Legislation, Justice and Constitution Committee

As we have no apologies, we move straight to item 2 on the agenda, which is instruments that raise issues to be reported to the Senedd under Standing Orders 21.2 or 21.3. We have one affirmative resolution instrument to take account of today. It's item 2.1, SL(6)328, the Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2023, and you have a draft report in your pack. Now, Members will recall that an earlier version of these regulations was withdrawn by Welsh Government before we reported on them. The regulations are intended to reform the non-domestic rating appeal system in Wales, and they implement a new process for taxpayers to engage with the Valuation Office Agency and a small number of additional changes to the arrangement for appeals to the Valuation Tribunal for Wales. There's only one merits point to note that our lawyers have identified. Kate.

Thank you. Regulation 16 imposes a financial penalty on a person who provides false information to a valuation officer, and the merits point notes that any such sum received by the valuation officer must be paid into the Welsh consolidated fund.

There we are. Any comments from Members, or are we happy to note and agree with that reporting point? Thank you very much. Thank you, Kate.

So, we move on, then, to item No. 3, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 that we have previously considered, and again, we have one item here only. It's item 3.1, SL(6)322, the Countryside and Rights of Way Act 2000 (Review of Maps) (Amendment) (Wales) Regulations 2023. In your packs, you'll have a report and a Welsh Government response. Now, we considered this as a committee at our meeting of 27 February, and we laid our report the same day. So, I just invite Members to note the Welsh Government response to the report, which has since been received. I don't know if you've got any particular comments, anybody, or happy to note—and no particular comments, Kate? There we are. Thank you very much.

We'll move on, then, to item No. 4, a regular item for us—the common frameworks. Again, we have one item under this. It's item 4.1, correspondence from the Minister for Climate Change in respect of the UK emissions trading scheme common framework. It's a letter dated 28 February 2023, and it outlines the finalised framework outline agreement for the UK emissions trading scheme and the related concordat that have now been published.

So, if we're happy to note that, we'll go on, then, to item No. 5, papers to note. Now, there are a few here, and as per normal, if that's okay, I'll rattle through, but stop me if there's something that you want to raise. Item 5.1, we have a written statement by the Minister for Finance and Local Government in respect of amendments to the UK Government legislation to support corporate joint committees. It's quite interesting, in some ways, because, in noting that written statement there, the Minister notes that,

'outstanding technical issues emerged during implementation of these CJCs, including their taxation status',

so that, when issues arising from Senedd legislation require amendments to UK-wide legislation beyond the Senedd’s legislative competence, an Order under section 150 of the Government of Wales Act 2006 can be developed in partnership with the UK Government.

So, the Minister notes that the Secretary of State for Wales has therefore laid the Local Government and Elections (Wales) Act 2021 (Corporate Joint Committees) (Consequential Amendments) Order 2023 before the UK Parliament. This Order, if approved, will provide for the amendments to the various pieces of UK legislation to add CJCs to their definitions of local authorities, or to the list of bodies encompassed within the legislation. So, it's an important piece of legislative tidying up there. So, if you're happy to note that, if there are no comments.

Item 5.2, we have correspondence from the Counsel General and Minister for the Constitution. He's responding to our letter of 3 February that asked several follow-up questions after his appearance before our committee on 16 January in relation to the Welsh Government's draft budget for 2023-24 and general scrutiny.

Then item 5.3, we have a letter from the Counsel General in relation to the Historic Environment (Wales) Bill, which has been taking a lot of our time recently. The Counsel General responds to our letter of 15 February in which we ask questions about the Welsh Government's plans for considering legislation in relation to the protection of sites of historic wrecks—something, James, that you picked up previously. We might want to come back to that in private session, but are you happy to note it for now?

Yes.

Okay. Item 5.4, we have correspondence from the Deputy Minister for Social Partnership, informing our committee, along with the Equality and Social Justice Committee and the Finance Committee, that she has laid an updated version of the explanatory memorandum for the Social Partnership and Public Procurement (Wales) Bill. Revisions have been made throughout the explanatory memorandum in response to a number of Stage 1 committee recommendations, and they are listed in that letter.

Item 5.5, we have correspondence from the Minister for Social Justice and the Counsel General and Minister for the Constitution to the Llywydd in respect of the Bill of Rights Bill. The Minister notes that the Bill still appears to be paused at the moment by the UK Government. The Welsh Government has sought clarification about progress and is awaiting a reply. And the letter states that, if the Bill does progress to Second Reading, then a legislative consent memorandum will be laid at the earliest opportunity, but we're waiting to see at the moment.

Item 5.6, we have correspondence from the Counsel General and Minister for the Constitution in response to our report on the Welsh Government's draft budget for 2023-24, and the Counsel General responds to the recommendations in our report. If you're happy, we'll defer discussion on that to private session.

Item 5.7, we have a letter from the Counsel General and Minister for the Constitution to the Llywydd, informing the Llywydd that he intends to prepare a further single supplementary LCM, legislative consent memorandum, to deal with amendments to the Retained EU Law (Revocation and Reform) Bill, which were tabled in the House of Lords. Now, he acknowledges that this will mean that the SLCM will be laid more than two weeks after the tabling of the first batch of amendments, so this is an ongoing thing now. So, we might want to come back to that in private as well.

Item 5.8, our final item there to note, is correspondence from the Minister for Climate Change in relation to the re-laying of the Packaging Waste (Data Collection and Reporting) (Wales) Regulations 2023. Now, these regulations replace an earlier version of the regulations, which were withdrawn on 9 February. We've touched on the history of that previously. The Minister's letter of 1 March details four cross-referencing errors in the regulations. The Minister says that she will draw these errors, and the correction of the regulations prior to making, to the attention of Senedd Members in the Plenary debate on the regulations, scheduled for 14 March. And the letter of 1 March also refers to previous correspondence from the Counsel General, which concerns how and when corrections of statutory instruments are made. The Minister's letter of 14 February explains that these regulations fall under the scope of the resources and waste common framework. Can I suggest that this is definitely something that we'll want to return to in private session?

Croeso nôl. Welcome back, everybody, to this afternoon's session of the Legislation, Justice and Constitution Committee. We've already had one session before the slight break, but now we're heading to the substantive item of the day. Good afternoon, Minister; delighted to see you here with us. We're looking at the Health Service Procurement (Wales) Bill today, taking evidence from Eluned Morgan, the Minister for Health and Social Services. We have with us Dafydd Evans, deputy director, life sciences and innovation, Welsh Government; we have a late replacement, but very welcome indeed—Jolanta Griffiths, government lawyer, Welsh Government; and Lowri Lewis, government lawyer, Welsh Government as well. So, you've come well supported there, Minister. Just by word of welcome to you, if we do get to a point where we haven't been able to ask everything, we'll rapidly follow up with some written supplementaries to you, if that's okay. But let's see how far we get.

I'll go straight into my standard questions as a Chair, if that's okay, Minister. First of all, are you satisfied that the Bill is within the Senedd's legislative competence?

Yes, it absolutely is, because obviously health is a devolved competence, and this procurement refers to health.

That's great. And what discussions have you had with UK Government in respect of the Bill?

I think it's really important to just give a little background in terms of the context, if you don't mind, because it's quite a technical Bill and it can get quite anoraky, so I'm just going to try and translate it into something that is a little bit more meaningful, if you don't mind.

After Brexit, the UK Government thought, 'Right, what we'd like to do is to do procurement in a different way', so they came up with this UK Government Procurement Bill. But the Department of Health and Social Care said, 'Do you know what? We'd quite like to carve ourselves out of that and to do our own thing, because there may be examples where we can give a service without having to go through the whole procurement rigmarole, where a service is working well and maybe there's the third sector delivering something.' And so they said, 'Right, we're going to carve ourselves out.'

The thing is, they carve themselves out and that means that, all of a sudden, we're in a different place from England when it comes to procuring health services. So, what we're doing here just broadly is making sure that we rush to fill a gap so that we haven't got an unequal playing field with England, or at least we've got the option of keeping a level playing field if we want to. But as it stands, if we weren't to act we would be in a different position. So, I just wanted to give you that kind of background in terms of where we're at.

Just in terms of discussions with the UK Government, obviously the Health and Care Act 2022, which is what the provider selection regime comes under, was an England-only Act. Then there's the Procurement Bill, which is Wales, England, Northern Ireland. When that came in we said, 'How about carving us out so we can also do our own health exclusion?' and they said, 'Well, we can carve you out, but we can't put you back into anything. We don't have the power to do that', so that's why we were left in this position where we thought, 'Right, we're going to have to do our own Bill'. Dafydd, have I explained that?

Yes, very well.

So you're content that, in terms of the engagement that you've had, the discussions you've had with UK Government Ministers, they're in a happy place with the proposals here as well, yes?

Well, they haven't particularly helped us out on it.

But they're not obstructing it either.

They're certainly not obstructing, no.

Right. Okay. I can see Dafydd shaking his head as well. We'll get into some more detail on that in a moment. But could I ask—? We've got procurement going on all over the place at the moment, Bills coming out of our ears. Given that the UK Government's Procurement Bill was introduced into the House of Lords on 11 May 2022, and the Health and Care Act 2022 received Royal Assent on 28 April 2022, why is this Bill only now being introduced?

The Department of Health and Social Care consulted on their proposals last spring, and, since then, my officials have been spending their time consulting with the NHS, in terms of 'Right, what does this mean for us? What do we need to do? How would any changes in England under the provider selection regime impact on health services in Wales?' What we've done here is to respond to that, and to find the earliest stand-alone legislative slot to minimise that time gap that I was talking about, to avoid having what is an unequal playing field.

One of the things that this has resulted in, however, is more limited time for Stage 1 scrutiny, so what are your feelings on how that time has been managed? I do take your point that sometimes, as a Minister, you have to wait to be given a slot.

That's right. You're the constitution committee; you know that there are Bills lining up, and to try and sneak a little gap—. This is why this is a very, very short Bill, as you'll be aware. And this is a framework Bill, so the key thing to remember is that this gives us the permission to then do things when it comes to regulations. So, in terms of the real scrutiny, I think, the important bit will come when we're laying the regulations.

Okay. Alun.

Thank you. I'm grateful to you, Minister, for that explanation about the relationship between this Bill and legislation in Westminster. It doesn't seem to be the best example of inter-governmentalism, but it is what it is. I think we're all used to that by now. But in terms of the Welsh Government working with the Welsh Government, we've been discussing in this committee another procurement Bill, of course, which the Chair referred to, the Social Partnership and Public Procurement (Wales) Bill. So, why is it that we've got two Welsh Bills?

The social partnership and public procurement Bill is mostly about organisational principles, and this is about how you do procurement. So, it's a very different approach. That's the main reason why we're doing that. I don't know, Dafydd, is there anything—?

Simply, that's the answer. One is about outcomes, one is about policy.

But shouldn't all legislation be about outcomes?

Well, yes, but the outcomes that we're talking about will—. The framework that is within the social partnership Bill is a way of working, whereas what we're talking about is something that will lead to some quite technical changes when it comes to procurement.

But you've said yourself, Minister, that it's a short Bill, it's a technical Bill in many ways. It seems to me that that is a perfect example of a piece of legislation that could be slotted into a much wider piece of work, which would be more efficient for yourselves.

We've explored every avenue, if I'm honest. We found that it didn't sit comfortably with other Bills, and that's why we've taken this route. We did explore that as an option and found that it wouldn't have worked.

Alun, I think Dafydd might want to come in as well.

Just to follow up on the Minister there. In terms of the accessibility of this Bill, it is a short Bill, with a couple of clauses. When its work will have been done—because, effectively, those two clauses then pass into the two other Acts, the Procurement Act 2023 and the National Health Service (Wales) Act 2006—it will be very accessible at the end of that. But as the Minister said, this was the only route, particularly when we couldn't get a route by joining the UK Government in having both those powers. That was the earliest opportunity to bring this in front of the Senedd.

I'm not sure that's wholly convincing, but we'll move on from—

Well, it's done and dusted. That's the difference. This is going to be, 'Right, we're going to disapply health from the UK Procurement Act.' That's going to be one bit—right, that's done—and then we're going to put a creation power into the NHS Act. That's it, that's done. Now we move on.

To follow up on Alun's point, that wouldn't have fitted satisfactorily in the other procurement Bill that's coming through because—?

We did look at it very seriously, but it wasn't possible.

It's the accessibility point that I find quite curious, because we've got two UK Bills, we've got two Welsh Bills. That doesn't feel very accessible. One of the issues that we've explored in this committee over the period since the last election has been the accessibility of Welsh law, and you'll know from your reading of the Thomas commission that one of the criticisms that he makes in terms of how we manage justice and law in Wales is about accessibility. My concern would be that we're expending a great deal of time, effort and resource putting very similar provisions onto the statute book through different vehicles. I accept the point that Mr Evans makes, but it doesn't always help accessibility.

I'd argue that it's the opposite of that. I would argue that, actually, what's going to happen is if you're interested in procurement in the NHS in future, you just go to the NHS (Wales) Act. That's where you go. You don't have to go to this Bill—it's done. So, I actually think it's much, much simpler following this route.

But normally the complexity is added by a more complex process that is being followed by Government, rather than following, perhaps, a simpler process, which would have been a single procurement Bill.

I think NHS procurement is fairly limited, it's fairly unique. The kind of people who are looking at this will know where to go for that information, and they'll know in future that they'll just go straight to the NHS (Wales) Act and look at what's been amended there.

In terms of the wider issues around, for example, UK common frameworks, you've clearly had discussions with the UK Government. Have you had discussions with other UK administrations regarding how this legislation will impact upon the common frameworks and how they will operate post this becoming law?

We are taking a different approach to Scotland. You'll be aware that Scotland is trying to keep as much of their rules alongside the rules of the EU, whereas, actually, we are now going to be moving towards trying to keep a level playing field with England, which is a different approach. Northern Ireland have decided to join the UK Government's Procurement Bill, so they're going to be under the light-touch regime for public contracts. So, they're in a slightly different position again. Dafydd, do you want to expand on that?

The Bill itself doesn't directly impact on the common framework. We have had discussions under the common frameworks, and they're important methods for managing that. So, we recognise that, and we'll continue to use the framework mechanisms for discussions with the other nations.

The final point I'll raise with you, Minister—thank you for that—in this section is about section 2 of the Bill, which amends the Procurement Bill currently in the UK Parliament. I can't remember a piece of legislation that amends legislation that's not currently on the statute book. That seems to me to be a very curious way of working.

It's not ideal, but we're fairly confident that it will land not far off where we are at the moment. It is getting to its final Stages. Again, what we're anxious to avoid is a long time period where we will not be able to provide the kinds of service provisions that exist at the moment. James lives on the border with England, and there is an example, Shropdoc, which gives out-of-hours services on the border and is shared between Wales and the English NHS. If that contract came up during that gap, we might find that, actually, they couldn't provide that service, or it would be too complicated, or they certainly couldn't tender together on the same platform. It's quite important to understand the kinds of risks that could be associated with this.

I've got no issue about the outcomes. I don't disagree with you at all on that, Minister. It's, again, the process of amending something that isn't yet law.

I hear that, and it is something that we're aware of, but we're fairly confident it's going to land in that place. Dafydd, is that—?

As you say, whilst it's not ideal, it is coming to its final stages and I think, should there be any amendments to that Bill that affect things like the numbering of this Bill, then we'd be able to take those into account.

Through consequential amendments?

Sorry, I didn't hear.

Yes, during the course of this—. Yes, so it's likely to be only numbering or something like that.

Thanks, Alun. Pered, take us on to another area.

Just on that point, what is that cross-over time going to be? Do we know roughly?

So, the health and care Bill received Royal Assent in April 2022. The PSR—so, the provider selection regime—regulations are going to be laid before Parliament, it's anticipated, fairly soon, and then the regulations on that are expected to come into force in 2023. And then, when it comes to the public procurement Bill, it's at the House of Commons Report Stage at the moment, so it's really coming to the end of the process there.

Because you're saying they're putting this Bill in place so that we're not out of step, but there will be an out of step, because we'll go the other way, won't we? Because this will be in place whilst other things go through, and then eventually it'll normalise. Is that right?

They're going to get there before us, yes.

Thank you. Just moving on, if I may, to the formal or informal consultation that's happened. The explanatory memorandum explains that there has been an informal consultation undertaken with NHS Wales finance, procurement and commissioning during the summer, but there's been no open formal consultation on the Bill. Do you feel that that will hinder the development of the Bill?

I don't think so, because we have anticipated the kind of people who would be affected by this Bill, and we have consulted with them informally—so, clearly, the NHS services obviously, the unions, the health unions, the third sector, local councils. So, those people who will be affected by the legislation know that it's coming. We have consulted with them, and that's why we are in the position that we are currently in. But that was an informal consultation, as you said, and, of course, we will be going out to formal consultation, which will begin very soon.

And how long will that take, because it's going to be shorter than usual, isn't it?

I think it's 12 weeks, as usual.

It's the usual 12 months, is it? Okay. Twelve weeks. It doesn't seem, from the explanatory memorandum, that there's been any consultation with economic groups or industry, although it is planned for spring 2023. Will this consultation inform the passage of the Bill, or the development of the regulations? Will it change what you're doing with the Bill, or will you be using that more for the regulations?

So, that will be the regulations. People will be responding to the regulations, so that's when it's important to ensure that business has its voice heard in that regard.

Is that a good way of doing it, in your opinion?

We don't know where the regulations are going to sit yet. We don't know. We can't do that work that you mentioned until we know where the regulations are going to land in Westminster. So, until we know that, there's no point consulting until we know what to expect.

Okay. Thank you very much.

Thank you, Pered. On now to James Evans.

Diolch, Cadeirydd. Minister, we talked about this slightly earlier, but, to go a bit deeper, why is secondary legislation considered to be the appropriate mechanism for bringing forward the new procurement regime for health services in Wales? Did you consider bringing this forward via an Act of the Senedd?

Just to remind ourselves, the primary purpose of this is to make sure we've got as consistent a procurement regime as England, and the problem is that, at the moment, we don't know the detail of what that procurement will look like, and so what we need is flexibility. We need to be able to respond, and if we were to put things on the face of the Bill now, it's pretty clear we'd be unlikely to get that—to just guess that whatever they're going to put down in terms of regulations will provide us with that level playing field—which is why what we need to do now is to wait for those regulations to come through from England, and at that point we will decide. And the point is that we will have the flexibility to decide, 'Right, actually, maybe that bit of the level playing field we don't particularly like.' We will have the flexibility to decide that ourselves, whereas if we'd just hooked onto an English Bill, we wouldn't have had that flexibility at all.

Okay. Do you—

James, I wonder if I could just follow up on the question area. What, of course, that gives is to make sure that you, as Welsh Government, are able to do what you described. Would you agree that it would be beneficial if Members of the Senedd, in terms of Welsh health procurement proposals, were able to put forward amendments?

In an ideal world, I can see—

Oh, Minister—sorry, yes, in an ideal world.

In an ideal world, I can see that would be useful, but what we're talking about is an affirmative procedure where, obviously, committees like yours would have the opportunity to look at those in detail. But you're right—

And just say 'yes' or 'no'.

—it's not quite the same as the ability to amend. I understand that.

Okay, but in an ideal world, you would.

In an ideal world, I understand that that would be something the committee might like.

Okay. Thanks. Sorry, James.

As we've, actually, just talked about the draft affirmative procedure, do you think it would give the opportunity for sufficient scrutiny of the regulations made under the delegated powers given via the Bill, rather than via an Act of the Senedd? And has any consideration been given to the provision of additional time on the face of the Bill for Senedd scrutiny of the draft regulations after they've been laid?

So, I think what we'll do is we'll follow the normal procedures that we use in the Senedd. So, this is not going to be exceptional, it's not going to be any different from any other framework agreements that have happened in the past. The kind of time frame we're talking about will be the same as consultation exercises elsewhere. So, there's nothing new, nothing interesting to see here.

Okay. We'll hold you to that, then, Minister—'Nothing to be seen here.' Whenever a Minister says that, you think there's always something to be seen. [Laughter.] There we are. Minister, are you satisfied that regulations made under the creation power provided within the Bill will be fully within our competence here within the Senedd?

I am.

Yes.

I am.

Good. Okay. And the final question, Cadeirydd: in response to the inclusion of the corresponding correction power for England in the Health and Care Act 2020, the Delegated Power and Regulatory Reform Committee of the House of Lords stated the following:

'We do not accept that the inclusion of regulation-making powers should be a cover for inadequately developed policy.'

Given the nature of this Bill, what would your response be to that statement if it was made to you in relation to this Bill?

I don't think this is out of synch with what is usually done. Lowri, have you got anything to add to this, or, Jolanta, just so that you participate? [Laughter.]

So, this Bill is being brought to the Senedd to deal with a situation that has arisen because of changes to procurement processes in England and the need to ensure parity, at least in the immediate term, to avoid issues relating to the commissioning of health services in Wales. So, timing and urgency are the reasons for the inclusion of the regulation-making powers in this case, rather than poorly developed policy.

Okay. Righty-ho. Diolch, Cadeirydd.

Okay. Thank you. Alun, we'll come back to you. We're doing well, by the way; we're rattling through this.

We are rattling through it, and in fact we're going to go even quicker, because the Minister has largely covered the area that I was actually interested in. But, I would want to press her a little further, if I could, on the points that she made to James and to Peredur in terms of regulations, because it appears to me that most of the work from this legislation is going to be delivered by regulations.

Yes.

Now, that implies to me a greater importance for the scrutiny of those regulations, and I presume that you've started work to scope out what those regulations will look like in terms of delivering the model, in terms of policy intent and the rest of it. I presume that work is already under way.

Well, we can do some principles, but until we see the detail of the regulation that they're going to put down in England—

So, you are waiting for the English regulations before starting work on anything here.

In terms of the detail, yes.

But you will have given instructions to lawyers in terms of drafting about what you want to see, because you're putting the Bill through. So, I would assume that the intent is—

Yes, yes. So, they know it's coming. We've got everything lined up in terms of resources and all of that.

Because my concern is this, Minister: we know things are pretty chaotic in London, to say the least. Now, it is quite possible that the UK Government could deliver their regulations very, very late.

Yes.

We've seen the chaos around pieces of legislation in London at the moment. So, that's not an unforeseeable issue. That means if the Welsh Government is waiting for that to happen before conducting any work of its own, that means the amount of time available for scrutiny is all of a sudden significantly reduced. There must be some work going on with your colleagues across the border to look at what regulations are being drawn up. I can't believe that no officials are talking to each other. Well, I can believe it, but I wouldn't want to.

Dafydd, would you like to—?

We are having discussions with officials from DHSC, as you can imagine, but, in those discussions with officials, as the Minister has said, we do actually need to understand, finally, where that policy and regulations land, before acting or moving in Wales. So, whilst we understand it, we still need to understand where those regulations will lie, for Wales to understand how we respond—

Can I just clarify in my own mind, then? There is work taking place between the department of health here and the department of health across the border. Officials are talking to each other about these regulations.

They're not giving us much detail, if I'm honest.

So, we are discussing likely timescales for those reasons and, therefore, the implications of some of those shifting timescales for what it might then mean for our plans. That's the discussion that we're having.

But if the Minister's intent is to provide the level playing field and the mirror images you've said, then what's important is not simply to understand the timescales, but also to understand the content. If that is the case, I would have anticipated our officials and their officials to be talking about delivering what are, in essence, mirror images in terms of secondary legislation. And I'm interested to understand the Minister's enigmatic smile as to whether that's actually happening or not—yes or no.

Let's just say they're not giving us much detail.

So, I take 'no' from that, then, and that's important for us as a committee, because we've received evidence on a number of different inquiries that there is very good and close and positive work taking place between the two Governments. So, if it's not happening on this, which is relatively non-controversial in relative terms, then that would be a matter for this committee to pursue.

I wonder whether, Alun, it's worth inquiring whether there is any sharing of information, particularly things like draft regulations. Is that specifically—. Are we having that sort of level, or have they undertaken to share those with you, because that would clearly help?

Yes. We have seen some of that detail, but I think the conversation is that we need to understand what regulations—. We don't know how many changes there will be from early discussions and early drafting work to, effectively, regulations that are laid. That's why we need to understand what regulations are laid, to understand what is in, what is out, what is different. What we don't want to try and do, effectively, is work on something that doesn't come to pass because we're trying to do this mirroring. So, yes, we're working with DHSC, but I think, as we said, we do need to understand where they finally settle, because there could be quite a few differences and changes in terms of those final regulations.

Okay. That picture seems to suggest that you are having reasonable dialogue with your counterparts; it's just that things aren't bolted down totally, but you're seeing the shape evolving. This is not a shut door on you.

We're having discussions with colleagues, but, as I say, quite a few things could change. I think that's the challenge for us. We don't want to nail anything—. Well, we could not at the moment indicate what those are.

No, no, indeed. Is it your anticipation that, as these things get bolted down, they will be sharing with you that definitive information, draft regulations and so on?

I would certainly hope so, and I have nothing to understand that they wouldn't.

Yes. Okay. James.

I have an issue about regulation being slightly different across the border. As the Minister will know, the area that I represent, which is right on the border in Powys, has a procuring health board that actually procures services in England. If there are differences in regulation, will that affect a health board's ability to procure services in England? I'm just—

Yes.

I'm worried about divergence there.

That's the point. That's the whole point of this Bill, James, to make sure that people in your constituency can carry on having the services that they have at the moment, and not be in a position where they're disadvantaged because we haven't got a level playing field. Now, the Shropdoc example is quite a good example, I think, where it's common procurement, but there are other examples—so, for example, some really specialised mental health support that we procure from England that we can't get in Wales, and so we may want to procure that from England. And they may say, 'Well, look, we don't want to go through a different—we don't want to bother with a different procurement regime; we just won't bother tendering for that' and then we may find ourselves without a service.

I might come back on something in a minute.

Okay. Okay. Alun.

But also, of course, procurement is a reflection of our values.

Absolutely.

And our values are very different to the values of the Government in London, so I would want to see a significant capacity for divergence as well, if and where that is necessary to enable us to maintain a publicly operated service. That's what—. And representing Nye Bevan's old seat, of course, you wouldn't expect me to say anything differently. So, in terms of where we've got to, it might be useful, Chair, just to move matters onwards, if the Minister could write to us to update us on the development of regulations, so that we can understand whether there are any difficulties or roadblocks ahead that would impede the Senedd's ability to scrutinise those regulations in terms of timings and in terms of the opportunity to provide robust challenge, if necessary.

Okay. Thank you, Alun. Okay. We'll carry on, then, on the issue of consultation for the moment. The explanatory memoranda says that a full, open 12-week consultation exercise will be undertaken during the development of the regs, so how are you going to do that engagement with stakeholders? What will it look like and will those stakeholders be given sight of draft regulations before their views are sought? Otherwise, what are you going to be asking them?

Dafydd.

Yes, I'm happy to. So, as is normal practice, I think, with Welsh Government consultations, there will be a consultation document available online for stakeholders to provide a written response. But also, given the specialist nature of this, we would look to have some focused stakeholder engagement events. And currently, the issue is that we would understand what the regulations look like in England and we would have a consultation about the operating principles of applying a PSR in Wales to know what would be the same, what would be different, because we want that consultation to influence the regulations rather than comment, effectively, at the end on regulations that have not had that engagement.

Okay. That's interesting. You're asking them to help you shape that possible divergence that Alun was referring to there. Okay. That's interesting. Can I ask you why was the duty to consult with relevant authorities or other bodies during the development of the regs not included on the face of the Bill?

I thought that was usual practice, that we just follow—. There's guidance, there's statutory guidance that you do a 12-week consultation, so we're doing a 12-week consultation. So, I didn't think it was needed on the face of the Bill.

You didn't think it was necessary.

Not on the face of the Bill, because it's—

Yes, okay.

—statutory guidance.

That's fine. Okay, let me turn to the interaction of this or otherwise with the United Kingdom Internal Market Act 2020, something that we're constantly looking at on this committee now. Health services are excluded from that Act, but what is the position as regards the procurement of goods connected to health services? So, for example, could regulations made under the Bill include objectives that breach the non-discrimination principle for goods?

Lowri.

Yes. The Welsh Government's clear position in relation to the UK internal market Act is that, when the Senedd legislates in a non-reserved area, it does so free from the requirements of the Act. This includes a situation where the Senedd legislates to confer regulation-making powers on the Welsh Ministers. Those regulation-making powers will in future also be exercisable free from the requirements of the Act. Therefore, whilst the detail of any future regulations have yet to be decided, we are clear that the provisions relating to the procurement of goods connected to healthcare services contained in both the Bill and any future regulations made using the powers in this Bill will not engage the UK internal market Act.

Thank you for that. Minister, UKIMA doesn't bite on this Bill at all.

I don't think so. No.

It's a very lucid form of words you've just given me, but I asked you specifically in that instance that I referred to in terms of goods. So, if regulations in the Bill include objectives that breach the non-discrimination principle for goods, you are saying that is not pertinent.

Yes, we're saying—. Our position is that, where the Senedd legislates in non-reserved areas, which it's doing here, then it does so free from the requirements of the Act.

Okay. I think we've heard that before; it's an in-principle statement of the position of Welsh Government. I'm not sure we can prise this open any further. It'd be interesting in practice as to whether this bites. Okay. Pred.

Diolch. Looking at the statutory guidance that you'll need to aid with compliance with the regulations made under the Bill, and the creation power in particular, will those be produced alongside the regulations or will they follow later?

So, the idea is that we produce them alongside the regulations.

Alongside. Fine. Okay. And are you able to give us any further information about what are likely to be the details of the contents of that guidance?

So, I think it's more the operational principles that I think Dafydd talked about earlier.

Yes. So, we would look at the regulations and that statutory guidance there. Again, we would look at the statutory guidance that England produced, and look to see what's different. But that guidance we would expect to make quite clear, for instance, when different parts of the provider selection regime could be used, and also that guidance would make clear how it related to the Procurement Bill as well.

Right. Okay. And you're going to be consulting for 12 weeks on the regulations, and, if the statutory guidance is being produced at the same time, will it then afford that consultation on the statutory guidance as well?

So, there's a 12-week consultation period on the statutory guidance.

Fine. Okay.

Is that right? Sorry—. [Interruption.]

There'll be a 12-week statutory—. Sorry, there'll be a 12-week consultation—

On the regulations.

—on the operational principles of the regulations in England and how we should apply that to Wales, if anything were different. Clearly, we will then need to develop the regulations based on that consultation. We would also develop the statutory guidance to go alongside that, and, as you'd expect, we would expect to work with the NHS and others to help us to actually develop that guidance. So, in England, NHS England has helped develop that statutory guidance. We would look to do the same here in Wales, so that practitioners help to make sure that that guidance was fit for purpose.

But there wouldn't be a consultation period on the regs and the statutory guidance once you've developed it.

Not anticipated currently, because we'd have had one 12-week—

There are two phases, aren't there? That's the point. You consult twice. You've got once on the operational principles, and then you do it—. Is that right?

We'd do it once—once on the operational principles—so that the regulations and the guidance take that into account. We wouldn't expect to do another 12-week consultation at the end of that as well and we effectively end up with 24 weeks of consultation in the system, in the process.

So, I think Pred is pushing at: do you see that the statutory guidance will also form part, regardless of other discussions, of that consultation as well?

Yes. We would be asking, at the time of consulting, what are the operational principles on the products we've seen, particularly coming out of England, the regulations being one and anything we have on the English statutory guidance.

Right. Okay. Right.

I think—. Last question from me, Chair. Why was a duty to consult with relevant authorities and other bodies during the development of the statutory guidance not included on the face of the Bill, particularly given that the Bill provides that relevant authorities 'must have regard to' the guidance?

So, I think this is just usual consultation duties—we think that's sufficient under these circumstances, and we think that the—. The statutory guidance, obviously, is subject to that 12-week consultation.

So, it's not necessary—your judgment is it's not necessary to have that on the face of the Bill.

No.

Okay. Okay. Thank you. James, take us on to issues around accessibility, or anything else you want.

Yes, I just want to talk a little bit about the UK internal market Act, if that's all right, because this is health service, isn't it, and it's devolved under reserved matters. But what about food, the procurement of food within the NHS? Because you could have elements of single-use plastic that are banned in Wales allowed in England, but NHS Wales might want to procure something from England using a part of plastic that is banned in Wales. Surely UKIMA kicks in then?

I'll ask Lowri to come in here, but this Bill is about health services.

Yes. It's not about food.

So, NHS Wales does not procure food, then?

No, sorry—

It's service—service. That's—

So, this Bill is about health services, so I think the question you're asking refers back to the Procurement Bill, which is where goods—

Yes, that's a good. It's the difference between goods and services.

So, you're not—. Right, okay. That's fine.

I think that's correct, Lowri, is it?

Yes. This is a Bill about services provided as part of the health service.

It's services. But where there's a little bit of a crossover is things—. For example, if we wanted to procure blood services, you couldn't buy blood without buying it in a test tube or whatever, so you would effectively need to buy a good alongside that service. So, if you can't disassociate the good from the service, then obviously it would become a good—it would become a part of this, because it would be linked to the service.

So, which Act then has precedence there?

Sorry?

Which Act would then have precedence? If a service turns into a good, like you've just said there, which one would take priority?

In this instance, it would be the equivalent of the provider selection regime.

I think I've opened a can of worms; I think Huw wants to ask—

No, no, I'm fine. It's goods connected to health services.

To health services, yes.

But food is.

Personal protective equipment.

PPE. Food.

Can I help, Chair? So, 'health services' is quite narrowly defined, and that is what the Department of Health and Social Care has taken out from the very generic procurement of everything else. So, if you are buying ventilators, that's not a health service—or ambulances—and you would buy them under the new Procurement Bill coming forward, because that's not what has been taken out by DHSC as a health service. There may be some very narrow examples—I think DHSC calls it 'mixed procurement' in their consultation—where they're basically saying, 'Look, you couldn't buy the service without having some issues.' There's an example in DHSC, which is immunisation. You would buy an immunisation service—that's a health service—but to go along with that you might need administrative staff and some other goods to be able to control flow and administer records and that type of thing. So, there is an element within the provider selection regime to have some mixed procurement, but that will be very specific, because that is the part that needs to be very clear between what has been taken out and what will, for the vast majority of things, still be left in the Procurement Bill as goods and other services. So, they will need to sit tidily together, and the statutory guidance both in England and here will need to make it very clear as to when you're able to use the two routes. I hope that helps.

Fine. Go on, Pred.

So, I'm hoping that the people who are doing procurement, like the Minister said right at the beginning, will know where to go and look, because obviously—[Interruption.] Yes, because it sounds—

It's niche. This is very, very niche.

It's niche, but it seems a little bit complicated as well, compared to—. But that's me not being in health procurement.

Before James progresses—because we're always keen on clarity of law—I realise that procurement people are a very select, specialist group of people, and I'm sure they'll carve their way through this with no problem, but when you have that sort of mixture of different mixed contracts you referred to, when you have that mixture, are you confident there's going to be real clarity on which rules and regulations apply, and why? Tell this committee why, as we wrestle with this, there will be that clarity. Because you've just explained that there will be areas that look to us slightly grey, but to a procurement specialist they'll have no doubt. Why?

One, I think, that mixed procurement will be relatively narrow.

Right.

It will have to be in very specific circumstances. I would expect the regulations and the statutory guidance to define those and to give those examples.

Okay.

Lowri, anything to add to that?

Do you have an idea of what they are now, what those—this says 'very narrow'—areas are going to be? Do you know what they are?

Some examples.

Some examples of what they are.

So, again, this is why we need to see the regulations, to see effectively what is decided and what isn't. So, I gave you the example there around immunisation, but if you look in DHSC's consultation, there may be examples there about continued healthcare, and some of those other issues where you're buying health services, such as accommodation and that type of thing that goes with that. It should be, as I say, in quite a narrow set of circumstances, where you have to have it, unless it doesn't make sense to buy the health service. That's why, I think, food is a good example, where you can buy food very, very differently. It would not—. In the health contract itself, you could buy food separately as two separate health contracts and it would still work.

I absolutely get the example that you're talking about, and maybe this is something that goes beyond us mere mortals and you have to be a procurement specialist to understand this, but is it then the case that in these mixed examples, where there is, clearly, somewhere, as you work through the guidance, a health service being procured, even though there may be other elements, then that will fall within this, not within wider procurement?

Yes. So, the idea is that the provider selection regime—

Yes.

—applies to health services and certain circumstances where you can have those mixed procurements, but they will be very specific.

Yes. So, if there's a mixed procurement, it will fall always within this, will it?

That is a broad definition of it.

What would really help—Alun, just suggested helpfully—as this evolves, if you could keep the committee updated, please, as these examples come through.

But you are making a very strong case for a single procurement regime, I have to say.

James, take us on.

I'll take the wider role, on the part of accessibility now. So, the heading of the new section 116A of the Procurement Act 2023, as inserted by section 2 of this Bill, reads as follows:

'116A Power to disapply this Act in relation to procurement by NHS in Wales'.

Does this heading in the new section 116A accurately reflect the provision, given that the provisions of the Procurement Act 2023 can be disapplied in relation to health service procurement by local authorities, as well as the NHS? If not, does this raise any concerns about the accessibility of this Bill?

I think it's acknowledged that the powers in 116A apply to local authorities, but they only apply when they're procuring health services as a part of the NHS. So, it is, actually, quite limited, once again. It's very tightly defined. So, for example, a local authority may be working with a health board to procure services for veterans, for example—mental health support for veterans—so that would be an example where you might do that together, and they would, therefore, fall under this Bill.

Okay.

And the point is that it just replicates what's being said in England, so the whole point is we're trying to replicate everything, so we're not going too far away from what they're suggesting there. So, it's all about consistency, really—consistency in the drafting here and in Westminster.

I think it's a fair question. So, the issue here, really, though, is about consistency with the wording in the Procurement Bill and in England, so that it signals clearly the mirroring. If we put something different here, people could ask the question, effectively: were we intending to do something different? So, as I say, it is for those health and NHS services, and we thought it sensible to have the same wording that England had used as well to make the accessibility easier, so people weren't confused.

Thank you. Given that the new section 10(8) of the national health service (Wales) Act 2026 as inserted by the Bill requires the Welsh Ministers to publish the statutory guidance required by that provision, where will this be published?

So, it's got to be published on the Welsh Government website, and, obviously, that will be bilingual as well. That's just in line with every public sector body in terms of accessibility of regulations, and just in keeping with every other Bill.

You did mention, Minister, when all this comes to fruition and everything goes smoothly, that you want everything to be viewed through the NHS (Wales) Act, but this does depend on legislation.gov being updated very, very quickly. It's not always the case. How do you intend to work your way through that?

So, I don't think this is very complicated. Once you've made the tweak—. You've seen how short the Bill is. It's not a difficult amendment to make, I don't think; it's a very small amendment, really.

Okay, lovely. I need to correct the Record. I said '(Wales) Act 2026', it's actually 2006. Thank you. [Laughter.]

Is there another one coming?

I wouldn't be surprised with the Welsh Government. [Laughter.]

There we are. Good. Are you finished? Iawn.

Yes, diolch.

Okay. Colleagues, anything else you want to raise? Minister, is there anything else you want to raise, because we've covered what we need to? Apologies, if sometimes we come at it from a slightly obtuse angle, as we do on this committee, but we do like to test out why you've taken certain courses of action. Content? In which case, we'll share with you the transcript to ensure accuracy. We may follow up on any items that come to mind in our private discussion afterwards with you. If there's anything we need to follow up on, we'll do it in writing, but thank you and all your officials very much indeed. We hope you haven't found it too painful, and just while we're on public record, I hope you've enjoyed having a big audience here today, as well, from the House of Commons Library staff, who've seen us in action. So, we'll let you go now.

It just remains, colleagues, for me to ask if you're happy with now moving into private under Standing Order 17.42, where we resolve to exclude the public for the remainder of the meeting. We are. We'll move into private, please.