Legislation, Justice and Constitution Committee

If people are in agreement, we'll move on to agenda item 3, instruments that do raise reporting issues to be reported to the Senedd under Standing Order 21.2 or 21.3. The first one of these made negative resolutions is SL(6)272, Child Minding and Day Care (Disqualification) (Wales) Regulations 2022. Now, we do have a draft report here, and our lawyers have identified 11 technical and five merits points for reporting. Now, that's a high number of technical points, so perhaps our lawyers could explain some of the background to that, and then I'll ask Members whether they have any comments or observations.

Thank you. Of the 11 technical points, five of these relate to defective drafting issues, three of them are matters that require further explanation from the Welsh Government, and then three relate to inconsistencies between the Welsh and English texts of the regulations. In relation to the five merits points, the most significant of these is reporting point 14 in the draft report, which sets out some concerns about the accessibility of these regulations. A reader of the regulations is required to check the Schedules to ascertain which orders, determinations or offences disqualify a person from being involved in regulated childcare in Wales. However, some of the entries in the Schedules do not identify the specific provision of legislation that provides for such an order, determination or offence. So one example of this is paragraph 15 of Schedule 1, which provides that a person is disqualified if they have been subject to a fit person order, a parental rights order, or a training school order under the Children and Young Persons Act (Northern Ireland) 1968. That Act contained 182 sections, so it could be challenging for the lay reader to identify which is the relevant provision.

In addition, many of the relevant provisions have since been repealed, and that means that it's quite difficult to locate them without having access to specialist legal software. A similar issue also arises where the regulations are citing legal instruments from the Channel Islands or the Isle of Man, and again, it's difficult to locate these, particularly when they've been repealed. So, we've requested a response from the Welsh Government in relation to each of the technical points and in relation to three of the merits points, including that point on accessibility, and we're waiting to receive the response.

I'm grateful to you for that. One of the lessons that, of course, we learned from the former Lord Chief Justice of England and Wales, Lord Thomas, was that, not only is it lay people who have difficulty accessing Welsh law sometimes, but some professional people do as well. And I think the explanation you've given there is a very clear reason why accessibility is so important on these points. So, my inclination would be to wait until we receive that response before we have a substantive conversation about how the Government intends to respond to it. Do Members have any points they wish to make? No. I'm grateful to you, Kate, for that; that's a very comprehensive report and a very important one, actually, in terms of how we take these matters forward. So, Gareth, as clerk, we'll wait until we get a response from the Welsh Government, and then perhaps we can put this on an agenda for a future meeting if those issues, as identified, have not been addressed.

Are you happy to lay the draft report and then take a Government response?

Yes. In the meantime, yes.

Okay.

Thank you very much for that. Item 3.2 is SL(6)276, the Renting Homes (Fitness for Human Habitation) (Wales) (Amendment) Regulations 2022. I'd like to ask you, Kate, again if you have any issues arising from this. But, this is, for Llyr and Carolyn's purposes, one of a series of regulations that we've been addressing over the last few months as this particular piece of legislation is implemented. So, we've discussed this on a number of occasions in the past. Do we have any points from the lawyers to advise us?

There was one reporting point on these regulations. It relates to defective drafting in regulation 2(2)(a), which refers to paragraph (a) when it should refer to sub-paragraph (a), and we're waiting for a Welsh Government response on that point.

That's fine. Any other contributions on that? So, we move on to item 3.3, SL(6)270, the Renting Homes (Wales) Act 2016 (Consequential Amendments) Regulations 2022. These regulations make amendments to primary legislation as a consequence of provisions of the Renting Homes (Wales) Act 2016. Now, Members will recall that a draft of these regulations was laid before the Senedd in June, and subsequently withdrawn in July following a report of this committee. An amended version was laid later in June, but again withdrawn last month following another of our reports. A further amended version, which is the subject matter of this report, was laid in front of the Senedd on 11 October. Generally, the amendments made by the regulations either ensure that an existing provision in primary legislation continues to have appropriate effect, or where the provisions of the 2016 Act are intended to replace elements of existing law, or the existing law is incompatible with that set out in 2016, they disapply that law. Now, we've had two technical and two merits points for reporting. Can I invite Kate to give an update on that, please?

Thank you. The first technical point seeks clarification as to whether an amendment to the Energy Act 2011, made by regulation 32(3), is intended to have the effect of expanding that provision. The Welsh Government's response confirms that that is the intended effect of the provision. The second technical point identified defective drafting in regulation 34(2). However, the Welsh Government's response is that it considers the meaning of the provision to be clear within its context.

The two merits points, both of these have been considered by the committee previously when looking at the previous drafts of these regulations. So, they're simply points to note at this stage.

Do we have any comments or observations from Members on that? I do not see any, so we can agree that Members agree the reporting points. So, we move on to item 3.4, which is SL(6)275, Agricultural Holdings (Fee) Regulations 2022. As a composite instrument, a draft of these regulations has been laid before the Senedd and the UK Parliament. The draft must be approved by each of these legislatures before it can be made. These regulations revoke and replace the

Agricultural Holdings (Fee) Regulations 1996, which were also made on an England-and-Wales basis.

The regulations in front of us today do a number of things, including increasing the prescribed statutory fee that can be charged by a professional authority for the appointment of an independent arbitrator to resolve disputes; introduce a new statutory duty on Welsh Ministers to carry out a review of the regulations every five years. I think we've identified one technical point for reporting on this, and a Welsh Government response is not required. Is that right, Kate?

Yes, that's correct. The reporting point here is that, as a composite instrument, the regulations will be made in English only. And I also just need to ask you to note that there's a minor typographical error in the draft report in the section explaining the relevant procedure applying to these regulations, so we will correct that before the report is finalised.

Any comments from Members? I see James.

No, just for Llyr and Carolyn's point here: I think it does state in there that the regulation is not bilingual. Alun, I think it's something that we've been pushing on on the committee, haven't we, to actually get the bilingual legislation. If it is required to have the legislative consent of both houses—up in Westminster and from ours—it should be in Welsh and it should be in English, and I just wanted to raise that so that Llyr and Carolyn know that that's something that we have been pushing on as a committee.

Yes. Yes, I agree with you, James. The UK Parliament does manage to use Norman French on occasions, so I'm sure that they can struggle through a bit of Welsh as well, so I think that that's something that we should continue to press on. I'm grateful to you for that. But with those comments, are we content? I see that we are.

Shall we move on to item 4, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 that have been previously considered? Item 4.1 is SL(6)267, the Marketing of Seeds and Plant Propagating Material (Wales) (Amendment) (EU Exit) Regulations 2022. Again, we have a report on this. We considered this instrument at our meeting on 24 October and laid a report the following day. Members are invited to note the Welsh Government response to the report, which has since been received. Do we have any comment from our lawyers?

It's simply to note that the Welsh Government confirms that it will correct the errors identified in the committee's report.

And with that, do we have any further comment or observation to make? Otherwise, we will move on. I'm grateful to Members for that.

Written statements under Standing Order 30C. In advance of these written statements being laid, the committee has received and considered at earlier meetings advanced correspondence from the Welsh Government about the regulations under each item. On Friday 4 November, last Friday, the Chair wrote to the Minister, Lesley Griffiths, seeking information on a number of issues.

Item 5.1 is WS-30C(6)014, the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2022, and we've seen a written statement on 20 October from the Welsh Government that the Government was giving consent for the UK Government to make those regulations, and those regulations were in fact laid before the UK Parliament on 19 October. This statement notes that the regulations amend retained EU law by correcting a number of errors within the retained regulations, to ensure that Great Britain complies with its obligations under the Stockholm convention, which aims to prohibit, eliminate or restrict the production and use of persistent organic pollutants. Do we have any comments from our lawyers on this? And I now will ask Members whether they have any observations to make.

The legal advisers have no comments on this.

No advice from there. Any observations from colleagues? I can't see anyone, so we will note that written statement.

Item 5.2 is WS-30C(6)015, the Trade in Animals and Related Products (Amendment and Legislative Functions) Regulations 2022. Again, this written statement of 20 October notifies the Senedd that the Welsh Government has given consent for the UK Government to make these regulations, and those regulations were laid before the UK Parliament on 20 October. The statement notes that regulations correct deficiencies in retained EU law, and that relates to the importation of animals and related products, and that the regulations transfer functions of EU bodies to the appropriate authority so that retained EU law operates effectively in domestic law. Do we have any comments on this?

I can't see any from anyone, so we'll note that and move on to item 5.3, WS-30C(6)016, the Animals and Animal Health, Feed and Food, Plants and Plant Health (Amendment) Regulations 2022. Paper 13 refers to a written statement on 21 October 2022, and this notifies the Senedd that the Welsh Government has given consent for the UK Government to make these regulations, and the draft regulations were laid before the UK Parliament on 20 October. The statement notes that the regulations propose amendments to retained direct EU law relating to official controls on imports to Great Britain of animals and animal products, plant products, including food, as well as rules on animal health and welfare, and rules on the marketing of planting and propagating material, following the UK's withdrawal from the EU. The statement also notes that regulations address minor EU exit-related deficiencies not anticipated at the time of the withdrawal from the EU, and that whilst it's considered appropriate to consent at this time, the Minister does so whilst reserving the ability to diverge in future as per devolved competence. The statement also notes that the regulations make amendments to primary legislation. Members may wish to write to the Minister for Rural Affairs and North Wales, and Trefnydd, to seek clarity on whether a statutory instrument consent memorandum should therefore be laid in respect of these regulations. Do we have any comments on that? It's quite a considerable statement there to consider. I can see Carolyn.

Thank you, Chair. I read in the report that the written statement does not give practical examples of the changes made by the regulations, and it's quite important as it refers to plant and animal health. I was just concerned that we would be agreeing to something that we don't quite know the detail on. But I do hear what you said, that the Minister could in the future relook at this as well. So, those were my concerns. Should we write and ask for more detail on this, or should we just wait and see? As somebody that's not normally on this committee, it's fine also if I am not understanding this correctly.

I'm sure you do understand it perfectly. It's fine. The changes that the Minister may make—Gareth, please advise me if I get this wrong—but the changes that the Minister will make to law or to regulations under these new regulations will be scrutinised in the normal way through the relevant committee or through Senedd procedures. What we're looking at here is the transfer of function, essentially, from the EU to UK appropriate authorities.

If I may, Chair, my understanding is that, yes, at some point in the future, should the Minister wish to change or diverge from policy, the Minister may do that through separate Welsh regulations. If Members wanted to write to seek further clarity about what consenting to these regulations means in practice, then I think it would be appropriate to do that, alongside, if Members are also content, seeking the Minister's views on whether a statutory instrument consent memorandum should also have been laid in respect of these regulations.

I'm happy with both of those suggestions. Do other Members have any comments or observations to make?

Thank you. Could I support that?

I see that Members are content. Carolyn supports that. So, I'm grateful to you for the advice, Gareth, and we're happy to move ahead on both of those matters. Thank you, Carolyn.

Item 5.4 is WS-30C(6)017, the Food and Feed (Miscellaneous Amendments) Regulations 2022. This refers again to a written statement, on 24 October, that the Government had given consent for the UK Government to make these regulations, and the regulations were laid before the UK Parliament on 20 October. A number of changes are made by these regulations. They transfer new functions from the European Commission to the Welsh Ministers. The transfer of these functions was omitted in error by an earlier statutory instrument. These correct provisions of retained direct EU legislation in devolved areas in relation to which functions, so far as exercisable in relation to Wales, were transferred to Welsh Ministers under previous statutory instruments amending retained direct EU legislation in the areas of food and feed hygiene and safety for the purpose of rectifying legal deficiencies and ensuring the continued operability of that legislation post the implementation period. I got that eventually. Are there any comments or observations to make by Members, or do we have any advice from our lawyers? No advice, no comments, no observations. Are Members content?

If Members are content, we will move to item 6, notifications and correspondence under the inter-institutional relations agreement. Item 6.1, correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd on the Control of Mercury (Amendment) (EU Exit) Regulations 2022. This is paper 17, which refers to the letter of 21 October, at pack page 40. Members are invited to note the letter from the Minister, which states that she has given consent to the Secretary of State to make these regulations, and the regulations were laid before the UK Parliament on 19 October. The Minister states that she is giving consent to ensure consistency and the coherence of the statute book, that legislating separately wouldn't be a prudent use of Welsh Government resources and that there is no policy divergence between the Welsh and UK Governments on this matter. We did write, if Members recollect, to the Minister about this wording on 4 November. That was in response to the Minister's letter of 10 October, referred to in her subsequent letter, just for background. Do we have any observations or comments to make on that item?

If we do not, we will move on to item 6.2, which is again correspondence from the same Minister on the Phytosanitary Conditions (Amendment) (No. 3) Regulations 2022. The Minister states again that she is giving consent to the Secretary of State to make these regulations and that she's doing so for the same reasons, essentially, as listed in the previous item, to ensure consistency and the coherence of the statute book, that it wouldn't be a prudent use of Welsh Government resources and there's no policy divergence between the Welsh and UK Governments on these matters. The Minister states in addition that these regulations do not have implications for the programme for government. Do we have any observations or comments to make on that?

If we don't, we'll move to item 6.3, which is a written statement by the Minister for Finance and Local Government on the Subsidy Control (Subsidies and Schemes of Interest or Particular Interest) Regulations 2022, and this written statement was made on 1 November. Members are invited to note the written statement by the Minister, which raises a number of concerns regarding these regulations, and this is something we've discussed before and something that is of considerable public interest. We may wish to have a conversation about these matters in our private session, but do Members have any issues to raise at the moment? If they don't, we will move on.

Item 7, papers to note. Item 7.1 is a written statement by the Minister for Finance and Local Government on the Welsh Tax Acts etc. (Power to Modify) Act 2022. Are there any comments on that?

Item 7.2 is correspondence from the Minister for Climate Change to the Llywydd on the Social Housing (Regulation) Bill. Do we have any comments on that?

Item 7.3 is correspondence again from the Minister for Climate Change—the Welsh Government response to the committee's report on the Environmental Protection (Single-use Plastic Products) (Wales) Bill. Again, that is a matter we may wish to refer to in private session. But, if Members do not have any observations to make, we will move on.

Item 7.4, a written statement and correspondence from the Minister for Economy on the border controls regulations. Again, this is quite an interesting issue where the Welsh Government is taking a particular view, and the written statement and letter from the Minister informs the Senedd that he intends to use secondary legislation to delay checks on sanitary and phytosanitary goods, which were due to begin on 1 January 2023. This will again extend the transitional staging period until 31 January 2024, and the Minister states, of course, in this correspondence that he is expecting these checks to be postponed elsewhere in Great Britain as well. Are there any comments or observations? There aren't.

We'll move on to item 7.5, correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd, and this refers to WS-30C(6)011, the Animals, Food, Plant Health, Plant Propagating Material and Seeds (Miscellaneous Amendments etc.) Regulations 2022. This refers to the Minister's response to the committee's request for clarification on a number of issues. Do we have any observations or comments to make on that?

If not, we will move on to 7.6. Again, this is correspondence on the legislative consent memorandum on the Levelling-up and Regeneration Bill. We've got some papers there. Do Members have any comments or observations to make on this? This is regarding further information, of course, on the LCM on this particular UK Bill.

If we don't, we'll move on to item 7.7, which is a written statement by the Counsel General and Minister for the Constitution on the Retained EU Law (Revocation and Reform) Bill. This written statement confirms that the legislative consent memorandum for the Bill has now been laid before the Senedd, and the statement also highlights a number of different concerns that Welsh Government has with the Bill. We have had a conversation and reached agreement before half term, but now that the memorandum has been laid, an invite has been issued to the Counsel General to attend our meeting on 28 November to discuss the Bill and the memorandum. So, I would suggest that we refer that matter to that meeting, unless Members have any observations to make this afternoon. We don't.

So, we move on to item 7.8, which is correspondence from the Parliamentary Under-Secretary of State for Justice, Lord Bellamy—'Access to Justice: Summary of Engagement'. We may remember that Lord Bellamy will be giving oral evidence to the committee on 5 December on matters relating to justice in Wales.

If we have no observations or comments to make on that, we'll move on to item 8, which is a motion under Standing Order 17.42 to exclude the public from the remainder of this meeting. Do I see any objections to that? I don't, so therefore we will move into private session. Thank you.