National Assembly for Wales

Welcome to the Constitutional and Legislative Affairs Committee on Monday 15 January 2018. Just some handling matters to start with. In the event of a fire alarm, Members should leave the room by the marked fire exits and follow instructions from the ushers and staff. There is no test forecast for today. All mobile devices are to be switched to silent. The National Assembly for Wales operates through the medium of both the Welsh and English languages. Headphones are provided through which instantaneous translations may be received. For any who are hard of hearing, these may be used to amplify sound. Do not touch any of the buttons on the microphones, as this can disable the system, and ensure the red light is showing before speaking. Interpretation is available on channel 1 and verbatim on channel 2. There are no apologies. We have a full committee, with the exception of the one vacancy that we have at the moment. 

I'll now move on to item 2, instruments that raise no reporting issues under Standing Orders 21.2 or 21.3. Negative resolution instruments: the Non-Domestic Rating (Small Business Relief) (Wales) Order 2017 is there to note. Any comments on this—any issues?

We've no comments.

We'll move on to item 3, then—instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3. Negative resolution instruments: the Ringing of Certain Captive-bred Birds (England and Wales) Regulations 2017. You have before you a copy of the regulations, the explanatory memorandum and the report. These regulations implement certain obligations under articles 2, 5 and 6 of the European Commission directive on the conservation of wild birds relating to the ringing of birds bred in captivity. There is an issue that's been raised with regard to the format. The regulations have been made in English only. Are there any comments from the lawyers?

Just to say that there is a reporting point that we make under the Standing Orders. They are composite regulations and, again, the reason given is that it's not possible to scrutinise composite regulations bilingually. As I understand it, this is a matter that's been raised on several occasions in the past, and we have got evidence of legislation that has been made bilingually. So, I guess it's another one to report and to see whether we have a Government response on it.

Members will have been given, I think, a copy of this letter of 15 January 2018 to Derek Twigg MP, chair of the Statutory Instruments Committee of the House of Commons. That sets out our concerns over this. I think there's another matter later on on the agenda that relates to the same matter. I have raised it formally and will report back to this committee on, really, what is an unacceptable position at the present time.

I now move on to the affirmative resolution instruments: the Landfill Disposals Tax (Administration) (Wales) Regulations 2018. In front of Members is the regulations, explanatory memorandum and report. The Landfill Disposals Tax (Wales) Act 2017 establishes a new tax to be known as the landfill disposals tax. The tax is to be charged on taxable disposals, as defined by the Act. I invite, first, any comments from the lawyers. 

There aren't any technical points on this one, but the merits point that we did raise was the fact that there are certain definitions not given on the face of the statutory instrument, which Legal Services think would be helpful to the reader. Now, it's not legally required, because by virtue of the Interpretation Act 1978, if there's a definition in the parent Act, then you read it over to the secondary legislation that comes under that parent Act. We have had a Government response this afternoon, actually, just shortly before the meeting, to say that there is no legal requirement for them to put these definitions on the face of the SI. And they make the additional point that if they were to start putting definitions in every SI, then that would perhaps muddy the water or make it unmanageable.

So much for trying to establish clarity in the law-making process.

We agree that there's no legal requirement for it to be put in the statutory instruments themselves, but it would help the reader so that you wouldn't have to refer back to a parent Act—

So it's all in the same place. I mean, that's what we've established, isn't it? So you wouldn't have to refer back.

There is, before you, as you see—

It's a real process, dull, bureaucratic response, isn't it? Let's face it. [Laughter.]

There is, as I was just saying, a two-paragraph response that is there. I suppose the only interesting point to note, of course, is that, although there is reference to the Interpretation Act of 1978, the Government has already indicated its intention to bring forward its own interpretation Act, and that brings forward the issue as to the clarity and the basis for interpretation within Acts. I'm sure this is a matter that will come before us, hopefully in a way in which we can resolve some of these, I suppose, bureaucratic problems. Are there any other comments on this, other than what's been already noted?

In that case, we move on to the—. We've just completed that one, haven't we? So, we're now onto the composite negative resolution instruments. The Environmental Permitting (England and Wales) (Amendment) Regulations 2018—the same point, I think, arises in respect of the use of the Welsh language that I referred to earlier. Are there any other comments from the lawyers? 

Only that, interestingly, in this particular SI, these regulations actually do amend bilingual legislation in some places, and when they do that, they do it bilingually. Therefore, there's obviously the ability to legislate bilingually when it's needed. Nothing else to add.

The capacity is there but the spirit is not necessarily willing. [Laughter.] Okay. Well, as I say, we have written to take that—

It's worth noting that important point, though, because, obviously, they're not averse to the idea.

No, no, absolutely.

Moving on to item 4: instruments that raise no reporting issues under Standing Order 21.2 or 21.3 but have implications as a result of the UK exiting the EU. So, we have the Agricultural Holdings (Units of Production) (Wales) Order 2017, and there is a report before Members. This Order prescribes units of production for the assessment of the productive capacity of agricultural land situated in Wales and sets out the amount that is to be regarded as the net annual income from each such unit for the year 12 September 2017 to 11 September 2018 for certain purposes of the Agricultural Holdings Act 1986. Are there any comments the lawyers wish to make on it?

Nothing to add really to the report. There are no technical or merit points, only implications arising from the exit from the EU. In this particular Order, there's a definition for 'eligible hectare', which is very important in terms of this Order. Because it's part of a regulation—it comes from an EU regulation—after EU exit day, the powers to do anything in relation to the definition, for example, here would be retained by UK Ministers and UK Parliament. So, even though it's within a devolved area, we won't have any power to do anything, to comment on it. So, the UK Ministers will be free to amend that.

So, obviously, subject to whatever amendments are made to the withdrawal Bill.

Yes.

Any comments?

Or a continuation Bill, presumably.

Yes. That's another matter not before us at this moment in time.

Indeed. I'm just flagging it up, Chair.

Absolutely. As you're entitled to do. If there are no other comments on that—.

Item 5: papers to note. There is the Welsh Government statement on the Welsh Government prosecution code to be noted.

Noted.

Obviously, an important constitutional step forward.

Trade Bill: legislative consent memorandum. The LCM was laid on 7 December 2017. The Business Committee has referred this to other committees for consideration as well. Maybe this is a matter that we'd want to consider in private session later on. 

Okay.

We move on to item 6: the Public Services Ombudsman (Wales) Bill, evidence session 1, which is with the Cabinet Secretary. Can we bring in the Cabinet Secretary?

I welcome the Cabinet Secretary to the meeting of the Constitutional and Legislative Affairs Committee session on the Public Services Ombudsman (Wales) Bill. I just remind Members that this is not the Cabinet Secretary's Bill. It is not a Government Bill, it is one brought forward by the committee itself, but it is obviously a matter of importance. Do you want to introduce your officials, Cabinet Secretary?

Chair, thank you very much. So, Nick Howard is a member of the legal services side of the Welsh Government and is providing me with legal advice in relation to the Bill, and David Richards is leading in terms of the policy issues that the Bill contains. 

Thank you very much. I know you've given evidence, obviously, on this Bill to other committees. Our interest in it is really more to do with the technical aspects of the Bill. Just as an opening question or a starting question: what is your overall view of the Bill? 

Well, Chair, I think the Welsh Government's position is that we have offered the Bill qualified support—caveated support—on its introduction. If you think of the Bill as having four main aspects, then we are broadly content, subject to some relatively minor points with what the Bill proposes in relation to a new ability for the ombudsman to take oral complaints, and the ability of the ombudsman to pursue the privately provided aspects of a healthcare pathway that involves the Welsh NHS as well as the private provider.

We've had some greater questions in relation to the other two aspects of the Bill, although it's important for me to say that our starting point for me is not that we are opposed to them. It's simply that we think they merit exploration. So, we've had some questions to ask, particularly in relation to the own-initiative proposals, which are new and would be the first time that the ombudsman in Wales had such powers, and in the standard-setting aspects of the Bill. I explored this from a policy perspective with the Equality, Local Government and Communities Committee and will look forward to hearing their conclusions when they've had a chance to take evidence from others who have an interest in the Bill.

If the committee hadn't brought forward this Bill, is this an area where you consider that there is a need or there has been a necessity for legislation?

Well, Chair, there was a discussion of that sort during the fourth Assembly term, primarily between my predecessor as Finance Minister, Jane Hutt, and the Finance Committee—being a little bit about who should take the responsibility for taking forward proposals that the ombudsman's office itself had generated. I think, at that time, the Welsh Government's view—and I think it was, in the end, shared by the Finance Committee—was that, because the ombudsman has powers to scrutinise the Welsh Government itself, the Welsh Government was not best placed to bring those proposals forward. And the ombudsman is, of course, accountable directly to the National Assembly. For those reasons, I think our feeling at the time—and still would be—was that the reforms are best promoted via a vehicle that belongs to the Assembly itself rather than to the Executive side. 

Thank you for that. So, this is an appropriate way forward. One of the areas, of course, of the remit within this committee is the issue of competence. If I might just ask you, there are two aspects to that: competence under the existing Government of Wales legislation, as opposed to what the situation might be after 1 April 2018, this year, when the Wales Act 2017 comes into effect. Do you have any concerns or issues with regard to competence?

Well, Chair, because it's not a Welsh Government Bill, we don't have to, ourselves, certify anything in relation to competence. I see, of course, that Simon Thomas, as the Member in charge of the Bill, has provided the necessary section 112 of the Government of Wales Act 2006 assurance—that in his view, the Bill is within competence. And, of course, the Llywydd has also played her part in it and made a statement on 2 October that, in her view, the provisions of the Bill, as introduced, will be within the Assembly's competence, and the Government is happy to rely on those assurances.

Thank you for that. We will be obviously pursuing that point with Simon Thomas. Dai Lloyd.

There's one aspect of the Bill, Chair, where we might have some issues that we would want to discuss with the Member in charge, should the Bill proceed beyond Stage 1, and that's just in the issue of retrospective provisions.

So, in creating the new ability to take own-initiative investigations, the Bill allows the ombudsman to look backwards in time, as well as forwards from the point at which the Bill becomes an Act of the Assembly. There is no time limit in the Bill to that retrospective ability. I think you could argue that a non-time-limited ability to go into the past could give rise to some human rights considerations, where, for example, if it were the health service, you might imagine that with some of the issues being enquired into, the people who were involved in them would be no longer employed, either in the health service at all, or at least by the part of the health service that they were employed by at the time of the issue that is being investigated. So, I think it's a question that we just want to rehearse with the Member in charge as to whether a long-stop period—. I believe the ombudsman, as a rule of thumb, doesn't take up complaints that are more than two years old now. That's the sort of way that the office operates. I don't think maybe it would be unreasonable to think that a long-stop period of that sort might allow the Bill to work more effectively and to have some consideration of human rights issues that might occur in that context.

The issue of retrospection—I'm not sure I understand how that would differ categorically from the current position, where a specific complaint is made and then the past evidence is looked at. Why is the fact that a potential complaint or deficiency is investigated on the ombudsman's own initiative different from a complaint that just comes and there is this inevitable examination of the record? From a human rights point of view, the example you gave would apply as forcefully if it was a patient who had made the complaint.

I might just ask Nick to say a couple of things.

Sure. We recognise that there are safeguards in the provision as it's drafted, in the sense that it looks backwards—it enables the ombudsman to go back—but in order to do that, he has to be satisfied that there is still a risk of hardship or maladministration or systemic failure there. So, we understand that that's there. I think our understanding is that, in practice, he does apply this two-year rule. I see the point about own-initiative investigations, but maybe a general tone of it might be appropriate.

But, I still can't see how this is focused on the power of the ombudsman's own initiative. It doesn't seem to be that that creates anything new in terms of human rights issues that currently exist from complaints that are routinely referred to him.

You may well be right, and what I said was that it was something that—

You want to explore.

—we wanted to explore with the Member in charge. I do think there are some material differences in the sense that, if an ombudsman is pursuing a complaint that has been brought to his attention, then he is doing it at the initiative of the citizen who has a complaint to make. In own-initiative investigations, the ombudsman is self-certifying. If you look at the way that this Bill is constructed, the person the ombudsman has to satisfy that what he is doing is in line with the law is the ombudsman who is taking his own initiative. So, in that sense, maybe the tests of safeguards for others, you could argue, need to be of a slightly higher order than if he's not acting on his own initiative, but acting on behalf of someone who has made a complaint to him within the rules.

Can I just follow that, because, of course, one of the areas that we specifically concern ourselves with is the issue of retrospectivity? Of course, in paragraph 5 of the Bill and the talk about investigations being in the public interest, one of the criteria in terms of what amounts to public interest is systemic failure, and it seems to me that it's impossible to investigate systemic failure without going into the history of failures, which means you're immediately into the area of retrospectivity.

So, I suppose it's unfair to press you on this point; I think we have to press the person in charge of the Bill, but there is clearly an issue there in terms of the fact that these are very broad-ranging powers and they do have retrospective issues that they raise, some of which exist at the moment, but I suppose the point is if you're extending the powers, the issue of retrospectivity comes more to the fore and something that needs to be looked at very, very cautiously.

That is exactly the sort of discussion we would want to have with the Member in charge. It's not the Government's position that there should be no retrospective ability for the ombudsman; it's just that it's an unfettered right to go back as far as you might ever want to go. I think, the further back you go, some issues do become more prominent in the way you need to think about them. Now, as David said, they may be no different, some of these may not be different in relation to an individual case being taken up, but given that this is a new power and given that this was raised in the consultation by others, we think it's worth further exploration with him.

There is a further issue. I'll raise it, perhaps—. I know there are some further questions that Dai Lloyd wants to ask first of all and I'll come back on something around that that I'd like to ask about.

Most often, where there are regulation-making powers, not on the face of the Bill, they are consistent with the same approach in the 2005 Act. So, the 2005 Act, I think, is generally well regarded. It's thought to have worked well, and the Bill contains the same basic formula that the original Bill did. I think there is one issue, Chair, where we feel maybe it would be preferable to put something on the face of the Bill that, at the moment, the Bill leaves to a power for Ministers. It's a small example.

So, the Bill tries to advance the position where consultation between relevant players is guaranteed to take place. It provides an Order-making power that would allow the children's commissioner powers to consult and work with the ombudsman. The commissioner already has those powers to work with the older person's commissioner, and the Bill provides the ombudsman with powers to work with the children's commissioner. I don't think we've completely seen the case for leaving that power to Welsh Ministers to trigger. Would it not be simpler to put it on the face of the Bill, and then the commissioner will have those powers from the outset? That might just seem a more straightforward way of securing what the Bill sets out to achieve, and the policy ambition of it we support.

Could I just ask one thing that follows on slightly from that with regard to paragraph 4 of the Bill? These are very significant additional powers that are going to the ombudsman. One of the important issues with legislation is clarity, and of course we have a number of other investigatory bodies that have very clear functions to be carried out. When an own-initiative investigation takes place, legislation as it's drafted requires the ombudsman to consult whoever he thinks fit, but it's not more specific than that. Is that something that causes any concern in terms of, you know—? I'm thinking from this committee's angle in terms of clarity as to what the legislation is and what the powers are. 

Well, yes, Chair, I did raise this issue with the Equality, Local Government and Communities Committee in saying that one of the things we do think we would like to see improved in the Bill in relation to own-initiative inquiries is that if the ombudsman were to decide to embark on an own-initiative inquiry in an area where another regulator already has powers, that it should be obligatory for the ombudsman to consult with that authority, rather than—. He's given the ability to consult in the Bill but, again, it's on his own decision as to whether or not to do it. And I just feel that it would make better sense to say that whenever you are thinking of an own-initiative inquiry, you ought to make sure that that other regulator is alerted to that intention, because they may have relevant information; they may already be involved in a piece of work themselves. 

One of the risks in own-initiative inquiries is that they end up further complicating an already quite complex pattern of inspection and regulation in Welsh public services. We're not opposed to the ombudsman having the power in principle, but it's important that the Act constructs them in a way that genuinely adds to what's available already, and doesn't create the unintended consequence of actually muddying waters and creating new overlaps and confusions. And guaranteeing that the ombudsman would consult somebody else if they were likely to go into their area would help, I think, to avoid that risk.

Okay. David. 

As Dr Lloyd said, you're almost here under false pretences, really, as you're not the Member in charge, so my traditional question of why are there so many Henry VIII powers—. How outrageous if you put them all in. [Laughter.] Were you surprised that so much leeway is given to the Executive by way of Henry VIII powers, which obviously allow for primary legislation to be altered? 

Chair, obviously I've looked at the Henry VIII powers issue. I'm hoping I am getting this correct for you. As I read the Bill, I think there are nine examples of Henry VIII powers in the Bill; six of which mirror the existing position. So, it's not as though the Bill represents a great new leap into more extensive use of Henry VIII powers. The three examples where there are new Henry VIII powers, two of the three of those require consultation—so, both of them in the own-initiative areas require consultation. And that means that six of the nine powers require consultation before they are used, and they're all subject to the affirmative procedure.

As David and I will have discussed many times here previously, there are different sorts of Henry VIII powers. Some of them are where you have a framework Bill and the Henry VIII power is pretty wide, and allows the Executive to fill in an awful lot of detail with reasonably narrow oversight by the legislature. And then there are some Henry VIII powers that are much more specific: they're narrow powers; they allow something to be done in a very particular area. My reading of the powers in this Bill is that they belong in that second category rather than the first.

So, on the whole, I don't think we do have anxieties about it. If I do have an anxiety, it's about one area where the advice that I've had may suggest that the scope of the power to make consequential and incidental provisions, which is section 78 of the Bill, isn't broad enough in relation to the Henry VIII power that it provides, in that it doesn't include a power to amend primary legislation, despite being subject to the affirmative procedure. We think there may be instances where that would be important, and if it's not there then we may be in the position of having to bring primary legislation back to the Assembly to put right pretty minor things that would be better done in a more proportionate way.

I'll go back to the issue of section 78 in a moment, but can I just talk about the Henry VIII provisions? Because it's fair enough for you to refer to precedent in terms of the current legislation, but, in general, we don't regard precedent as a sort of trump that can just be played and that is all the justification you need. I think it does need to be carefully justified and explored, but, you know, however, we've got to be mindful of that. The powers are quite significant, because we're talking about the sorts of things that can be investigated, the criteria, the people on the list that have to be consulted or whatever, and I just wonder—. Because it was interesting that you qualified your earlier answer on this by saying the new powers that would have Henry VIII powers attached to them require some form of superaffirmative, in that there's a consultation on them. Do you think the other Henry VIII powers, where they're applied, could usefully be extended from simple affirmative, which does give a level of protection, I grant you, to this requirement to consult as well? And there would be consistency then, too.

Well, Chair, I think that six out of the nine Henry VIII powers that the Bill takes already have consultation requirements within them. Again, I remember another discussion where I was on the wrong side of Mr Melding's view when we talked about superaffirmative and what we mean by 'superaffirmative' and what the ingredients of a superaffirmative procedure have to be—

They can range—there are a couple of options, really, in terms of superaffirmative.

Yes, but consultation is generally one of them—

It is, yes.

—and, in that sense, if you think of a spectrum here, the affirmative powers that the Bill proposes, are, very often, stretched towards the superaffirmative without necessarily going all the way towards them. I don't think we have difficulties with that, because, for example, in that example of changes to the criteria for own-initiative investigations, I think it's a very important power to have in the Bill. The Finance Committee went quite a way between the draft and the final Bill to put criteria on the face of the Bill to shape the conduct of own-initiative inquiries, and, from the Government's point of view, we were grateful to see that and thought that was an improvement on the draft Bill.

But in something that is new and where even the examples that we are often referred to, for example, in the Northern Ireland context—. These are very new there too. There is no great body of experience built up to know how the rule book for own-initiative investigations is best created. So, having a power for Welsh Ministers to bring forward changes in the light of experience, I think is a sensible safeguard in keeping the Bill up to date and in line with what we will know. But it does require that there is prior consultation with the public services ombudsman's office, if there were to be such proposals, so that guarantees that the National Assembly, in carrying out its scrutiny of those regulations, would always hear not just from the Government, but would hear from the body responsible for the investigations as well. So, in general, I think that our view is that the Bill is proportionate in the places where it takes Henry VIII powers, because they are generally in those narrow, specific areas, and when there is the need to make sure that the Assembly would have the benefit, not just of the Government's perspective, but of the perspectives of others, those consultation requirements will guarantee that the Assembly has that available to them in the affirmative procedure.

I think, Cabinet Secretary, we appreciate we are rehearsing the ground for the next evidence session that we have as well. [Laughter.] Anything further, David?

Yes. Just finally on this point, section 78, you've upped the ante a bit by saying you don't think it goes far enough, and that you would like the Tudor monarch to make an appearance.

To reign supreme.

Henry IX powers.

From our point of view, powers that are necessary or expedient—we don't like the word 'expedient' generally. How essential is that word, from your point of view, and couldn't we trim it to 'necessary', where we are much more comfortable about these secondary legislation powers being used under those circumstances?

Well, this has often been an area where the Government and the committee have not always seen eye to eye in these consequential provisions. I'll certainly think about the point that the Member has made, and I'm happy to write to the committee on that specific point when I've had a chance to do that. The point that I was making a moment ago, Chair, was that the equivalent provision in section 43 of the 2005 Act—I know you don't deal directly in precedents, but that section does contain a power to amend primary legislation. Let me give you an example of why I think that could be important. Our reading of the Bill is—to give you the example, section 4(3A) of the Parliamentary Commissioner Act 1967 cites the 2005 Act and requires a consequential amendment. That is not picked up in this Bill. There may be references in other primary legislation that require consequential amendment. The power we are seeking would allow us to do that, in what we believe will be a proportionate way, by using—

But in those examples a 'necesary' would be sufficient, wouldn't it? You wouldn't have to say 'expedient' to cover those examples.

No, I think that's a very fair point to make, and I'm happy again, as I say, to think that through. But without the power at all we might have to rely on further primary legislation to put right those sorts of things.

Yes, and that we accept. We understand that, yes. Thank you.

Well, I think we're really at the end of this session. Are there any other issues or concerns that you feel it's worth or ought to be drawn to the attention of this committee?

Well, Chair, there are a small number of places where we might want to explore with the Member in charge how some aspects of the Bill might be amended should it go to the amending stage at the Assembly. I've told you already about putting the power for the children's commissioner to consult with the ombudsman onto the face of the Bill. I've told you already about our section 78 concerns, in the power to make consequential incidental amendments. There is an issue at section 76(1) of the Bill, which is a power that is picked up from the 2005 Act, where it is subject to the negative procedure. I think it is suggested that it should be subject to the affirmative procedure in this Bill. Given that it is a power that simply allows Welsh Ministers to ensure that administrative functions of tribunals are treated as such, I don't think we think that it is a sufficient power to require the affirmative oversight of the National Assembly.

There are a number of issues that I raised with the Equality, Local Government and Communities Committee about making consultation mandatory in the case of own-initiative inquiries, on where the bar is set as far as private healthcare services are concerned in recovering costs from them. At the moment, the bar is set, I believe, very high in the Bill; you could only recover costs from them where there is an active obstruction of the ombudsman, or a level of non-co-operation equivalent to a contempt of court. That might mean that the public purse is going to be picking up the costs of investigating things that have happened in the private healthcare sector almost all the time. I just asked that committee whether it wanted to give that consideration. There were some financial aspects of the Bill as well in the way that the RIA and so on has been constructed.

I did offer to write to the Equality, Local Government and Communities Committee in relation to some technical issues in the way in which investigating oral complaints is constructed in the Bill. It’s an example of where we would want to have further discussions further down the line. I’m very happy to copy that letter to this committee, if that helps, just to show the sorts of things that we are thinking about and may need to pick up, if the Bill is ever in that sort of detailed consideration stage.

That would be helpful. We don’t want to intrude into the sort of policy areas that are not our remit, but there may be areas there that are—

Yes, technical and drafting issues, which I think this committee does have an interest in, and therefore I thought it would be useful maybe to share that.

Yes. That would be helpful.

Well, Cabinet Secretary, thank you for your evidence session. You will be given a transcript of the evidence. Thank you for attending today, and to your officials as well.

Thank you very much.

Shall we just adjourn the meeting, then, for five minutes? We're just waiting for the next witnesses to come. So, if anyone wants a quick comfort break or a coffee—

I'd like to welcome Simon Thomas to the Constitutional and Legislative Affairs Committee. Do you want to introduce your colleagues?

Thank you very much. You are, of course, in charge of the Bill, so the questions we would want to put to you within the ambit of this committee's responsibilities will be very much focused on the drafting and the specifics of the Bill. Perhaps I could ask you, as a starting question—a general introductory question—why your committee considered it was necessary to bring forward this legislation. What is the background to bringing forward this particular Bill?

Thank you for that. It's a very helpful background to the Bill. One of the areas, obviously, we're concerned with is just to scrutinise the issue of competence. It has been certified by yourself as being within competence. I was just wondering if you'd like to make any comments on the competence issue, because this is, of course, being issued before the coming into effect of the Wales Act 2017. Are there any issues in terms of competence now as opposed to what the position might be if we haven't completed Stage 1 before 1 April?

Okay, thank you. Over to Dai Lloyd. 

The Minister feels there is one issue perhaps that needs further exploration and that's the inevitable retrospection that's involved if the ombudsman had powers of initiation. Have you considered this, given that the choice of subject and the abilities that come with that perhaps raise the bar in terms of consideration of human rights issues and this issue of retrospection? 

Yes, we have considered that. I did hear the Cabinet Secretary's evidence. I think we have dealt with that in the Bill and I'd like to set out how I think we've done that. Though, by saying that I'd be very happy to hear what the committee has to say, and also the Cabinet Secretary, in turn, to see whether that needs any further clarity. To start with, the ombudsman, in terms of his work at the moment, has, in general, a time limit on investigations, and that's a year. There is a discretion to extend that, as I understand it, under the 2005 Act, but, in general, the ombudsman only goes back over a year's period and anything that's complained about before that falls outwith the ombudsman's general approach to complaints. 

But I think the question you asked was more specifically around the own-initiative investigations. On the face of the Bill, I think it's very clear that we're not looking or seeking to make this a retrospective free-for-all, if I can put it that way. This maybe reflects some of the amendments we made between the draft Bill and the Bill that is now presented. As a committee, we put criteria for own-initiative investigations on the face of the Bill. I think these are the ones that do bring in that protection that you are seeking. So, for a start, the ombudsman must be sure that any own-initiative investigation is in the public interest. I think that stops, in general administrative law terms, him or her going after a long period of past histories, if you like. But more specifically, it not only has to be in the public interest, but it also has to meet one of two other criteria, both of which talk about the matter being investigated being,

'likely to sustain injustice or hardship in consequence of the matter'

and then secondly, 

'a systemic failure that may cause any person to sustain injustice or hardship'.  

To my mind, that shows there's an ongoing problem of injustice or hardship. This is not a retrospective power to look at past failures that have been dealt with, or that time has passed and, to a certain extent, healed. This is a specific power to undertake an own-initiative investigation for an ongoing injustice or hardship that is being sustained today. I think that's the important protection there around some sort of long term—. What I think the Minister was talking about was some sort of backstop. I think the backstop on the face of the Bill is one that this has to be an ongoing hardship. So, it has to be systemic failure that is now ongoing today, not something that's merely related to past history. I would be interested to see whether this committee and the other committee thought that was sufficient, but that's certainly how we designed the Bill. 

Can I just ask on that systemic failure point? Because systemic failure almost implies that you're looking at the system, that there are failures there, which means that you have to have looked at the system in the past, and it implies retrospectivity. That was the issue that we raised with the Cabinet Secretary. But, one of the areas of concern to this committee is obviously to scrutinise and to look at the retrospective for all the reasons that we understand. But it seems to me that paragraph 5(b) there, in terms of own initiative investigations, clearly creates a specific power to be retrospective, because otherwise you can't define the public interest unless you're looking to the history of failure. Isn't that a different interpretation to what you're saying? Because you seem to be suggesting that, no, you can't go back, but it seems to me it's implied in the drafting that in actual fact you can and, in fact, you must go back.

I absolutely agree with you and I apologise that there's been confusion, because I'm very clear that if you're looking at a systemic failure then, yes, you are looking back at things that have happened maybe beyond the current year's ability that the ombudsman has to look at complaints, but the point I was making is that it has to be an ongoing failure; it can't be simply a past failure that was dealt with by the intervention of a Government previously, for example, if you're thinking about a particular health board, or whatever it might be. This has to be something that is currently likely to sustain injustice or hardship.

So, I think the wording of the Bill makes it clear that the systemic failure can't be something that's merely in the past and, therefore, you can't have the danger of an ombudsman trespassing on retrospective—a blame game, if you like, on something that's been dealt with appropriately by other officials, other authorities, other regulatory bodies. This is something that the ombudsman is likely to pick up through either casework where he sees a pattern of casework, or perhaps, it has to be said, from whistleblowing where he hasn't had a specific complaint made to him, but he has sufficient evidence—and then the tests are set out on the face of the Bill as regards public interest—to believe that there could be a systemic failure here and that allows him, then, to undertake an own-initiative investigation. So, I agree with you—yes, there is a retrospective element to this. What I am emphasising, however, is that there's not a historic element to this; this is an ongoing systemic failure. On the face of the Bill, he has to demonstrate that that is happening, otherwise he does not have the power to do it.

Okay. David. 

You say you've made a deliberate choice to use the affirmative procedure and, obviously, you're mindful of what our preferences are and your past service on this committee, but why so many Henry VIII powers and, indeed, extending them in terms of where we were with the 2005 Act? 

There are several Henry VIII powers—I think there are nine, all told—allowing the Bill to amend primary legislation. I think six of them actually restate from the 2005 Act, so we're not completely introducing new powers there. What we're trying to make sure is that the Bill works for the future, and make sure that it is strong enough to do that. We've used the affirmative procedure each time, and I think, when it comes to Henry VIII powers—I was watching Wolf Hall once again over Christmas as it happens, and it reminded you that they have been part of the British constitution, unwritten, I know, for quite a long time—there's a strong scepticism about them, and I understand that, particularly when they are widely drawn and really allow Ministers just to slot in what they like into legislation. But I think these are very specific powers relating to very specific parts of the Act. 

One example, for example, allows us to change the listed authorities. Currently, the Assembly is discussing and considering the future of community health councils in Wales, so the Bill, as it's currently drafted, talks about a community health council. If the Government were minded and got the legislative support of the Assembly to introduce a different kind of organisation in Wales, we would need to amend that. That is one example of a Henry VIII power. Yes, it is a Henry VIII power, but I think it's quite narrowly drawn and very relevant to the purpose of the Bill. It doesn't frustrate the Bill in any way, and it doesn't give the Minister any powers to do that. 

Where we've been able to update the Bill without the use of Henry VIII powers—so, the current Act also has these powers to amend the listed bodies—one or two rather arcane but interesting public bodies have come to our attention since the passing of the 2005 Act, one of which I'd just like to mention is the Coity Wallia Board of Conservators in the Bridgend area. They are now stated on the face of the Bill, so we're no longer relying on the powers—the Henry VIII powers, as you might describe them—of Ministers to amend that. Where we've been able to, we've modernised the Bill on the face of the Bill, but where we feel that there will be a need for powers to amend the Bill in future to maintain its relevance to the public sector in Wales and the work of the ombudsman, then, yes, we have retained or have introduced, I think, three new powers in that regard, and that's the purpose of them. 

So, I'm just trying to work out the theory you've been using, then, in terms of what's on the face of the Bill, and then if you put too much on the face of the Bill you need to use Henry VIII powers further down the line. Traditionally, we don't like arguments that are based on, 'Well, we are only applying what was the case before'. You know, precedent is not irrelevant but it's not a trump card either, if you're trying to improve law. But, in general, if so much is changing in terms of the relevance of what's on the face of the Bill, the argument surely is that there should be full scrutiny process through an amending Bill, isn't it? I just wonder what theory you've been operating. You know, where is the balance? Have you tried to put so much on the face of the Bill that you've had to try to counterbalance with the Henry VIII powers, which, sometimes, we do hear from the Executive? 

I wouldn't describe it exactly like that. So, there have been two particular quite strong forces on the Bill in that regard. We did try to look—it's a slightly separate issue but it is relevant—as I mentioned earlier, at the 2014 Social Services and Well-being (Wales) Act. We did try to see whether that could be introduced and amended on the face of the Bill and taken all the way through. We found that you would get to a position where we found it would be too complex and actually too confusing and therefore not helpful to have that on the face of the Bill.

The second element, and this was a conscious decision of the Finance Committee, is that we would not seek to amend the powers that were set out in the 2005 Act. So, in that sense, yes, we did take precedent and say, 'We will not interfere with that precedent. It seems to have worked well; it seems to have been reasonably well accepted; it hasn't led to any serious challenges in any way. So, we will take that as face-read, if you like. So, that accounts for 65 per cent of the Henry VIII powers, in effect. Six out of the nine emerged directly from the 2005 Act. It was a conscious decision not to try and do that on the basis that we wanted to restate the Act in a bilingual format and then add these extra powers to it.

And that was the overwhelming principle. It wasn't that we didn't have a principle of trying to do things on the face of the Bill; it's just that when we weighed up these different principles, the overwhelming one was that, for familiarity, for consistency, for ensuring that we had the clearest possible Bill, we'd restate 2005 and then add in the new powers— 

But you could still have restated it and used a different procedure. It was a choice there to use Henry VIII, wasn't it?

I accept that. It was a choice, and I think we await to see what the committee's other views on that are, but that's the way we've taken it forward.

Okay, perhaps we've gone as far as we can on that. What about the use of some form of superaffirmative then over Henry VIII? That's been a kind of compromise position this committee has offered, or urged rather. Would you be happy to extend that?

I think the powers—. The superaffirmative, I think, is very important when the powers to amend primary legislation directly could impinge on human rights, could impinge on individuals' positions, could impinge on penalties or taxation—as we are now doing, of course, in the Assembly, which we haven't done before—or could take away rights that people have previously enjoyed. I think it's extremely important to have things like the superaffirmative if you are going to use Henry VIII powers and not state them on the face of the Bill in those contexts.

I think the context of this Bill is, I would reiterate, quite narrowly drawn. You could argue, in certain terms, that one or two of these could appear on the face of the Bill. But, if you are going to use the powers, then I think the affirmative itself is a very strong sign that the Assembly itself will be examining these. Many of them are linked to consultation; that's not a superaffirmative procedure in my view. Consultation should happen where appropriate as much as possible and if further suggestions come forward about ways of doing that, then we'd be very open to that. But I wouldn't want to confuse the two. I want to be very clear that consultation around an affirmative procedure is not the same as a superaffirmative, in my view. There is a particular procedure for superaffirmative, which I think should be kept for the principles that I've set out rather than applied to what is, at heart, really administrative—important administration, yes, but really administrative. I think the affirmative procedure in front of the full Plenary is a sufficient safeguard there.

Now, whether other committees want to suggest some ideas around consultation, around the ways that people talk to each other, we'd be open to those, obviously, but I think that's the key principle that we have tried to apply as a committee here.

Okay. Then, finally from me, if we are a little surprised on the Henry VIII approach, given that it's coming from an Assembly Committee backed by the Commission, we approach crestfallen the way you're dealing with section 78, transitional and provisional—I can't remember the exact phrase, anyway, but—

Consequential and provisional.

Consequential. Sorry. You say 'necessary and expedient', and 'expedient' is one of those red-light words that we do not like to see flashed at us because it just gives far too wide a power, then. So, why not just 'necessary', given the traditional view this committee's taken on the use of the word 'expedient' and the doors that that could open?

In Welsh it sounds even worse, I must admit. 'Hwylus' sounds even worse than 'expedient' in the Welsh version. I very much accept that that's what this committee has had concerns about for a long time over legislation. I will trot out the argument that this does mirror other Bills that are taken through the Assembly that won't wash with you—I'm sure that you'll be quite critical of that. Also, as you will have heard, we haven't actually drawn it as widely in this part as Government Bills. You heard from the Cabinet Secretary that, in fact, this wasn't as wide as he would like it—

He got his retaliation in very early.

So, we have tried to narrow it down to what we believe to be necessary. Obviously, we'll consider what this committee has to say about those powers. Again, I would say that the other thing that we've introduced here, which is different, is that even these powers are under the affirmative procedure, and that's not happened before, certainly not under a Government Bill. So, even these consequential and transitional arrangements—yes, they're quite wide, but, again, they're brought in under an affirmative procedure, not a negative procedure, which I think tries to follow what this committee has advocated in the past.

If I can just follow one or two pieces, section 78, of course, was interesting, and, obviously, the issue of the use of the word 'expedient' is something we'll look at. But let's go back to the power to investigate own initiatives, and let's just deal with the clarity of the legislation and the clarity of the purpose of the legislation and how it would operate in practice. That just relates to this issue—and I think the Cabinet Secretary did refer to it—when the ombudsman is required to consult with other statutory bodies—we have a host of bodies, and I think the Cabinet Secretary's own words were that there was a difficult enough process of understanding all the different regulatory bodies. But it's a very open power there, where the ombudsman is only really required to consult as the ombudsman sees fit. That was something that raised a little bit of concern—the impact on other bodies and how the legislation might be understood and interpreted, and the clarity of the function of the ombudsman. So, do you have any thoughts on that particular bit of the evidence?

Yes, and some of that has been reflected in the evidence to the other committee as well, in policy terms. What we've tried to do here—and I think it is an important point—we've tried to strike the right balance around the independence of the ombudsman. It's important to bear in mind that the ombudsman is answerable to the Assembly through the Finance Committee, and also through the general scrutiny of the Assembly, which is undertaken by the Equality, Local Government and Communities Committee at present. He is not answerable to the Government.

The other bodies about which you talk are regulators responsible to the Government or commissioners established by the Government and funded by the Government. I think we have to get it right, and as a committee we'll be quite happy to look at any suggestions that come forward from the committee scrutiny process, but to get that balance right is important. I don't want to see the ombudsman's hands tied around own investigations because some people who, in effect, are funded by Government, don't want him trespassing on their ground. The ombudsman must have the freedom to go into difficult places, difficult areas, which may embarrass Government, may embarrass bodies funded by Government, but he must have the freedom to do that. Now, whether that is captured correctly by the current wording—as I say, we're very happy to consider alternatives, but I think that's why it's important to say that's why it's left to his discretion in terms of how he consults and the way he consults. It's to ensure that there isn't undue pressure put on the ombudsman's office by those who'd have something to lose if he were to undertake an investigation that is needed to be undertaken. And we go back to the earlier point of this legislation, which of course is around citizens' rights, it's about strengthening the voice of the most vulnerable in our communities, and about really giving a voice to people who struggle, sometimes, to get their concerns heard by public bodies in Wales. 

So, you don't rule out that there might be benefits, though, to at least looking at the issue of notification or consultation in some way, even if that didn't hamper the ability of the ombudsman to proceed with what he'd decided was necessary.

No, correct. And, in principle, the Finance Committee would be open to look at that. The reason I say that quite clearly is that the draft Bill didn't have any of this on the face of the Bill at all; the draft Bill completely left own initiative to the ombudsman's discretion. We thought that that was too far in one direction, you're quite right, so we did drag it back a little, and put on the face of the Bill the criteria for that. If that means clarity, then that's something we can consider as a committee, and we would want to consider that as a committee, but I just wanted to underline why it's there so that we don't set hares running about how the ombudsman is going to somehow be a different beast to the rest of these bodies. He is a different beast. He is very much independent of those bodies, and should not be hidebound by what the Welsh Government has to say, or what the other regulatory bodies have to say. He's there on behalf of the individual citizen, not on behalf of Government, and I think that's the difference here.

Thank you very much for those comments. Were there any other matters? Can I ask you: you will have heard the Cabinet Secretary's in the unusual position of not being in charge of the legislation but of commenting on it—were there any issues that were raised by the Cabinet Secretary that you wanted to raise? If you don't want to raise them orally now but you want to think about them or scrutinise the transcript, you could write to us on that. But is there anything that immediately comes to mind that you would want to raise now?

I think just in general—I'll by all means follow up if we look at the transcript and feel—. We didn't quite hear all of it, I must say; it was quite quiet. So, we might want to follow up on some of that. But in general, towards the end the Cabinet Secretary mentioned a couple of amendments that he was seeking to explore with me as the Member in charge, and with the committee, and, of course, we're very happy to try and do that, and we'd want to try and do the best we can in working with the Cabinet Secretary.

You're not a policy committee, but you also heard him saying about the general policy intent, and his view on that. Of course, we want to get Welsh Government backing for this Bill as it will not be possible for us to take it forward without a financial resolution or without the necessary discussions that only Government can really do—with other Governments, for example, and with other parts of the infrastructure, if you like, around the other commissioners, the other people in Wales. So, I'm very open for those discussions. If there's anything specific, then, of course, we'll follow up.

The other thing I'd just bring to this committee's attention, if I can get the thing correct, is that section 25—it is section 25, isn't it? Section 25 of the Bill, non-action following receipt of a report—it has been brought to our attention that this section, which replicates the 2005 Act, has never been brought into force and is in fact probably superfluous. I think the other committee's received a report from the school of law at the University of Liverpool around this—so it's just to flag that up, because this committee might have an interest in that—to say that, subject to the evidence, that is one area where we might be minded to withdraw that section, because it in effect has no power. It has no relevance to what the current infrastructure of the ombudsman is. But you can see from the evidence why that has come about.

Okay. Well, thank you for the evidence, and the clarity of evidence that you've given, and for the work of your officials. A transcript will be with you in due course. If there are any further comments, of course we look forward to receiving those. Thank you very much.

In accordance with Standing Order 17.42, I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree?

Agreed.

Okay, then we'll move into private session.