Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad - Y Bumed Senedd

Legislation, Justice and Constitution Committee - Fifth Senedd

06/07/2020

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

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

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Katie Wyatt Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
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 09:30.

The committee met by video-conference.

The meeting began at 09:30.

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

Okay, I welcome Members to this week's 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 the decision was included in the agenda for 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 meetings remotely, all other Standing Order requirements for committees remain in place.

There are no apologies necessary today; we have a full committee. Are there any declarations of interest? No, I see there are none. I'll just mention that the usual housekeeping rules apply. Can Members ensure that all mobile devices are switched to silent? Senedd Cymru operates through the medium of both English and Welsh. Interpretation is available during this morning's meeting, and Members are reminded that the sound operator is controlling the microphones and, as such, you do not need to mute and unmute yourselves during the public meeting.

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, I'll move straight on to the agenda. The first instruments that we have are the Waste (Prescribed Enactments) (Wales) Regulations 2020, and you have before you the relevant report, the draft regulations and the explanatory memorandum. The memorandum notes that Welsh Ministers, as a result of COVID-19, may need to use powers of direction to require persons to take waste to specific sites and to require those sites to accept those wastes. The purpose of these regulations is to prevent those directed from being liable to prosecution for breaching other enactments by prescribing the relevant enactments in regulation. We'll go over to Gareth now. I understand lawyers have identified some merits points on this.

There is one merits point, starting on pack page 1, noting there's been no formal consultation on the regulations. The Welsh Government says the regulations do not introduce sufficient changes that made consultation necessary, and that the regulations are part of contingency plans for issues that may arise from the spread of the coronavirus pandemic. From a scrutiny perspective, that seems reasonable. The real thing to scrutinise would be the actual waste directions rather than these regulations. These regulations simply facilitate waste directions by addressing an unfair consequence that would arise from the giving of the directions.

Okay. We take those points on board, and, obviously, very valid points about the directions themselves. I'll just go over to the Members now. Suzy, any comments? You're muted, Suzy.

Only this one, and I think it applies to some of the education ones later on as well, in as much as how accessible are these. We've just done a piece of work on the accessibility of law, and it's just a string of names to the outside world, isn't it? It doesn’t tell us very much in terms of the content of the particular regulation. But that was all. Otherwise, fine.

Na—hapus efo'r adroddiad. Diolch yn fawr.

 

No—I'm happy with the report. Thank you.

Okay. So, we note that, but particularly note this is about the empowerment and, of course, it's the directions that would be relevant, and we can consider that if and when directions are specifically made.

Moving on to item 2.2, then—the Business Tenancies (Extension of Protection from Forfeiture etc.) (Wales) (Coronavirus) Regulations 2020. Again, you have the relevant papers in from of you. Section 82 of the Coronavirus Act 2020 ensures that re-entry or forfeiture for non-payment of rent may not be enforced in relation to all types of commercial tenants during the relevant period. Section 82(12) of the Act defines the 'relevant period' as beginning on 26 March 2020 and ending on 30 June 2020. So, these regulations extend the relevant period until 30 September 2020.

We’ll just go over to the lawyers to deal with the merits points that have been identified. Gareth.

09:35

There are two merits points, starting on pack page 10. The first point notes the breach of the 21-day rule and the reasons given by the Welsh Government for the breach. In brief, the Welsh Government has been engaging with the UK Government on a code of practice for landlords and tenants that sits alongside these regulations. And following that engagement and the decision to extend the moratorium, these regulations had to breach the 21-day rule if the moratorium was to continue after 30 June without any gap. 

The second point notes there's been no formal consultation but that the explanatory material accompanying the regulations is very clear, which always makes scrutiny easier. 

Okay. So, we welcome those particular comments. So, over to Suzy Davies. 

Okay, so we then move on to the next item, which is the Education (Induction Arrangements for School Teachers) (Wales) (Amendment) (Coronavirus) Regulations 2020. Again, you have the report, the regulations and the explanatory memorandum in front of you. These regulations amend the Education (Induction Arrangements for School Teachers) (Wales) Regulations 2015 in relation to requirements for newly qualified teachers. The regulations have been made in response to the COVID-19 pandemic. Again, I go over to identify any merits points—Gareth.

There's one technical point and two merits points, starting on pack page 23. The technical point seeks a little more clarity on this new ability for professional learning to count towards the induction period of newly qualified teachers. 'Professional learning' is not defined, so is it completely at the discretion of the local authority as to what kind of professional learning can be taken into account, and does the local authority have to approve the professional learning beforehand? The explanatory memorandum refers to guidance that will be made, but we do not know if the guidance will cover anything on the meaning of professional learning.

The first merits point notes that the regulations will have effect until 31 August 2021 but that they will be reviewed before then by the Welsh Government. Also, if the professional learning is between 26 March and 31 August 2021, then than can count towards an induction period that takes place after 31 August 2021. 

And the second merits point notes there's been no formal consultation, but there has been engagement with key stakeholders. 

Okay, thank you for that, Gareth. We can, of course, seek clarification in respect of the professional learning point from Welsh Government on that. So, if everyone's agreed on that, we can take that up. But I go over now to Suzy Davies—any comments?

Okay. Let's move on then to item 2.4: the Education (Notification of School Term Dates) (Wales) (Amendment) (Coronavirus) Regulations 2020. These regulations amend the Education (Notification of School Term Dates) (Wales) Regulations 2014. The regulations provide that local authorities must notify the Welsh Ministers of the school dates determined at least two years in advance. So, these regulations amend the 2014 regulations so that local authorities are required to notify Welsh Ministers of proposed term dates by 31 December 2020, instead of the last working day of August 2020. Merits points—Gareth.

There is one merits point on pack page 39. The explanatory memorandum says that a children's impact assessment has been carried out and that no conflict with the United Nations Convention on the Rights of the Child has been identified, and that there are no negative impacts on children and young people. 

None from me beyond trying to establish, really, who the Welsh Government spoke to beforehand, and why this particular period of time, but it's not hugely material to these, I don't think.

Okay, we move on to the Health Protection (Coronavirus Restrictions) (Wales) (Amendment) (No. 6) Regulations 2020, and these regulations make changes to specific restrictions that were put in place by the Health Protection (Coronovirus Restrictions) (Wales) Regulations 2020. Gareth—merits points.

09:40

There's one merits point on pack page 50, noting that, although restrictions are being lifted, the restrictions that remain still represent a degree of interference with human rights and, therefore, justification for interference is still required. Also, these regulations breach the 21-day rule. That is not reflected in the draft report so, apologies for that. If Members are content, the merits point noting the breach can be added to the report before it is published. And just to note that these restrictions have already been further amended. The No. 7 regulations came into force today, which remove the 'stay local' rules. 

Okay. And a Plenary debate in respect of this instrument will be held on 15 July 2020. Any comments? Suzy Davies—observations. 

No. Okay, we move on to item 2.6, the Curriculum Requirements (Amendment of paragraph 7(5) of Schedule 17 to the Coronavirus Act 2020) (Wales) Regulations 2020. These regulations amend paragraph 7(5) of Schedule 17 of the Coronavirus Act 2020, and the provisions added by these regulations confer functions on local authorities, governing bodies, headteachers and others in relation to the provision of religious education, the national curriculum for Wales and the local curriculum. A related note: the Disapplication of Curriculum Requirements in Wales Notice 2020 is being considered later on in this agenda at item 4.1, and a Plenary debate in respect of this instrument is being held on 15 July. Over to you, Gareth. 

There are two merits points, starting on pack page 65. The first merits point notes there's been no formal consultation, but the Welsh Government says there has been regular engagement with key stakeholders. And the second merits point notes that the words 'Minister for Education', that is, the Minister's title, is absent in the signature clause. 

Just to repeat the point that there are powers being conferred on a Minister here in a way that's not particularly accessible. 

Ie, hapus i nodi'r adroddiad. Diolch yn fawr. 

Yes, happy to note the report. Thank you. 

I should mention actually just one point I didn't refer to that I meant to, which I think was in relation to 2.5, in respect of the No. 6 regulations. We have had a letter from the Equality and Human Rights Commission, which raises an issue with regard to the public sector equality duty. I know Members have seen that. We can discuss that in private session, if that's okay, but it raises the point there that we might want to consider, but one that has been raised in Plenary debates. 

3. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3 ond sydd â goblygiadau o ganlyniad i ymadawiad y DU â'r UE
3. 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 EU

Okay. We move on, then, to item 3 now, which is the Vegetable Plant Material and Seed (Miscellaneous Amendments) (Wales) Regulations 2020. These regulations amend the Marketing of Vegetable Plant Material Regulations 1995 in relation to Wales, and also the Seed Marketing (Wales) Regulations 2012. The amendments transpose  Commission Implementing Directive (EU) 2019/990, and include changes to the common names of certain vegetable species in accordance with grouping used in the international code of nomenclature for cultivated plants. The regulations are required to assist the UK to meet its obligations under the withdrawal agreement to transpose EU law into domestic legislation until the end of the implementation period, which is 31 December of this year. Now, Senedd lawyers have not identified any points for reporting under Standing Order 21.2 or 21.3. They have noted the implications as a result of the UK's exit from the European Union. Any comments, Gareth?

Only to note that these regulations are in the sphere of EU law and they will, therefore, form part of retained EU law at the end of the current implementation period, which then ends on 31 December 2020.

4. Is-ddeddfwriaeth sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.7
4. Subordinate legislation that raises issues to be reported to the Senedd under Standing Order 21.7

Okay. Then we move on to 4.1, the Disapplication of Curriculum Requirements in Wales Notice 2020. This is a notice that disapplies various provisions contained in primary and secondary legislation relating to the curriculum in Wales during the period of 24 June 2020 to 23 July 2020. Over to you, Gareth, for some of the points that have been identified.

09:45

There are two points in the draft report, on pack page 90. This notice links to the regulations included in today's agenda item 2.6. Those regulations added to the list of legislation that can be disapplied by notice, and this is the notice that actually does the disapplying.

The first point notes the breadth of the powers in the Coronavirus Act 2020. The Act allows the Welsh Ministers temporarily to disapply primary legislation and secondary legislation by giving a notice and publishing that notice. The draft report does not consider the impact this could have on education; it only notes the breadth of the powers contained in the Coronavirus Act 2020.

Secondly, the draft report points out that the notice applies from 24 June to 23 July 2020. That is clear from the notice itself. So, the dates given in the Minister for Education's written statement that accompanies the notice are different and, we believe, incorrect.

Yes. I agree that that last point must be incorrect, as the powers didn't come into force until 23 June. Are we sure that 23 July is the end of the school term, or school term plus one? Because I think it's a Thursday.

Yes, good point. As far as we're aware, it is. Any further information on that? We'll get some clarification on that—

Na. Hapus i redeg efo'r adroddiad. Diolch.

No. Happy to run with the report. Thank you.

Okay. Let's go on, then, to item 4.2, which is the Modification of section 3 of the Education Act 1996 (Wales) Notice 2020. Section 3 of the Education Act 1996 defines 'pupil' as a person for whom education is being provided at a school, subject to some exceptions. The notice modifies the application of section 3 so that a person is not to be treated as a pupil at a school in Wales merely because any education is provided for that person at the school on a temporary basis, for reasons relating to the incidence or transmission of coronavirus. This modification applies during the period 29 June 2020 to 28 July 2020. Gareth, over to you. You've identified a number of points on this. 

Again, there is a brief point that notes that the Coronavirus Act 2020 contains a broad power that allows the Welsh Ministers temporarily to modify the definition of 'pupil' in the Education Act 1996.

Well, again, I'd have expected these dates to match up with the item that we've just been dealing with. 

I just note that, when making all of these notices under this item and the previous one, they are limited to making them to one month at a time.

Ie. Hapus i nodi'r adroddiad. Diolch.

Yes. Happy to note the report. Thank you.

5. Papurau i’w nodi
5. Papers to note

We move on to item 5, then, papers to note. A letter from the—. Sorry, my iPad screen with documents on has just gone blank. Just a moment. There we are. The letter from the Minister for Environment, Energy and Rural Affairs, which is a response to our report on the Welsh Government's legislative consent memorandum on the Fisheries Bill. So, we're invited to note the letter from the Minister, which responds to our report on the Fisheries Bill LCM. Is there any issue on this or shall we just refer this to private session later on for discussion? Any comments? Suzy Davies, Dai Lloyd, Carwyn.

6. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
6. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of 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.

Item—. Well, we now have completed the core public business. Now, in accordance with Standing Order 17.42(vi), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do the Members agree? I see they do agree, and we now move into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 09:49.

Motion agreed.

The public part of the meeting ended at 09:49.