Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

11/06/2018

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

David Melding AC
Llyr Gruffydd AC Yn dirprwyo ar ran Dai Lloyd
Substitute for Dai Lloyd
Mandy Jones AC
Mick Antoniw AC Cadeirydd y Pwyllgor
Committee Chair

Y rhai eraill a oedd yn bresennol

Others in Attendance

Julie James AC Arweinydd y Tŷ a'r Prif Chwip
The Leader of the House and Chief Whip
Owen Davies Llywodraeth Cymru
Welsh Government
Will Whiteley Llywodraeth Cymru
Welsh Government

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Alys Thomas Ymchwilydd
Researcher
Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Ruth Hatton Dirprwy Glerc
Deputy Clerk
Sarah Sargent Ail Glerc
Second Clerk

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Mae hon yn fersiwn ddrafft o’r cofnod. Cyhoeddir fersiwn derfynol ymhen pum diwrnod gwaith.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. This is a draft version of the record. The final version will be published within five working days.

Dechreuodd y cyfarfod am 14:30

The meeting began at 14:30

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introduction, apologies, substitutions and declarations of interest

Welcome to the Constitutional and Legislative Affairs Committee meeting, Monday, 11 June 2018. If I just start very quickly with the usual housekeeping items, there's no fire alarm intended, mobile devices should be switched to silent mode and the usual housekeeping arrangements apply with regard to translation and the operation of the equipment. In terms of apologies today, Llyr Gruffydd is the substitute for Dai Lloyd; welcome, Llyr. Are there any declarations of interest? There are none.

2. Sesiwn dystiolaeth: Y Pwerau ym Mil yr Undeb Ewropeaidd (Ymadael) i wneud is-ddeddfwriaeth - materion gweithredol
2. Evidence session: The Powers in the European Union (Withdrawal) Bill to make subordinate legislation - operational matters

Then I'll go straight on to item 2, which is the powers in the European Union (Withdrawal) Bill to make subordinate legislation. I welcome the leader of the house, Julie James, to the meeting, with your officials. Would you like to introduce your officials?

I'm Owen Davies from constitutional and inter-governmental relations.

Will Whiteley from the legislative programme and governance unit.

Well, welcome to the committee and thank you for attending this afternoon. If I move straight into the questions—I know time is tight—one of the areas we've obviously been looking at is the role of this committee and the processes in respect of statutory instruments once the legislation has finally been concluded in Westminster. We did ask you and we wrote to you some time back and you provided us with information with regard to the potential number of statutory instruments we might expect to receive and the nature of some of those. I wonder if perhaps you could just give us an update on the current situation as far as the Government sees it.

Yes, certainly, Chair. We think that there are probably around 400 EU-derived domestic legislative instruments that contain deficiencies that need correcting. We haven't identified any further yet, but we're not ruling out that that's not the full suite. Obviously, it's an ongoing process.

It's a slight reduction. Originally, we were looking at around about 600, so it is down, but nevertheless there's still a considerable amount of work involved. In terms of secondary legislation, of course, there are a number of options as to how that can be made under the withdrawal Bill—either by Ministers in Westminster jointly or by Welsh Government Ministers on their own and so on. I wonder if you've given any thought to the process that's going to be involved, how it's actually going to operate, what the relations are with the UK Government as to how the statutory instruments are going to come before us in time.

Chair, you won't be at all surprised to find there's an ongoing discussion between our officials and the UK Government officials, and, obviously, this is a very fluid piece of legislation. At the moment, we know that they're about to reconsider a very large part of it tomorrow, for example. So, it's very difficult to say exactly how many SIs will be in play, but we aim to have as smooth a process as possible, and I want to reassure the committee that we're very appreciative of the work that the committee does. We want to make sure that everybody is as fully in the picture about where we are, how many SIs there might be in any particular category and what the timescales are as it's humanly possible to make it. But you'll appreciate it's a very fluid position, and we're not fully in the picture. I don't say that as any criticism, as I suspect it's because the officials themselves are not fully in the picture.

It is sort of a moving feast at the moment. I suppose one of the areas that we are obviously concerned with with statutory instruments coming through is ensuring that if, for example, they're made by UK Ministers, either to correct deficiencies or whatever, there is nevertheless a proper process of scrutiny of those from the Welsh side. Has Government given any further thought to how that might operate, or is it still too early to say, really?

So, as I said, what we're looking to do is establish a protocol where we get as early a warning as possible of anything that's coming through, whether that's going to be a UK one or one that they think is for us or some kind of what-do-you-call-it, a compromise consolidated one—I can never remember the language—between us, and that we have an early-warning system in place, that we understand the criteria by which they are grouping them, for example, how many instruments will be needed to correct how many deficiencies, and that we share that with the committee as early as humanly possible in the cycle, once we're aware ourselves. The prime aim here is to make this as simple a process—obviously, the content won't be simple—as simple a process and procedure as we can make it, and as streamlined as we can make it, and we want to make sure that, if at all possible, we can timetable it in such a way that we have a reasonable stream of work coming through for the committee, and for our officials and everybody else's—if at all possible. I know that the UK Government shares that concern. Nobody wants to see an enormous mound of stuff and then nothing. So it's just a question of whether we can work out a process that allows us to identify the priority and then get a streamline in place. But we're all in the same place in terms of what we're actually trying to achieve with it, I think.

14:35

I suppose one of the areas, obviously, as part of the scrutiny process that we're concerned with is that where legislation comes through that it comes before whatever the sift mechanism is at as early a date as possible. It's already been flagged up to you that one of the areas of concern is obviously where things have been done in a composite way, or by just one element of Government, to ensure that everything does come through the sift mechanism. I presume this is something the Government has given thought to as well.

As far as we're concerned, it goes through the same mechanism. If a negative procedure is recommended, then it goes through the sift in the same way. So, if it's a composite one, it comes through in exactly the same way. We need, as I said, to work out what the work programme will be, and what the timing will be, but I don't see any reason why it should have a different process. It's coming from the same source, so as far as we're concerned it will require the same scrutiny process and the same circumstances, and we will facilitate it in the same way.

Thank you for that. Those are just my general introductory questions. We'll go into some more specific questions—over to Llyr Gruffydd.

I've seen the correspondence between yourself and the Chair in the letter you wrote on 7 March, and in the letter you say that some deficient instruments may well be dealt with by or under new primary legislation. I'm just wondering if you can give us a bit of clarification and maybe illustrate what that might look at, if you have certain examples.

I think I'm right in saying it's 26 pieces of primary legislation that look like being necessary. So in addressing component parts of primary legislation they'll also address deficiencies in the way that the European Union has been translated into them. But we're not absolutely certain yet, and it's part of the ongoing discussion between us and the UK Government about how that will be dealt with.

So what kind of—for example? Could you give us an example from amongst those?

It's those 26 areas that it's anticipated as part of the inter-governmental agreement would be subject to UK-wide frameworks, so, the expectation being that if a UK Act is to essentially establish a UK framework within a certain area, then if that was done before the EU restrictions were removed, then you wouldn't necessarily need to do the correcting SIs in the EU-derived legislation.

Can I just ask for clarification? So, we're talking about 26 items of primary legislation that will be coming before this committee.

Twenty-six areas have been identified as requiring legislative underpinning, so there are those 26 areas that will be subject to a UK framework.

And of course historically you haven't translated certain statutory instruments where they're made together with the UK Ministers, because the UK Parliament doesn't scrutinise other than through the medium of English—or SIs in the language of English, anyway. So, I'm just wondering: how do you envisage that regulations made by UK Ministers that amend bilingual legislation can be scrutinised by Parliament, really?

We follow the current practice. So, where the correction is for both, then the correction is made in both, but in a monolingual instrument, and if it's in English only already, then it stays in English only. We don't see this as the opportunity to correct what we all accept is a deficiency.

Because there have been examples of scrutiny of a Welsh version leading to amendments to the Welsh translation. Is that not something that may be—if that's the current situation—

We'll have to keep a weather eye on that, Llyr. But the idea is that we follow the current protocols for that—and we'll continue to follow them—and if we encounter an issue, then we'll have to raise it at the time. But at the moment, we're assuming that if it's a bilingual statutory instrument, then it will be in a monolingual instrument, but the Welsh will be corrected, and if it's an English-only one it will stay English only. This isn't our opportunity to get the bilingual stuff into the frame. We think it's already so complicated that that just complicates it further. But if we encounter a difficulty then we'll raise it, absolutely.

14:40

Could I just add to that? So, if it's a correcting SI made by Welsh Ministers correcting bilingual legislation, then we would do that in the usual way—

—but if it's made compositely, then corrections would be made to both the English and Welsh, but in a single SI.

We know that legislation is starting this week going through the UK Parliament and that. Have you any idea when we're going to have the first statutory instruments laid here?

The short answer to that is 'no', because it largely depends on what parliamentary process now happens. We've all been reading the news about where we are. There are a large number of amendments that were made that we are expecting the Government to try and reverse. I don't want to be flip, Chair, but 'how long is a piece of string' kind of comes to mind. We're assuming, worst case scenario, that we fall out with no deal, because we have to assume that, we have to be ready for that, and therefore we'll have them as soon as we're out. So, as early as the autumn, but we'll keep a weather eye on it and we'll keep the committee informed as soon as we have any better information than that. I don't know if anybody's got any startling new information that I'm not aware of. No. 

No? Okay, then. You said earlier that you'd like it all to come nice and streamlined rather than in peaks and troughs. Have you got any plans to ensure that you can streamline it? What if it does start coming through in peaks and troughs? 

As I said, we're in a lot of discussion with the UK Government. It's in their interests not to have peaks and troughs as well, and what we're hoping to do is have a streamlined process where we agree which area we're looking at and how to put that in place. It's a hope and an expectation based on our current communications with them and our interaction. I have no way of absolutely ensuring that, but clearly it's in everybody's interest to ensure that. So, I don't see any reason to be alarmed that it won't be possible to work out a protocol of that sort because, obviously, all the committees will have that problem. The UK committees will have that problem, as well as ours. If there's a sudden influx of, I don't know, 50 of them and then nothing at all for the next six weeks, that's clearly a problem for everybody in terms of the timescale. 

Just before you go on to your next one, I understand that UK Government Ministers have indicated that they would expect the first statutory instruments to possibly arrive before July, potentially within a matter of weeks. Do you think that's outdated now, or have you not had any indication as to—? 

Well, it's possible, but largely—. I mean, we'll know more by the end of the week, won't we, when we know what's happening. It depends if the Government is successful in getting everything to be as smooth as possible—great—and if it isn't, then obviously things will elongate. So, we're just preparing for the worst case scenarios but, actually, who knows, really? 

If I could just add to that, obviously, we need the EU withdrawal Act in place before any statutory instruments can be laid underneath it, and here, the same as in the UK Parliament, for the SIs that are proposed to be subject to the negative procedure, there will need to be a sifting mechanism established within both legislatures before they could be taken through as well. So, there are a number of things that need to be put in place first. 

Just very briefly, you've mentioned a few times now in your discussions with the UK Government, so where are you on that journey, because clearly there needs to be—

They're officials' discussions; they're not at ministerial level. 

Yes, but are we confident that if something comes forward in a few weeks' time that the agreements that you need to underpin that sort of process and everything are in place? 

Yes. Officials are in continuous discussion with UK Government departments, and we are in discussions with Welsh Government departments to try and identify those statutory instruments that can come forward sooner. And, obviously, there will be others that are subject to further discussions with the UK Government, and some are contingent on whatever negotiation is achieved between the UK Government and the EU. 

And if I could say, Chair, it was remiss of me not to say that, obviously, we have control over some parts of it, so we will be looking to make sure that the committee has a stream of work using some parts in our control against what the UK is producing to get a workflow going. So, there are bits of it we control a lot more than other bits, clearly. 

Brilliant. Steve Baker MP, the Parliamentary Under-Secretary of State at the Department for Exiting the European Union, suggested a deal whereby the UK Government would commit to laying SIs by a certain day of the week, if that would assist the parliamentary sifting committee. What are the Welsh Government's views on a similar approach applying here? 

Yes, if the UK Government does manage to do such a thing, we have no issue with duplicating it. It will be in our interest to have as largely similar a process as possible, so that we all understand where we are. That will be particularly important where this committee and the UK committee are simultaneously looking at something. It's obviously going to be helpful. The committees work together and we have a similar and understood process. So, we're looking, as I said at the outset of this evidence session, to have as streamlined and transparent a process as we can manage in the circumstances. And I see no reason why the UK Government wouldn't want to go along with that because it's obviously in their interest as well. So, this isn't something where we're in conflict in any way. We want a process that works and that is as manageable as humanly possible, given the volume of work which is unprecedented for both Parliaments really. 

14:45

If I might just intervene on one point there, we know that the UK Government have been putting a lot of resources in and recruiting a lot of people in terms of anticipation of this. How prepared is Welsh Government in terms of the actual resource demands that there will be in order to deal with this, likewise?

As Will was just saying, we're in constant communication with our own Government departments as well. They're aware of what the requirements are. They've put contingencies in place to make sure that they can cope with that, and some movement of staff and so on to support that process. But we're very keen that they should be on top of it and that we should have this workflow sorted out. So, that's very much at the heart—. Conversations are going well, I'm told, and I've got no concerns at the moment. 

As I understand it, there's no consequential funding to enable us to comply, although it seems the opposite position applies in respect of the UK Government side. 

Indeed. We're doing it out of our present resources, and, as I said, some—to use a good Welsh word—shiggling of resources is necessary in order to make sure that the work is done. Officials are having those conversations, and I'm not being told that there's any concern that it won't be done. 

Will the Welsh Government provide advanced warning to the Assembly, as far as possible, of the likely number, complexity and length of statutory instruments to be laid by the Welsh Ministers?

Yes, absolutely. The First Minister and the Cabinet Secretary for Finance have already given assurances, and I'm happy to add to them that we're very keen to give as early a warning as possible to both the Assembly and the committees because we want the work to go smoothly and to be efficient. I'm not saying that the second we get it off the UK Government we'll be on the phone, but we want to have as smooth and open a procedure as is humanly possible. And I'm sure that, as the work becomes clearer, we can get a protocol going that's more transparent to everyone. 

So, regardless of what amount of work we've got in Plenary and things like that, you'll still be able to shuffle that in some way. 

Well, it's a conversation we need to have with the Commission about how to deal with it, but, yes, it's an ongoing and constructive discussion with the Commission. It's obviously in our interest that the Assembly is able to give the right amount of scrutiny and time to this important piece of work. So, it will be something for Business Comminute to discuss, for myself and the Llywydd. It's an ongoing discussion—the First Minister and Llywydd—in order to ensure that we get this right and we have the right amount of time. 

Again, I see no reason why the UK Government wouldn't want that either. It's in everybody's interest to get it to be as smooth as possible. I may be, in three months' time, saying I was hopelessly optimistic, but, at the moment, I see no reason why there should be any real difficulty with it. 

I think there is nothing wrong with being hopelessly optimistic in the current climate. [Laughter.] David Melding. 

Thanks, Chair. You'll know that the Assembly, it is proposed, will have 14 days to conduct the sift process. Now, in Parliament, they'll have 14 sitting days to do that, so that's quite a big difference; it's about a 20 per cent extension of the time we will have. So, we wrote to the Secretary of State just to try and clarify why this had come about, and he's written back saying that, after consultation with the Welsh Government, it was what the Welsh Government wanted. And I just wonder if you have any reasons for the shorter period, or was this just one of those oversights in the mad rush of work that occurs?

I'm not sure I'd entirely—. It's a matter for the Secretary of State what evidence he gives to the committee. I'm not sure I'd have quite characterised it in that way. What we've sought to do is to get an amount of time that is doable in the timescale and fits into our procedures, and it's a difficulty because, in procedures, a sitting day definition isn't the same and there are differences of approach, and so on. But we've tried to make sure that we have, effectively, two weeks to get through it, with a view to the committee having the chance to have a good look at it in all the circumstances. I'm not sure that if we'd started with a blank piece of paper this would be where we are, but it's doable, it seems to us.

14:50

Okay. Usually, the Welsh Government says it's up to the Assembly to determine its procedures, but, in fairness to you, the response you've just given sounds as if some thought went into this. So, I wonder why you've just gone ahead on this procedural matter without perhaps discussing it with the Llywydd or, indeed, us.

Okay. So, that's the other way around from our point of view. The UK Government approached us and we've responded as part of a suite of things we were talking about. It's certainly not our intention to cut out either the Assembly itself or the committee, and we certainly would not have set about doing that. I think you need to ask the Secretary of State how we've ended up here. So, what we've done is gone along with the UK Government's approach to this and sought to include everybody as appropriate. So, I would just like to reassure the committee that we entirely don't want any impression of that sort to be given, and obviously it's not a matter for us; we're just all trying to negotiate the best possible procedure here. We have a good relationship with the Commission and we've been working very hard to make sure that this all works as well as it possibly can.

The Secretary of State also told us that, after enactment, we could extend the statutory time period for sifting. Is that your understanding?

Well, no. I think you'd have to ask him why he thinks that. Maybe he knows something about the Act that we don't.

'If it's in the Bill, it's in the Bill' would be my view. So, you know, I can't speak for how he—. Maybe he knows something we don't know. 

Okay. So, let's assume that the proposal is going to be what we're going to get. So, we'll have 14 days in which to make a decision on the sifting committee. So, how will we be notified, and will other relevant committees also be notified, because time is going to be of the essence if we've only got 14 days?

Absolutely. So, we have a very good working protocol with this committee about how we notify. We're assuming we'll do the same thing. So, as soon as we have any indication, we'll be notifying the committee and the Commission. We have a good working relationship with the committee; it's worked in the past. I'm not aware there have been any issues. We'd look to have a very similar arrangement. I can only emphasise what I'm saying all the time: it is in everybody's interest to make sure that everybody is as fully informed as possible and that the clock runs as efficiently as possible for all of us. It's certainly not in our interest to make sure that that doesn't happen, so we would be looking to have those good working relationships for this part of your work as well as for the other SIs that are always dealt with. 

I've got a fairly detailed question now, which you might want to pass to officials or you may want to write to the committee. In terms of tracking what could be a large number of SIs, it is important—how will the proposed negative SIs be numbered, and how do you deal with a sifting committee's decision, which could have the effect then of removing an SI and then having to lay it again because of the decision of the sifting committee?

In truth, I have no idea how they'll be numbered. I don't know whether the official does. 

Well, of course, they'll be laid in draft for the purposes of the sifting committee, and I think the working assumption at the minute is that once the sifting committee makes its recommendation, there would then be an internal process within Welsh Government to consider that recommendation and then lay the SI in draft, or, subject to the negative, taking into account the recommendation of the sifting committee. So, there would be, certainly, if the sifting committee recommended it be subject to the affirmative procedure, some form of redraft, et cetera, for it to then be laid in draft subject to the—.

I'd have to take that away, but—

We'll clearly have to have some way of tracking them, so we'll have to come up with a way of doing that. 

And, you know, you may want to discuss this with our officials as well. I understand how you don't have quite that detail this afternoon. 

I haven't put my head to exactly what numbering system, I'm afraid. 

I'll just ask one question on the sifting criteria, which was in your response to recommendation 3 of our report on scrutinising regulations. You indicated that—let me just find the phrase—

'sifting criteria will need to be consistent with the final framework for the sifting mechanism'.

I suppose in order to assist us in how we look at the sifting process, precisely what do you mean by that phrase?

Well, we're assuming that it will be set out. So, if we're going to add something to it, we want to be very clear why we would be doing that, whether it's possible, given the final wording of the Act, and whether we're not crossing across with a policy committee. So, were not saying 'not'; we're just—

14:55

I suppose it's one of those areas where the final framework is still indeterminate, isn't it?

Yes, so, depending on what the final Act actually says, then we may need to think about it, but we are reluctant to sign up to saying something before we've actually seen—. We're in a very invidious position of a constantly moving feast, and we're trying to keep track with it. So, once we see what the final form looks like, then it is, I'm sure, possible to come up with an agreed formula and to see whether there is indeed something we want to add or not add. But, until we see what it is, it's difficult to do that.

If you look at Schedule 4, which gives the Welsh Government powers to charge new fees, or to change existing fees, I wonder how much you expect to make of that power.

To be honest, I don't think we've given much, if any, consideration to that at the moment. I think we're grappling with the procedural issues. I honestly don't know. I think it's far too early to say whether we'll use the power at all, never mind to do what.

Okay. Obviously, if you change fees, that adds great weight usually to how we would expect those to be scrutinised. It's a very key decision. 

Absolutely. Yes, I couldn't agree with you more, but I think it's far too early for us to have considered that. As I say, we are in this constantly moving feast, but I couldn't agree with you more, David. In principle, if we're going to start charging fees, then clearly you'd expect a level of scrutiny for that.

And then, what kind of information will you be providing in explanatory memorandums to assist the Assembly's sifting committee in making their determination between negative and affirmative?

So, we're looking to make sure that an explanatory memorandum covers off all of the issues that the parliamentary ones do and that we give the committee as much information as we think we can in the circumstances. Again, I can't reiterate often enough that what we want is for everybody to be working off the same sheet, understanding where we're coming from and what we are trying to achieve. So, it's in our interests to make sure that the committee has the best information possible to do that. 

And then, obviously, we have our procedures and we're concerned about how robust they will be, and, obviously, that's why we're having this discussion. But, you know, some regulations are going to be of interest to groups out there, in the public. Have you thought about how the public may get a chance to comment on draft regulations or certain ones that are likely to be very significant?

I would have thought—the officials may want to say something more on this—most of those will be policy issues. With the best will in the world, there are those of us who love this sort of stuff, but the vast majority of people don't. So, I can't imagine we're going to be consulting widely on procedural or technical issues. But, I mean, clearly, where there are policy changes or issues or moves, then there may well be consultation, and that's part of the conversation we will have to have around how this committee does the sift and how it interacts with the policy committee where there are policy changes and so on. This is, again, very much an ongoing conversation about how this will work. So, it may be that we consult on all of it, including some of the technical bits, because there is a policy implication, for example, and it makes no sense to strip it out, or it may not. Unless you know of an example that you want to tell me differently, I can't imagine that we'll be widely, publicly consulting on technical or procedural issues.

Okay, it's not always terribly easy to reduce matters just to technical ones, and a surprising amount of devil can be in the detail, especially when you're looking through sensitive areas like for environmental policy, for instance.

Obviously, the UK Ministers have certain powers to make regulations in devolved areas. Now, they must consult you when they do that, under the terms of the inter-governmental agreement. Have you thought of any way in which the Assembly can be then informed of these pending regulations and how we may become aware of them and informed and even influence the process?

Yes. So, again, I would look to have a working protocol between us and the Assembly Commission to keep everybody in the loop about where we were with particular bits of secondary legislation, very much as we do now, in fact. When we become aware that something is going into an Act that might affect Wales, we alert the Commission to that, as appropriate, because we want to take a view on it. So, I think we have some established processes for that. We will have to adapt them. But, in principle, we would want the Assembly to have as much information as possible. In practice, I don't think that's going to happen all that often, in fact, because apart from the—I'm trying not to use the word 'freezer', but, apart from the 26 areas, we aren't expecting that to happen with any frequency at all. So, it would only happen if there were some extraordinary circumstance for it, in which case we would be aware of that. So, I don't want to sound complacent about it, but we do have good processes in place already, and this is only volume change, in some regard; it's not policy change for that.

15:00

Sorry, just picking up on your previous answer, are you currently having discussions with the commissioner around—? Yes, you are.

Yes, the officials are in constant communication—I'm personally not, other than at very high level—but the officials are in constant communication.

Just to add to that, actually, our understanding is Welsh Ministers would have to give consent to those regulations that UK Ministers were making in devolved areas, and I think the First Minister and Cabinet Secretary for Finance have already committed to a notification process to the Assembly when that consent is given. So, that's the basis on which we're currently working.

That's where I'm going next, so I'm not sure whether we're going to get anything much different. But, in relation to clause 15 regulations then, the UK Government isn't required to notify the Assembly, or yourselves actually as Welsh Ministers, when restrictions on the National Assembly's competence are lifted by the UK Government. So, do you commit to informing the Assembly about the detail of any clause 15 regulations, as soon as they're made available to Welsh Ministers?

And following on from your previous comments about—I think you said that it's in your interests that scrutiny is given enough time, and also I think you said that everyone needs to be fully informed. So, in that vein, do you commit to publishing an explanatory memorandum setting out your views on any clause 15 regulations?

Yes, absolutely. As I said, we want to make sure that everybody has as much information as possible, and it's important to us that the Government's position is understood when committees are looking at matters, because that assists.

And the quarterly reports that you'll be receiving from UK Ministers on the powers that impose restrictions—those, again, you will be happy to lay before the Assembly, as soon as you receive them.

Yes—well, 'as soon as we receive them', I'm not sure, but as soon as is humanly possible. 

You know, it may be 24 hours later or something, but I'm sure—. If I could just say in answer to this, Llyr, because I do think it is important to just keep emphasising it, what we will have to do is work out—once we have certainty about where we're going with all of this stuff, what we'll have to do is work out the procedures and processes that are then agreed. So, at this point, I'm happy to make the commitments that we'll do it, but we need to work out the technical detail of that once we've got the Act and all of its bits on the table in front of us so that we can see in real time, if you like, what that might entail. But I'm happy to commit the Government to doing what's necessary to make that happen.

Okay. Well, the point David asked earlier about the public consultation as well, would you commit to that as well or—?

It's the same qualified answer, isn't it? Yes, of course, if we see there's any need at all for public consultation and there'll be an interest from the public in something, then, yes—. We'll have to take a view as to how much interest there really is from the public. It may be that, instead of public consultation, we consult a community of interest, for example.

Yes. Coming on to clause 22, I know you've just said about all the other clauses—what we've gone through so far—that you will keep, you know, the Welsh Government aware of everything—hopefully, you'll still do that under clause 22 as well, even though there's no reference to that set of regulations in the inter-governmental agreement on the withdrawal Bill.

It's true that there aren't any provisions there, but we'd expect to be notified, and we therefore expect to keep the Commission in the loop. Again, I emphasise that I can't see why it would be in the UK Government's interests not to do that, and so why would they not? Clearly, it will cause friction if they don't, and—again, I don't see why they would do that. It's not a bone of contention between us or anybody else, it's just a process. So, my own view is that we will develop a protocol and it will work happily, if they use them—

Have the UK and Wales, who are going to work like this, which is, hopefully, great—? Fingers crossed, that everybody's going to keep each other informed and that. Can you give us any idea—? Are you in touch with Scotland about this as well, because Scotland didn't agree to this like Wales did? Have you any thoughts on that?

15:05

No, it's a matter for the Scots, isn't it, how they sort themselves out now that they're in the position they're in. But it's obviously a matter—. And it's entirely a matter for the Scots Government and then it goes through it with the UK. But the protocols that we develop will be applicable, and it's in everybody's interests for everybody to be aware of what's going on. The Scots have a very difficult circumstance, which I'm pleased not to be in, I have to say. 

If I could just take on a few questions in respect of the devolution guidance notes, the new devolution guidance note for us is that the statutory instrument consent memorandum process will not apply to statutory instruments made under the various Brexit Bills. I'm just wondering what the background to this is and what kind of things such statutory instruments could do. 

Well, the devolution guidance note is a matter for—. You should be asking the Secretary of State for Wales how we managed to get to where we are, I think. It's not a matter for us. We needed to reflect the changes in the Wales Act 2017. I'm sure the committee knows what the background of its coming to be—. We've expressed our concerns and our requirements. I don't think it's ended up quite where we'd like it to be, but it's not ours.  

He does say—he did say to us in correspondence, of course, that he's consulted with it, but can I take it from that that consultation hasn't quite been as thorough as you would have hoped, or—? 

We've expressed our views. I'm not sure that they're entirely reflected in the way we would like, but a consultation doesn't necessarily mean that your views are taken wholesale and put into a document. It isn't our document, it's—. So, I think you need to ask the Secretary of State how it's ended up where it is. 

The Secretary of State also indicated that the guidance notes are not going to be updated by the UK Government to reflect the inter-governmental agreement, but they will be covered in separate internal guidance. I wonder if you can provide us with any more background information about how that will work—or are we just waiting to see?

Well, I think—. It's the same answer as before, Chair. We've made our view of this known. Clearly, some kind of protocol will have to be developed. There's a usual way of doing that but—if they want to do it a different way that's fine, but some kind of protocol will be developed. Again, it's a matter for the—. We were consulted, we have made our views known; they aren't entirely reflected in the document. I'm sure we'll work out a way of working, whether it's through that or some other process. 

Okay. Can I just ask one final thing? With regard to the withdrawal Bill, obviously there are amendments being considered; there may be a certain amount of ping-pong with the House of Lords and Westminster. Well, of course, we've given our legislative consent, so far, to the Bill, as we understand it. But, of course, there could be issues or amendments that are made to the Bill that would normally require legislative consent. Have you—? Do we have any way of understanding how precisely that will—? We're in new territory in some of this. 

We are in new territory. I think we're all living inside the Chinese proverb, 'May you live in interesting times'. It's unprecedented. We'll have to take a view. It's very difficult to see how we could manage such a process. We've had a brief conversation about how we might manage such a process. It's a waiting game, isn't it? So, it's an unusual circumstance, to say the least. We're confident that what we've done, so far, is in the best interests of Wales. We will have to wait and see what happens in the next session of Parliament. The Government's stated intention is to go back to where they were. As I said right at the beginning of this evidence session, Chair, we'll all have to wait and see what happens this week, both on the timescale and to see whether anything changes radically enough for us to need to do something constitutional on this end. I think that's right, isn't it? Yes.

Well, we've actually dealt with all the questions we've had in super fast and efficient time. So, I don't want to prolong it unnecessarily. Part of the purpose of today, as you know, is to begin to explore some of the issues around the sifting mechanisms and processes and to get some of that on record as we begin to start looking in detail. I think we're all feeling our way as the Bill begins to come to its conclusions.

A transcript of the evidence will, of course, be made available. Thank you for your efficient and prompt answers, and to your officials. Thank you very much. 

Thank you, Chair. Can I just add that obviously we're very interested that if the committee does have something very specific it would like us to consider that we consider that? I can't reiterate enough that what we want is for this process to be as smooth as possible and with as open and transparent an understanding by all sides as possible in the circumstances. Thank you very much. 

3. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3
3. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

We now move on to item 3, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We have the papers before us: 3.1, which is the M4 Motorway (Eastbound and Westbound Exit Slip Roads at Junction 33 (Capel Llanilltern) Cardiff) (40 MPH Speed Limit) Regulations 2018—I managed to say that in one breath. Are there any issues on that? Okay, then we move on to the next item, 3.2, which is the Animal Gatherings (Fees) (Wales) Order 2018. No. Okay.

15:10
4. Offerynnau sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.2 neu 21.3
4. Instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3

Then we move on to item 4 on the agenda, instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3, and we start with the Sea Fishing (Miscellaneous Amendments) Regulations 2018. You have before you a report, regulations and explanatory memorandum, so I think it's over to the lawyers on that one.

Diolch. Yes, there have been a few reporting points suggested in the draft report. The first one is a technical point—these are regulations that are laid before Assembly and the UK Parliament and, as we see on a regular basis, these are made in English only. And there are three merits points. The first is around EU rules that prohibit certain sea fishing activities, such as importing fish caught by a fishing vessel flying the flag of a third country that has not co-operated with the EU in respect of sea fishing. We've known since 2014 that there are three countries on this non co-operating list and we just raise the question, 'Why has it taken until May 2018 to enforce these regulations in the UK, including in Wales?' There may well be very good reasons for the delay, but those reasons aren't set out in the explanatory memorandum.

The second merits point relates to the various zones and the areas of the seas around the UK that are defined in these regulations. It is possible to work out on a map all these different areas and zones, but it takes a long time and it requires you to trawl through a lot of legislation and the reporting point suggests that maybe a simple map included with an explanatory memorandum would be a simple, at-a-glance view of these different sea zones.

And the third point is that these regulations also make some changes to clarify some other sea fishing legislation, and these changes are being made in response to some technical reporting points raised by the committee back in January 2015. 

And there's also a point to note on exiting the EU. The draft report simply notes that this area of law is likely to be subject to clause 15 regulations under the withdrawal Bill, which would mean that this area of law would be frozen while common framework arrangements are put in place. That's because fisheries management is one of those areas listed in the inter-governmental agreement as areas likely to require common frameworks.

I think it's an excellent merits report. The three issues are significant—the two on time. But I find it inexplicable that they've not provided a map. I mean, how on earth do they think people—? What were they going to do or are going to do with this SI? There's no excuse for it—we've got a Government committed to transparency and ensuring that we have more accessible law, so I think perhaps we should write, just to say, 'You'll be aware that we've made this very firm report', but—

It beggars belief that they thought that was acceptable, I have to say.

Okay, we'll make those points and we'll report back in due course. We move on to the next item, which is the Water Supply (Water Quality) Regulations 2018. Sorry, have I missed a point? No. These are regulations that revoke and replace the Water Supply (Water Quality) Regulations 2010. The regulations are primarily concerned with the quality of water supplied by water undertakers whose areas are wholly or mainly in Wales, and a number of our areas have been identified.

Again, one technical point and one merits point. The technical point—again, these are composite regulations that are made in English only. The merits point is around the late implementation of these EU rules around the quality of drinking water. The deadline to implement was 27 October 2017. So, the deadline has been missed by about seven months. The Welsh Government has responded to this merits point, saying that alignment with England was necessary, given that water undertakers have cross-border responsibilities and given that there were delays at UK Government level, at DEFRA, in making the English regulations, there has been a knock-on effect in Wales. And it seems that DEFRA accept that the Welsh delay is due to the English delay.

15:15

And a copy of that Government response is on the sheet of paper before you, so you have that there. Any comments? No. In which case we move on to the affirmative—. Sorry. I beg your pardon.

Just to say, again, that food is one of those areas covered in the inter-governmental agreement as likely to require common frameworks. Food includes drink, which includes water, so again it's an area likely to be frozen.

So, it will become one of those frozen areas. Okay.

We then move on to affirmative resolution instruments: the Environmental Protection (Microbeads) (Wales) Regulations 2018. Again you have before you a report, the regulations and the explanatory memorandum. The draft regulations prohibit the use of microbeads as an ingredient in the manufacture of rinse-off personal care products and the sale of any such products containing microbeads. A breach of the prohibition is an offence, and the regulations also introduce a civil sanctions regime to enable a regulator to impose a range of civil sanctions. The prohibition comes into force on 30 June 2018. I think the lawyers have identified a number of issues.

Yes, a couple of merits points, because microbeads have been in the news a lot lately. First, these regulations form part of a UK-wide ban on the use of microbeads in products such as face soaps, body washes and toothpastes. Secondly, these regulations had to be notified to the European Commission. The European Commission did not object to these regulations being made, but did warn that research is being carried out in this area by the European Chemicals Agency and, depending on the outcome of that research, these regulations may need to be amended again in future.

Can I just ask—? Are they also—? I know this is for facial and wash products and everything like that, but there are also microbeads in certain washing powders and that. Does this cover that as well?

I would have to check exactly which products—

And tumble dryer—. You know, because the advert is still on for the tumble dryer beads going in the tumble dryer.

Yes. This relates, I think, mainly to personal care products, so I'm not really—

Rinse-off products, yes. But we can check the matter for you.

Yes, please, because washing powders are just going to be as bad.

Finally, again, this is another area covered by the inter-governmental agreement that covers environmental quality. And again, it will be likely to be subject to a common framework.

5. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3 ond sydd â goblygiadau o ganlyniad i ymadawiad y DU â'r UE
5. 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

On to item 5, 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: the Animal Health (Miscellaneous Fees) (Wales) Regulations 2018. These regulations set out the fees payable to the Welsh Ministers, collected on their behalf by the Animal and Plant Health Agency, in the field of animal health, and replace the existing fees that are set out in the Animal Health (Miscellaneous Fees) (Wales) Regulations 2013. Again, I think some issues have been identified again.

Again, this area will be covered by the inter-governmental agreement, more than likely. Animal health and traceability is one of the subjects likely to be subject to common frameworks, so these regulations would also be captured and frozen while frameworks are put in place.

Okay. Any comments on that? If not, on to the Animal By-Products and Pet Passport (Fees) (Wales) Regulations 2018. These regulations set out the fees payable to Welsh Ministers in the field of animal health. Again, there are a number of issues identified by the lawyers.

Just the same issue again—

—that it's likely to be a policy area covered by the common frameworks.

6. Is-ddeddfwriaeth nad yw'n ddarostyngedig i weithdrefn
6. Subordinate legislation subject to no procedure

That enables us, then, to move on to subordinate legislation subject to no procedure: the Pigs (Records, Identification and Movement) (Wales) (Amendment) Order 2018. You have before you a copy of the Order, a letter from the Cabinet Secretary for Energy, Planning and Rural Affairs. So, I'd just invite you to note the Order and the accompanying letter from the Cabinet Secretary that's also been sent to the Climate Change, Environment and Rural Affairs Committee for information. Any comments?

Only to note that the enabling powers allow these kinds of changes to be made without an Assembly procedure.

7. Papurau i’w nodi
7. Papers to note

We then move on to the next item, papers to note. Correspondence relating to the EU withdrawal Bill—there's a letter from Mark Drakeford dated 24 May 2018. I think Members are just invited to note the letter concerning the ministerial forum on the future relationship between the UK and the EU and the arrangements that have been put in place with regard to the forum. Is that noted? Yes. 

Item 7.2: UK governance post-Brexit inter-governmental relations. We have there a letter from Mark Drakeford dated 4 June 2018 and a letter from myself to Mark Drakeford, which obviously preceded the letter of 4 June. Again, we're just asking you to note the letter in response about implementing recommendation 9 of our UK governance post Brexit report. A positive response there from the Cabinet Secretary. We can consider that in more detail, perhaps, at the next meeting.

Item 7.3: paper 22, a letter from the Leader of the House and Chief Whip. The letter sets out the approach of the Government to laying subordinate legislation that is not in the form of a statutory instrument and the provision of explanatory memoranda. It acknowledges and apologises for the administrative oversight on the part of the Government in relation to two pieces of subordinate legislation that should have been accompanied by explanatory memoranda and brought to our attention. Is that noted? Any comments on it? No. 

15:20
8. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod
8. Motion under Standing Order 17.42 to resolve to exclude the public from the meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

In which case, under item 8, I move the motion under Standing Order 17.42 to resolve to meet in private. Is that moved and agreed? Okay. We now move into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:21.

Motion agreed.

The public part of the meeting ended at 15:21.

Archwilio Cynulliad Cenedlaethol Cymru