Legislation, Justice and Constitution Committee

They're the two officials who accompanied me last time, but they may as well introduce themselves.

Good afternoon. I'm Dylan Hughes. I'm the first legislative counsel.

Prynhawn da. Claire Fife, head of the legislative codes office and Bill manager for this Bill.

That was just for the benefit of people who didn't see the last one, or the thousands of people following us on Senedd.tv.

Can I start with the first question? Could you provide an update on whether the Welsh Government has obtained the relevant consent necessary from the UK Government to ensure that the Bill is within the Senedd's legislative competancy?

We've asked for a response, Chair, by the end of Stage 1. We haven't had the response yet, but we're not anticipating any issues. Various officials have already met with The National Archives, who advised everything was in hand, and officials in the Wales Office and the Department for Culture, Media and Sport were preparing advice for Ministers ahead of the Christmas recess. We're not aware that any issues were identified or anticipated. So, we're expecting to get it before the end of Stage 1.

Thank you. Since our previous evidence session on the Bill, have you consulted with the Business Committee in relation to any potential changes to Standing Orders and in relation to the date the Bill will come into force?

We wrote to the Llywydd after the last session, on 5 December. I look forward to hearing from her in due course. We're available to work with the Senedd Commission on possible changes to Standing Orders so the intended coming-into-force date of 1 January 2026 can be achieved.

Thank you very much. Are there any implications to the fact that the King's Printer for Wales will not be constituted as a separate office, as is the case for the King's Printer for Scotland? Why was this choice made?

I don't think there are, but I'm going to defer to Dylan, who's been involved all the way through in the conversations around this.

Okay. Thank you. This is something that we've been considering for quite a long time because we've always been conscious that Wales was an outlier, so we haven't had a provision in relation to the printer. We're satisfied that what we've proposed will work well purely because the legal arrangements for Scotland, Northern Ireland, the UK and Wales all differ slightly anyway, and the practical reality is that it's the same person and the same people who undertake most of the tasks, and I say ‘most’ because some of it is done by us. But, from our perspective, this was really about clarity over who was meant to do what, and we felt that this was an appropriate way of doing it.

Okay. Thank you very much. Adam.

Thank you very much, Chair, and good afternoon, Counsel General and everyone. Why does the Bill not include provision for what are often described as enhanced or superaffirmative procedures, such as duties to consult on draft SIs or laying instruments before the Senedd for a longer period before motions to approve them are scheduled for debate?

Diolch, Adam. I think the use of the term ‘superaffirmative procedure’ has always been a little bit problematic. I think you and I and members of the committee have had a number of occasions on which we've debated exactly what it is that we've meant in the past by ‘the superaffirmative procedure’. It tends to differ. It involves putting additional requirements on, usually, the Welsh Ministers, but on the entity involved in the procedure that will make the instrument to consult on draft instruments for various periods or lay reports at specific times before the Senedd is asked to approve a final instrument. Just to say, there's nothing in this Bill that prevents the Senedd, through an Act, from placing additional requirements on the entity responsible, which will almost always be the Welsh Ministers. There's nothing to stop such additional requirements being imposed from the perspective of Senedd procedure in any draft that comes forward, but ultimately it comes down to the draft that's being subject to approval. So, this Bill is attempting to bring together and simplify the process so that there are three basic—what’s the plural for 'process'?—processes. I feel like it should have a Latin plural for some reason—'processi'. So, we're not trying to restrict the Senedd from doing that. So if, I don't know, in the forthcoming environmental protection Bill, for example, you wanted to impose more stringent duties on a Minister that was looking to have SI powers under that Bill, there would be nothing to stop you from doing that, to say that it had to be done x weeks in advance, or whatever, but the process would be called the same thing all the way through, and the Bill would have to be referred to for specifics.

So, I think it does simplify it, in the sense that the overarching thing that we referred to is there, but it doesn't take away any powers from anyone to add additional requirements in, because that's what 'superaffirmative' has meant colloquially, isn't it—to add additional things in before an SI can be laid.

Thank you, Counsel General. Of course, the plural term 'prosesau' does actually exist in the Welsh language, and these additional processes exist more than only orally, because they're recognised and they're named, for example, in the handbook of the Welsh Government on secondary legislation, and I also take it that they're represented in the Cabinet handbook. So, if they're recognised formally in those places, why are they not recognised as one additional process that should be recognised in order to simplify and get a better understanding and accessibility around the law? If they're important enough and common enough to be recognised in the handbook, why not in the Act?

I think, Chair, I'm going to ask Claire to just run through how those processes fit together, as she's been dealing with that.

I was one of the people that contributed to the subordinate legislation handbook, so I know the points you're making there. What we've done in the handbook is categorise that range of additional requirements under the so-called superaffirmative, but what we're not saying is that there is a standard superaffirmative procedure, because there's variable, as you say, time frames for consultation or time frames for reports to be laid and draft reports to be laid. So, what we have achieved in the Bill—in a similar way I think, Dylan, to what Scotland has done; Scotland doesn't have their superaffirmative range of procedures captured—what we've done is say that it is the Senedd annulment procedure [correction: Senedd affirmative procedure] and if you want to put in requirements for consultation, those consultation requirements would appear in the draft before, and then ultimately ends up as the Senedd annulment procedure [correction: Senedd affirmative procedure]. So, what we're doing is recognising there isn't one standard procedure that is superaffirmative, but it all ends up with the process of approval at the end.

What we have is shorthand for that core process, but there is always a means of adding to that in every Bill. So, every Bill will refer to that shorthand, but there is freedom, as Claire said, for the Senedd to add to that every time.

Thank you. May I turn to this term of 'Senedd annulment procedure' that you've just referred to? In your view, is the word 'annulment' accessible and well understood?

I think it's the least bad choice of a range that we discussed, and again, Chair, if you don't mind, I'm going to defer to the senior legislative counsel, who's responsible for choosing these kinds of words.

I understand the point—it is a technical term—but, at the end of the day, the process is a technical one too. At the moment, we refer to the negative procedure, affirmative procedure, and things like that. There are different terms that we have been using. What we were trying to do was to get one word for the situation where the Senedd decided not to allow an instrument to be made—that is, to annul what has already been done by the Government or by a Minister, to confirm when an instrument has been made but the Senedd needs to agree that it will proceed, and then the situation where, of course, the Senedd has to agree in the first instance. So, we tried to select three words that convey that process best. The word 'annulment' perhaps sounds rather technical but, in our view, there was no better or simpler word that we could use. If anybody has any ideas, then I'd be more than happy to consider them.

I have nothing more to offer, but I did want to ask, as you went through this—I don't know if such a thing as a legal thesaurus exists—if you did consider any alternative options in terms of a term that would represent the same thing as 'annulment', but using a different term?

Yes, we did discuss different options. There is a terminology committee within the Welsh Government that includes us as legislative counsel and linguistic experts. So, this is something that we do often, and we did consider whether there was a simpler glossary, but, ultimately, this was the decision that we made. But we're always happy—especially with something like this that goes to the heart of what the Senedd does—to listen if there are any other suggestions. That's what we thought was the best word.

Okay. Thank you very much. In her evidence to the committee, Dr Fox from the Hansard Society suggested that your previous comments, Counsel General, I think, that the Bill seeks to rationalise and, essentially, codify—to use another technical term there—procedures that had become overly complex were overstating the aims of the Bill. How do you respond to the assessment that that's an overstatement?

Diolch, Adam. Can I just say I thought it was really lovely to have evidence from people from outside the Senedd taking an interest in constitutional matters? I think some of us are used to considering ourselves as slightly nerdy in taking an interest, so it was lovely to see other people getting into it in some depth as well. We don't get enough of that, in my view, so it was really nice to see that. I do, though, stand by what I said, despite having enjoyed the evidence session.

I think we have, through schedules 1A, B and C, rationalised pre-existing procedures. Some of the procedures are hardly ever used, but they still sit there. Draft negative might not be used very often, for example. But in future, it will become one of the three procedures that Dylan just outlined in answering the last question. I think it is accurate to describe them as codified, because they're all located in the one place in one Act, and previously they were spread about the place. And there won't be a requirement to look through other provisions in order to find them; they will all just be in the one place.

So, it brings them together; it simplifies them to core procedures; it reflects Welsh devolution and the existence of the Senedd and the Welsh Ministers; it uses modern drafting techniques and language, as we've just heard from Dylan, although other suggestions, if you've got them, we're more than happy to consider. And, of course, absolutely, primarily, they're set out in both languages with equivalence, so they absolutely improve accessibility. I understand the point that was being made, I think, but I still stand by what I said: I think it's about bringing them together in a single place; we won't have to go through trying to find out all of the other ways that we could conceivably look at it.

Thank you. That's all from me this afternoon. Thank you very much.

Diolch, Adam. Alun.

Thank you, and thank you very much for your time, Minister. It's probably fair to say that the committee hasn't been overwhelmed with responses to its consultation on this piece of legislation, but we always look for quality rather than quantity, don't we? I was interested in the discussion that Adam Price has just referred to that we had with Dr Fox last week about where the balance lies between what you put in statute, what is in Standing Orders, and how we manage the process. And I don't think there's a right or a wrong position, as it happens; I think we look for that balance and then we will seek to find it. In terms of Dr Fox's point of view—and if you've seen the evidence, you'll be familiar with her view—it seemed that she thought that Standing Orders should be doing the bulk of the work rather than statute. So, do you think that her potentially implied criticism that perhaps statute is going too far and you should be leaving more to Standing Orders is correct, or are you comfortable with where you are? Will you be looking over the Bill as it stands in order to, perhaps, put another check in place on these matters?

I think if you use the analogy of primary legislation and then what secondary legislation does, it works really well, doesn't it? I'm forever saying to various committees that what we want in the primary legislation is the fundamentals of the thing that we're trying to do, and then anything that might change from time to time should be in the secondary, and I think that absolutely goes with this Bill, soon to be Act, I hope, and Standing Orders. You'd expect the kind of fundamentals to be set out in the Act, so the three basic procedures and so on, and then you'd expect the rest of it—things that might change from time to time or as the Senedd changes position or as the world simply turns—to be set out in Standing Orders.

I think, at the moment, it's all over the place. I'm sure you know that there's a 1946 Act and then 1947 regulations that set out the negative procedure but not the draft affirmative or made affirmative procedure, for example. All of those are consolidated and simplified into this Bill. And then, all of the stuff about who lays what instrument where and in what timescale and all the rest of it is set out in Standing Orders, and I think that's probably right. I think, on balance, we have that right. There are arguments to be had, I guess. At the moment, Standing Orders also repeat the whole of the 1946 Act for no apparent reason.

I think one of the things that we need to have a look at—and you and I both serve on the Future Senedd Committee, and I know there are two lots of other people looking at Standing Orders as well—is making sure that you have the references correct. And, frankly, if somebody outside those of us who take a real interest in this place is very interested in how a statutory instrument on something in a subject area might be laid, then it's not too hard for them to figure out what they might expect. That's what we're going for, isn't it?

The point you made about the Future Senedd Committee is actually a very good one. It might be useful for us to give that some thought as we approach the end of Stage 1 and go into Stage 2 on this legislation to ensure that those processes are actually matched up with each other. I think that's very useful.

In terms of the evidence we've taken, the National Archives and King's Printer are very much following the line that the senior counsel has taken this afternoon—very supportive—and the same with Dr Fox and Dr Tucker last week. I was interested that, in terms of the written evidence received—. There were four items of written evidence: one from the National Archives, which was very positive; One Voice Wales was very positive; the Chief Executive and Clerk of the Senedd less so, and that's self-evidently the case. So, my question to you, Counsel General, is this: what's happened with the Open Spaces Society? It seems to me, I have to say, when I was reading through the responses, the Open Spaces Society wasn't a name that I'd expected to see responding to this Bill. So, I was just wondering what had happened with them and the fact that their criticism—

I'm going to attempt to explain that, and I stand to be corrected by the first legislative counsel, who has had more to do with it. This is part of the repeals. This Bill has a number of repeals attached to it, and the repeals are being repealed because the statutory provision that is being repealed has no further use, basically. So, if you take the building regulations one, for example, the sprinkler one that Ann Jones took through, that has been entirely superseded by the new building control regulations, so there's no need for it. It has served its purpose, it has been taken into the mainstream of the law. It's done. The countryside access one is slightly different to that. It's a provision that has never been commenced in Wales, and it would put a date by which you had to claim historic footpath rights into law. That's never been commenced in Wales, and it's never been any part of this Government's—

Oh, so this is the deadline—

The deadline. That's right.

—that existed in England and that is now—

For a long time, it wasn't implemented either in England or Wales. We have absolutely no intention of ever implementing it, but that's clearly a policy decision. It's the policy of this Government that that will never be implemented. In fact, the UK Government then did implement it and extended the provision out a bit, but then the current UK Government now intends to repeal it altogether, because it had been implemented. So, the dilemma for us is we have no intention of ever commencing it, but it's not strictly speaking redundant in the sense that it's not inconceivable that a future Government might want to implement it, though I'd be very keen from a policy point of view that that didn't happen. So, I guess we've set ourselves the test for repeals that the repeal put forward by these proposals should be because there is no point at all to the statutory provision, that it merely misleads or causes confusion, whereas that's not quite the case with this. However, having said all of that, if the committee doesn't object, I'm minded to put it back in again, because, actually we have no intention whatsoever of ever commencing it. But I would want the committee not to object to that, because strictly speaking it's not quite within the parameters that we set for ourselves.

I think it's fair to say that the thing that's causing us to hesitate is not the policy issue, as the Counsel General says, it's purely procedural. And again, as the Counsel General says, if the committee doesn't object to us doing this, there seems to be a consensus that this is a good thing to do. And we are happy to do that, again, as the Counsel General says.

I'm happy to join that consensus on my side of the table. I can't speak for other members of the committee, but certainly I'd have no objections.

If I’m taking this through the Senedd, just to be absolutely clear, I don’t want the Chair of the committee to stand up and say, ‘That doesn’t quite match the criteria you set out for yourself, does it, Counsel General?’

I’m grateful to the Minister for being as open and as generous as that in her evidence, and certainly that’s something I very much welcome myself. I have no further questions on these matters.

Peter. Can you hear me, Peter?

Yes, thank you, Chair. Good afternoon, Counsel General. Just following on from the theme of the Open Spaces Society, I understand that they’d suggested that the repeal of section 28 of the Commons Act 1876 should not be taken forward in the Bill. I wondered why that wasn’t taken on board. And what was the rationale for this decision not being communicated back to the society?

The truth is, Peter, we haven’t had quite enough time to be absolutely certain that the provision is completely overtaken by subsequent legislation. I know you weren’t a member of the committee when I first set this out, but just to say that we are using this as the first of a set of—we hope—ongoing repeals that we will do. We’d very much hope to include it in a future repeal Act, but we haven’t yet had the time to fully make sure that it fits into the category of ‘has absolutely no legislative use whatsoever because it’s superseded by other legislative purposes'. I don’t know the answer to why we didn’t tell them, I’m afraid. Does anybody else know?

We set it out in the consultation summary report in March 2023, which they picked up on themselves, I think.

Thank you for the clarity around that. A couple of other questions from me. Why did the Welsh Government not engage with the Chief Executive and Clerk of the Senedd ahead of the Bill's introduction, given that some of its provisions relate to the clerk’s functions?

I’m sorry to hear that the clerk is disappointed by that. It was certainly not our intention to upset the clerk to Senedd Cymru in any way. Our assessment is that there isn’t any impact on her functions, and so I’m afraid we just didn’t think it was necessary. But I’m very happy to take on board any points of view she has. I certainly don’t want to have her in the ‘disappointed’ category, so I’m very happy to put that right.

Thank you for that. On the same theme, perhaps you can put this right as well: why does the Bill refer to the ‘Clerk of Senedd Cymru’, as opposed to the term used in the Government of Wales Act 2006, ‘Clerk of the Senedd’?

All the way through this Bill, we refer to ‘Senedd Cymru’ and we call it that all the way through the Bill, so we simply called the clerk ‘Clerk of Senedd Cymru’ to follow the pattern in the Bill. But in all honesty, if she feels very strongly that it should be ‘Clerk of the Senedd’, then we’re happy to put an amendment forward at Stage 2. It just follows the pattern of the Bill. And in actual fact, colloquially, we call it ‘Senedd Cymru’ as well, so I’m slightly baffled by that, but if the clerk feels strongly about it, then of course we’ll amend it.

Thank you, Counsel General.

I’m not sure there won’t be other people feeling as strongly the other way if you do amend it.

Two final questions from me. The Bill does not include provision on the timescale for when subordinate legislation to revoke an annulled statutory instrument must be introduced. What impact could this have on the accessibility of the law? Would the Government consider amending the Bill to include this provision?

I think that’s just a thing about practicalities and what the effect of it might be. There isn’t a timescale at the moment, but we always endeavour to do just that. For example, it’s not always possible for us to say when the Privy Council is going to meet, so if we put an arbitrary time limit on it and then the Privy Council didn’t meet in that time period, presumably what would then have to happen is a Welsh Minister would have to come to the Senedd and explain why they hadn’t been able to do it in the time available. I’m not sure that serves any real purpose. If the committee feels strongly about it, we will certainly consider it, but I’m not sure what effect it would have. And obviously, we want to do it as fast as we can, because you’re trying to simplify the statute book and get access to the law. But I’m not sure, given who has to take part in it, that it’s entirely possible to say it would always be within whatever that time period might be.

I don't feel strongly about it, but I thought it would be useful to have the response on the record.

Okay, fine.

And finally from me: what consideration have you given to the impact of any changes made for the UK Parliamentary Counsel to their approach to drafting primary legislation that set out scrutiny procedures for subordinate legislation? For example, the UK Government Tobacco and Vapes Bill refers to the affirmative and negative procedures for powers for the Welsh Ministers to exercise and sets out what these procedures are in a separate section.

Yes, so—. Well, do you want me to—? Shall I have a go at that, and then I'll come to you, Dylan? So, basically, once we've done this, we'd expect them to refer to this Act, as it then would be, and its provisions. Well, obviously, that's not the case now, and, in fact, that's one of the reasons we'd like to do this, because it would simplify the reference process.

Okay. Well, if there are no further questions, can I thank the Minister and her officials for coming along today? I'll officially tell you a transcript of this will be produced and it'll be sent to you to check for accuracy, but I'm sure you knew that before I said it.

Lovely.

Okay, thank you very much.

Diolch yn fawr, and thank you very much.

Shall we have a five-minute break?

Yes.

Thank you, Alun. So, we'll meet back here at five past.