Legislation, Justice and Constitution Committee

We're fully quorate, so we'll proceed straight to the first substantive item, which is item 2, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We have two items in this section, the first of which is a made negative resolution instrument under item 2.1. This is SL(6)428, the Regulated Services (Registration) (Wales) (Amendment) Regulations 2023. These make provision about the form and content of applications for registration and applications for variation of a registration under Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016. The regulations amend the 2017 regulations so that they apply to special school residential services. There are no reporting points on this, so if you are happy to agree those points, we'll move on to item 2.2.

Item 2.2 is SL(6)429, the National Health Service (Charges to Overseas Visitors) (Amendment) (No. 3) (Wales) Regulations 2023. These regulations amend the 1989 regulations that provide for the making and recovery of charges for relevant services provided under the National Health Service (Wales) Act 2006 to certain persons not ordinarily resident in the United Kingdom. The regulations add Iceland and Liechtenstein to the list of countries or territories in respect of which the UK Government has entered into a reciprocal agreement, an agreement that we have, indeed, recently considered as a committee. Again, we have no reporting points on this, there's no Welsh Government response required, so if you're happy to agree these reporting points, we can conclude item 2.

We'll go on, then, to item 3, which, as normal, is instruments that do raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. The first of these we have in front of us—we've got several here with us today—is item 3.1. It's made negative resolution instrument SL(6)430, the Apprenticeships (Specification of Apprenticeship Standards for Wales) (Modification) (Revocation) Order 2023. In your packs, colleagues, we have a draft report and a letter from the Minister for Economy dated 8 December 2023. You'll recall that we considered the Apprenticeships (Specification of Apprenticeship Standards for Wales) (Modification) Order 2023 in our meeting on 4 December last year and the 2023 Order modified the specification of apprenticeship standards for Wales. This Order revokes the 2023 modification Order as a result of the 13 technical points that we identified in our committee report. Our lawyers have identified one merits reporting point. We don't need a Welsh Government response on this, but it's good to see the response to the points that we'd previously raised. But, Kate, can I ask you for your legal analysis? What's the merits point there?

The merits point is simply noting the breach of the 21-day rule in relation to these regulations.

Thank you very much, Kate. We're very familiar with that. Colleagues, if you're content with that, thank you very much.

That takes us on, then, to item 3.2 in this section, SL(6)431, the Education (Student Finance) (Miscellaneous Amendments) (No. 3) (Wales) Regulations 2023. These amend various existing regulations relating to student finance. Amongst other things, the amendments update the categories of eligible students in various regulations to include certain family members of persons who were granted leave to enter or remain in the United Kingdom under the Afghan or Ukraine-related immigration schemes. Our lawyers have identified, I think, eight technical reporting points and one merits reporting points, Kate, and unless you're going to tell us otherwise, we haven't had a Welsh Government response yet.

Yes, that's correct. The first two technical reporting points are seeking further information from the Welsh Government, first in relation to a reference to a deleted paragraph of the immigration rules, and second in relation to words that appear to be missing from some of the amendments that are being made. Three of the technical reporting points relate to potentially defective drafting and the final three identify inconsistencies between the Welsh and English language texts. And then the merits point is simply noting that there's been no formal consultation. We're waiting for the Welsh Government's response.

Thank you, Kate. Thanks for that analysis, as well. If we're happy to agree those reporting points, colleagues, we'll go on.

Item 3.3 is SL(6)433, the Non-Domestic Rating (Improvement Relief) (Wales) Regulations 2023. These regs have effect for the purposes of determining eligibility for, and calculating the amount of the improvement relief from, non-domestic rating liability. The explanatory memorandum to the regulations states that they are intended to incentivise investment in property improvements by providing ratepayers with a 12-month period of relief from the effect on their non-domestic rates liability of increases in rateable value that would otherwise occur. So, that’s the policy intent. Our lawyers have identified one merits reporting point, and we don’t need a Welsh Government response on this one. So, Kate, what have you found there?

The merits point here is just noting the relationship between the regulations and the new Schedules that were inserted into the Local Government Finance Act 1988 by the Non-Domestic Rating Act 2023.

Thank you very much, Kate. Again, if we’re happy to agree that, we’ll go on to the last two items in this section.

The first of those is item 3.4, SL(6)434, the Local Authority Social Services Annual Reports (Prescribed Form) (Wales) (Amendment and Transitional Provision) Regulations 2023. We have a draft report in our packs. These regulations amend the 2017 regulations, which prescribe the specific information that must be included in the annual reports of local authorities in respect of their social services functions. They set out the headings under which the required information is to be provided. The regulations amend the 2017 regulations to update the information that must be included in those annual reports. This is being done to ensure alignment with the requirements of the revised code of practice that has been issued in relation to the performance and improvement of social services in Wales. We have had a Welsh Government response on this, I think, but our lawyers have identified a technical reporting point. Kate.

Thank you. The technical reporting point relates to defective drafting, in that one of the powers apparently relied on to make the regulations has not been cited in the preamble. In response, the Welsh Government accepts this point, but suggests that, in accordance with the relevant legal principles, the courts can intervene to correct what is clearly a drafting error. As the committee’s legal advisers, we agree that that is a relevant legal principle, but we’d also note that an instrument may be invalid to the extent that it’s made under a power that’s not cited in the preamble. The courts can, of course, rectify defective instruments, but that’s a discretionary remedy, so it’s up to the courts whether they wanted to do that. It’s also not entirely satisfactory that users of legislation should be required to rely on the courts to do that. However, the reasoning the Welsh Government has provided for why the error is unlikely to cause problems in practice is persuasive, and so you may just want to note that the outcome here is not entirely satisfactory.

I think that’s quite sensible, and I can see colleagues—Alun and Sam and others—nodding on that. It’s not ideal. There is a practical way forward, but it’s not the ideal way forward; it should be correct at the point of issuing these regulations. But we have had the Welsh Government response, and we note that. But yes, what Kate has suggested is right, and I think we’d be happy to act on that suggestion.

We’ll go on, then, to the last in this section, which is an affirmative resolution instrument under item 3.5. This is SL(6)432, the Wine (Amendment) (Wales) Regulations 2024. We have a draft report and a Welsh Government response in our packs. These regulations make amendments to assimilated direct legislation relating to the marketing of wine and wine-related practices used to produce and conserve wine and other wine products. Amongst other things, the regulations insert a provision into legislation prohibiting the marketing of a product using the term ‘ice wine’ and similar terms unless the product is wine made exclusively from grapes naturally frozen on the vine. Our lawyers have identified two technical reporting points and one merits reporting point, and we have—as I mentioned, in your pack—received the Welsh Government response. Kate.

The first technical point relates to potentially defective drafting, in that a title of one of the regulations cited in the preamble appears to be incomplete, but, in response, the Welsh Government says that this approach mirrors the approach taken in similar regulations, including the draft England version of these regulations.

The second technical reporting point is seeking further explanation from Welsh Government in relation to one of the references to the 'OIV Code of Oenological Practices'. And, in response, Welsh Government has confirmed that the reference in the regulations is correct.

And finally, the merits point asked Welsh Government to confirm whether or not a regulatory impact assessment had been carried out. In response, Welsh Government has explained that a regulatory impact assessment was not prepared because the provisions on ice wine are putting into effect a policy already decided by the UK Government when it signed the comprehensive and progressive agreement for trans-Pacific partnership protocol of accession.

Thank you, Kate. I believe we are happy to agree those points.

So, we'll go on then to item 4, which, as normal in the sequence of these items, are the instruments that do raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 that we have previously considered as a committee. And, colleagues, if I can suggest that, on the first two items, 4.1 and 4.2 in this section, we group those two items because they are related. So, for convenience.

These are item 4.1, SL(6)419, the Water Resources (Control of Agricultural Pollution) (Wales) (Amendment) (No. 3) Regulations 2023, and item 4.2, SL(6)436, the Water Resources (Control of Agricultural Pollution) (Wales) (Amendment) (No. 4) Regulations 2023. In our packs we have the initial report, the Welsh Government response, a subsequent report and a Welsh Government response. You'll remember that we considered these instruments at our meeting last week and we laid our report that same day. So, I just invite you to note the Welsh Government responses to the reports that have been received. I don't know, colleagues, whether you have any comments on this or you're happy purely to note those responses now. Yes. Okay. And, Kate, no additional observations on this.

No.

In which case, then, having dispensed of 4.1 and 4.2, we'll go to item 4.3, which is SL(6)427, the Building Control Profession (Charges) (Wales) Regulations 2023. And, again, we have a report and a Welsh Government response here. We considered this instrument at our meeting last week. We laid a report that same day. So, again, unless you have any comments, colleagues, I just draw your attention to the report and ask you to note it.

And then that takes us on to the last instrument in this section of ones we've previously considered. Under item 4.4, we have SL(6)426, the Building (Building Control Profession) (Registration, Sanctions and Appeals) (Wales) Regulations 2023. And, once again, we have a report along with a Welsh Government response. This, again, is an instrument that we considered at our meeting last week, and then we laid our report on the same day. So, again, it's just to note the response to the report from the Welsh Government, if you're content to do so.

In which case, then, we can dispense very quickly with item 5, because that is the section where we look at instruments that raise issues to be reported to the Senedd under Standing Order 21.7 that we've previously considered. There are none.

So, we can go straight past that and on to item 6, where we have the notifications and correspondence under the inter-institutional relations agreement. So, here, there are a few items to look at, the first of which is under item 6.1. We have a written statement and correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd. She confirms in that that she has given consent to the laying of the Official Controls (Extension of Transitional Periods) (Miscellaneous Amendments) Regulations 2024. And the Minister explains that she regrets it wasn't possible to give the committee advance notice, as the statutory instrument was received during recess. The Minister goes on to state that the purpose of these regulations is to protect biosecurity, to ensure food safety and support trade, by introducing the first milestone of the border target operating model. The Minister explains that the reason she has given consent is

'for reasons of efficiency and expediency in future policy change and adherence to international obligations, cross-UK coordination, and consistency.'

Just one final point on that is that the Minister confirms that the regulations were laid before the UK Parliament on 9 January 2024 and they're going to come into force on 30 January 2024.

If we're content with that, we'll go on to item 6.2, the other item in this section, where I draw your attention to the correspondence from the Counsel General and Minister for the Constitution, informing us that he is attending the next meeting of the Inter-ministerial Group for Justice, which will be hosted by the Scottish Government in Edinburgh on 25 January. The Counsel General notes that:

'The meeting is likely to focus on a range of issues relating to Prison Capacity, Court Recovery, and Legal Aid.'

And we're glad to say that the Counsel General tells us he will update us after the meeting.

So, colleagues, in which case, we will move on, then, to our last item in the public session on the agenda today, which are the papers to note. There is only one item here, which is an item of correspondence from the Minister for Finance and Local Government; this is under item 7.1. It's in respect of the Local Government Finance (Wales) Bill, in which she clarifies two matters in the transcript of our evidence session with her on 11 December.

So, colleagues, we have plenty of work to do now in private session, so can I ask you if you are content, under Standing Order 17.42, to move into private session and exclude the public now for the remainder of the meeting? You are. Thank you very much. If I could ask our clerks if they can take us into private session now, please.