Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee

06/12/2021

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Alun Davies AS
Huw Irranca-Davies AS Cadeirydd y Pwyllgor
Committee Chair
Peter Fox AS
Rhys ab Owen AS

Y rhai eraill a oedd yn bresennol

Others in Attendance

Cath Wyatt Rheolwr Bil, Llywodraeth Cymru
Bill Manager, Welsh Government
Grace Martins Uwch-gyfreithiwr, Llywodraeth Cymru
Senior Lawyer, Welsh Government
Jeremy Miles AS Gweinidog y Gymraeg ac Addysg
Minister for Education and the Welsh Language

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Jennifer Cottle Cynghorydd Cyfreithiol
Legal Adviser
Nia Moss Ymchwilydd
Researcher
P Gareth Williams Clerc
Clerk
Sarah Sargent Ail Glerc
Second Clerk
Stephen Davies Cynghorydd Cyfreithiol
Legal Adviser

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Cyfarfu’r pwyllgor drwy gynhadledd fideo.

Dechreuodd y cyfarfod am 13:30.

The committee met by video-conference.

The meeting began at 13:30.

1. Cyflwyniad, ymddiheuriadau a dirprwyon
1. Introductions, apologies and substitutions

Prynhawn da. Croeso ichi i gyd. Welcome, everybody, to this virtual meeting of the Legislation, Justice and Constitution Committee. This meeting is being broadcast as normal on Senedd.tv, and the Record of Proceedings will be published as usual. And aside from the usual procedural adaptations, all other Standing Order requirements remain in place. Could I just remind Members to make sure that their mobile devices are switched to silent? We do, of course, have full translation facilities today, in Welsh and English, and that's available throughout the meeting. The sound operator is controlling the microphones, so Minister and officials, and ourselves, no need to mute and unmute yourselves—it will be done for you. And we're going to—noting that we have a full attendance this afternoon, from Peter Fox, Rhys ab Owen, Alun Davies and myself, no apologies—. 

2. Bil Addysg Drydyddol ac Ymchwil (Cymru): Sesiwn dystiolaeth
2. Tertiary Education and Research (Wales) Bill: Evidence session

We're going to move straight into the substantive item, which is item 2, the Tertiary Education and Research (Wales) Bill—our evidence session with the Minister for Education and Welsh Language. Minister, I'm delighted to have you here this afternoon, and your officials as well. I understand we have Cath Wyatt, who is the Bill manager, and Grace Martins, the lawyer. So, you're all very welcome indeed. If you don't mind, because we've only got an hour, we're going to go straight into questions. We've got a lot to get through there. 

Can I begin with the standard opening question when a Bill of this type comes forward: are you content, Minister, that all the provisions of the Bill fall within the legislative competence of the Senedd?

Chair, thank you for the opportunity to give evidence today on the Bill. Yes, I am content that the Bill is within the competence of the Senedd.

Thank you very much for that. Let me turn to an interesting question here, which flows from evidence from the Counsel General previously. The Counsel General very clearly said to this committee previously that the Welsh Government does not have regard to the United Kingdom Internal Market Act 2020 in terms of Welsh legislation. We just want to test this to see whether this is a clear statement of legislation—legislative policy—or rhetorical. Could you confirm that, in line with what the Counsel General has told us, you have not given the non-discrimination and the mutual recognition principles in the UK internal market Act consideration when drafting this Bill?

Chair, I think the position is as the Counsel General set out, that we work on the basis that the devolved powers that we have, as determined by the various Government of Wales Acts, is the underpinning for our development of legislation. So, it is our view as a Government that the internal market Act cannot lawfully limit those devolved responsibilities, and so, in that sense, that is the basis on which we've constructed this legislation as well. But I can give the committee the assurance that I am content that nothing needs to be changed in this Bill as a result of the internal market Act.

Okay. Can I just clarify that? Have you disregarded the UK internal market Act in terms of the consideration of this Bill in front of us today?

I wouldn't say 'disregarded', Chair. We've had regard to the provisions of the Act in looking at whether any of the provisions of the Bill need to be changed, but the Government's position is that the devolution boundaries are set by the Government of Wales Acts, and so the internal market Act can't lawfully limit those. But I'm seeking to go further and tell you that we've looked at the Bill from the perspective of the Act as well, if you like, and there are no changes needed to it.

That's great. Do you anticipate that there may need to be changes if the current judicial review case regarding the UK internal market Act does not fall in favour of Welsh Government in January?

That is not my understanding, Chair. I don't think that changes would be needed.

Do we need any clarification on that from your officials, or is that a clear statement that there will not need to be changes if the decision goes against Welsh Government in January?

Well, since you put it like that, Chair, it would be probably prudent of me to ask Grace Martins to give her reflections as well.

Thank you. We have considered whether the internal market Act would cause any problems for our Bill, and we have come to the judgment that it doesn't. We do not believe—. Oh, I'm going to stray into legal advice, aren't I, so I will just stop here and say that we are content that we won't need to make any changes at the moment.

13:35

Thank you very much. Thank you, Grace. Minister, I didn't intend to bypass you then, but sometimes—I know as a former Minister myself—it's helpful to defer to an official to get some help as well. So, no disrespect meant with that.

No. As a former Counsel General, I certainly value the advice of lawyers, Chair. So, I share—. [Laugher.]

Okay, thank you. Let's continue, then. The Counsel General noted, when announcing the Welsh Government's legislative programme, that there is UK legislation, such as the Skills and Post-16 Education Bill, that clearly overlaps with Welsh Government's proposals. So, in respect of this Bill, or your regulation-making powers underneath it, do you intend to use—do you foresee using—this to address any future concerns that may arise in relation to UK Bills that overlap with Welsh Government plans in this area?

That is not the intention of the regulation-making powers, Chair. In relation to the UK legislation, the Bill, we've been in—I think it's probably fair to say—pretty constant dialogue with the UK Government in relation to that legislation for reasons that are obvious and that you refer to in your question, really. And there are some areas, including, I think, at an earlier stage, when we anticipated that there might be more progress in the UK legislation around modular funding, for example—. That would be an area where I personally and the Government would have an interest in understanding what was proposed and evaluating whether that was something we might want to be able to do in Wales as well. It's evident though—I think the UK Government has said themselves—that the legislation that is going through Parliament now will not be sufficient, if you like, to deal with that and there will need to be primary legislation in the future for that. In that particular policy area, I think it's probably fair to say that we in Wales are slightly further ahead on the journey anyway in terms of providing for credit-based funding and so on. But we don't anticipate that development having an impact on this Bill, and that was one of the areas I was most interested in myself.

Okay, thank you very much for that. Now then, there's another standard question that we normally ask when we're faced with Bills like this, and it's: Minister, have you achieved the right balance between detail on the face of the Bill versus giving regulation-making powers to Welsh Ministers? I'm guessing that your answer to that is going to be 'yes', you've achieved the right balance. So, let me just extend that a little bit: are there any areas you want to draw our attention to where there was a fine balance of judgment as to what should go on the face of the Bill or what you might actually bring forward with regulation-making powers for Ministers?

Well, in a sense, Chair, all of these are fine judgments on one level, aren't they, because you want to make sure that the balance is properly struck, really, and you will have seen from the evidence, perhaps, that I've given to other committees—. And in fact the way the question was put to me in other committees was that some stakeholders feel that the Bill is perhaps a little on the prescriptive side and others feel that it's perhaps a little on the other side of the ledger, if I can put it like that. And I suppose that's unsurprising, really. I think what we try and do is make sure that the Bill provides, where appropriate, a level of flexibility, but that that's tethered very clearly in the architecture of the Bill.

One of the fundamental rationales for the Bill was to support our post-16 sector to be futureproofed, if you like, and so that brings with it an element of allowing for flexible development into the future. So, I hope that the statement of policy intent gives a very clear picture of our direction of travel. And what I've been minded, very strongly throughout, if I can say it like this, is to make sure that where there are regulations—and there are obviously a number of areas where we have regulation-making powers—that the Senedd procedure is appropriate for those. So, some of those have been fine judgments. Some of them have retained more or less the current arrangements, if you like, where there are equivalents; some have, I think become more—if I can put it in these terms—protective, really. So, I think there is a mix throughout the Bill, really.

My final question related to that—. And you've held different positions within Welsh Government and within the Cabinet. This justification that runs through the statement of policy of, in quotes, ‘appropriate flexibility’—you’re comfortable with that as a sufficient justification for regulation-making powers?

13:40

It isn’t the universal justification—there is a range of justifications for the powers on their own terms, if you like. But I think since we are—. The very premise of the Bill involves the Government handing over considerable new powers to an arm’s-length body and, obviously, building on the existing—and evolving, if you like, the existing—statutory underpinning of it. And that creates a new dynamic over time, doesn’t it? We then have a commission that will take us forward into the future, and I think that requires an element of flexibility, not least because, in the many years ahead, we will be working on evolving this together with stakeholders, and so there needs to be an opportunity to do that without requiring primary legislation in order to facilitate that. So, that’s why I think the balance is appropriately struck.

But I understand, obviously, the committee’s constitutional interest in this area, obviously, and so, if you take a different view, I’d be very interested to hear that, and to listen to your reflections and recommendations, obviously.

That’s great. Thank you, Minister. And we’ll pass now on to Rhys.

Prynhawn da, Weinidog. Mae’r cwestiynau sydd gyda fi ar gyfer Rhan 1 o’r Bil. Mae'r Rhan gyntaf yma’n gosod dyletswyddau strategol eang iawn i’r comisiwn newydd yma. Efallai y byddai rhai yn dweud rhy eang neu rhy niwlog. Ydych chi’n fodlon bod y dyletswyddau yn cynnwys digon o fanylion i greu sicrwydd cyfreithiol i ddechrau ac, yn ail, i fod yn ymarferol i’r comisiwn?

Good afternoon, Minister. I have questions with regard to Part 1 of the Bill. This first Part sets out strategic duties that are very wide-ranging for this new commission. Perhaps some would say that they're too wide-ranging or too nebulous. Are you satisfied that these duties include sufficient detail to provide certainty in law in the first instance and, secondly, to be workable for the commission?

Wel, y cyd-destun dros y penderfyniad hwn, os caf i jest ei ddodi fe, am eiliad, yn y cyd-destun ehangach—mae’n, gobeithio, ddefnyddiol. Pan ddes i’n Weinidog, roedd e’n gyfle i edrych eto ar y Bil ac roeddwn i’n teimlo ar y pryd, gan fod y cyd-destun efallai wedi newid hyd yn oed o’r cyfnod Hazelkorn—mae gyda ni nawr fwy efallai o heriau, os gallaf i ddodi fe yn y cyd-destun hwnnw, fel COVID, mae gyda ni Brexit, mae gyda ni hefyd sialensau newid hinsawdd a digidol efallai’n fwy ar flaen y llwyfan, os hoffwch chi, nag yng nghyfnod yr adolygiad gwreiddiol—roedd e’n taro fi bod angen gwreiddio gwaith y comisiwn ar wyneb y Ddeddf mewn gweledigaeth ar gyfer y sector yn gyffredinol—hynny yw, bod y weledigaeth honno ar wyneb y Bil. Felly, dyna oedd fy mwriad i. Dyna’r tro cyntaf i ni wneud hynny—y Llywodraeth yma yng Nghymru—ein bod ni’n dodi’r gwerthoedd hynny efallai ar wyneb y Bil.

Rŷch chi’n sôn am gyfrifoldebau a dyletswyddau eang a niwlog—dwi’n credu dyna ddywedoch chi. Dwi ddim yn credu eu bod nhw’n niwlog. Maen nhw’n ddyletswyddau hirdymor. Mae hynny’n bwysig, o ran y weledigaeth sydd gyda ni. Ond ynghlwm â hynny mae’r galw wedyn i sicrhau eu bod nhw’n cael eu diffinio mewn ffordd sydd yn caniatáu iddyn nhw ddod ar waith trwy law y comisiwn. Felly, rwy’n credu ei fod e’n taro’r cyd-destun iawn i gorff hyd braich allu cael yr hyblygrwydd i benderfynu sut i wireddu’r dyletswyddau hynny. Dyw e ddim, wrth gwrs, yn anghyffredin, pan fo’n dod i ddyletswyddau ar gyrff cyhoeddus, i’w creu nhw mewn cyd-destun ehangach, ac wedyn mae cyfle i’r corff hwnnw, sy’n hyd braich, allu diffinio’r rheini o fewn cwmpas eu cyfrifoldebau penodol nhw.

Well, the context for that decision, if I can place it in its wider context for a moment—it's, hopefully, useful. When I became a Minister, it was an opportunity to look again at the Bill and I felt at the time, because the context had changed even from the Hazelkorn period—we have more now perhaps challenges, if I can put it like that, in terms of COVID, Brexit, and we've got climate change challenges and digital challenges that have come to the fore during this current period—it struck me that we needed to root the commission's work on the face of the Bill in a vision for the sector in general, so that that vision was there on the face of the Bill. So, that was my intention. That was the first time for us to do that—for this Government in Wales—that we set out those values on the face of the Bill.

You talk about responsibilities and duties that are nebulous—I think that's what you said. I don't think that they are nebulous. They are long-term duties. And that's important, in terms of the vision that we have. But tied to that is the need for them to be defined in a way that allows them to be implemented by the commission. So, I think it strikes the right balance for an arm's-length body to be able to have the flexibility to decide how to achieve those duties. It isn't unusual, of course, when it comes to placing duties on public bodies, to create them in a wider context, and then there's an opportunity for that body, which is an arm's-length body, to be able to define those within its own remit and within its own duties.

Felly, rŷch chi yn meddwl bod e'n ymarferol. Ydych chi'n meddwl, felly, ei fod e'n creu'r sicrwydd cyfreithiol wedyn? Ydy'r strategaeth yma yn creu'r sicrwydd cyfreithiol wedyn fel bod modd herio penderfyniadau?

So you do think that it's workable and practical. But do you think that it provides that legal certainty? Does this strategy provide that certainty in law so that decisions can be challenged?

Ydyn. Wel, dyna’r bwriad. Mae'r dyletswyddau yma'n cael eu diffinio, wrth gwrs, yn y Bil hefyd. Mater i'r llys fydd hwn, wrth gwrs, ond, yn y syniad oedd gyda fi, doeddwn i ddim yn gweld y byddai hyn yn creu hawliau unigol i unigolion, hynny yw, ond mae’n sicrhau dyletswyddau targed, os hoffwch chi—hynny yw, mae’n llywio gwaith y comisiwn drwyddi draw.  

Well, yes, that's the intention. The duties are defined, of course, in the Bill as well. It will be a matter for the courts, of course, but, from my point of view, I don't see that this would create individual rights for individuals, but it does ensure target responsibilities and duties, if you like, so it drives the work of the commission.

Diolch am hwnna. Rôn i eisiau sôn wedyn am weithdrefnau'r Senedd a'r ffaith bod adran 81 o'r hen ddeddf yn sicrhau bod unrhyw gyfarwyddiadau gan Weinidogion Cymru i HEFCW, a nawr i'r comisiwn newydd—. Roedd adran 81 yn dweud bod unrhyw gyfarwyddiadau i HEFCW yn ddarostyngedig i weithdrefn negyddol y Senedd, ond dyw hynny ddim yn wir am adran 19 o'r Bil yma ar gyfer y cyfarwyddiadau i'r comisiwn newydd. Pam hynny, ac oes unrhyw reswm penodol am yr enghraifft yma? Ac rŷn ni'n gweld hyn mewn ambell i le trwy'r Bil. Oes yna reswm, felly, eich bod chi ddim yn rhoi cyfle i'r Senedd graffu ar y cyfarwyddiadau yma?

Thank you for that. I wanted to talk then about the Senedd procedures and the fact that section 81 of the previous legislation ensured that any directions by Welsh Ministers to HEFCW, and now for this new commission—. Section 81 stated that any directions to HEFCW had to be made according to the negative procedure in the Senedd, but the same isn't true for section 19 of this Bill in terms of directions to the new commission. Why is that, and is there any specific reason in this example? And we see this, of course, in other parts of the Bill. Is there a reason why you don't provide an opportunity for the Senedd to scrutinise these directions?

13:45

Wel, byddwn i ddim yn ei ddodi fe cweit yn y ffordd hynny, os caf i ddweud. Yn yr enghraifft benodol hon, rŷch chi'n iawn i ddweud, wrth gwrs, ei fod e wedi newid o'r sefyllfa sydd yn Neddf 1992. Rwy'n credu efallai mai'r cyd-destun sydd yn bwysig eto i hyn. Os edrychwch chi ar beth sydd wedi digwydd yng nghyfnod COVID, er enghraifft, mae wedi bod angen i allu rhoi cyfarwyddiadau o dan ddeddfwriaeth eraill—er enghraifft, i Cymwysterau Cymru. Gwnaethom ni roi cyfarwyddiadau iddyn nhw ynglŷn ag arholiadau. Roedd rhaid gwneud hynny ar frys yng nghyd-destun COVID. Felly, dyna sydd ar waith fan hyn. Mae proses yn y Bil, wrth gwrs, er mwyn gwneud hynny, ond y gallu i sicrhau bod pethau'n digwydd yn gyflym pan fo angen hynny yw'r ysgogiad. Ond fel gwnes i ddweud wrth y Cadeirydd ar y cychwyn, os ŷch chi fel pwyllgor yn credu nad yw'r cydbwysedd hwnnw wedi'i daro yn y ffordd iawn, wrth gwrs byddwn i â diddordeb mawr yn clywed eich safbwynt chi ar hynny.

Well, I wouldn't put it in quite that same way, if I may say so. In this specific example, you're right, of course, to say that it has changed from the situation that was seen in the 1992 Act. It's the context that's important in this regard. If you look at what's happened during COVID, of course, there's been a need to be able to provide direction under other legislation—for example, for Qualifications Wales. We made directions for them with regard to examinations. That had to be done as a matter of urgency as a result of COVID. So, that is what is happening here. There is a process in the Bill, of course, to do that, and it's about that ability to ensure that things happen swiftly when that is required. That's the reasoning behind this. But, as I said to the Chair at the beginning, if you as a committee don't feel that that balance has been struck in the right way, of course I would be very interested in hearing your stance on that.

Mae'r weithdrefn negyddol yn broses gyflym beth bynnag, onid yw e? Pam symud, felly, o gyfarwyddiadau a oedd yn ddarostyngedig i weithdrefnau'r Senedd i system newydd sydd ddim yn ddarostyngedig i weithdrefnau'r Senedd o gwbl, a thrwy hynny, wrth gwrs, ein bod ni ddim yn cael y cyfle i graffu yr oedd yr hen system, yr hen gyfarwyddiadau, wedi'i alluogi?

The negative procedure is a swift procedure anyway, isn't it? So, why move from directions that were subject to Senedd procedures to a new system that isn't subject to Senedd procedures at all? And then, of course, there isn't that opportunity to scrutinise. The old directions were able to be scrutinised in that way.

Wel, os edrychwch chi ar draws y Bil i gyd, mae enghreifftiau i'r gwrthwyneb hefyd—hynny yw, lle mae'r broses bresennol yn defnyddio'r weithdrefn negyddol, mae'r Bil wedi adlewyrchu camau tebyg, pwerau tebyg, ond o fewn y weithdrefn bositif. Felly, mae enghreifftiau yn y Bil yn mynd i'r ddau gyfeiriad. Rŷn ni wedi edrych ar bob un ar ei liwt ei hun, os hoffwch chi, a chloriannu beth rŷn ni'n meddwl yw'r ffordd orau o ddelio gyda fe. Maen nhw wedi mynd y ddwy ffordd, os gallaf ddweud.

Well, if you look across the whole Bill, there are other examples to the contrary as well—where the current process uses the negative procedure, and the Bill now has reflected exactly those similar steps with similar powers but within the affirmative procedure. So, there are examples in the Bill that go in both directions. We've looked at every section on its own merits, and we've decided on the best way of dealing with each section and each aspect.

Can I just check with Gareth, our committee clerk—can you hear me?

Thanks, Gareth. I just wanted to check that. I'm having some technical issues. It's going okay for the moment, but if I do lose contact, then, Alun, if you're happy to take over temporarily while I try and reconnect there, will that be okay? Thanks, Alun. Okay, very good. If we could move on now to Peter Fox, please.

Thank you, Chair, and good afternoon, Minister. I'm going to be focusing a little bit around Part 2 of the Bill, if I may, and I'll kick straight in to these few questions I've got. In Part 2 of the Bill, it contains a number of regulation-making powers for the Welsh Ministers in relation to the operation of the commission. To what extent is the power to make such extensive regulations consistent with the commission being an arm's-length body?

I'm just going to refer back to the point I touched on at the start, if I may. I mean, this is a process of striking the balance, isn't it, between prescription and permission, if I can put it like that, and from the point of view of the regulator, a regulator would want the Bill to be as permissive as possible, whereas the regulated would want it to be as restrictive as possible. So, that's the eternal challenge in these questions. I know that the committee has a particular interest, obviously. So, if you take the question of registration as the core mechanism, perhaps, in this part of the Bill, it's obviously important in that context for the regulator to be able to adapt to changes in the sector over time, whether that's around the nature of providers or the size of the sector or funding questions. And so, having everything on the face of the Bill, if I can put it like that, would probably require primary legislative change in the future to be able to respond to those developments. On the other side of the coin, taking all of the provisions off the Bill clearly isn't acceptable either. So, I hope we've struck the right balance in terms of making sure the commission has that level of independence that we want it to have, but also the kind of flexibility for legislation to best support it into the future.

13:50

Thanks, Minister. The statement of policy intent refers to the two categories of registration that are currently proposed to be used for the purpose of registering tertiary education providers. Why are these not set out on the face of the Bill—you may have answered this—given that extensive consultation on the Bill provisions has already taken place?

I think it is, in a sense, the same point as I just mentioned. Currently, the intention is for there to be two categories, but, obviously, the point of a reform is to enable the commission to lead on change into the future. So, it provides that mechanism for changing circumstances, really.

Okay. Thanks for that. The statement of policy intent states that

'It is not current government policy to create any categories for institutions which do not provide higher education. These providers will continue to be primarily regulated through the terms and conditions attached to grant funding received from the Commission.'

As such, then, is it necessary to have a law that provides for registration at all, if providers other than higher education providers can be effectively regulated via the terms and conditions of their funding?

Well, I suppose the point is inferred in your question, really, when you said 'other than higher education providers'. The Bill needs to provide the commission with the tools to regulate the entire sector. As we sit here today, the sector is funded through different mechanisms, and that's not likely to change very quickly, because we've got student support as one of the key elements of funding in higher education, but in further education, it's a grant-based model, and that provides its own mechanism, if you like, for conditions to be attached to the funding. So, as we sit here today, those mechanisms just are different, if you like, and therefore I think you do need the registration mechanism to provide the regulatory gateway, if you like, for higher education provision, but there's a different mechanism that enables FE to be regulated through a different mechanism. What I would say, though, as your question implies, is that the Bill does provide for that to change in future, so that secondary legislation could provide for a requirement for those eligible for further education funding to be registered as well. But that would reflect an evolution in the sector that isn't the case today.

Okay. Thanks. Moving on, regulations that may be made under sections 39 and 41 are not subject to any Senedd procedure. It is noted that they are only intended to be used in rare cases, but, as they are intended to protect public funds and student interests, they are clearly important. So, can you confirm why they are not subject to any Senedd procedure?

These are regulations that provide for saving provisions, basically—transition provisions—where the relationship between a provider and the register changes. So, moving between categories, for example. So, they will be very specific. They'll be very localised and specific to a provider, in all likelihood. There's no scope, really, for those regulations to contain substantive policy. They're technical, really, which is the rationale for them having the arrangements that they have.

Okay. Similar sort of points. The statement of policy intent states that there is no current intention to make regulations under section 55 and 59 of the Bill, and that such powers are there for futureproofing. Similarly, it states that there's no intention to make regulations under section 61—which is, by the way, incorrectly referred to as 69(9)(a) in the statement—and that this power is included to provide flexibility. Would it not be better to leave these powers out of the Bill and revisit these matters if and when required in the future? If not, why not, and who are you futureproofing the legislation for?

13:55

Just to be clear, when we talk about taking these out of the Bill, but accepting that they may be needed in future, what we're really saying is that it would be acceptable for us to require primary legislation to make these changes in future. That's the alternative, if you like, to having provisions in the Bill.

So, taking each of those in turn, if you look at section 55, the list of the different kinds of education and training that must be inspected by Estyn reflects the current position, if you like. As we sit here today, it is comprehensive, but there would need to be further primary legislation to amend that list into the future, just for the pretty simple purpose of specifying different kinds of education and training for Estyn to inspect. So, if we're to, say, include initial teacher education for post-16 in that mix, that would require a new Act of the Senedd if we didn't provide the mechanisms in this Bill, which I think is disproportionate, really.

The same rationale applies to section 59, which, essentially, is parasitic, if you like, on section 55. And on section 61, again, these are around provisions in relation to timescales and the provision of information, so it doesn't feel to me like it would be proportionate for that sort of technical, practical regulation to require primary legislation in the future. It probably simply wouldn't happen.

Thanks for that. The last point from me, Minister, is regarding section 78. It contains a broad regulation-making power that could affect many tertiary education providers in Wales, yet it's only subject to the negative procedure. Firstly, why is this, and would it not be better, given the potential impact that exercising this power could have, for specific provision to be made on the face of the Bill?

It provides Ministers with the opportunity of extending the monitoring duty to other kinds of tertiary education providers. I think this might, for example, be used for providers delivering apprenticeships who are not registered and who the commission might be funding under a different power—under section 101, for example. The purpose of the power then is to ensure there are no gaps in the monitoring and reporting duty. But, again, I'm happy to hear from the committee if you feel that that balance is not struck in the right place.

Thank you, Peter. Minister, we're going to move on to Part 3 of the Bill now. We're not ignoring Alun, I promise you, but we're going to go to Rhys first of all.

Diolch, Gadeirydd. Weinidog, rydych chi wedi ateb ambell i gwestiwn roeddwn i'n mynd i ofyn ynglŷn â pham fod pwerau yna a'ch bod chi ddim eisiau eu defnyddio ar hyn o bryd, pwerau wrth gefn. Felly gwnaf i ddim mynd dros ambell i un. Rwyf i'n siŵr mai'r un atebion y bydden nhw â beth roddoch chi i Peter Fox.

Roeddwn i jest yn moyn sôn yn sydyn am adran 105 o'r Bil. Mae hwn yn cynnwys y pŵer i wneud rheoliadau manwl ynglŷn â beth fydd rhaid i'r comisiwn newydd ei ystyried cyn iddyn nhw roi arian i gorff. Wrth ystyried y manylder a fydd yn y rheoliadau yna—mae'n rhaid bod yn fanwl am yr hyn mae'n rhaid i'r comisiwn ei ystyried—ac wrth hefyd ystyried ein bod ni yn, siŵr o fod, mynd i siarad am symiau mawr o arian, pam fod y rheoliadau yna, felly, yn ddarostyngedig i'r weithdrefn negyddol yn hytrach na'r weithred bositif—y weithdrefn gadarnhaol o fewn y Senedd? Wrth gwrs, byddai'r weithdrefn gadarnhaol yn golygu y byddai yna graffu gwell na'r weithdrefn negyddol. Oes yna ryw reswm penodol? Ac ydych chi'n cytuno â fi, os ydym ni'n siarad am rywbeth sydd mor bwysig, fod angen tryloywder cryf pan ŷch chi'n trosglwyddo symiau fel yna o arian? Oes yna reswm pam nad ydych chi wedi defnyddio'r weithdrefn gadarnhaol?

Thank you, Chair. Minister, you've answered a few of the questions that I was going to ask with regard to why powers are there and you don't want to use them at the moment—reserve powers. So, I won't rehearse old ground. I'm sure the answers would be the same as those you gave to Peter Fox.

But I did just want to mention section 105 of the Bill, which includes a power to make detailed regulations regarding the matters that the commission will have to take into account before deciding whether funding can be passed to a body. So, considering the detail that will be in these regulations—they have to be detailed because of what the commission will have to consider—and considering that we are talking about large sums of money here, why are those regulations only subject to the negative procedure rather than the affirmative procedure within the Senedd? Of course, the affirmative procedure means that there would be better scrutiny than in the case of the negative procedure. Is there a specific reason for that? Do you agree with me that, if we're talking about something that is so important, there is a need for robust transparency when you're transferring large sums of money? Is there a reason why you haven't used the affirmative procedure in that instance?

Mae'r cyrff yma sydd yn cydweithio yn cydweithio gyda chyrff sydd yn ddarostyngedig i reolaeth gan y comisiwn eisoes, felly dyna'r senario ŷn ni'n ei ddisgrifio. Beth mae'r comisiwn yn ei wneud yw sicrhau bod hawl pasio'r arian yna ymlaen. Ond rŷch chi, wrth gwrs, yn llygad eich lle i ddweud ei bod hi'n bwysig iawn bod hynny'n digwydd mewn ffordd sydd yn diogelu arian cyhoeddus a'r egwyddorion pwysig eraill hynny.

Yr ateb penodol i'ch cwestiwn chi yw, eto, fod y pethau yma'n bethau'n dechnegol ar y cyfan. Hynny yw, ydy'r corff fydd yn derbyn yr arian yn adlewyrchu egwyddorion cynllun strategol y comisiwn, dyweder, neu a oes ganddyn nhw drefniadau rheoleiddio ariannol sydd yn addas? Felly, pethau technegol ond, efallai, ar ddiwedd y dydd, manwl. Dyna sut fyddwn i'n disgrifio'r pethau hynny. 

These bodies that do collaborate collaborate with bodies that are subject to the control of the commission already, so that is the scenario we describe here. What the commission does is ensure that there is a right to transfer those funds on. But you're entirely right that it's very important that that happens in a way that safeguards public funds and those important principles associated with that process.

The specific answer to your question is, again, that these are technical issues on the whole. Does the body that will receive the funding reflect the principles of the strategic plan of the commission, or do they have appropriate regulatory arrangements in place? So, these are technical issues but, perhaps, ultimately they're very detailed. That's how I would describe those things. 

14:00

Ocê. Diolch yn fawr. Does dim rhagor o gwestiynau gen i, Gadeirydd. 

Okay. Thank you very much. No further questions from me, Chair.

Diolch yn fawr, a diolch i chi, Gweinidog, am eich amser y prynhawn yma. Rydych chi'n gwybod fy mod i'n bryderus iawn amboutu'r sefyllfa sy'n wynebu prentisiaethau yng Nghymru ar hyn o bryd. Dwi'n nodi bod adran 111 o'r Bil yn caniatáu i chi fel Gweinidogion nodi gofynion newydd mewn perthynas â phrentisiaethau Cymraeg. Ond, dydy'r Bil ddim yn nodi ar ba ffurf y dylai'r gofynion yma fod a pha statws sydd ganddyn nhw, a sut buasem ni fel Aelodau'r Senedd yn gwneud y gwaith craffu ar ofynion o'r fath. Sut wyt ti'n gweld y grym yma, y pwerau newydd yma yn eich helpu chi i osod pa fath o ofynion fydd eu hangen o ran darparwyr? A sut buaswn i'n craffu ar y gwaith yma ar ran etholwyr Blaenau Gwent?

Thank you very much and thank you to you, Minister, for your time this afternoon. You know that I'm very concerned about the situation facing apprenticeships in Wales at the moment. I note that section 111 of the Bill allows you as Ministers to specify new requirements in relation to Welsh apprenticeships. However, the Bill does not set out what form these requirements should take and what status they have, and how we, as Members of the Senedd, could scrutinise such requirements. So, how do you perceive these powers, these new powers, helping you to set out what kind of requirements providers will need to adhere to? And how would I scrutinise this work on behalf of my constituents in Blaenau Gwent?

Wel, fel rydyn ni wedi trafod mewn cyd-destunau eraill, rŷch chi'n gwbl iawn i ddweud bod angen sicrhau bod y broses sydd gennym ni o ddylunio a darparu prentisiaethau yn gymwys. Mae'r pwerau yn y Bil, wrth gwrs, yn cymryd lle y rheini sydd yn Neddf 2009 ar hyn o bryd, ac mae'r trefniadau ar hyn o bryd yn—dwi ddim yn gwybod beth yw'r gair Cymraeg am 'clunky'—eithaf clunky. Felly, mae'r rhain lawer yn fwy hyblyg, ac mae hynny'n bwysig yn y cyd-destun penodol hwn, oherwydd mai ymateb i newidiadau economaidd rydych chi'n ceisio ei wneud fel bod y ddarpariaeth yn gymwys ac yn darparu'r sgiliau sydd eu hangen. Felly, dyna'r egwyddor, wrth gwrs. Rôl Gweinidogion Llywodraeth Cymru yn hyn yw sicrhau, ar ddiwedd y dydd, ein bod ni'n gallu ymateb i, er enghraifft, newidiadau o ran buddsoddiad i mewn i Gymru, dywedwch, neu bolisïau sydd yn torri ar draws neu'n gyffredin i amryw elfennau o'r Llywodraeth. Felly, dyna'r bwriad.

O ran sut mae hynny'n trosglwyddo i mewn i weithredu, bydd angen, wrth gwrs, i'r gofynion gael eu cyhoeddi. Bydd angen inni gyhoeddi'r dyddiad y byddan nhw'n dod i rym. Bydd angen hefyd ymgynghori â'r comisiwn ei hunan ac unrhyw gyrff eraill sy'n cael eu heffeithio cyn bod hynny'n gallu digwydd. Ac mae'r specification, neu'r gofynion, yn creu cyfrifoldeb, felly, ar y comisiwn i ymateb i hynny. Felly, er mwyn bod yn brentisiaeth sy'n cael ei hyrwyddo, sy'n cael ei awdurdodi gan y Bil, mae'n rhaid iddo fe ymateb i'r gofynion hynny. Ac os nad yw e, does gan y comisiwn ddim pŵer i allu ei ariannu fe. Felly, dyna'r mecanwaith. 

Well, we've discussed this in other contexts. You're entirely right to say that we need to ensure that the process that we have of designing and providing apprenticeships is appropriate. And the powers in the Bill replace those in the 2009 Act. And the arrangements at the moment are—I don't know what the Welsh word is for 'clunky'—quite clunky. So, these are far more flexible, and that's very important in this specific context, because it's responding to economic changes that we're trying to do so that the provision is appropriate and provides the skills that we need. So, that's the principle, of course. And the role of Welsh Government Ministers in this is to ensure, at the end of the day, that we can respond to, for example, changes in terms of investment into Wales or common policies across several aspects of Government. So, that is the intention here.

In terms of how that transfers into action, the requirements will need to be published. We'll need to publish the date that they come into force. There'll have to be consultation as well with the commission themselves and any other body affected before that coming into force can happen. And the specification or the requirements create a responsibility on the commission to respond to that. So, in order for them to be apprenticeships that are authorised by the Bill, it has to respond to those requirements, and if there isn't that response, then the commission doesn't have the power to be able to fund that provision. So, that's the mechanism. 

Ie, dwi'n deall hynny. Dwi'n sylwi dy fod di'n defnyddio'r gair 'hyblyg'. Nawr, dwi'n credu bod yn rhaid ichi gael y lle, gofod, os ydych chi'n licio, i fod yn hyblyg. Ond, mae'n fy mecso i ambell waith pan fydd Gweinidogion yn defnyddio'r gair hwnnw, achos mae'n rhoi'r grym ichi benderfynu pryd mae angen bod yn hyblyg. Ble mae'r atebolrwydd o ran y grym yma, ac os ydy'r Senedd yn anghytuno â chi a'r gofynion rydych chi wedi eu gosod mas, sut ydyn ni wedyn yn dy stopio di rhag ei wneud e? 

Yes, I understand that. I note that you used the word 'flexible'. Now, I believe that you do have to have that space, if you will, to be flexible, but it concerns me sometimes when Ministers use that word, because it gives you the power to decide when there is a need to be flexible. Where is the accountability for this power? And if the Senedd disagrees with you, and with the requirements that you've set out, how then can we stop you from doing it?

Wel, mae holl egwyddor y Bil—. Petasen ni, fel Llywodraeth, eisiau cadw gafael ar yr holl bŵer yma, fydden ni ddim yn creu comisiwn a throsglwyddo'r pwerau bron i gyd yng nghyd-destun addysg bellach i'r comisiwn. Felly, dyna'r egwyddor sylfaenol. Mae gyda ni lot o hyblygrwydd o fewn y system sydd gyda ni nawr, yn y maes yna yn gyffredinol. Un o'r enghreifftiau lle nad oes digon o hyblygrwydd yw'r maes hwn.

Well, the whole principle of the Bill—. If we, as a Government, wanted to keep hold of all these powers, we wouldn't create a commission and transfer almost all of the powers with regard to further education to the commission. So, that's the fundamental principle here. We have a great deal of flexibility within the current system that we have in this area in general. One example where there is insufficient flexibility is this area.

14:05

Ie, dwi'n cytuno gyda hynny. Dwi'n cytuno gyda hynny, fel dŷch chi'n gwybod. Ond jest oherwydd bod yna wendidau yn y system bresennol, dwi ddim yn meddwl bod rhaid i ni drosglwyddo'r un gwendidau i'r system newydd. A dwi ddim yn meindio'r Llywodraeth, mewn egwyddor, yn cael y pwerau yma i fod yn hyblyg, ond ble mae'r atebolrwydd yw fy nghwestiwn i. Sut ydyn ni yn eich rhwystro chi fel Gweinidog rhag gwneud rhywbeth os yw'r Senedd yn anghytuno?

Yes, I agree with that, as you know. But just because there are weaknesses in the current system, it doesn't mean that we have to transfer the same weaknesses into the new system. I don't mind the Government in principle having these powers to be flexible, but where is the accountability? That's my question. How do we prevent you as a Minister from doing something if the Senedd disagrees with it?

Wel, mae cwestiwn athronyddol wrth wraidd hynny, onid oes e, oherwydd rydw i fel Gweinidog yn rhoi i fyny bwerau hefyd i'r comisiwn er mwyn i'r comisiwn allu delio mewn ffordd wahanol ac amgen i'r hyn y mae'r Llywodraeth yn gallu gwneud. Ond, ar y llaw arall, mae gyda ni broses o fewn y ddeddfwriaeth. Mae line of sight, onid oes e, rhwng y penderfyniadau rŷn ni'n eu gwneud yn strategol fel Llywodraeth—datganiad o flaenoriaethau strategol ac ati—ac mae hynny'n troi mewn i gynllun strategol gan y comisiwn ac wedyn gweithredu trwy'r system reoleiddio. Mae rhai wedi dweud, mewn cyd-destunau eraill, fod hynny'n rhoi gormod o bwerau yn nwylo Llywodraeth Cymru i allu mynnu beth mae'r comisiwn yn ei wneud. Roedd cwestiynau ar gychwyn y drafodaeth hon yn y cyd-destun hwnnw, ond mae’r cwestiwn rŷch chi'n ei ofyn nawr yn enghraifft o pam mae angen y line of sight hwnnw, fel eich bod chi'n gallu dwyn fi fel Gweinidog o flaen y pwyllgor a gofyn y cwestiynau anodd hynny i fi. Dwi'n credu bod y Bil yn caniatáu i hynny ddigwydd a'n bod ni fel Gweinidogion yn parhau i fod yn atebol. Ond mae hynny yn golygu, ar faterion gweithredol, fod yna enghreifftiau lle mae'r pwer yn nwylo rhywun arall, sef y comisiwn.

Well, that's a philosophical question, isn't it, because I as a Minister am yielding powers to the commission so that the commission can deal in a different way, an alternative way, with these issues. But on the other hand, we have a process within the legislation. The line of sight is there between the decisions that we make strategically as a Government—the declaration of strategic priorities, and so on—and that turns into a strategic plan for the commission and then there is action through the regulatory system. Some have said, in other contexts, that that gives too many powers to the Welsh Government to decide what the commission can do. There were questions at the beginning of this discussion today on that point, but the question that you ask now is an example of why we need that line of sight, which is so that you can hold me as Minister to account in committee and ask me those difficult questions. I think that the Bill enables that to happen and ensures that we as Ministers continue to be accountable. But that does mean, on operational matters, that there are examples where the power is in somebody else's hands, namely the commission.

Dwi'n sylwi bod fy ngwyneb wedi rhewi ar y sgrin—dwi'n dal i fod yma, gyda llaw. So, os dŷch chi ddim yn meindio, Cadeirydd, mi wnaf i jest barhau gyda'r cwestiynau, er eich bod chi'n ffaelu gweld fy ngwyneb—efallai'n beth da.

I note that my face has frozen on the screen, even though I am still here, by the way. So, if you don't mind, Chair, I'll just continue with the questions, even though you can't see my face. Perhaps that's a good thing. 

Diolch. Mae adran 124 yn gosod darpariaethau newydd yn y Ddeddf addysg uwch, wrth gwrs, ac yn estyn cylch gwaith swyddfa'r dyfarnwr annibynnol. Ac eto, wrth ymestyn cylch gwaith y swyddfa honno, dŷch chi'n gwneud hynny gan ddefnyddio'r weithdrefn negyddol eto. Mae lot fawr o gwestiynau dŷn ni wedi'u trafod y prynhawn yma yn trafod y cydbwysedd yma, a dŷch chi wedi bod yn agored iawn wrth ateb hynny, ac rŷn ni'n ddiolchgar i chi am hynny. Ydy'r math o rym eang iawn yma yn mynnu gweithdrefn wahanol?

Thank you. Section 124 sets out new provisions in the higher education Act, of course, and extends the remit of the office of the independent adjudicator. And again, in extending the remit of that office, you do so using the negative procedure again. There are many questions that we've discussed this afternoon that relate to this balance being struck, and you've been very open in responding to those questions and we're very grateful to you for that. Does this kind of wide-ranging power demand the use of a different procedure?

Mae'r Bil yn datgan rhestr o gyrff y gellid eu darostwng i waith y swyddfa hon. Felly, gan fod hynny ar wyneb y Bil, mae'n fy nharo i ei bod yn addas, felly, mai'r broses negyddol o ran gweithdrefn sydd yn addas. Mae'r mathau o gyrff sydd yn gallu bod yn y rheoliadau hynny eisoes wedi'u rhestru yn y Bil, felly rwy'n credu, yn y cyd-destun hwnnw, ei bod hi'n addas fan hyn.

The Bill sets out a list of bodies that could be subject to the work of this office. So, as that is on the face of the Bill, it strikes me as being appropriate that it is the negative procedure that is used. The kinds of bodies that could be in those regulations are already listed in the Bill, so I think, in that context, it is appropriate.

Ocê. Ac yn symud ymlaen, eto, i adran 128, dŷch chi'n cynnig grym gwahanol fan hyn i chi fel Gweinidog osod cyfrifoldebau newydd ar yr Ysgrifennydd Gwladol a'r Swyddfa Myfyrwyr. O beth dwi'n ei ddeall, mae angen cael caniatâd Llywodraeth y Deyrnas Unedig i wneud hynny. Ydych chi wedi bod yn trafod hyn? Dwi'n cymryd eich bod chi wedi, a bod eich swyddogion wedi bod yn trafod hyn gyda Llywodraeth y Deyrnas Unedig. Ydyn nhw wedi bod yn agored i'r cyfrifoldebau newydd hyn?

Okay. Moving on, again, to section 128 of the Bill, you propose a different power here for you as a Minister to then confer new responsibilities on the Secretary of State and the Office for Students. From what I understand, the consent of the UK Government is needed in order to do that. Have you been discussing that? I take it that you have, and that your officials have been discussing that with the UK Government too. Have they been open to these new responsibilities?

Ydyn. Mae'r trafodaethau wedi bod yn adeiladol a dŷn ni'n disgwyl cael cydsyniad cyn bo hir.

Yes. Those discussions have been very constructive and we expect to receive consent soon.

Ocê. Ac yn olaf i fi, mae adran 141 yn cynnwys pwerau Harri VIII eang iawn. Dwi'n anghyfforddus gyda hyn, mae'n rhaid i mi ddweud. Ydych chi'n gyfforddus nad ydych chi'n gosod pwerau newydd yn rhy eang, fel bod yna ormod o bwerau Harri VIII. Rydyn ni'n gweld Llywodraeth y Deyrnas Unedig yn camddefnyddio, yn fy marn i, y pwerau yma ar hyn o bryd. Ydych chi'n symud, efallai, gormod yn yr un cyfeiriad?

Okay. And finally from me, section 141 contains very wide Henry VIII powers. I'm uncomfortable with this, I have to say. Are you comfortable and content that you aren't setting too wide-ranging  a power, so that there are too many Henry VIII powers here? We see the UK Government misusing, in my view, those powers at the moment. Are you moving, perhaps, too much in that direction?

14:10

Dwi ddim yn credu ein bod ni. Mae dwy elfen yn fan hyn: hynny yw, beth yw'r ystod o bethau y gellir eu gwneud yw un cwestiwn; a'r ail gwestiwn yw i ba bwrpas gellir gwneud y pethau hynny. Ac mae'r cwestiwn cyntaf yn delio ag amryw o ffurfiau ar ddeddfwriaeth eraill, fel rŷch chi'n awgrymu yn eich cwestiwn. Felly, ar un lefel, mae hwnna'n eithaf eang, ond mae'r pwrpas o ran gwneud hynny'n eithaf cyfyng, buaswn i'n dweud—hynny yw, er mwyn sicrhau defnydd llawn o'r Bil neu bethau sydd yn dilyn yn anorfod o'r Bil. Felly, mae'r cyfiawnhad ar gyfer defnyddio'r pwerau yn un y byddwn i'n ei ddisgrifio fel un cymharol gul. Mae'r math yma o bŵer yn eithaf cyffredin yn y math yma o Fil, ac efallai mai'r peth pwysicaf yng nghyd-destun y drafodaeth rŷn ni wedi'i chael yn ystod y cyfarfod mor belled yw petasai'r pwerau hynny yn cael eu defnyddio yng nghyd-destun deddfwriaeth gynradd sydd ar y llyfr statud yn barod, byddai hynny'n gorfod mynd drwy broses gadarnhaol yn y Senedd. Felly, byddai gan y Senedd yr hawl i benderfynu a fyddai hynny'n addas ai beidio. 

I don't think that we are. There are two elements here, namely what is the range of things that could be done being one question; and then the second question is for what purpose should those things be done. The first question deals with a range of other legislation, as you suggest in your question. So, on one level, that is wide-ranging. But the purpose for which that could be done is quite limited, I would say—namely, to ensure full use of the Bill or of things that follow on inevitably from the Bill. So, the justification for using those powers is relatively narrow, I would say. This kind of power is quite common in this kind of Bill, and perhaps the most important thing in the context of the discussion that we have had during this meeting so far is that if those powers were to be used in the context of primary legislation already on the statute book, that would have to go through the affirmative process in the Senedd. So, the Senedd would have the right to decide whether that's appropriate or not.

Cadeirydd, dwi'n fodlon iawn gyda'r atebion i gyd, so dwi'n mynd i ddiflannu a dod nôl. Diolch yn fawr. 

Chair, I'm very content with those answers, so I'm going to disappear and come back. Thank you. 

Diolch yn fawr iawn, Alun. Thank you very much indeed, and to you, Minister, as well. Now, Minister, interestingly we have blasted through a range of questions there, and many of them have been focused on the issue of scrutiny. We touched on the Henry VIII powers there, what's on the face of the Bill and what's left out, and the use of the negative or affirmative powers. During the course of that, you touched on a couple of areas where you'd welcome our thoughts after we've considered your evidence, and we will supply those. I just wonder, as we draw to a close quite early, are there any other areas that you want to touch on with this that might be of interest to us? Are there any other areas that you might want to direct us to, where you would appreciate our help in fashioning this Bill?

Chair, I think it's very much along the theme of what we've been discussing today. So, I obviously understand very well the committee's interest in the balance, and it's one that I share, and so I think anything where you feel perhaps the balance is in the wrong place, either because it should be the affirmative or negative procedure, for example, then obviously I'd be very keen to hear from you about that. So, I've sought—and I hope most stakeholders would reflect this—. I regard this Bill as, in many ways, a collaborative endeavour, really, because what we are trying to do is provide a platform for the next many decades. So, I'm very open to hearing from any stakeholders or committees about how we can refine the Bill to make it the best possible version of itself. So, I'd be very content to hear from the committee on any of those issues, obviously. 

Thank you for that. We will write to you with some further very detailed questions as well—some very detailed and technical questions—which we would appreciate an answer to. And we'll obviously send the transcript for you to check for accuracy as well. Before we let you go from this virtual room, can I just check with colleagues that they don't have any further questions? I can't see anybody indicating. I'm worried that my screen has frozen, but I think we are clear. I can see shaking heads now. Lovely. Okay. 

Minister, I thank you and your officials very much indeed. Lots of work to get on with. Can I just say, from the committee's point of view, we welcome the fact that we have a Welsh piece of legislation here in front of us to consider? We really do. Diolch yn fawr iawn, and have a good afternoon—lots of work to do. Thank you.

I'll give you a couple of minutes now to leave the virtual room before we continue with our business in public this afternoon. I think they've all left.

3. Offerynnau statudol negyddol arfaethedig nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt i’r Senedd o dan Reol Sefydlog 21.3B
3. Proposed negative instruments that raise no reporting issues under Standing Order 21.3B

So, colleagues, we go on now to other items of business, and first of all, as per normal, we have under item 3 proposed negative instruments that raise no reporting issues under Standing Order 21.3B. Now, within that we have the European Union (Withdrawal) Act 2018 and the European Union (Future Relationship) Act 2020, which is to sift certain regulations that the Welsh Ministers propose to make under the negative procedure, known as proposed negative regulations. So, our role here is to consider a report on the appropriate procedure to be used, either negative or affirmative, using quite specific criteria set out in Standing Order 21.3. So, this is the proposed negative procedure. N

ow, we've got three papers—. Sorry. We've got a paper in front of us here which is a proposed negative instrument with a clear report. It's pNeg(6)002, the Food Information (Wales) (Amendment) Regulations 2021. This implements article 5 of annex 15 to the trade and co-operation agreement between the EU and the UK, the TCA, as it's known. So, annex 15 makes provision for trade in wine, and article 5 provides for transitional measures relating to the labelling and placing of the market of wine produced before the date of entry into force of the TCA. Regulation 2 makes consequential amendments to the Food Information (Wales) Regulations 2014 to ensure that such wine can continue to be sold. Our draft report suggests this instrument is not recommended for uplift to the affirmative procedure.

Now, we will see these coming through periodically. We had a few of these in the last Senedd session as well. We might have fewer of these going forward; there was quite a rush of them. But, could I ask Members whether they have any comments or observation, or if they're happy to agree with the report here? Happy to agree. Okay, thank you very much. Gareth, our lawyer, we can stand you down for this item for the moment. 

14:15
4. Offerynnau sy’n cynnwys materion i gyflwyno adroddiad arnynt i’r Senedd o dan Reol Sefydlog 21.2 neu 21.3
4. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3

We'll go on to item 4, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. And under this, we have item 4.1, it's a made negative resolution instrument, SL(6)087, the Education (European University Institute) (Wales) (Amendment) (EU Exit) Regulations 2021. This is to ensure compliance with the EU withdrawal agreement, the European economic area European Free Trade Association separation agreement, the Swiss citizens’ rights agreement, and the common travel area agreement. Now, our lawyers have identified two technical and two merits points for reporting on this item, and we had a Welsh Government response on Friday. Now then, could I invite Gareth, our lawyer, to highlight any issues arising from the draft report?

Diolch. The two technical points raise issues that may appear to be minor, but do actually cause real confusion. The first is that the explanatory note says that one of the principal aims of the regulations is to change the deadline for certain applications, but the regulations don't change the deadline at all. The Welsh Government has responded to say that there was an error in the explanatory note. The second technical point relates to a formatting error in the regulations themselves, which causes confusion as to the positioning of some of the—[Inaudible.]—text, and therefore confusion as to how you should read and interpret the regulations. [Inaudible.]—the confusion will simply remain on the statute book. 

As to the merits points, the first probes the meaning of a particular definition. The Welsh Government accepts the definition is defective, and it will look to correct this error in a future set of regulations, but no promise as to when this will be. And the second merits point probes whether certain words were being duplicated in the regulations. The Welsh Government response has helpfully clarified there is no duplication, and the wording in the regulations is correct. 

Gareth, thank you very much. Before I invite any comments, do we need to pick up at all on that issue of the timing of any correcting of the regulations? The Welsh Government response seems to have been quite helpful in a couple of ways there, but that timing, or do we just leave this and accept that they will return to this in due course? 

It's up to Members whether they wish to chase it. If they do, they could also chase the other two points where this confusion seems to stay on the statute book, which isn't particularly helpful. They are very simple errors that could be corrected, simple errors that could make a big change to the simplicity and clarity of the regulations. 

Let's do that. We've made a thing about accessibility to law and the rest of it, so if there are errors on the statute book, I think it would be consistent with the approach that this committee's taken to ask the Government to correct those errors.

14:20

Thanks, Alun. I can see signals of assent, as well, with that from Rhys and Peter as well. So, Gareth, if we could do that. But I think we're in agreement with the report as you have it there, and it's good to see Welsh Government trying to correct some of these things as they do go on as well. But we can give them a gentle nudge by writing to them. Thank you for that.

We'll go on to item 4.2, which is SL(6)091, the Development Procedure (Consultees) (Wales) (Miscellaneous Amendments) (Amendment) Order 2021. We have three papers in our pack for this in 5, 5a and 6. Now, this is in respect of a new flood risk planning policy and a new flood map for planning, the FMP, which were intended to come into force for planning purposes on 1 December 2021. Now, following a change in policy by Welsh Government, the new arrangements will no longer come into force on that date, so the Order therefore amends the Development Procedure (Consultees) (Wales) (Miscellaneous Amendments) (Amendment) Order 2021 by removing the provisions relating to the new FMP. Our lawyers, committee colleagues, have identified three merits points for reporting and again, we had a Welsh Government response received on Friday. Gareth, I assume we're in your hands again.

This amends an Order that the committee considered only three weeks ago, and following feedback from local authorities, the new flood map will not now come into force on 1 December. Instead, the old law will continue in force for now at least. As this change was fairly last minute, there is a breach of the 21-day rule. Also, the explanatory note says that the regulatory impact assessment was carried out while the explanatory memorandum says that there was no regulatory impact assessment. The Welsh Government has responded and confirmed that there was no regulatory impact assessment.

Okay, thank you for that. Are we content to agree the report? We are, thank you. Okay. Thank you very much, Gareth. That brings us on to item 4.3 in respect of SL(6)092, the Valuation for Rating (Wales) (Coronavirus) (Revocation) Regulations 2021. There are a couple of items within your paper pack on this. Now, this instrument revokes the Valuation for Rating (Wales) (Coronavirus) (Revocation) Regulations 2021, which were considered by the committee on 15 November 2021. Those provisions will be superseded by provisions for Wales included within the Rating (Coronavirus) and Directors Disqualification (Dissolved Companies) Bill, which, as everybody will be aware, has been the subject of a legislative consent memorandum. So, the revocation of the 2021 regulations will come into force on the day that the Bill receives Royal Assent, and Welsh Government has flagged that, depending on when that occurs, these regulations may indeed, in fact, breach the 21-day rule. So, our lawyers have identified one merits point for reporting. Gareth, over to you again.

Diolch. It's linked to what you've just outlined. The merits point is quite interesting because it notes a potential breach of the 21-day rule. So, the 21-day rule says that 21 days should pass between the date negative instruments are laid before the Senedd and the date they come into force. With these regulations, we don't actually know when they come into force, because it all depends on when Royal Assent is given to the Rating (Coronavirus) and Directors Disqualification (Dissolved Companies) Bill.

There we are. Well, I think we appreciate the heads-up and we welcome that heads-up from Welsh Government in respect of this. I assume that we're happy to note the reporting points and agree them. We are. Okay. That brings us forward, then, and I'm going to suggest to colleagues that we deal with some of these remaining items in groups. So, if you're happy, we'll group together items 4.4 to 4.7 for consideration because they are related. We have: SL(6)093, the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 12) Regulations 2021; then we have SL(6)094, the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 13) Regulations 2021. We have a draft report relating to that under paper 11.

We also have item 4.6, which is SL(6)095, the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 14) Regulations 2021, and item 4.7, SL(6)096, the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 15) Regulations 2021. So, if you’re happy with those grouped together, the 12, 13, 14 and 15 amendment regulations do the normal—they make the amendment to the Health Protection (Coronavirus, International Travel) (Wales) Regulations 2020 which impose requirements on persons entering Wales having been abroad. The amendments made by the instruments include the addition of countries to the so-called red list. Our lawyers have identified the same three merits points for reporting in relation to each of the instruments, so at that point again, can I ask Gareth to explain for us what he’s picked up on?

14:25

Diolch. There are just the standard coronavirus-related merits points around Welsh Government’s justification for any potential interference with human rights, lack of consultation, et cetera. But, of course, the wider issue here is the tightening of travel restrictions in response to the omicron variant by reintroducing red-list countries as part of a UK-wide approach.

Thank you very much, Gareth. Are we happy to note and agree the reporting points? We are. Thank you very much. That deals with that group.

We'll then move on to another group of two, again related. Under item 4.8, we have SL(6)100, the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 16) Regulations 2021, and we have under item 4.9, SL(6)097, the Health Protection (Coronavirus, International Travel and Public Health Information to Travellers) (Wales) (Amendment) (No. 3) Regulations 2021. And there are some related papers there as well.

So, the Health Protection (Coronavirus, International Travel and Public Health Information to Travellers) (Wales) (Amendment) (No. 3) Regulations 2021 amends the international travel regulations to remove lateral flow device tests as an option for day-two tests for all fully vaccinated travellers arriving from non-red list countries, and to require fully vaccinated travellers arriving from non-red list countries to self-isolate from arrival until they get a negative result from their day-two PCR test. Now, our lawyers have identified one technical point and three merits points for reporting on this.

And if I just go on to the other item in front of us here—the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 16) Regulations 2021—that amends the international travel regulations by correcting an error introduced by the previously mentioned regulations, and our lawyers have identified two merits points for reporting on these. Gareth, do you want to take us through those, please?

Diolch. As regards agenda item 4.9, there are again the standard coronavirus-related merits points, and there is one technical point which notes an inconsistency between the English text and the Welsh text. The English text refers to isolation for 10 days, while the Welsh text refers to isolation for 14 days. The draft report asked the Welsh Government to correct the error as soon as possible, and the Welsh Government has already done just that. Therefore, if Members are content, the draft report could be amended. Instead of asking for the error to be corrected quickly, the draft report could welcome the fact that Welsh Government corrected the error so quickly and helpfully provided an explanation that nobody was affected by the error during the time it was in force.

And as regards agenda item 4.8, these are the regulations that corrected that error between the English and the Welsh.   

That's great. Thank you, Gareth and, I think, from the signals of assent that we’ve got there with heads nodding, we’d be happy with that suggestion that you put forward. Thank you very much.

Okay. That takes us on then to our draft affirmative resolution instruments, and we’ll turn to item 4.10, which is SL(6)088, the Local Elections (Communities) (Wales) Rules 2021. This instrument sets out the rules of conduct by which the election of councillors to community or town councils in Wales is to take place. The 2021 rules are Wales specific and they aim to provide an updated and modernised set of conduct rules. These rules will apply to the election of councillors to community or town councils in Wales, held on or after 5 May 2022. Now, our lawyers have identified one merits point for reporting. Gareth. We're keeping you busy this afternoon, Gareth.

14:30

These rules consolidate an area of law that was previously set out in an England-and-Wales instrument. Now the rules have been consolidated and updated in a Wales-only instrument, which is so much more accessible, and the draft report welcomes that improved accessibility. There is further supporting legislation to come in this area, so the draft report also warns against this area spreading out into various instruments that could undo the consolidation and improved accessibility.

That's excellent. Thank you, Gareth. I'm guessing that we are content with that report and the reporting points. We are. Thank you, Gareth.

That takes us on, then, to item 4.11, which is SL(6)089, the Local Elections (Principal Areas) (Wales) Rules 2021. This particular instrument sets out the rules of conduct by which the election of councillors to county and county borough councils in Wales is to take place. As with the previous instrument, these rules are Wales specific and aim to provide an updated and modernised set of conduct rules. And again, our lawyers have identified one merits point for reporting. Gareth.

And it's the same merits point regarding improved accessibility, which applies to these principal areas' election rules. These rules for the principal areas and the previous for town councils and community elections, they take a very similar approach. There's a lot of overlap in the rules that apply, so the same merits point about accessibility is noted.

Excellent. Thank you, Gareth. In which case I assume that we will be happy with those reporting points. We are.

5. Is-ddeddfwriaeth nad yw’n cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.7
5. Subordinate legislation that raises no reporting issues under Standing Order 21.7

That takes us on, then, to item 5. We've got quite a bit this afternoon, as people looking in will see, as we go through all of this. We have subordinate legislation that raises no reporting issues under Standing Order 21.7, so this is subordinate legislation with clear reports. Under this, we have item 5.1, SL(6)090, the Curriculum for Wales—Relationships and Sexuality Education Code. We've got some related papers in your pack for this, Members. This code sets out the themes and the matters to be encompassed by the mandatory element of relationships and sexuality education. There are no points identified by our Senedd lawyers for reporting, so could I just ask: are you content with the draft report? We are. Thank you very much.

6. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C
6. Written statements under Standing Order 30C

That takes us, then, to item number 6, written statements under Standing Order 30C. Item 6.1, WS-30C(6)004, we have the UK Statistics (Amendment etc.) (EU Exit) Regulations 2021, together with a written statement by the Welsh Government from 24 November and a commentary. So, this written statement notifies the Senedd that the Welsh Government has consented to the making of the UK Statistics (Amendment etc.) (EU Exit) Regulations 2021, and the statement notes that consent was given because the Welsh Government considers there is no divergence between it and the UK Government on the policy for the correction. So, the Welsh Government's statement also confirms that these regulations do not impact upon the legislative powers of the Senedd or the executive powers of Welsh Ministers. Do we have any comments on this, Gareth?

Only to say that the United Kingdom no longer needs to rely on EU-derived statistics law; there is a separate UK statistics framework. So, the EU-derived statistics law is being revoked throughout the United Kingdom, and the Welsh Government has adopted a UK-wide approach.

Gareth, I think we got most of what you said. Can I just check with colleagues? Are you having difficulty with some of the transmission? You are. I think we got most of what you said then, though, Gareth. That's fine. Any comments from Members or are we happy to agree that, to note that? Yes. Okay. Thank you very much.

14:35
7. Fframweithiau cyffredin
7. Common frameworks

And then we move on, as we normally do, to item 7, common frameworks. Item 7.1, the provisional framework for the public health protection and health security framework. We note the letter from the Chair of the Health and Social Care Committee in respect of this provisional framework, which was, of course, brought in front of the committee at last week's meeting. So, if you're happy to note that and we can return to that in private session.

8. Cytundeb cysylltiadau rhyngsefydliadol
8. Inter-institutional relations agreement

We also have, under item No. 8, the inter-institutional relations agreement, and we note with that the letter from the First Minister that notified the committee of a meeting of the British-Irish Council that took place on 19 November. And just to note, the letter has been sent in accordance with the inter-institutional relations agreement, which we keep a very close eye on, of course. So, I think we're happy to note that, and if there are any points arising, we can return to that in private.

We also have item 8.2, correspondence from the Counsel General and Minister for the Constitution in respect of the inter-ministerial group for elections and registration. This is in regard to a meeting of the inter-ministerial group. The letter has been, again, sent in accordance with the inter-institutional relations agreement, so we're glad to see that being duly followed and the committee being kept informed of that. I think we're happy to note that.

9. Papurau i'w nodi
9. Papers to note

And then we have several papers to note. Item 9.1 in your pack is correspondence from the Delegated Powers and Law Reform Committee of the Scottish Parliament in respect of the inquiry into the use of the made affirmative procedure during the coronavirus pandemic. It draws our attention to their short inquiry into the use of the made affirmative procedure during the coronavirus pandemic. If you're happy to note that, it might be something we want to return to in private to discuss. So, happy to note? Good.

And then we move on to the last couple of items here in correspondence. One from the Minister for Rural Affairs and North Wales, and Trefnydd in respect of the Animal Health, Plant Health, Seeds and Seed Potatoes (Miscellaneous Amendments) Regulations 2021. Are we happy to note? We are. 

Item 9.3, correspondence with the Minister for Climate Change and the Counsel General and Minister for the Constitution in respect of the legislative consent motion debate relating to provisions in the UK Environment Bill. Are we happy to note and defer discussion? We are.

10. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod, ac o Eitem 1 y cyfarfod a gaiff ei gynnal ar 13 Rhagfyr 2021
10. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting and from Item 1 of the meeting on 13 December 2021

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod ac o eitem 1 y cyfarfod a gaiff ei gynnal ar 13 Rhagfyr 2021 yn unol â Rheol Sefydlog 17.42(ix).

Motion:

that the committee resolves to exclude the public from the remainder of the meeting and from item 1 of the meeting on 13 December 2021 in accordance with Standing Order 17.42(ix).

Cynigiwyd y cynnig.

Motion moved.

In which case, that brings us to item No. 10, which is a motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting and, for anybody watching in, from item No. 1 of the meeting on 13 December, which will be taken in private as well. So, are we happy to move into private, colleagues? We are. So, we'll move into private, and I'll wait for the signal from our clerks team that we are in private.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:38.

Motion agreed.

The public part of the meeting ended at 14:38.