Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee

18/05/2020

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Carwyn Jones AS
Dai Lloyd AS
Mick Antoniw AS Cadeirydd y Pwyllgor
Committee Chair
Suzy Davies AS

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Craig Griffiths Cynghorydd Cyfreithiol
Legal Adviser
Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Rachael Davies Dirprwy Glerc
Deputy Clerk
Sarah Sargent Ail Glerc
Second Clerk

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Cyfarfu'r pwyllgor drwy gynhadledd fideo.

Dechreuodd y cyfarfod am 10:00.

The committee met by video-conference.

The meeting began at 10:00.

1. Cyflwyniadau, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introduction, apologies, substitutions and declarations of interest

Welcome, Members, to this virtual meeting of the Legislation, Justice and Constitution Committee. In accordance with Standing Order 34.19, I've determined that the public are excluded from the committee's meeting in order to protect public health. In accordance with Standing Order 34.21, notice of this decision was included in the agenda of this meeting published last Thursday. This meeting is, however, being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual.

Aside from the procedural adaptation relating to conducting proceedings remotely, all other Standing Order requirements for committees remain in place. No apologies have been received; none are necessary, we have a full committee today. In general housekeeping arrangements, can Members ensure that all mobile devices are switched to silent? Senedd Cymru, the Welsh Parliament, operates through both the media of the Welsh and English languages. Interpretation is available during this morning's meeting. Members are reminded that the sound operator is controlling the microphones and, as such, there's no need to mute and unmute during the course of the meeting. Are there any declarations of interest? Suzy Davies.

Just my usual declaration when we're dealing with agricultural regulations that my husband has a farm that operates under the common agricultural policy at the moment.

2. Offerynnau sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3
2. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3

So, we can move straight on with the agenda on to item 2. We're on to the Local Government (Coronavirus) (Postponement of Elections) (Wales) Regulations 2020. And, again, these are important regulations that impact on the operation of our council-related democratic processes during the pandemic by postponing council by-elections that were or are to be held between certain dates in county council and community council elections. I mention this specifically because any regulation suspending part of our democratic process does need the special attention of this committee. I understand there are a number of technical and merit points that have been identified—if I go over to the lawyers to report on these.

There is one technical point and three merit points, starting on pack-page 1. These regulations, as you say, postpone local government by-elections that would normally take place between 16 March 2020 and 31 January 2021. Local by-elections ordinarily must be held within a prescribed period, for example within 35 days of the vacancy occurring. The draft report asks what happens if there are 35 days apart from within the period covered by the regulations or partly outside the period covered by the regulations. A Welsh Government response was received after today's papers were circulated, but Members should have electronic copies. The Welsh Government response clarifies that the actual polling date, rather than the 35-day period, is the crucial thing. The polling date cannot fall within the period covered by the regulations.

The first merit point notes a breach of the 21-day rule, and the reasons given by the Welsh Government for that breach. In brief, returning officers have certain statutory duties that could not currently be fulfilled because of the coronavirus pandemic. The Coronavirus Act 2020 protected returning officers against breach of those duties up until 24 April 2020. These regulations protect returning officers from 5 May 2020. So, the regulations came into force sooner than 21 days after they were laid before the Senedd in order to keep as short as possible the gap between protection under the Coronavirus Act 2020 coming to an end and the start of the protection under these regulations.

The second merit point notes there's been no formal consultation, but the views of stakeholders have been sought. This seems to be a theme currently with coronavirus-related regulations. The Welsh Government has not formally consulted, but has sought the views of key stakeholders.

The third merit point notes several errors in the explanatory memorandum to these regulations. The Welsh Government has since laid a revised explanatory memorandum before the Senedd.

Okay, thank you for those comprehensive points, and I'll invite now comments. Suzy Davies. Can someone unmute? That's it. Suzy Davies.

10:05

I was just saying that I'm uncomfortable with these regulations, particularly as they're being introduced through the negative procedure. I understand the need for protection for the people involved in this, and particularly the people involved in the elections themselves, the electoral officers and so forth. But we're talking here about a period that is almost a year from now, and we're already in a situation, certainly in my region, where we have two vacancies that are delayed because of the original postponements of elections. The point that you made earlier, Mick, about democracy is an important one here, particularly as there seems to be no possibility of consulting with the people in wards, as opposed to the Electoral Commission and so forth. I just think this is not the way to introduce this type of legislation, through negative procedure. That's my view on that.

Also, there's something in here that says we're talking about elections that are due, so that kind of suggests elections that have already been postponed, which we know about. Do they actually mean elections for which the need for postponement may arise as well? So, it's not just about elections we know about already, but elections that could arise in the future. That's probably just semantics, a little bit—using the word 'due'. I don't think that helps the overall feeling, particularly as there are so many other mistakes in the explanatory memorandum. 

Dwi'n cytuno efo beth mae Suzy wedi'i ddweud, ond hefyd dwi'n nodi'r camgymeriadau sydd yn yr adroddiad, ac felly dwi'n hapus i redeg efo'r adroddiad. 

I agree with what Suzy has said, but I also note the mistakes in the report, so I think we need to outline those as well. 

I've nothing to add to what's been said already. These are extraordinary times, and this kind of legislation, unfortunately, is needed.

Okay. Did you have any particular proposal or recommendation, Suzy, in terms of these regulations? Or is it just formally for the record?

By all means leave the report as it is, but I'm just going to consider whether these should be called in for debate, bearing in mind the nature of them.

Okay, that's fine. So, we'll leave that there are the moment. Those comments are on the record. I've made the specific point about the fact that these are indeed serious matters. We have had these in a Government response, so there have been a number of clarifications, particularly with some of the technical areas. Unless there are any further comments, we note that those comments have been made, and what happens will happen. Any other comments or observations that anyone wishes to make on these? Okay. My own view—and I understand the logic and the reasoning within which it's occurred—is that these are obviously serious democratic rights issues, and those comments are there on the record at the moment. Okay, thank you for that.

We move, then, on to item 2.2, the Common Agricultural Policy (Payments to Farmers) (Coronavirus) (Wales) Regulations 2020. Again, you have before you the report, regulations, explanatory memorandum, and of course the letter from the Trefnydd of 1 May 2020. These regulations modify the application of retained EU direct payments legislation and domestic legislation to extend the deadlines for submission and amendment of the common agricultural policy single application form for claim year 2020. A number of merit points have been identified. I think one merit point—. I refer over to Gareth, to the lawyer, to report.

There is one merit point on pack-page 15, which notes a breach of the 21-day rule. The Welsh Government says that these regulations interlink with a set of UK-wide regulations, and that waiting for those UK-wide regulations to be made was necessary so that the legislation relating to the common agricultural policy could be interpreted consistently. Once those UK-wide regulations were made, the Welsh Government acted quickly to make sure that this area of law is interpreted consistently, and that speed results in the breach of the 21-day rule.

The merit point also notes that the Welsh Government says there's not been time for meaningful consultation on these regulations due to the urgent timetable. That timetable has been helpfully set out in the letter from Rebecca Evans, the Minister for Finance and Trefnydd, in her letter to the Llywydd on pack-page 29. And as for the UK-wide regulations, they're included in today's papers under agenda item 3.1. 

10:10

Na, yn hapus i redeg efo'r adroddiad. Diolch yn fawr. 

No, content to run with the report. Thank you. 

Okay, thank you for that. We then move on to the next item, which is the Education (Admission Appeals Arrangements) (Wales) (Coronavirus) (Amendment) Regulations 2020. These are regulations that make amendments to the Education (Admission Appeals Arrangements) (Wales) Regulations 2005. These amendments change the procedural and constitutional requirements, or change some of them, in relation to school admission appeals in response to the impact of coronavirus on school admissions arrangements. Basically, I think it allows for appeals to be by a panel of two rather than three and to be held remotely, and also provides for additional flexibilities in the appeals process. If I can go over to you, Gareth, for any comments.

There is one technical point and three merit points. It starts with pack-page 32. The technical point notes that these regulations change the appeals procedure even for appeals that have commenced before the regulations came into force. The draft report does not highlight this as a concern as the changes made by the regulations continue to provide a fair appeals procedure by allowing some procedural flexibility. 

The first merit point notes the breach of the 21-day rule and the reasons given by the Welsh Government for the breach. Given the current requirements around social distancing, the procedural changes need to be in place quickly so that the appeals process can continue to operate effectively. The second merit point notes that because of the need to act quickly, no regulatory impact assessment has been carried out, but that engagement with key stakeholders resulted in positive feedback. The third merit point notes that the regulations expire on 31 January 2021, and the explanation given by the Welsh Government for keeping these changes in force until then, which are intended to provide flexibility to deal with the various peak periods in the appeals process. And in any event, the regulations include a duty on the Welsh Ministers to review the effectiveness of these regulations during the period they're in force.  

Okay, thank you for that. I now invite comments and observations. Suzy Davies. 

I'm once again happy with the report, but note that 31 January is quite a long way away. And bearing in mind that later on in this meeting we're going to be discussing proportionality that's being included in some changes in regulations, I think there's a point to be made there that, without an impact assessment, how do we know that 31 January at this stage is proportionate? And I also comment on the points in the explanatory memorandum provided by the Government about children's rights, that there's no conflict of the United Nations Convention on the Rights of the Child here. I think that conclusion has been reached on the basis that this is allowing appeals to go ahead in a more flexible way, but bearing in mind what I've already said about delay, I perhaps might take issue with 6.4 of the explanatory memorandum provided by Government. 

Na, dim byd ychwanegol i'r adroddiad. 

No, nothing to add to the report. 

Okay, thank you for that. So, we note those particular points, and particularly the points that Suzy Davies has made.

Item 2.4, then—the Regulated Services (Annual Returns) (Wales) (Amendment) (Coronavirus) Regulations 2020. These are regulations that amend the Regulated Services (Annual Returns) (Wales) Regulations 2017. In particular, they amend a requirement placed on registered providers of social care in relation to annual returns and, specifically, the date by which they must be submitted. Now, the regulations are made in response to the COVID-19 public health emergency in Wales. Gareth, a number of points to be raised there. 

10:15

There's just the one merits point on pack page 54, simply noting that there's been no formal consultation, but there has been a short consultation with key stakeholders who have given favourable feedback on postponing the deadline for submitting annual returns to the Welsh Ministers. 

Yes. I think you're fading in and out in certainly my sound. Is everybody else hearing this properly? Can I ask, Gareth, that you just make those comments again, please? I didn't pick them all up.

Yes, of course. There is one merits point on pack page 54, which notes that there's been no formal consultation, but a short consultation with key stakeholders has been carried out and the response from those key stakeholders has been favourable feedback on the need to postpone the deadline for submitting these annual returns to the Welsh Ministers. 

Okay. Thank you for that. I'll just invite comments and observations now on these regulations. Suzy Davies. 

This is only a short delay, so I don't have an issue with this. 

Okay. Thank you for that. We move on the draft affirmative resolution instruments: The Regulated Services (Service Providers and Responsible Individuals) (Wales) (Amendment) (Coronavirus) Regulations 2020. Again, you have before you the report, the regulations and the explanatory memorandum. Now, these start at pack page 65, but the regulations are made under powers given to Welsh Ministers by the Regulation and Inspection of Social Care (Wales) Act 2016. They amend particular requirements placed on registered providers of social care under this Act. They are made in response to the COVID-19 public health emergency in Wales. Gareth.

Yes. There are two merits points starting on pack page 66. The first merits point notes again the short consultation that has taken place and the consultation document laid before the Senedd by the Welsh Government. The second point notes the changes that these regulations make to social care in Wales. The changes are important but the draft report only notes them; there's no scrutiny of the Welsh Government social care policy.

Yes, thank you. What I wasn't sure about with these—and if I've missed it, I apologise—but this regulation only seems to apply to public sector workers or private sector workers who have been procured by local authorities. Do we have any idea why this isn't applying to the private sector that isn't providing services for the public sector?

Okay. I'll take this to a response, now, first of all. Gareth, on the legal side of this.

I don't have an answer to that, I'm afraid. We've just looked at them from the public sector angle that they cover.

No, that's absolutely fine, it's just it speaks to whether an impact assessment was done that spoke to equalities and I couldn't find it. Anyway, thank you.

Can we seek clarification on that, though? It's a valid point that's been raised. We can seek that and we can circulate a note on that. If it needs to come back, it can come back to us to review that. It's a validly made point, though. Dai Lloyd.

Na, dwi'n hapus efo'r adroddiad, diolch.

No, I'm content with the report, thank you.

Okay. Well, thank you for that. We then move on to the Health Protection (Coronavirus Restrictions) (Wales) (Amendment) (No. 3) Regulations 2020. Again, you have the report, the regulations and the explanatory memorandum in front of you. You also have the letter from the First Minister of 11 May 2020. I think this starts at pack page 82. Just a moment, if I can just get my papers in front of me. Yes. These regulations make a number of amendments to the Health Protection (Coronavirus Restrictions) (Wales) Regulations, which are the principle coronavirus restrictions regulations. These regulations will be debated in Plenary this Wednesday, 20 May. So, that will be this Wednesday. Over to you, Gareth, for some comments and a merit point, I think, that's been identified. 

Yes. There is just one merits point on pack page 83. A draft report welcomes the additional wording included in the regulations around the Welsh Government's duty to consider proportionality. That's not to say the Welsh Government has not previously been acting proportionately, of course, but it is welcome that the regulations now expressly say that, when the Welsh Ministers are reviewing the need for these coronavirus restrictions to stay in force, the Welsh Ministers must consider proportionality.

10:20
3. Offerynnau statudol y mae angen i’r Senedd gydsynio â hwy (Memoranda Cydsyniad Offeryn Statudol)
3. Statutory Instruments requiring Senedd consent (Statutory Instrument Consent Memorandums)

We move on to item 3 on the agenda, the Direct Payments to Farmers (Legislative Continuity) Act 2020 (Consequential Amendments) Regulations 2020. Again, you have the statutory instrument consent memorandum, the explanatory memorandum, the letter from the Minister on 4 May 2020, and again an advice note. This statutory instrument consent memorandum relates to the Direct Payments to Farmers (Legislative Continuity) Act 2020, which was laid before Parliament on 28 April 2020. The consent memorandum was laid on 4 May. The regulations make consequential amendments required as a result of the 2020 Act. The purpose of the regulations is to ensure that the retained EU direct payments legislation is treated in the same way as legislation under the European Union (Withdrawal) Act 2018. The letter from the Minister does not indicate whether it is her intention to table a motion for debate. However, I understand that a motion is likely. If I can invite the lawyers to comment, please.

There's a brief note on pack page 107, simply agreeing with the Welsh Government that these UK-wide regulations make changes to primary legislation within the legislative competence of the Senedd, that relevant provisions relate to interpretation of various elements of the common agricultural policy law, which is devolved.

Okay. We are required to report to the Senedd within 35 days of the consent memorandum being laid, and, obviously, those preparations for that report will commence.

4. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o’r cyfarfod
4. Motion under Standing Order 17.42 to resolve to exclude the public from the meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

If I move on now to item 4. So, in accordance with Standing Order 17.42 (vi), I invite the committee to resolve to exclude the public from the remainder of meeting. Do Members agree? If they agree then we move now into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 10:23.

Motion agreed.

The public part of the meeting ended at 10:23.

Dysgu am Senedd Cymru