Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

17/09/2018

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd AC
David Melding AC
Mick Antoniw AC Cadeirydd y Pwyllgor
Committee Chair

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Mike Lewis Dirprwy Glerc
Deputy Clerk
P Gareth Williams Clerc
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.

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

Good afternoon, and welcome to the Constitutional and Legislative Affairs Committee. I'll start of with the standard introduction, with the handling and housekeeping arrangements. 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 mode. The National Assembly for Wales operates through the medium of both the Welsh and English languages. Headphones are provided, through which instantaneous translation may be received. For any who are hard of hearing, these may also be used to amplify sound. Do not touch any of the buttons on the microphones as this can disable the system, and ensure that the red light is showing before speaking. Interpretation is available on channel 1 and verbatim on channel 2. I have one apology, which is from Mandy Jones, who's unwell, and she sends her apologies through. Are there any declarations of interest? If not, we then move on to item 2.

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

Item 2 is instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We have three instruments, which have clear reports. The first one is the Education (National Curriculum) (Assessment Arrangements for Reading and Numeracy) (Wales) (Amendment) Order 2018. The Education (National Curriculum) (Assessment Arrangements for Reading and Numeracy) (Wales) Order 2013 currently provides that a headteacher must send the results of reading and numeracy assessments to either the National Foundation for Educational Research, or the Welsh Ministers. The foundation no longer collects the reading and numeracy assessments, therefore the assessment results must in future be sent only to the Welsh Ministers. So, the instrument makes provision for that. Are there any comments or observations? If not, that can be noted and laid.

I move on to item 2.2, which is the Education Workforce Council (Membership and Appointment) (Wales) (Amendment) Regulations 2018. Part 2 of the Education (Wales) Act 2014 confers functions on the Education Workforce Council in relation to persons who are required to register with the council in accordance with section 9 of that Act. Schedule 1 to the 2014 Act provides that the council will have 14 members appointed by the Welsh Ministers. Seven of those members must be appointed from nominees of organisations set out in regulations. The list of nominating bodies is set out in schedule 2. The 2018 regulations amend Part 1 of Schedule 2 to the 2014 regulations, to reflect the merger of the National Union of Teachers Cymru and the Association of Teachers and Lecturers, so that the new National Education Union is added to the list of bodies. Any comments or observations on that?

In which case, we move on to item 2.3 now, which is the affirmative resolution instruments: the Landfill Disposals Tax (Wales) Act 2017 (Site Restoration Relief) (Amendment) Regulations 2018. And these amend section 29(1)(a) of the Landfill Disposals Tax (Wales) Act 2017, and the amendment made by these regulations enables the site restoration relief to be applied to the disposal of material consisting entirely of topsoil. The amendment will have effect in relation to taxable disposals made on or after the date the regulations come into force. Any comments or observations? If not, we move on to item 3.

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

Item 3 is instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3, and we start with the negative resolution instruments: the Food and Feed (Miscellaneous Amendments and Revocations) (Wales) Regulations 2018. There's a report, a set of regulations, and an explanatory memorandum. The regulations make amendments to a number of pieces of the secondary legislation relating to food and feed, drawing attention to new benchmark levels on Acrylamide in particular foods, amending the Fruit Juices and Fruit Nectars (Wales) Regulations 2013, and make various other amendments to food and feed-related statutory instruments. I'll perhaps refer to the lawyers first—is there an issue there?

Diolch. Yes, there was originally a small drafting error in a cross-reference in the regulations, which has already been corrected in a subsequent set of regulations.

14:35

Okay. Are there any other comments or observations? In which case, we'll move on to the next item, which is the Education (Student Loans) (Repayment) (Amendment) (No.3) Regulations 2018. These make provision for the repayment of student loans and postgraduate degree loans in England and Wales. These are composite regulations made by the Secretary of State and the Welsh Ministers to amend the 2009 regulations. I understand from lawyers that there's one point there.

Yes, the composite nature of this instrument, again—as we see on a regular basis, they're made in English only. 

Yes, I noticed that there is reference in the explanatory document to a consultation, and a summary of the consultation is pending. Although they then say there was nothing in the consultation that would have made them change their policy, it does seem strange that we don't have a summary of the consultation response when we're trying to put weight on the procedures that are going to be attached to these regulations.

In noting the documents and the regulations, we could actually pass that comment on, couldn't we? It's a very valid point. If there's nothing else on that, we then move on to the next item, which is the Education (Student Support) (Wales) (Amendment) Regulations 2018—again, a report, regulations and explanatory memorandum. These provide for financial support for students taking designated higher education courses that begin on or after 1 August 2018. They provide support for courses that began before 1 August 2018 and that subsequently converted from full time to part time or the other way around. I'll go first to the lawyers. Any comments on that?

These regulations amend the principal student support regulations, which came into force in March of this year, and those principal regulations contain a simple formula for working out deductions if, for example, a student became a prisoner during a course. These regulations amend the principal regulations by taking away the formula and by including some simple wording, so we asked for clarification, 'Why was this necessary?', and, 'Can you confirm there is no change in policy?' The Government response says the formula was unnecessary and they've confirmed there is no change in policy, and that's fine, but the explanatory memorandum says, for example, in relation to the regulation around prisoners, that the change in the regulations has meant the regulation is more permissive, but we sought confirmation that there's no change in policy in any way. So, the committee may want to follow up whether they are more permissive or whether there is no change in policy at all.

We can ask for clarification on that, can't we? So, we'll do that as well and we'll follow that, and no doubt that will come back. There's certainly an irregularity there. 

We now move on to 3.4, which is the Food and Rural Affairs (Miscellaneous Revocations) Regulations 2018—again, a report, regulations and explanatory memorandum. The regulations revoke a number of instruments relating to countryside access and dairy produce quotas in England and Wales. The explanatory memorandum states:

'Following the "Working Smarter" report in Wales, the Welsh Ministers agreed to provide a measured and appropriate regulatory framework for farmers in Wales and this included a red tape review of existing legislation. As part of this, the Welsh Ministers agreed to work with DEFRA to revoke, where appropriate, legislation with cross territorial application to Wales and England where that legislation has become redundant or otherwise obsolete.'

I'll just refer first of all to the lawyers, as there's a comment there.

Again, it's a composite instrument and it's made in English only. Usually, the explanatory memorandum will explain a little bit as to why it has to be English only, but the explanatory memorandum with this instrument didn't make any reference to it being in English only.

We need to note that point and ask why that was not dealt with. I think it is important that these points—though some of them may seem minor to one degree or another to the substance of the regulations, they are nevertheless points of irregularity that, if we don't draw attention to them, will become the norm. 

4. Offerynnau sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 27
4. Instruments that raise issues to be reported to the Assembly under Standing Order 27

On to item 4, then, instruments that raise issues to be reported to the Assembly under Standing Order 27. We now move on to the code of practice for the welfare of dogs. Again, there's a report, code of practice and an explanatory memorandum. The code is issued under section 14 of the Animal Welfare Act 2006. The code applies to Wales only, is issued by the Welsh Ministers and comes into force on 12 November 2018. It applies to all dogs for which a person is responsible, and replaces the existing code of practice, which was issued by the Welsh Government in October 2008. There was a Welsh Government review of the existing code, and there was a consultation, I believe, that has been reported upon. Again, any issues from the lawyers on this?

14:40

Yes, although it's not a statutory instrument it's still sufficiently legislative in character for the committee to report under Standing Order 21.7. The only reporting point is implications arising from exiting the EU. Animal welfare and animal health is an area likely to be subject to common frameworks according to the inter-governmental agreement between the Welsh Government and the UK Government.

Yes, and there will be a number of these as we go through our—. That is actually the issue that will emerge each time. Any other comments or observations? If not—

Just to flesh that out in terms of the actual difference now between Wales and England as regards this sort of dog welfare legislation because, as you say, with common frameworks, they will come together in the favour of—which side?

It will be UK wide and there will be a sort of Britain-wide common framework and we are not aware of the status of any negotiations around such a framework at the moment.

But what is there remains, doesn't it? So, whatever has been issued already remains. It's just a question in terms of not being able to do anything further on it until the framework is resolved.

It's one of those areas that will be frozen, as it were.

Yes, so it's a freezing of it. Yes. Okay.

We now move on to the code of practice for the welfare of horses. Again, a report, code of practice and explanatory memorandum. This is issued, again, under section 14 of the Animal Welfare Act. It applies to Wales, is issued by Welsh Ministers, and replaces the existing code of practice. There was, again, another consultation and review. Are there any comments on that?

Again, the same issues.

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

That takes us on, then, 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. I think, in all of these, it's correct, isn't it, it is the freezing of the powers there? But I will ask on each of these as we go through.

So, we are on to 5.1, which is the Education (Student Finance) (Miscellaneous Amendments) (Wales) Regulations 2018, which amend student higher education financial support to remedy defects in the existing legislation and make provision for changes to the immigration status categories that students must fall into in order to obtain support. Two categories are added, namely 'persons granted leave to remain on the grounds of private life' and 'stateless persons'. Any comments from the lawyers on that?

Student finance is not an area set out in the inter-governmental agreement that is likely to need common frameworks, though we've noted here what the Cabinet Secretary for Education said back in July, that EU nationals will be eligible to receive loans and grants, and pay the same fees as Welsh students during academic year 2018-19 and 2019-20.

And that will apply, as I understand it, to those qualifying for the 2019-20 period and also for the duration of their courses as well, so it takes on that—well, on those courses that actually last. Any comments or observations on that?

In which case, we move on to item 5.2, the Cancellation of Student Loans for Living Costs Liability (Wales) Regulations 2018. These are regulations that govern the student loan liability of full-time students who receive loans for living costs from the Welsh Ministers in respect of the academic year 2018-19. The regulations provide for up to £1,500 of a borrower’s living costs loan liability to be cancelled in certain circumstances, with effect from the day after the date on which their first loan repayment is considered to have been received. Any comments?

14:45

Again, EU nationals will be treated the same as Welsh students in the immediate future at least.

Okay, any other comments or observations? 

In which case, we go on to item 5.3: the Materials and Articles in Contact with Food (Wales) (Amendment) Regulations 2018, which amend the Materials and Articles in Contact with Food (Wales) Regulations 2012 to provide for the enforcement of Commission Regulation (EU) 2018/213 on the use of bisphenol A in varnishes and coatings intended to come into contact with food. Any comments from lawyers? 

These regulations are about food safety and food safety is an example of areas we think are likely to be subject to common frameworks.

Phenol can be pretty unpleasant stuff. Any comments or observations? No.

6. Offerynnau statudol y mae angen i’r Cynulliad gydsynio â hwy (Memoranda Cydsyniad Offeryn Statudol)
6. Statutory Instruments requiring Assembly consent (Statutory Instrument Consent Memorandums)

In that case, that takes us on to item 6, statutory instruments requiring Assembly consent—a statutory instrument consent memorandum. And item 6.1 is the Environment, Food and Rural Affairs (Miscellaneous Amendments and Revocations) Regulations 2018. We have a draft statutory instrument consent memorandum and a letter from the Cabinet Secretary for Energy, Planning and Rural Affairs.

This statutory instrument consent memorandum is laid under Standing Order 30A.2. It prescribes that a statutory instrument consent memorandum must be laid and a statutory instrument consent motion may be tabled before the National Assembly for Wales if a UK statutory instrument makes provision in relation to Wales amending primary legislation within the legislative competence of the Assembly.

The purpose of these regulations is to correct out-of-date references relating to European law in domestic primary and secondary legislation. The amendments are being made to ensure the accuracy of the statute book ahead of the UK’s exit from the European Union.

And in the letter from the Cabinet Secretary, she's indicated that as the regulations have already been made, she will not proceed to table a motion. The Cabinet Secretary does not believe there is merit in holding an Assembly debate on whether consent should be given to provisions in regulations that have already been made, where those provisions are technical, uncontroversial and there is no substantive change to existing policy.

So, we'll go straight to the lawyers again.

The regulations seem to be an exercise in tidying up the statute book and there are no legal concerns with the content of the consent memorandum and the Joint Committee on Statutory Instruments will scrutinise these regulations when they are laid before the Westminster Parliament. Welsh Government is content for this tidying up to be done in relation to Wales by the UK Government and the committee may wish to come to a conclusion as to whether it is content as well. 

I think the Minister's approach is reasonable under the circumstances.

I think so, in these circumstances, yes. And, of course, we'll be looking later on, in item 10, at the issue of statutory instrument consent memorandums more generally. 

7. Papurau i’w nodi
7. Papers to note

So, we move on to item 7 then, papers to note. Item 7.1 is a letter to the Llywydd from the Minister for Children, Older People and Social Care regarding the Childcare Funding (Wales) Bill. We've had a letter from the Minister for Children, Older People and Social Care about the Childcare Funding (Wales) Bill and, of course, this is in the Plenary debate tomorrow.

And we've had a response, haven't we, from the Minister? I think it's just come through. Has everyone got that? Perhaps I could ask you to summarise. It does seem to me as though a lot of the points that were made by us—it was a fairly critical report—have been accepted.

Yes, in a number of instances, the Minister has accepted the committee's recommendations. In one or two instances, the Minister would like to take some more time to consider the committee's recommendations, so he's agreed to write to the committee in due course.

Particularly around the balance of power on the face of the Bill, the Minister has acknowledged that the committee was quite concerned about the amount of detail that was being left to secondary legislation, so he's agreed to come forward with some amendments at Stage 2, particularly around who will be a qualifying child for the purposes of the regulations.

With regard to the recommendation around whether or not a requirement should be built into the Bill to review whether or not the provisions are needed, and the inclusion of, perhaps, a sunset clause, that's one of the issues that the Minister has said that he will consider and get back to the committee on.

14:50

Bearing in mind these are fairly substantive changes, we will have an opportunity to look at precisely what format that does come in. It just seems to me that if it's a substantial rewriting of it, we ought to be looking at it again. It's not a further review of the stage, but it's unusual that you have this extent of revision. So, if we see what response we get back to that and look at it, if needs be we can bring that back. Is that an appropriate course of action?

Okay. No other comments, in which case we move on to item 7.2, a letter to the leader of the house regarding the European Union (Withdrawal) Act 2018—regulations made under Schedule 4. We've only just received a response. These were fairly technical items we've drawn as to the applicability of certain parts of the Act. We've had a response back, which has come from the leader of the house, Julie James, dated 17 September 2018. I don't know if you've had a chance to look at that. Any comments, observations—note it?

Item 7.3: a letter from the Leader of the House and Chief Whip regarding regulations made under the European Union (Withdrawal) Act 2018. The letter is there to be noted from the leader of the house. It provides further information regarding the statutory instruments that we needed to correct deficiencies in existing domestic instruments. We see that she's identified, potentially, around 50 statutory instruments, but of course that does not include those that would also have to be made by—statutory instruments by Welsh Ministers. So, there's more information there. There will be more information to come. Any comments or observations? Anything from yourself or the lawyers on that? No.

Yes, and just further clarification—. Well, it's helpful to have that. It's pretty much in line with what we were thinking in respect of that area.

Okay. In that case, item 7.4, a letter from the Leader of the House and Chief Whip. Members are invited to note the additional letter from the leader of the house in relation to regulations made under the European Union (Withdrawal) Act 2018 and, in particular, the sifting of relevant regulations made under the Act. This letter is also relevant to the Welsh Government's response to the report that we sent on 13 September, and included in item 7.12. Could I suggest we refer this to private session? 

In which case, that's agreed.

We move on to item 7.5, correspondence with the Cabinet Secretary for Local Government and Public Services regarding the concordat with the Ministry of Justice and the Welsh Government. You'll see that there is a letter to the Cabinet Secretary, 11 July, and a letter from the Cabinet Secretary, 14 August. This was one where we happened to realise that there was reciprocal guidance, and we asked to clarification as to precisely what that is. Is there anything you want to add to that?

Just that the letter confirms that the guidance is being reviewed at the moment, and the Cabinet Secretary has offered to share that with the committee when it's ready. We can write back and confirm that we'd like it, if Members wish.

So, we'll have an opportunity to look at that. 

Item 7.6, a letter from the Chair of the External Affairs and Additional Legislation Committee on Brexit transition. You've seen that. I mean, if we note that, we can respond to it and send a copy of the inter-governmental draft that we have so far. Is that agreed? Is that okay?

In which case, item 7.7, a letter from the Cabinet Secretary for Education to the Children, Young People and Education Committee on additional learning needs transformations. It's the letter of 17 July, and that's there for us to note. Is there any issue on that? No. Any observations, any comments? No. 

In which case, the letter from the Llywydd to the committee Chairs. Again, I think that's just one to note with regard to the initiatives in Caerphilly and Aberystwyth. We'll just note that.

On to 7.9, Welsh Government written statement and supplementary evidence to the Commission on Justice in Wales. That's there for information; that has been submitted.

And 7.10, the Royal Society of Edinburgh advice paper 2018 to the Scottish Parliament Finance and Constitution Committee. Again, that's to do with frameworks, very interesting, worth a read.

14:55

I think I've been invited, as the Chair of the committee, to attend their conference in early November. The intention is to attend that and to participate insofar as possible.

Item 7.11—'Statements: Introduction of UK Agriculture Bill'. There's a Welsh Government written statement on the introduction of the UK Agriculture Bill and a joint statement by the UK and the Welsh Governments: 'Agricultural Framework Progress Update'. So, these are statements for us to note. The Cabinet Secretary's statement draws attention to the powers that the Welsh Ministers are taking within the Bill, which are quite substantial. It also states that the powers are intended to be transitional until the Welsh Government can bring forward its own primary legislation to design its own agriculture system for Wales. Any comments or observations from lawyers, or from yourselves? Self-explanatory? 

Well, it depends how long 'transitional' is, and I did wonder what on earth is happening in Scotland, because, obviously, the Welsh Government says that they like the England and Wales approach, or the UK approach, but I'm not quite sure if there's a different view emerging from the Scottish Parliament, because if they move ahead and have their own Bill—coming back to the transition issue—a long time before ours is ready, then, you know, there may be implications, I don't know, and obviously the pattern of agriculture in Wales is much more alike Scotland—more similar to Scotland than to England. But I guess the relevant committees will draw these matters out. 

It's a policy issue, isn't it, really, so it will be for the relevant—?

But we can find out what the state of play is with everything and—. Okay, so we'll report back on anything that we find out there— 

The issue of transition is for us, because if the Government was intending to draw out the transition process, then what happens now doesn't get much legislative scrutiny, does it, in effect? Because unless they deal with Welsh issues at Westminster, then we're not going to get much of a hearing. So, if transition was five years, then that would be a serious matter. If it's up to a year, it's not so serious. 

And can I just add—the joint statement says that agricultural support is the No. 1—top of the list—in the list of areas likely to be subject to common frameworks? But the joint statement says:

'the vast majority of policy areas can be…managed through non-legislative, intergovernmental coordination.'

So, we may not see legislation in these areas. 

I mean, that causes some concern, doesn't it, in terms of scrutiny of the exercise of those particular powers? What would be the mechanism, then, for any activity from Welsh Government in terms of the exercise of the powers that they are given? 

Could I suggest you write to the sustainability, rural affairs, planning and energy committee and suggest that they need a careful look at this?

Yes, we can do that. I think it's a very good idea.

Okay, we then move on to the next item: 'Welsh Government response to the Committee's Report: Scrutiny of Regulations made under the European Withdrawal Act 2018: Operational Matters'. There's a Welsh Government response to the committee's report, so it's a matter of noting the Welsh Government's response to the report, which, basically, I think, takes on board very much some of the points we made. Is there anything else on that that we need to—? Note that? Okay. 

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

Then, if that's the case, and there's nothing else on that, we'll move on to item 8, which is a motion under Standing Order 17.42 to resolve to meet in private. 

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.

Is that moved and agreed? Okay, so we now move into private session. 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:59.

Motion agreed.

The public part of the meeting ended at 14:59.

Archwilio Cynulliad Cenedlaethol Cymru