Legislation, Justice and Constitution Committee

Can I welcome the Cabinet Secretary for Finance and Welsh Language, Mark Drakeford, to the meeting this afternoon? I'd also like to welcome his officials. Thank you for joining us. Would your officials like to introduce themselves?

Bethan Webb, deputy director for 'Cymraeg 2050' at the Welsh Government.

Iwan Roberts. I'm a lawyer with the Welsh Government.

Diolch. I'll start off with a very short question: are you satisfied that the Bill is within the Senedd's legislative competence?

Chair, thank you. Yes, of course we are confident that the Bill is within the competence of the Senedd. The Llywydd published a statement to set out her view that the provisions of the Bill are within the Senedd's competence as well.

Thank you. The explanatory memorandum accompanying the Bill does not discuss human rights. Can you give us further details regarding the impact that the Bill will have on children and their families, with particular reference to article 2 of the first protocol to and article 14 of the European convention on human rights?

Thank you, Chair. I might see if Iwan wants to add anything to what I'm going to say. The explanatory memorandum doesn't deal directly with human rights. Of course, this is a Bill that essentially operates within the framework that already exists; children already attend school, and all the arrangements around their education are set out in earlier legislation. Chapter 9 of the EM does provide a summary of the impact assessments that were undertaken in order to give us confidence that the Bill is Human Rights Act 1998 compliant. That summary is a distillation of a series of separate impact assessments that were published together when the Bill was introduced to the Senedd on 15 July, and I think you will find that the children's impact assessment is clearly available to colleagues there. That gives us confidence that the human rights considerations that have to be satisfied in order for the Bill to be within competence—. The children's rights impact assessment gives us confidence that those aspects have been properly considered.

Diolch yn fawr. Natasha.

Thank you so much, Chair. Thank you so much, Cabinet Secretary. The Welsh Government carried out a public consultation on the proposals in the Bill during 2023. Why did you not consult on a draft Bill?

This has been a Bill in gestation for a long time. The original ideas that culminate in the Bill were there in documents that were published and discussed prior to the pandemic, and the pandemic had the same impact on capacity to legislate here as it did on so many other things. We did not choose to publish a draft Bill because of the depth of discussion that had already been carried out, and preferred instead to publish a White Paper. So, there was a White Paper, it was consulted upon in the normal way, it received hundreds of responses, and, of course, it came as well as part of the co-operation agreement's set of commitments.

I was very keen, when I did another job, to make sure that a place in the legislative programme was safeguarded for this Bill. A draft Bill would have pushed the legislative timetable even further towards the end of this Senedd term, and I think that would have eroded confidence that we could complete its Stages during this Senedd term. So, the depth of prior discussion, the needs of the timetable and the fact of the White Paper meant that I thought a draft Bill was not necessary.

Thank you so much for that. The Bill places a target of 1 million Welsh speakers by 2050—it's a figure we all have heard many times—on a statutory footing. What is the purpose of this, and what is the consequence for everyone if the target is not met?

The purpose of putting the target on a statutory basis—. And, of course, Natasha Asghar is right that that target existed already—so, it's not a new target in that sense. What the Bill does is to give it statutory force, and, in that sense, statutory stature as well; it just reinforces the importance of it. It's a target that has already captured the imagination. Lots of people are aware of it; it drives thinking and policy making in this area. Making it statutory, I think, ensures that we can futureproof it as a target, and give a clear context to support future decision making.

The second part of Natasha's question is a good one, though: what are the consequences of not achieving it? In some ways, the consequences are reputational rather than legal, because I don't think it's right to place legal jeopardy on the shoulders of people who are not in control of the outcome that you are seeking to achieve. There are so many things that Ministers can do and so much that the Senedd can do, but in the end, you are not in charge of all the different factors that would contribute to whether or not that target is achieved.

Of course, in front of a different committee, Chair, I was asked what would happen if the 1 million speakers were achieved ahead of the target. Would we have to slow down, because the target was 2050 and we wouldn't be allowed to reach it before then? Of course, that isn't the effect of putting it on a statutory basis. So, the consequences will be reputational and an impact on policy making, but not a strictly legal consequence.

Thank you so much, Cabinet Secretary. Section 10(3) specifies that the minimum amount of Welsh language education for the primarily English language, partly Welsh language category must be no less than 10 per cent. In evidence to the Children, Young People and Education Committee, your official noted that this does not mean that every single pupil across Wales has to have 10 per cent and that gives 'a bit of leeway'. Can you explain how this will be provided for in regulations made under section 10?

The obligation is on the school not on the individual, so the school must ensure that a minimum of 10 per cent of the compulsory part of the school day is devoted to the Welsh language. And just to be clear, Chair, that doesn't mean that the whole of that has to be teaching Welsh; it can be delivering a sports lesson using the Welsh language as the medium of instruction. But it's for the school to achieve that 10 per cent. You can't place that at the level of an individual pupil. Children fall ill. Children are not in school for other reasons as well. The question was asked in the context of children with additional learning needs and how would it be possible for them to secure this. Well, placing the obligation at the school level does allow that bit of leeway to accommodate the requirements of the Bill with the circumstances of an individual child.

Thank you so much. Section 28 of the Bill requires each local authority to prepare its own local Welsh in education strategic plan. In doing so, they have to consult a significant list of consultees, as set out in section 28(4), including their neighbouring authorities, who will probably be doing their own consulting as well. If all 22 local authorities are preparing their plans at around the same time, is it feasible for all of the consultees to deal with this workload?

My understanding—and again, I'll make sure that I give you the best information I can—is that the consultation requirements that this Bill sets out essentially reflect the consultation arrangements around the WESPs that were set out in the founding Act, the School Standards and Organisation (Wales) Act 2013. The obligation to consult neighbouring authorities, for example, is in that Act and has been part of WESP preparation ever since.

There are a couple of new consultees identified in this Bill, but they are not ones I think you'd regard particularly burdensome. There's a requirement, for example, to seek the views of the Welsh Language Commissioner. The commissioner will have views and the commissioner will be publishing material on this, so you wouldn't have to make a special effort to hear from the Welsh Language Commissioner. The national institute that the Bill brings into being is also a consultee for these purposes. But the list of things, Natasha, that you went through—I'll just check—is broadly the same list of consultees that are currently required.

Yes, that's right.

All right, fine. I'm very glad that you touched upon the National Institute for Learning Welsh, because that was going to be my next question. Part 5 of the Bill creates the National Institute for Learning Welsh, and section 37(2) sets out the steps that the institute must take to meet its objectives. Those steps involve a number of third parties but there is no requirement on the face of the Bill for those third parties to engage with the institute, nor is there any consequence if those third parties do not comply with what the institute requires when discharging its duties under section 37(2). So, can you please just set out for me, as well as the committee, how this is intended to actually work in practice? What consequences will there be for the third parties, if, indeed, they don't comply with anything required by them from the institute itself?

So, Chair, the relationship is essentially a contractual one. So, the national institute will contract with a number of Welsh language learning providers. You would expect the institute to monitor that contract, to monitor compliance with that contract, and if a provider was not carrying out the terms of the contract, to intervene to secure compliance. In the end, the consequence for the provider, for the third party, is that they lose the contract. So, there is a significant potential penalty for an organisation, in that relationship with the national institute, if it fails to deliver what it has been contracted to deliver.

So, the only outcome for not complying will be losing the contract, nothing else?

Well, I think that's the ultimate sanction, isn't it? As I said, you would expect the institute to have contract monitoring. It's the way the Welsh Government would monitor grants, in our case, that we make to third sector organisations. You receive regular reports, you monitor to make sure it's doing what the grant is set out to do, you can intervene if you feel that it's going off track. The backstop is losing the contract; it's what happens at the end, if you haven't been able to put things right otherwise, not the first thing that you would do.

Okay. Thank you so much for that. I'm so sorry, I was about to call you First Minister then—my apologies. So, Cabinet Secretary, the explanatory memorandum to the Bill states that the new institute will be an arm's-length body. Can you please explain how this will work in practice, given that its chair and its non-executive members are going to be appointed by Welsh Ministers here, and it is to operate within a strategic planning and funding framework established by Welsh Ministers?

Well, Chair, the national institute will operate in just the same way as any other arm's-length body that is established by the Welsh Government. Of course, Natasha is right that the chair and the board will be appointed by Welsh Ministers, but that's not an arbitrary process. As you know, we are governed by a code of conduct for public appointments. The involvement of the commissioner is always part of that. Ministers will get advice in which the commissioner will have been directly involved. So, yes, Ministers appoint, but it's not a matter of Ministers choosing names from the phone book. There's a rigorous process that lies behind it, with an element of independence in it. And, yes, the chief funding stream for the institute will be the Welsh Government, but it will have its own accountable officer, who will be responsible for the financial oversight of the organisation and will have independent legal obligations and capacities of their own.

So, I think, 25 years into devolution, we've a significant history now of a maturing relationship between the Welsh Government and the arm's-length bodies that it establishes, which aims to make sure that those bodies are aligned with the democratically agreed purposes of the Welsh Government, but have a sufficient degree of independence to be able to pursue those objectives without the Welsh Government being in a daily oversight relationship.

Okay. Thank you so much, Chair.

Diolch. Adam.

Diolch, Cadeirydd. Dylwn i, ar y dechrau, ddatgan rhyw fath o—. Dwi ddim yn siŵr a ydyw e'n fuddiant, ond dwi jest yn nodi fy ymwneud i â'r cytundeb cydweithio, ac fe gawsom ni rai trafodaethau, dwi'n cofio, ynglŷn â'r Papur Gwyn, er wnes i ddim gweld drafft o'r Bil dŷn ni'n ei drafod heddiw. Dwi jest eisiau rhoi hynny ar y record.

Jest i ddechrau, cwestiwn cyflym: ydy'r ysgolion preifat yn dod o dan cwmpas y Bil yma?

Nac ydyn.

'Pam?' ydy'r cwestiwn nesaf.

Wel, penderfyniad polisi ydy o bod y Bil yn canolbwyntio ar ysgolion mae'r wladwriaeth yn gyfrifol amdanyn nhw. Felly, yn yr ystyr eu bod nhw'n delio ag ysgolion, ysgolion y wladwriaeth sy'n cael eu delio â nhw. Mi allech chi ddadlau, o bosib, fod rhannau eraill o'r Bil, mewn rhyw fodd neu'i gilydd, yn mynd i gael rhyw fath o effaith ar ysgolion sydd ddim yn ysgolion y wladwriaeth, ond un o brif bwrpasau'r Bil ydy canolbwyntio ar ysgolion y wladwriaeth, a dyna beth mae'r rhannau perthnasol yn gwneud. Dydyn nhw ddim yn delio'n uniongyrchol ag ysgolion annibynnol.

Just on that point, to pursue that logic—and thank you for that response—isn't it possibly true to say that, at the highest level, one of the objectives of the Bill is to enable every pupil, every child in Wales, to leave the education system with the ability to speak both languages, that there is at least a minimum level of Welsh language skills held by everyone, and that that is a kind of right that every child in Wales could expect? Why deprive around 10,000 or so children at any one time in private schools of that right? And doesn't the Welsh Government regulate some aspects of education in private schools?

Well, it's true to say that the state does regulate those things, but, as you'll know, compared to the regulation of state schools, there's no comparison, to be honest. If you look at the curriculum, for example, there is much legislation with regard to what's happening in state schools, but there's nothing for independent schools. It's a fair question, but it's a policy question in its essence, in terms of—

Because it's a policy question, perhaps we should allow the politician to respond. Therefore, what is the policy decision that has driven this exception in terms of private schools?

Well, I think that the policy reason behind it was to focus on the schools where the Government impact will be greatest. And, of course, the people who attend those schools in Wales live in Wales. Many children who attend private schools don't live in Wales at all. So, we've focused on those schools where we can have the greatest impact to help us, as Adam Price said, to achieve that objective of a million Welsh speakers and where the young people who leave the education system can contribute to that number of speakers because they are going to be more confident using the Welsh language.

If the policy were to change in terms of private schools, would the Bill give the ability, through regulations, to extend the scope of the Bill—or scope of the Act, that is—to those schools?

Not at present, no.

Okay. In terms of this objective of ensuring the linguistic outcome that everyone leaves the education system able to speak Welsh confidently, there was a reference made to that in the White Paper, wasn't there, and there was a definition of what constitutes a Welsh speaker—level B2 under the CEFR, or the common European framework of reference. That was noted in the White Paper, where it suggests that that is achieved by 2050. In the Bill, and do correct me if I'm wrong, I believe that it states at present that, rather than a specific year, it will be by a date set by Welsh Government Ministers through regulation—that is, it will be decided and set by Ministers. Why the change between the White Paper that had that clear target and what is in the Bill, if I'm right in saying so?

Well, Chair, there are a number of things in the Bill, and they depend on the timescale, and we've drawn in more flexibility in order to be able to say when things will happen because they will depend on other things in the Bill. In the children and education committee, they asked for a timetable. Everything is already in the EM, and they've been drawn out of the EM, and we've drawn out a kind of simplified timetable to help people understand what will happen and when, and to help people to see the relationship between what we're going to be doing at the beginning of the journey—because the Bill is quite a long-term one, and it will take a decade to do everything that's included within the Bill—. I'm happy to share the letter and the timetable with the committee in order to help respond to the question that Adam has asked.

Just so that I can understand—and I'm referring to section 11 and the Welsh language learning goals—the suggestion is that those can be set, or that the timescale and timetable can be set through regulations. After setting the regulations and setting a target, would a new Government be able to delete those targets through further regulations because the target isn't on the face of the Bill?

No. The way it works at present is that the primarily English language, partly Welsh schools are teaching at a foundational level, so we need to move every school over the next five to 10 years, depending on the availability of the workforce, to the top of A2, and then we'll be able to make regulations to move the mainly English language, partly Welsh schools so that it's set out that their learning goal is B1 and then B2, as independent learners. So, that's why it's been set out in this way, because, at present, the ability to reach that goal isn't possible for those schools, but, in a decade, we'll be able to set regulations to move them along the language continuum. Currently, the way the Bill has been drafted means that there is an equivalent Welsh language goal for each language category. So, over time, there'll be an increase in those pupils' ability in each language category.

But was there a suggestion in the White Paper that there would be a clear goal in terms of the target on the face of the Bill, namely where we would reach by 2050, for example, and has that now been left to regulations? I understand the need to change as we move towards that target, but wasn't there an intention to place the target in terms of the learning goals by 2050 on the face of the Bill?

Mae Rhan 1 yn gosod y filiwn o siaradwyr ar wyneb y Bil fel targed, ac mae hyn yn golygu y buasai'n rhaid i bawb sy’n gadael y system addysg fod yn siaradwyr Cymraeg, ac, felly, mi fuasai hynny’n gorfod bod yn 'siaradwyr annibynnol'. Felly, mae yna linc rhwng y targed o filiwn a symud y system ar hyd y continwwm iaith.

In terms of the target of a million Welsh speakers, how do you define what constitutes a Welsh speaker, and how are you going to measure that?

That isn't defined on the face of the Bill because we will be sticking with the principle of self-identification.

So, it's a fundamental principle, which is now reflected in this Bill, that if Welsh belongs to everybody, then it is for individuals to say whether or not they believe themselves to be speakers of the language, rather than for the Government to instruct them as to whether they are or not, and that does lead you into some difficulties of how do you define who is a Welsh speaker or not.

Well, take me as an example: I speak Welsh every day. I engage in Cwis Bob Dydd every day. But would you describe me as a Welsh speaker? I have a huge lack of confidence in speaking Welsh in formal settings like this. I'm happy to speak it in chapel, happy to speak it in my community. And I'm sure there are a lot of other people like me. I mean, which side do I come down on: as a Welsh speaker or a non-Welsh speaker?

Well, I think you've absolutely illustrated, Chair, the difficulties we would be in if there was a Government definition, that you then had to use what we believed to be the case, rather than, as an individual, being able to describe yourself in different ways, depending upon the context that you are in. Where this Bill will undoubtedly help will be that, through the use of the European common framework, you will be able to assess your own ability according to the levels that the common framework sets out. And I think that will help people enormously in that very fraught question for lots of people: do you say you are a Welsh speaker or not? Because, in some contexts, you would regard yourself in that way and, in other contexts, you would not. And that basic principle is preserved in this Bill.

Even in the context of self-identification, of course, you have the data from the census every 10 years, and then you have the population surveys that happen between censuses, which give entirely different pictures, in a way. Which one of those do you intend to use to measure progress against the target that is on the face of the Bill?

Well, the Bill gives powers to Ministers to use new forms of data, new possibilities that are coming to us over the time to come. We've been dependent on the census, but we know that the future of the census isn't entirely clear. In the last Government, there were many things that were said about reinventing the census altogether. So, we've put powers in the Bill to use the census, as we have done, when that is available, but also to use different sources of data in order to help us in this area. As the committee knows, there is a big difference between the census on the one hand and the other figures that are published every year. So, the Bill helps us because it will help us do more in the future to use the data where new possibilities arise.

To remain with definitions and terms for a little bit longer, the Bill uses the term 'Welsh language education' rather than, perhaps, the more conventional term, 'Welsh-medium education'. Could you explain why and what the difference is—what your rationale is for selecting that definition?

Thank you, Adam, for that question, because that is an important point in the Bill. The Bill supports Welsh-medium education and we want to see more children in Wales being given a Welsh-medium education, and the Bill is supportive of that objective. But we also know that, at present, the majority of children in Wales receive, more or less, an entirely English-medium education, and the Bill also focuses on them.

So, alongside the support that the Bill gives to Welsh-medium education, we use this broader term of 'Welsh language education', because we will not succeed in getting to that 1 million speakers unless we can turn out, from primarily English-medium schools, children who are better able to use the Welsh language than they are now, 30 years after it became a compulsory subject in mostly English schools. So, we use the term 'Welsh language education' because the Bill has a real emphasis on making a better job of turning out young people who are confident and capable users of the language whose primary medium of instruction is English. So, the term is there because it is broader than Welsh-medium education, although the Bill is absolutely supportive of Welsh-medium education and the wish to see that an expanded part of our future.

A gawn ni droi nawr, te, at bwnc roeddech chi eisoes wedi ei gyfro yn y dystiolaeth i'r Pwyllgor Plant, Pobl Ifanc ac Addysg, sef esemptiadau—mae'n dweud fan hyn mai dyna'r gair cywir yn y cyd-destun yma—ar gyfer ysgolion sydd yn gofyn am ragor o amser, felly, i gyrraedd yr isafswm o 10 y cant, ie, o addysg Gymraeg ar y dechrau? Mae gyda chi'r gallu, dros amser, i gynyddu'r isafswm. Yn syml iawn, beth sy'n digwydd os ŷch chi'n defnyddio'r pŵer yma? Ydy'r cloc, fel petai, yn dechrau eto? Oes modd i ysgol sydd wedi defnyddio ei hesemptiadau—? Dwi'n credu bod fy nodiadau i yn dweud eich bod chi wedi cadarnhau mai dim ond dwywaith y bydd hynny'n bosib. Ydy'r ysgol, felly, yn gallu defnyddio dau esemptiad arall oherwydd bod yr isafswm wedi cynyddu?

Na. Dydy'r Bil ddim yn rhoi cyfle i'r ysgolion ailddefnyddio esemptiadau. So, rŷn ni wedi rhoi esemptiadau i mewn i helpu ysgolion i ddod at y 10 y cant—lefel 10 y cant—ac mae degawd gan yr ysgolion i gyrraedd y pwynt hwnnw. Pan fyddan nhw ar y lefel yna, unrhyw beth bydd Llywodraethau yn y dyfodol yn ei wneud i godi'r lefel yna, bydd hwnna'n dod mas o'r gwaith rŷn ni'n ei wneud gyda'r ysgolion, so mae'r llawr yna gyda nhw yn barod. Ar hyn o bryd, dydyn ni ddim yn meddwl bydd e'n rhesymol i roi mwy o gyfleon ar ôl hynny i gael esemptiadau eraill. So, mae esemptiadau i helpu pobl i ddod at y llawr. Ar ôl hynny, y bwriad yw—yr uchelgais yw—i godi'r llawr, ond dwi ddim yn gweld achos cryf dros roi mwy o gyfloen ar ôl hynny i delay'r uchelgais sydd gyda ni i godi'r lefel.

Iawn, ocê. Mae hynny'n glir iawn. Mae adran 20(2) o’r Bil yn rhoi pŵer i Weinidogion Cymru i wneud rheoliadau mewn perthynas â chynlluniau addysg Gymraeg ysgolion arbennig cymunedol er mwyn nodi nifer o faterion, fel hyd y cynllun, amseriad ac yn y blaen. Mae'r materion hynny wedi’u nodi ar wyneb y Bil ar gyfer ysgolion eraill, felly pam nad yw hynny'n bosib ar gyfer yr ysgolion arbennig cymunedol yma?

Wel, mae'r Bil yn ei wneud e'n orfodol i ysgolion fel yna greu cynllun a chael y cynllun fel rhan o'r system newydd ni'n ei chreu. Ond dydy'r Bil ddim yn rhoi ysgolion yn orfodol i mewn i unrhyw gategori ac mae hwnna jest yn adlewyrchu'r ffaith bydd disgyblion â lot o anghenion different—

Intensive and different.

—ie, gwahanol. So, bydd hawl gyda'r ysgolion i ddweud, 'Ni yn y categori hwn', ond dydyn ni ddim yn ei wneud e'n orfodol i wneud hynny, i adlewyrchu'r ffaith bydd disgyblion gydag anghenion gwahanol gyda nhw.

Iawn, diolch.

Natasha.

I'm so sorry to interrupt. Cabinet Secretary, there's a question in my mind that's been rattling in my brain. You touched upon ALN—additional learning needs—earlier, and I appreciate that different schools have different students with different needs. I've met with the Royal College of Speech and Language Therapists, and I'm sure many colleagues have as well, and one issue that they have is that there are not enough therapists across the board, as it is, in Wales, and there are even fewer who speak in Welsh. My concern is that, and power to everyone who wants to learn Welsh and I admire the target—. But my question is: in this Bill, what's going to be done or what process are you going to be bringing into place to provide those speech therapists and language therapists with the skills and tools to learn Welsh to be able to teach it to children and young people, and people from all backgrounds and ages, who want to learn Welsh and learn it well?

Thank you to Natasha Asghar for the question, Chair. The biggest challenge at the heart of the Bill is the workforce; it’s to be able to develop a workforce capable of delivering the level of involvement in the Welsh language that the Bill seeks to establish and then to expand. And that is true of classroom teachers, but it is also true, in the case of children with particular needs, of all those support staff that those children will rely on. It is partly for those reasons that, in those community special schools, we haven’t required them to place themselves in a particular language category, because it’s an understanding not only of the challenges of the young people in those schools but the complexity of the care that those children will require and the range of different professional disciplines that they will need to draw on. Now, our ambition is to grow those capacities and to do that with that ancillary team alongside classroom teachers, but that’s why we haven’t made it obligatory. And it’s also why, as I said in an earlier answer, this is a Bill for the long term, because it recognises that those capacities will have to be grown, and you can’t necessarily do that in the short run.

Okay, thank you. Thanks so much.

The Bill requires governing bodies and local authorities to agree between them the Welsh language education delivery plans, and then for the local authority to agree with Welsh Ministers on local Welsh in education strategic plans. What happens if there is an impasse at the one level or the other? Can the Ministers then impose if necessary, if there isn’t agreement on a plan? We're very familiar with the Welsh in education strategic plans, and reaching that point where people are frustrated because there isn’t progress being made. So, how is the new system going to be different, and how, ultimately, can we ensure that there is progress in this regard?

Well, Chair, ultimately, the powers sit with Ministers under the 2013 Act, and Ministers can use those powers if there’s an impasse. As I was saying in response to Natasha's question, that's something that happens at the end of the journey. Local authorities have a lot of experience now through the WESPs et cetera, and the best way to deal with the new system is to work collaboratively. Ultimately, if that doesn't happen and the system has reached a point where they can't move forward without receiving input from others, then Ministers in Government will have powers to step in—

Adam—sorry, I thought you'd finished then—can we move on to Alun? We're into the last 21 minutes. If you've got anything—

Yes, sure.

But, just to be clear, this Bill doesn't provide any new powers for Welsh Ministers to intervene where a local education authority opposes a Welsh language education plan.

Iwan wants to come in.

Just to add to what the Cabinet Secretary was saying, these will be education functions, so the powers in the 2013 Act that are relevant to local authorities and Welsh Ministers—that is, imposing if necessary—. So, this sits within that.

Diolch. Thank you. Alun.

I thought perhaps that Bethan wanted to add something.

Yes, just to add that the targets are statutory targets this time under the legislation. That's the difference between the current system and the system under the Bill, because we are currently operating non-statutory targets in collaboration with local authorities. But the fact that the million is now a statutory target on the face of the Bill, driving the strategic planning, means that the targets that are set through the local plans are statutory targets, so they operate differently to the 2013 Act.

Diolch. And now on to you, Alun.

Thank you very much. I just want to look at the balance of powers that exist and are created in the Bill. I think that there are over 30 new powers being created for Ministers as part of the Bill, and I'm keen to understand whether the Minister is confident that that balance in terms of what's on the face of the Bill and then what comes about in subordinate legislation is a good balance.

I believe it is, Chair. There are subordinate legislation powers in the Bill, but the majority of them are for use through the affirmative procedure. There is more on the face of the Bill than the White Paper suggested. So, we have moved more things into the primary legislation than was originally planned, and that was in response to some of the points raised in the White Paper consultation. I think that those powers that are subject to the negative procedure—I think there are eight of them in the Bill all together—genuinely do conform to the guidance that the Welsh Government has published—that's to say that they are technical in nature, and administrative in nature—and where there are powers in the Bill to proceed via regulation, any of those that have a substantive impact will be subject to further scrutiny by the Senedd through its own subordinate legislation procedures.

And that's the question I have. If we look at section 23(9), that creates a power, if I understand it correctly, to make amendments through regulations, not by legislating. So, you're changing legislation created by the Senedd through an order, through the word of a Minister, and therefore that means that the Senedd is not undertaking scrutiny. I understand the procedures that you use, but it means that the Senedd has agreed on legislation and that a Minister can then change the legislation without the kind of scrutiny that we would want to see of the legislation itself.

Well, Ministers can't change the law without the agreement of the Senedd, and that's why—

But without the scrutiny, that's what we're talking about here.

Well, I didn't come here this afternoon to be controversial, Chair—that was never part of my ambition—but I do remember a previous conversation in front of this committee, and I'll make the point again. The procedures that the Senedd has to have overnight of and scrutiny of subordinate legislation, I think, are very significant. Whether the Senedd uses them to the extent that it should is a matter for the Senedd, of course, not for Ministers. You will have sat, and I have sat, many times in the Senedd when subordinate legislation is brought forward, where it is using the affirmative procedure, or even sometimes the superaffirmative procedure, often at the urging of committees, and the debate goes like this: the Minister introduces the regulations; the Llywydd says, 'I have no further speakers, does the Minister wish to respond?', and it's all over. So, if I was to identify a weakness in the system, it would be less in the way in which legislation creates subordinate ways of doing things than that the Senedd itself doesn't always make full use of the powers of scrutiny that it has in the making of that legislation.

Now, I believe that this Bill gets the balance right. When there are merely administrative changes, it's a negative procedure; where there are more significant uses of subordinate legislation, this Bill provides the Senedd with, I think, a suitable opportunity to make sure that things are scrutinised.

You make a fair point and you make it very powerfully, and I agree with it, as it happens. But when it comes to this committee and other committees scrutinising the Bill as it currently stands, when so many regulations come after that, and powers for Ministers to bring in new regulations, it's difficult then to scrutinise the Bill in a committee, and it's the children and young people committee that's doing that. For example, it's mentioned, I think, in section 10, that Welsh Ministers may make regulations specifying the amount of Welsh language education provided in each language category. Now, that's quite important. We all know that it can be quite a controversial thing too, in some settings. This is the kind of thing where perhaps there's a good question, and perhaps we need to put more thought into whether regulations are the best way of doing it. I can see the argument for that, but for us as Members who are trying to scrutinise the Bill, it makes our job very difficult, and when it comes to specific regulations coming back to the Senedd, of course, we do it in quite a piecemeal way, don't we? We're not looking at the whole picture, and I think that's a problem for us also.

Well, Chair, I agree that Alun Davies has made fair points there. Of course, in the context of these specific powers, we have placed 10 per cent on the face of the Bill, so that's where we are starting from. In the future, if that is amended, I don't think that the best way to go about it would be to go back to a new Bill to amend that figure. So, that will be done through regulations and so on, and that is just a practical thing. I agree that it creates a sort of challenge at present, because that will be happening in the future. But that is the way to keep the Bill alive, and the Bill is going to have an impact on the field of education and opportunities for children over a decade and beyond. That's the opportunity for us to put things in place to help us to do this in the longer term, and that's why it's important to retain an element of flexibility through subordinate legislation.

I'm satisfied with that. The Minister, in responding to this question, of course, has challenged the committee, and there's a Bill that's coming in front of the Senedd tomorrow that deals with how we deal with subordinate legislation, and I do think that perhaps the committee should think about the words of the Minister when we consider that later in the coming months.

I'm content. I have no more questions.

Okay, fine. Did we complete everything you wanted to complete, Adam? Because we jumped on when you were in full flow.

I only had one question remaining. It's a very specific question. The Chair of the children's committee has written to you, I believe, to highlight a discrepancy between the Welsh and English texts of the Bill. Can you confirm that a thorough review will be carried out to ensure consistency between the different versions of the legislation?

I can confirm that, Chair. It was something that struck me on receipt of the letter: of course, this Bill was drafted in Welsh, and it was translated to English, and that doesn't always happen. Usually, people raise issues where the Welsh doesn't do quite the same thing as the English. This time, the problem was with the English version rather than the Welsh, and that was quite interesting, I thought. But I can say that, of course, we go through the English and Welsh texts each time to make sure that they're in the best place that they can be and that one reflects the other.

Okay, thank you. I've finished.

Finally, it comes to me. The statement of policy intent refers on numerous occasions to there being correlation between various regulation-making powers and duties in the Bill. However, the nature of this correlation is not stated. Can you provide further information about what the correlation between the powers and duties actually is?

Chair, the term 'correlation' is used, I think, three times in the Bill, and it is there simply to make sure that different strands across the Bill are drawn together when they have a cumulative impact on the policy intention that the Government is pursuing, because this is a Bill with five different Parts. They are interrelated in a number of different ways, and for the sake of trying to make sure that the policy intent is clearly conveyed to those who are interested in it, we used that term in that sense. I'm sure we can offer some examples of how that is to be used in a practical way.

Yes, it's about the interrelationship and the sequencing, as the Minister said, between the different Parts. So, Part 2, which is the code to describe the common European framework, then needs to be in place for other bits of the Bill to work. So, it's about the interrelationship and the sequencing.

Okay, if there are no more questions, can I thank you very much, Minister, for coming along, and also thank you for bringing your officials along as well? When you leave, we'll have a short break until half past. Thank you.

Thank you very much.

Item 4, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. Item 4.1, the Local Government Finance (Consequential and Miscellaneous Amendments and Revocations) (Secondary Legislation) (Wales) Regulations 2024. Paper 4 is a draft report. These regulations make amendments to secondary legislation in consequence to amendments made by the Local Government Finance (Wales) Act 2024 to the Local Government Finance Act 1988 and the Local Government Finance Act 1992. They also make other amendments that are not consequential to the 2024 Act, and revoke statutory instruments or omit provisions that no longer have effect. Senedd lawyers have identified three technical reporting points, and a Welsh Government response has been requested. Over to Kate.

Thank you. The first technical reporting point raises a question of vires; that's whether the regulations are within scope of the Welsh Ministers' powers. The issue here is that one of the enabling powers is conferred on the Secretary of State. There's a footnote in the regulations that states that this power was transferred to the original National Assembly for Wales via the transfer of functions Order in 1999, and was then transferred to the Welsh Ministers, in accordance with the Government of Wales Act 2006. However, the 1999 transfer of functions Order does not appear to transfer this particular power, and so, to the extent that the regulations are made using that power, there appears to be doubt as to whether they're intra vires.

The second technical point identifies potentially defective drafting, where sub-divisions have been incorrectly described.

And then, the final technical point is seeking a further explanation from the Welsh Government in relation to regulation 23. This states that amendments made by England-only Orders to the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 apply in relation to hereditaments in Wales. This drafting approach means that the text of the 1989 regulations is not actually amended, but the reader is required to read across the England-only amendments. It's not clear why the Welsh Ministers have taken this approach rather than making their own textual amendments to the 1989 regulations, which would make the law clearer and more accessible. We're waiting for the Welsh Government's response.

Members, do you have anything to add? Are we happy to agree these reporting points? Yes.

Item 4.2. These regulations make largely technical corrections to the Education (Co-ordination of School Admission Arrangements and Miscellaneous Amendments) (Wales) Regulations 2024, which the committee considered at its meeting on 17 June. The corrections seek to address some of the points that were raised by this committee in its report on the regulations. Senedd lawyers have identified one technical point, and a Welsh Government response has been requested. First, Kate, would you like to run us through the reporting point?

The technical reporting point is asking Welsh Government whether these regulations are in fact being made under section 89C(1) of the 1998 Act rather section 89C(2), which is what's been cited in the preamble. We're waiting for the Welsh Government to respond to that point. In addition, while not specifically noted in the draft report, Members may wish to note that there is a very clear explanation in section 2 of the explanatory memorandum as to which reporting points in the committee's previous reports are being addressed in these regulations. That level of detail is obviously welcome.

Thank you. Members, do you have anything to add? No. Are we happy to agree the reporting point? Yes.

Item 5, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3—previously considered. SL(6)521, the Applications for Scheduled Monument Consent (Wales) Regulations 2024. We have a Welsh Government response. The committee considered this instrument at its meeting on 30 September, and laid its report the same day. Members are invited to note the Welsh Government's response to the report, which has since been received. Kate, do you have anything to add?

Yes. The first reporting point identified that the location of an amenmdent made by these regulations was unclear. The Welsh Government has disagreed with this reporting point, and they note that the Lexis legal database has correctly identified the location of the amendment. Members may just wish to note that Lexis is a legal database, compiled by experts who may well be able to work out the location of an amendment from context, but that doesn't change the point that the current drafting would be unclear to a lay reader.

Okay. Are we happy to note the Government's response?

That's not good. No, I'm sorry, I'm not buying that one, purely because we always talk about how we want to have everything more transparent, more readable, more accessible. We're isolating so many people by having this—. Sorry, is it Lexis you called it? Yes. It's ridiculous. No, sorry. It's a 'no' from me on that one.

What do you want to do, then?

Tell them they have to make it reader friendly, normal person friendly, layman on the street friendly, because, ultimately, if we are a Parliament for the people, the people, the public should be able to have access to it.

Are we happy to say that? One nod; Adam's looking down—Adam's nodding. Yes, we're happy to say that, then, Natasha.

Item 5.2, the Charges for Residues Surveillance (Amendment) (Wales) Regulations 2024. We have paper 8 and paper 9—the report and the Welsh Government response. The committee considered this instrument at its meeting on 7 October and laid its report the same day. Members are invited to note the Welsh Government response to the report, which has since been received. Kate, do you have anything to raise?

No further comments on this one.

Thank you.

Affirmative resolution instruments: item 5.3, the Historic Environment (Wales) Act 2023 (Consequential Provision) (Primary Legislation) Regulations 2024. The committee considered this instrument at its meeting on 14 October and laid its report the same day. Members are invited to note the Welsh Government response to the report, which has since been received. Kate, do you have anything to raise?

No comments on this one.

Members? No. Okay.

Item 6, notifications and correspondence under the inter-institutional relations agreement. Under correspondence from the Welsh Government on inter-ministerial group meetings, we have a letter from the Cabinet Secretary for Education on the Education Ministers Council, 15 October 2024, and a letter from the Cabinet Secretary for Finance and Welsh Language on the Finance: Interministerial Standing Committee, 16 October.

The Cabinet Secretary for Education informs us that a meeting of the Education Ministers Council, which is being hosted by Northern Ireland, will take place on 20 November.

The Cabinet Secretary for Finance and Welsh Language confirms that he attended a meeting of the Finance: Interministerial Standing Committee on 3 October, and provides a link to the communiqué that has since been published. The Cabinet Secretary notes that he will be hosting the next meeting in Wales. Are Members content to note that correspondence?

Correspondence with the Secretary of State for Wales, subordinate legislation laid only in English. A letter from the Secretary of State for Wales, 15 October 2024. A letter to the Secretary of State for Wales, 20 September 2024. Members are invited to note the correspondence with the Secretary of State for Wales in relation to subordinate legislation laid in English only in the Senedd. The Secretary of State states that she has asked her officials to look into this matter further and she would welcome any additional views from the committee in relation to this issue. Members may wish to defer discussion on this item to the private session. Yes.

Item 7.2, correspondence with the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs, the Trade in Animals and Related Products (Amendment and Legislative Functions) and Animal Health (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2022. A letter from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs, 18 October 2024. A letter to the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs, 24 September 2024. The Deputy First Minister responds to our letter seeking further information about the Welsh Government’s efforts to correct an error in these regulations and change the scrutiny procedures applicable to the delegated powers in the regulations. The Deputy First Minister confirms that his officials are working to introduce an amendment statutory instrument to correct the errors identified in the regulations within the next six months, and he will inform the committee should the timings for this change. The Deputy First Minister also confirms that, although he is keen for the change to the scrutiny procedure applicable to the delegated powers in the regulations to be delivered, there's currently no legislative vehicle available to enable this change to be made. He feels strongly that

'It is not for this Cabinet to determine the will of future Cabinets by fixing a date by which opportunities to address this reporting point will stop being sought.'

He further notes that his officials will continue to routinely look for opportunities to enact this change, but he will not be providing an update to the Senedd until such time as there's something to report. We can defer consideration of this item to the private session, if Members are content.

Item 8. In accordance with Standing Order 17.42, I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree?