National Assembly for Wales

Welcome to this afternoon's meeting of the Legislation, Justice and Constitution Committee. We have apologies today from Sam Kurtz, a member of this committee, but we're delighted to have back with us James Evans as a substitute, and a very able substitute too. Just to say we're not expecting a fire alarm today, but if there is a fire alarm, just follow our staff members to the safe point. If you can make sure, everybody in the meeting here, that you've got your mobile devices switched to silent. We're operating as normal through the mediums of Welsh and English today, and we've got interpretation available. No need to adjust your microphones because that is done for you by our invisible members of staff behind the scenes.

We're going to go straight ahead then to our first substantive item today, which is item 2, the Residential Outdoor Education (Wales) Bill, evidence session with the Minister and his officials. We're delighted to have you with us here today, Jeremy Miles MS, Minister for Education and the Welsh Language, but also your officials. Would you like to introduce yourselves?

Good afternoon. Emyr Harries, deputy director for education business planning and governance.

Good afternoon. Ceri Planchant, lawyer within legal services for the Welsh Government.

That's great. Thank you very much. You're here with us in advance of having the Member who's bringing this legislation forward, so we'll be interested in your responses today. A straightforward one at the start, it's the one we always ask: do you consider that the provisions of the Bill fall within the legislative competence of this Senedd?

Yes, I do.

Thank you, Minister. Now, this is something we're really interested in, as we follow these private Members' Bills here: what discussions have you had, or your team had, with the Member in charge during the development of this Bill?

There have been at least two meetings between myself, officials and the Member, and there's an ongoing offer that we've made to work together in relation to other ways of meeting the objectives of the Bill. But there have been meetings, yes.

And you've made that offer, I think, publicly on the floor as well.

I have, yes.

Right. Okay. Can I just ask one interesting question here? To make the changes that the Member is seeking to make, whether you as a Minister want to support this or not, does it require primary legislation? Could it be done in a different way, either through guidance, changing policy or regulations?

If we just take a step back, Chair, if we may, the explanatory memorandum and the objectives that it sets out for the Bill are at odds with what the Bill itself seeks to achieve, so it's a slightly more complex question than ordinarily it would be. The EM states that the key aim of the Bill is to offer residential outdoor education to pupils in mainstream. So, there's an inconsistency with the actual effect of the Bill, because the Bill itself makes it a compulsory part of the curriculum.

So, what you're pointing out there is the disparity between the wording of 'offer' and actually a compulsion.

Yes, exactly. I don't think that is intended. If it is intended to be a compelled approach, if you like, a mandatory approach, then there are existing arrangements and regulations that could deliver that outcome. There's a mechanism in the Bill, as some may remember, from the 2021 Act, which allows for there to be an exemption from that—that's part of the architecture of the Bill already—but that route could be achieved through regulation. If the intention, on the other hand, is to deliver what the memorandum says but not the effect of the current Bill, then that would require primary legislation. That offer would require primary legislation.

Within those couple of meetings you've had with the Member, what's your understanding of what the actual intent is, whether it's an offer or a mandatory residential?

I think it is more likely to be the case that the intention is as described in the explanatory memorandum, but the Bill doesn't achieve that aim.

Sorry. Which is—.

An offer that is not compulsory.

An offer that is not compulsory.

Yes.

That could not be done through primary legislation.

That would require primary legislation in order to do that.

Sorry. That would require primary legislation. Thank you very much. Very helpful. James. 

Minister, thank you for coming today. Do you think that the Bill achieves an appropriate balance between what is on the face of it and what is left for Welsh Ministers to determine, via regulation-making powers?

I'm afraid I don't. The purpose of the Bill is to have a mechanism—as in the conversation we've just had—to deliver an increase in the provision of residential outdoor education, but then does not go on to define what residential outdoor education is, which I think is a significant weakness. But then, in addition to that, it provides for the code, which has a carte-blanche approach, really, in terms of what Ministers might put in that code, which I think is not proportionate. And the guidance, in a sense, goes a step further, because the guidance includes mandatory provisions where there are no equivalent mandatory provisions in the Bill itself, which is clearly challenging, at least from a scrutiny point of view, and in other ways as well. So, I don't think the balance is correct, I'm afraid.

The Bill does require Welsh Ministers to take all reasonable steps to ensure that children have a course of outdoor education, if they want to take it—it's in the explanatory memorandum. In your opinion, what kind of steps would the Welsh Ministers and the Government need to take in order to comply with that duty?

The context for that requirement in the Bill—if I may just take a step back again—is that the explanatory memorandum imposes a duty on local authorities to provide this, which is not at all surprising, given that that's where the education functions are delivered. But the duty then appears in the legislation on Ministers to take all reasonable steps. So, I think there's a tension, again, between the memorandum and the draft Bill in relation to that.

Elsewhere in the Bill, there are two other provisions, one of which relates to a funding duty, and one of which relates to a duty to issue the code and guidance. It isn't clear to me, above and beyond providing funding and providing a code and providing guidance, what other steps are available to Welsh Ministers to take. We obviously aren't in a position to provide the service directly, so it isn't clear to me that there's anything in addition to that that we could reasonably do, and even those steps don't in fact ensure the provision of that service.

You mention the code, and it does place a duty on the Ministers to provide that code, the residential outdoor education code. I'd just like to get your views on this, and in which way you think that could interact with the curriculum. Would it cause any friction or be quite easy to deliver?

The 2021 legislation contains provisions for specified codes to be published by Ministers, and they have, of course, been published. There are three of them: there's the 'what matters' code, there's the progression code, and there's the relationships and sexuality code. The thinking behind that small number of codes, which Ministers are required to publish, is that they deal with issues that are, on the one hand, fundamental, but also of broad application across the curriculum, which is the sort of thing you would expect a code to provide for. I would put the 'what matters' code and the progression code in that category. And then, on the other hand, there are matters that are highly sensitive and sometimes controversial for some, and that's the rationale behind the relationships and sexuality code. So, that's the current architecture of codes in the existing legislation, which this Bill seeks to amend.

What this Bill seeks to do is introduce a new code into that, which operates, I think, at a very, very different level from the two types of code that we've just been talking about. In a sense, outdoor learning is a subset of the curriculum generally, and residential outdoor centres are a subset of outdoor learning. So, it's a level of granularity that is very, very far removed from the current arrangements in the Bill. So, I think there's a tension between the amendments and the existing architecture of the Bill, in that sense. And I think there's a secondary issue. So, if we conclude, if the Senedd concludes, that a code for something that is this specific, if you like, is appropriate in that legislation, I think it would be a challenge for us to distinguish rationally any future code for an issue that is of similar specificity. That's a secondary argument, but I think it's important to take into account.

If the Senedd does give leave for this piece of legislation to continue proceeding, and it one day perhaps comes into law, the code must be issued within one year, because of all other sub-Acts, which means it has to. What's your view on the timescale of that one year of the current code coming into force? Is it enough time for Welsh Government to get everything together, or do you think it's a bit—?

Well, the codes you've just been talking about, the first two of those—the what matters code and the progression code—took around three years to develop, and the RSE code took about two years. And the reason for that is good, because you obviously want to make sure that, in effect, it's co-developed with those who have an interest in it and it's subject to full consultation, development and scrutiny. So, I think a year is an unrealistically short period of time if you want to, as I think we ought to, do it in a way that is co-developing it, essentially.

So, if this was to proceed, do you think this could be an area that should be amended, then, to make that period longer?

I think that would be sensible.

Okay. Thank you.

Thank you. Before we move on to Alun, can I just ask—? You mentioned that the challenge with this is the specific nature of 'outdoor, education, residential'. If you were—. Sorry, we're not a policy committee, but, if you were to go down the line of some of the Scandinavian countries, where outdoor education is embedded within the curriculum, would that justify a code—where it was, outdoor learning is, part of the everyday part of the curriculum, not in the sense of accessing a forestry school or whatever, but actually being outdoors and out in the outdoor environment?

Well, there are already powers for schools to do that, under the existing legislation. So, schools who want to incorporate this into the curriculum absolutely have the powers to do that under the existing architecture. I just want to say, if I may, Chair, given that there's a lot of interest in this Bill from stakeholders outside the Senedd, I just want to be clear that the points I'm making here are specific to this Bill. They are absolutely no reflection on the value of physical education outdoors, outdoor learning, residential centres, all of which I've benefited from. So, just to be clear.

It's good that you've put that on record. But my point is slightly different. If the Welsh Government, at some time, were to say, 'Well, we think access to the outdoors'—sorry—'outdoor education, as part of a day-to-day curriculum'—in the way that they do in some of the Scandinavian countries—'is so important, but it's not to do with residential, it's the wider piece', would that satisfy what you've described as your requirements for a code that embeds it right across? Because you've been quite helpful in explaining what you see as a code.

I think I could make a stronger case for that, if I'm honest. But the question for us is: what is the code intended to deliver, isn't it? So, we already have a requirement in the curriculum—. There's an outdoor learning theme in the curriculum, isn't there? And one of the conversations I've had with the Member—and I've repeated this in the Chamber—is I think there's a real opportunity for us to develop curriculum guidance that enables that to become a larger feature of the curriculum, under the existing regime that we have. So, I don't think it's a compelling argument. I think it's a stronger argument, but, actually, we've got a practical way through that already.

Okay. Thank you. That's helpful. Alun, sorry.

Diolch. Diolch, Gadeirydd.

Diolch, Adam. James, you wanted to come in on this.

Yes, I just want to go back to the financial element, if that's okay. I'm just interested. Are there any other examples in education legislation here in Wales where—this is quite a nuanced piece of legislation on outdoor learning—there is this financial requirement actually set on the face of a Bill that Welsh Government have to abide by, outside of the financial statement that should accompany the Bill?

Well, there are—. I'm happy to write to the committee with more detail, but there are examples where duties are placed on Ministers for funding parts of the sector, in general terms. So, the post-16 sector in particular has definitions around reasonable provision and proper provision, and there is a set of meanings that go with that, but it's not this level of specificity. But I will ask Ceri if he has more detail.  

No, I would just echo that there are examples around post-16 where Welsh Ministers are under obligations to fund that. For compulsory school-age education, the functions are expressed more in terms of a duty to secure primary and secondary education. It is not normal to see this degree of specificity: 'You must provide this particular part of the curriculum and fund it'. It raises its ranking in the order of priority to above anything else.

If I may, do you think that this could set a dangerous precedent, then, for future legislation, as such, from a legal perspective?

Well, that's the point that I was trying to make to Adam earlier, really. What this does is it creates a ring fence for funding in the future. I used the word 'distort'. I don't mean that in a pejorative sense, but it then affects, doesn't it, the other choices that Ministers can make, necessarily. And I don't think that that is helpful precedent, at this level of specificity.

Thanks, Adam. Could I just check before I come to a couple of other questions, because I didn't pick up in your responses to Adam whether you touched on this—? The application of no procedure to guidance to be issued under the Bill. Have you got a view on that?

I think that the mechanism proposed in the Bill is the right mechanism. The point that I was making to Adam was that the guidance seeks to do more than guidance can, really.

Just to add to what the Minister says, the approach taken in the 2021 Act needs to be consistent with any subsequent amendments made to it by this Bill. The approach there in the 2021 Act is that there is no Senedd procedure attached to the guidance. The reason for that is that guidance could only ever offer advice; it must not ever impose requirements. It's there to be fluid and flexible, and to allow Ministers to provide advice where circumstances are changing and new issues are emerging. So, we would argue that it wouldn't be appropriate to make it subject to a Senedd procedure. Just to summarise the nature of it, it's advisory, it doesn't impose legal requirements, and it does need that extra degree of flexibility. 

Is there a reason why it needs to be consistent?

The fixed point here is—.

Putting on your previous hat now as Counsel General. 

Sure, sure. The fixed point here—I'll give you a 'yes' or 'no' answer in a second—just to give you context, is what the guidance is asking Ministers to do. So, that's the start of the analysis, and the guidance is asking Ministers to do things that guidance should not ask Ministers to do. That's my argument, basically. So, then, the issue about what happens to that process is the next question. And I think it is important for it to be consistent, otherwise you end up with legislation that has guidance and codes of things that are of general application and high sensitivity, with one level of Senedd procedure, and then, as my argument is, a set of changes that give the same weight to something that is very much more specific and a different process in the Senedd, which seems to me to be just irrational, basically, and we like to have legislation that is rational, essentially, and accessible, importantly. 

Okay. That's great, thank you. It's obviously going to be up to the Senedd whether this Bill proceeds. If it does—if the Senedd's will is that it does proceed—what would you as a Government like to see in terms of amendments to this Bill to make it workable, practical, better, improved?

Well, there are some things we've touched on already today. I guess the two things that are most significant, I think—. The EM talks about duties on local authorities, the Bill imposes duties on the Welsh Government and there are obligations on schools. I don't think that's consistent at the moment, so that needs to be clarified and set out clearly. These are legal duties, so people need to know who's responsible for doing what. That's the first thing.

And I absolutely think this question of whether it's mandatory, the level of compulsion for individual pupils and the mechanism in the Act that provides for the exemption from the mandatory elements of the curriculum—section 42 of the 2021 Act—. Because of the way the curriculum is designed and devised, it's not really expected that will be used very much because the curriculum is an organic thing, really. So, in this context I think the risk is—and I think it's a pretty significant risk—that section 42 will start doing all the heavy lifting for this new part of the legislation, and you've got to give reasons for why you want to exempt your child from a part of the curriculum that is mandatory. And you can imagine the sorts of reasons put forward for not wanting to send a child away on a residential course—there might be costs implications and all sorts of sensitive issues. I think, whilst it exists as a mechanism, it's a pretty blunt instrument for doing something that, frankly, it wasn't intended to do—just to be candid. 

Right. Alun. 

Thank you. I very much agree with the analysis you've given us this afternoon in terms of this piece of legislation. So, you have been in discussion with the Member in charge of the legislation. You outlined that in answer to one of our first questions. Do you believe there's a non-statutory means of delivering the objectives of the Member in charge?

Not on the compulsory side of things. But if the question is how do we make sure that schools in Wales are providing more outdoor education for pupils as a core part of the curriculum, making that a real experience in the lives of increasing numbers of pupils, there are certainly things that we can do. We've got the curriculum legislation. We already provide resources and guidance. One of the opportunities here is for us to work with the sector to address the existing obstacles to some of the choices being made here. Some of that is around appetite for risk, some of it is about providing clearer guidance about what sort of things might be considered. So, there's absolutely an opportunity to do that and I think—and I've made this offer in the Chamber itself—that is a better way of making sure that more and more young people get access to outdoor education, which is what we want to see, obviously. 

Okay. Would it be possible, Minister, for you to write to us—not in any detail, because I accept that some of these things are quite difficult—to outline the resources that the Government has expended in dealing with this application for legislation?

Certainly, yes. 

Thank you. 

Thank you very much. Colleagues, I have only one final question. Is there anything else that you want to ask? Otherwise, we might, from our perspective as a committee, have covered all the ground we wanted to. I just want to ask you one final question then, which is: is there anything else you want to add that we haven't covered in terms of the legal and the technicalities around this particular proposal?

No, I don't think so, Chair. I did want to make the point, which you allowed me to make earlier, about distinguishing our support for outdoor education on the one hand from our reservations on this particular Bill on the other. And I'm also conscious, not least in the work of the cross-party group, of just how much engagement the sector has had in relation to this, and I'm grateful to them for that.

Okay. That's good. I think they'll welcome the fact that the offer is there to continue to engage, come what may.

It certainly is.

And we, of course, as a committee have, over a long time, had a propensity towards supporting good legislation when it comes forward, and seeing the opportunities for backbench Members to bring forward legislation. But, of course, what we have to do here in terms of this is the same as every individual piece that comes up, which is run it through, whether it's correct, technically correct, and in its legal propriety as well. And then it's for the Senedd to decide.

Yes. Indeed.

Colleagues, no other questions? In which case, thank you very much to you, Minister, and to your officials, as well, for appearing in front of us. We'll send you the transcript as normal, so that you can check it for accuracy. Good luck when you come in front of the policy committee, as well. Diolch yn fawr iawn.

Thank you very much. Diolch yn fawr.

Colleagues, we'll take a very short break here, just while we change positions now, with officials, so that we can proceed with other business. So, we'll take a short break for the moment.

Croeso nôl. Welcome back to this afternoon's session of the Legislation, Justice and Constitution Committee. We took a short break there, just at the end of the evidence session with the Minister on the Residential Outdoor Education (Wales) Bill, but we're going to go into our other business in public now, so we'll turn to item No. 3, which is instruments that raise no reporting issues under Standing Order 21.2 or 21.3. The first of these is item 3.1. We have a draft report in our packs. This is an affirmative resolution instrument, SL(6)438, the Official Statistics (Wales) (Amendment) Order 2024. The 2017 Order related to this provides that the statistics produced or to be produced by the persons listed in the Schedule to the Order are official statistics for the purpose of Part 1 of the Statistics and Registration Service Act 2007. The 2024 Order amends the 2017 Order and adds the Commission for Tertiary Education and Research to the list of official statistics producers in Wales. There are no reporting points. Colleagues, anything you want to raise on this? Otherwise, we will agree those reporting points, then. Only one item in that section today.

So, we'll go to item No. 4. Item 4: we'll go straight to 4.1—it's a made negative resolution instrument. These are instruments that raise issues to be reported to the Senedd under those Standing Orders, 21.2 or 21.3. So, under 4.1, we have SL(6)437, the National Health Service (General Medical Services Contracts) (Wales) (Amendment) Regulations 2023. These regulations amend the National Health Service (General Medical Services Contracts) (Wales) Regulations 2023. We considered, as you'll recall, these regulations at our meeting on 25 September 2023. The principal regulations set out the framework for general medical services, GMS, contracts under Part 4 of the National Health Service (Wales) Act 2006. The regulations we're considering today have been made to correct errors of a technical nature or which are relating to drafting convention that were identified by our committee in our report on the previous regulations. Now, in so saying, our lawyers have identified eight technical and two merits points as well. So, we'll go to—. Where is—? Oh, sorry, on my right. My apologies. Kate, what are your observations on this?

The first technical point is identifying an inconsistency between the Welsh and English language texts of the regulations. The remaining seven technical points identify potentially defective drafting. So, for example, there are a number of incorrect references to other legislation. The first merits point is noting that the regulations do not address two of the committee's reporting points on the principal regulations that Welsh Government have said would be corrected. And then the final merits point is just to note that no consultation has been carried out, and we're waiting for Welsh Government's response.

Okay. Thank you. So, no Welsh Government response at the moment. Are we happy with those reporting points? We are. Great, thank you very much, Kate.

So, we'll turn to item 4.2, the only other item in this particular section, SL(6)439, the Meat Preparations (Amendment and Transitory Modification) (Wales) (Amendment) Regulations 2024. We have a draft report in our packs. These regulations extend the temporary suspension of the requirement for meat preparations to be deep frozen when they are imported into Wales from the European Economic Area member states, the Faroe Islands, Greenland or Switzerland, until the end of 29 April 2024. The temporary suspension is being extended again as part of an evolving Great Britain-wide approach to border controls. Without this further extension, it would be illegal to import chilled meat preparations after 31 January 2024. Our lawyers have identified one merits reporting point. Kate.

The merits point is noting the context to these regulations, which are set out in the explanatory memorandum, and, in particular, the significant risk of sector confusion and disruption to the food supply chain if the regulations were not made.

Thank you for that. Colleagues, are you content with that? No observations, okay. Thank you very much.

So, we'll turn them to item No. 5, which is instruments that raise issues to be reported to the Senedd under Standing Order 21.7. We turn, then, to item 5.1, SL(6)435, Part 8 code of practice on the role of director of social services. We have a draft report in our packs. The existing Part 8 code on the role of directors of social services, which was issued in March 2016, is being revised to account for the requirements under the code of practice in relation to the performance and improvement of social services in Wales. The explanatory memorandum to the code states that the revision of the Part 8 code allows the opportunity to issue new guidance to local authorities in preparing their annual reports, bringing them into line with the corporate self-assessment report required under the Local Government and Elections (Wales) Act 2021. So, the revisions to the Part 8 code will align with the changes brought about by the Local Authority Social Services Annual Reports (Prescribed Form) (Wales) (Amendment and Transitional Provision) Regulations 2023, which we considered in our committee session last week. Now, our lawyers have identified 14 reporting points under Standing Order 21.7, and we haven’t had a Welsh Government response yet, have we? 

No, that’s correct. The 14 reporting points are identifying various drafting issues, including some inconsistencies between Welsh and English. And, yes, we’re waiting for Welsh Government to respond to those points.

Any observations on those reporting points? No, we’re content with those, Kate. Thank you very much. And we’ll await the Welsh Government response.

We turn, then, to item No. 6, which are instruments that do raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, which we’ve previously considered, and the first of these, item 6.1, is an affirmative resolution instrument, SL(6)425, the Council Tax Reduction Schemes (Prescribed Requirements and Default Scheme) (Amendment) (Wales) Regulations 2024, and we have the report and a Welsh Government response in our packs. We considered this at our meeting on 8 January. We laid a report the same day, and, of course, the debate took place in Plenary on 16 January and the motion was agreed in the Senedd session. So, I invite Members to formally note the Welsh Government response to the committee’s report, which was circulated on e-mail to Members ahead of the debate, as it wasn’t possible to formally consider it at last week’s meeting, and prior to the debate. Any comments on that? Are we happy to note it? We’re happy to note.

Okay, we’ll turn to item 6.2, the other item in this section. It’s a made negative resolution instrument, SL(6)431, the Education (Student Finance) (Miscellaneous Amendments) (No.3) (Wales) Regulations 2023, and, again, we have a report and a Welsh Government response in our packs. We considered this instrument at our committee meeting on 15 January, and we laid our report the same day, so I just invite Members to note the Welsh Government response to the report that has been received. Any comments on this, or are we happy to note that as well? We’re happy to note that. Thank you.

So, we turn, then, to item No. 7, instruments that raise issues to be reported to the Senedd under Standing Order 21.7, which we’ve previously considered. And under item number 7.1, we have SL(6)424, 'Separate Collection of Waste Materials for Recycling: A Code of Practice for Wales', and we have a report and a Welsh Government response in our pack. We considered this code of practice at our meeting on 8 January, and laid our report the same day, so, again, unless Members have got any particular comments, it’s just to invite you to note the Welsh Government response there that we’ve received.

And then we turn to item No. 8, where we have three items here under notifications and correspondence, under the inter-institutional relations agreement. The first of these is 8.1, correspondence from the Minister for Finance and Local Government in relation to the Finance: Interministerial Standing Committee, which will take place on 25 January, this week, in Edinburgh. The Minister states this is likely to be the last meeting before the UK spring budget, and in the letter, the Minister states she will be meeting separately with the Chief Secretary to the Treasury to discuss Wales-specific spending pressures and the economic outlook. Jump in if there are any items on these that you want to raise in this session.

Item No. 8.2: we have correspondence from the Deputy Minister for Climate Change in relation to the transport inter-ministerial standing committee, which took place on 13 September. And the Deputy Minister’s letter directs us to a joint communiqué, which has now been issued, summarising those discussions, and it included the zero-emission vehicle mandate, rail reform and minimum service levels for rail.

And then item 8.3: I draw your attention to the correspondence from the Counsel General and Minister for the Constitution in relation to the inter-ministerial group on elections and registration, which is taking place tomorrow, 23 January, as a virtual meeting. And the Counsel General states that the Welsh, Scottish and UK Governments will give updates, and that further discussion will likely focus on online absent voting, managing divergence and mitigating risks. And he states that he will write again following the meeting. 

So, then, we turn to item No. 9, and, again, if there's anything that you want to raise as we go through these, which are papers to note, just let me know. The first of these is item 9.1, where I invite you to note the correspondence with the Counsel General and Minister for the Constitution in relation to our annual report for 2022-23, which we published in December. Just to remind colleagues that, following the publication of the report, we wrote to the Counsel General to ask if certain web pages could be reviewed and updated in relation to inter-governmental agreements. The Counsel General has responded, and states that the website is kept under continuous review and was last updated in June 2023. He also clarified the Welsh Government's position on two other ongoing negotiations in relation to memoranda of understanding. 

Under item 9.2, the only other item in this section, we have a written statement by the First Minister in relation to the publication of the final report by the Independent Commission on the Constitutional Future of Wales, which of course did its launch here in the Senedd, I think last week. The First Minister states that he will make a statement to the Senedd on 30 January and will bring forward a Government debate in the Senedd once the Welsh Government has considered its response to that report. 

So, colleagues, unless there's anything you want to raise on those—and, of course, we can return to them in private—can I ask whether you're happy now to move into private under Standing Order 17.42 for the rest of the meeting? We are, and we'll move into private session.