Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

04/03/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd AC
David Melding AC Yn dirprwyo ar ran Suzy Davies
Substitute for Suzy Davies
Dawn Bowden AC
Mick Antoniw AC Cadeirydd y Pwyllgor
Committee Chair
Suzy Davies AC

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

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

Cynnwys

Contents

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datganiadau o fuddiant 1. Introduction, apologies, substitutions and declarations of interest
2. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod 2. Motion under Standing Order 17.42 to resolve to exclude the public from the meeting
5. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3 5. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3
6. Offerynnau a ystyriwyd yn flaenorol ar gyfer sifftio ac sydd bellach yn destun craffu o dan Reolau Sefydlog 21.2 a 21.3 6. Instruments previously considered for sifting and now subject to scrutiny under Standing Orders 21.2 and 21.3
7. Offerynnau sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.2 neu 21.3 7. Instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3
8. Offerynnau sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.7 8. Instruments that raise issues to be reported to the Assembly under Standing Order 21.7
9. Offerynnau Statudol sydd angen Cydsyniad: Brexit 9. Statutory Instruments requiring Consent: Brexit
10. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C 10. Written statements under Standing Order 30C
11. Papurau i'w Nodi 11. Papers to Note
12. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod 12. Motion under Standing Order 17.42 to resolve to exclude the public from the meeting

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 13:01.

The meeting began at 13:01.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datganiadau o fuddiant
1. Introduction, apologies, substitutions and declarations of interest

This is a meeting of the Constitutional and Legislative Affairs Committee. The usual housekeeping rules apply. I've had apologies from Carwyn Jones, Dawn Bowden and Mandy Jones. Suzy Davies is absent for the first part of this meeting because of her Commission functions. I welcome David Melding back to this committee by way of substitute for the purpose of that.

Are there any declarations of interest? If there aren't any, we move on to item 2.

2. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod
2. 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'r cyfarfod ar gyfer eitemau 3 a 4 yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from the meeting for items 3 and 4 in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

In accordance with Standing Order 17.42(vi), I invite the committee to resolve to exclude the public for the next two items on the agenda, items 3 and 4, which are to consider the Senedd and Elections (Wales) Bill. So, we have a technical briefing from officials. So, we'd normally move into private session for that. Is that agreed? 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 13:02.

Motion agreed.

The public part of the meeting ended at 13:02.

14:10

Ailymgynullodd y pwyllgor yn gyhoeddus am 14:10.

The committee reconvened in public at 14:10.

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

This is a reconvened meeting of the Constitutional and Legislative Affairs Committee. We've just terminated private session and we are now on item 5 of our agenda: instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We're onto the Arrangements for Assistance for Persons Making Representations (Wales) Regulations 2019. Under section 178, sections 4 and 5 of the Social Services and Well-being (Wales) Act 2014, the Welsh Ministers are required to make regulations to make further provision about a local authority's duty to make arrangements to help  children and young persons who want to make representations. This applies to representations by children and young persons about a range of the local authority's social service functions that affect children and young people. These regulations make provision about the categories of person who, under the local authority's arrangements, may not provide assistance to the child or young person. Are there any comments or any observations on that?

If not, we move on to item 5.2: the Regulated Services (Annual Returns and Registration) (Wales) (Amendment) Regulations 2019. These regulations amend the Regulated Services (Annual Returns) (Wales) Regulations and the Regulated Services (Registration) (Wales) Regulations of 2017. Regulation 6 of the annual returns regulations is amended to incorporate those service providers who are registered to provide an adoption service, a fostering service and an adult placement service or an advocacy service to submit additional information as part of the annual return. Any comments or observations on those? No.

If there aren't any, then, on to item 5.3: the Education (Student Finance) (Miscellaneous Amendments) (Wales) Regulations 2019. These regulations make a number of technical amendments and introduce a number of changes to student support-related matters and apply to academic years beginning on or after 1 September 2019. Any comments or observations on those?

In which case, we move on to affirmative resolution instruments, and item 5.4 on the agenda: the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Regulations 2019. These regulations are made under section 186 of the Regulation and Inspection of Social Care (Wales) Act 2016. They make consequential amendments to primary legislation, which refer, for various purposes, to one of the categories of establishment or agency that were regulated under the Care Standards Act 2000, in order to replace such references with references to the appropriate regulated service under the Act. Any comments or observations? 

6. Offerynnau a ystyriwyd yn flaenorol ar gyfer sifftio ac sydd bellach yn destun craffu o dan Reolau Sefydlog 21.2 a 21.3
6. Instruments previously considered for sifting and now subject to scrutiny under Standing Orders 21.2 and 21.3

If there aren't any then we move on to item 6. These are instruments previously considered for sifting, which are now subject to scrutiny under Standing Orders 21.2 or 21.3. We start with the Learner Travel (Wales) (Amendment) (EU Exit) Regulations 2019, which substitute

'requirement of retained direct EUlegislation'

for

'directly applicable requirement of European Union law'

in section 14A(5) of the Learner Travel (Wales) Measure 2008. Any comments or observations on that?

If not, we then move on to item 6.2, and I know there are some issues on this: the Environmental Assessment of Plans and Programmes and the Environmental Impact Assessment (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These regulations do have some technical reporting points. Do you want to—?

Yes. I believe Members have a hard copy of the draft report for these regulations. These regulations correct deficiencies in environmental legislation by including the word 'national' in various enactments. The draft report seeks clarification of what is meant by 'national'. Does it mean the United Kingdom or does it mean Wales? The Welsh Government acknowledges the point and will make amending regulations to clarify.

14:15

We assume it means the United Kingdom. They don't expressly say in the response which one they mean. We read from it that they mean United Kingdom, and we'll certainly get confirmation when the amending regulations arrive. 

Yes, well, it's one of those inherited problems of terminology—that what they may understand in Westminster by the term 'national' is a totally different concept than the way we understand it here. So, we'll report back on that in due course. 

Item 6.3: the Environmental Noise (Wales) (Amendment) (EU Exit) Regulations of 2019. These regulations are made under the European Union (Withdrawal) Act of 2018, and they amend the Environmental Noise (Wales) Regulations of 2006 in order to address failures of retained EU law to operate effectively, and other deficiencies arising from our departure from the European Union, should that happen. The 2006 regulations implemented directive 2002/49/EC of the European Parliament, relating to the assessment and management of environmental noise. These regulations maintain the requirements imposed by the 2006 regulations but amend references to the directive and make other minor and technical amendments. Any comments or observations?

If not, we move on to item 6.4: the Equine Identification (Wales) (Amendment) (EU Exit) Regulations of 2019. These make amendments to those regulations that supplement to make provision for the enforcement of Commission implementing regulation EU2015/262, laying down laws pursuant to Council directives as regards the methods for identification of equidae in Wales. Equidae is—?

Horses, I presume. I'm not quite sure why we couldn't say 'horses'. 

There we are. Okay. So, in terms of clear English, for the record, horses. Any comments or observations? No. Okay.

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

Item 7: instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3. We're onto item 7.1, the Council Tax (Administration and Enforcement) (Amendment) (Wales) Regulations of 2019. Again, you have the regulations, a report and the explanatory memorandum. These regulations amend the Council Tax (Administration and Enforcement) Regulations 1992, to remove the power of billing authorities in Wales to apply to a magistrates' court for the issue of a warrant committing a council tax debtor to prison. Regulation 3 makes transitional provision. So, this is the provision whereby, as the law exists at the moment—inherited law in fact—it is possible for someone to be in prison for being unable to pay their council tax. I think Members will remember there've been, obviously, statements from the Government on this when a particular case occurred within Wales. These are regulations from the Government that take away that power, and I think it's important to recognise that.

And that's the merits point raised in the draft report.

Item 7.2 is the Care and Support (Charging) and (Financial Assessment) (Wales) (Miscellaneous Amendments) Regulations of 2019. These regulations amend the Care and Support (Charging) (Wales) Regulations of 2015 and the Care and Support (Financial Assessment) (Wales) Regulations of 2015. I understand there's a merits point there.

Yes, a merits point noting the changes that are being made to charging and financial assessments that apply in the context of receiving care and support. Firstly, the maximum weekly charge for non-residential care and support goes up from £80 a week to £90 a week, so local authorities will not be able to charge people more than that for the non-residential care and support they receive. Also, the capital limit for residential care is being increased from £40,000 to £50,000. This means that residents at care homes can retain £50,000 of capital before having to pay for their care and accommodation, and that's part of the Welsh Government's 'Taking Wales Forward' programme. 

So, these are the movements originally from £30,000 to £40,000, which occurred last year, and now have been increased to £50,000 in accordance with Government statements that were made previously. Any comments or observations on that?

14:20

Okay. On to, now, then, item 7.3, the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments to Secondary Legislation) Regulations 2019. We have, again, a report, regulations and an explanatory memorandum. And the Regulation and Inspection of Social Care (Wales) Act 2016 reforms the regulation and inspection regime for social care in Wales, replacing that established under the Care Standards Act 2000.

The regulations make amendments to secondary legislation consequential upon the commencement of provisions within Part 1 of the 2016 Act through the Regulation and Inspection of Social Care (Wales) Act 2016 Order of 2019. Any points or comments on that?

Yes. The draft report notes a few things that appear to be drafting errors in the regulations. For example, there appears to be an incorrect cross-reference to some other legislation and an incorrect reference to the definition of 'individual placement plan'. The Welsh Government has been asked for a response, but none has been received yet. 

Yes. So, we will have a report back on that in due course. 

Item 7.4, the Environmental Damage (Prevention and Remediation) (Wales) (Amendment) (EU Exit) Regulations 2019—again, there's a report, regulations and an explanatory memorandum, which we've all seen. And these regulations make amendments to the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009, and these changes are being made in exercise of powers conferred by the European Union (Withdrawal) Act 2018 to address failures of retained EU law. Any points on that?

Yes. Similar to the earlier point about inserting the word 'national'—does it mean Wales or the United Kingdom? In this case, the Welsh Government has responded and considered that it is clear enough that 'national' does mean the United Kingdom because, in this case, there is also the word 'regional', and 'regional' is intended to mean Wales, leaving 'national' to mean United Kingdom. 

Well, what it does highlight is that there is a differential in terms of the use of terminology that is not helpful across the board. 

I was going to say that it would be useful, actually, if all four nations of the UK could agree common terminology, wouldn't it?

We have a particular view, for obvious reasons, and, at the Westminster level, clearly there are differential terms—. This is a matter that ought to be easily resolvable in terms of communication. Maybe it's just a matter we should actually raise, that it is unhelpful to keep having the use of terminology that means different things in different areas and, from time to time, has to be qualified. So, maybe it's a matter that we should draw to the attention of the Counsel General. 

Yes, if we could, because—you know, our national anthem, 'Hen Wlad fy Nhadau', it's 'Gwlad. Gwlad.' 'Nation. Nation.'; it doesn't say 'Region. Region.' [Laughter.] Well, because the word doesn't fit. You can't get it out—

No, it doesn't say, 'Ardal. Ardal', nor 'Rhanbarth. Rhanbarth.' It says 'Gwlad'.

Well, it is—. In terms of the simplification, the codification, and so on, it's another area to draw attention to. The Counsel General's the appropriate person, I think. Yes. Okay. Good.

8. Offerynnau sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.7
8. Instruments that raise issues to be reported to the Assembly under Standing Order 21.7

Yes, on to item 8, issues to be reported to the Assembly under Standing Order 21.7. Item 8.1: code of Practice on the exercise of social services functions in relation to Part 4, direct payments and choice of accommodation, and Part 5, charging and financial assessment, of the Social Services and Well-being (Wales) Act 2014. And, again, a report, regulations and explanatory memorandum—we've had the chance to look at and to read. 

The code of practice is issued under section 145 of the Social Services and Well-being (Wales) Act 2014 and, under Standing Order 21.7, a draft of the code must be laid before the Assembly. Any comments?

No, only to note that it is not a statutory instrument, but it is still subordinate legislation, which is why it's being reported under Standing Order 21.7, with a clear report in this case. 

9. Offerynnau Statudol sydd angen Cydsyniad: Brexit
9. Statutory Instruments requiring Consent: Brexit

Okay. We move on now to item 9, statutory instruments requiring consent, relating to Brexit. And we're on, now, the National Health Service (Cross-Border Healthcare and Miscellaneous Amendments etc) (EU Exit) Regulations 2019. These start at page 174 of the pack. Is that right? Yes. We have a letter from the Minister for Health and Social Services. We have the Welsh Government's written statement in relation to these, and we've had that put before us and we've all seen it now. The written statement explains that the regulations provide for the switching off in the UK of current reciprocal healthcare arrangements relating to the right to purchase healthcare overseas and applying for reimbursement. This is intended to ensure that, post EU exit, the UK will not be unilaterally committed to continue to satisfy its current obligations. However, the regulations also provide that current reciprocal arrangements may continue until December 2020 where reciprocal arrangements have been reached between the UK and other countries. And the letter from the Minister for Health and Social Services explains that he is not minded to table a motion for debate. Comments?  

14:25

Only to note that both regulations under agenda item 9, that is 9.1 and 9.2, are amending primary legislation in devolved areas, which is why a statutory instrument consent memorandum has been laid. But, as noted, the Government does not intend to table a motion to debate these regulations.   

So, this is the Suzy Davies conundrum now, isn't it, as we are prone to call it.

And I welcome to the committee Suzy Davies, who has magically appeared. 

No, we fully understand. David Melding did substitute for you during the elections discussions. 

Well, comments on this. Any—?

Well, it keeps on happening, and we keep on just noting it—or are we going to have to go through what we did before, or what Suzy did before, and just have the debate and then still they change primary legislation in devolved areas and then it just carries on, but we have the debate? It all seems a bit pointless if we've got to go through that again, really. 

Well, we went through a lot of these issues, didn't we, on the Healthcare (International Arrangements) Bill. And the area that actually concerns me, to be honest, is not so much the provision for a continuation or arrangement. Clearly, the discussions have taken place and the issue of 'normally' re-emerges. So, Sewel is now being inserted into these, and what I remain unclear about—I know Sewel is one of those areas we want to explore in due course; there is a real constitutional importance—is what actually 'normally' means, whether we should now be trying to get some indication as to whether, where we use the term 'normally', there should be now a slightly broader narrative. This is my thinking on this particular issue. I just wonder if there actually has been any discussion on this, because, if it doesn't have any status or meaning, 'normally' means nothing—it means basically we've just conceded that this be transferred over and can be overriden without any clarity as to what 'normally' actually means. Importantly, there is, obviously, provision for engagement, and those things are important. My inclination at this stage would be that we just seek some clarification as to has there been—in those discussions where 'normally' or where Sewels were put in, what actually was meant, whether there was any narrative around that. And, even if it comes back and says, 'Well, no, it just has a normal Sewel meaning', at least we know that that's what is happening, and I think that will give us a little bit more substance in discussions later on.    

Only this one piece of—. There was one line that was in the advice that we've had, which is—. Let's have a look. What did it say?

I think it's on the same piece—. Hang on. Have I got the right one? The cross-border healthcare regs. 

Is this, Chair, simply because—? What the Minister says in his letter, is it—? Maybe I've completely misunderstood what you were talking about. The reason that that hasn't been done in the way that you're suggesting is because there is no divergence in this policy area between the UK and Welsh Government, so it would only be necessary to have those conversations or bring it to the Assembly for debate if there was likely to be divergence of policy. Is that—? Have I misunderstood?

14:30

Well, that's partly it. I think the broader concern, though, is that, of course, many of these things are open-ended. There will be the ability for future agreements, which may have impacts. And they may be things that there is no disagreement on—I think everybody would want to see that, if we end up leaving the European Union, we have the best possible reciprocal arrangements internationally. But there are implications to that. And, as in the international arrangements Bill—you know, the issues that we raised there were, of course, 'Well, these changes may have all sorts of consequences and cost implications'. The making of these agreements is, clearly, a UK Government matter, but the actual implementation—

—domestically on that is for us, and it's just having a clear understanding about the belt and braces of, 'Well, we've been told that we will be engaged, that we'll be consulted over these, and that they will not normally legislate without our consent. What weight can be attached to that? What does it really mean, and is there any way we can actually have a greater, I think, narrative encapsulated around that?' This is an ongoing issue. It's not going to go away. We're not going to resolve it on this. But I think this is one that's emerging in lots of pieces of legislation and one we will want to consider more broadly within Sewel arrangements.

Well, if it is on the cross-border one—sorry, because I missed the very beginning of what we were talking about—there is a paragraph in the advice that we've had, which says that the

'summary and the content of the Explanatory Memorandum to these Regulations confirm their effect and the extent to which these Regulations would enact new policy in devolved areas.'

but then goes on to say that the EM is very unhelpful. I think we need to reinforce the point that the EM is unhelpful.

Which page are you specifically referring to? Do you have that there, or—?

Oh, 211, sorry. It's on the same piece of secondary legislation.

So, it differentiates. The explanatory memorandum seems to have set out what is necessary, but the explanatory note, the shorter note, which—[Inaudible.]—regulations then isn't particularly helpful.

All right. Okay. Well, is that worth just pointing out as well as the main issue that we're discussing?

It would have been—. Both would have been prepared by the UK Government. The Welsh Government only prepared the statement in relation to these. So, it's a comment on the UK Government's explanatory memorandum—sorry, explanatory note.

Well, that's—. Yes, but if they're giving information that Welsh Government can't quickly understand—. I mean, Welsh Government should have noticed it as well is what I would tend to say, I suspect, but—.

Which is the paragraph you're specifically looking at? That one there—

This one is:

'The above summary and the content of the Explanatory Memorandum'—

—'to these Regulations confirm their effect and the extent to which these Regulations would enact new policy in devolved areas. The Explanatory Note annexed to the Regulations, on the other hand, is notably unhelpful in explaining their effect.'

Well, this is an area where I think we want to—I'd certainly like to see at least us asking now what the narrative is around the use of 'normally' and Sewel. What is the status of this—you know, what was the nature of the discussion around that? But also I suppose within the context of this point as well. Is that—?

Just to let Members know, in relation to items 9.1 and 9.2, these are statutory instrument consent memorandums, so what the Government is saying is that they are not minded to table motions because, under the provisions of that Standing Order, those statutory instruments amend primary legislation within the competence of the Assembly. In the committee's report in February 2019, this year, 'Scrutiny of regulations under the European Union (Withdrawal) Act 2018: Progress report', the committee said:

'We believe that all Brexit-related Statutory Instrument Consent Memorandums should be subject to a consent motion tabled by the Welsh Government.'

The Welsh Government haven't yet come back on the report, but, in the interim, in these two instruments that they've laid, they've said they're not going to do that. If they had tabled a motion, that would enable the kinds of discussions that have been raised in the committee today to be considered on the floor of the Senedd.

We should do it, because—. They've seen the—. Obviously, Government have seen the recommendation, haven't they? 

14:35

I will go away and look at the timescales. It will be for any Member to table a motion, but in order to do so, under the terms of the Standing Order, they would have to table their own statutory instrument consent memorandum, as was done before. That SICM, itself, would then come—. If it was tabled by a member of this committee, it would then come back to this committee for scrutiny.

It can't be done—. It can be done by any individual Member.

Well, can it be done in the names of the members of the committee?

That's something I would prefer to come back to—

Can we have a further discussion on this? We'll come back and we'll look at this. We'll perhaps look at it again in private session as well, if that's okay.

And on to 9.2, Social Security Coordination (Benefits in Kind etc) (Amendment etc) (EU Exit) Regulations 2019. There's a letter from the Minister for Health and Social Services. There's a Welsh Government statement, the statutory instrument consent memorandum, regulations, the explanatory memorandum and commentary. The written statement explains that the regulations provide for the switching-off in the UK of current EU law-based reciprocal healthcare arrangements, and this is about ensuring the continuation. The letter from the Minister for Health and Social Care, again, explains that he's not minded to table the motion for debate. And again, the same issues arise. There were some other issues arising in terms of the lateness of the corrected versions of documents, and so on. Any comments on that?

Nothing further to add.

Nothing further to add on that. But the same principle applies in respect of this, as well, doesn't it? Not having had a response to the report, as well, sort of aggravates it to some extent. Okay. We can discuss this further in private session if we want to move on now. 

10. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C
10. Written statements under Standing Order 30C

Item 10 is written statements under Standing Order 30C. The Public Procurement (Amendment etc.) (EU Exit) (No.2) Regulations 2019. Any comments?

Okay. Item 10.2, the Market Measures (Marketing Standards) (Amendment of Retained Direct EU Legislation) (EU Exit) Regulations 2019. The written statement has an incorrect title. The written statement relates to the Market Measures (Marketing Standards) (Amendment) (EU Exit) Regulations 2019. I understand this has been raised with Welsh Government.

It has, okay, and we're awaiting a response. Any other comments or observations on that?

Okay, then we're on to item 10.3, the Common Agricultural Policy (Financing, Management and Monitoring) (Miscellaneous Amendments) (EU Exit) Regulations 2019. Any comments or observations?

Yes. These regulations raise an issue that's been noted by the committee a few times recently. The regulations confer functions on the Welsh Ministers and the Secretary of State that must be exercised jointly. If the Assembly wished to remove or modify those joint functions in future, then UK Government consent would be needed.

On to the Market Measures Payment Schemes (Amendments) (EU Exit) Regulations 2019. The legal advisers have made some comments—. Oh, sorry, there were some comments from the legal advisers in relation to this Welsh Government written statement, so I invite comments.

Yes. These regulations raise a similar issue. The Welsh Government's written statement refers to functions that the Assembly may not be able to modify without UK Government consent in future, but it's unclear to which functions this refers, and the draft report suggests seeking clarification from the Welsh Government about which functions are exactly in play here.

We'll do that. This is an issue that arises from time to time.

Item 10.5, the Common Fisheries Policy and Aquaculture (Amendment etc.) (EU Exit) Regulations 2019. Again, you have before you the statement and commentary, and there are some legal comments on this as well.

Again, a similar issue about what the impact may be on the Assembly's legislative competence, and are there any unintended consequences that will restrict that competence in future.

Yes, I think so, because all of these have got the same issues.

Detergents (Safeguarding) (Amendment) (EU Exit) Regulations 2019 is item 10.6 on the agenda. Any comments or observations? No. 

10.7. The State Aid (Agriculture and Fisheries) (Amendment) (EU Exit) Regulations 2019. Any comments or observations?

Yes, as the committee noted in respect of some other state-aid regulations, there is disagreement between the Welsh Government and the UK Government as to whether state aid is devolved, and these regulations also raise a question of restricting the Assembly's legislative competence and needing UK Government consent before the Assembly could remove or modify certain functions. And given the significant effect around both competence and the question of whether state aid is devolved or not, the draft report suggests that Members may wish to write to the relevant Westminster committees raising these issues, as it has done previously on some previous state-aid regulations.

14:40

Can I just raise one point on this because I think, when those letters went out, I wasn't on this committee, so it's just to get a bit of clarification? I notice the suggestion is to write to the House of Lords committee endorsing the Welsh Government's argument and to note that these regulations—you know, it's not the first time this has happened. Because there is this disagreement about whether state aid is devolved or not and we haven't had a reply back from the UK Government as to their rationale, which I think is poor—I think we should have that reply—I have no problem at all writing to the House of Lords, but can we just note that there is a difference of opinion, rather than endorsing one side or the other? Would that be all right?

Well, yes, I mean I'm sure we can phrase that in a particular way—

In respect of the other matter we raised on this—of course, you'll see from correspondence from Lord Trefgarne and others that those committees have, in fact, taken up those issues and also our concern that you can't resolve a dispute by simply saying, 'No there isn't one'—[Laughter.]—which creates a difficulty.

No, that's fine. In fairness, I think the House of Lords committees have been really quite helpful on this and, in fact, the Public Administration and Constitutional Affairs Committee as well were on this—that's Bernie Jenkin's committee. 

We're on to, now, I think, item 10.7, the State Aid (Agriculture and Fisheries) (Amendment) (EU Exit) Regulations 2019.

Wasn't that the one we've just done? Yes, we've just done that one.

Have I jumped one or—? Oh, I beg your pardon. I do apologise. Sorry, I lost my track. 10.8, the Environment (Miscellaneous Amendments and Revocations) (EU Exit) Regulations 2019. Comments and observations on that.

Again, the draft report suggests there's a lack of clarity as to which functions are in play here and what impact there might be on the Assembly's legislative competence. The draft report suggests seeking clarification from the Welsh Government around the precise functions here that we are talking about.

Item 10.9, the Food, Drink, Veterinary Medicines And Residues (Amendments Etc.) (Eu Exit) Regulations 2019. Some issues have been identified there.

Yes. I believe Members have a hard copy of the draft report here. The main issue to note is the disagreement again between the Welsh Government and the UK Government, this time as to whether protected food names and the geographical indication scheme for food are devolved or not. The issue has not been resolved, so a memorandum of understanding is being set up to underpin these regulations. It appears there wasn't time to resolve the issue, but, in the meantime, the Welsh Government has said that, by consenting to the UK Government making these regulations in those areas, they are not conceding that these matters are reserved.

Okay. So, that still potentially lies there to be challenged at some stage.

Yes, but that doesn't bring us a definitive answer, though, does it?

So, again, the question is out there—

[Inaudible.]—that we are looking. Because the whole idea of getting a reserved model was that there'd be clarity.

It's because there's no effective disputes mechanism. Possibly the only way we'd reach some form of clarity, I think, is from the Supreme Court on this, should it actually emerge and we choose to legislate in this area that they disagree with.

Yes. This point is important, though, because this is the whole Welsh lamb, Caerphilly cheese stuff, isn't it? Yes.

Well, I think we need to—somebody needs to push about whether these geographical indication schemes are devolved or not, really, or reserved or not. I mean, how can we make that representation, even more forcefully than we're already doing it, is the question.

Well, it highlights a lack of any real clarity and the lack of any disputes mechanism, doesn't it? Are there any further steps we can take?

We could invite the Minister to give evidence on these issues. That's one option.

I mean, the starting point could be that we take it up with the Minister—you know, 'We've been considering calling for oral evidence on this', but I mean, if we get the Minister in to give oral evidence, they're not going to say any more than they can probably tell us in written evidence, are they? So, shall we ask for a written response for clarification on this—that we are looking at that, that we still have concerns over it?

Because it's either reserved or it's not. We're at the point of having two Government's saying—

Yes, so: 'Does the Minister have any view as to how and when this may actually be resolved?' 

If we go to the Minister, we could also go to the Counsel General as well, actually. The Counsel General is the adviser to the Government, so maybe if we go to the Minister and they will no doubt consult with the appropriate legal advice.

14:45

Brilliant. Because he's firming up on where they stood on state aid, so let's have something similar on this. 

Because otherwise Welsh lamb and Caerphilly cheese, or whatever they make in Merthyr—

One of the letters coming with the statement was a bit more illuminating on this one, wasn't it? 

Yes, I just want to suggest that we write to the Secretary of State as well. 

He needs some time off from naming bridges and stuff. What else does he do?

Would it be helpful if we discussed in private session who we can write to—?

Yes, we'll look at this again in private session, just to see if there's anything further we can do to take up this issue. 

Right, which item are we on now? We're now on 10.10, the Market Measures (Miscellaneous Provisions) (Amendment) (EU Exit) Regulations 2019. Any comments or observations? No. 

Item 10.11, the Animal Health, Plant Health, Seeds and Seed Potatoes (Amendment) (EU Exit) Regulations 2019. Anything on that?

The Organic Production and Control (Amendment) (EU Exit) Regulations 2019. Anything on that? 

If not, we move on to 10.13, the Agriculture (Legislative Functions) (EU Exit) (No 2) Regulations 2019. You have some comments on that. 

Yes, again, the same point about the impact this may have on the Assembly's legislative competence, and are there any unintended consequences that will restrict the Assembly's competence in future. Again, the draft report suggests seeking clarification on this point.

Item 10.14, the Common Agricultural Policy (Financing, Management and Monitoring Supplementary Provisions) (Miscellaneous Amendments) (EU Exit) Regulations 2019. There were some errors within the pack.

The main point again is the effect on the Assembly's legislative competence. 

So, we can incorporate these into—together, really, composite, I think, in some way, rather than a whole stack of individual ones. We'll talk about that in private session. 

On to 10.18 now, the common organisation of the markets in—[Interruption.] Sorry? Which one am I on? Have I jumped ahead of one? I beg your pardon, sorry. We've just dealt with 10.13. 

10.14, the common agricultural policy (financing, management and monitoring supplementary regulations—that's the one we've just dealt with. And we're now on—there's an issue on my papers here, I think. Hang on. Just give me a moment. No, it's my papers that are heading off in a different direction.

So, yes, item 10.15, the Agriculture (Legislative Functions) (EU Exit) Regulations 2019. 

Again, there are sufficient questions about the nature of the functions that are in play here to seek further clarification from the Welsh Government. 

Item 10.16, the Environment, Food and Rural Affairs (Amendment) (EU Exit) Regulations 2019.

Again, the same issue about competence over geographical indications of food. 

10.17, Food and Farming (Amendment) (EU Exit) Regulations 2019. 

How many unintended consequences make intended consequences? 

Well, it depends how intended they are. 

We're now on to 10.18, the Common Organisation of the Markets in Agricultural Products (Council Regulations) (Miscellaneous Amendments etc.) (EU Exit) Regulations 2019, and you have a statement, commentary and, again, a letter from the Counsel General. The written statement has an incorrect title. The written statement relates to the Common Organisation of the Markets in Agricultural Products Framework (Miscellaneous Amendments) (EU Exit) Regulations 2019. This issue has been raised with the Welsh Government. Any other comments?

Again, it raises that question of restricting the Assembly's competence. 

Okay. We will do a composite letter of concern over clarification over those aspects. 

The Zoonotic Disease Eradication Control (Amendment) (EU Exit) Regulations 2019. 

Again, the same issue, finally. 

11. Papurau i'w Nodi
11. Papers to Note

Okay. We move on now to item 11, papers to note. There's a letter from the Rt Hon Lord Trefgarne, Chair of the Secondary Legislation Committee, relating to our representations in respect of the state-aid regulations. That's a letter to be noted. A helpful letter. 

Yes, he's taken it on board. Fair play. Credit where it's due. 

14:50

Item 11.2: correspondence relating to the Flood and Water (Amendments) (England and Wales) (EU Exit) Regulations 2019. Again, correspondence to be noted. 

Then on to item 11.3: letter from the Minister for Environment, Energy and Rural Affairs relating to the Fertilisers and Ammonium Nitrate Material (Amendment) (EU Exit) Regulations 2019. Correspondence to be noted. It starts at pack page 371. 

12. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod
12. 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.

Okay, I think that takes us now—. We need to discuss the supplementary legislative consent memorandum on the Trade Bill, the report there. So, on that basis, the fact that we need to discuss that report, we need to move into private session. So, I invite the committee, in accordance with Standing Order 17.42(vi), to resolve to exclude the public from the remainder of the meeting. Do Members agree?

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:51.

Motion agreed.

The public part of the meeting ended at 14:51.

Archwilio Cynulliad Cenedlaethol Cymru