Legislation, Justice and Constitution Committee

I'm Tom Smithson, I'm deputy director for economic strategy and regulation.

And I'm James Gerard, I'm the deputy director for justice policy.

Great to have you both with us, along with the Counsel General. We've got a wide range of questions we're going to try and get through this afternoon in this two-hour session we have in front of us. We'll see how far we'll get, but we're covering a lot of topics because you are the prime Member, in a ministerial capacity, who comes in front of us, covering such a wide range.

We'll just begin with the issues around justice, if we may. We've been following with interest, of course, how Welsh Government intends to take forward the Thomas commission recommendations. Can you just tell us, how is the Welsh Government working with the Ministry of Justice on this, in taking forward the recommendations that fall to the UK Government in particular?

I think, probably, as I've said in the past, it's been a fairly rocky road over the Thomas commission recommendations because there was always a very adamant position taken by UK Government, which was basically, 'We don't agree with the devolution of justice.' There was never really a rationale given as to why that was the case, and I think that remains to this day, but there are one or two areas where we've tried to engage, and we have had some engagement. But the main area where really we've been engaging is over issues such as the disaggregation of data.

There are of course now—. I suppose it's within the ambit of the approach of a general election when it's possible for, I suppose, a broader consideration of what those changes might be, and that there has been, I think, a more positive approach now to actually starting discussions around issues such as what might happen with youth justice and probation, for example. So, I'm hoping those conversations will begin to be fruitful in terms of understanding what can be done, how it might be done, what the mechanics might be, what the implications might be, and I think that's an important conversation. But overall, in terms of the Thomas commission recommendations, and, again, more recently, the independent commission recommendations, there hasn't been a great deal of progress, so we've very much moved on our own initiative, and that is that we're looking at preparing for the transfer of, certainly, youth justice and probation, by preparing the ground for it.

Okay. And could I ask you: we'll turn to disaggregation of data in a moment, but on those matters of youth justice and probation, has there been any progression on discussions with the current UK Government on that, or, from what you're telling us, that's been parked, as good as, for the moment?

There has, and what there has been has been a lot of—. I'll bring James in in a minute to add to it. You'll see we've recently published a progress report on the 'Delivering Justice for Wales' paper. That was the important paper because that really set out what is happening at the moment and the engagement that there is, and there is a lot of partnership work going on, particularly within the youth justice field. The reality with youth justice is that so much of it, 80 per cent or 90 per cent of it, is actually devolved functions already. So, that engagement has been important in order to deliver change, and that has been reasonably positive.

On the probation side, well, there isn't any agreement or consent from the UK Government to advance that discussion, but we do know that probation has been through a fairly tortuous history—in privatisation and then back out of it again—and we know that there was a strong push from those who work for the probation offices, and their own trade union as well, to push for the devolution of probation. But I think we're in that period at the end of a Government where very little actually happens or is capable of happening, so we are very much working as best we can to keep the current engagements going but also to look to the future that, if there were a change in Government, there would be opportunities in terms of making progress. James, is there anything you want to add?

No, not really. The conversations we've had with the Ministry of Justice at official level around the Thomas commission have not been around the potential devolution of youth justice or probation. They've been around some of the recommendations that the commission made with regard to reforms that could be made under the current settlement, which are quite granular ones.

Okay, thank you. I'll come to Alun in a moment. When you touched on an election that will be happening sometime this year or as late as next January, you were quite careful in your choice of words that the discussions can start and we might see some progress then. It's probably, I guess, a reasonable question for us to ask as a committee: is there anything bolted down, or is it that you're more hopeful?

Well, we've seen the recommendations, both in the independent commission recently and the Thomas commission, and we've also seen the recommendations that have come from the report that was prepared for the opposition by Gordon Brown, which specifically focused on the devolution of justice, but starting with youth justice and probation. And it's fair to say that nothing substantive will change unless there is a change of Government. Now, that depends on the outcome of the general election, but it would be irresponsible of us not to actually be looking ahead and to seek to engage in that, and also to prepare the ground for it.

Okay, thank you. Alun.

Thank you very much, Gadeirydd. It's that preparation of ground that I wanted to ask you about, Counsel General, because it's pretty clear, I think, that we are well into the death throes of the current UK Government, and I agree with your analysis that we are not going to see any progress on any policy issue over the last few months of its life. So, what work are you actively and proactively doing, not just with current opposition parties and incoming Government, but also with the policy community in Wales, and in London—the stakeholders who are active in the justice area of policy—to actually begin to prepare for a new start, hopefully later this year?

Well, we've moved on from making the case for change to happen, to actually preparing the ground for what we mean by the devolution of youth justice, for example how it would work in practice, what would be the legal mechanisms by which it could happen, what might be the financial implications and so on. So, some of that is still work in progress, but there's been a lot of policy work with experts in the field of all those particular areas.

I have spent considerable time—. I was in Scotland recently, where they do have, obviously, devolution of justice, but looking particularly with regard to how their youth justice operates. I was partly looking at the tribunal system as well and meeting with the judges there. But I've spent time in the youth courts in Cardiff. I've also done the same in Scotland, and in addition to that, we've started a whole series of round-tables. We've had Dame Vera Baird, who's been assisting, as former victims commissioner, but someone with a lot of expertise in this area, and who's been doing work with us as well. And we're working now—. I think we've got two round-tables more to come, and I think we're getting to a stage where we're beginning to start to pull all that together so that you actually have, then—I would hope by the end of March, April maybe, certainly by the summer—the blueprint for actually, 'This is what we can do, this is what the implications are, this is how it would operate, and these are the mechanics for actually ensuring it happens.'

And it is quite a complex area to explore, because there are things that you can do that, if you have a Government that is supportive of change, aren't immediately dependent on either legislation or transfers of powers and so on—so, what timescale it might take to achieve certain objectives. Perhaps if I can ask James just to talk a bit more about the policy side, the development work that's going on, with whom and so on.

Yes, there are a few specific pieces of work that sort of fit under what the Counsel General was just setting out, and I think they were brought together in the progress report on 'Delivering Justice for Wales', but I appreciate that's only just been published. So, there is an academic advisory group on youth justice that has been doing some work for us for the last year and a half or so, whose work will, I think, come to publication soon. Similarly, there is a group of academics who have been leading work on probation. Both of those things are under the umbrella of the Welsh Centre for Crime and Social Justice. We have, additionally, commissioned the Wales Centre for Public Policy at Cardiff University to lead some work on models for the devolution of probation. The Counsel General alluded to Dame Vera Baird. She's been leading some work on looking at the future of the youth court, and that's another series of round tables. And there is a piece of work that was launched in the autumn, I think, around the future of policing, being led by Carl Foulkes, the former chief constable for north Wales. So, all of those things are coming into their closing stages, so they'll all be seeing the light of day over the next few weeks or months, and then I think you'll get a better picture.

That's a pretty good canter through the work in progress and also what's coming to fruition. Is there anything else that we should anticipate over the next couple of years, in the remaining couple of years of this Senedd term, that you have as priorities that either hasn't started work or is further down the line?

No, I think, really, the focus has been on those areas. They're things that are easy to roll off the tongue, but when you actually start trying to define the consequences of what you actually mean by youth justice, where do you draw the line, and what in terms of age groups, what about engagement with people who may be involved in an offence with an adult, people who reach the age of 18, and all the scenarios around that. And the whole basis of a lot of youth justice is about trying to keep young people out of the criminal justice system, and a lot of it is about problem solving. So, it is a very different approach to what might have been the case 20 or 30 years ago.

Briefly, can I just add one thing? What we haven't been able to do up to now is really talk to the people who are providing the services in the justice system, because they would need a supportive UK Government to do that. What we're now entering is a period in which pre-election contact has been authorised with opposition parties, so the civil service can do some degree of thinking about what might happen in the future, but, obviously, their primary responsibility remains to serve the Government of the day. So, the big gap in what any of these external experts have been able to do is engaging directly with the people who are on the ground now delivering these services, and that's what we need to do so that we've got an up-to-date picture of what's happening, and that is something we'll be able to do more of this year, but you'd really need a fully supportive UK Government to properly get into those granular discussions.

That's very interesting, and one of the aspects of that, looking forward, is what your assessment is of the current state of the legal sector in Wales and what can be done to address any deficiencies within it. So, what's your current take on that, Counsel General?

Well, it is, I have to say—. I'll perhaps give my closing comment on that first, and that is that I think we're now at a stage where we actually need to start looking and developing a strategy for how we see the role of the legal sector within our overall Welsh economy. Up to now, of course, with justice not being devolved, and so on, it has been one of being very much supportive. So, we've put funding into cybersecurity issues, and so on, that's been available. It's been very successful with the legal profession. We've also supported certain levels of training support at legal executive levels. We know that the legal profession was keen that we take on board the issue of solicitor apprentices. We haven't managed to do that at this stage; it's mainly a funding issue. There are also issues as to how you might fund solicitor apprenticeships to get people from a more diverse background, firstly, into the legal profession, and, secondly, get them doing things that law firms aren't already funding, so you're not just basically giving a grant to a law firm to do what it's already doing—getting people to work in those legal areas where we know there are deserts where we desperately need people to work. And I'm quite interested, actually, in the development of policy around support we might be able to give law centres, and so on, under the pro bono side. So, I suppose that's one aspect.

In terms of the state of the legal profession, one area I'd like so see economically develop is that of commercial activity, whether it be international or whether it be just national, in terms of the UK. It's an important economic part of the economies in places like, certainly, London, but also places like Bristol and Manchester and so on, and you have to ask why we don't really have that level of development within Wales. My starting point is that I think that you have to look at the court infrastructure, and I have to say, on the court infrastructure, which is something I raise at every opportunity, whether it's with the justice Minister, with the Lord Chancellor, with Lord Bellamy, including visiting the courts as well and meeting with the judiciary around this, there is a single common voice going out that the state of the court infrastructure in parts of Wales is absolutely appalling and not fit for progress, when you see the main technological development in some of our courts being the implementation of inverted umbrellas with pipes leading out of them to catch the rain, leading into buckets, from leaky roofs and so on. Why would corporate work come into the Welsh courts when you have a court infrastructure that is effectively not fit for purpose? There is a lot of investment that takes place within court infrastructure. A lot of it seems to be orientated towards London, but we do not seem to get a very high priority within Wales when you take that Cardiff is a capital city.

So, we're looking to explore what other opportunities there might be, what the devolution of justice might do on that. But, in terms of the Welsh legal economy, I'm told it's worth, potentially—I hope I get the figure right now—around about £400 million or £500 million a year, but, potentially, it should be much, much greater than that. So, I think there is a need to start thinking about that strategy. A lot is hampered by the fact that a lot of this isn't devolved and we're doing this because we have ancillary responsibilities. There are economic interests, there are trading interests, there are employment and job interests and so on. It spins in then into the universities and training there, and so on. So, I think it is an important area. It's an area I want to see grow, and I hope it's an area that we need to think about developing our strategy on it, hopefully in a more benign environment that we might be able to make more progress.

Okay. There's plenty for us as a committee to get our teeth into, going forward on that, but it is interesting. The inference I take from what you're saying is that both in the commercial law sector but also in the wider legal sector as well, you are pinning that very much as an advantage of the devolution of justice. However, you're also quite cautious in what you're saying because I think we'd note as a committee that the argument is not that it should be devolved overnight in one tranche, but that this has to be thought through very carefully, because when you talk about investment in courts, investment in the legal infrastructure, unless you're going to fund that from Welsh Government resources, would we—?

We're not in a position to fund that and, of course, it's not a devolved responsibility; it's not our responsibility to fund it. If we were to fund it, we'd be taking funds from devolved areas. Whilst it is a reserved responsibility, the noise that we make around this is basically that Wales isn't being treated fairly. I have to say that the court infrastructure in parts of England is pretty awful as well, so there is a long-term issue in terms of the investment within legal services, but, for us, I think the issue is particularly acute. When you have a capital city—. I can't envisage any other country with a capital city where you have the courts in the state that they're in, and I'm talking mainly about the civil and public courts, rather than criminal, but, even within the criminal ones, some of these old, magnificent buildings are desperately in need of investment.

Just very briefly, then, before I pass on to colleagues, with this opening salvo of questions on justice, on the long-running issue of the disaggregation of data, I know that, in your report back in the autumn you highlighted several programmes of work that are ongoing on this. Just briefly, how are they going, and when are we likely to see any outcomes from them that we can have some glimmer of hope that we can see disaggregated data?

Okay. Well, we have now an inter-ministerial group on justice, and it's an interesting group because now, obviously, we will have Northern Ireland becoming part of it. We've only had a second meeting; it's chaired by Lord Bellamy, who has been very open in terms of the breadth of subject matters that we can discuss in the first two meetings that we've had. We've already agreed that disaggregation of data is going to be something that's on every agenda. It's an interesting committee, because—.Well, Scotland and Northern Ireland and, as I say, probably England, already have their own jurisdictions; we're the only Government that's involved that doesn't actually have our own jurisdiction, in that sense.

The issue of disaggregation of data is also something that we've raised in other venues as well, and with the Lord Chief Justice previously, and now the Lady Chief Justice, and so on. So, there is a recognition that more and more data needs to actually be disaggregated, if we're really to understand policy, what works, what doesn't work, and what is actually happening. I'll bring James in in a minute, but we have been doing our best to make progress in these areas. So, there have been mapping exercises under way in respect of the criminal justice landscape, identifying the gaps that are there. There have been discussions, as I say, with the inter-ministerial group, with the Ministry of Justice as well, on this, and there are a number of programmes and, of course, a number of dashboards bringing in data that we've been working on with regard to youth justice. So, there is work that is in progress, but there is still an enormously long way to go. Sometimes, the gaps almost get triggered a little bit by some of the work going on with Cardiff University, as we've been looking in terms of what's been happening with sentencing and with prisons and so on. And if that data is accurate, it really exposes, I think, the importance of getting disaggregated data, because there are things we just don't know or understand that are happening and shouldn't be happening, because we haven't got the data on it or because the data we have is of such breadth that it doesn't reflect what is happening in smaller areas—in regions of England or in places like Wales, for example.

Thanks, Counsel General. So, specifically on the direct conversation with the Ministry of Justice on disaggregated data for Wales, that is a live conversation. At the moment, I would say the ball is the Ministry of Justice's court in that we have, first of all, conducted a mapping exercise to say, 'Here are the areas in which we think disaggregated data is important', and then, subsequent to that, we've done a degree of prioritisation of that for them, and it remains for them, I think, to turn around and tell us what they think is feasible and when by, which they've not yet done. There are a couple of specific areas where there is more progress to show for it. So, there's a thing called BOLD, which I forget what the acronym stands for, but we're expecting publication, I think, in March, around some specific disaggregated substance misuse data from the criminal justice system for Wales. In the meantime, as the Counsel General said, we're working on our product, based on what data we can already access, and we've published the first of those dashboards on youth justice. And there are a number of others that we hope will be in the public domain relatively soon around courts and tribunals and the legal sector and various other parts of the system.

That's excellent. Thank you very much. And when you do do, we always welcome—sorry, there was a Welshism there, 'when you do do'—when you do produce the reports on the communiques from the inter-ministerial groups, we always welcome the greater level of detail that's possible, to be signed off by all Ministers, but that really helps us. But we also look forward to seeing the updates on what does come forward from those data disaggregation exercises. Adam, I'm really conscious we've strayed into the territory you wanted to take us into, but go deeper, go as far as you want, then.

That's all right, Chair. I won't go back over some of the areas that have been covered already. But may I just start by asking, in terms of the devolution of criminal justice and some elements of that to the Senedd—you have spoken about elements of it that you would be focusing on first of all, in terms of policing, issues related to youth justice and the probation service. But have you sought for any work to be done on the timetable or pathway in terms of the devolution of the remainder, namely, the creation of a Welsh jurisdiction—you mentioned the fact that we don't have one, for example; we're the only nation that doesn't have one at the moment—the remainder of the courts, prisons, criminal justice in its entirety and so on? Is there a time frame in mind, or have you commissioned any work on the pathway towards achieving the full objective of the Thomas commission recommendation?

We've focused predominantly on youth justice, probation and policing because I think those are the most immediate areas that are so engaged with devolved functions, that are the most easy to—. Well, I say 'easy' to facilitate; technically, I think, nevertheless, complex. And also we have to be realistic in terms of that the decision on devolution in these areas is taken elsewhere. So, we have to recognise where is the actual support for change that is taking place; we can spend a lot of time asking for all sorts of things. But I think the way we argue for it is within a framework that is much broader than just the immediate. That is, our position still remains the long term in respect of the devolution of the justice system, including criminal justice. Realistically, even if we had a Government that were to say now, 'Okay, we're prepared to do this; how do we do it?', you would want a long transition period to enable it to happen. It is an incredibly complex area. There are ways in which you can begin to shift the policy direction more simply than the actual formal transfer. So, looking at that is something that is much more complex. But I think we have to focus on those areas that we most immediately want to do, and, of course, we have to bear in mind that it is my view that, even if the Government turned round today and said, 'Well, we're prepared to do it now', I don't think we have the capacity until we have increased the size of this Senedd, until we have the greater skills and the capacity to actually manage that and manage the scrutiny and so on. So, I think there are all those things.

I think we also have to separate the issue of jurisdiction from the devolution of justice. Because we could legislate quite simply. In fact, Law Society Wales has done a very useful paper on this, which shows, basically, that, in many ways, the jurisdiction issue is that, when a court is sitting in Wales, it is the High Court of Wales as opposed to the High Court of England and Wales. Many of these are actually the changes of names rather than—. It's the recognition of the fact that we now have Welsh law, that the legal system is changing within Wales and so on. So, there are ways in which the jurisdictional side could be dealt with legislatively, and, I think, in a fairly non-controversial way. But the actual devolution of justice—and that is, basically, being able to change the justice policy in a direction that you would want to change it, the mechanics around that, the things about sentencing, maybe the appointments, where the courts are, localisation of justice, and all those other aspects—are things that involve, I think, a much longer term programme.

I have to say that the amount of effort and resource going in to looking at youth justice and probation is in itself considerable. So, I think the strategy we've adopted at the moment is the correct one, and I think, even if it weren't the case that we were just focusing on those, this is where we would be starting from—we'd probably do things the same way as we are at this moment in time. What we do know, of course, though is that, as you do look at things like youth justice, and you do look at probation, you begin to realise that what you're doing is shifting that jagged edge a bit further onwards, as opposed to getting rid of it. So, it has its drawbacks, but I think we've adopted the right approach.

Adam, I wonder if I could just interject on one part of the response of the Counsel General then. You mentioned the issue of if this were to be done even overnight, with the political will to make it happen, then we'd be lacking the resource here. By that, were you referring to the size of the membership of the Senedd, or are you referring to the civil service or the legal advice here on this side of the table, if you like, or everything? And if it is that wider civil service and legal advice and so on that we would need to scrutinise these matters, is there work being done in preparation to scope out what we would need?

Not beyond what we're doing at the moment in terms of youth justice and probation. I think the answer is, 'yes, all of those things', because the more of the justice system that is devolved, the finance has to come with it. If we don't have the finance with it—. There's no point having it unless you can actually resource it properly. So, that is a key part of it. The other thing as well is, of course, if we have that, while we have to look at the size of the Senedd at the moment, with further devolution of justice—and, again, I've mentioned the background to that—also the reforms that we're planning in respect of tribunal reform, I think you do actually need to have a specific justice scrutiny capacity as well, and the development of skills within that.

Our committee structure is very much designed on the basis of the number of Members we have, the availability. That's why legislation, constitution and justice are in one committee, whereas elsewhere they might be in three separate committees. So, I think there is that as well. And I think it also means as well that, if you're now administering an additional part, that creates additional skills that you either absorb or take on from the existing system, or you bring under your umbrella those parts. So, how that would happen is obviously something that needs a lot of thought.

Thank you. Sorry, Adam, back to you.

No, it's okay. When you talk about devolution in this field as an ambition over the long term, do you have some kind of time frame in mind? Do you have a plan in mind that perceives all of these powers, for example, being devolved over 10 years? What is the figure that you would put on the time frame for the devolution of the whole thing?

Well, it's difficult to say, and you've got to be speculative about it, but I would say that, probably, if you have proper regard to the legal economy, to the legal profession, for those who work within it, to the courts system and so on, you're talking about something like, I think, a 10-year programme.

And within that programme of devolution over a period of 10 years, as you perceive it as a Government, have you—? Is there a piece of paper somewhere that already exists, or have you commissioned further work that fills in the remainder of the steps, so, beyond these initial steps that you've identified that are closest to being achieved in terms of our current situation, namely policing, youth justice and the probation service? What about the next steps? Do you have already in place some kind of general idea about the path and the main steps that would need to be taken during that programme of devolution over 10 years, or is that work that is yet to be done?

I think it's work yet to be done. I think the focus on those areas that we're engaged with at the moment is very, very significant. To attempt to look too far beyond that when you haven't had the basics, really, devolved I think would be a step too far. You always have an eye on many of those aspects of the justice system that are not devolved. I work very closely with the Minister for Social Justice, Jane Hutt, and the reason we do that is because so many aspects of the social justice agenda interlink with what we're trying to achieve or what we want to achieve, our aspirations with regard to justice. And those are ongoing, whether it’s the women’s residential centre in Swansea that we’re concerned with, whether it’s to do with health, with education within prisons and all those other areas. Those are ongoing areas that feed in, I think, to the picture as to why justice as a whole needs to be ultimately devolved, and why it actually makes sense in terms of delivering a better justice system with better outcomes. We look at the prison system as being a classic example of failure. So, you have that broader picture, but, when it comes to the actual mechanics of beginning to engage and to take over the responsibilities to prepare for the takeover, I think you just have to be very, very focused. And, again, as I said earlier, one of the focuses as well is the issues of tribunal reform that we’re looking at, and, based on the recommendations from the Law Commission, we are very much concerned with the creation of a first-tier tribunal system, with an appellate structure as well. So, those things are really pretty substantial and pretty radical changes that we’re looking at, but they are, again, a stage, and I think it’s a mistake to get too detailed, to try and look in too much detail at stage 2 when you haven’t yet got stage 1 and you don’t understand what the full consequences of stage 1 might be.

Just to return for a moment to the comments that you've just made on the creation of a Welsh jurisdiction even with the elements that we currently have partially devolved, or those that will come in future, could you just tell us a little bit more about whether the Welsh Government has any intention to move further in that direction sooner, before everything else is devolved? Could you tell us more about that process, and to what extent that would be possible within the powers and competencies that we currently have?

The issue with jurisdiction—. I suppose it takes on a somewhat romantic legal image, but, basically, jurisdiction is just where the cases are heard and how they're administered, how justice is administered in a particular area. So, it's a very mechanistic issue per se. I would say we already have a jurisdiction in the sense that we have parts of the justice system devolved, we have Welsh law, we have courts that are hearing them. It's just that the mechanics for the oversight of all of that is an England-and-Wales arrangement. It's just that, as more and more Welsh law comes into being, it makes logical sense that the county court sits in Pontypridd and it's the county court of Wales—Pontypridd county court, part of the Welsh jurisdiction. There's no great problem with any of that. There does come a broader problem if you say, 'Well, do you want to start taking on the administration of the buildings and the judges and so on?' Well, those things can all be managed, I think, quite co-operatively on an England-and-Wales basis. For me, the bigger issue is actually the policy of justice, and how we actually are able to influence that, and to do things in a way that achieves objectives that we would like to see of change. We don't think that prison is the answer to everything. The fact that we have a prison population that's increased from 45,000 to almost 90,000 in the space of 10, 12 years—there is a different direction, and it’s the seizure of that policy area that’s important to me, I think, when we start talking about justice. What is it we want to do? It’s about a better system for the application of our laws and processes for the people of Wales.

Thank you, Counsel General, for that high-level information. But may I return now to some detailed questions that I have? In terms of expenditure in this field, and the information on Government expenditure in this field in terms of delivering justice for Wales, apart from the details on expenditure on the issue that we've just discussed in terms of improving the information that is available relating to data, and so on, we don't have a great deal of information in terms of where you're spending on justice. So, are you in a situation to give us an update in terms of how you're going to give us more information about what exactly you're spending on in terms of delivering justice for Wales?

Thanks for the question. It's something we've been asked numerous times, and is very, very difficult to answer, because all we can say is, 'Well, look, most of the justice system is not devolved.' We are engaged with justice issues across a whole range of portfolios. So, I can say, 'Well, look, we know what the cost so far is of the tribunal system; we can estimate what the cost might be of a reformed tribunal system, as we're planning to do.' We know we have the single advice fund—that comes under the Minister for Social Justice's portfolio—and we know that is £11 million. Beyond that, really, I don't actually have a budget. I actually control nothing in terms of budgetary expenditure, because it all falls into other people's portfolios.

So, the work that's going on, whether it would be—I'll bring James in perhaps to expand in a bit more detail on this—things to do with community safety, police community support officers, that is an area where you can put a figure on it. But if you look in all the social justice areas, what goes on in terms of education within the schools and all those areas, they fall as parts of other ministerial portfolios, within their budgets, which they account for in terms of their work. But that work goes into becoming part of the overall areas of justice that we're involved in. So, there's no easy way of extricating that without going into every budget, trying to extract bits and pieces all over, in a way that probably doesn't actually make any real sense, because the moment you take them out of the core policy area, that justice aspect or part of it impacts on justice.

The other part, of course, is that, in every portfolio, whether it would be the legal cases, the judicial reviews and all of those, well, those are all the costs that are borne in-house. So, although I am engaged in looking at those, and looking at the legal aspects and the cases and so on, I have the great fortune, I suppose, in Government, that I don't really have a budget that I have to fight for and account for in the same way as other Ministers. Anything you can add?

That's all right. There is not a—. We've been looking at this for—. We've been wondering about these questions for some years, the committee's been asking these questions of us, and we, just like the committee, would actually find it extremely helpful to have, I suppose, a good systemic answer that would allow us to see more easily exactly what is going to be spent on justice and what has been spent on justice. We don't, I think, have a straightforward systems answer beyond saying, 'Until you get to such a point that there's a justice Minister with a justice budget.' What we've been trying to do—and I hope it is helpful—is to, over time, grow a better understanding of what is being spent on justice from within these other budgets.

The 23 January letter that the Counsel General sent to the committee has a table that runs through all the different budgets from which there is justice-related expenditure, and we try and make the notes around that as full and as helpful as we can. We've tried to put things into the 'Delivering Justice for Wales' progress report, but, ultimately, there aren't straightforward ways of expressing it. I can see you want to move me on. But the example I'd use is something like an inspector at a healthcare inspectorate gets a budget at the start of the year, they will spend a proportion of that on inspecting healthcare in prisons, but they won't know at the start of the year what proportion it's going to spend. You're hitting a limit at that point on what we can tell the committee when nobody knows what that information's going to be.

It's worth adding, Chair, that one of my functions is, of course, the authorisation of prosecutions under Welsh law, particularly agriculture, fisheries, food standards and so on. Those have a cost, but those costs are absorbed within those particular budgets as well. And those are things that go on year after year—some of these cases—and then the enforcement subsequently. And, of course, there are areas of justice, I suppose, if we're talking about the processes that are within Healthcare Inspectorate Wales, but also within Natural Resources Wales as well. Those are all part of it, but, again, don't form part of any budget that I have.

Adam, just to say, my apologies as Chair here. When we had this long horizon of two hours scoped out in front of us, we thought we could carry on forever. I think we'll have to go on for about four hours though if we carry on, and it's my fault. We might be able to return to some of these areas though if we have time at the end. But, Adam, is there anything before we conclude your first session, that you want to continue with the Minister?

I think that we've covered some of the elements, I believe. If you as Chair are content for us to continue, that's up to you.

Thank you, Adam. I really appreciate that. We'll go on for now then to Sam.

Diolch, Cadeirydd. Can I apologise for my tardiness, to you and colleagues, and to the Counsel General and witnesses as well? Apologies for that. But moving on to inter-governmental relations, if I may. Lord Dunlop labelled the reforms as 'very, very good' and a 'positive step forward'. I was just wondering what your assessment of his views was, and if you'd share it.

Yes. I did meet with Lord Dunlop when he came to the Senedd. He met with a number of persons to talk about the issue of inter-governmental relations. And it was a time when reform was taking place, the developing of—I think, started by Theresa May, in fact—a review of how inter-governmental relations could actually work better. And it took several years, but we did end up with a new formula of inter-ministerial committees, with a middle-ranking Interministerial Standing Committee that I attend and chair on a rotating basis, and then, of course, the meeting of the Prime Minister and First Ministers of the devolved Governments. It provides for a number of mechanisms: mechanisms for trying to resolve disputes and so on, and, of course, there is a financial version of that as well.

I have said on numerous occasions in the Senedd that it provides a basis for a much better and much more constructive engagement inter-governmentally as long as it is operated within mutual respect and trust and so on. It doesn't have any judicial standing; it doesn't have any constitutional status other than that. So, it is basically a goodwill body of inter-governmental operation.

Can I ask on that then: on the reforms, specifically, has there been an improvement? Is there a better rhythm to inter-governmental relations following these reforms and Lord Dunlop's positive response to that?

There are some bits that have worked better. There are many areas where, quite frankly, it really hasn't operated—. I would say that inter-governmental relations are in a poor and difficult state.

Generally? Or is it portfolio specific?

I'd say more generally than otherwise. There are examples where there has been good working, mainly at the inter-ministerial level on certain committees. I think when you get to the issue of Sewel and legislation it has been much, much more difficult because Sewel, actually, has been increasingly breached. And Sewel, in many ways, is a cornerstone of those inter-governmental relations, certainly on that legislative element. So, I think things have been very difficult.

I don't think the inter-governmental relationship is broken in that sense, in that it is operating and inter-ministerial groups are taking place, but it has not lived up to the promise that it had. That doesn't mean that it can't do. I have to say there are certain things that I think need to change. I think there does need to be some constitutional structure, a judicable constitutional structure, to make it work and to give it that consistency for the future.

So, a codification, in that it's structured as 'must be followed', rather than just a convention, per se.

Yes, I think so, you know. There are a whole number of areas that are about engagement, and those are always areas that are very much dependent on co-operative working together. But there are also other areas where the lack of codification of Sewel, and the almost arbitrary and sometimes irrational way in which Sewel is breached, is also a particular issue that undermines that.

We know also that there are a number of other things that have disrupted inter-governmental relations. I think that the United Kingdom Internal Market Act 2020 is an example of that, and the way in which some of the financial elements in that actually undermine the inter-governmental arrangements and agreements that were being reached. So, it is very much early days, a state of flux. It has not lived up to expectations. Inter-governmental relations are in a difficult state. That's probably as best as I can put it at the moment.

Okay. Thank you, Counsel General. Moving on to the fact that the Northern Ireland Executive has been restored, I was just wondering if that would make a meeting between the Prime Minister and the heads of the devolved Governments now more likely, given that the Northern Ireland Executive is back up and running.

Well, it should never have been a reason for the top tier of inter-governmental relations not taking place. I am trying to remember now, and you can correct me if I'm wrong, but I think that there has only been one meeting and that was in November 2022, if my memory serves me right. There has been no other meeting since that particular date, and there is no justification for that not having happened.

The Northern Ireland Executive re-establishing operations, I think, is extremely important. It's very noticeable that, during a lot of the Interministerial Standing Committee meetings, Northern Ireland obviously had officials attending. But the lack of ability to participate within that, I think, has weakened the process. So, I think that Northern Ireland's involvement will strengthen the inter-governmental arrangements.

That is, I think that there will be another body within there that has expectations that the inter-governmental standards will be applied. So, I think that there's another voice there, and I think that it makes it less easy to push to one side, I suppose, the sort of protocols and so on that we expect to see happen. And I think the same in respect of Sewel, and I think that Northern Ireland's involvement also raises new expectations in terms of looking at the financial arrangements within the UK as well.

Moving on to Sewel, I was just wondering why you think that there appears to be a difference in view between the UK Governments on whether the dispute resolution process has been used, and at what point you would consider using that dispute resolution process in relation to the breaching of the Sewel convention.

Well, I'm not sure that there is a disagreement. The dispute process is a whole series of stages that start off at official-level engagement to try and resolve disagreements. A lot of that actually happens in terms of legislation, where we identify aspects of legislation, certainly from the UK Government, that impact on Wales or need consent, and then discussions around that. So, that takes place. It does then arise in terms of the inter-ministerial group level.

I think that it's when it begins to rise beyond that, and you have individual ministerial inputs at UK Government level, which is basically—. I think it treats Sewel as though, 'Well, I will consult with you on this, but at the end of the day, I'm going to do what I'm going to do, whether it's Sewel or not.' Things are never put in those terms, but I think that that is one of the frustrations in what has happened in those areas of legislation where it has been breached.

So, I suppose the area of the disputes process that you are getting to is, of course, what happens when you get—. Well, what's meant to happen is that these are meant to be resolved at inter-ministerial level. I don't think that they do get resolved at inter-ministerial level. Certainly, when you don't have the top-tier meeting, that's part of it as well. There is a mechanism, of course, for referring this externally for an opinion, but, of course, it's only an advisory opinion in terms of dispute resolution. It is a significant step forward that you actually have that, but, of course, you have to have gone through all these tiers to get to it. I don't think there's been any matter that has gone through—. I know Northern Ireland referred some financial issues, but they didn't go through the entire process. The other problem, of course, is that you declare a dispute and if the UK Government's position is, 'No, we don't agree that there is a dispute', that causes a lacuna right at the beginning of the process.

Thank you. This last question should need a pretty easy 'yes' or 'no' answer—

I'll do my best.

I'm just wondering if the Welsh Government has now assigned staff to join the IGR secretariat.

Yes.

Diolch, Cadeirydd.

Thank you very much indeed. You've raised a number of important issues there that I think we can come back to in future: the absence of a head of government from the top tier, as you referred to it, obviously there are particular circumstances applying to Northern Ireland, but where is the convention, where is the understanding in that, is that a one-off because of the exceptional circumstances, what would happen if that were to occur in future again—

I should say, Chair, there are some positive examples, as well, but I think they are a minority of the process.

Yes, indeed. Thank you very much. Let's go on, then, to Alun.

Thank you. I'd like to start where Sam left off, actually. You say that you have appointed staff to the IGR secretariat. Can I ask how many members of staff and what their levels of seniority are and what their roles are?

The head of the secretariat is an appointee from the Welsh Government. I'm told it's not a secondee, it's a loan. I think there is another staff member who's been appointed. Scotland are in the process of doing the same. Perhaps I'll ask James to expand on that.

I don't know the numbers, I'm afraid.

The only one I'm aware of is the head, who's the loan, at the moment.

So, it's not complete yet, but the process has started and we have started allocating. I suppose having the head of the secretariat is not a bad starting point for Wales, but I'll just have to update you when it's completed.

It would be good to have that update. It would also be good to have an update on and an understanding of the role of the secretariat, because we have had a conversation before; I think it's important that the secretariat has quite a powerful role in ensuring that those inter-governmental mechanics work well. We don't want it simply to be a service that books flights and hotels, so I think it would be quite useful to ensure that we have that level of understanding. If you could write to us on that, I'd be grateful.

In terms of following on from the conversation we've just heard around Sewel, my understanding was that Sewel existed in order to enable the United Kingdom Government to legislate where necessary and in a relatively unusual sort of way on devolved responsibilities. That's not what's been happening recently, particularly under the present UK Government. I think it's true to say that there have been over 100 applications for legislative consent memoranda in this Senedd so far, which is more than double the number we had in the whole of the last Senedd. So, it appears now that this way of legislating is accepted at both ends of the M4, actually, which means that there's a growing democratic deficit that affects Wales. And the statute book of law in Wales is also becoming increasingly confused. Is it your understanding, Counsel General, that we are in a sort of post-Sewel world now, where legislators legislate as they choose, rather than according to accepted criteria and accepted practices?

It's certainly the case that Sewel is wounded at the moment. I've always been of the view that Sewel needs to be put on a justiciable basis in order to make it work properly and to give it the security that is needed. Of course, the first major breach was on the withdrawal legislation from the European Union. I recall at that time, if I recall rightly, the Minister was Steve Barclay, who basically wrote to the Welsh Government and said, 'This is such an exceptional thing that we know you're not giving legislative consent, but this is, basically, almost like a one-off in the most extreme circumstances, because this has constitutional implications for the whole of the UK, so it is justified in breaching Sewel.' Of course, Sewel is that the UK Government will 'not normally'. So, basically, it's a question of what does 'not normally' mean. Within that context, Steve Barclay was setting a very high threshold at which the UK Government would actually legislate.

What has happened is, I think, that threshold has been coming down and down and down. My own view is I suspect that is probably a deliberate policy direction from the UK Government, but whatever the merits of that view, nevertheless, the threshold has been coming down and down so that, increasingly, a number of things happen in the legislative process. Firstly, the biggest issue is, of course, the lack of early engagement in the legislative process. That is where the real democratic deficit comes in, because if the UK Government is going to legislate in an area and that has implications for Wales, where is the accountability for that? On the one hand, we have the legislative consent mechanism that means that it comes before the Senedd, it gets debated in the Senedd, the Senedd chooses whether or not to give consent to that. But the thing is, and the point's been made in this committee before, what does happen, of course, is that the ability to influence specific amendments and specific changes in that legislation is pretty much limited in terms of the parliamentary role. Of course, to some extent, that happens in Westminster as well, and, again, with last-minute amendments and so on that take place. So, there is a democratic deficit within the structure that we actually have.

That deficit becomes all the greater, though, when the UK Government's position, if the threshold is so low, is that it's not a great deal more than a duty to consult. It also impacts in terms of the discussion that takes place on various aspects of legislation, where you are offered undertakings, despatch box commitments and so on that have very little legislative value. It begins to undermine that whole process in terms of engagement between governments and it basically becomes more a question of, 'This is what we're going to do, and we'll do it if you don't agree with us.' I think, to some extent, that's what's happened in parts of the energy legislation that's gone through recently, where there was no broader UK-wide constitutional issue other than it was a ministerial view that, 'This is what we want to do, and at the end of the day we can do it.' I think that is the problem with Sewel; it needs refreshing.

It sounds like it needs a bit more than refreshing, Counsel General, after that analysis.

Intravenous refreshing, maybe.

It also sounds like there's no threshold at all if it's just a ministerial whim that determines how these things are taken forward. But perhaps more fundamentally, when you were in front of us, I think it was last year, with the Permanent Secretary, I seem to remember that it was a view from witnesses, yourself, the Permanent Secretary and perhaps others that the relationship between the Governments was improving—correct me if I've got this wrong and my memory's wrong—and that there was more engagement prior to legislating than there had been. So, what you're saying this afternoon is that if there was there any momentum, it hasn't been sustained, and we've actually slipped back into the bad old ways of working.

There are areas where there's been good engagement. One area where I think the engagement has been very good and where I think the inter-ministerial group worked very well was on the UK Government's Elections Bill. There clearly were bits there that we weren't prepared to go along with, certainly in terms of devolved elections, et cetera. I'm not saying the UK Government were happy with the approaches that Wales and Scotland adopted, but, nevertheless, I think there developed out of that a certain respect, and that respect has actually continued more recently within that group, where we seek to learn lessons from things that we're trying to do that may be of common interest. So, there have been good examples that have taken place. I think in some of the environmental areas, as well, there has been good progress.

The problem is it shouldn't be something that is dependent on the goodwill of a particular Minister or approach. There is certainly some legislation where there has been more information in the past in advance of legislation. But with the Energy Bill, which is an incredibly long and complex piece of legislation, there was virtually no engagement with us, and that has been typical of many other pieces of legislation. And of course, that has a chain consequence all down the line, because it means firstly you’ve got to become familiar with it, it means we can’t comply with the timescales in terms of engagement with committees and so on, and it takes time to actually analyse what some of this complex legislation actually means, where the devolved interests are. That’s not always very clear either. So, it is not a good, efficient or cost-effective way of doing legislation, and a lot of it stems from, firstly, the lack of a formalised system of early engagement in legislation, and, secondly, the uncertainties as to Sewel.

I’m grateful to you for that, but it’s not all in one direction, is it? Because the Welsh Government are also using UK law to override scrutiny in this place, and that’s something that is happening to a far greater extent in this Senedd than I remember happening before, where the Welsh Government itself is seeking to avoid democratic scrutiny by the Senedd. We’ve had this conversation before in the past, we’ve heard a number of different and sometimes contradictory explanations for this from different Ministers, and we seem to come back to two reasons for this. First of all, it's opportunism—which is not necessarily a bad thing—and secondly that the resources don’t exist in the Welsh Government, or in the Senedd, to actually deliver law in a timely fashion. I don’t have an issue with a Minister saying, ‘We’ve got the opportunity to do something here; we’ll do it', and I think that sort of thing does happen, but when we reach a point where it appears that the Welsh Government are almost planning legislation to avoid scrutiny, I think that’s a more difficult thing for us to accept. How would you assess where we are at the moment in terms of the Welsh Government itself using UK law to avoid the scrutiny of this place?

I think there are very few circumstances where we actually seek to go to the UK Government to say, ‘Will you legislate on our behalf in this area?’

But we have come across examples.

If you can give me the examples, then I will happily try and respond to those particular examples and the circumstances of them. But there’s certainly no question of a situation where the motivation to do anything legislatively is in order to avoid scrutiny of it. What is the issue, of course, is we’ve had growing levels of UK Government legislation that comes into devolved areas. Firstly, we have to respond to those through legislative consent, and we have no choice over those, so they are not things that are within our choice. There are one or two areas that have arisen where the UK Government has said, ‘Do you want us to legislate for you in this area?’ and the choice that we actually have to make at that stage is whether this is something where we want to preserve the legislation for ourselves now. Because what we never concede is, 'Yes, you legislate, and you have the power, you take the power to legislate in that area'. It may be the case that it's better to have that legislation now, because we’re not in a position to deliver that now, but we may well want to change it at a later stage ourselves.

But you would accept, Counsel General, in answer to Alun’s point, that the same characteristics that you’ve laid out about the growing democratic deficit, whenever we do England-and-Wales legislation, for a multiplicity of reasons, arise in that situation as well as a UK Parliament or UK Government-inspired Bill. The same democratic deficit happens.

It would be helpful if you could identify the particular areas, but it’s certainly going to be exceptional in the scheme of legislation. It’s certainly not about doing that. Anything where the UK Government ends up legislating in an area that is devolved et cetera has that implication, because it means the engagement in that process is from the Government, as opposed to the Senedd itself. The balance that has to be weighed up is if there are areas where there is a possibility of legislation happening that is important and would benefit the people of Wales that we're not in a position to deliver on now, whether you should actually accept that. And I think there is merit in saying that you can, provided that the power in that area isn't taken away and if, at some stage in the future, we want to actually develop our own legislation or change the legislation, we retain the power to do that.

Yes. Sorry, just very, very briefly—sorry, I'm really abusing my position here—I would refer you to our annual reports, where we highlight where this has actually happened. We analyse this and we cite where we see this happening. But we can also look at the Local Government Finance (Wales) Bill at the moment. There are powers there in that Bill being taken, not to the Senedd but to the Executive. But we can also look at other UK Bills within our annual report.

Yes.

My point is this—and, in a sense, this is a 'yes' or 'no'—when the choice is made, for whatever reason, and the increasing number, as Alun has pointed out, for whatever reason, at a UK level—the democratic deficit, that deficit of scrutiny, of the ability of this Senedd, it happens. There may be justifications, but it grows. Would you accept that premise?

Listen, absolutely. If UK Government is legislating in an area that the Senedd could potentially legislate in—

Or if Welsh Government accedes to it—

—then it is a different process and it is not a process that the Senedd Members have that direct control over, going through Stages 1, 2, 3 and 4 of the legislative process. But what I'd say is that I think those are normally exceptional reasons. I do remember, with the local government finance Bill, there were some very specific—. I do remember looking at that and, with the Minister, looking at it very, very closely as to why aren't we, why couldn't we, why shouldn't we et cetera. So, there is a very clear examination of the fact that the reality is that we need to do this. There may be some mechanic in that some of these areas cross over into either the grey area of reserved responsibilities or even engage the need in addition for reserved responsibilities.

I can't remember the precise issues on it, only that I do remember looking at it very closely. But these are very much, I think, an exception. They're not the rule, by any stretch of the imagination, and it's certainly not the case that, wherever that happens, it's being done as, 'Let's do it this way, because that way we won't have to go before the committee. We have to avoid scrutiny on it.' Now, the consequence may be that the hands-on control that the Senedd would have with its own legislation coming through the Senedd is clearly less democratic in that way—

Thank you.

—but it is part of the constitutional structure we have that it has a number of anomalies within it.

Yes, thank you. Alun—sorry.

Yes, I think the issue and the frustration of this committee is when we're told by a Minister that there is an urgent requirement to put forward an LCM, and that is agreed, it goes forward and then, 10, 12 months later we've got our fourth LCM on the same Bill, recognising, then, that there is less urgency and there never was any urgency at all. And I think we do find that difficult as a committee. But, of course, where you end up then is with a very confused statute book.

One of the issues we've discussed here about access to law is, of course, that when the law on similar or the same areas sits in different places and in different pieces of statute, it becomes more difficult to access and it becomes quite opaque. And I think you've recognised this and have used it as the rationale to move ahead with some of the consolidation pieces of legislation that you're looking at, and we very much welcome that, Counsel General. But do you not accept that the way of legislating that seems to have become a habit in this Senedd is not likely to lead to a statute book that is accessible, even to practitioners?

I think the answer to the question is this: in all those areas, even where that happens, the way forward on them is consolidation Bills, which will then take the bits of legislation that may be within the UK Government Bills and Welsh legislation, rather than bringing them together as a consolidation. That's what the consolidation Bills we've brought together so far have done. That's what the historic environment Bill did, that's what the planning Bill would do. If we were to consolidate election law, that would also bring, you know, legislation going over 100 years old into one place. So, it seems to me that consolidation is the ultimate way of doing this. And so much of our legislation is in different places all over and refers to legislation going back decades at UK Government level, sometimes going back into different centuries—more than one century, in fact. And the way—. That's why I think the consolidation process that we've started is really important, but it's a long-term project.

Could you—? I know time is against us at the moment, but it would be useful if you could give us an update on where you believe you are with consolidation, what you intend to do over the period of this Senedd and the preparatory work that you would seek to do ahead of the elections in 2026.

Okay. Well, we are in sort of regular engagement with the Law Commission over the consolidation programme, and, of course, you will have had my 'The future of Welsh law: A programme for 2021 to 2026' paper.

We have.

The most immediate piece of consolidation, which I actually think is probably one of the most important pieces of legislation we'll have brought in this Senedd, is the consolidation of planning law, which will produce a consolidated Bill of 450 pages, but at least it will be in a format that is readable and understandable—that is 450 pages in each language. Beyond that, we're having discussions with the Law Commission now over what will be the next consolidation piece of legislation. One of the areas we're looking at very much at the moment is actually agriculture. You know, it's something really important to the Welsh economy that we have consolidated legislation in that area. Other areas, of course—housing is an area that is a potential for consolidation, as indeed is election law. So, you know, we're working our way through them, but, of course, each of these are major pieces of legislation, major efforts of work, considerable skill and expertise involved in them, and we have to be careful about them because they are consolidations rather than reform. We are looking to bring forward a legislation repeals Bill, which will be basically repealing redundant and defunct legislation, but also doing certain other things that will take it slightly out of consolidation, into slight areas of reform, but, you know, I'll report on that again at another time. So, that is where we are with the consolidation programme—

Okay. Thank you.

—but it is an ongoing, rolling programme.

Brilliant. Thank you, Alun. We'll move smartly ahead, but can you just tell us, are you still considering bringing the planning consolidation Bill forward this year, this autumn, this—?

Yes. I'm hoping it will be a year 4 piece of legislation.

Right.

So, I know the First Minister will no doubt make his legislative statement in—is it June or July the statement is made? We'll obviously have a new First Minister by then. But all the work on the planning Bill is going apace, and it is a—. You know, it's almost like the film industry, it is the Ben-Hur of legislation.

Indeed. Okay. So, we, on this committee, eagerly await the latest riding out of Ben-Hur. Okay. Right. Let me turn just very briefly to statutory instruments. You have a quality assurance process in place to avoid errors happening. We're picking up significant numbers. Why is that happening?

Well, I think with legislation and with complex legislation and the volume of legislation and the pace of legislation, there are—. I think there are always going to be—. I mean, there are checks and so on that are in place, but part of the scrutiny process is also about seeking to identify those. So, as you go through the process, there are technical changes that need to be made, there are errors that are identified, some of which are very minor. It may be the missing of a word, a comma or a dot, slight amendments. I think there are two categories of error that occur in legislation, really. One is those that are minor, technical, inconsequential, that we can tidy up with a slip, and at some stage, when consolidation takes place, can be tidied up et cetera, but don't have any impact on the clarity or the objectives of the legislation. I think the others are where there is actually a defect in the legislation. That is more significant. If it's a minor defect, then it is one that I think we would seek to correct at the best opportunity that would arise to do that. Obviously, if it is a more significant defect, then, obviously, there's a need for amending legislation to correct it. So, it's a sort of case-by-case basis.

Are you content with the numbers that are currently being identified, because they're not insignificant? Yes, some of them are ones that can be corrected by slips. Some of them are relatively minor and we'd expect them to be dealt with very rapidly and very simply, not just as soon as possible, but immediately. But others are more significant. What is your view, and who is ultimately responsible? Is it the individual Minister, or is it yourself with an overview, or both? Who should we ask in terms of the quality of these instruments coming through?

Well, the first thing I'd say is that I'd never be content with any errors that occur—

We agree.

We want to achieve perfection and we want to achieve legislation that doesn't require any corrections whatsoever—

But then we'd be out of part of our job.

I'm a utopian idealist as far as legislation exists. What I would say is that what we've been through in the past few years, with the actual scale and pace at which we've had to legislate, and particularly with secondary legislation—I think that clearly results in more of these things happening. It's as much as anything to do, I think, with the scale and pace of what happens. Obviously, we look all the time in terms of how do we make the checks and so on on it, and how do you get people to continue to look at it, but when you're working to a timetable that you've got to deliver a legislative programme et cetera, or you have to have secondary legislation that responds, or you have to have implementation legislation, then obviously it's one of those things that we want to keep an eye on and keep to an absolute minimum. I recognise the importance of the role that the committees actually play within this as well.

In terms of whose responsibility, well, I can tell you that when—

What sort of discussions do you have, because you do have this overview? Diplomatically speaking, do you rap the Minister over the knuckles and say, 'What's going on here with this one?'

Well, I discuss with the drafters, when we meet on legislation and so on, and the issues that arise from it—why is it happening? What can be done to ensure that these things are identified and corrected before the legislation is in place? It certainly is the case, certainly when we're getting to the last two years now of this Senedd, that if you want to get the legislation through et cetera you have to work extremely fast. You don't really have the scope for saying, 'Well, let's take another two or three months and go through everything line by line, a second or a third or a fourth time', which might have happened with a more leisurely pace of legislation.

In terms of responsibility, I suppose the official line would probably be something along the lines of, 'Well, Welsh Government as a whole—the Ministers take responsibility and Welsh Government takes responsibility collectively.' But I have to say, I do think that one of my specific functions as Counsel General is to have that oversight on it. Whether that means me saying, 'Yes, I accept responsibility for everything that happens'—. I suppose, what I accept responsibility for is the need in my functions to be aware of, to be alert to, to be engaging on this, and to have the oversight of it and to be able to come to a committee and say, 'No, we are aware of this and we are working to—'

We'd love to be a fly on the wall with some of that engagement that you do. Listen, the other side of that, of course, is that when errors are made, we have two concerns as a committee. One is the clarity and transparency that comes back to this Senedd about when they're either being corrected through slips, or, with more significant corrections, going back to the regulations and so on. And the other aspect is the timescale, because we worry that some are just drifting on and on and on. So, what role do you have in that, in harrying that? What should we have the right to expect as a Senedd, not just this in this committee, in the correction of these? As you say, some are minor technical, but we'd expect those to be dealt with with a snap of the fingers. Others are more substantial and need a bit of work. We don't see them sometimes, and also there's a little bit of worry over the time and how long it takes.

Yes, it's a good question. I'm not sure I have a very adequate answer on that, only that, with the minor ones that occur, I think, slips and so on are there, if they are generally inconsequential, as a way of dealing with them. I think consolidation is the longer term way of resolving these, and also it makes it easier to avoid mistakes in the future.

But, in terms of the timescales, I suppose the valid point that you're raising now, really, is, I suppose, keeping abreast of, overall, the things that are more significant and need amending. Now, I know I look at some of them from time to time, or they get referred to me in one way or another, because you have, coming before committee, a piece of amending legislation—I think we've had some NHS regulations that have recently been amended in that way.

Well, would you be open to suggestions coming forward at some point, when we turn our attention to this, about how we can increase the clarity of what's being corrected and when, and what's been overdue, because it's not, obviously, transparent at the moment, and there are some things—we wonder—that might well have been corrected, but nobody knows apart from Welsh Government.

Well, I'd be happy to consider any recommendations you've got on that, because we want to have a statute book and a legislative framework that is as clear, as transparent and as robust as is possible.

We welcome that. Colleagues, we're going into our final half an hour now, so I'm going to hand over to you, Adam, there. I think we've got four sections that we might want to come to, but over to you, Adam.

Yes, just very briefly, therefore, I'll be turning to the Retained EU Law (Revocation and Reform) Act 2023. There are four categories of retained EU law that expired at the end of last year since you as the Counsel General appeared before this committee. Can you give us the implications of these four categories, please, if that information is available?

Yes, I can. I'll turn to Tom in a minute, as the expert in a lot of these things that are happening at the moment. But, within the four areas, obviously, there is a lot of engagement with retained EU law, up until the point when the blanket sunset arrangements were abandoned by the UK Government, fortunately. So, we've got a lot of redundant legislation, which isn't really of great consequences to us, other than it is a tidying up of the statute book. So, it's something that is, actually, probably positive that comes out of that process.

Then there are issues to do with powers and liabilities that merge from our membership of the European Union—things like rights relating to, I suppose, membership, free movement and so on.

The other area, of course, is the supremacy of EU law. I have to say it's not completely clear what impact that might actually have and what it might actually amount to. Certainly, with EU law, it has, jurisprudentially, a sort of purposive effect. But what impact that has by taking away the supremacy of the EU law is not particularly clear. And then there are the general principles of EU law.

So, I suppose the bigger concerns we've had have not been so much a concern with what's happened at this stage. The area that we are, obviously, keeping an eye on is the area where UK Government have concurrent powers. Now, we're opposed, as you know, to those concurrent powers, but we have now had exchanges of letters, and so on, which shore up the commitment that was given that this legislation won't be used to basically legislate in devolved areas. And, of course, amongst the areas that we are particularly concerned with are the areas of standards, and so on. So, it's one of those where we have to keep a close eye on what is happening. Up until now, I would say—and I'll bring Tom in in just a minute—the commitments that have been given have been respected. It's still relatively early days. We have asked, of course—. I wrote to the UK Government in respect of the need for implementation—that is, the implementation of a commitment in respect of guidance, really, for officials, in terms of the way in which powers were to be exercised. I'm not sure if we've had any response to that, although we've had exchanges of letters. But, Tom, over to you, really, on retained EU law.

Thank you, Counsel General. It has been a good three or four months since I've been in post, so I'll try my best. In terms of the implications of the areas that the committee's identified, I think I will probably just add that as to the interpretive provisions—so, the supremacy of EU law and the general principles—we just don't really know what the impact of those will be at the moment. We are discussing with the UK Government how we can monitor that. It will, unfortunately, have to be quite reactive, so we'll have to monitor what's happening through the courts as these things come up and are interpreted.

I suppose the biggest concern for us is the enactment of section 6, which will happen later this year, so we probably won't start seeing some of these things until the end of this calendar year if we're realistic. But we are discussing with the UK Government the work they are doing that can help inform us when things are coming up, and there are powers available to Welsh Ministers should assimilated law, as it is now, be reinterpreted or be interpreted in a way that we're not comfortable with. There are powers there for Welsh Ministers as well as UK Ministers.

And just on the consent process, having seen some of the exchanges, I think some of the letters may have crossed, which may have caused some confusion. So, I think, whilst there was correspondence between the Counsel General and the Secretaries of State for levelling-up and trade, I think there was also correspondence with this committee. Just to confirm, that correspondence with the UK Government has completed, so there is non-statutory agreement that they will consent or seek agreement from Welsh Ministers before using REUL powers and, to the best of our knowledge, they are sticking with that. Some departments are better than others, but we have mechanisms to engage with the UK Government.

Where have you reached in terms of the non-statutory consent process? Do you intend to take that a step further, in terms of formalising it, beyond the letters that have been sent back and forth?

Well, what we did want was that it be formalised so that it was on the face of the Bill, on the face of the legislation itself. So, what we actually have is not that, but, basically, commitments that were made in correspondence and which have now been put into further exchanges of letters between Ministers, and what we would hope to see soon would be guidance on that that actually also reiterates that this is the way the process is to operate, that respects devolution. I don't think there is any other way of formalising that, other than going back and saying we want the legislation amended to do what we originally asked for. That clearly is not going to happen. So, it is working at the moment, but, again, it's early days, isn't it.

Absolutely.

Okay, Chair, I think, due to time, I'll bring that to an end.

Thank you, Adam. Thank you very much indeed. Sam, we're going to come to you, and we do definitely want to get into some depth here.

Yes. Thank you very much, Chair. Would you class yourself as a unionist, Counsel General?

Am I a unionist? Yes.

Yes. Okay. I only ask that as a pretext to the 'safeguarding the union' set of questions.

I might go further and ask you to define what you mean by a 'unionist', but we haven't got time to do that this morning.

No. It's believing in the union of the United Kingdom of Great Britain and Northern Ireland. Do you believe in that union?

I believe that Wales's best interest is being part of the UK, just like I believe that the UK's best interest was being part of the EU, and that's obviously a decision that's—

Sam agrees with you.

—out of my hands. But, I'm very much in agreement that there's a need for very serious reform of our constitutional relationship.

Okay, that's a helpful, as I said, pretext and context to the set of questions. So, moving on, I'm just wondering if you could outline the engagement that has taken place with the UK Government since the publication of the 'Safeguarding the Union' command paper.

Well, can I just say, I know the First Minister has written, I think, on this, and one of the issues I raised, of course, when we had questions about it in the Senedd recently, was that we didn't have any advance engagement in terms of that paper or in respect of the proposal for the creation of the council—is it an east-west council—that's to be established, nor is it clear to us what the changes to the Windsor agreement might actually mean in terms of Welsh trade? We clearly do have an interest because our links with Northern Ireland and with the Irish Republic are significant—we have a lot of trade that comes through Wales, or used to come through Wales. We still have significant amounts of trade. There are issues in terms of borders and things that need to be checked and tested, and so on. So, the lack of engagement hasn't been helpful. Now, as far as I'm aware, there are discussions that are under way. Perhaps I could go over to Tom on that.

Yes. There's been very little advance engagement with officials either. I think, if discussions have begun, they are still at a very high level where we're asking the same kinds of questions that, I think, the committee is asking, of the UK Government, including things like participation in the new structures that are being established. So, those discussions are happening now, but they haven't got into the level of detail we would like.

So, just to build on your point there, Tom, if I may, in terms of the Welsh Government's role, then, in new governance structures such as the east-west council and Intertrade UK, it's not being clearly defined at the moment what the Welsh Government's role would be within those.

Not at all, no.

No. Okay. That's interesting. The UK civil service is one civil service, isn't it? Why is there not a discussion given that it is one civil service pool? Is it ministerial level saying, 'Do not discuss this with devolved Governments?', or is it a case of momentum, capacity, understanding, a lack of understanding of devolution? Why is that not happening?

Well, we know, don't we, that when legislation is coming forward or discussions take place at the UK Government level, there's been a consistent position that's been put from, really, the four nations of the UK at every opportunity that there has to be advance engagement on those areas that affect devolved Governments, there has to be co-operation on all those particular areas, and there has to be a certain amount of mutual respect in terms of the way in which those negotiations take place. What has happened more recently, I suppose, is that that hasn't taken place. That can only have not taken place because there was a specific decision for it not to take place.

So, you think it's a political decision, in that sense, then?

Well, every decision the Government takes is a political decision. So, the fact that we have not been engaged I don't think is an oversight. I don't think it's one of those things where you say, 'Oh, dear. We've forgotten to discuss this with Wales, et cetera, and we'll send a letter of apology off. Sorry about that.' It's very clear that, in those discussions, there was no engagement with Wales, or indeed with Scotland, as I understand it, but that was clearly a choice that was made. I think it was an unfortunate choice, because it means that some of the discussions that have to take place now are filling in gaps of understanding as to what is actually intended, and it will also be part of the process to try and understand what the implications are for Wales and for our economy.

Okay, thank you. That's quite helpful, because it builds on the former point on inter-governmental relations as well, so thank you for that further clarity. Just moving on to the new structures and how they're potentially likely to interact with existing mechanisms established to manage the UK internal market and inter-governmental relations, so, for example, the common frameworks process, if we're not fully understanding Welsh Government's role in these new structures, how are we able to understand how they can impact on those structures that already exist?

Well, the common frameworks—. And I'm trying to remember how many there are; there are, is it 20—?

Twenty something.

Yes, into the 20s, and, of course, because they are co-operative agreements between Northern Ireland, Scotland, Wales and UK Government, the whole basis of them is that there will be buy-in and agreement within all four Governments and that there will then be a process of scrutiny of those agreements. So, what we have in nearly all of those areas—. I think there's only one that's gone through the full process, but, nearly all the areas where we have common frameworks established, there are drafts that are there that are operational because they've had to be. The completion of the process of scrutiny of the common frameworks hasn't taken place, because, obviously, of the situation within Northern Ireland. Now that the Northern Ireland Executive is now operational again, it should enable us to make progress, and I think it does mean that those frameworks should now be coming through the committee structures of each of the Governments. So, I think there's quite a bit of committee work that may be involved in them, but that needs to happen before they can be finalised and any final adjustments made to them.

Okay. I'm just wondering as well if you could set out your views on the implications to Wales of legislation to implement the command paper.

Well, it's difficult to say at this moment, because I don't know. Until you have that engagement over it, it's impossible to say. The problem as to where we are now is that we know that agreements have been there, but we don't understand what the full detail of that is going to be, what it's going to amount to.

I can offer an initial view. It's subject to further analysis, but I think the three main pieces of legislation that have gone through, the first one, on the constitutional status of Northern Ireland, doesn't seem to have any direct implications for Wales; the internal market and unfettered access regulations, as it only amends Part 5, doesn't appear at the moment to have any direct implications for Wales; it seems to just formalise Northern Ireland's place within that. I think the making of goods regulations are the ones—I can't necessarily talk with any authority on them, but those are the ones where there are more significant implications. There are some positives and there are some areas of concern in there around the operation of Welsh ports.

Okay, thank you.

I think there is a statutory instrument that's under preparation and so on, but that's probably a couple of months away yet.

Can I ask, then, as well, sort of more broad brush—? This is all—constitutional, inter-governmental relations, all of this—is not at the forefront of the majority of the public's minds, at all points, so what benefit is there to the people of Wales and the United Kingdom from having better inter-governmental relations? What is the benefit of your answers to us here today, in this Legislation, Justice and Constitution Committee, to the running of Wales to the betterment of people's lives in Wales? Because it's sometimes—. I speak to constituents—it's difficult to ratify, with them, work within this committee and their day-to-day lives, and it's always—. I enjoy the constitution, and I think it was my party leader who said, 'Constitutional is for the anoraks', well, I'll class myself as an anorak, in that case, I quite enjoy these discussions, but how can it better people's day-to-day lives?

Okay. Because the constitution is about the way in which power is exercised. It's about the regulations that exist, not only for the exercise of power, but the distribution of power, and that impacts on everybody's lives. And you're right, people don't wake up in the morning and say, 'I wonder what's happening in these constitutional discussions taking place', but, when you say it's for anoraks, if you want to look at the last four years of the UK Government, 50 per cent of it has been about constitutional issues, whether it be to do with Northern Ireland, whether it be the trade and co-operation agreement, whether it be to do with Brexit—Brexit is no more than constitution. So, there are all these asks. So, in many ways, it's a question of what label you give it to people. If you talk about it in terms of the arrangements for the exercise of power or the process for decision making and so on, maybe it sounds a bit more understandable than when you talk about constitution. 'Constitution' is an umbrella term, and what it does is it provides—. It's the basis on which harmony and stability is provided within the UK, but also in which you can have common areas of co-operation and so on throughout the UK. So, if you don't address the constitution, if you don't have a constitution that is workable, that people are able to buy into, then you see what happens. We only need to look at other parts of the world where either the rule of law, the principles on which Governments operate and exercise power, begins to break down. And we've seen many examples around the world. So, in many ways—. It's the responsibility of Governments whether there is a popular understanding or demand for these things to be happening or discussed or whatever; if you don't address them, then you basically build in all sorts of problems for the future. And you only need to look at, potentially, the situation within the UK, where we have come very close to one part of the UK actually leaving the UK. It didn't happen, but it doesn't mean it might not happen in the future, and it doesn't mean there might not be very significant constitutional consequences of the arrangements between Northern Ireland and the Irish Republic in the future. Those are all constitutional issues, and it ultimately comes down to the exercise and accountability of power.

Okay. Thank you. I'm conscious of time, but I've got one small question, as you mentioned Northern Ireland there in that answer, and in a previous answer as well. What assessment have the Welsh Government made of the £3 billion financial package being offered to the Northern Ireland Executive by UK Government, and whether any consequentials come to Wales?

I can only answer part of that; I don't know whether anyone else here can help more than that. All I can really say on it is this: firstly, there was certainly a backlog of all sorts of financial matters that needed to be resolved, to do with pay deals and so on, none of which could be dealt with on the basis that there was no operational Executive in Northern Ireland. Now that there is, and there's been this package, what I am very interested in is the fact that it has been described as a needs-based package. And of course, a needs-based package is something we've been arguing should happen within Wales, should happen within England and Scotland as well, and, indeed, a needs-based package that's also applied to the different regions of England. So, I'm very interested that that's a principle that has been implemented as far as Northern Ireland's concerned, and it's certainly one that I think should be implemented in terms of an overall review of the financial arrangements within the UK.

Okay. Thank you. Thank you, Chair.

Thank you very much, Sam. We've covered a lot of ground, and we're into the last six or seven minutes, but Alun's going to take us into another area here—let's see if we've got time.

It would be useful if we kept in touch with the Counsel General on those Northern Irish matters, because I think they will have a significant impact on the operation of the inter-governmental relationships, if they are to mean anything.

I'll wrap my remaining questions into a single question, for reasons of time. Since you last appeared in front of the committee, Counsel General, you have published the report, the final report, of the independent commission on the constitution. It would be useful for the committee to understand how you expect to take that forward now. I think the last time you were in front of the committee, you mentioned that you expected it to influence the work that Gordon Brown was leading within the Labour Party, but I don't think you've outlined how else you would expect that report to be used in order to guide the approach of Welsh Government, and others, in the constitutional debate.

Okay. Thanks for that. Well, I suppose the first thing to say is that it's still under consideration. Some of the things do require, I think, quite an application of thought as to how you'd bring about changes. Some of the changes are not just in terms of the inter-governmental relationship side, but within Wales itself. So, the issues, I think, around how do we democratise Wales to engage people better, one of the areas I think is that we need to look at our own Senedd in terms of some of the things we do that could probably be dealt with at a level that's closer to people, probably through local government and so on. So, I think it means looking at local government, looking at a lot of things that we do, and I know that is something that is under consideration at the moment—how do we actually focus on our role as a legislature and not try to emulate some of those functions that local government do in terms of grants in various places and so on? How do you do it in such a way that still enables Wales-wide policy to be properly implemented? I don't think that's an easy thing to do, but I think it's a very, very important debate.

There are certain interesting aspects that came out with regard to transport, I think, and indeed with energy, which actually recognise that there is clearly a broad UK-Wales common interest in those, that these aren't things about devolving because we're going to run it et cetera, but that some of these things can only be done on a co-operative basis where there is a significant interdependency. There is a debate in the Senedd—I think, if I'm right, it's 19 March—where, obviously, we'll have an opportunity to discuss that in more detail. Obviously, there will be further discussions within Government itself on this, and obviously this is something that doesn't come to an end with the publication of the report.

But I think, where your question is really getting to, how do we actually take this forwards into something that actually delivers change within those areas that are within our competence to change, and also then how do we progress those ones that require further engagement with UK Government, of course, that depends to some extent on the climate for change as well, mutually.

I was sort of hoping you'd answer the question as well, rather than simply discuss it, but what is the timescale for that conversation to occur? You seem to be saying that the timescale isn't immediate.

No, the timescale is starting now and the discussions are taking place now, and they are partly dependent also on discussions within the Senedd, probably discussions within committees as well, obviously discussions on the fact that we'll have a new First Minister in a month and a half's time. So, I suppose the answer is that there isn't an immediate answer to it, other than that we need to think very carefully about that. We need to think about how we might engage with the next incoming Government over this for those changes, and how we might prioritise the things that are most important.

But you are running the process, so it's a programme of activity that is consequential to the publication of the commission's report. You will now be looking towards developing a programme of activity.

Well, overall, the First Minister has the oversight of that, and then much of it comes to the individual portfolios, the ministerial portfolios, and it becomes a collective thing within Government. But my function was to initiate the commission and for it to get its work done—it started two years ago—and then complete that work. I suppose, really, all I can say is that there is a commitment to implement as much of the report as we can as quickly as we can, et cetera.

Okay.

Thank you, Alun. A relatively straightforward question, I think, from me just at the end here. It's on common frameworks, which we touched on a moment ago. We don't have an annual report on final frameworks, clearly, at the moment, but the provisional frameworks are in various stages, those two dozen and more. If you could provide anything by way of more regular updates to the Senedd, I think that would be really welcome, but what I particularly wanted to ask was whether you can give us an update on the UK Government review of the programme, and when you expect the findings of that review to be published.

Sorry, I missed that last bit.

So, the UK Government review of the programme, have you got any idea of when that's going to be finalised and published?

I haven't. I'll have to write to you separately on that. I don't know.

Okay. Thank you very much. Counsel General and your team, we've covered a lot of ground there over that two hours. We will send you the transcript for checking for accuracy, but we thank you very much for your time and your attention this afternoon; we really appreciate it, as always.

We will take now a short comfort break, and also an opportunity to rearrange the positions here within the committee. So, we'll come back at 10 past at the latest, if we can, colleagues. Thank you very much, Counsel General.