Legislation, Justice and Constitution Committee

With that, we're going to move to the first substantive item of this afternoon's meeting, and it is a significant one. We regularly have the Counsel General in front of us, which we're very grateful for, but we have the Counsel General and Minister for the Constitution and the Permanent Secretary with us this afternoon as well, so thank you, both, very much for giving us the time. We've got just about an hour with you and we are looking at the very, very weighty issue indeed of the capacity to legislate within Welsh Government, and the legislative programme itself. Counsel General, as we discussed on the floor last week, I think it was, adding to everything else there was the EU retained legislation coming down the line as well, as if you weren't busy enough, and if we weren't busy enough, but certainly your workload has significantly increased.

If you're happy we'll go straight into questions here, and let me begin by asking: do you think you have all the resources you need to deliver the legislation that should be made in this Senedd?

Thank you for the question. The issue of resources is a complex one, because you've got to start off with saying what are the resources that you actually do have and you actually need in legislating. You also need to have a view as to how those demands change over the course of a period of time and also what external interventions there might be—external interventions, for example, that impact on your capacity and the resources you have. It might be COVID, it might be the Brexit demands, which we're all aware of. It might be the retained EU law demands that may emerge. But, in terms of resources, I see resources as being essentially about the people you have that are involved in the process of development of policy. I think it's the people you have in terms of the legislative drafting, those who've been involved in the creation of the specific instructions to the Office of the Legislative Counsel, and it's how those resources are managed that is the issue. So, I think we have the appropriate level of resources in terms of our planning for the legislative programme of the Government and in dealing with all the predictable demands that we have. But, it's really a question as to how those resources are managed and adapted in what is something that is a very fluid and changing field.

Thank you for that answer. Permanent Secretary, do we have—? Following on from the Counsel General's answer, do you feel we have sufficient resources—people, the right people, creative deployment of those people? Do we have adequate resources to face the challenges now and what's coming down the line?

I think there is a difference in focusing on the commitments that we've given within the legislative programme, as expressed by the programme for government, and I think that's what we're very used to—in a flexible way, as the Counsel General was outlining—making decisions on, moving technical expertise around, reflecting the needs at different points of the programme, whether it's the year 1 Bills or the year 5 Bills. I think that's a common part of our approach.

I think the unknown aspects, which are covered in your general question, are everything that is ahead of us. Of course, the environment that we work in does have a level of unpredictability. So, what I've been trying to do within the organisation is to have a clear focus around the programme for government itself, whether that is policy deployment or inclusive of the legislation side. There are certainly times when there are individual Bills under pressure, and under our legislative programme board we have to make judgments—recruiting, expand out—and I've been able to make some of those decisions even over these recent months. There is, inevitably, some uncertainty about some of the knock-on effects, where there is legislation in train that will influence us in Wales or can be taken advantage of. And I think the UK Government context certainly means that we have to pause and reflect on whether we are able to anticipate all of those, and I think that is very difficult for us to do, Counsel General, at the moment.

So, just to pause you for a moment, what you are saying is you can definitely deploy, redeploy, and creatively, ingeniously marshal your resources to where they're needed, but you are acknowledging that because of, sometimes, external factors, other pressures that come on, you do have to make decisions, Counsel General, Permanent Secretary, in your discussions together that some things cannot proceed.

It's not about whether they can proceed; it may be that there is a need for us to alter the outlook. I have already over recent months had to deploy extra support for individual teams. Sometimes that is on the legal services side, sometimes it's actually on the technical expertise side, but I think our pandemic and COVID experience does show the level to which things that are outside of our hands and the environment that we're in means that we have to divert resources. And certainly, what is clear from my own perspective is the terms of reference that I have to lead and operate the organisation. There is a Welsh Government budget that reflects the operation of Welsh Government, and I have to manage within those budgets and resources as any other public service organisation. So, yes, there are internal choices, but, inevitably, you end up moving attention from one area to another. And I think the complexity on the legislative side is that it's not simply sitting there with technical experts like legal services and legislative counsel; often, what we are needing to do is to draw on the expertise of policy officials who still will have other activities and other responsibilities that they need to undertake as well.

So, there's the internal mechanisms that you have to really think hard through, but, Counsel General, I wonder if I could ask you, just drawing on what the Permanent Secretary has said, if you can give us any examples of where you've had to make difficult choices to prioritise some legislation over others, or to de-prioritise some legislation. Just bear in mind that one of the things that we're aware of in the committee is that the number of pieces of primary legislation that we pass in the Senedd has been pretty much static since 2007, despite us taking on additional powers, despite the clamour for additional legislation, and so on. So, could you give us some tangible examples that we might recognise of where you've had to make some difficult choices in this Senedd?

Look, the most tangible examples are clearly where we've had to deal with COVID and where we've had to deal with Brexit. Those have taken up an enormous chunk of resources and particular skills as well, because the resource is, to some extent, the quality, the specialist skills. These are very specialist areas that we're working in, and they're not areas that you can go out and suddenly say, 'Well, we'll go and recruit a few more people and that will solve the problem'. So, it is the managing of that and the prioritisation of that. But, COVID and Brexit are clear examples.

I think other areas where we've had to look very seriously in terms of the amount of work that we have to put in and the resources that are allocated are in terms of dealing with the size of the UK Government's programme. That is a programme that is completely out of our control. It isn't a programme that we've gone along to and said, 'Can you do A, B, C?' or 'Can you do these pieces of legislation?' They are frequently announced without any particular reference to us but have very, very significant issues, either in terms of policy or in terms of constitution. Now, what that means is that there may be areas there—and I know this is a matter that this committee has raised numerous times—where we have to decide whether we will work in terms of legislative consent in certain areas that we might, were that legislation not to be there, at some stage in the future be legislating ourselves in a particular area. So, those choices arise and it seems to me that the main test as to what road you go down is what we can do in terms of what's happening or what's emerging in terms of UK Government legislation. Do we want to, or do we just want to refuse consent completely? And what would be the implications of that in terms of the impact it has on the people of Wales? There might be things there that might mean that we wouldn't be doing this immediately, because it's not within our immediate legislative programmes, et cetera, and so on.

Permanent Secretary, you want to come in on this, but could I just, Counsel General, put one final question to you on this. Accepting that what you describe are quite extraordinary times, post Brexit, pandemic, et cetera, et cetera, and difficult decisions you will have to face in discussions with Cabinet colleagues as to what proceeds, what legislation is made in Wales, what you consent to in England and Wales legislation and so on, and what you leave out that you would like to do, is it too difficult a question to ask you that if you were not faced with these abnormal times, what would have proceeded here in Wales? Are there examples that you can categorically say, 'This Bill would have been taken through on the floor of the Senedd', or 'This consultation and White Paper would have been brought forward'?

No, I don't think you can say that, because the skills and the resources, the people, the policy people and so on that are involved in the legislative process are all managed as appropriate with regard to what the programme for government is and what the legislative programme is, so that is what we're managing. Those are the things that we've decided are the priorities to do. What does happen is that other issues can get raised during the course of the UK Government's legislative programme and we may have to take decisions on those. Those are unpredictable but they don't form part of what emerges out of the Government's own manifesto and the Government's own priorities, which is the main thing it is there to achieve.

Permanent Secretary, and then I'll go to Alun.

We would take a steer on the programme for government areas in terms of any momentum into a new Government term. I just think the extraordinary context of the pandemic response meant that some of the areas that we might have built up in greater detail—. There was at that point a diversion of resources at that time. We try to ensure that we do take, however, the direction within the programme for government, not least with the First Minister's annual statement of the legislative priorities. Of course, we're already guided by some of the priorities, because not all Bills happen in an individual year. They are already distributed and spread through that.

I would also say, on my first response, that sometimes we're not just moving around and prioritising the resource associated with the legislative programme; sometimes we are diverting from other priorities and objectives within the organisation, whether they may be either statutory functions or, alternatively, about other policy priorities. But because we look at the world through the lens of the Senedd Acts, I think sometimes it skews the level of legal activity going on with the organisation. From a statutory instruments perspective, Counsel General, two out of the three busiest years that we've had since we had our law-making powers have actually been in the last three years. So, I just think that's a demonstration of, behind the surface, or under the surface, a lot of legislative activity.

We have no doubt of the scale of legislative activity that's going on within Government at the moment, at all. Alun, over to you.

Permanent Secretary, is it your job to make sure the resources exist in other to deliver that?

Yes. Within the context of the programme for government, yes, it is my responsibility to line up the resources. That includes needing to make some of those resources. There is obviously a constraint that there is a budget in place, and there needs to be a discipline about the overall budget of Welsh Government with all of its objectives. I try and approach that in a balanced way across the organisation. What I've tried to do over the last 11 months since I took up post is to be really clear of the status of the legislative programme itself within the programme for government, because I think before it may have felt that, on occasion, it was competing with other priorities. I've made sure that we understand that the law-making powers and how we discharge those are a primary objective of the Welsh Government, and I think I've tried to look through that lens. And also over this recent time and over these intervening months, whilst it's not possible to simply expand without doing that in the context of the budget, I have made judgments about expanding and intervening in a number of areas where we've needed extra Bill managers, an expansion of legal services and an expansion of policy teams as well.

Can you appreciate that sometimes we find some of the responses from Government somewhat unsatisfactory? The Counsel General has just said that the people who are required in order to staff these functions are highly specialised—I think that's what you said; they've got very specific and particular skills. And, in an earlier answer, Permanent Secretary, you said that you can move people around. The sorts of skills that the Counsel General has described don't tend to exist outside of that function, or certainly not in the numbers to help provide you with the flexibility to move people around in different ways. Certainly, a Bill team will have a Bill manager, and from my knowledge of Welsh Government, those people don't grow on trees, as it were. There are not many of them. So, I would question whether you really do have the flexibility to move people in the way that you suggest.

I think we have difficulties on that. I think that there is a need for us to decide whether we are looking for a generalist approach in the way that we run the organisation, and we are looking to expose as many staff as possible to the experience of working through legislation—which, I have to say, is generally seen as a positive experience in terms of career progression and that kind of insight and that experience—or whether we are trying to develop at the more technical end solid expertise that can continue to be deployed to different Bills irrespective of the subject area. I think we are probably trying to work in an arena where we are trying to do both of those things, but probably there's an assumption that it's more about bringing in the general skills and then people being trained and developed. We can take many approaches on the organisation. I think recent reflections probably are a bit more focused on ensuring that there is a core of specialist individuals that we do have available, and that is a higher number than the individuals that you have. And as you would appreciate, when people have been through the Bill experience—

Sorry, can I stop you there? A core that is higher than the number of individuals that you have. So, you need more people is what you're saying.

Yes—

Sorry, I want to pin you down on this because it's an important—

More specialists to be available, but it may not necessarily mean that they are extra numbers overall, but we shift the proportion of the individuals to be more specialist in their approach as well. Because I still think that there are many examples within the processes that we have around the development of legislation that themselves could be altered, adapted or changed in order to make sure that it's more of a streamlined process. There are different ways of addressing the expertise. It's not to say all of the answers are in just doing things differently, but in terms of my oversight of the legislative programme board and the conversations I'm having in the organisation, there are many views that we can alter the way in which we would actually progress things, particularly as we learn over the many years that we've been discharging this perspective. But also, I think, bluntly, because there is an accumulation of legislation that we've accrued over the years. It's not just single Acts that are appearing in an individual year. And I think we've now recognised that, of course, that has a cumulative effect on the organisation as well.

I find myself in a curious situation here. People come into politics for many different reasons, don't they, but I never thought I'd go into politics to demand more lawyers. It appears to me, and I've sat on this committee for many more years than I can remember, one of the themes I've felt has come back from Ministers over the years of cross-examining Ministers on legislation is that there simply aren't enough lawyers working in Welsh Government and there aren't enough people just to sit down on a Monday morning and start writing law—whether that law is around Brexit, or whether it's around COVID, or whether it's around additional learning needs, which was the last Bill I did in Government. Do you believe that you need more lawyers working in the Welsh Government to deliver on the legislative programme as in the programme for government and then to provide the resource required to do things that aren't in the programme for government—some of the LCMs and stuff like that we've seen?

I think—

Sorry, I wanted the Permanent Secretary, if I could—. I want to understand the situation. Do you have enough lawyers?

I'll pass to the Counsel General in a moment, but on my answer, I believe that we have the number of lawyers that we need to discharge the legislative programme. It's about half of the overall lawyers that we have who will be associated with the legislative programme that comes with skills at this stage. The Counsel General is aware, because of course, these are decisions that we've taken. We have made some decisions over these recent months to actually expand the number of lawyers within the organisation, appropriately so. There is a general need irrespective of the legislative programme demands as well, but that obviously gives us more flexibility to try and align. But I wouldn't want to forget that our approach to the legislative programme is a combination of different experiences—

Yes, I understand that, but—

It draws together legal services, legislative counsel, and, of course, the policy experience, including that very technical expertise as well, and it's about blending those—

Of course it is, and in any Bill team, you'll have that; I accept that. I've got no issue with that. But the question was a different one. Do you have sufficient legal resource, enough lawyers, working in the Welsh Government to deliver on the requirements placed upon the Government? And I accept that those requirements are not simply the requirements that the Government places upon itself for its own programme, but those that emerge from other sources. So, the answer is, 'We didn't have, but we're recruiting.' Is that what I get from the last question?

[Inaudible.]—to expand, and we've made some of those decisions within our budget, rather than simply expanded without discipline. I think we do have a way in which we have the pairs of hands available to do the legislative programme, in very broad terms. But yes, we had to expand in order to give some additional headroom.

So, you didn't have, but now you do have.

Yes—[Inaudible.]

Right. This doesn't need to be so difficult. So, by how many—? What are the numbers involved here?

I probably may need to do a follow-through note for you—

Okay. Write to us on that.

Because, as you'd expect, many of the lawyers are there for general duties and activities of Government rather than just the legislative process itself.

Yes. I accept that.

But we have allowed for an expansion and for some flexibility—

Okay, and it would be useful if you could write to us on that.

Perhaps if I could go away and get the answer correct for you.

Yes.

Counsel General, you wanted to come in.

Yes, just to come in and say that one of my functions as Counsel General is to chair the Cabinet committee on the legislative programme. That basically looks at all the legislation that is going through. It looks at what all the demands are, it looks at the timescales, when legislation is going to be tabled, whether there's consultation—all the different factors that go into making a piece of legislation effectively come to fruition. And what we do during that process is you're looking at what the difficulties might be in terms of the policy area, in terms of the clarity of the instructions, in terms of the policy intent, so that it can be converted into legislation; whether there are particular demands coming in in particular types of area. So, for example, there are big demands at the moment in terms of the legislative programme in respect of environmental issues and so on, and the specialisms there. Sometimes I take the analogy that, with a piece of legislation, it's almost like having a surgical team: you have to have the neurosurgeon there, you have to have the anaesthetist there, you have to have all those. If one of those goes—. And each one is really a combination of those particular factors. But we do look at them on a monthly basis. I've got a similar meeting coming up, in fact, later on this afternoon, where we'll be doing exactly that—and again in November—to make sure each year, we can actually deliver the legislation that the Government is committed to doing. So, that is there. One of the issues in doing this is that it's not so much the number of lawyers, but quite often, it's the type of lawyer or the skills or the training that is involved in bringing lawyers forward to actually develop skills in particular areas, and so on. So, it is a continually sort of moving and quite dialectical feast, if I can put it that way.

I'm always delighted to hear the word 'dialectical'.

Before you continue, I think we're getting to the nub of something quite interesting here, because you seem to be—. I don't want to put words in your mouth, but it's helpful if we can understand if, in those discussions, when you look at the resource you have available to deploy against the demands coming down the line, you're also considering, 'Well, what can we also draw upon from Whitehall? What can we look at up that end?' Because if they have, for example, expertise in a particular area and a Bill coming forwards that is fortuitous and serendipitous to have, and you can't quite delve deep enough within the resource we have here, are decisions then being made to say, 'Well, it's not purely our resource we're looking at; we might actually need to dovetail with up there'? Because that takes us into an interesting answer to some of the questions we've been asking as to why sometimes, not infrequently now, the Welsh Government request using opportunities for Whitehall-derived legislation.

Very, very rarely, because I've certainly not been involved in situations where I'm saying, 'Well, let's go to the UK Government to see if they can do this stuff.' That just doesn't happen. But what does happen is, of course, when the UK Government sets out, 'This is our programme', we have to analyse that because of the way in which that operates. We've discussed the perhaps dysfunctional way in which engagement with UK Government takes place. We have to explore all those areas: 'Does this intrude into devolved areas? Are there areas of this that we might be interested in?' So, it's not a proactive approach that we have of going to UK Government saying, 'Will you do this on our behalf?' But it's a question of the evaluation of what is emerging out of the UK Government's own legislative programme.

I'll give you one example. Within the UK Government's legislative programme, there is a Schools Bill. Education is devolved. There is, and I think probably by mistake, an element within the proposals that would allow the Secretary of State for Wales to legislate, so we have to now sort out with them to make amendments to that legislation to say, 'No, we don't want that. In fact, you've made a mistake. Take that out', et cetera. There are many, many examples of items like that that take place.

Thank you. James, go ahead.

Thank you. On that point, Counsel General, where in Welsh Government do you do a bit of sense checking if you do look at the UK Government's legislative programme and you think, 'Well, we could use UK Government legislation to do that'? When in the decision process is it taken to ask, 'Well, is it right to do this and bypass any scrutiny?' Is that something the Welsh Government take into serious consideration?

It's a good question, and it's very difficult to answer, because one of the problems with what happens with the UK Government's legislative programme is, firstly, we are normally only given an indication of some pieces of legislation that might appear in the Queen's Speech. Frequently, one of the biggest problems is we then don't have engagement at the early stage in the preparation of the policy and the development of that legislation. And then, thirdly, that legislation frequently changes as time goes on, so it goes into all sorts of other areas. What we have said consistently, and it is quite a variable experience, is that we need to be engaged with UK Government once it's decided what its legislative programme is—that those individual pieces of legislation need to engage with us so that we can identify whether there is any impact into devolved areas, so that we can assist them in ensuring their legislation applies as appropriate to UK Government reserved areas.

The reality is that rarely happens. For example, significant changes to the Retained EU Law (Revocation and Reform) Bill we see 24 hours ahead of time, which means that then you've got legislation that's started a process at UK Government level, but we're having to evaluate really sometimes quite tricky and complex legislation. There are many, many other examples. I know we've discussed this many times. We have not reached a stage where, at UK Government level, there is proper engagement. There is some better engagement that has taken place in some examples, but it is by no means consistent and it is by no means a foundation of the constitutional legislative process.

James, go on.

I'm running into my questions now, Chair, but it's on this point about engagement. I totally agree with you, Counsel General; I do believe that the UK Government should be engaging more with the Welsh Government at an early stage in policy development. But could you or the Permanent Secretary just outline what work the Welsh Government has done to try and break down this and talk to the UK Government about these inter-governmental relations, how they can be improved? Because we all want to see it get better, but it would be very interesting to know, and I'm sure people listening would like to know, what the Welsh Government are doing to try and improve those relationships.

When a particular proposal for legislation is announced, there are engagements between officials. The quality of those engagements and the scale of engagement depends, firstly, on what those officials know about what the Government actually wants to do, but, secondly, on the leeway they have from the ministerial side in terms of what they can actually engage on and what they can discuss. That is one of the difficulties that emerges.

There are inter-ministerial meetings that take place. We have bilateral meetings, or, sometimes, quadrilateral, between all four nations of the UK on a piece of legislation that might have impact across the UK. And we are consistently—I think all parties are consistently—saying that we need early engagement, we need to be involved in the actual construction of legislation, or assisting with the construction of legislation, depending on what type it is, so that we ensure that there is devolution integrity, and that the particular different devolution policies that may exist are properly catered for within that legislation. So, that is where the difficulty comes. I've had discussions—and I know you'll want to discuss later retained EU law. Well, I've had several meetings with the relevant Minister, and I think we are all in agreement about that early engagement, but, of course, that doesn't mean that it actually happens, as is the case at the moment.

And there are many other examples of legislation where exactly the same thing happens, and we've seen that again, where we see a Bill, a complex piece of legislation, 24 hours before it is actually tabled, and all the consequences that emerge after that. I think it is a very inefficient use of resources that we then have to have almost this bartering process, going backwards and forwards trying to understand what the intention is, for them to then understand what the devolution issues and what the concerns might be from Wales, Scotland or Northern Ireland, and we haven't yet achieved what I think is really a very satisfactory situation. As the legislation goes on, of course, as more and more detail comes through and we get to grips with more and more of that legislation, well, then, of course, more and more of these issues emerge, and that is a dilemma. It's why we have a new set of inter-governmental arrangements that have yet to be fully tested, I think.

Which is interesting for us as well that they're yet to be tested, and when that's going to happen. Alun.

I wish you the best of luck with those inter-governmental arrangements. Can I ask the Permanent Secretary—I understand that all Permanent Secretaries meet on a weekly basis to discuss issues around aspects of Government—do you, or your counterpart in Scotland, raise the sorts of issues that James Evans has raised, because it seems to me that the political will ebbs and flows? My experience of Government is that it deals too much in goodwill and not enough on structure, frankly. So, do you, at an official level, have the structures in place, and the processes in place, which means that—for example, we'll use the Schools Bill that the Counsel General mentioned—the Perm Sec in the Department for Education in England would know that a Bill team should contact yourself, and other officials, to run that passed them before the legislation is published?

Yes, the Standing Committee arrangements and the inter-governmental relations framework is there to lay out the ministerial expectations and the way in which we'll work, but it also provides a framework for how officials would interrelate. But your point is also right that, just as part of the general functions, we have an opportunity, of course, to be aware of concerns and issues with other Permanent Secretaries—that we do exchange it. And I would say that—

So, have you raised these issues?

Absolutely, in a couple of different of ways. So, firstly, I have a weekly routine contact with other devolved Governments, alongside the Perm Sec leading on the inter-governmental relations side. That is an open and transparent conversation; it allows us to highlight areas. I have had correspondence, where needed, where we've needed to escalate the issues, irrespective of what Ministers are doing themselves, of course, and intervening. And it is a genuine opportunity to make sure that we can raise those areas. Obviously, in the context of this conversation, we are often responding, however, to UK legislation and looking to understand its influence and impact here. We very—

Can I stop you there? Because that legislation isn't just pulled out of a hat, it doesn't just appear like a Christmas present; it's been developed, it's been written and you've had policy instructions sent to lawyers, to council, to write that legislation before it emerges. It appears to me that, whatever processes that exist, they simply don't work. Because you do have these Bills emerging at the end of a process of policy and legislative development, which are a surprise to Welsh Government, and it seems to me, frankly, that your colleagues in London simply don't trust us with that information, and don't see the need to consult before the politicians get involved.

Well, there will inevitably be a political context about judgments and when programmes are declared for any Government, and I think that probably reflects some of the experiences that have been recently. The routine cycle that I've described, the weekly basis—that didn't really exist before. I've been really pleased to see that more as a development since I took up the post. It's about building up those relationships and allowing for the open conversation. But, certainly, there are examples of areas, having highlighted some concerns from an official perspective, we have been able to have an understanding of the Welsh Government position and actually allow for some changes as well. What I would say, however, in support of the Counsel General's comments, is that some of those experiences are still variable. You may have a department who are experiencing the responsibilities for the first time almost, and perhaps haven't just thought about the awareness that they should have—

Permanent Secretary, that's simply not true though is it? Devolution didn't happen last year; it's been in place for 20-odd years. If you are telling me that people have reached—. Most people in the civil service now, who've reached senior level, have been in the service for a number of decades. They've grown up—their careers have been defined by devolution. To say that it's a surprise to them really does beggar belief, doesn't it? And it reflects very poorly, I think, on the culture within Whitehall that they simply don't think about anything that happens outside the M25.

Well, I've had a different experience over these recent months; it's been a willingness to learn. I was really grateful that we had the chance to host Civil Service Live in Cardiff, as happened in other areas. Part of that is about ensuring that there is a significant understanding and level of knowledge that some individuals may not have experienced in their own individual portfolios as they progress. So, I think, we can (a) help that an inform it, but (b) we have to expect it, and part of my conversations are about setting those expectations also.

But do you think it's our job to tell London about the United Kingdom and how the United Kingdom operates or is governed?

I think we have an opportunity and a responsibility, from a civil service side, to show the way in which we work in a devolved Government context, and, I think, actually, many of the experiences that we describe aren't necessarily about the legislative programme only; they are the way in which we're able to make a certain level of decisions in Wales, and I think it is helpful to show that, whether it's through collaboration or our work across other sectors. So, it becomes quite a general conversation about the way in which Government can operate, which is helpful, I think.

Counsel General.

I think much comes back, as invariably happens, to Sewel and the understanding of Sewel. We have the inter-ministerial council. There was meant to have been one a week or two ago, but that has been delayed. We've obviously had the new premiership, and, I think, it was felt more appropriate that the meeting of the First Minister should take place with the Prime Minister. Unfortunately, contact there has been rather hesitant at the moment—let's put that as diplomatically as possible—'at the moment'. We've all heard comments that have been made around that.

There is a culture issue, one that was identified by, I think, the Thomas commission and earlier, in terms of an understanding of devolution. I have to say, it is, I think, better at many levels, but, I think, the crux of it comes in terms of the political direction, the political leadership in terms of legislation, and with regard to Sewel. And one of the issues that we have raised within the inter-ministerial council—I did it and the First Minister has as well—is that there needs to be some strengthening of Sewel, which is absolutely fundamental, because at the moment, I think—there are many—the culture is that the UK Government has a particular political direction; it sees its role as having to engage with devolved administrations. That is a term I disagree with, because I don't think devolved administrations exist since we've created legislative parliaments, but it's a term that's used by UK Government. They find it difficult to bring themselves to refer to devolved Governments. And I think the net effect is that a Minister will go in a particular direction, but they will regard their duty as one of engagement and consultation, but because Sewel has such a variable interpretation, you're in a position where there will be considerable variation in terms of the direction that Ministers take. They'll say, 'Well, we're doing this, we've engaged with you', et cetera. We've raised the issue in terms of a need of some form of codification of what 'not normally' actually means and what the level should be at which Sewel might be overridden and so on. And, of course, that is, in many ways, the biggest constitutional dysfunction that we have: the failure to actually constitutionally get to grips with a proper status, and the status, I think, ultimately should be judiciable, but a proper status for Sewel. And, I think, many of the problems that you've identified come back exactly to that, because, at the end of the day, when you're engaging with UK Government what are the real levers that you actually have? Well, our leverage is to basically refuse legislative consent, and, if that legislative consent is overridden, which has consistently happened, well, there you have it, and, of course, that has been the biggest challenge in the last few years with legislation.

Minister, Permanent Secretary, before I hand to Rhys to take us on, I'm going to ask you a question. I don't want to abuse the fact that we've got you here for an hour, but if we ran five minutes over, would you be okay, or do you need to rush?

I really have to rush; I've literally got meetings one after the other.

Not to worry. Rhys, 10 minutes.

Okay, yes. Two questions for you, Permanent Secretary, and one question for you, Cwnsler Cyffredinol. Because you're here, Permanent Secretary, I want to go back to the capacity issue very quickly. I think it was the Chair who mentioned extraordinary times; well, the question arises: when does extraordinary become the ordinary? It doesn't seem like there are going to be any real changes in the next few years. It is disappointing that the level of primary legislation passed by the Senedd has remained static. I think the last Senedd was the lowest ever. Has there been a long-term strategy by the Welsh Government to build the necessary skills and expertise within Welsh Government?

I think we've had to adapt, learn and develop alongside using the law-making powers. So, from a standing start, if you think back, 4,500 statutory instruments have been done in that time. That is a high volume and pretty significant. You overlay it with the Acts and the broader legislation, and I think we've showed that we have made progress. But we weren't an institution that had all of this available capacity beforehand, and clearly, we've had to grow and develop it. As I've come into my own role, it's given me a chance, I think, to look at things through a different lens and perspective. Clearly, the pandemic experience just means that we're looking at all aspects about how the organisation works and operates, and it would be absolutely true of the legislative programme. So, I think that we have allowed ourselves to make progress over the years. We've put in place some really good law and effective legislation, but we have almost dealt with each Senedd term at a time, I think, rather than continue to develop things.

So I've tried to do a couple of things. First of all, I've put a plan in place that has been an opportunity to address some of the capacity concerns, to introduce an expansion, for example, around our Bill managers, through a more co-ordinated centralised function. I've tried to emphasise the accountability of directors general alongside their group structures to support Ministers with some of the decisions. I've been clear about what it means to be the senior responsible officer for making decisions about the resources, and I've tried to get the governance better lined up so that we can make sharper decisions to intervene to keep things on track where possible. That now includes me in my Permanent Secretary role actually chairing the legislative programme board, which wasn't previously the case. So, I think all of those are actions that show that I'm not really just trying to defend how we've done things; what I'm trying to do, after these extraordinary events, is to put things back in a proper manner.

But I also agree with your point that I don't think we're at the end of other exceptional events and activities, and to some extent, we have to make sure that we retain some flexibility to handle those things at the same time. But as I was saying earlier in response to Mr Davies, I do think decisions about how you shift the focus of whether we are looking for staff to be generally experienced and going through a Bill experience or whether we are looking for a specialist, technical group of people—. I've probably moved my views more towards the latter—that we just need that stronger core so that we are confident about the way in which that Bill experience will be distributed over many years to come.

And then, of course a parliamentary counsel would have lots of transferrable skills, and would be able to address COVID issues, Brexit issues at the drop of a hat. The Counsel General mentioned, of course, that this is real expertise. It's not just, you know, Alun used the Christmas present analogy; you can't just pull a parliamentary counsel out of a sack, either. But we haven't got a shortage of lawyers in Wales, have we, of people who want to work in Wales? How long does it take to train somebody to be a parliamentary counsel if they're already a solicitor and a barrister?

The second question I'd like to ask is, a fortnight ago, we had the Law Commission in front of us, and we had, I think the whole committee agreed, a very impressive witness, the Law Commission lawyer. We were all very pleased to hear that this individual had been seconded to Welsh Government, and our confidence about that Bill went through the roof, because we knew that he was working on it. What other examples of getting in expertise like that have you done or are you hoping to do in the future? So, the first question: how long does it take to train a parliamentary counsel if they've got the legal experience already? And the second point is buying in or getting in that expertise on specific Bills.

First of all, on the former question, and despite the fact my own career started off with law, which I'll declare, I can't answer your question about how long to expose there. But your point is right in the sense that this is a pathway that allows people to make different judgments as they go through, and we do have legislative counsel now who've come from more general backgrounds and been able to convert their experience over. Some would have been able to do that more rapidly than others. For some, it's about accreditation, and for others it's just about the experience. But if it's okay, through the Chair, I will again, rather than give you the wrong numbers for it, explain how we're able to give that kind of clarity on this side.

I think we've tried to adopt a more flexible approach. There have been examples where we've been able to bring in some external experience, where needed. We have had some expansion of some of the legislative counsel functions and responsibilities. I think we do have a really good cadre of individuals who understand not least the bilingual aspects of the way in which they can produce very effective law. And when we ask for technical assessments of that as well, it tends to come out very strongly that we are able to discharge that in a very good and competent manner as well.

But I think the career choices that individuals have—. Of course, yes, if there is a greater breadth of lawyers available, you want to be able to attract people into the legislative counsel experience. And I think we do need more people who are prepared to dedicate themselves to that as a function, and who can become expert as well. I think that is trying to build that in as a better, an alternative plan. I've been part of recent discussions where we were trying to find out whether we could bring in some of that expertise. It was probably more difficult than I had expected. There are a couple of areas where we've had to end up growing our own and developing people internally, because it was difficult to get the external experience.

I think having bespoke is, actually, really important, because I don't think—. You can't go out there; even with experienced and very highly qualified counsel, there is a continual learning process, and you almost have to be engaged within the specialisms of the legislation itself. So, that actually takes time. There is a very extensive training programme that is continually ongoing as well. Some of the data—. I'll just give you this: between April 2021 and March 2022, there were 41 corporate training sessions on legislation and constitutional affairs delivered to 596 Welsh Government staff. In addition, 19 bespoke legislation training sessions for Bill teams were delivered. Now, those are very technical matters, not something that I'm engaging with regularly, but it is an indication, I think, of the fact that this is a process that is ongoing, and you have to be able to create the skills.

I don't think you ever get to a stage—. And I know you're from a legal background as well; I think you'll know yourself, you never actually stop learning, because issues around the law, the economy, all the issues that you have to do, are continually changing. So, it is a continually ongoing process, and that's why having those bespoke skills is, in my view, a core part of the capacity.

Finally, my question to you, Cwnsler Cyffredinol, is also to do with capacity and the use of UK Bills. In a letter to us back in August—and I want to get the wording right—you said that you would consider using a UK Bill if

'there is no time to bring forward similar in the Senedd'.

What do you mean by that? What do you mean by if

'there is no time to bring forward similar in the Senedd'?

What I mean is there may be an issue that emerges in a Bill that is being decided by the UK Government, so it's not something that we have proactively sought, but it may be that there's an element in it that relates to or that is beneficial to Wales. Now, the question is there of priorities. If it's something that was a very, very high priority, then we might consider whether to legislate. Otherwise, if it doesn't fall above the priorities you already have within the legislative programme and it's something that you would like to do, you might include it in a future legislative programme. And the choice you have to make is: well, we could legislate in this area, we may not be able to legislate in this area for a period of time; would the people of Wales be advantaged or disadvantaged by allowing or consenting to a legislative measure within a UK Government Bill? So, it's not something that we're asking them to legislate on on our behalf, but just that we would be almost cutting our nose off to spite our face by not taking that opportunity.

I disagree, you see—

Sorry, Alun, go ahead.

I completely disagree with that, Counsel General, because you're putting law on the statute book without any democratic scrutiny, and that is unacceptable. It's always unacceptable. I can see where it happens. LCMs used to be—I'm too old nowadays I think—but LCMs used to be a technical process almost, where a clause or a paragraph was inserted into law because it was easier to do it that way and the rest of it, and I've got no issue with a pragmatic approach like that. But when you have pieces of legislation that are almost entire Bills being put on the statute book without any democratic scrutiny, that's an affront to our democracy and the Government shouldn't even be considering acting in that way. If there is an issue with resource—we've heard from the Permanent Secretary that it's being addressed within Government and I'm very pleased to hear what the Permanent Secretary said this afternoon—and if there is an issue with the Senedd, we should discuss this as Members about whether the Senedd can do these things. But simply using the Westminster Parliament in the way that it's been used these last two years, I just don't think is acceptable.

Can I just say I think the way you've presented that actually distorts what I'm saying? It's something that I fundamentally disagree with you on. If, for example, when the UK Government is proposing to extend the limitation period in respect of legal actions against those involved in cladding, is that something we would want to happen, or would we want to say, 'No, we wouldn't want that to happen'? When the UK Government is saying, for example, 'By the way, we're going to abolish the Vagrancy Act 1824, et cetera', would we want that to happen? Well, you're absolutely right. The very nature, though, of our constitutional arrangement at the moment means that legislation can happen where the scrutiny only occurs through the LCM process. In a 100 per cent ideal world of legislation, we would say the UK Government should never legislate in any devolved area, we'd do every single bit, et cetera. But the consequence of that would be that there would be elements of law taking place in England, where there would be an opportunity that would be beneficial within Wales, that we might not be able to give Welsh people the advantage of for a number of years. Now—

That is not true—

—it is a judgment as to what that the importance and priority of that is. I don't think it is a case that whole-scale legislation, other than, I think, in exceptional circumstances, would take place.

I was thinking of the Fire Safety Bill, or Act, when I said that. But it's not true to say that you'd have to wait a number of years. The Standing Orders of the Senedd give the Government the right to expediate legislation to provide for emergency legislation, and I think, and I think the opposition and Government Members, if the Government came to the Senedd with a case for an emergency Bill on the cladding issue, which you've just described, then I think—. It's a matter for opposition Members here to state their case, but I think that all Members would look at that very positively, for the reasons that you've given, but the Government doesn't choose to do that.

The consequence of what you're suggesting is that, effectively, we divert an enormous part of our capacity to legislate to what is determined by the UK Government in terms of what their priorities are and what their legislative programme is. So, if our role is solely to listen to what the UK Government decides is important in legislation, and then everything that they raise that might impact within Wales we then say, 'Oh well, in that case what are we going to do on this, because we think this is actually something that might be beneficial? We're going to legislate and therefore we divert our resources to that,' now that's an issue. That might raise an issue as to whether you have 100 per cent capacity to do anything and everything you want at any stage in response to that, but I don't think that's the position we're in. We—

But that's what a parliamentary democracy does.

No, we determine our priorities by virtue of the manifesto we have and our own legislative programme. That is what our priority is. The things that emerge out of the UK Government's legislative programme are the things that we have to make judgments on in terms of either the legislative consent process or in terms of the refusal of legislative consent and a decision as to whether or not we might, at some stage, either on an emergency basis or some stage in the future, legislate ourselves.

Counsel General, you raised a really interesting example there, and we could probably point to another dozen. The building and cladding regulations—was that a priority for Welsh Government? If it was a priority for Welsh Government, why wasn't it within the programme for government? If you did see the opportunity on that particular one, that there was a necessity to legislate because it had been flagged up through a neighbouring programme for government in the UK Government, why not then expediate it through the full scrutiny of the Senedd?

Well, that example, the example of building safety, is an area that is important, is covered by the manifesto, and not all elements of the legislative programme have yet been announced.

So, you may well have brought forward your own legislation here on that.

Well, if we were to bring forward specific legislation in that particular area, the question is whether it would be justifiable to say to people who are in a similar position that you've got lesser rights until that legislation comes forward than in England, and if something similar could be brought in—. The advantage, of course, also, is that some things that actually get incorporated through the legislative consent process are things that then get absorbed into specific Welsh legislation at a later stage. So, what you're doing is you're actually incorporating, and then, to some extent, consolidating, legislation within Welsh law, but what you're not doing is denying people the benefit of certain aspects of legislation earlier than might be the case.

Alun's point, really, though, is on the fundamentals of this, which Welsh Government in the previous, fifth Senedd was challenged on, and we stand by on this committee, that you can only do full scrutiny, the full weight of scrutiny, in this Senedd, in this law-making body, if you're not dealing with LCMs—sometimes two, three, four of them, amending supplementary LCMs to England-and-Wales Bills—if we grab hold of the agenda ourselves and bring forward our own. Now, I fully understand—. It's been a fascinating discussion, because the interplay between how you develop the skills and the base and deploy the resources and so on alongside political priorities, sometimes responding to external factors—. But you are a former Chair of this committee, and if you were sitting in my place now you'd be putting exactly the same argument, which is: there is no better way to develop legislation in Wales for areas particularly that are within devolved competences than to run them through the Senedd. So, we're trying to fathom why that is so much being turned now.

Well, can I say, I don't disagree with that, but that is not the nature of the legislative constitutional arrangement we have, because we don't have a proper federalised structure, which is something I would advocate that we ought to have. We don't have an adequately written constitutional structure.

But that's another argument.

No, but what we have is a process where legislation is initiated that we are required by our Standing Orders to respond to, and that therefore means that we end up with an LCM process. And you're right, it is a lesser form of scrutiny, but it is part of the constitutional structure we have at the moment.

So, on the basis of this fascinating discussion, what is your balance of judgment when you decide between the resources that the Permanent Secretary can make available to you and to Cabinet Ministers on a particular piece of legislation that you decide we should, on point of principle, carry that out here and you'll find the resources to do it? 'We'll deploy it, it will feature in our priorities for government and we'll do it, and we'll fast track it forward', or you say, 'Well, actually, we think there's something coming down the line in Westminster, or we might even make a request to Westminster to see whether we can do something jointly', because that for us is the nub of it, the feeling that something has weakened within that principled point that Welsh Government previously had, which is that the best form of legislation in devolved competences is that legislation that's made here in Wales.

Well, can I say, I try and have an overview in terms of everything that's happening, and I have a number of criteria in terms of to what extent does this impinge or impact on devolution integrity, as I call it, however you define that. And ultimately, if a matter is of such significance and importance et cetera that we do not want UK Government to legislate in that particular area, then that is where we would look to bring our own Bill forward and see where that fitted within the importance of all the other legislation that we actually had. I think the majority of the issues that arise—. I think the issue of going to UK Government and saying, 'Will you do this?' is actually extremely rare. There are some areas where there are financial or cross-border or whatever issues where there are common interests in engaging, and of course we've had all the work on common frameworks and so on, which have represented that. So, that's probably the best way I can explain it. You can only do it on a case-by-case basis, and even then it involves the entire Cabinet and you have to look at it in the round. But, by and large, most of the things that come through LCMs are things that either—. If we do have them coming through, one of the questions we always ask as well is: will this affect us at a later stage when we do bring legislation in this area, to actually absorb that? Does it in any way take away our ability to change and to adopt that law and then to modify it? And I think that's an important constitutional point and a point that arises, I think, in most of the discussions that take place with UK Government when legislation is coming forward in those areas.

I think we understand that you're wrestling with this day by day there. Listen, we're going to run out of time, but, with apologies to colleagues, there's one question that I do want to ask. If I turn very briefly to the retained EU law revocation and reform Bill, we'll have to come back to this in future in more detail, but you wrote to our committee in August saying it is, and I quote:

'of vital importance for the people and businesses...that any proposals to change...(REUL) are fully assessed'.

And you also said that the Welsh Government is not undertaking its own analysis because it does not believe it should do so given the 'scale of the task', which I think we all recognise, driven by the UK Government’s 'arbitrary' deadline. Are you going to change your position now, following the Bill’s publication?

The answer is it depends in many ways on what the format of the Bill is going to be, because, at the moment, there are a number of areas where it gives powers to UK Government to legislate in devolved areas. The discussions I've had with the relevant Minister have been to say that that has to change; that is, there should be no legislation, there should be no changing to those bits of legislation that are effectively devolved. The responses I've had have been positive assurances, but the proof of the pudding will be when we actually see the detail—that is, that the UK Government won't legislate, and certainly won't legislate unless we consented to that legislate legislation. The difficulty, when you're talking about several thousand pieces of legislation, is the actual evaluation of that. So, our approach at this stage has actually been one of engagement with UK Government departments, who are equally concerned—I think, equally—about the implications of the Bill and what might actually be required, to try and press them to identify also. We will have to do our own assurance on that, but, at the moment, we don't think it's appropriate to actually just hand over full responsibility and say, 'Okay, then, we'll take on everything, et cetera.' We want to get the constitutional principles right about the Bill—that our position is guaranteed. And because the powers will be to amend, to revoke, to retain and so on, they're quite significant powers, and if we can ensure that we get those powers, then the question is how you might go about actually doing that. But that means far more information and detail about what those 2,000 pieces of legislation are, what the implication is for standards, what the interdependencies are on them, and so on. So, that's all I can say really at this stage. If you ask me in a couple of weeks' time or in a month or two's time where we are on it, I might be able to give you a lot more detailed information. At this stage, there are a lot of exploratory discussions taking place to ascertain exactly what the full implications of the Bill are.

We are so looking forward to this coming forward on top of our existing workload. Can I thank you both very much indeed? This has been really helpful for the committee. We could have gone on a lot longer, but I know you've got to get back. We'll send you the transcript, obviously, for accuracy. If you don't mind, I think's a range of other questions that we might send to you as well—some really technical and detailed questions as well. This has been really helpful. We should do it again, with the two of you here. [Laughter.]

I do have the feeling that I sort of live in this committee room. [Laughter.]

Permanent Secretary, it's been good having you here as well. Thank you for coming forward and together as well. Thank you.

Diolch. Hwyl fawr.

Colleagues, we were up against time there, so can I suggest that what we will do is return to it in private session, look at what we've learned? I suspect there will be areas we'll have to write and follow-up on as well. But, for the moment, we can continue now to our regular business.

We're going to turn to item 3, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. The first of these is item 3.1. It's an affirmative resolution instrument, SL(6)262, the Regulated Services (Service Providers and Responsible Individuals) (Wales) (Amendment) and (Coronavirus) (Revocation) Regulations 2022. We haven't got any points for reporting on this, so are we happy to note and agree it? We are. Thank you.

Item 3.2, SL(6)264, the Homelessness (Priority Need and Intentionality) (Wales) Regulations 2022. Again, we have no points of reporting on this, so are we happy to note that? We are.

Item 4, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, and the first of these, item 4.1, is a made negative resolution instrument. It is SL(6)266, the Town and Country Planning (General Permitted Development etc.) (Amendment) (Wales) Order 2022. We have a draft report and a written statement of 30 September. Now then, let's have a look here, we've got two technical points that you've identified for reporting, Kate, and we have not yet had a Welsh Government response, but over to you.

Thank you. The first technical point seeks further information from the Welsh Government about how certain provisions in the new Schedule 2A to the Town and Country Planning (General Permitted Development) Order 1995 will operate in practice, as this is not completely clear from the provisions as drafted. The second technical point notes inconsistency between the Welsh and English texts in article 2(2) of the Order. Then, just to note that the draft report also refers to an inconsistency in footnote 2 of the Order. However, this is an error, so we will be correcting the draft report to remove that reference.

There we are. Thank you for that. Are we content with those reporting points? Thank you very much.

That brings us on to item 4.2, composite draft affirmative instrument SL(6)259, the Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 3) Order 2022. Our lawyers have identified one technical and one merits point for reporting.

The technical point notes that, as a composite instrument, the Order is being made in English only, and the merits point is that, although the emissions trading scheme was developed for all four nations of the UK, the Order only extends to Great Britain, and that's because Northern Ireland is currently unable to pass affirmative legislation.

That's great, thank you. With those observations, we're happy to agree that. We are.

Notifications and correspondence under the inter-institutional relations agreement. So, we've got three items, 5.1 to 5.3, all relating to correspondence from the Minister for Rural Affairs and North Wales, and the Trefnydd, notifying the committee that she has given or will be giving consent to the UK Government to make regulations in devolved areas. So, on 5.1 to 5.3, do we have any comments on those particular items there or are we happy to note? We are. Thank you for that.

That takes us on to item 6, the papers to note, and we've got a few here. Item 6.1: we have a letter from the Children, Young People and Education Committee seeking further information from the Minister for Education and the Welsh Language regarding the legislative consent memorandum on the Schools Bill.

We have 6.2, correspondence from the Counsel General and Minister for the Constitution informing the Llywydd that a legislative consent memorandum is likely required for the Retained EU Law (Revocation and Reform) Bill, and that it will be laid outside the normal two-week deadline. We've just been discussing aspects of this. The Counsel General states that the Bill

'contains policy content that was not shared with the Devolved Governments before its introduction and, because of the significant ramifications for the Welsh Government, it has not yet been possible to consider properly the devolution consequences'.

Then we have correspondence from the First Minister in respect of the UK-EU agreements. It might be something—these and others—that we can return to in private session if you want to.

And then item 6.4 takes us on to, if we're happy to note that correspondence, a written statement by the Counsel General and the Minister for the Constitution in respect of the consultation on the statute law (repeals) (Wales) Bill. It includes the notification that Welsh Government is now consulting on a draft statute law (repeals) (Wales) Bill, but, just to note, in the consultation document, the Counsel General draws our attention to the fact that the Government's programme to improve the accessibility of Welsh law originally envisaged that a Bill dealing with repeals of statute law would be introduced into the Senedd under the Senedd's Standing Order 26C for consolidation Bills. The Welsh Government has now deemed that it's more appropriate to introduce this Bill under the Senedd's Standing Order 26 for law reform Bills. I'd just also, for Members, note that the Counsel General anticipates a statute law (repeals) Bill will feature now in most Senedd terms. So, if we're happy to note that, we will go to item 7.

This is our standard motion, 17.42, to resolve to exclude the public for the remainder of the meeting. Are we happy to do so? We are, and we'll move into private session, please.