Cynulliad Cenedlaethol Cymru

This is a meeting of the Constitutional and Legislative Affairs Committee. Item 1: the usual housekeeping rules will apply in this meeting. I've had apologies from Dawn Bowden. I'll just go on to the next item, which is any declarations of interest. We have one item.

Okay, so we note that.

Then we move on to paper 1: statutory instruments with clear reports. There's obviously a large number of items that we have to run through today, and I'll refer to Gareth on most of them, because a number of the points are very technical and common. So, I'll get the lawyers to make a comment on those as we go through.

So, we start with item 2.1: the Electricity (Offshore Generating Stations) (Safety Zones) (Application Procedures and Control of Access) (Amendment) (Wales) Regulations 2019. Are there any comments or observations on that? If not, we move on to item 2.2: the Electricity (Offshore Generating Stations) (Fees) (Wales) Regulations 2019. From 1 April 2019, Welsh Ministers will be the appropriate authority in relation to applications under sections 36 and 36A of the Electricity Act 1989, relating to generating stations in Welsh waters that have a capacity not exceeding 350 MW. These regulations provide for the payment of fees in respect of applications for consent. Any comments or observations?

We move on to item 2.3: the Developments of National Significance (Procedure) (Wales) (Amendment) Order 2019. This Order amends the Developments of National Significance (Procedure) Wales Order 2016. Any comments or observations?

Item 2.4, then: the Zoonotic Disease Eradication and Control (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These regulations make minor technical amendments to existing subordinate legislation that relates to the monitoring and control of zoonotic disease and tuberculosis. Any comments or observations?

Item 2.5: the National Health Service (Dental Charges) (Wales) (Amendment) Regulations 2019. These regulations amend the National Health Service (Dental Charges) (Wales) Regulations 2006. Any comments or observations?

Item 2.6: the Sea Fishing (Licences and Notices) (Wales) Regulations 2019. These regulations relate to licences issued in respect of Welsh fishing boats under sections 4 and 4A of the Sea Fish (Conservation) Act 1967, and to notices varying, suspending or revoking such licences. Any comments or observations? No.

Item 2.7: the Partnership Arrangements and Population Assessments (Miscellaneous Amendments) (Wales) Regulations 2019. These draft regulations amend the Partnership (Wales) Regulations 2015 and the Care and Support (Partnership Arrangements for Population Assessments) (Wales) Regulations 2015, in order to take into account health board boundary changes, which will take place from 1 April 2019. Any comments or observations? No.

Item 3: instruments previously considered for sifting and which are now subject to scrutiny under Standing Orders 21.2 and 21.3. The Teachers’ Qualifications (Amendment) (Wales) (EU Exit) Regulations 2019. Any comments or observations? No.

On to item 4, then: instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3. I think there are 27 statutory instruments here, all of which with a mixture of different reporting points, and as I said earlier I'll refer to the lawyers to comment on these as we go through. Just to make the comment—I think a very large number of them have been accepted by Welsh Government and are being dealt with, which is a very positive step forward.

If we start with the Electricity (Offshore Generating Stations) (Inquiries Procedure) (Wales) Regulations 2019. These are regulations that make provision about inquiries caused to be held by the Welsh Ministers in relation to applications for consent under the Electricity Act. Any comments? 

Yes. There are three technical reporting points, starting on pack page 9. The first technical point notes some relatively minor typographical errors and superfluous wording. The Welsh Government accepts there are errors and said it would seek to address via correction slips. The second technical point notes a lack of clarity as to when a notice must be published under the regulations. The Welsh Government response states the wording has been used previously, in particular in the Electricity Act 1989, but the Government accepts the lack of clarity and will make amending regulations to address that lack of clarity as soon as reasonably practicable. And the third technical point raises a question about the use of the defined term 'by local advertisement'. Again, the Welsh Government refers to the use of those words in the Electricity Act, and, again, the Welsh Government says it'll make amending regulations to address that lack of clarity as soon as reasonably practicable.

Okay. Noted?

Yes, noted. 

On 4.2, the Electricity (Offshore Generating Stations) (Variation of Consents) (Wales) Regulations 2019, any comments?

Yes. There is one technical point and one merits point, starting on pack page 53. The technical point raises a question as to the meaning of the word 'national' in the phrase 'published in one or more national newspapers'. Does this mean a Welsh newspaper or a United Kingdom newspaper? The Welsh Government states that the context of the regulations makes it sufficiently clear that 'national' means 'United Kingdom' and doesn't think there's a need to amend the regulations, but the committee may feel that a clear and simple explanation of what 'national newspaper' means would be better than having to work it out from the context.

Well, these are England and Wales regulations, not United Kingdom regulations, so how can Welsh Government make that decision?

The regulations are in relation to Wales only. 

Well, even more so then.

Even more so, yes. 

And the committee may remember it raised the context of the question of 'national' in last week's meeting—

National—. Yes.

And I believe the committee has written—

We've already written on this particular point in terms of the rather confusing use of—in different circumstances—'national', 'regional' and so on.

Especially as the originals were 'England and Wales'. Sorry, my mistake there.

Yes. Is there anything further you want to do on this, or we just leave it at that? 

No, I think it's an important point.

We should keep banging away. There must be a simple way of sorting it out, really. 

What is a 'UK national newspaper'?

Because—

I can't think of one. There isn't one edition across all of the UK. 

There isn't one because the Scots have their own newspapers, and online. So, such a thing does not exist.

Let's write, then, and ask for clarification, and say the explanation isn't a satisfactory one and there does need to be clarification. And, I suppose, its relevance could be, of course, that it might leave open areas of challenge as to whether something is being properly advertised. 

It's certainly the case that for many years we never used the word 'national' for UK, or, even worse, for England and Wales, actually. Even worse: there are two nations there. It's UK-wide or across Wales. Just make it absolutely clear. 

Well, it started appearing in a number of statutory instruments, and we've raised—. Of course, we have outstanding correspondence on these already. So, we'll deal with that, then. 

Otherwise, we'll be welcoming our regional rugby team to the Senedd here later on, when, clearly, they're the national rugby team. 

To the regional council. 

So, what have we got? Have we got the UK team coming, or the—?

Yes, well, that's it, isn't it?

Okay, point taken.

Item 4.3: the Electricity (Offshore Generating Stations) (Applications for Consent) (Wales) Regulations 2019. These regulations make provision about the grant of consents under section 36 of the Electricity Act 1989 to construct, extend or operate an offshore generating station in respect of which the Welsh Ministers are the appropriate authority. Any points?

One technical point and one merits, starting on pack page 77. They raise the two same issues that came up on the previous item, and the Welsh Government response, which was received since the papers were prepared for Members—you should have a hard copy—sets out the same response. 

Okay. The next item is item 4.4: the Developments of National Significance (Wales) (Amendment) Regulations 2019. These regulations amend the developments of the national significance regulations in relation to the determination of applications for planning permission for the installation of overhead electric lines. Were there some points there?

There's one technical point, starting on pack page 98. The reporting point queries the translation of 'as if' to 'fel a ganlyn', noting that translating 'as if' to 'fel petai' might be clearer. The Welsh Government does not accept the point and states that 'fel a ganlyn' works in this context. And while that may well be true, the committee may still feel that 'fel petai' represents the everyday use of the Welsh language, and the committee, of course, has heard evidence on the Legislation (Wales) Bill about the importance of using clear and simple language in legislation.

Yes, I would agree with that point because 'fel a ganlyn' is 'as follows' rather than—

As follows. Well, we all hear that in the election count.

Yes.

So, what are your wishes in respect of this, that—?

They stick to the 'fel petai'.

Surely developments of regional significance as well, just to be consistent.

Item 4.5, the Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2019. The Town and Country Planning (General Permitted Development) Order 1995 as amended allows some minor developments to be undertaken without the need to submit a planning application. This is known as permitted development and this Order further amends this. Some points there as well.

Yes, there are two technical points, starting on pack page 144. The first point notes an incorrect use of the word 'section' instead of 'paragraph'. The Welsh Government has accepted this and will seek to address the error via a correction slip. The second point questions an internal cross-reference within the Order, and the Welsh Government says it has considered this carefully and that the cross-reference is correct, it was chosen deliberately as it's consistent with how the general permitted development Order 1995 was originally drafted.

Can I just ask a question? Correction slip: can you tell us what that is and why it's not used in some of the other mistakes?

Yes. So, the regulations, as they'll be published online, will be as they are, as they are made, and then the Welsh Government will seek an agreement with the National Archives, who are responsible for legislation.gov.uk, and between them they will come to an agreement as to whether it's appropriate to issue a correction slip. A correction slip should be used for something very minor and very obvious, so it'll be between the Welsh Government and the National Archives, I understand, as to whether this is something so minor and so clear and obvious that it can be dealt with via correction slip.

It's just the digital equivalent of those little slips of paper you used to see—paper things—adding a word or inserting a word, et cetera.

Digital Tipp-Ex.

Yes. Okay, is that noted? Okay, the Local Health Boards (Area Change) (Wales) (Miscellaneous Amendments) Order 2019. This Order is made by the Welsh Ministers under the National Health Service (Wales) Act 2006, and the main effects of it, which come into force on 1 April 2019, are that the principal local government area of Bridgend is transferred from Abertawe Bro Morgannwg University Local Health Board and forms part of the area of Cwm Taf University Local Health Board. Secondly, Abertawe Bro Morgannwg University Local Health Board is renamed Swansea Bay University Local Health Board, and thirdly Cwm Taf University Local Health Board is renamed Cwm Taf Morgannwg University Local Health Board. Comments?

There is one technical point and one merits point, starting on pack page 196. The Order updates various pieces of legislation in order to refer to the new names of community health councils in Wales, reflecting the new health board boundary and name changes. For example, this Order amends Schedule 1 to a set of 2010 regulations that refer to the names of community health councils. However, Schedule 2 to those 2010 regulations also refers to the names of community health councils, but Schedule 2 has not been amended to reflect the new names. We report that as a technical point that needs addressing.

And then there's a general merits point noting that this Order will, from 1 April 2019, give effect to the health board boundary and name changes in Wales. The Government has not yet provided a response.

So, we are awaiting a response on that, and you'll report back. Okay. Any comments on that? No.

If not, then we'll move on to item 4.7, the Sea Fishing (Penalty Notices) (Wales) Order 2019. This Order creates a scheme for the issuing and payment of penalty notices for certain offences relating to sea fishing. Any comments or observations?

Yes. There's one technical point and one merits point, starting on pack page 215. The technical point raises a vires question, because the Order seeks to apply to Welsh fishing boats 'wherever they are', but when you look at the enabling power in section 294 of the Marine and Coastal Access Act 2009, it sets clear geographical limits on the powers of the Welsh Ministers. So, by applying the Order to Welsh fishing boats 'wherever they are', the Order seems to be outside the scope of the enabling power. The Welsh Government response was received earlier this afternoon, so Members should have hard copies available, and the response accepts the points and will make amended legislation as soon as possible.

The merits point notes that the Order does not allow penalties to be paid in cash. There is no explanation for prohibiting the use of legal tender, despite some people still legitimately preferring to rely on cash. The Welsh Government response explains that cash payments make it more onerous to check for fraud. And it also notes that not all Welsh Government officials are able to accept cash payments, though the response does not clarify whether the relevant sea fishing officials can accept cash or not.

Right. Any comments or observations?

Sorry, Chair, can I go back to the previous item about the health board? Because I've just noticed something on the names. Now, all of a sudden, our health boards are local health boards. They haven't been local health boards for—

We're going back to item 4.6.

Yes. They haven't been local health boards for a long time, and it quotes Abertawe Bro Morgannwg University Local Health Board. That wasn't the name of it; I'm sure it wasn't. It was Abertawe Bro Morgannwg University Health Board. So, 'local' has crept in somehow.

That, presumably, must appear on the original Orders.

I thought it did, but we can dig around and find out.

Because—

I suspect it was—I don't know, but I suspect—that that's what the original Orders said, it's just that custom and practice has changed the—

Yes. Because we did have Swansea Local Health Board back in the day, but then—

Yes, but this, of course, is going back to 2006, so I wouldn't be surprised if that's the case, but we can check that.

Yes, if you just check that, because—

And if that's not the case, then we'll re-raise the matter, okay?

Yes. Okay. Thank you.

Okay. So, we go back now to item 4.7. Were there any comments or observations on that? That was the sea fishing penalty notices. No.

No, we've done the fish.

Okay. In which case, 4.8, the Marketing of Seeds and Plant Propagating Material (Amendment) (Wales) (EU Exit) Regulations 2019. This instrument is made under section 2(2) of the European Communities Act 1972. The regulations amend the Seed Marketing Regulations (Wales) 2012 and the Marketing of Fruit Plant and Propagating Material (Wales) Regulations 2017. The provision makes technical changes to ensure that the two sets of regulations being amended will continue to be operable in Wales after the UK leaves the EU. Any comments?

There's one technical point on pack page 237, which notes two relatively minor typographical errors. The Government accepts the point and will seek to address the errors by correction slip for now until they are more formally corrected by amending legislation.

Okay. Well done noting all these things with the pressure of these regulations coming through. Item 4.9: the Trade in Animals and Related Products (Amendment) (Wales) (EU Exit) Regulations 2019. These regulations make amendments to the Bovine Semen (Wales) Regulations 2008 and the Trade in Animals and Related Products (Wales) Regulations 2011. I understand there are a number of technical points identified.

Yes. Two technical points, starting on pack page 271. The first point notes the different approach to the style of drafting of regulation 3(11)(c), in that the English and the Welsh adopt slightly different styles. The English divides regulation 3(11)(c) further into two subparagraphs, while the Welsh divides regulation 3(11)(c) further into three subparagraphs.

The report suggests an alternative way of drafting that would allow regulation 3(11)(c) to be divided further into two subparagraphs in both languages. The Welsh Government response accepts that the alternative approach would work, but it maintains that the approach in the regulations also works and that it doesn't need to be corrected as defective drafting.

The second point notes a difference between the numbering of the Welsh text and the numbering of the English text. However, the Welsh Government response points out that the defect only applies in the version published online by National Archives on legislation.gov.uk. The actual signed version by the Minister is correct, and that's the version that really matters.

With regard to correcting the published version on legislation.gov.uk, the Welsh Government and the National Archives have already agreed as to how the published version can be corrected.

Okay. Comments or observations? Happy with that? In which case, we move on to item 4.10: the Fisheries and Marine Management (Amendment) (Wales) (EU Exit) Regulations 2019. These are regulations that make amendments to subordinate legislation that apply in relation to Wales and the Welsh zone in the fields of fisheries and marine management.

There's one merit point in pack-page 292, simply noting that these regulations were sifted by the committee previously and the committee agreed that the negative resolution procedure was appropriate.

Okay, so that's noted. Item 4.11: the Exotic Diseases in Animals (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. The exotic diseases in animals regulations 2019 are made under the European Union (Withdrawal) Act 2018, and they make amendments to subordinate legislation that applies in relation to Wales in the field of controlled or prevention of exotic diseases in animals. Any comments? 

There are four technical points, starting on pack-page 309. The first identifies an incorrect cross-reference, which the Welsh Government has accepted. The second point questioned whether a reference to vaccination plans approved by the European Commission is correct. And the Welsh Government has helpfully clarified that there are other amendments made by other legislation by the UK Government that affect this area so that, in future, vaccination plans will not be approved by the European Commission. Instead, they will be published by the Secretary of State with the consent of the appropriate Minister, i.e. the Welsh Ministers in Wales. The third point notes that these regulations delete the word 'other' in an Order from 2006, but that Order contains the word 'other' in two places and it's not clear which 'other' is being deleted. The Welsh Government states that it thinks that it's clear from the context which 'other' is being deleted. The fourth point notes that these regulations seek to revoke some legislation that have already been revoked. The Welsh Government's response acknowledges the point and will address it at the next available opportunity.

Okay. Well, other than that, any comments?

No, that's fine.

Can I just ask, because we've had a few now where the Government will amend at the nearest available opportunity: how do we keep an eye on when that nearest available opportunity is? Do they advise us in advance of this happening?

Good question. We did raise this, didn't we? We did discuss this at, I think, the last meeting or the one before—that this was an area we need to actually monitor at some stage, so, in all the areas where the first opportunities have been proposed, what the drift might be within that. And we didn't want it to be one of those things that is so totally open-ended and then just gets forgotten.

We could write and ask for the Government's general policy on that particular issue.

Yes, how they will monitor and how will they ensure et cetera. Okay.

And we are making a note of all these promises to do things as soon as possible and we are monitoring them.

Well, I mean, I think the thing is, if we review in six months' time or 12 months' time, or whatever, and have the list and so on, we can do a check as to which ones have been done and which ones haven't, and consider where we go from there, then. Is that okay?

Yes.

Yes.

Okay.  The Genetically Modified Organisms (Deliberate Release and Transboundary Movement) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. Any comments or observations?

Yes. There are many reporting points on these starting on pack-page 332. I'll go through each fairly briefly; the Welsh Government hasn't responded yet. There's a reporting point about whether these regulations are actually correcting a deficiency in retained EU law, and therefore whether they're within the scope of the powers in the European (Withdrawal) Act 2018. For example, the current law says that consent to market genetically modified organisms is subject to a 10-year maximum period of consent. These regulations appear to remove that cap on the period of consent, so the reporting point questions why would the 10-year cap not work on exit.

There's another similar reporting point that questions whether the new obligations posed by these regulations amount to correcting deficiencies in retained EU law. The new obligations appear to go beyond what is currently required under EU law, so there's a question as to whether these regulations go too far by being outside the scope of the powers in the European Union (Withdrawal) Act 2018.

Another reporting point seeks clarification on the definition of pre-exit approved products, and why it does not include products that would appear to have been validly approved before exit day, albeit under a different procedure to the one used in the regulations.

Another reporting point raised is the question about the content of application forms to be sent to the Welsh Ministers for consent to market GMOs. The draft report notes how important it is to get things like application forms right, so clarity is sought around the things required to be included in application forms, some of which will continue to refer to European Union bodies or elements. Linked to this is a question that arises about the order of some of the provisions in the regulations, in particular the provision that tells the Welsh Ministers to take certain things into account comes after the provision that requires the Welsh Ministers to notify a person about an application, but, of course, in reality, taking matters into account must come before notifying a person about an application, not after.

Another point questions whether there should be a deadline by which the Welsh Ministers must publish certain information, and the policy may well be there is no deadline, but there is a deadline for publishing other categories of information. So, it's worth asking the question: why a deadline to publish some information, but no deadline to publish other information?

Another point notes that these regulations could have taken the opportunity to tidy up the statute book by changing references to the National Assembly for Wales established under the Government of Wales Act 1998 to references to the Welsh Ministers. This has been done recently and there is clearly merit in doing it, for reasons of transparency and clarity of legislation.

There's also a reporting point around references to EU legislation that will form part of retained EU law, and therefore domestic law, on exit. Again, this is a transparency issue. References to other legislation need to be clear so that people can understand exactly what law applies to them.

Another point seeks clarification as to how the legislation all fits together without further amendments being made. It may well be there is other exit-related legislation that makes those further amendments, but there's no clear explanation of that, and as the committee has stressed previously, legislation is more complex than ever, meaning that explanatory memorandums become more and more important.

The final technical point notes some incorrect references in the regulations.

As to merits, one point is included that repeats the need to explain how all this legislation fits together, especially in an area like genetically modified food, which has caused considerable debate around food safety. Finally on these regulations, the use of the word 'follow' in the explanatory memorandum is questioned. The explanatory memorandum says Wales will 'follow' England, Northern Ireland and Scotland as regards the approach to release of GMOs, and the draft report notes that 'follow' may not be the best word to use. While adopting a common approach may well be an acceptable thing to do, and indeed adopting a common approach may well be required under the terms of the inter-governmental agreement between the Welsh Government and the UK Government, adopting a common approach is not quite the same as following. But a Welsh Government response is yet to be received.

There were a number of quite important points there. Could you just mention the first one again, about the 10-year period?

Yes. So, currently under EU law, if you receive the consent to market a GMO, it's subject to a 10-year maximum. These regulations appear to be removing the cap of 10 years, so given that these powers are being used under the EU withdrawal Act, which is confined to correcting deficiencies, the report questions: what was the deficiency that applied to a 10-year cap? Because if there's no deficiency, then how can you correct?

Are these all the items that you've identified? Have some actually been responded to by Welsh Government?

No, no response yet.

So, there's a whole series of items there. There are some quite important ones there. Now, what is the timescale that we've got on this?

These are negative resolution instruments, so they've already been made.

So, all we can do is draw attention to the concerns that we have over these various items.

And they will come into force on exit day.

Okay.

That's funny, Chair, because obviously going way back, and others will remember, there were some quite vehement debates we've had here. I know that's a policy issue, but I think the concerns need to reflect the policy matter as well. I do like the phrase 'infelicitous language', I've got to say. Gareth, that's one of your favourite words, is it?

I didn't put that word in, but I will pass it back.

Yes, I like it. We shouldn't just be blithely following—[Interruption.] There was a cast-iron line on GMOs back in the day, which, to my knowledge hasn't changed. 

Well, 'follow' has all sorts of implications in terms of the exercise of power or how something is implemented. So, we're just waiting for a response on that, and that'll come back to us and we'll be able to report on that at our next meeting.

Any other comments or observations on this? There are quite a number of items there. No. 

Await a response, I think.

Okay. Item 4.13: the Waste (Wales) (Miscellaneous Amendments) (EU Exit) Regulations 2019. These make amendments using power under the European Union (Withdrawal) Act 2018 and the European Communities Act 1972 with regard to the Waste (Wales) Measure 2010, the Landfill Allowances Scheme (Wales) Regulations 2004, the Hazardous Waste (England and Wales) Regulations 2005, and the Recycling, Preparation for Re-use and Composting Targets (Definitions) (Wales) Order 2011. Comments or observations?

There is one merits point on pack-page 362, simply noting that these regulations were sifted by the committee and the committee agreed that the negative resolution procedure was appropriate.

Okay. Any comments or observations? No. 

Item 4.14: the National Health Service (Clinical Negligence Scheme) (Wales) Regulations 2019. The regulations establish the clinical negligence scheme for NHS trusts and local health boards to provide for all qualifying liabilities, from 1 April 2019, in tort and in contract. The indemnity provided under the scheme covers the clinical negligence liabilities of all members as well as those of non-member contractors who provide primary medical services by virtue of an arrangement with a member of the scheme. Comments? 

There is one merits point on pack-page 396. As we've heard, the regulations establish a state-backed indemnity scheme for providers of GP services. The draft report raises one merits point, which notes that, despite the significance of these regulations, no regulatory impact assessment was carried out. Now, the Welsh Government has a regulatory impact assessment code, and the code includes circumstances where there is no requirement to carry out such an assessment, but it's not clear which exemption applies to these regulations. The Welsh Government has not responded yet.

Okay, so awaiting a response on that. Any other comments or observations?

Just one. I'm slightly surprised this one wasn't the subject of a written statement, but that's just an observation. Because it's quite a pertinent thing for constituents to know about. 

Okay. Item 4.15: the Food and Feed Regulated Products (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These regulations make amendments to subordinate legislation applying in Wales in the field of genetically modified food and feed, materials and articles in contact with food and of determining the level of vinyl chloride released by those materials and articles. Comments?

There's one technical point and one merits point, starting on pack-page 423. Before making these regulations, the Welsh Ministers were required to have regard to any relevant advice given by the Food Standards Agency. As there is no reference to that in the regulations and, at the time of preparing the draft report, there was no reference in the explanatory memorandum, the question had to be asked as to whether the Welsh Ministers were allowed to make these regulations. The Welsh Government has responded, saying that it has had regard to Food Standards Agency advice, so the Welsh Ministers can make the regulations. The response was received after today’s papers were prepared, so Members, again, should have hard copies of the Welsh Government's response.

Even though Welsh Ministers have had regard to the advice, we still believe it's good legislative practice to refer, in the preamble to the regulations, to any preconditions that apply before regulations can be made. Therefore, Members may wish to change the reporting point from the technical vires point to a merits point about good legislative practice.

Okay. Noted. We'll do that. Is that agreed?

Yes.

Okay. Item 4.16: the Local Government Finance (Amendment) (Wales) (EU Exit) Regulations 2019. These are regulations made by the Welsh Ministers under the European Union (Withdrawal) Act 2018, and they make minor and consequential amendments to the Central Rating List (Wales) Regulations 2005 and the Council Tax Reduction Schemes (Detection of Fraud and Enforcement) (Wales) Regulations 2013. 

There are two technical points and two merits points, starting on pack page 448. The Welsh Government response was received this morning, so Members should have hard copies available. The first technical point arises because of the number of interacting pieces of legislation that are being made at the moment. The regulations introduce new definitions that are reliant on other legislation coming into force. If that legislation does not come into force, then the definitions in these regulations would not work. The Welsh Government notes the points, and adds that, if certain UK regulations are not made, then these regulations will need to be amended.  

The second technical point notes that a redundant definition of 'EEA state' is not being removed from the statute book. The Welsh Government notes the point, but says that the definition of 'EEA state' will be removed when it's expedient to do so. 

The first merits point simply notes that the regulations were sifted by the committee and it was agreed that the negative resolution procedure was appropriate.

Okay. Any comments or observations? Noted? 

Noted. 

I'm sorry. There's another second merits point, simply noting some minor errors in the explanatory memorandum, and the Welsh Government has said it will withdraw the EM and re-lay a corrected version. 

Item 4.17, the Sea Fish Licensing (Wales) Order 2019. This is an Order that prohibits, subject to exceptions, fishing by Welsh fishing boats and fishing by Crown dependency boats within the Welsh zone unless such boats are licensed by the Welsh Ministers. And it also prohibits fishing by foreign boats within the Welsh zone unless those boats are so licensed. Article 6 of the Order revokes the Sea Fish Licensing Order 1992 and instruments that varied or amended it insofar as they relate to Welsh fishing boats and fishing within the Welsh zone. Thoughts?    

Yes, one merits point, starting on pack page 462, which quotes important extracts from the explanatory memorandum setting out the purposes of this Order. In particular, the Order makes provision for licensing of fishing boats from outside the UK when fishing in Welsh waters. The paragraph at the top of pack page 463 is worth noting. It says:

'The preferred approach is to introduce these powers through the UK Fisheries Bill, so that there
is a consistent approach across the UK.'

The paragraphs then go on to say that, if the fisheries Bill does not gain Royal Assent before exit day, then these regulations would fill the gap so that foreign vessels fishing in Welsh waters can be properly regulated, and regulated in a way that is consistent across the United Kingdom.

Okay. That's noted.

Noted. 

Comments or observations? No. We move on then: item 4.18, the Plant Health (Amendment) (Wales) (EU Exit) Regulations 2019. And these are regulations that make amendments to the Plant Health (Wales) Order 2018 to transpose certain provisions concerning the planting of certain solanaceous species and the control of relevant plant pests. 

The famous Egyptian potato regs are being revoked.

Any comments, Gareth?  

There are several technical points, starting on pack page 476, noting inconsistencies between the Welsh and the English texts, and also noting incorrect cross-references. The Welsh Government response agrees and accepts that some of the errors require correction, but, with regard to some of the more minor errors, the Welsh Government notes them but does not believe they cause sufficient concern to be corrected, which seems to be a fair approach.

Okay. Noted? 

Noted. 

We move to item 4.19, the Regulated Services (Service Providers and Responsible Individuals) (Wales) (Amendment) Regulations 2019. These regulations make a number of amendments to the 2017 regulations dealing with circumstances when a person is exempted from the requirement to register as the provider of a care home service. And regulation 5 amends the 2017 regulations to stipulate that the nursing care provided by a registered nurse does not come within the scope of activity of a domiciliary support service. And regulation 8 adds a requirement to the regulations concerning a service provider’s policy and procedures for children’s savings. Any comments there? 

Yes, there are two merits points, starting on pack page 559. The first notes that the Regulation and Inspection of Social Care (Wales) Act 2016 requires the Welsh Ministers to publish a statement about consultation when making regulations such as these, and the 2016 Act requires a copy of the statement to be laid before the Assembly. At the time of preparing the draft report, no copy had been laid before the Assembly. But, since the draft report was circulated to the Welsh Government last week, a copy has been laid, and the Welsh Government response now notes that the copy has been laid before the Assembly. The Welsh Government response was received, again, before these papers were prepared, so Members should have hard copies of the response.

The second merits point raises a wider question about signing draft regulations. These regulations follow the affirmative resolution procedure—so they are still in draft form—and following the affirmative resolution procedure means they cannot be made, that is, signed, by one of the Welsh Ministers until they have been approved by the Assembly. The draft regulations had the name of the Minister typed in the signature clause. The merits point suggests that draft legislation shouldn't include a typed name, just in case the typed name suggests the draft legislation has actually physically been signed. The Welsh Government response notes that this has happened in the past, and it's not been raised by the committee—fair comment—but it seems that everyone now agrees that, going forward, no name should be typed in the signature clause of draft legislation.

Okay. Noted?

Agreed.

Agreed. Okay. Item 4.20, the Food (Miscellaneous Amendments) (Wales) (EU Exit) (No. 2) Regulations 2019. These draft regulations are made under the European Union (Withdrawal) Act 2018, and they amend nine pieces of subordinate legislation in the field of food and agriculture. There were a number of points and merits points identified, I understand.

Yes. The main merits point to notice is that the explanatory memorandum with these regulations was particularly clear and helpful and detailed. I think it's worth noting how helpful that is to effective and efficient scrutiny by this committee.

Well said.

Okay. Noted. Item 4.21, the Local Authorities Capital Finance and Accounting (Wales) (Amendment) (EU Exit) Regulations 2019. They're regulations that are to be made by the Welsh Ministers under the European Union (Withdrawal) Act 2018 to correct a deficiency arising from the UK's withdrawal from the European Union. Any comments?

There's one technical point and two merits points, starting on pack page 606. The Welsh Government response was received this morning, so Members should have hard copies available. The technical point notes there may be an inconsistency between what the regulations do and what the explanatory memorandum says the regulations do. And, given that the wording in the explanatory memorandum uses clear, plain English, it's worth asking for clarity as to what was intended. The Government response notes the point, and confirms that the regulations are correct and that a revised explanatory memorandum will be laid before the Assembly.

The two merits points raise relatively minor issues that arise in the explanatory memorandum, again, to be addressed by the Government in the revised explanatory memorandum.

Okay. Noted?

Noted.

Item 4.22, the Welsh Tax Acts (Miscellaneous Amendments) (EU Exit) Regulations 2019. These regulations are to be made by the Welsh Ministers under the European Union (Withdrawal) Act 2018 and the Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Act 2017. You've identified a number of points there.

Yes. In particular, there are two technical points, starting on pack page 619. The first notes a slightly unusual way of using the powers given to the Welsh Ministers under the Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Act 2017. In brief, the regulations say that an EU or an EEA co-ownership authorised contractual scheme will no longer receive the same preferential treatment as a UK co-ownership authorised contractual scheme. A co-ownership authorised contractual scheme is, I am reliably informed, a type of tax-transparent fund structure. But, since the 2017 Act gives EU and EEA schemes that same preferential treatment, it seems unlikely the Assembly ever intended the regulation-making powers in the 2017 Act would be used to reverse an important part of the 2017 Act. But the changes are needed as a result of exiting the EU, and that may sound like something that should be done under the European Union (Withdrawal) Act 2018, but this particular kind of change is prohibited by the European Union (Withdrawal) Act 2018. So, the only option available to the Welsh Ministers was to use powers under the 2017 Act. All very complex. The Welsh Government response—again, received after the papers were published—the Government accepts that the current situation is exceptional, but it maintains that using the powers in the 2017 Act in this way is proportionate and necessary.

And there’s a second technical point about the definition of 'collective investment scheme' in section 36(12) of the 2017 Act, which will become redundant as a result of these regulations. The Welsh Government accepts the point and says the definition will be repealed in the next appropriate piece of legislation.

Okay. Any comments? Noted?

Noted.

We move on to the Seed Potatoes (Wales) (Amendment) (EU Exit) Regulations 2019. These regulations make amendments to the Seed Potatoes (Wales) Regulations 2016, which control the production with a view to marketing, the certification and the marketing of seed potatoes in Wales, other than those intended for export outside the European Union. Any comments there?

There are three technical points, starting on pack page 644. All of them raise different drafting issues, in particular around the substitution and insertion of various texts, plus there’s an incorrect cross-reference. The Welsh Government response accepts the points and they’ll be addressed by a combination of amending legislation and correction slips.

Okay. Noted?

Noted.

Item 4.24, the Plant Health (Forestry) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These regulations correct deficiencies in domestic legislation that implements EU Directive 2000/29/EC—that is, the plant health directive—on measures to protect forestry plant health arising in consequence of the UK’s withdrawal from the EU. Comments there?

Yes. There are several technical reporting points, starting on pack page 668. Most importantly, there’s an incorrect reference to the enabling power under the European Union (Withdrawal) Act. The power cites section 8 of the European Union (Withdrawal) Act, which is a power only available to the Secretary of State.

The Welsh Government response was received this morning, so, again, Members should have hard copies available. The Welsh Government accepts there is an incorrect reference to the enabling power and will seek to address this by correction slip, because this should be a clear and obvious error. But I think that it’s something worth keeping an eye on, because citing the correct enabling powers is so important to transparency.

A question also arose about the extent of legislation, in that some of the changes being made by these regulations appear to seek to change things that only apply in relation to England and Scotland. The Welsh Government response notes that some of the changes do actually need to be made in relation to Wales, while others may cause confusion. And the Welsh Government says that it will tidy up any confusing areas by amending legislation.

There are also some cross-references that are unclear and some typing errors. Again, the Welsh Government has accepted those errors.

Okay. Noted?

Noted.

Item 4.25, the Rural Affairs (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These regulations make amendments to subordinate legislation that applies in relation to Wales and relevant to cattle identification for the trade in animals and related products, examination for residues and the maximum residue limits in respect of animals and animal products, transmissible spongiform encephalopathies, seed marketing and plant health. Comments on that?

There are two technical points, starting on pack page 724, and both of these raise what is by now the familiar issue of the sheer complexity and volume of overlapping legislation. These regulations refer to legislation that does not yet exist, but will, according to the Welsh Government, exist in the near future. The Welsh Government response confirms that the legislation will soon be made, so the technical reporting point in the draft report may need to be changed to a merits point.

Okay. Comments? Noted?

Noted.

Item 4.26, the Food (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These are regulations that amend subordinate legislation that applies in relation to Wales in the field of food marketing, labelling, classification and other related measures. The regulations also make provision in exercise of the powers conferred by the European Communities Act 1972 to update references to certain EU instruments in the Reporting of Prices of Milk Products (Wales) Regulations 2011. Comments?

There's one technical point, on pack page 751. I think the main point to take from this is to ensure some consistency about including references to sections like section 59(3) of the Government of Wales Act in the preamble. Section 59(3) gives the Welsh Ministers the choice of the affirmative or the negative procedure. It is sometimes cited and sometimes not cited. So, maybe looking for some consistency going forward would be helpful. The Welsh Government has not responded yet, but perhaps that's because the draft report says no Government response is needed. The Welsh Government may respond in any case. But, if they do not, maybe we can discuss informally and agree an approach going forward for the citation of powers like this.

Okay, noted.

Item 4.27: the Regulation and Inspection of Social Care (Qualifications) (Wales) (Amendment) (EU Exit) Regulations 2019. These regulations make amendments to the Regulation and Inspection of Social Care (Wales) Act 2016, relating to the regulation of social workers and social care managers in Wales. Amendments are also made to the Act relating to exclusions to the scope of regulated advocacy services to amend references to European lawyers and to the Mental Health Act 1983. Technical points?

Yes, there's one technical point, starting on pack page 774. Before making certain kinds of regulations under the European Union (Withdrawal) Act 2018, the Welsh Ministers must consult with the Secretary of State. The draft report notes there is no reference to such consultation and therefore asks whether these regulations are of a kind that required consultation. The Welsh Government response was received just before the meeting started, and it includes a very helpful explanation as to why there was no duty to consult the Secretary of State in respect of these regulations. 

Okay, and you have that before you.

Finally, these regulations were sifted by the committee and the committee recommended an uplift to the affirmative procedure. The Welsh Government accepted their recommendation, which is why these regulations are now subject to the affirmative procedure.

Any comments? Noted. 

Noted.

Okay, that completes that batch. Just a comment to commend the actual detail to which the lawyers and those who have worked on these have been through, because I think it's quite impressive. It's very, very detailed and very good-quality work.

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 European Union. We have the Electricity Works (Environmental Impact Assessment) (England and Wales) (Amendment) (Wales) Regulations 2019. These regulations amend the Electricity Works (Environmental Impact Assessment) Regulations 2017. You've identified a number of issues. 

Yes, the main point to take from all of the items in agenda item 5 is that these form part of retained EU law on exit. 

Okay, so we won't repeat that on each of these, we'll take that as written as we go through them, unless there are any additional comments to be made. 

Item 5.2: the Town and Country Planning (Environmental Impact Assessment) (Wales) (Amendment) Regulations 2019. These regulations substitute the saving and transitional provisions of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and also amend the regulations to add reference to the installation of overhead lines. As such, an environmental impact assessment may need to be undertaken in respect of such developments before planning permission is granted. You've identified a number of issues.

Just the same issue, really. It's all EU related. 

No further issues, okay.

On to item 5.3: the Education (Student Finance) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These are regulations made under the Education (Fees and Awards) Act 1983 and the Teaching and Higher Education Act 1998 and they make technical amendments to numerous regulations relating to student finance. No additional issues. Noted.

The Food Standards and Labelling (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These are regulations that make amendments to subordinate legislation applying in Wales in the field of food composition and labelling. No additional comments on that. 

Item 5.5: the Food and Feed Hygiene and Safety (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These are regulations that make amendments to subordinate legislation applying in Wales in the field of food and feed hygiene and safety. No additional issues? Okay. 

Moving on to item 6 then. Item 6.1, letter from the First Minister: scrutiny of regulations made under the EU (Withdrawal) Act 2018 progress report. So, if we just note that to refer it to private session for discussion.  

Yes.  

Item 6.2, letter from the Chair of the External Affairs and Additional Legislation Committee: scrutiny of regulations progress report, a  letter from the Chair of the External Affairs and Additional Legislation Committee that is basically endorsing this committee's report. Is it noted? 

Noted. 

We can discuss any of these in private session, if necessary. 

6.3—letter from the Counsel General and Brexit Minister to the EAAL committee: Welsh EU exit statutory instruments, the letter from the Counsel General and Brexit Minister of 11 March. Noted?

Yes, noted. 

6.4—letter from the Counsel General and Brexit Minister: Regulation (EC) No 1370/2007 (Public Service Obligations in Transport) (Amendment) (EU Exit) Regulations 2019—the letter from the Counsel General and Brexit Minister 8 March 2019. Noted? 

Noted. 

6.5—letter from the Minister for Health and Social Services regarding a supplementary legislative consent memorandum on the Healthcare (International Arrangements) Bill, a letter from the Minister for Health and Social Services on 11 March 2019. Do we note that? 

Note. 

And there are some further amendments, I understand, due on this. 

I think there were amendments agreed in the House of Lords, I believe, which may well impact on the Assembly's consent. It may be that the Minister will write again with detail. 

Okay, just note that. 

Item 6.6: letter from the Counsel General: Legislation (Wales) Bill—a letter from the Counsel General from 8 March 2019 and annexe. We note it.

Noted. 

Letter from the Llywydd: speakers' conference. This is a letter that relates to the paper that we commissioned, which was supportive of the recommendation from our report about the proposal for a speakers' conference, and it set out in more detail some of the background arguments in support of such a conference. So, I suggest we discuss that in private session. 

The motion under Standing Order 17.42 to resolve to exclude the public from the meeting for the following business—so, in accordance with Standing Order 17.42, I invite the committee to resolve to exclude the public for the remainder of the meeting, the main purpose of which will be to consider the draft report that we've been working on on the Legislation (Wales) Bill. Is that agreed?  

Okay, so we now move into private session.