Cynulliad Cenedlaethol Cymru

Okay. This is a meeting of the Constitutional Legislative Affairs Committee. On to item 1—apologies I've received from Dawn Bowden and Mandy Jones. We welcome Llyr Gruffydd in place of Dai Lloyd today.

The usual housekeeping procedures will apply, and I just ask if there are any declarations of interest.

If there are no declarations of interest, we move on to item 2, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We start with the Developments of National Significance (Specified Criteria, Fees and Fees for Deemed Applications) (Wales) (Amendment) Regulations 2019. As a result of the Wales Act 2017, the function of granting consent in respect of consenting of generation stations both on and offshore with a capacity of 350 MW or less and the consenting of overhead lines with a nominal voltage of 132 kV or less, where they are associated with a devolved generating station, has been devolved to the Welsh Ministers. These regulations alter the function of giving consent in respect of onshore generating stations, overhead electric lines and electricity storage. These regulations also make changes to the Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) Regulations 2015 to allow fees. Any comments? No.

We move on to item 3, instruments previously considered for sifting and now subject to scrutiny under Standing Order 21.2 and 21.3. So, in respect of the instruments that are within this section, these are ones that have been previously considered for sifting in accordance with Standing Order 21.3B, and in the sift process the committee agreed that, in all cases, the appropriate procedure for the regulations was the negative resolution procedure. Now the instruments are subject to usual scrutiny in accordance with Standing Orders 21.2 and 21.3. Although all the instruments have clear reports, they also contain a merits point to highlight the sift process. So, we start with the Livestock (Records, Identification and Movement) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These regulations amend legislation that applies in relation to Wales in the fields of the recording, identification and movement of livestock. Any comments? Any observations? No.

In that case, we move on to item 3.2, the Animal By-Products and Transmissible Spongiform Encephalopathies (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These regulations address deficiencies in domestic legislation arising from the withdrawal of the UK from the EU and ensure that controls on animal by-products and transmissible spongiform encephalopathies continue to operate on EU exit to protect animal and public health. Any comments or observations? No.

Item 3.3, the Elections (Wales) (Amendment) (EU Exit) Regulations 2019. These are regulations that will remove references to Members of the European Parliament, European Parliament and European parliamentary elections where these will no longer be needed after exit day, and, of course, exit day is determined at the moment by statute but, of course, Members will be aware that there are discussions on possible issues of extension and so on. Comments? Observations?

In which case, item 3.4, the Service Charges (Consultation Requirements) (Wales) (Amendment) (EU Exit) Regulations 2019. These regulations make amendments to the Service Charges (Consultation Requirements) (Wales) Regulations 2004 by removing a reference to the Publications Office of the European Union and replacing it with a reference to the UK e-notification system. Are there any observations or comments? No.

In which case, we move on to item 4, instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3. Negative resolution instruments: the Equine Identification (Wales) Regulations 2019. You have before you a report, regulations and explanatory memorandum. These regulations supplement and make provision for the enforcement of Commission Implementing Regulation (EU) 2015/262 in Wales. The regulations provide for the identification of equines and replace Equine Identification (Wales) Regulations 2009. I think you've identified a technical point for reporting.

Yes. The draft report on pack page 7 raises a query around the duty of owners of equines to notify the body that issues equine passports of changes to the identification details of equines. If the person responsible for the equine thinks that the equine identification details need updating, then the owner must ask the issuing body to update the identification details. This raises the question of what if the responsible person and the owner are not the same person, and the responsible person thinks the details need to be updated but the owner is unaware of that. There still seems to be a duty on the owner to contact the issuing body, even if the owner does not know that the responsible person thinks the details need updating. This is a particular concern because, if the owner fails to ask the issuing body to update the details, the owner is committing a criminal offence. The Welsh Government hasn't responded yet to that reporting point.

All right. So, we will have a response in due course and that will come before this committee at that stage. Are there any other comments on that? In which case we move on to item 4.2, the Smoke Control Areas (Authorised Fuels) (Wales) Regulations 2019. You see there the Government response and report. These are the regulations that were considered at last week's meeting and I think a technical point for reporting was identified, namely a discrepancy between Welsh and English language versions of the regulations. Have we had a response?

The Welsh Government has accepted the point and has promised to make regulations to correct that error as soon as possible.

Okay. We move on to item—. Sorry, any observations? No.

In which case, we move on to item 5, proposed negative instruments that raise no reporting issues under Standing Order 21.3B, the Equine Identification (Wales) (Amendment) (EU Exit) Regulations 2019, and these regulations were laid for the purpose of sifting under the EU (Withdrawal) Act 2018. The regulations make amendments to the Equine Identification (Wales) Regulations 2019, which supplement and make provision for the enforcement of Commission implementing regulations. Any comments? Any observations on those? If not, we then move on to item 5.2, the Learner Travel (Wales) (Amendment) (EU Exit) Regulations 2019. These are regulations that were laid for the purpose of sifting, again under the EU (Withdrawal) Act 2018. The regulations substitute

'requirement of retained direct EU legislation'

for

'directly applicable requirement of European Union law'.

Now, are there any comments to make on that?

Comments to make: while the committee generally recommends that any regulations that amend primary legislation should be subject to the affirmative procedure, the amendment of the Learner Travel (Wales) Measure 2008, in this case, is very minor and is also required in order for the Measure to work properly on exit. Therefore, the committee may be content that the negative procedure applies to these amendment regulations.

So, it's a very minor, very technical amendment. So, we agree to that. 

Item 6, statutory instruments requiring consent—the Fertilisers and Ammonium Nitrate Material (Amendment) (EU Exit) Regulations 2019. You see there a letter from the Minister for the Environment, Energy and Rural Affairs, a statutory instrument consent memorandum, regulations and explanatory memorandum and report. These regulations replace the EC fertiliser regime in European Union law with a new domestic regime providing for a UK fertiliser label that will function in exactly the same way. It also allows a two-year transitional period, during which the EC fertilisers can still be sold in the UK without a requirement to be relabelled to ensure continued supply and reduce burdens on businesses that result of exit. The instrument also amends the rules on the import of ammonium nitrate fertilisers to uphold current safety standards at the same time as ensuring consistency. Any issues on this?

Yes. These UK Government regulations amend primary legislation within devolved competence, and that's why a statutory instrument consent memorandum has been laid, and that's fine, but there is no written statement under Standing Order 30C in respect of these UK Government regulations. While the Welsh Government did make a written statement in December 2018 in respect of the previous version of these regulations, the regulations have since changed, which is why we need a statutory instrument consent memorandum now and therefore an updated written statement should have been made.

And no indication as to why that's the case, no response from Welsh Government.

No.

We've raised the matter with Welsh Government, so we're awaiting a response.

I don't think we've raised the specific point, but we can raise it in more general correspondence with the Government.

Okay. Shall we do that? We'll take that up; take up that notification.

We move on to item 7, then, written statements under Standing Order 30C, the Import of and Trade in Animals and Animal products (Amendment etc.) (EU Exit) Regulations 2019. You see the statement and commentary. I think you have a number of comments in respect of these regulations.

Yes. The draft report on pack page 84 raises a couple of points on these UK Government regulations. The first point notes a minor typing error in the Welsh Government's statement and the second point relates to the paragraph in the written statement that requires the Welsh Government to set out any impact that the UK Government regulations may have on the Assembly's legislative competence or the Welsh Ministers' executive competence, but there's no clear answer to that question provided in the written statement.

So, we need to write to seek that clarification on which devolved powers are affected. Is that agreed?

Yes.

In which case, we then move on to item 7.2, the Aquatic Animal Health and Plant Health (Legislative Functions) (EU Exit) Regulations 2019. There is a statement and commentary with your papers. Any comments? Any observations?

In which case, we move on to item 7.3, then, the Chemicals (Health and Safety) and Genetically Modified Organisms (Contained Use) (Amendment etc.) (EU Exit) Regulations 2019. You have a statement and you have commentary. Any comments on that? Observations? No.

Right, we can then move on to item 7.4, because there are some issues in respect of this particular item that we need to discuss. You have a statement, you have a letter from the Counsel General and a commentary there. There are a number of issues there with regard to the issue of a breach of paragraph 8 of the inter-governmental agreement on the European Union (Withdrawal) Bill and the establishment of common frameworks. I think this starts at pack page 95 and I think there are some specific sections on page 102 that we need to look at. Perhaps if I go to Gareth first and then we can discuss these, because I think these are slightly more serious issues that we need to specifically deal with.

Diolch. These UK Government regulations transpose the EU state-aid regime into domestic law and do so by giving state-aid functions to the Secretary of State and the Competition and Markets Authority. As you note, the Counsel General's letter, which is on pack page 99, states that the Welsh Government considers state aid to be within the Assembly's competence, but the UK Government does not consider state aid to be within the Assembly's competence. The Welsh Government has asked UK Government to explain why it thinks state aid is not devolved, but there's been no response yet. The draft report on pack page 101 welcomes the clear way the Welsh Government has set out all of these issues and the draft report suggests that the committee may wish to draw this matter to the attention of the relevant UK parliamentary committees, where these regulations will be scrutinised.

This seems to—. The reason why I think there's a particular concern over this is that this seems to be going back to the bad old days of we say that there's a dispute over this under the inter-governmental agreement and they say, 'No, there isn't, because we don't agree with you'. And, effectively, you end up in this catch-22 position where there is almost no way of getting a reasoned response as to this agreement. The Counsel General's letter, as stated here in the note, demonstrates in this case that functions are being transferred to a non-devolved public authority in a way that affects the Assembly's legislative competence without seeking the Assembly's consent, and if that's correct then there is a clear breach of paragraph 8. There are a number of suggestions that have been made, but I will take any comments, first of all, from members of the committee.

Can I just mention that, obviously, we haven't heard back from the UK Government under which reserved heading this is? Presumably, then, the Welsh Government has looked through all the reserved Schedule headings and not spotted anything that could be ambiguous, then.

Yes. That's right. I mean, it's very clear that state aid is a devolved matter; it's not a reserved matter. That is clear by statute. The issue arises when the UK Government, effectively, says it will not respond to points that are made that this is a devolved matter, therefore, that's where the issue needs to be resolved.

Yes, it's up to them to prove that it's reserved, I accept that, it's just—you know, have we got our defence ready?

Well, it's not for us, the defence. As a committee, what we're doing is scrutinising what that situation is. Our analysis of that letter, and I think our legal officer's analysis as well, is that the position that's been adopted by the Counsel General is a correct representation of the position, and the difficulty appears to be that the UK Government has not given a response, an explanation as to why it says that that position is incorrect, because, if it is incorrect, then clearly legislative consent is required. We've had this, of course, in the past with other legislation—I think we had it on the Trade Union (Wales) Bill—where clear reasoning was not given.

The suggestion that's being made is twofold. One is bringing this to the attention of the Secondary Legislation Scrutiny Committee of the House of Lords and also their Constitution Committee. Those, it seems to me, are appropriate. But I'm really wondering whether we should just go further. I think we should write to the Counsel General in terms of acknowledging that letter, identifying the issue and expressing our own concern about this, because this does have implications in respect of the inter-governmental agreement. That was a result of specific negotiations. There's a high degree of trust within that agreement and it just seems to me that it's fundamentally wrong that, if we raise an issue of dispute under that, the approach is to basically either not respond at all or to not give any reasoning. So, we could perhaps take that letter to the Counsel General as well. Carwyn.

There's no evidence, to my mind, to show that this is a reserved matter. State aid rules date back to the days when we first joined what was then the European Economic Community. It didn't exist within the UK before then. So, in reality this is a power that, unless the 2017 Act is silent, would automatically be ours.

On a more practical point, what disappoints me is that, in order for a state-aid regime to be accepted and seen as being fair, it does need, as the Counsel General says, to be agreed by all four administrations within the UK. Otherwise, we run into this problem once again, although it's an arm's-length body that's being talked about, where the Government that constructs the state-aid regime is also the Government of England, and that cannot possibly work without the agreement of the devolved administrations.

So, we're agreed we issue those three letters to the two House of Lords committees, but also in respect of the Counsel General. At some stage the Counsel General will have a response. He is in fact giving evidence to this committee on the Legislation (Wales) Bill next week, but can we perhaps have this item tabled in some way so that it comes up and we have an updating report? There should in some ways be progress. I just think, at this stage, on a matter—. Some of the issues of frameworks in terms of procurement, state aid and so on are so fundamental to the process that we're in that I don't think it's something that we can afford to allow to slip. So, are we all happy with that? Any other observations?

In which case, we'll move on to item 7.5, the Public Procurement (Amendment) (EU Exit) Regulations 2019. You have a statement, you have commentary. There are a number of comments, I think, that need to be made on this—I think page 106 of the pack—and, of course, we have written in response to this and are still awaiting a letter. Do you want to update us on this?

Only to go through the draft report on page 106. It raises a couple of questions. Firstly, a written statement was made in respect of these regulations by the Welsh Government in December 2018. The Welsh Government has now laid another written statement in respect of what seems to be the same regulations, and the draft report seeks some clarification as to why and when the original statement was withdrawn, and why it took until 25 January to make the revised statement. Secondly, the UK Government regulations are another example of functions being given to a public authority that is not a devolved Welsh authority, and therefore if the Assembly wishes to modify those functions in future, it would require the consent of the UK Government. The committee has seen a few regulations like this now where the Welsh Government consents to UK Government making regulations that restrict the legislative competence of the Assembly without the Assembly having prior notice, albeit in relatively narrow fields.

Okay. I'm particularly concerned in terms of page 108 of the pack. You'll note that the legal advisers have been unable to assess whether any significant issues arise under paragraph 8 of the memorandum on the European Union (Withdrawal) Bill and the establishment of common frameworks in relation to these regulations. When did we seek clarification? 

I think it's only now been published in this draft report. 

Okay, so we'd expect probably by next meeting we'll have had some response. 

We can chase the Government if need be. 

Any other comments? I think the areas of state aid and procurement are ones to keep a particularly close eye on. Again, perhaps we can have an update on this at the next meeting. Any other comments or observations? 

If not, papers to note. Item 8.1, letter from Lord Boswell, chairman of the European Union Committee of the House of Lords, on post-Brexit UK-EU inter-institutional relations and the role of the devolved institutions. They've sent a series of questionnaires, and so on. I suggest we discuss this in private session. 

In which case, we'll move on to item 9, and, in accordance with Standing Order 17.42(vi), which I will read out, the committee is deliberating on the content, conclusions or recommendations of a report it proposes to publish or is preparing itself to take evidence from any other person. So, under 17.42(vi), I invite the committee to resolve to exclude the public from the remainder of the meeting. Is that agreed? Okay, we'll move into private session.