliant with its obligations under the International Convention on the Conservation of Atlantic Tunas. And one final thing is that the Minister notes that the regulations were laid before Parliament on 12 December 2023 and will come into force on 1 April this year, 2024.

Then, item 6.3. Under this section, we have a written statement and letter from the Minister for Social Justice and Chief Whip confirming that she attended the inaugural meeting of the Interministerial Group for Work and Pensions that took place on 6 November. The Minister informs us that the group's terms of reference were formally agreed during the meeting, and she also informs us that during discussions, the Welsh Government's work in relation to tackling poverty through supporting people to maximise their household income was highlighted, as well as efforts to increase the take-up of pension credit. And the Minister confirms that she is due to chair the next meeting of the inter-ministerial group, which is due to take place in spring 2024.

Item 6.4, then, is the last in this section. I invite members to note the written statement and the letter from the First Minister, in which he confirms that he attended the fortieth meeting of the British-Irish Council on 23 and 24 November, hosted by the Government of Ireland. The First Minister confirms that the theme of the summit was 'Transforming Children's Lives: Tackling Child Poverty and Improving Well-being' and that during discussions he highlighted, amongst other things, Wales's Flying Start programme in that context. The First Minister states also that discussions focused on topics of mutual interest, including the conflict in Israel and Gaza, the Russian invasion of Ukraine, shared climate objectives, the UK-EU relationship, and the ongoing cost-of-living crisis. The First Minister notes that a joint communiqué has since been published and that the next British-Irish Council summit will be hosted by the Isle of Man Government.

Colleagues, we go on, then, to section 7, where we have papers to note. Again, by all means flag anything up as we go through these, but if not, I'll rattle through them so that we've got them firmly on record and what the main points of substance are.

First of all under section 7, papers to note, we have a letter from the Minister for Climate Change under item 7.1, in which she responds to the committee's second recommendation in its report on the legislative consent memorandum on the Energy Bill, which requested the outcome of a review of the lessons learnt by the Welsh Government on its handling of the Energy Bill.

Then, if I can suggest we group the next two items, which are items 7.2 and 7.3, both of which relate to the Infrastructure (Wales) Bill. I simply ask Members to note that correspondence from the Minister for Climate Change to both this committee and the Climate Change, Environment and Infrastructure Committee, in which she responds on these two items to recommendations made in both committees' reports on the Infrastructure (Wales) Bill. Again, colleagues, we can return to any of these in private session to discuss them further if need be.

Item 7.4, then. I invite Members to note the letter from the Minister for Climate Change, in which she provides an update on progress relating to the EU emissions trading scheme, the UK ETS, following the Government response to the 'Developing the UK Emissions Trading Scheme' consultation, which was published in July last year. The Minister confirms that the UK ETS Authority has since published two consultation documents. Those are the free allocation review and the future markets policy. The Minister states that these consultations are key to ensuring the scheme continues to function as effectively as possible and to encourage industry to transition to net zero. The Minister also confirms that the Government response to 'Developing the UK Emissions Trading Scheme' committed to further consultations on expanding the scheme, which the authority intends to publish in due course, and the Minister has undertaken to write to us when these are published.

Under item 7.5, I draw your attention to note the correspondence with the Counsel General and Minister for the Constitution. In a letter, the Counsel General responds to the committee's request for further information on the Elections and Elected Bodies (Wales) Bill, following our evidence session with him on 20 November.

And then item 7.6—again, I draw your attention to note the correspondence with the Minister for Economy. In his letter, the Minister responds to a request from this committee for further information in relation to a number of matters relating to the United Kingdom Internal Market Act 2020 (Exclusions from Market Access Principles: Services) Regulations 2022.

Item 7.7. I draw your attention here to the correspondence between the inter-parliamentary forum, the IPF, and the Secretary of State for Levelling-up, Housing and Communities and Minister for Intergovernmental Relations. To note here—and it's within the packs that we have—Clare Adamson MSP, the convener of the Scottish Parliament's Constitution, Europe, External Affairs and Culture Committee, wrote to the Secretary of State in November 2023 in her capacity as the host of the IPF meeting on 27 October. The letter requested that annual reports be provided on provisional common frameworks in addition to those fully agreed. The Secretary of State has responded, stating that he shares the view that

'mutual transparency between Government and the devolved administrations is crucial to both sound intergovernmental working and for effective scrutiny of intergovernmental working.'

However, he also states that any decision to report on provisional frameworks requires agreement across the four administrations, and the Northern Ireland Executive is, for obvious reasons, not currently in a position to provide this. He states that his department is currently conducting an evaluation of the entire programme, likely to be published in spring, which has involved, in quotes,

'significant input from both the relevant Government and devolved administrations departments',

end of quote, and that this would be duplicated by a further request for reporting. So, colleagues, there's plenty within that correspondence, and we may want to return to it in the private session there, to unpack it a little bit as well.

Item 7.8, then. We have correspondence from the Minister for Social Justice and Chief Whip to the Llywydd in relation to a supplementary LCM, legislative consent memorandum, on the Victims and Prisoners Bill. The Minister informs the Llywydd that, during the House of Lords Report Stage, 151 Government and non-Government amendments were tabled and accepted. I see Alun shaking his head. We're in familiar territory here—151 amendments. The Minister states that as her officials only had sight of the amendments to the Bill once they had been tabled, it has not been possible to analyse these and to lay a supplementary LCM within the two-week window set out in Standing Orders. Now, the Minister also states that it is expected that further amendments will be made to the Bill during the House of Lords Committee Stage and as a result of ongoing discussions with the UK Government. So, the Minister therefore expects to lay a further supplementary LCM following Committee Stage in the Lords, setting out the latest situation on the relevant amendments ahead of the expected legislative consent motion debate. Given those timescales, the Minister states that the further SLCM will cover any relevant amendments made at Commons Report Stage. So, the Minister expects for the consent motion debate to take place in late February. We'll discuss it when we get to private session, colleagues, because, clearly, this has impacts for our scrutiny, our ability to scrutinise as well, because the lateness of this is an issue for Welsh Government, but also for us as a committee and other committees as well.

Item 7.9. We have correspondence from the First Minister to Jacob Young MP, a Minister for levelling up in the UK Government. The First Minister's letter highlights the reports by Senedd committees, including this committee and the recommendations we made. Just to flag one point from that correspondence: the First Minister states that Welsh Government, in quotes,

'remain of the view that..."levelling-up" is substantially devolved',

and that, and again in quotes,

'It is unfortunate that the UK Government persists in using the UK Internal Market Act to bypass devolved governments and the scrutiny of our legislatures to spend directly in devolved areas of responsibility.'

And I flag that because he's referring to the issue there, of course, of scrutiny, as opposed to the governmental aspects. Again, we can return to some of these in private.

Item 7.10—we've lots of correspondence here to put on record this week—I draw your attention to the correspondence with the UK Government in relation to the use of powers under the Retained EU Law (Revocation and Reform) Act 2023. Our committee wrote to Department for Environment, Food and Rural Affairs officials in November last year. They passed it duly on to Minister Hollinrake in the Department for Business and Trade, who has now provided a substantive response. In that response, the Minister, Minister Hollinrake, states that the Secretary of State for Business and Trade and the Minister for Intergovernmental Relations corresponded with the Counsel General last year to confirm that the UK Government Ministers did not normally intend to use the powers under the REUL Act in devolved areas without the agreement of the Welsh Government. That correspondence included a commitment that, where a UK Minister intends to exercise the powers in devolved areas, agreement would be sought via exchange of letters. And he also states, and I quote,

'the UK Government remains committed to the devolution settlement and, although the Sewel Convention and related procedures and practices only apply to primary legislation, we take seriously any commitments to seek the agreement of the Welsh Government.'

That's of significant interest to our committee, that correspondence, and, again, we can return to this in private session. 

And then our final piece of correspondence here, colleagues, in this first session back after the recess, item 7.11. We have a letter from the Minister for Finance and Local Government, and the Minister responds to our report on the legislative consent memorandum on the Economic Activity of Public Bodies (Overseas Matters) Bill. And the Minister, just to note, thanks the committee for its report and states she will, in quotes,

'continue to take steps to press UK Government on the matters concerning the compatibility of the Bill with international law and the European Convention on Human Rights which are of significant importance.'

So, we note that. Colleagues, if you're happy to agree all those, then we will move on to item No. 8. 

And item No. 8 is a slightly unusual one in the midst of a meeting, but it's one we have to do. It's a motion to elect a temporary Chair under Standing Order 17.22 for agenda item 11, which is later in private session. Just to explain, the reason we have this motion today is because both Adam and myself will be leaving the meeting for that final item, which relates to the Senedd Cymru (Members and Elections) Bill, because of our previous involvement in matters relating to the course of that—not the legislation, but the scrutiny and development of that before it got to the legislative proposal. So, we're seeking to put in place a temporary Chair, and there will be others then joining us. Could I just ask for any nominations please for a temporary Chair? Sam, go ahead. 

Diolch, Cadeirydd. Happy to nominate Alun Davies. 

Diolch, Sam. Adam, content to second that? Thank you, Adam. Brilliant. So, Alun, you're duly in charge for item 11. Thank you for taking charge of that. And just to confirm that also, for that particular part of the meeting, Luke Fletcher will be coming in to replace Adam, and Carolyn Thomas will be coming in to replace myself. Oh, and also I think I'm correct in saying, Sam, that James Evans will be joining the meeting in your place, because he was here for the consideration of that. 

That's correct, Chair. 

Brilliant. Thank you very much. So, it all changes; the subs bench—we bring the whole subs bench on for that. 

Item No. 9, then. We've got a little bit of business to take forward in private session, so, under Standing Order 17.42, can I ask if you're happy to exclude the public now for the remainder of the meeting? We are. We move into private please, and, Gareth, perhaps if you could let us know when we're in private session.