Cynulliad Cenedlaethol Cymru

Welcome to a meeting of the Legislation, Justice and Constitution Committee. Members will be aware that, following a resolution in Plenary on 29 January this year, the Constitutional and Legislative Affairs Committee became the Legislation, Justice and Constitution Committee. So, our remit has been amended to include matters now relating to justice. The usual housekeeping guidelines apply today. There are no apologies. Are there any declarations of interest? There aren't any declarations of interest. 

We'll move straight on to item 2, which is the Local Government and Elections (Wales) Bill. This is an evidence session. I welcome Julie James, the Minister for Housing and Local Government; Lisa James, deputy director of local government democracy with Welsh Government; Eoghan O'Regan, lawyer with the Welsh Government; and Chris Humphreys, lawyer with the Welsh Government. Thank you for your attendance today and your time. Thank you also for the detailed paper in response to the written questions, which I think is very helpful.

We will have some supplementaries to those in a little while, but if we just go straight into the questions that we do have, the first question I would like to ask about is with regard to just the issue of competence and whether you're confident that all the provisions of the Bill fit within our Assembly competence. Also, perhaps, in addition to that, could you provide an update in relation to the section 109 Order that is needed for sections 18 and 22, and an update with regard to the outstanding issue of Secretary of State consent for section 154 of the Bill? 

Yes, thank you, Chair, we are satisfied the Bill is within the competence of the National Assembly. The Llywydd's statement on introduction of the Bill confirmed that she was also satisfied that the Bill was within competence with, as you've just said, the exception of sections 154, 18 and 22. I'm very happy to confirm the Secretary of State has now given consent in relation to section 154, which removes the power of Welsh Ministers to reintroduce committal to prison of council tax debtors, so that is now in place; and the section 109 Order under the Government of Wales Act 2006 was made by the Privy Council on 17 December, which brings sections 18 and 22 within legislative competence, those are the sections on electoral returning officers and automatic registration.

Thank you for that; it deals comprehensively with the competence issues that we were concerned with. Are there any human rights issues that have come to your attention that you are concerned with, with regard to this legislation?

No. We considered human rights issues all the way through the development of the Bill and we're very happy that the Bill is within the Assembly's legislative competence and is compatible with all convention rights.

Okay. By way of outline, I wonder if you could set out what the purpose of the Bill is and why you consider this legislation is necessary, as opposed to the existing powers that Government has.

Yes. This Bill has been in gestation for around six years. It's been the subject of four major public consultations on local government reform, a consultation on electoral reform, and two consultations on measures to tackle avoidance of non-domestic rates. We've done a series of stakeholder engagements and a draft regulatory impact assessment, which was published back in November 2015—as long ago as that. All the consultations have generally expressed support for the proposals and have been influential in refining the proposed policy option. In addition, local government in Wales has long been asking for a power of general competence, which requires legislative change, and so this Bill does that as well. 

Okay. Thank you for that. One of the areas, of course, we as a committee have been considering, and I know is very important to Welsh Government and of course to the Counsel General, is the issue of consolidation of legislation. This is a very substantial piece of legislation. What is the position with regard to the issue of consolidation? Are there aspects of consolidation that will be considered later on? Will this fit in anywhere within the consolidation programme, or is that too far ahead? Has thought been given to that?

Yes. I think there definitely is a need to improve accessibility of the law on local government. The main piece of legislation is still the Local Government Act 1972—which certainly I studied back in the day when I worked for the London borough of Camden, so it's an old piece of legislation now—we also have the Local Government Act 1989, and then the Local Government Act 2000. They are the three cornerstone pieces of legislation. It's quite difficult to track amendments through those pieces of legislation, and there are myriad amounts of regulations and so on to go with them.

So, I do agree absolutely that consolidation will be the way forward. I think the Counsel General's proposals on classification and communication in the current consultation will also help. Through the classification proposals, we'll be able to locate all the law on local government administration so we can find it more easily, because that's one of the big issues. And we'll improve the information and explanation about the law that's available. And then, longer term, we will be considering where local government should sit inside the Government's consolidation proposals, but it's not proposed to be one of the first two across the starting blocks.

Suzy.

Thank you. Minister, you mentioned earlier that you've been seeking a power of general competence for some time now. Just for the record, would you explain what that means?

So, at the moment, local authorities can only do what a statute tells them they can do, and what this does—it's a bit like the reserved powers model—is it reverses it, so they can do everything that they're not specifically prohibited from doing. So, it literally reverses it. So, rather than seek a power to do what they want to do, all they have to do is check that they're not specifically prohibited from doing something.

That's really helpful, thank you.

Just to come back on the point of consolidation, it would be a mega task, wouldn't it, to try and pull this together? I know there are obviously some mega pieces of consolidation around planning and so on. So, clearly there are pressures there, but the intention would be—. The 1972 Act precedes Kilbrandon and devolution, that's how far back it goes. But in the longer term, the intention would be to bring forward some form of consolidation Bill to try and simplify this whole area.

Yes, I think so. It's just not, I don't think, in the top two or three that the Government wants to look at, but it might well be in the second three, for example.

Time and resources, basically.

Yes, and I suppose the other thing to say about that is that it depends what other pieces of legislation are consolidated first, because the problem with local government, of course, is that it encompasses almost all of them. So, you know that the first one that we're looking at is the planning consolidation, but of course that takes in a local government element, so you'd want to do planning, electoral law and a number of other things first and then look at the rest of local government law, rather than the other way up, because you'd be cutting across.

So, a mega-mega task, really. Dai Lloyd.

Thank you for that. 'Necessary' is a funny word in this context. Certainly, our policy proposal is that we do it, particularly now that the Senedd and Elections (Wales) Act 2020 is an Act. So, the Senedd franchise has already changed to encompass 16 and 17-year-olds. Certainly, we would want to make sure that the franchise was as similar as possible to the Senedd. It will not be identical, but as similar as possible.

In terms of the policy aim, though, I am a proponent of that and have been for many years. I personally think that it's right to enfranchise young people. We are including a comprehensive package of education and awareness raising to go alongside that, and we know that, in a democracy, people who vote in the first election they can vote in continue to vote, so the idea is to get as many people as possible to vote in that first election whilst they're still in formal education, and then to hope that that carries forward into the rest of their life and they continue to vote. All the evidence is that, once people have voted once, they continue to do so.

So, it empowers them. It allows them to have a say over, in this particular Bill, local services. Young people are big consumers of local services, and you'll know that many councils receive quite a lot of stakeholder engagement from young people who feel frustrated that their voice is not heard in terms of the provision of things that young people like to do and see around a town. So, I think it's a major step forward in enhancing local democracy. We have a big problem with making sure that we have citizen engagement in our local authorities, and I think this will also help with the citizen engagement part of that. 

Well, similarly, we're mirroring the Senedd Act. So, I think it's important to keep the franchise as close as we can to it. There are many practices across the world in terms of foreign nationals: from Germany, which allows all people resident in the country for more than three months to vote in any election, to Canada, which doesn't allow any foreign national to vote. So, you can find any example of anything you like across the world. Scotland has done this for their Scottish parliamentary—so, equivalent to our Senedd—and their local elections. When we consulted back in 2017, 73 per cent of our respondents supported the proposal. So, it's relatively popular. On a policy point, I just think it's the right thing to do. If people live and work and pay taxes and so on here, then they should have a say in their local services.

Just on that, Dai, Suzy wants to come in. 

Yes, just a quick one, Minister. You mentioned in both cases on Dai's questions that this Bill isn't the same as the Senedd and elections Bill. Can you just give us a sort of headline overview of where the differences will be, and particularly in terms of foreign resident voters?

So, there's no difference for 16 and 17-year-olds or foreign residents, the difference is that we are planning to enfranchise some categories of prisoner, which has not been done in the Senedd and elections Bill.

I understand the difference with that, okay.

So, for these provisions, they're identical. I was just making the point that the franchise itself will not be completely identical. 

Okay. So, there's no more detail in there. So, for example, with foreign residents, there's no time limits. It will be the same sort of thing. 

No, it's exactly the same. 

Okay. Thanks. 

Back to you, Dai. 

So, the whole point of this Bill really is to empower local authorities. So, a very large part of the Bill is around empowering local authorities to do various things. So, it seems to me that it would be entirely incompatible with that to make mandatory provisions for things such as voting in that. The provisions here are the same, they mirror the Senedd. If we want to change the way we're elected here, we have a two-thirds majority; it's the same for the councils. I don't think there's any magic in having the same system throughout. If you're voting in the Ceredigion local election, you won't be affected by how the people in Swansea are voting in their local election because you won't be voting in it. So, it's not any more confusing. Each person will still be only voting in their local authority area. So, I don't really follow the complexity point. We want the local people, via their local councillors, in a representative democracy, to make that decision for themselves. 

The other thing is that, if I wanted to make it mandatory, which I emphasise I do not—I do not think that's the right thing to do—but if we did want to do that, then you're talking about a wholesale system change off the back of a Bill that's introducing quite a lot of changes already. Actually, I don't think that would be very sensible either. So, I'm very happy that it empowers local authorities to take control of their own voting system, and if it's right for their area, they're empowered to do that.  And we'd obviously support them in doing that if they wanted to make that change. Once they've done it, they have to keep it for two electoral cycles so they can bed in. So, you can't chop and change either, but then you'd have to go through the two-thirds majority system again to take it away again. 

Just on that, you're satisfied that the provisions that exist within the relevant section would prevent any abuse. That is, changing electoral systems to suit what might be seen as a particular advantage at any particular time. You're satisfied it's proofed against that happening.

So, it's a two-thirds majority. So, in most cases, not all, that would mean more than one party. So, it's a two-thirds majority. And, once it's done, you have to keep it for two full electoral cycles. So, you can't just randomly change it back again. 

And, for the record, in terms of just outlining the timescale within which this can be done, this has to be done well in advance of any election. So, it can't be done with an eye on last-minute change. 

No, there are a number of things that you have—. If you want to change to an STV system, for example, you would have to make sure that your boundary review had been conducted so that you changed to all multi-member wards, just as one example. So, some authorities would have more work to do than others. So, in Wales, we have two authorities that have all multi-member wards, I think I'm right in saying—

It is two.

It is two, isn't it? Merthyr and Anglesey. Everybody else would have to conduct some kind of boundary review in order to do it, because, obviously, you can't do STV if you have single-member wards, just as one example. So, you'd have to conduct the boundary review first. So, you'd have to back up far enough to be able to do that. So, it takes quite a bit of planning to do it, unless you happen to be one of the authorities that are already there. And many authorities will be—. It's a huge, complex picture across Wales. Some authorities have lots of single-member wards, and other authorities only have one or two. So, you'd have to look at your individual circumstances, which is why we're happy that each individual local authority should be able to make that decision for itself. 

Just to say, as well, sorry—. There's also a deadline in the provisions that says—

Oh, yes, of course; I should have mentioned that.

—that any resolution by the council has to be passed by 15 November of the year that is three years before the year of the ordinary election. So, it's quite some time before the ordinary election. 

So, it can't be politically gamed, if that's the question. You have to back up so far that it seems impossible to do that. 

Okay. Thank you for that. Suzy Davies.

Thank you. Minister, this is a massive Bill, and, at this stage, I've got two problems with it: one to do with parliamentary procedure and process, and one to do with powers. And if I can start with the first of those, you mentioned earlier that this Bill has been in gestation for six years, and yet we're still having really significant additions being brought in at Stage 2, on prisoner voting and something on the executive governance element of things. Why has this not been dealt with by Stage 1, after six years?

So, those two are very different, so let me address the two of them separately. So, the prisoner voting is specifically this timing because of what the Llywydd did in asking for a committee to look at prisoner voting in terms of the Senedd and elections Bill. And the timing of that meant that that report came out too late for us to be able to introduce it in Stage 1, and I gave an undertaking to that committee to take their findings and the scrutiny of the provisions that they were undertaking into account in framing this. So—

Okay. Can I press you on that before you move on to the second? Six years. Why hadn't you done that work previously? Sorry, your predecessor, to be fair. 

Well, I don't know the answer to that. But, in terms of my own volition in this, we were working on that, and the Llywydd asked the committee to look at it, and I wanted the committee to be able to do its work without us cutting across it. So, I gave that undertaking—

No, and I appreciate that. My question—

If I might just interject, because I know it came before this committee. The issue was, I think, that a human rights challenge had arisen in respect of the entitlement to vote, not making it obligatory, but meaning there had to be a process to consider the issue of voting. I think that is the stage you're referring to in terms of the committee that led to us. So, I suppose, the point is whether you're satisfied in terms of being as expedient as possible in terms of time once that process had been under way.

Yes. So, there were three things that happened, actually, I'm just reminded. First of all, elections weren't devolved to us until April 2018, so we wouldn't have been able to do it before that. Secondly, there was the European court decision that found the UK Government in breach, so each Government has to look to see how it resolves that issue. We're not entirely satisfied that what the UK level did does actually solve that, although we won't know until it's tested in the courts, and that may or may not happen. And the third one was that the Llywydd asked the committee to do it. So, there were a series of things. What I would say, because I take the point about the scrutiny, is that the committee then undertook a very serious scrutiny of the provision. So, although it's new in being introduced to this Act, it's not unscrutinised. And we have followed the committee's recommendations in introducing it. 

Okay. So, you're fully confident that they've been sufficiently tested to be incorporated into the Bill.

Yes. The committee took a lot of evidence, and we appeared in front of the committee, and we've taken the committee's recommendations on board in framing what we're proposing by way of amendments on that. And the other issue that you mentioned, I've totally forgotten.

I'm sorry. It's on changing the executive governance within—[Inaudible.]

Oh, yes. Okay. So, that's effectively correcting a timescale problem that's always existed. So, all we're doing is we're consulting on whether to move the date of the petition for an elected mayor so that it coincides with the ordinary election of that council rather than following a few months later, which is a nonsense—it's a mistake, effectively. What I would say is, if we have any serious opposition to that, we won't do it. If it's not considered to be correcting a mistake in other words, we wouldn't do it. It's not intended to be a policy difference, it's just a—

It's the dreaded 'T word'—a technical issue.

Yes, it's correcting—. Nobody's done it in Wales, but it's correcting what would actually be a nonsense in terms of the way it works, because you'd have an ordinary election of the council and then you'd have a mayor coming in a few months later, which would completely disrupt the previous election. It doesn't work. Having said that, if there are any policy objections to it, we simply won't do it.

Sorry.

No, carry on. But I'll come back.

I just want to ask specifically on that, because there are two things that emerge from that. The first thing is that it obviously raises a competence issue. That is, if we are legislating in an area that covers electoral arrangements and so on, then presumably there has been a legal obligation from that European court decision to actually consider the issue of prisoner voting. So, that's the first stage. So, I suppose the two parts of my question are this: firstly, you're satisfied that in terms of that process that that satisfies the human rights elements to this legislation; and the second part, I suppose, is really the policy matter, isn't it, which is not really a matter for this committee in that sense, but just that you're satisfied that what we've done is within competence and that we have given that proper consideration.

And I suppose that one further final point that comes on to that, of course, is there's a difference between being able to consider that and not being able to actually scrutinise at Stage 1 the precise legislation. I suppose the area that we would have most concern with is that it's very well coming forward with a policy outcome, but there's obviously an issue that we have in terms of being able to scrutinise what is a significant change to the electoral system.

So, addressing those in reverse order, we've shared the amendments already with the Equality, Local Government and Communities Committee, and I think with your committee. If we haven't, I'll put that right. But I think we have shared them. So, we're doing it as early as possible—we're not waiting for the Stage 2.

The second one, on the case law, we are changing this for local authorities. They aren't legislatures within the meaning of the Human Rights Act 1998, so, actually, it doesn't apply. It was the Senedd Bill that we were worried about in terms of the competence, and my understanding is that doesn't arise for this Bill. The committee took a lot of evidence and I gave an undertaking to the committee in giving evidence to it that we would look at that and rely on it in bringing forward our amendments, and we've done exactly that. I'm sure the committee will scrutinise it after Stage 2, but a very large part of what would have been done at Stage 1 would have been identical to what they were doing because we followed their proposals almost exactly.

Can I ask on that?

I don't know why I'm saying 'almost'. Scrap the 'almost'—we followed them exactly.

Is this the first time, do you know, where the Government has relied entirely on a piece of Assembly committee work to do its scrutiny on its behalf?

I honestly don't know the answer to that. I don't think so, but I don't know.

Okay. I was just curious. The second part of my question was about powers, if I could just come in on these.

Yes, of course.

I'll just pick some random ones, because there's quite a long list. Again, I mentioned this was quite a big Bill. The powers in connection—. Sorry, I'm going to have to pick these up myself here. About council mergers basically. Some of the procedures there don't seem to involve the Assembly at all, and yet these are quite big policy changes, I would imagine. Have you got a view on—? I don't know what your new amendments look like—will there be amendments coming through on potential changes in powers and procedures on secondary legislation?

So, my understanding of what we're proposing, and I'll defer to some of the lawyers I've got surrounding me if I go wrong, but my understanding is—

Shall I give you some sections? Will that help your officials?

I think we've got these.

Okay. Well, sections 122 onwards, basically. That area.

First of all, we're consulting on all of the guidance and the regulations that go with this Bill simultaneously with the Welsh Local Government Association. They're all being co-produced. So, we're not doing anything that isn't done with the local authorities themselves in partnership. They're very much part of the drafting team that's pulling that together. So, we're co-producing it.

Secondly, as I understand it, all of the powers that exist in there are powers that currently don't have Assembly processes attached to them, so we're not—

We don't like that answer, though, Minister—we sometimes think there should be procedures attached to them. We'd like the opportunity to scrutinise them.

We're following what exists already.

One at a time, please.

Thirdly, I would not expect us ever to be using such draconian powers, because the whole purpose of this Bill is to re-empower local authorities. So, the whole point of this is to get local authorities into a position where they are self-improving, and that there are interventions much earlier in the process that would never arrive at that, although we're keeping it in, because you must have a failsafe in case absolutely everything goes wrong. I think the whole system will have failed if you actually end up at that point, because we're putting a sliding scale of interventions and self-improvements in place to make sure that every local authority in Wales is a self-improving organisation constantly under peer review. Other than some massive thing that we haven't yet envisaged going very seriously wrong and everybody absolutely point-blank refusing to do anything about it, you would not expect those provisions to be in use.

The whole Bill is aimed at putting the power back into the local authority in order to get it to do the right thing for its citizens, so that would be a big problem. If we did get there, it would be after a very long build-up, so a number of statements would have been made on the floor of the Assembly about improvement teams and so on. You'll know that we have two authorities at the moment that have various improvement and support arrangements in place. I make regular oral and written statements to the Assembly about all of those, so you'd expect a similar kind of process to be carrying on.

That's really helpful. You acknowledged the co-production—

Can I please—? Sorry, are you following on the same point?

Yes, it's exactly the same point. It was, essentially, to ask whether some of this will be produced in draft before we get to Stage 3, so we get an idea—

Yes. The short answer to that is 'yes'.

Yes, lovely, thank you. Thank you, Chair.

Okay. Carwyn, you wanted to come in here.

Just to clarify really: in terms of section 122 onwards, my reading was that where action is to be taken by a Minister to involuntarily merge local councils, that is subject to the affirmative procedure at the very least. So, that, I suppose, draconian step is something that does have the Assembly needing to provide its permission, whereas everything else, it seems to me—the other sections seem to refer to administrative tasks that would have to be completed. For example, a failure to deal with staff properly in terms of part of a merger, that's a ministerial responsibility in my mind and it shouldn't be something the Assembly does. But, would it be fair to say that the way it would operate is, let us say, if there was to be a compulsory merger of local authorities, the decision on the merger itself would be subject to the affirmative procedure, and everything that led from that would then be a matter for Ministers to deal with?

Yes, absolutely right. There are two processes, in fact—thank you very much, Carwyn, for that. There are two processes for merger in the Bill. One is as a result of service failure, which you've just outlined. The other is two authorities that are behaving perfectly well, coming together voluntarily to say that they'll merge, and that's a separate set of arrangements, as you'd expect, because that's not subject to service failure and all the rest of it. So, there are two very separate systems.

Suzy, you wanted to come back on that.

There are two very different sets of circumstances arising.

My main point on this one is that, of course, any decisions made on what the guidance will look like, that's not subject to any procedure. So, effectively—. That's why I was relieved to hear about the co-construction point. There's no point in us having guidance set in front of us that we disagree with and then that's applied to councils through any procedure, so—

So, all of the guidance and regulations under this Act are all being co-produced with the WLGA and other stakeholders— 

Which I was relieved about.

—and we are sharing them with the committees as soon as we have drafts capable of being shared for exactly that purpose.

That's great.

The whole of this Bill is constructed on consensus. So, broadly—not absolutely every human being in Wales is absolutely 100 per cent happy with it, but, broadly, there is a consensus around what we're doing. I'm very happy to bring to the committee anything that isn't consensual, if we get there, but, so far, we're constructing it quite happily—co-producing all of the drafts with the WLGA, and we're very happy to share those with the committee as they're available.

Thank you.

At Stages 2 and 3, apart from prisoner voting and executive governance, are there any other areas that are going to be subject to amendments?

Well, there are two things that we're currently looking at. Let me do them separately, because they have complexities in two different ways. Neither of them is new, but they're developments, if you like. So, by the word 'new', what does—? There is nothing absolutely new, just to say that to start off with. But there are two things that are developments.

One is we're looking at removing the remuneration from councillors that are unable to act, so that's not because they're on family leave or on sick leave, that's because they're imprisoned or some other such thing. That's turning out to be a lot more complicated than we thought. We thought that would be quite simple and it's turning out to be anything but. But we're still considering whether we can or can't do something about that.

And the second one is extending the existing job-sharing provisions to other senior roles. So, at the moment, we're proposing that you should be allowed to job share an executive position on the council—on the cabinet, effectively—but we're looking to see whether that could be extended to, for example, the chair of a committee.

Okay, thank you very much.

So, it's a development rather than a brand-new thing. And there are a whole series of technical amendments likely to come up, but they don't produce any new policy that we're currently aware of.

Shall I just mention the care leavers, Minister?

Yes, sorry. Do you want to do that, Lisa?

Yes. So, the Minister's previously mentioned to the Equality, Local Government and Communities Committee that she's considering an amendment around one of the electoral provisions to include care leavers in the duty to promote awareness falling to local authorities, just to make it absolutely clear in that provision.

Okay, thank you for that. If Members are okay, we'll move on now. We did have, very helpfully, a series of very detailed answers to some written questions and I think that's enabled us to have, I think, a very good grasp of some of the points that we wanted to raise.

If I can go on to section 18 of the Bill, which is the regulations to provide for a database of electoral registration information, and it's really just with regard to your comments about the database being compatible with data protection and electoral laws. Of course, this is very welcome, but it's as if there's a suggestion, really, that there hasn't been the time to include information about the database on the face of the Bill, mainly because of time constraints. Is that the main reason?

The simple answer is 'yes', and we haven't actually worked it out yet. So, once we've worked it out, we'll do the regulatory impact assessments for the regulations and then put it in place. So, I think that's where we are at the moment. So, the short answer is, 'Yes-ish'. Lisa's about to correct me. [Laughter.]

We're happy with the short answer. [Laughter.]

Well, I was just going to refer to something the Minister said earlier that there's already a great deal of system change in the electoral world in terms of the extension of the franchise and also the canvass reform changes—I think this committee looked at the regulations recently. So, it's important, I think, that we give the electoral community the opportunity to bed those changes in properly before we consider further change, and, of course, some of those already include system change to existing electoral databases, so those need to be in place before we can move to the next phase.

Okay, that's helpful. Dai Lloyd. 

I've got a question on your—. Like the Chair said: excellent written answers, I've got to say. Just to pursue section 26 a little bit more and election pilot schemes: now, as you note there, this power permits Welsh Ministers by Order to impose a pilot scheme on a local authority at its discretion. So, the obvious question is: how does that power fit with the broader intention, as you've said, of the Bill to allow local authorities to make their own decisions on voting systems completely? And just to expand, potentially, the answer, why also should the Assembly have no role in scrutinising such an Order that, arguably, could be used to override the wishes of elected local authorities—hopefully not—or impose a voting system on an area that may produce a different political result, if introducing STV—just to broaden the argument?

So, the way that we do it at the moment is the local authority itself proposes the pilot scheme and then we go along with it or not. We've been having a conversation with them for quite some time via the electoral administration—I can never remember the name of that committee.

The Wales Electoral Coordination Board. 

I don't know how you remember that, but anyway—

Job well done. [Laughter.]

That's the co-ordinating committee of returning officers and so on that we work with about wanting to run various pilots, particularly in the light of extending the franchise. And, frankly, we might want to do it over a wider area than one single local authority and we might, therefore, have to compel a local authority to comply with the pilot. I mean, that's the short answer. We would very much hope not to be in that position. We very much hope to work with returning officers and electoral registration officers who wanted to run a pilot, and, actually, at the moment, we've got no indication that they wouldn't want to run the pilot. It's a backstop provision, effectively.

It's just to tease out that sort of compulsion on the one hand and then the freedoms that you've been going on about, legitimately, up to now, so it's a balance, presumably.

We would not do it unless we'd had an evaluation by the Electoral Commission that went with it, that said that said that we ought to be running a pilot in a particular area and we'd been unable to persuade the local authority to go along with that, and a whole series of ifs that you'd hope never to get to the other end of, but the Electoral Commission were keen that if they were recommending such a thing, we ought to have the power to do it.

Right. That's fine.

Minister, just on the matter that was raised earlier: I'm informed that we haven't seen the draft amendments, so if those could be forwarded to us, that would be helpful. If we move on, then, to section 67—Carwyn Jones.

Thank you, Chair. Yes, in relation to question 8 that we asked—I suppose it's a technical point, but I'll ask it anyway—it might be argued that the powers contained in section 67(2) are politically sensitive, if I can put it that way. In the answer that you gave, Minister, to the written question—you were asked the question:

'Why is the regulation-making power subject to the negative procedure, rather than the affirmative, given that the content of such regulations could be politically sensitive and affect individual rights?'

I won't read out the entire answer, but the first sentence says:

'I consider negative procedure to be appropriate for these regulations and in line with standard agreed practice.'

On that 'in line with standard agreed practice'—where can we see examples of that practice in the past?

My understanding is that if it's outlined on the face of the Bill, and the regulations are just a detail of that, then the standard practice is that that's a negative procedure. It's only where the procedure is not outlined on the face of the Bill that you require an affirmative, or indeed, a superaffirmative. So, our contention is that it is outlined on the face of the Bill, and therefore it doesn't require any more of a procedure than the negative procedure. That's my understanding of it.

Okay.

Suzy Davies.

I just wanted to ask you about sections 82 to 84. I think we've had a response in your written response about changing one of the procedures from negative to affirmative because of the order of events, if you like.

There's still a question, though, with section 82(1), that regulations can be introduced for any other purpose. You responded by saying that

'The power in section 82(1)(d) is necessary to ensure that joint committee regulations can be amended to respond to any changes that are necessary to ensure that the CJC continues to operate correctly, efficiently and effectively.'

Again, what do you have in mind that could require a necessity for these powers to be invoked? What could go wrong that you'd need these powers for?

So, it's service failure, isn't it? So, effectively, what we're saying is that the joint committee carries out the function on behalf of its constituent local authorities. It can employ its own staff and so on, because it's a legal entity, and presumably, it itself has some kind of performance issue with that, that the constituent authorities are not, for whatever reason, sorting out. So, it's a series—it's another set of the series of things that could happen, and so what we're saying is that we would be able to say that the constituent authorities would no longer be able to delegate their function to that committee—or actually the other way round, would have to delegate the function to that committee, in circumstances of service failure, where none of the peer reviews or service improvement measures had been effective enough to deliver the services that the citizens of that area would be entitled to expect, effectively.

Okay, so it's not a question of collaboration not being understood. Because you mentioned earlier you'd been doing a lot of work with the WLGA on this. It's wide for a purpose?

Yes. So, it's to envisage any circumstances in which, for whatever reason now unforeseen, the committee can't continue to function correctly, so I was outlining a service failure there, but it could be that a piece of legislation changes at UK level, and that committee is carrying out both non-devolved and devolved public duties—for example, trading standards, for the sake of one that just pops into my head—and that we need to make changes to it in order for it to continue to do that, that would otherwise require—

That's good.

—primary legislation, for example.

That's a good answer.

Absolutely. I think it's worth adding to that that if you have a look at 82(1)(a) to (c), they're about the modification, the removal and the adding of functions to that corporate joint committee. What we envisage also using (d) for is, for example, if there is a need to respond to a change of constitutional arrangements or voting rights or, simply, errors in existing legislation or application of future legislation, or legislation that has been missed in application to those CJCs, we have a mechanism to be able to respond to that and deal with it. I think it's important to realise that that, for any other purpose, is separate from the modification, the removal and the conferring of further functions to be transferred to those committees.

Because it's those other purposes, if you like, which are undefinable, that are the things we'd want to see through affirmative procedure, anyway, so that's great.

Indeed, yes.

Just regarding section 86—and thank you for your answer on that one—I don't think we were trying to say that we wanted masses and masses of detail on the face of the Bill, but just to give us some sort of flavour of the types of stipulations that you'll be including in any guidance. Just a flavour, really.

So, for example, if the committee is carrying out the strategic regional planning function for its constituent local authorities, then you might want to issue specific planning guidance around a particular thing that was happening that is now being conducted by the CJC rather than the constituent authority. So, you'd want to issue the guidance specifically to the CJC with regard to the operation of a particular piece of regional planning, for example. That's just one off the top of my head, or training standards, prosecution, or—there are lots of things. So, each CJC will have a different set of functions, depending on what its constituent authorities decide to delegate to it, and they may look completely different. So, you might well end up making guidance or regulations for the one in the south-east—they can call them whatever they like as well, so the south-east one, for the sake of argument—that will only apply to it and not to any of the others.

So, would you be concerned about using wording on the face of the Bill, then, to try and restrict or at least shape a limited sphere in which that's to operate? You want it to be as broad as possible.

Yes. That's kind of the point, yes. So, for example, they'll have a power of general competence, these corporate joint committees, so you might want to issue specific guidance about what that particular corporate joint committee is or isn't doing with its power of general competence. That wouldn't affect anybody else in Wales because they didn't have the same set of things delegated to it.

So, it could be used to limit, but you don't particularly want to describe it in that way on the face of the Bill.

No, but it might be used to expand it as well.

Well, yes, that's what we'd want to see, the affirmative procedure.

Yes, so I much prefer to think of it as expanding it, but in trying to think of hypothetical situations—. All the regional transport arrangements will be done through the CJC, for example, so there's a good one. So, you might want to enable it to carry out various trunk road agency-type things that otherwise it wouldn't be able to do because the Welsh Government would be delegating something to it, by way of example.

Okay. That's really helpful. Thank you.

We'll move on, then. I'd just like to ask a question about section 109, and it wouldn't be a meeting of this committee if we didn't ask you in relation to 109. This is the section that deals with the power of Welsh Ministers to amend, enact and to confer new powers on councils et cetera. It extends to any power that the Welsh Ministers consider necessary or expedient to permit. We normally have difficulties with 'necessary' in its own right; here we have problems with 'expedient' in its own right. Here we have 'necessary or expedient'. I'm just looking for clarification as to precisely what that phrase means and what the intention is there.

I think the letter sets it out—I don't know what I can add to it. Basically, it replicates the provisions in section 31 of the 2009 Measure, which we have never used, but we still think we might—that's the answer to that. So, I think it's meant to stop it being a narrow provision, that's the truth. So, in trying to think of—we've all been racking our brains for things that we think are innovative and new that the new arrangements might put in place, and we wouldn't want to be limited in allowing them to do that because we've narrowly worded the section—that's the short answer, I think.

I suppose it's a marginal improvement on 'appropriate'.

I'm sure there'll be lots of case law on the meaning of the word 'expedient'.

Well, unless anyone wants to pursue that, I was going to ask some points on section 122—you've answered those already, so we move on to Carwyn Jones.

Well, I'll leave the point I was going to make about the use of the word 'expedient' as I've made it before in committee, but let's move on.

The questions that you were asked—questions 18, 19, 21, 23, 24 and 32—they're all in relation to the explanatory memorandum. In the explanatory memorandum, there are specific restrictions that are listed there that I suspect are there as examples, rather than providing a definitive list. I was going to ask: is that the case? But, clearly—I think that is the case.

But I suppose the second point is this: is there a risk in including even a non-definitive list of examples in an explanatory memorandum when, of course, as a matter of interpretation, a court might look at the explanatory memorandum in order to help it to define and to interpret other parts of the Bill? Is there a risk there for Government? Is there a need to put examples on the face of the—

I think what we should have is a lot more judicious use of the inter alia provisions all the way down of the face of it. I'm going to ask my lawyers, Carwyn, if they want to add to that.

We accept that those examples are there simply as examples—they're not meant as restrictions; they're not meant as a definitive list. In the case of local government reorganisation, the amount of tasks that will be needed to carry out those reorganisations, whether they're voluntary or on a restructured basis, would be extensive. I think, on that basis, it would be unlikely that any court would consider that the limited exceptions and restrictions or examples that we set out on the face of the explanatory notes were meant to be exhaustive, simply because of the sheer volume and breadth of the things that would be necessary.

Is there a need for any examples at all, then?

We can certainly consider that, I think, going forward.

I think the problem with a lack of examples is the conversation that we're just having. Because it's such a new thing, if you don't give any illustrative examples of it, there is a danger of everybody having a completely separate idea of it. We had some discussion about whether they are or are not helpful, and, if the committee has a view on that, I'd be very happy to have a look at it. I can see the argument both ways, is the truth.

Well, it's on the record now that it's non-definitive, which is what we all thought, and, Minister, you've confirmed that, so that's clearly helpful as far as any interpretation might be concerned. I just wonder whether there is a need at all, or is an explanatory memorandum the right vehicle, to illustrate examples or could that be done in a different way? I simply ask the question, because, although I accept it's a slim chance, I wouldn't want any court to say that, effectively, discretion had been fettered in some way because of the appearance of the examples in the EM.

Well, it's certainly not the intention to fetter—

Yes, I know it's not the intention. I think that's clear.

It's something we did discuss, whether having examples of it is or isn't helpful, or—. Does it widen people's ideas or does it narrow them down? I'm quite ambivalent about it, as you can see, and, if the committee has a view, then we're more than happy to look at it.

Okay. Dai Lloyd.

A final question on Schedule 4 and your answer to question 30. Now, as regards the powers in Schedule 4, you accept that those powers are Henry VIII powers. Again, this committee can wax lyrical about the Tudor golden age of Henry VIII, but we're not going to go into that either at this moment. So, you accept that those powers are Henry VIII powers, but you say that they are, quote,

'very narrow powers for a discrete and specific topic impacting a narrow category of bodies'

like the national park authorities and the fire and rescue. However, that suggests that it would make sense for them to be placed on the face of the Bill. Why not?

Well, because they're very narrow and specific for those particular authorities, and so—. This is a general Bill about the workings of elections, local authorities, and then you'd have to have a very specific provision about two very specific combined authorities. So, it didn't seem like it would fit in the drafting of the Bill in any easy or happy way. And they are very specific, narrow provisions, that—.

No, fair enough. That's accepted. Okay, thank you.

Minister, that brings us to the end of, I think, the areas that we wanted to cover. Obviously, we'd like to see the draft amendments. I don't know if there are any final comments that you wanted to make.

Just to say that the overwhelming aim of this Bill is to re-empower local authorities. We've worked very hard to work in tandem with them, and I'm very pleased about the way that we're co-producing the guidance and the regulations that go alongside this Act. We're very happy to work with the committee in that spirit as well. So, if the committee does have any specific amendments and so on that you think would improve the Bill, we're very happy to look at them.

Thank you for that. Thank you for your time, for the written answers, and thank you to your officials as well. There will be, obviously a transcript that will come through in the usual way in due course. Thank you very much for your attendance.

Okay. We now move on to item 3, instruments that raise issues to be reported under Standing Orders 21.2 and 21.3.

Forgive me, Chair, I have to go somewhere else.

That's okay.

Sorry, Chair.

We're on to the Education (Amendments Relating to the Intervals for Inspection of Education and Training) (Wales) Regulations 2020, and we have before us a report, the regulations and the explanatory memorandum. Now, currently, a number of education-related inspection regulations require Her Majesty’s Chief Inspector of Education and Training in Wales to carry out an inspection at least once within the seven-year period beginning on 1 September 2016 and ending on 31 August 2023, and at least once within every subsequent six-year inspection period. This instrument amends the first inspection period in the inspection regulations so that it will end on 31 August 2024 instead of 31 August 2023. And all subsequent inspections will continue to be a once-in-every-six-years inspection period. 

I understand that one merits point has been identified. 

Yes, we just note the extension of the initial inspection period and, just to add, the explanatory memorandum says this is to allow schools time to focus on and embed the changes they need to make in line with recent curriculum reform and changes to inspection arrangements. 

Okay. Thank you for that. Any observations, comments? Okay, we note that, then. 

So, we move on to item 4, subordinate legislation raising issues to be reported to the Assembly under Standing Order 21.7. We have the code of practice for the welfare of meat chickens and meat breeding chickens. We have a report and code of practice. This is a matter that has come before us on several occasions. We've identified—. It's certainly fallen foul of our scrutiny, if I might say. [Laughter.] Just over to the—. Any comments?

Again, only to note this is the third time this code has been laid. 

Okay. So, we move on to item 5.2, then, which is a letter from the First Minister on the EU exit statutory instrument programme, which—. I think we're invited to note the letter from the First Minister, which gives us an update on the EU exit statutory instrument programme now that the European Union (Withdrawal Agreement) Act 2020 has become law. We have seen this letter, I think, previously at the end of the last meeting. Any comments or observations? 

If not, in accordance with Standing Order 17.42—. Sorry, have I missed an item? Just a moment—apologies, have I missed an item? Ah, a letter from the Llywydd on withdrawal of statutory instruments. That's item 5.1. Again, another letter to be noted. Is that noted? 

And so then, in accordance with Standing Order 17.42(vi), if there are no other items I've missed, I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree? Okay. So, we move into private session.