Cynulliad Cenedlaethol Cymru

Welcome to this afternoon's session of the Legislation, Justice and Constitution Committee here in the Senedd. We're in public this afternoon for a very important evidence session here with Lord Bellamy and his colleagues. Lord Bellamy, you're very welcome indeed, and thank you for joining us this afternoon. I should welcome as well this afternoon, in addition to our fully quorate set of members of the Legislation, Justice and Constitution Committee, Jenny Rathbone, and Sioned up there online with us as well, from the Equality and Social Justice Committee. You're very welcome indeed and I know you'll be taking part in proceedings.

So, we have lot of business in front of us today, but our first substantive item this afternoon is indeed the evidence session with Lord Bellamy. Lord Bellamy, I wonder if you'd like to just introduce yourself, and whether your colleagues want to do the same as well, please.

Thank you very much, Chairman. I'm Christopher Bellamy. I am Minister for justice, responsible for all matters in the House of Lords. In relation to my particular portfolio, I have responsibility for relations with the devolved administrations, but principally, also, in family law and civil law, as well as other related matters, including the constitutional matters, such as the Bill of Rights Bill. Perhaps my colleagues would also introduce themselves.

I'm Andrew Waldren. I'm the deputy director of rights policy in the Ministry of Justice.

Thank you.

Good afternoon. I'm Chris Jennings. I'm the executive director for His Majesty's Prison and Probation Service for Wales.

Lovely. Thank you very much. One housekeeping thing that I forgot to mention is that there's no need to fiddle with the microphones; they come on automatically. Okay. Well, if we can leap straight in, then, Lord Bellamy, could I ask you, first of all, a broad question: how do you work with Welsh Government to improve the administration of justice in Wales?

Chairman, thank you for that question. It is very much my priority to strengthen the inter-governmental framework for the administration of justice throughout the United Kingdom, but particularly in Wales. I would like, if I may, to begin by announcing that the long-heralded inter-ministerial group representing the four nations is now being set up. I'm very much hoping we shall have our first meeting before Easter 2023, and that will be a very good forum for exchanging experience and for discussing cross-Government inter-governmental issues, legal aid, prison reform, civil matters and so forth, and that'll be very positive. I'm very anxious we should work to strengthen the Welsh justice board and various other collaborative operations that I think are of enormous value to both sides.

That's very encouraging, and I know colleagues of mine will want to come back on particular items that they might want to see discussed within the inter-ministerial working on this, as well as on the board—some areas that are less contentious, or more contentious than others.

But I wonder if I could turn to the point of what's been described as the jagged edge of the Welsh criminal justice system—that interplay between Wales and England, the engagement between devolved and non-devolved organisations and services. You'll have seen today in the Labour Party piece of work with Gordon Brown, there's talk in there—I've only skimmed the surface—of youth justice and this, that and the other. It's long been talked about in terms of a Welsh context that the implementation of youth justice on the ground falls extensively to Welsh policy areas and Welsh organisations in Wales, yet the legal structure isn't there, and so on. How do you see that going forward? Do you see it as a jagged edge, or do you see it as something that could be managed perfectly fine and there's no jagged edge at all?

I think, Chairman, if I may, the broad answer to the question is that the wholesale devolution of the justice system in Wales, which would necessarily, we think, include the police, the courts, the judges, the legal profession, the probation service and the prison service, would involve very considerable upheaval and enormous difficulties. However, that said, the Government's position is that we should work very hard to make our existing structures and strategies work in the general interest. And, as I said a moment ago, the justice in Wales strategy group, the policing partnership board, the criminal justice in Wales boards and the four local criminal justice boards all have a very large part to play. I'm not sure that I would accept the 'jagged edge'. Vivid though the image is, I would respectfully suggest that through working collaboratively we can smooth that jagged edge and make it work successfully.

I'm going to bring Jenny in in a moment who wanted to come in on this particular aspect of our questioning, but I notice you didn't say 'impossible', you just said that there was an extensive range of barriers and hills to climb and so on. But, Alun.

Thank you. I was interested that you didn't make it a point of principle; you said there were enormous difficulties, which is a practical issue, isn't it? It's not a point of principle. There are difficulties in doing all sorts of different things that all governments deal with on a day-to-day basis—it's the nature of government. So, I take from that that you don't have a principled position on it, but it's a practical matter. From a point of view of looking at how we're seeking to address these issues by establishing a whole plethora of boards, committees, groups and the rest of it, it seems a chaotic means of delivering any policy area. Certainly, as somebody, like Huw, with experience of Government and delivering policy, you want to do it in as straightforward a way as possible; you don't want to have dozens of different groups all trying to work on it. That tells me that there's a more fundamental problem that isn't being addressed.

Well, I think, to that I'd say, first of all, don't read too much into what the Minister may say in this kind of committee. [Laughter.]

It's all we have to go on.

It's an interesting interpretation of Government. [Laughter.]

The Government's position, as far as I know, is that it is a matter of principle to keep a unified justice system for England and Wales; I don't think whatever I said should be interpreted as watering down that. That position of principle is very largely driven by practical considerations, I agree, but the kind of structures that we have in Wales are reproduced across the justice system in England as well, and I'm not sure there's anything specifically difficult about making the justice system in Wales work for everybody through the structures that we have.

But you accept that it's not working at the moment.

No, I don't accept that at all. I think the justice system—

So, why are we setting up these systems, then, if it's working?

Sorry?

So, why are we setting up all these different groups if it's working?

Well, they've been in existence for some time, and we can always improve matters. The justice system in Wales, relative to England, has quite a number of considerable achievements. The magistrates' courts are well ahead in Wales as compared to England. If you look at the new criminal justice dashboard, you can compare the performances. At the level of local justice boards, you can compare Dyfed-Powys with Gwent, and with every justice board in England as well, and you'll find, I think, in general, that the Welsh performance is perfectly respectable.

Jenny, over to you.

I don't doubt that there are problems in England too. Clearly, the cost of reoffending is £18 billion a year to the taxpayer. So, clearly there's plenty to be done on improving that. And, in the context of whether we should devolve services or not, I'll give you the example of The Clink Charity, which has been operating out of Cardiff prison since 2012. HM Prison Cardiff have decided not to renew the lease, of a service that has reduced recidivism to 25 per cent of the graduates, who are otherwise going into full-time jobs, compared with two thirds of prisoners reoffending. So, why are we abolishing something that works so well compared with what is going on within the criminal justice department at the moment?

Well, first of all, on the general point, it is a priority of the ministry and indeed the Secretary of State to reduce reoffending across the piece, and you'll find quite a number of actions being taken to ensure that prisoners on release have accommodation, that in every prison there is somebody looking after their employment, that they have a toolkit with a national insurance number, a bank account and all the things that they need for survival, and the reoffending rate is slowly falling. In relation to the specific question about The Clink Charity, perhaps I could ask Mr Jennings to answer that particular question.

Yes, of course. The work that we've been doing with the Clink in the kitchen next to Cardiff has been great for a long time. The problem we've had with it is a practical one; it's the location of the facility. It's at a prison where the prisoners themselves from Cardiff prison can't come outside the walls to go to work there. So, we've had to bus prisoners from Prescoed to provide the staff, if you like—the prisoner staff—for the kitchen.

The trainees, yes.

Yes, the trainees have had to come from Prescoed, which, as you'll appreciate, is not a particularly convenient thing to do—bus people quite some distance up the M4 to go to training. And actually, the job opportunities for the men in Prescoed prison, there's loads of them, so we have no problem in finding training and employment for men from Prescoed. They've all got the jobs that they need, so, actually, it was a practical decision, not a principled one around any step back from our desire to see reoffending being reduced, but a practical one that that facility, unfortunately, wasn't really working for the men.

Okay, but all the thousands of people who've gone through this are now not going to be able to benefit from this particular model of service delivery, and, clearly, having a restaurant in Cardiff is going to get you a lot more customers than if you have one in Usk.

No, but the reason for taking the decision is, 'What's most useful for the men in our system?', and that's the lens through which we were looking at this decision, not what was most beneficial to us. And actually, we can get lots of men into training opportunities that will see them go on to successful employment without needing that particular facility in Cardiff. So, we're continuing to work with The Clink Charity, because they do some brilliant stuff within the walls as well. So, we're looking to expand our work with them within the walls of the prisons across Wales, but that particular facility just didn't work anymore.

Okay. I think the concern is that improving recidivism is really difficult if we've got this jagged edge where some services are supposed to be joining up—housing, et cetera—and others are not devolved and they're all based in Whitehall.

I think, to Lord Bellamy's point, I've worked on both sides of the border. I jointly chair a meeting with the Welsh Government to look at issues around accommodation. I jointly chair a meeting with the Welsh Government to look at issues around offender health. I would have to do the same if I was running prisons and probation in England. I would have to go and meet with another Whitehall department, rather than the Welsh Government, but the problem would be the same. I'd still have to go and meet other people beyond the remit of the Ministry of Justice to look at the services to people as a whole, whether devolved or not.

Okay. We'll come back to women's—

We might return to this in some other form, but I wonder, Lord Bellamy—. I mean, it's helpful having these really practical illustrations of the discussions that need to be had on this, whether it's termed 'a jagged edge', or let's just call it diplomatically an interplay. But I'm just wondering, Lord Bellamy, before we go to another area of questioning, the Thomas commission looked at this and they said that the arrangements between devolved and non-devolved bodies are

'overly complex, are expensive and do not provide transparent accountability for effective performance.'

We may or may not describe it as 'a jagged edge', but, clearly, something's up. So, you were saying there might be another way to unpack this through more effective inter-governmental working on this. But how does that also deal then with the issue of accountability, so that a committee such as Jenny's and Sioned's can get to the bottom of, 'What's happening here with the Clink?', or bigger issues like youth justice, and so on?

Speaking personally, I'm entirely open to any means to get to the bottom of what we're all trying to do, and improving accountability wherever we can. I think I would just emphasise the point that Mr Jennings has made that, from the point of view of the Ministry of Justice, we do need to work very closely with the Department of Health and Social Care, with the Department for Work and Pensions and the Department for Education. So, we have an intrinsic—it's not a jagged edge; I wouldn't use the phrase 'jagged edge'—but we have an intrinsic interface issue with justice. If you want to look at the whole thing—as I think I would personally—if you want to look at the thing holistically, in terms of family health or a family problem that may manifest itself in crime, in housing, in debt, whatever, you have to work, we have to work with other agencies. And some of the problem-solving courts, which we may or may not come on to, are beginning to try to address this kind of problem. But it's new thinking about justice that is coming, and not specific to Wales, if I may say so. 

Yes. Well, let's turn to one of those areas, then, which is the accessibility to law—so, slightly different from the interplay of the policy issues—the actual clarity and accessibility of law to the practitioner, to the person who needs to rely on knowing exactly where the law lies and is it England, Wales, England and Wales, et cetera. You've responded to our committee's observations on this and said you do want to look at this and how it can work. Could you set out to the committee how we might deal with this, and how we, in your words, ensure that legal rights are clearly signposted for both reserved and devolved powers?

Well, I think, first of all, we've got a number of recommendations in the Thomas report around digital services and court services, and sources and signposting being available in both languages, and we fully support those recommendations. I think, specifically, they're recommendation 20 and recommendation 54. And we'll do our best to implement that as fully as we possibly can. I think there is already a His Majesty's Courts and Tribunals Service Welsh language service, and that can always be built on and developed. 

In general terms—and this again, if I may say so, is a cross-jurisdictional problem, which is why I think the inter-ministerial group is going to be so important—we are on the threshold of working through an enormous digital revolution as to how we make best use of that revolution in terms of people being able to find information online, because most people now go first of all to Google and look there; they don't go to the high-street solicitor anymore firstly. And it's where you go from there, how early intervention works, whether there is a system where, before court, we should be thinking positively of some sort of mediation, how you should be relating to other agencies—for example, there are family hubs being established—and should you have a legal presence in that set-up, which means close arrangements with the Department of Health, and so forth and so on? All these are, in my view at least, very exciting possibilities for having a really modernised justice system, which, in a sense, moves away from the somewhat adversarial nature of the justice system in its traditional form to much more of a problem-solving approach, and I'm sure Wales will have an enormous amount of experience and thinking to contribute to that process.

And that becomes a really interesting thing for us here in the Senedd, but, in wider civic and legal society in Wales, it's how we engage with that and put some of that experience forward. 

Well, I think so. I see no lack of engagement in terms of Wales. I think I should just say, if I might, wearing a completely different hat, I had the job of doing a review of legal aid in the criminal area quite recently, and the contribution of Wales—members of the law society of Swansea in particular, Cardiff University, and solicitors and other lawyers all over the country, whether in Haverfordwest or Llandrindod Wells, or Pontypridd or Caernarfon—was extremely influential. So, you should never underestimate, if I may say so to this committee, the potential influence that Wales has on the way things develop. 

That's good to hear. Peredur. 

You mentioned the Commission on Justice in Wales. I was just wondering—and you've mentioned some of the Thomas commission's recommendations—

Yes. 

How are you taking those recommendations forward, the ones that fall within your remit?

Well, there are five, I believe, that fall within our remit. Two of them relate to digital court services. One relates to the administrative court. One relates to coroner services available in Welsh, and one relates to Wales-specific data, which I think—that last one—I would attach particular importance to. As I said a moment ago, there is already a very considerable disaggregation of data available now on the new criminal justice dashboard, but my officials are working very closely with yours to work out where we go next. Is that right, Chris?

Yes, if I may just add, there were 14 in total that were prioritised in a joint piece of work between the Welsh Government and the Ministry of Justice that we thought we should work on together, five of which, as Lord Bellamy has said, we think we can definitely move forward on, and there are nine more that we're still working through the detail of, and I think Lord Bellamy has mentioned the five that we are looking to take forward now. And the last one, around data, we are working really closely with Welsh Government on just to clarify exactly what the ask will be: what is it? What data would they like to see disaggregated? And once we know what that ask is, we can then consider whether we can deliver on it.

And those nine that you're not too sure about, what work is being done around those, and where would you assess that you are against those recommendations?

Well, let me go first on that. There is one that I think is unlikely to proceed, which is a proposal to change the age of criminal responsibility for a child, where the Government's view is that we should have one age across England and Wales. Another of the remainder relates to Lord Thomas's suggestion that there should be, as it were, a reserved place for a Welsh judge on the Supreme Court, and on that the Government's position is that the Constitutional Reform Act 2005 already provides that all parts of the United Kingdom should be represented on the Supreme Court. For example, there is no reserved position for a judge from Northern Ireland on the Supreme Court. The Scottish judges have a special position because of the terms of the Act of Union—they've been there for 200 or 300 years plus. But to respect the requirement that all parts of the United Kingdom should be represented, it is very much hoped that good Welsh candidates for the Supreme Court will come forward, as they have in the past, and, with judges like Lord Thomas and Lord Lloyd-Jones, Wales has been extremely well represented on the Supreme Court. The Government's present position is that we don't see any need for a constitutional change in this area because in practice there is Welsh representation on that court, and normally that will continue. There are a number of other recommendation there—the other seven. We can go through them in detail if you like, but it may take a little bit of time for me to explain our position on all of them. It's very much up to you.

I don't know if we've got the time, Chair.

We might return to them if we've got some time.

Yes. I'm very happy to do it, but it's entirely up to you. I'm afraid my red badge keeps falling off—I'll leave it on the floor for the time being.

Maybe if we don't have time, Chair—

I'm very happy—we can sit down together afterwards, or at some other time.

Or write to us on that. That would be good. In your letter of 3 November, you said that the

'MoJ and Welsh Government have been working closely to identify and address those recommendations',

which you both see as a priority. Can you outline the engagement that you've had with Welsh Government? Are those, the ones that you mentioned earlier, the ones that you've jointly prioritised, or is it mainly from your side or the other side?

Yes. I think, for the detail, I'll ask Mr Jennings to fill us in, if I may.

They're jointly prioritised through a sort of triage process that we've worked through with the Welsh Government to agree, and there's been extensive ministerial engagement on that since the Thomas commission was published, some time ago now, obviously. Slightly less during COVID, I think, probably for understandable reasons, but, either side of that, extensive ministerial engagement and, certainly at official level, regular conversations about whether they're the right ones and where we're up to. So, there's a lot of work going on and, I suggest, some good oversight from Ministers, both in Welsh Government and UK Government, to ensure that progress is being taken forward.

So, that conversation along the M4 is working well?

In my view, very well, yes.

Thank you. So, wearing a slightly different hat, as the Chair of finance as well, but you'd probably almost expect me to ask something about the financial implications, in the letter you also said that the financial implications of implementing the recommendations would have to be assessed. How is the work going along those lines?

That's part of the work that is ongoing. So, out of those nine that we're still considering—albeit, as Lord Bellamy has said, a couple of them look less likely as ones that might proceed—part of the work we're doing is to work out what it might cost to implement some of those, as well as whether or not they're desirable to implement, if that's—. So, the financial considerations are being looked at. 

And are you expecting substantial financial implications, or is it going to be less so?

Some of them may be substantial. We don't know about all of them yet, but there could be some substantial financial implications. 

If I was to use data as an example, actually, whilst, as I said, we haven't quite seen the exact shopping list of what that data might look like, but if that required a rework of a computer system to collect data in a completely different way, then obviously those things get complicated, don't they, anytime you do anything with IT. It can be costly. But, we don't know that yet because we haven't seen the list. So, it's definitely a lens we're aware of that we need to consider. 

And whilst you've been considering the recommendations and the cost of those recommendations, has the Ministry of Justice made any assessment of the impact of the cost of establishing a separate Welsh legal jurisdiction?

No. I believe the last time that was done was by the Silk commission, which was some time ago, and Lord Thomas's report wasn't costed. 

Okay. Thank you. 

Thank you, Peredur. We just want to make sure with colleagues that we check before the end of the meeting that we—this isn't like Westminster; normally there are pieces of paper being passed at the back there and shuffled along or there are quiet conversations—make sure that we've got that on record, because it was helpful. Thank you very much. Alun, over to you.

Thank you. I'm interested in what you're saying about the way in which justice is administered in Wales. My experience of holding ministerial office is that it's administered especially badly, I have to say, both at a practical level—. I'm sorry I don't accept the assurances you've given us about the delivery of services within the secure estate. I'm sure you do have many meetings, but I'm not sure they actually deliver the services at a level that people in the secure estate have a right to expect. That's my experience as a Minister with responsibility for justice policy. So, I'm interested, therefore, as to why the UK Government believes that they are right on this.

I'm just wondering if you can just open up a little more than you have, because Lord Thomas—and you will know John Thomas, and you'll know that he's quite a forthright individual, shall we say—and you'll know that he's not somebody who has the wool pulled over his eyes in any way. Now, he took over 200 written representations, 150 witnesses, 80 public events up and down the country, and reached his conclusions. But, the UK Government knows best. Now, I'm interested in that, because, to me, that feels quite an imperial mindset, if you don't mind me saying so: 'We don't mind you having some influence, you Welsh people, but we're not going to allow you to have an element of management or control', which you do propose for places like Manchester, of course, in terms of policing and the rest of it. And so there seems to be something there that is dictating a response from the UK Government. I think Lord Thomas's report was rejected by the UK Government before there was barely time to consider it seriously. So, I'm interested as to where the UK Government wants to go. Is it going to be a continuation of this 'London knows best'? 

Let me try to answer that in this way: I would not accept that the UK Government has any, quote, 'imperial' ambitions in this respect. I would not accept that the administration of justice in Wales is in some dire straits. If you have particular problems or have encountered particular problems, I would be delighted to know about them so that we can deal with them. But, the premise upon which the question is based is not one that I'm able to accept.

I think the essential question is whether the structural upheaval involved in changing the arrangements in relation to the whole system, because you can't just do it for the courts—for the police, for the Crown Prosecution Service, for the court system, for HMCTS, for the legal profession, for the prisons and for the probation services—is really justified in the public interest. Lord Thomas's report is not costed, and the UK Government is not convinced that this is the way to go. My approach is to say—on this as on other issues—let us do our very best to make the system work properly, so that it is, and is seen to be, a horizontal relationship and not a vertical relationship. I would respectfully hope we can achieve that together within the existing structures.

As an elected representative of people in Wales, it doesn't feel like that, I have to say. Certainly, when I was a Minister in the Welsh Government, it didn't feel like that. It really did feel like taking my little briefcase up to London, sitting in Petty France and being told what had been decided when I wasn't in the room. That's frankly how it felt, and it didn't feel very comfortable. And I speak as a unionist—this isn't an agenda that Peredur would pursue. I wanted to make the system work. I felt that the UK Government was a problem, bluntly, in terms of making it work, in not recognising the issues that we were facing. One of the things that I found that surprised me, quite honestly, when I took responsibility for justice policy, was the extent to which it's failing. I thought the lord justice's report laid that out—I don't think there's any need for me to spend your time this afternoon running through that. I thought it was very clear there, actually. I haven't heard any Minister—not yourself, or anybody else—from the UK Government actually responding in detail to the points that were made there. I saw real failure in the system. 

If I may express a personal view, I'm very sorry that you felt like that. I think the way forward is to make every—. As I've said now several times, and I don't wish to repeat myself, because it's very boring, I think we can make this work in a horizontal way, not a vertical way. That's my personal intention as far as I can deliver it.

I welcome that. I don't have any issue with Ministers in the UK Government. I worked with David Gauke and Rory Stewart at the time. 

You're probably sceptical about it, but I think—

No, I think we had a good working relationship, quite frankly. There wasn't a personal issue in that I thought they were bad people doing bad things. But I felt that if we are going to make the United Kingdom work, then we've got to have coherent structures of governance.

Yes, I agree.

And we don't have that at the moment, really.

Well, let's work on that.

Part of that is the UK Government recognising that change is required, because making the UK work has to be a joint endeavour, and not us doing as we're told.

I agree with that as well.

Perhaps it would be useful, then—and I'm grateful to you for that—that we actually establish a structure between the Welsh Government and the United Kingdom Government to work on some of these matters. Because at the moment, we seem to be trying to manage problems rather than solve them.

Well, let's have a good look at that idea. I'm hoping the inter-ministerial group will take the matter further, and that's quite a significant development in the justice area. My personal inclination would be to worry less about formal structures than about finding practical solutions and meeting people's aspirations. But if you want to further discuss further structures, then by all means, I'm open to further discussion.

My experience is that if the structures don't work, nothing works, frankly, if I'm quite honest with you. You need a form of governance in the United Kingdom, and a constitutional settlement in the United Kingdom, that enables those of us who are Members of Governments and legislatures in different places to work together for the benefit of the people who put us here, rather than trying to overcome the barriers that are created by the structures. So, I don't think you can quite dismiss structures, I'm afraid.

Well, the wider constitutional question is slightly above my pay grade—

I'm sure that's not the case.

Alun, did you want to touch on the Cardiff civil justice centre as well?

I wasn't going to run through all the stuff in the commission's report, but one of the things that really stood out, of course, was what John Thomas said about that. I believe you're visiting the Cardiff civil justice centre today during this visit. I don't know if you've been there already or—

No, I am going there as soon as I am released from here.

In that case, it might be useful, Chair, if the Minister were to write to us with his impressions of that place, when he has the opportunity to.

I'm very happy to write to you. I will not comment further till I've seen it.

Lord Bellamy and colleagues, I can see already that we're not going to cover everything that we wanted to today within the time available. This is unfair to put it on you, but do you have to leave bang on half past the hour?

I think we are scheduled for half past the hour. Is that right?

Yes, we'll head towards that. We'll try and get out on time. So, colleagues, we'll need to speed up a little—

I'm in your hands, Chairman. I've got no particular engagements, except to go to the civil justice centre.

There we are. Brilliant. James.

I'll be as succinct as I can. Thank you, Lord Bellamy. From my point of view, I'm really pleased to see the engagement you're having with the Welsh Government and how you are keen to work across Government, in that lateral approach, to actually improve the justice system here in Wales. I think that's really positive and anything you can do to further that is really good. But I want to talk about access to justice, if that's okay. You've talked already that you'd done a review into legal aid in Wales, and I was just wondering what you're doing to improve access to justice for Welsh people.

The criminal legal aid reforms are in train. I did the initial review, but I'm actually recused from talking about what the ministry did to implement my own recommendations. I can't mark my own homework. But we are upgrading the means test in civil and criminal legal aid. We are about to embark on a further review of civil legal aid. We have a grants programme that has recently been extended to various charitable organisations—I think it's about £12 million over the next three years—for early legal advice, support at court, and that sort of thing.

The whole question of how we approach access to justice, I think, is developing quite fast. I would particularly mention the pilot we have in family law in north Wales with Judge Gaynor Lloyd to promote much earlier intervention by the Children and Family Court Advisory and Support Service and the justice system so that we catch things early. I'm very much personally in favour of trying to shift things early on, which is why I talked about digital signposting first of all, so people have some idea where to go, pre-court or early court mediation and other areas to tackle problems so that it's not just, 'I'm right', 'No, I'm right', and the judge decides who's right and who's wrong. That's a very binary sort of system to deal with problems that have many shades of grey. That's the way we should go. I think Wales is playing a very leading part in the thinking on that.

Thank you very much, Lord Bellamy. With your indulgence, Chair, I had some questions later on to ask about the Human Rights Act 1998. In the interest of time, I think they're very important to ask now so we don't miss them, if that's okay.

Yes, yes.

Could you just give us an update, Lord Bellamy, on where the UK Government are in relation to reform to the Human Rights Act?

The Government's present position is that they'll proceed with reform to the Human Rights Act. I can't tell you when exactly; it's a question of when there will be parliamentary time. It's quite a crowded legislative programme at the moment. The important thing, I think, to underline is that we remain in the convention, that all the convention rights are in the Bill. As I see it, this is essentially, in broad terms, a rebalancing exercise to balance the constitutional relationship between, first of all, Parliament and the courts, between individual rights and individual responsibilities, and between the public interest and the individual interest, and at the same time to more entrench freedom of speech, protection of journalist sources, and freedom of religion. So, it's, I hope, a balanced approach. I know there are very serious reservations and hesitations about this Bill down here in Wales. We need to seek legislative consent under the Sewel convention. I will do my best to articulate what the Bill is trying to do and to persuade you it's not the ogre that you may think it is, so that, in due course, we can understand each other much better and possibly even achieve legislative consent.

You talk about legislative consent; I think I'd be very interested to know what assessment the Ministry of Justice has made of the impact on the devolution settlement here in Wales. Have you done that assessment yet?

There are assessments of that kind in train. I think the impact is not thought to be significant, and it's not thought that it interferes with the devolution settlement. But, if there are points to be made on that issue, I shall take them very seriously indeed.

That's good to hear. I've got a couple more questions on this. We've got our international obligations as the United Kingdom as well. Have you any idea what impact the Bill would have on international obligations we have with other countries?

We think none.

You think none. Definitely?

Yes, definitely.

Okay. Have you engaged with other Governments as well across the United Kingdom about this? Have you had engagement with Scotland and the Northern Ireland Assembly?

I am in the process. As with the Welsh Government, I had an initial engagement in the summer, and I will re-engage with the Welsh Government, the Scottish Government and the Northern Irish authorities or Government, depending on which it is, as soon as we have a date for the Bill.

Okay. It would be very useful if, perhaps in the future when the Bill is coming forward, maybe you'd like to come back again, Lord Bellamy, to do another session with us so we can get underneath this, because if it does have legislative impacts on Wales it would be very good for us to scrutinise—

Let us, together, get underneath the skin of all of this, and other propositions.

Grand. Thank you.

That's very welcome indeed. Thanks, James. That was really helpful.

As you say, quite rightly, you can't be marking your own homework, so we're not going to probe into the independent review of criminal legal aid today. But, can I just—? Aside of that, you mentioned in a praiseworthy way earlier on the Law Society in Wales and the representations they've made to various issues, to be honest with you, within law and justice, and they are indeed somebody that we turn to. It's worth reflecting, separate from the independent review, their observations as we approached this committee session today. I just wonder whether you have any thoughts on it or you want to take this back. They have made clear their feelings to us that, in terms of proper legal aid funding—and I'm just citing from something they've sent to us—the professional career path of criminal law is unsustainable as a professional option, and that there's a deeply worrying reduction in real access to justice following the proposed pay settlement for solicitors compared to that what's been offered to barristers. And of course their own research suggests that duty solicitors, which is a key aspect of access to justice and to the law, are going to decrease by around 20 per cent by 2025. What is the Government's response to that, separate from the independent review? Those are really serious concerns that are laid by the Law Society. Of course, they have a clear interest themselves, but they speak normally, as you said earlier, with authority on behalf of the legal profession.

As I say, I have to tread rather carefully, because I can't really talk about the Government's response to what I personally recommended, but I hope that they will feel reassured by the Government's response that was published last week. I don't know when that letter that you've quoted was sent to you, but there is a very recent response by the Government and it does substantially increase, for example, the police station fees for duty solicitors. Certainly, my personal recommendation was in line with the general theme that we've been discussing—that the more we can do to properly remunerate the earlier end of the criminal justice system, the more we can make it an effective system, instead of paying for the very expensive state trial at the end of the process. So, I would express the hope that the outcome of the review of criminal legal aid does result in a sustainable legal profession. My review was said to be a first step, and it is a first step, and on we go from there. 

Thank you. Thank you very much for that. Sioned.

Chairman, if you'd like me to stay for another 15 minutes, or half an hour, or whatever it is, I'm very happy to do whatever you'd like.

That's very kind. Perhaps another 10 minutes or so—yes, that would be brilliant.

Whatever you like. I'm in your hands.

Thank you very much. Sioned, over to you.

Yes, sorry. Forgive me.

Thank you for the question. In relation to the jagged edge, what I was seeking to explain, I think, is that there is an interface between justice and health and education and social problems. That interface exists in England as it does in Wales. It's not really any different in England as it is in Wales and, in the Ministry of Justice, we have to deal with the Department of Health and Social Care, the Department for Education, et cetera, et cetera, et cetera.

In terms of the specific interests that you mentioned—and I fully understand that these are very important issues; I don't, in any way, underestimate them—I think, in Wales in particular, enormous efforts have been made, particularly, if I can just mention, in relation to women's justice in particular. We've got the women's justice blueprint work since 2019, we've got the Visiting Mum project for women in prison in relation to Wales; we've not quite yet got the residential centre in Swansea, because I'm afraid the local authority has refused us planning permission—we are appealing, with the support of the Welsh Government. We are doing as much as we can, I think, in the women's space. We're seriously discussing a domestic abuse problem-solving court for Merthyr Tydfil. That may well emerge on the lines of other problem-solving courts elsewhere. And, in terms of ethnic minorities, again, it is a real problem, and a social problem as well. We have an anti-racism special project, chaired by Mr Jennings, for Wales, and we're working very hard on these intractable problems. Would you like to add to that, Chris?

Thanks, Lord Bellamy. I think the only thing that I would add is that, things like the changing to the magistrates sentencing powers, what magistrates choose to do with those powers as an independent judiciary is, of course, a matter for them, not a matter for policy makers, because judges and magistrates make individual decisions, don't they, on the cases in front of them. So, I have to be a bit mindful of the respect for the judiciary in terms of that independence for commenting on disproportionality in that regard. But outside of the sphere of what judges and magistrates decide to do, as Lord Bellamy says, I think, in Wales, we've got a really strong track record of working really closely with statutory and non-statutory partners in Wales for both women and young people under the terms of the blueprints.

And, only last week, I was lucky enough to share a stage with the Minister for Social Justice in an event in Cardiff, which was packed to the rafters, with statutory and non-statutory partners all coming together still enthused by the idea that we can deliver better outcomes for women in the justice system in Wales. So, I don't think these changes that you refer to do impact our ability to make sure that we're providing appropriate support, and trying to get the right outcomes for minorities in Wales, whether they're ethnic minorities or any other minority group.  

Mr Jennings on the pre-sentencing reports, I think is the question. 

Thank you. I'm afraid, I'm not exactly sure which recommendation that might be—that we may have rejected—but it's absolutely our practice and our aim for probation officers in Wales to ensure that we have pre-sentence reports in as many cases as we possibly can, and particularly for those who may be more vulnerable or from minority groups. We've just, over the last year, undertaken a round of engagement events with all the sentencers across Wales, specifically looking at women, and trying to do what we can to share our knowledge about what short-term sentences do for women in the justice system. Of course, again, it's a matter for the judges and magistrates whether they continue to give those sentences; it's not for me to comment on. But we have done our best to ensure that they have all the information that's appropriate available to them. So, there may have been a specific recommendation that we didn't sign up to, I don't know, but it's absolutely our practice and our effort to make sure that we are giving those pre-sentence reports in all those sorts of instances, and I'm happy to provide some more information about that. 

Thank you. It was the justice committee's inquiry into women in prison in October 2022, that was the recommendation. 

Well, we have our anti-racism strategy, which I'll ask Mr Jennings to comment on. 

I think, just before I go to a little bit of detail on that, of course, the Ministry of Justice has a particular role to play in the overall system, doesn't it? So the actions of the police, for example, are not within the remit of the Ministry of Justice. So some elements of disproportionality are not within the Ministry of Justice's remit. If I may, and, again, referring to the nature of sentences that may be imposed, that's also not a matter for us, because that's a matter for the judiciary. But the things that are a matter for us, in terms of how, if ethnic minority people do end up in prison or in probation services, then working with our partners—. The Deputy Police and Crime Commissioner for South Wales, chief constable Pam Kelly and myself, we did, only a couple of months ago, launch an anti-racism plan that aligned with the Welsh Government's anti-racism plan more broadly to make sure that we are doing everything that we can to ensure that there is no disproportionality within the services for which we are responsible.

A big part of that is around continuing to increase cultural awareness amongst all of our staff across the system so that they understand the impact that they might be having, working with ethnic minorities, and that's a really big piece of work that we've got to do. But, of course, these issues are not ones that I would say stop at the door of the Ministry of Justice, because our staff are, of course, citizens of Wales who go to school in Wales and go to pubs in Wales, and it's a wider society sort of thing that we're trying to play our part in. But, it's something that we're putting a huge amount of effort into.

Sioned, do you mind if I bring James in, just for a moment? James.

It's interesting that you say that. We all talk about plans and strategies to make sure that magistrates and judges know all of the different plans that we've got around racism and about ethnic minorities and different groups, but how, on the ground, do you actually make sure that they're implementing the strategies that you've put in place? I'm interested to know that, because I sat in local government one time as a cabinet member. You put in all of these lovely strategies, but how do you make sure that people on the ground, who are actually supposed to be delivering these strategies, know about them—that they're up to date on issues and they're actually delivered on the ground, and it's not something that they just read and say, 'Thank you very much', put it in the book and never look at it again?

Well, if I just take that first, as Mr Jennings says, from the point of view of the Ministry of Justice, you can't control the numbers of ethnic minorities that enter the system; that's a police matter or a social matter. We deal with people once they're in the system. So, the first question is, 'Are they dealt with properly in the courts?' That is a matter, essentially, for judicial training, judicial awareness and judicial education. That, again, because of the independence of the judiciary, is a matter for the Judicial College and for the Lord Chief Justice, and he takes these matters very seriously. So, we do our very best to encourage the judges to be aware of all of these issues. 

The next question is whether there is discrimination in terms of sentencing, or in terms of charging. There's no evidence that I know of, in terms of charging by the Crown Prosecution Service, that because you're an ethnic minority you get charged more often than a non-ethnic person. In terms of sentencing, that is something that will be kept under review, but there doesn't seem to be much evidence about discrimination in sentencing. But, if there were, that, again, would be a very serious matter for the Sentencing Council and the courts. Then there's the question of treatment in prisons and in probation, and that's what Mr Jennings is particularly talking about, in terms of educating the prison service and other supporters to make sure that we root out even unconscious discrimination in the treatment of these offenders. What more can one do, I think? We are doing our best, and if there are further things that we can do, please let us know what we should be doing and we will give that serious consideration.

Jenny.

The Equality and Social Justice Committee has taken evidence from the Magistrates' Association, so we can tell you that half of the magistrates had never heard of the women's justice blueprint—that comes from their chief executive—and we were also told by the Magistrates' Association that they're reluctant to give community sentences to women because that means that they'd have to mix with men. It seems to me that it's not beyond the wit of man to have a separate stream of community sentences; there's plenty that needs doing in the community.

I think the question that I have, really, is—and it's very good to know that you're appealing the decision made by Swansea council about the residential women's centre there—but it's difficult, is it not, for magistrates to give people alternatives to prison if the alternatives in Wales don't exist. So, instead, we are sending them to, mainly, either Eastwood Park or Styal, which are some distance away from where their families are, with all of the consequences that that has for their families. That's one centre with 12 places that we are still endeavouring to set up. Could you just tell us the extent of the UK Government's ambition to provide serious alternatives to incarceration for women, given the Corston report 15 years ago?

Well, again, I'll ask Mr Jennings to deal with that. It is true there is no women's prison in Wales, and therefore there is a difficulty there. We do our best with the Visiting Mums programme to mitigate that a little bit. I can't quite understand why the magistrate should have difficulty in providing community service orders in appropriate cases. 

Well, perhaps we can send you the—

Yes, I'd be interested. Sentencing, of course, again is not for the ministry, it's for the judiciary, but it sounds to me very odd, and, if they've not heard of the female offenders programme, well, that's something that we should look into and correct, certainly. In terms of what we can do to have other alternative, hostel-type accommodation and so forth, like the residential centre, Chris, would you like to add?

I think the first step is we've got to get that centre in Swansea up and running, because it's a step in the right direction. It's not going to meet the needs of all women in Wales, because, as you rightly say, it's 12 beds for 12 weeks, so it's 50 women a year—48 women a year—so, it's not going to meet all of the needs for all of the women in Wales and provide that alternative. But we obviously already do have a robust set of alternative community sentencing options that the judiciary can choose. So, it's not only prison or the residential centre; there are a lot of things they can do with women in the existing legislative framework. It's disappointing to hear that they feel that—. Bearing in mind the Magistrates' Association is obviously a member organisation, not all of the magistracy, it's still disappointing to hear that only half of their members, or less than half of their members, are aware of the work we're doing with female offenders, despite us having run a series of events. So, we must keep trying to run more events, and try and persuade magistrates, who are volunteers, of course, to give up more of their time to come along. It's their free time, so I appreciate it's not straightforward for magistrates, but we'll keep putting the events on and, hopefully, they'll come.

Twenty-four million pounds has been allocated to support women in or at risk of contact of the criminal justice system over the next three years. That's excellent, but to what extent do the Welsh Government and its partners have any control or influence over the development of the Swansea centre, or any other centre, to serve other women across Wales?

I mean, if I may—

Yes, please—carry on.

I meet the Minister for Social Justice probably as much as I meet my own Ministers in UK Government, and her officials on a daily basis are in contact, so I would think they've got a huge opportunity to influence both those things—how that money will be spent in Wales, and the residential women's centre, which I see as a joint project. Whilst funded by UK Government, I see it operationally as a joint project between ourselves, the police and crime commissioner, Swansea council, Welsh Government services, all sorts of people. So, it's not—

So, if the Swansea venture doesn't come off, for whatever reason, it would be perfectly possible to vire that money into other ways of avoiding women being sent into custodial sentences. 

I don't think it's up to me how that money would be used if that project fell. It would be a ministerial decision that I'd have to get a decision from Ministers on. 

Okay. So, that would be a UK ministerial decision.

Yes, but, before I submitted advice to my Ministers, I would be having that conversation with Welsh Government, so that Welsh Government's views would be known in any decision that UK Government Ministers were taking. 

Okay, but given the cost of—

I would have to do that—[Inaudible.]—department in the UK.

—women in prison, both to their children, because it normally leads to the children going into care—. I really want to get a sense of the urgency, given that it's 15 years since Jean Corston wrote that report, and here we are. Governments of both stripes are to blame here, but we just haven't got the pace to make those changes. 

What I could—. The other thing I can add is that we are trialling in Birmingham problem-solving courts specifically for female offenders. There's been a similar trial in Manchester for female offenders, and there is really good evidence emerging that that does reduce the rate of offending and there are proper, community-based alternatives to sentencing. So, I'm hoping, if those trends continue, again, along the lines of our earlier discussion about family law and so forth, we can make a real impact on female offending. Nobody wants to see female offenders in prison. The Government as a whole is about to update the female offender strategy 2018, and all I can say, Mrs Rathbone, is that we are working on it as hard as we can. 

That's good to know. 

Thank you, Jenny. 

Okay, thank you. We are over time. We've only got a couple of other questions, and we'd like to get them in. We really appreciate the generosity of you spending a few more minutes with us; we're nearly there—we are. Can I just ask, Peredur, James, is there anything else you wanted to ask in terms of human rights, the Bill, retained EU law and so on? 

If I may, Chair, I'd just like to know what assessment the Ministry of Justice has made of the impact that the Bill of Rights Bill will have on Welsh citizens to uphold the rights under the European convention on human rights. And then, if that Bill is passed and the retained EU law Bill come together, they could alter the human rights landscape in the UK. Have you assessed that impact? 

Our present assessment is that it shouldn't alter the fundamentals of the human rights structure in the UK, or affect the devolution settlement. If there are particular points on that that are of concern, please let me know and we will work on it. In relation to retained EU law, from the point of view of the Ministry of Justice, which is my responsibility, it's rather a peripheral operation because there's not much retained EU law in our justice area; there are a few things on private and international law and so forth. So, from a Ministry of Justice point of view, I think these fears will probably turn out to be unfounded; I hope so, anyway. 

Okay. 

Thank you for that answer. It might be that we try and take the opportunity as a committee, or committees, to glean some information from some of the expert advice that is out there in legal and civil society in Wales on their concerns that they currently have on the combined impact of these two pieces. Just one final question I have here, and you mentioned that it's peripheral to the Ministry of Justice. It's in connection with the retained EU law Bill and the revocation of those. One of the things that's been stressed to us time and time again is that the cut-off date of 2023, with the expanding number of regulations that may or may not be within it—. Originally, at one time, I think it was—. Well, it's gone up to 3,800 from 2,500.

Yes, they found some more somewhere. 

And as the analysis has been done—. So, the worry is: will ever everything that needs to be within it, will there be things that are missed or omitted by chance or error, or simply because of time pressures? So, can I ask you quite seriously, do you have any concerns as Ministry of Justice that we could come unstuck here because of an unseemly rush towards revocation of these items from the statute book, and we miss things, we make errors, because the worst way to make law is to speed at it because of some arbitrary deadline? 

Well, I think my response to that would be that the Government, as a Government, wouldn't wish to see lacuna mistakes or other errors being made in this process. When we withdrew from the EU, the whole point of having retained EU law was to maintain legal certainty, and I'm sure that principle continues. If you have concerns about the speed at which this may be proceeding, then you should make your concerns known as vigorously as you feel you should. 

We will. 

It's still a Bill; it's not an Act yet. It's still a Bill. 

It's still a Bill. [Laughter.] It's soft and—. It's being moulded as we speak, but you're holding out the hope that it's still a Bill. 

You must make your points as you see fit. 

Okay, thank you very much. Colleagues, thank you very much. Lord Bellamy and your colleagues, thank you very much for being with us today here in person—we really appreciated it—and for spending a few more minutes extra than we'd advised you of in advance. We do appreciate that. We hope you have a good visit for the rest of the day as well. You'll be aware that the visit that you're making now, of course, has been commented upon not only by Lord Thomas in terms of his estimation and others in the legal service of the substantive nature of it, but also by the Counsel General and by others. So, it's going to be an interesting visit. We've made our views as a committee very clear as far as we—

Yes, we have met the Counsel General; it's always productive to meet him.

Good. Well, I'm glad you're going there—that really is welcome as well. Thank you so much. We'll send you a transcript. If it's not too much of an imposition, if there are areas that we just want to follow up on, we might write to you as well.

Please do. Look, I really mean it—if you've got concerns, as you clearly have, it's much better that they're out on the table and I see what I can do.

That's brilliant. Thank you very much indeed. Thank you.

Thank you.

Diolch yn fawr iawn. So, we will let Lord Bellamy and his colleagues depart there, with our best wishes, and also our colleagues from our sister committee. Jenny, thank you very much.

Thank you very much for allowing me to join you.

No, thank you very much. Thank you, Sioned.

Diolch yn fawr. Bye. Diolch.

Now, colleagues, can I suggest that, at this moment, if you're happy, we will take a very short break from public proceedings, and then we'll reconvene in 10 minutes. Good. Thank you very much.

Croeso nôl. We're back in public session this afternoon with the Legislation, Justice and Constitution Committee, having just had an evidence session. We took a short break, but now we are back to our agenda, and we're on to item 3, which, as normal, are instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. Under this, we have several items, starting with the Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 2) Order 2022. That's item 3.1. Is there anything in particular we need to note about this?

There was just one technical reporting point to note, that the Order in Council was made by His Majesty and laid before each of the four legislatures in the UK, so it's in English only.

Okay. Can we agree with that technical reporting point there? We can. So, we go on to item 3.2, the National Health Service (Charges to Overseas Visitors) (Amendment) (No. 4) (Wales) Regulations 2022. And again, any significant issues with this? Any issues with this?

Yes, there were two merits points on this one. The first was just noting that no consultation has been carried out, and it sets out the explanation provided in the explanatory memorandum for this. The second merits point asks the Welsh Government why the explanatory memorandum has not been made available in Welsh. In response, the Welsh Government explained that it considered a Welsh language version of the explanatory memorandum to be unnecessary, due to the narrow and specific nature of the regulations and the small target audience.

Okay. And we've heard that sort of explanation before; it's not unprecedented that we have that on something that's very narrow, very short. [Interruption.] Well, we can return to this, actually, in private discussion, but it is an interesting one. When it's particularly narrow, particularly short, this is not without precedent that it's done it, but it's worth probably revisiting when we go into private session, particularly so that we've got clarity for all Members on where we sometimes make a representation to Welsh Government and where sometimes we go, 'Okay'. I can see some quizzical faces.

Look, it's certainly not without precedent, but it's the worst possible explanation—

Yes, exactly.

—a Government could have provided us with, but we can discuss it.

We'll discuss it in private, but I don't really know how it isn't contrary to the Welsh Language Act 1993.

We'll come back to it, and if we decide to take some action because of it, we might return to it. But are you happy with agreeing the action points? You are. Great.

Let's go to item 3.3. It's an affirmative resolution instrument: the Food and Feed (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2022. And we have there, under paper 6, a draft report. Now, we have five technical points you've identified here for reporting.

Yes. Two of these relate to apparent defective drafting, and the other three note inconsistencies between the Welsh and English texts of the regulations. So, we've requested a Welsh Government response on all five of those points, and we're waiting to receive that.

That's great. Content with those reporting points? We are.

Item 4, then, are instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 that we have previously considered. And the first of these is 4.1, so it's SL(6)280, the Renting Homes (Wales) Act 2016 (Saving and Transitional Provisions) Regulations 2022. This we considered on 28 November, we laid our report the following day, and I just draw Members' attention to the Welsh Government's response, which has been received. Beyond the response, nothing particular to note on this, or is there?

I'll just draw your attention to the response on reporting point 7: this was the merits point relating to the way that the regulations define some terms by reference to the Rent Act 1977, which could cause some difficulties for readers and accessibility issues. In response, the Welsh Government says it's content that the defined terms operate as drafted, but it is exploring with the SI registrar whether they can provide any further assistance to the reader by way of a correction slip.

Okay. That's a helpful response. Thank you for that. I think we're happy to agree that.

Item 4.2 is SL(6)282, the School Teachers' Pay and Conditions (Wales) Order 2022, and we have a report and the Welsh Government response. We looked at this on 28 November, laid our report the following day, and we've had the report. Anything to note on that?

Welsh Government confirms that it's going to correct the errors in the explanatory memorandum, so that's a good response.

Good. Thank you very much for that. I think we're happy to agree that.

So, we turn to item 5, where we have statutory instruments requiring Senedd consent, what we now term 'SICMs', in that horrible abbreviation: statutory instruments requiring Senedd consent, statutory instrument consent memorandums, SICMs.

The first of these is item 5.1, SICM(6)2: the Animals and Animal Health, Feed and Food, Plants and Plant Health (Amendment) Regulations 2022. We have a batch of papers linked to this, including the actual statutory instrument consent memorandum; a letter from the Minister for Rural Affairs and North Wales, and Trefnydd, of 21 November; our legal advice note; and a letter to the Minister for Rural Affairs and North Wales, and Trefnydd, of 14 November.

The consent memorandum was laid before the Senedd by Welsh Government on 21 November. The consent memorandum was laid following our letter to the Minister on 14 November, suggesting the memorandum was needed as the regulations proposed amendments to primary legislation. Interestingly, Members will note that the Minister has stated that she is not minded to table a consent motion to seek the Senedd's agreement to the making of the regulations. The reason I flag that is because procedurally we've drawn it to the attention of Ministers, the memorandum has been laid, but she is not minded to table a consent motion to seek the Senedd's agreement to the making of the regulations. I just flag that for now. We might want to return to that in private discussion, but just for your attention and in public session, it's something that has caused us some puzzled heads. But, anything from the legal perspective? No. All okay? Okay.

Can I ask—

Yes.

—does that affect the legality of the instrument, if it hasn't been through the correct procedure?

Gerallt.

No. Standing Orders, obviously, it expresses there that—. [Inaudible.]—is required, but isn't necessary, legally, for the Order to be—.

So, it's a Standing Order requirement, so it can be done, it doesn't affect the legality, but it would be—. I think this is the point we need to discuss when we go into private. Having identified that there is a need to actually lay this, the Minister has now laid it, but, in laying it, has made clear that there is no intention to seek consent for it. It just makes us scratch our heads a little bit then: in which case, what's the purpose of the laying of it? But, we can probably return to this in private and get under the skin of this a little bit more, because this is novel. 

Yes, fine.

This is novel and we want to understand will this be a way forward that we return to again and again. Anyway, so, we note that.

We go to item 6, notifications and correspondence under the inter-institutional relations agreement.

The first of these, 6.1, we have correspondence from the Minister for Climate Change on the Producer Responsibility Obligations (Packaging Waste) (Amendment) (England and Wales) Regulations 2022. So, the Minister, in the written statement, indicates that consent has been given to the UK Government to make the Producer Responsibility Obligations (Packaging Waste) (Amendment) (England and Wales) Regulations 2022, and Members will recall that the Counsel General wrote to us about these regulations on 16 November. The statement also notes that the regulations were laid before the UK Parliament on 23 November 2022 to come into force on 1 January 2023.

I'll run through the other ones here, and we're happy to note them unless there's something specific that leaps out for colleagues.

Item 6.2, we have a letter from the Minister for Education and Welsh Language, notifying us of a meeting of the Education Ministers Council as part of the inter-institutional relations agreement, taking place in Cardiff on 9 December.

Then, item 6.3, a letter from the Health and Social Care Committee to the Deputy Minister for Mental Health and Well-being in relation to the Food Supplement and Food for Specific Groups (Miscellaneous Amendments) Regulations 2022. Just to recall that we considered correspondence from the Deputy Minister on the regulations last week, and we are writing to seek further clarity on issues that arose from that. So, nothing particular—we just note those for the moment.

We also have—. We normally turn to papers to note, but we have no additional papers to note at this meeting.

Now, Members, if I could just ask whether you're happy now, bearing in mind that we are returning with the Counsel General later in the day, but first of all we need to go into private. So, what I'm asking you is if you're happy to resolve to exclude the public for items 9, 10, 11 and 13, which is consideration of the Counsel General's evidence, and we'll return for 12 in public. Are you happy with that? Then we'll move into private session, please.

Welcome back, again, to the continuation of our Legislation, Justice and Constitution Committee's session today. We broke previously to go into private to consider the evidence we heard earlier from Lord Bellamy and his officials, but we are now returning into our second evidence session of the day. It's the one item we have remaining, and this is with the Counsel General and Minister for the Constitution, Mick Antoniw. Great to have you with us. Thank you very much for giving us the time again. We're looking today at the legislative consent memorandum on the Retained EU Law (Revocation and Reform) Bill.

Now, Counsel General, I wonder, do you want to introduce your officials, or do they want to—

I'll introduce them; I have them online. Robert Parry, deputy director of European transition, and Lisa Marie Knight, Government lawyer of legal services.

That's brilliant. Thank you very much. You're all very welcome. Counsel General, if we can go straight into questions. We just want to understand something right at the very beginning, because if I can refer—. You've been very critical of this Bill, but you have taken the quite extraordinary step of writing an open letter, together with the Scottish Government, calling for the Bill to be withdrawn. You've published that letter in the Financial Times. I'm just curious as to—. You've been very clear on your views, but this is quite a step to do this, as the Bill is being considered up that end of the motorway. Why do that? That is quite a setting out of your position in that way. 

Yes. Well, there have been, as you know, discussions taking place with previous Ministers. There have been ministerial changes of course. I had a number of meetings with Minister Rees-Mogg, on a number of occasions, and the concerns about the retained EU law, and its implications, and the issues around it have been there for some time. As you know, we had very little engagement with its introduction, in terms of its content. We had some engagement with some clauses, et cetera, but we've got to a stage where I think we share very real concerns that it is not completely clear what we're talking about, what the scale of it is, how many pieces of legislation are involved or what they might amount to. It started off, of course, at around about 2,400 pieces of legislation; we're now talking, potentially, about 3,800 pieces of legislation. We, of course, have our own Welsh-made retained EU law on top of that, and the figures may be growing.

So, we're in a situation where the scale of what we are potentially facing is enormous. Is has the potential to consume enormous amounts of resources. There are real questions as to the extent to which it can really be delivered in a proper, parliamentary way, with proper scrutiny, with proper analysis, proper understanding. We have questions, of course, as to what it actually delivers at the end of the day. But we felt it was necessary—. Scotland shares exactly the same position that we have, and this is a sign of, whatever the political positions, whether it be Brexit, whether it be constitutional or whatever, this is purely, 'Is this good legislation?' And the view we've taken is it's not good legislation. It's unclear what's going to be required of it. It's unclear what the demands of it are going to be, as well as what it is actually going to deliver at the end of the day. And we felt, with the change of Prime Minister, change of Cabinet—recognising that there are also concerns in Westminster itself, across party, about the potential disruption this Bill may cause—that now is the time to actually just lay it out clearly. We have real concerns about this Bill, and, quite frankly, the capacity to actually deliver what is required by the end of next year is very, very questionable. But, also, in reality, the best thing that could happen is for the Bill to be shelved, and further discussions and other things to be focused on. So, we felt it was important that that point was made as clearly as possible to set out our positions.

Okay. I think you did in the letter and you have again today, but this Bill is progressing and we're going to get into some of the detail of what that means for you and for us in scrutiny. But, tell me, these matters of detail as well as the matters of high principle, all your objections, they cannot be resolved within the much touted new machinery of government. Your concerns, your worries—why can't they be resolved within the machinery of government that now exists?

Well, because I think it's the scale of what's required. Assessing 3,800 pieces of legislation, analysing it, understanding what is devolved, what is not devolved, where they may be disputes over where that is, where there are interdependencies and so on, is a task that is absolutely enormous, and the potential to swallow up all the skills and resources that we have in terms of delivering that is very, very significant.

Okay, well, let's go on from that, then, because back in August you told us as a committee that you weren't carrying out your own review of the REUL independently from UK Government. Scottish Government and Northern Ireland departments were. Has your position changed on that now, bearing in mind what you've just laid out to us—the extent of this and so on?

Well, listen, my understanding is that really what is happening, certainly in Scotland, and I suspect the same in Northern Ireland, is that we're all actually in very much the same boat and very much in the same position. The first thing is that the obligation is on the UK Government to actually ensure that its own legislation is fit for purpose, that it has done the work that is necessary to create an understanding of what is involved in that particular legislation, and they are in the best position to do that, because so much of it is work that has occurred in the various departments across the UK Government. Now, that doesn't mean we're not doing anything, but it's a question of what are we actually going to be required to do. So far, what we have had is we've had lists of thousands of pieces of legislation on a sort of spreadsheet-type format. There have been discussions between officials and various departments that have been taking place. There is work going on. Equally, I'm sure, those concerns are shared in the various UK Government departments. There is work going on trying to analyse themselves exactly what is involved.

Now, it seems to me that our focus has got to be firstly to ensure that we analyse and retain our own EU retained law, that we focus on that law that's been made within Wales. The second thing is that we press UK Government to continue to do all the work that we think should be done. Now, it has been done on a very high-level basis so far, and I think by 'high-level', when that phrase is used, it means, I think, probably at a very basic level in terms of, 'Here's the piece of legislation—we think it's devolved,' or 'We think it's not devolved,' et cetera, and that those departments will go on to do further analyses of the legislation, but to what degree and to what extent is unclear at this stage. It is fair that officials are engaged in trying to work it out. It's also not clear what the position may well be, because it may well be that one of the responses of UK Government is that enormous amounts of legislation they will choose to retain, with a view to amending at a later stage. If that is the case, until you know how much of that is involved, you don't know how much of what is left that you've got to analyse.

So, how do you square that against the approach being taken in Scotland and Northern Ireland, where, from what we understand, they are carrying out their own review, thorough, going through it painstakingly? We appreciate that that takes resource. It may be that things change and it's wasted resource and so on, but they've chosen to go down that line. You've chosen a different approach, looking at high level and then looking at, perhaps, exemption areas where you need to really focus on, targeted areas. Does that cause any concern? Why are they doing it that way, and you've chosen—

The best I can work out is they're actually doing pretty much the same as what we're doing.

Ah, okay. Okay.

I think maybe presentationally in terms of what you mean by 'we are reviewing' may be something that needs to be looked at. I can't speak for what Scotland and Northern Ireland are doing, but I think the reality is they can't be doing much more than we're doing at the moment, because you don't know what the scale is of what it is you're going to do. You don't know what is going to be retained and what isn't, and that's work in progress at the moment.

Okay. Yes, okay. But I'm sure your officials behind the scenes are liaising with them so they'll have some idea of what they're doing. It would be quite interesting—

Yes, maybe if I bring in either Rob Parry or Lisa at this stage, in terms of just to say a little bit about the engagement that is taking place in terms of the preparations that are under way.

Shall I speak, Chair?

Yes, Robert.

Yes, so, as the Counsel General mentioned just now, our first priority is the retained EU law made in Wales. So, that's the current area of immediate focus, because no-one else is going to preserve that, as it were. Beyond that, we are working closely—policy teams are working closely—with their Whitehall counterparts to analyse, as the Counsel General has described it, the spreadsheets that they've come up with to see whether we agree with that analysis. I think it's fair to say that Scotland is doing something pretty similar, really, at least now—at least for now. 

Right, okay. Okay. So, what we're hearing here is that, regardless of the presentation of this, there are some similar exercises going on in Scotland and Wales. You're doing as much as you can with the uncertainty that you have to try—. Right, okay. Okay. Some of the uncertainty around this, including your statements and the very public concerns that you've expressed, have led some organisations in Wales to say they are worried that this is increasing the uncertainty, increasing the confusion. How do you respond to that, and what are you doing to engage with those organisations and groups?

I think the reality is that there is uncertainty and there is confusion, but I think that arises, really, as a consequence of the Bill and the direction in which the Bill is being taken and the work that is being done to support that Bill in terms of an analysis of all of the pieces of legislation to actually find out what all of the pieces of legislation actually are, what the full scope of it is. That's where I think the uncertainty and the confusion arise. I think there probably is uncertainty and confusion as to where do we go from this, and I have to say that to some extent we share that, because we have the uncertainty as to knowing precisely what is involved, what scale of it is involved, and also it can be confusing as to what the full implications of it are. So, that is generally out there.

I think probably what there is not quite a grasp of, I think, with some organisations that focus on perhaps their specialist areas is that, when you put it all together and you have the full scope of what is involved and you are where we are at the moment, where we're trying to do an analysis on the basis of spreadsheets that are there, but without knowing to what extent in those spreadsheets—. It could be that they might turn around and say, 'Well, 3,400 of these pieces we're going to retain in any event, because that's the simplest way of going forward', or they might say, 'Well, no, there are going to be 3,000 and they're all going to have to be analysed', or whatever. So, until we actually know the scale of that, there is that level of uncertainty. So, that's really where we are at the moment. 

Okay. Just finally from me: the UK Government's impact assessment on the Bill has been deemed unfit for purpose by you. So, are you carrying out your own impact assessment?

We're not carrying out our own impact assessment, other than to the extent that we agree with, really, some of the analysis of the impact assessment that's already been made, that it really isn't fit for purpose, that it is very weak, it doesn't do the sort of analysis and scope of what is required within that. It's difficult to do an impact assessment on something where you don't know what the full content of it or what the full scale of it that's going to be involved is. And that's the problem. When you have legislation that's in that position, how do you assess the impact? I think the evidence I've been giving and the reason we wrote is purely because the only assessment we can do at this stage is that there's an enormous amount of uncertainty about the scale of it, but, if it proceeds as is intended at the moment, or as we understand it is intended, it has enormous capacity to absorb enormous amounts of resource and time and process. 

Okay. Alun, take us on; clear up some of this uncertainty. 

I'm not sure I'm capable of that. In terms of—. Is your position, Counsel General, that this is a Bill that has created a problem, rather than solving a problem, that the retained EU law is on the statute book, and my understanding is that it will stay on the statute book until such a time as it's amended in the usual processes, and therefore we don't need a Bill that essentially sunsets all of it en bloc?

The answer to that is 'yes, it is creating a problem, it's creating an unnecessary problem.' Because where it has been necessary to amend or change EU law, then that is what has been happening—as you know yourselves from all the items of legislation that come before this committee—and, at the end of the day, what does it actually solve? There is, I think, certainly a commitment from UK Government; they made commitments that they want to see a complete break with EU law. But how do you actually achieve that, if at the end of the day, you end up actually retaining a lot of law or not knowing what you haven't retained, or not being clear about the consequences of what might suddenly disappear off the statute book, effectively? So, yes, over a period of time, legislation would be amended and changed as and when required. What is happening is it's being said, 'No, no, we want all this done within 12 months, irrespective of the consequences.' And that's my concern about the Bill. It's not actually a position on what the Bill is doing and the politics of that, it is just really: why is this Bill there? If it were to be shelved, what difference would it make?

And the—. I'm grateful to you for that. And my presumption is, my reading of the Bill is, that this would provide powers for Welsh Government to undertake this process, and I presume that any consequence to that consideration by Welsh Government would come to the Senedd for approval in the way that is described in the Bill—or not, or that UK Ministers would have similar powers over our law to take decisions and for those decisions to go through a process, if that's necessary, in the UK Parliament. So, it could simply wipe out large parts of law that a Welsh Government and the Senedd would wish to be in place by going through a process in Westminster without reference to either yourself, another Minister, or our Parliament.

Well, that is a risk, and these are the points that we've made, that I've made, in discussions with my counterparts; it was partly the purpose to some of the correspondence that we've had between ourselves and UK Government. They're points that the Scottish Government has made as well.

What we have said, of course, is that, in discussions, we—. The assurance we were given is that devolution would be respected, that Sewel would be respected and so on. The question is what that actually means in practice. We've not seen any amendments to the legislation or indications there would be changes. So, there were issues, for example, we had, firstly, about the capacity, that is, the sunset clause element. The best understanding we've got at the moment in terms of the December 2023 deadline is that that is going to remain, so the hopes we'd had that might change don't seem very optimistic at the moment. But—.

Sorry, the second part of the question was—?

That the UK Government could—

Ah, sorry. Yes.

—force change through the UK Parliament without reference to either Welsh Government or the Senedd.

Well, the other parts that we've challenged and said—. Well, with regard to concurrent powers, we've said that, basically, it can't be right that the UK Government should be able to revoke or allow legislation to be revoked in devolved areas, that this is a matter that we should have and that those powers should be with us. So, basically, they should be either at the very least concurrent plus, but, essentially, they should be powers for the Welsh Government.

So, let me understand what you're saying here, Counsel General. In a year's time, December 2023, the United Kingdom Government has used powers contained in this Bill to, for example, remove environmental standards on water quality, for argument's sake, or to reduce significantly animal welfare standards, two areas that will be affected by this legislation. Would it be possible—? And that law will then, at the end of that process, become—. I think it's assimilated law; it will be normalised, I think, is the language that's used, so it will become a regular part of the statute book at the end of this process. So, my understanding, then, is that it would be entirely possible for the Welsh Government, or for private Members, whatever, here, to introduce legislation that would deliver those environmental or animal welfare standards through a self-standing Bill in front of this place in 2024-25. Is that potentially possible? 

Yes, we would have—. Depending on how the Bill eventually works out, we will have the ability to identify those bits that are devolved and say we are going to retain those, so, basically, we're not going to see any diminution of standards, et cetera. So, we have to be able to identify what pieces of legislation are, be satisfied that they're within our competence and those are pieces of legislation we want to change. If we want to amend the legislation—. Well, if we want to vary it, then there, of course, would be an additional process and there's a restriction in the Bill, which is in regard to regulatory burden, and that is a very unclear part of the legislation that basically sets out that you can't introduce any changes that would actually increase the regulatory burden. It's very difficult how you actually work out what that is, but that would be a constraint that is totally unacceptable, because we've certainly taken the view that regulation can have a positive function. It's there to either maintain standards or issues around enforcement and so on.

I raised this specifically with the UK Government at the time, and they said, 'Oh, well, we're not taking away that ability for you to do it, but it won't be done through this vehicle, through this legislation; you'd have to bring legislation to make those changes if they, effectively, could fall within the category'—

So, for example, legislation to improve bathing water standards in Welsh rivers, for argument's sake—

Yes.

—could be seen as a regulatory burden, which would then be struck down by the Supreme Court.

Because it's in a devolved area, though, we could bring our own legislation forward to actually do that, but it would be outside this particular legislation. We couldn't do it within this particular Bill.

Yes, I get that, I understand that. It's not often I see the National Farmers Union, RSPCA and the wildlife link all sitting on the same page. One thing, if I'm reading their comments correctly, is that they talk about confusion, uncertainty and the rest of it, so we could, potentially, be looking at several years of some real uncertainty as to where the law sits in particular areas, because we would see it being removed in one area and, potentially, amended. Because although there's a large number of these items, most of them, I would have thought, are pretty uncontroversial. You will want to have some quality standards—food or whatever. I can't imagine the Conservatives wanting to remove any regulation of food production, for example. So, we're going through a process that is going to be exceptionally uncertain. In your conversations with the UK Government—it's been a chaotic period of time in Westminster over the last six months—does the latest new Government in Westminster, from your perspective—? Have they taken a view on these matters? Has their view changed over the chaos of the last six months? Has it evolved?

In terms of a change in position on the Bill, its need, the sunset clauses and so on, I'm not aware of any particular change yet. Of course, the Bill has got to go through its stages and there may well be changes, there may well be points that are taken into account in respect of the devolution integrity issues that we have raised—the changes that we think should take place to the Bill to ensure that any changes that are made are made within Wales et cetera and with the use of concurrent powers and so on. So, those are things that may well change.

But in terms of dealing with this, in terms of dealing with the scale of what the Bill is going to be about, I suppose what is happening is that there is co-operation between different departments to try to do some evaluation and analysis. As I say, we've had the spreadsheet approach so far with very basic information. I think it's going on to a further stage now in terms of trying to analyse that slightly more deeply. There may well then be an approach that we adopt, which is a sort of triage approach, trying to identify those that are most obviously relating to devolved issues that may be the most important issues, rather than technical issues, so that we make sure we focus on those areas that are most important to us. The big area there, of course, will be all the legislation relating to standards. We will want to retain law and not see any diminution of standards. So, we will want to ensure that we retain those standards out of this. The complexity comes in knowing the scale of what we're going to do. If, for example, in a whole large area of these 3,800-plus pieces of legislation, the UK Government equally decides that what they should do is retain a large number of them, then that actually solves part of that problem. It solves part of that problem and it makes it a lot easier to manage those areas that have not been retained. We can analyse those. It's really the uncertainty of us knowing precisely what it is we're going to be dealing with. But there is that engagement, there is us working to try and understand the nature and the scale of the issues that are facing us. And equally so, I'm sure that departments at UK Government level are doing exactly the same thing. They're in the same position as us as well, in many ways.

I can imagine that, for many departments in Whitehall, it's not a job that they relish or look forward to. What happens then if and where—? Because there's going to be a dispute, isn't there, at some point, because this seems to be a piece of legislation that was written in an editorial meeting of the Rothermere press, rather than anywhere else. But, there's going to be a political difference of opinion, I would anticipate, at some point, along this process. Is there a mechanism for resolving that difficulty? The two examples I've used, in terms of environmental equality and animal welfare, are both clearly devolved and areas where this place has been involved in legislating over a number of years and where the executive authority of Welsh Government and Ministers has been unchallenged throughout the time. So, is there a process by which you can reconcile any disagreements?

Well, there is the inter-governmental process that has been established and which has not been used yet, but which I think is probably not going to be particularly ideal process for what we're talking about, although it might be. It seems to me the first stage is to, actually, in a co-operative spirit, try and get agreement, as we do with UK Government Bills, to try and reach agreement on those areas that are devolved and not devolved, and that sometimes involves a degree of discussion and analysis to actually work that out. That may be feasible in terms of resolving a lot of particular disputes. But, in terms of what happens and what do you do if you get to a stage where you've still got a piece of legislation and there's a dispute as to whose competence it is within, it is something that potentially could go through the IGR disputes process. It may be that you can create something specifically to try and resolve those disagreements, and it might just be that we would say, 'Well, we actually believe it is within our competence and we are going to take steps to retain it', and, in which case, you potentially have a conflict in law. But, if we think it is devolved and we have the power to retain devolved law, then we do what is necessary to achieve that. Then, I suppose it goes up to a question as to who might challenge that and so on. So, that's where it could potentially end up. I suppose it could potentially end up in the courts as well, in that way, dependent on what the impact is and what it relates to. 

Thank you.

Thanks, Alun. We may return to some of these points. But, James, over to you.

Thank you very much. I'll try and be as succinct as I can. Counsel General, in the LCM you've put forward, you listed your concerns in five areas, but the Welsh Government, and you, only put forward one amendment. Is this the only amendment that's going to be put forward?

Well, I think the appropriate place for us to set out what our views are in terms of legislative consent and the analysis of the Bill is in the legislative consent process. We could be drafting all sorts of amendments and be suggesting that, but I think the appropriate step that we took is the correct one, and that is really that we've set out what our views are and we've set out what we think are the changes that need to take place. We will work to support those sort of changes taking place during the passage of the legislation, but the LCM process at this stage is basically to analyse the Bill, to take the view that we took that, effectively, the whole of the Bill comes within our consent, and that we didn't think the Bill in its format was appropriate and was one that we could actually recommend consent of the Senedd to.

Okay. I take from that you're only going to be putting forward the one amendment, then. That's correct, is it?

Well, I think, in the process of changes to Bill, as it goes along—and there are moves to make changes, to make amendments at the different stages to that—what we will be doing is encouraging changes to be made that give us the guarantees that we have sought. So, that is in respect of concurrent powers, et cetera. We don't believe those should be there; where they relate to devolved matters, there should be the amendment there. That is one of the most immediate ones, but there are other amendments as well in terms of the powers of the law officers in devolved Governments as well. So, there's a whole number of them there that we have set out. But, really, as the Bill proceeds through, I think our approach will be to set out what we think should change within the Bill and that there would be amendments that would come forward on the back of that.

Okay. If you are going to be putting further amendments forward, would you be having prior conversations—?

Well, we don't—

If—if you are going to be putting forward more amendments, what conversations are you going to be having with the UK Government about those in advance of them coming forward, so we don't get the situation, as such, where we've got a Minister in a committee arguing against why your amendment's come forward, because I think it would be better—? It's the co-operation side of it—that there's that two-way stream of communication.

Well, you know, as a Government and, again, as a Parliament, we don't have the power to amend UK Government legislation; we can either give or refuse consent to those areas in accordance with the terms of our own Standing Orders. We raise with the UK Government Ministers the things that we think are wrong and that need to change, but if you have a Government that says that it's not going to put forward amendments, well, we don't have any another mechanism other than to make representations, to make our position known, and to encourage others to bring forward or provide the basis for others to bring forward amendments and changes during a legislative process in accordance with the points that we're raising. So, there will be those, for example, in the House of Lords who will look and will say, 'Well, is it right that these concurrent powers in this format should be in that Bill?', or, 'They should be Henry VIII powers in the way that they are', and Bills come forward that way. So, yes, we'll do the normal things in terms of briefings, in terms of discussions, in terms of engagement with the UK Government and interested parties, who will all make their own representations. 

Okay. That's fine. You talk about powers. You said in the Chamber yourself that this Bill did transfer enormous powers to UK Government Ministers. The NFU said it was unprecedented—the amount of powers that are going to UK Government Ministers. But many of these powers will also be transferred to Welsh Government Ministers in the same breath. So, if this Bill is not withdrawn, would you want these powers to be granted to you?

Well, it's not a question of whether we want them; we will probably have no choice, because if we want to do anything about retaining legislation that maintains standards and so on, things that we agree with them in devolved areas, then we're going to have to exercise them, and what will have to happen will be the process of engagement with the Senedd in terms of scrutiny of them. But they are powers that, in normal circumstances, you would not wish to give to governments. It's not the right way in which legislation should change or that you think should happen, and certainly not within the timescale and with the limited scrutiny processes that there would be.

James, do you mind if Alun comes in? 

Yes, carry on.

Just to clarify something, James's question to you was, 'Would you want those powers?' My understanding would be that you have those powers, or we have those powers shared between the Senedd and the Government as we stand, because if the law is on the statute book in a devolved area, then the power to amend that law already exists through all of the normal processes that the Government can propose and the Senedd can accept, or not, as the case may be. So, the powers all exist to amend law in an organic way. The power that doesn't exist is to do it in this particular formulaic way.

What is different about this legislation is that, by a particular deadline, everything that falls within that category—that is, retained EU law—is revoked, unless certain things are done within certain categories. So, if you don't take measures to be able to identify and understand what it is you want to retain, then everything else is going to go. The classic one—I know you've probably all heard it, in terms of the media—is actually not related to a devolved matter, but it's to do with holiday pay, where there's a statutory right to holiday pay for people who are employed that comes as a result of EU legislation. Now, as a consequence of that, if that is not retained specifically, overnight, without any real engagement with Parliament in Westminster, millions of people will lose their entitlement to statutory holiday pay, by virtue of a government doing absolutely nothing. And that's the danger with this: it's the abolition; it's the repeal of a whole swathe—category—of legislation in a point-blank way. And it's the issue of the lack of proper scrutiny and engagement, and decision-making processes that is the concern about the way this Bill would operate.

I'm done, Chair.

Thanks, James. Peredur. 

Diolch, Cadeirydd. The LCM reflects your comments in Plenary, that the Welsh Government’s legislative programme would be completely overwhelmed by the Bill’s demands, and that you are looking at options. What are the options?

Well, firstly, if nothing is done, the potential there is that we have 3,800 pieces of legislation that have to be trawled through, analysed and scrutinised, to actually work out which bits relate to Wales, which bits are important to us, and it's the scale of doing that. The options are: firstly, the diminution of that by the work with UK Government departments to try and get as much detail as possible done, as much analysis done, of those pieces of legislation, of those particular areas, to try and get as much information analysis in terms of the extent to which they relate to devolved areas. That is one option. Another option, of course, and I'm sure this is one being considered, might be that, with the deadline of December 2023 facing UK departments as well as ourselves in terms of the mass extinction, the mass revocation of EU retained law, with a trawl or a scrutiny of an enormous number of those pieces of legislation, a view could be taken, 'Well, what we will do is, we will assimilate all those pieces of legislation, so that effectively we keep them', with a view to then having a couple more years to spend to look at them bit by bit, as you go along. So, effectively, almost non-abolishing, a non-revocation of a big chunk of that retained law by basically assimilating it, and then leaving a proportion of that which is considered to be the most significant, and then to focus analysis on that. That would significantly reduce the amount of work. The problem is: how long is a piece of string? How many pieces of legislation might be involved? What might the scale of it be? Ideally, we'd like them to do that with the entirety of it. In which case, you wouldn't need this Bill at all; you would solve the problem. But that's not going to happen. So, measures along there, I think, would potentially reduce the scale of the work and enable us to do more detailed triage. I wonder, perhaps, at this stage, to just bring in Lisa, because I know Lisa has been looking at this issue herself, and I wonder if there's anything you could perhaps contribute. 

I don't think so specifically, in terms of options under the Bill. I think, broadly, as Counsel General has outlined, looking at the least resource-intensive option would be to use the powers under the Bill to see if we could assimilate retained EU law. I guess, the only point as well to note with that, it's just preserving the content, the use of that power, so there would still be other considerations, such as the removal of supremacy, directly effective rights via the other clauses under the Bill, just to take into account of that approach. I don't think there's anything to add specifically to what you've said, Counsel General, unless there are any specific questions.

Those are the two main options. We want to explore what ways we could encourage or achieve any of that in our own right. I think that's a very, very difficult area, but, obviously, you want to keep an open mind in terms of what possible further options there might be, and maybe options would emerge as the Bill goes through its passage.

The other option might be that there might be a change of heart in terms of the deadline. If that were the case, that would give that much more time to at least make the workload more manageable than it is at the moment. I think that's probably the scale of the options we can envisage at this particular stage.

Most of what you're saying there, Counsel General, means that—. It sounds like a lot of work, and you'd agree, and legislative work as well, so the knock-on effect on the Welsh Government's legislative programme is going to be huge. What discussions are you having with your Cabinet colleagues to say, 'What are you shelving?' to make sure that this happens?

Well, we're not planning to shelve anything. We want to deliver the Welsh Government's legislative programme; we want to make sure that we deliver on all of the commitments we've made with regard to legislative reform and so on. That having been said, there is, obviously, the uncertainty as to knowing what the precise scale of those demands is and how those might impact in terms of resources that are currently going in, or the—. It's not resources in terms of money or numbers, it's the particular skills you've got to have to actually do this, and, in some of these areas of legislation, the very specialist skills within those particular areas as well. So, we work to ensure—. Obviously, there are discussions in terms of what the issues may be, what the demands may be and what the resource implications could potentially be. Those are being explored in a fairly open way at the moment to try and evaluate it, because it's still uncertain precisely what is going to be required, so it's, sort of, work in progress at the moment.

So, as that work is done and it becomes more clear, do we have your commitment, then, for keeping stakeholders and this Senedd informed of the discussions that are happening to see what, potentially, could be delayed? I think some people are really concerned about the clean air Act and that sort of thing being put on the back burner to allow this sort of programme to be delivered.

We don't want to see any legislation put on the back burner or be slowed down, in effect. We have a narrow window of years in which the legislative programme has to proceed, and we want to see all of that legislation delivered. You can't deny that there is going to be an impact from this legislation, depending upon what happens to the various options I've identified, in terms of how it might be dealt with, how UK Governments will operate and so on. So, that uncertainty as to what will be required and what the full impact may be is difficult to evaluate. All I can say is that we will do everything we can to ensure that we maintain the legislative programme and, also, that we assess and do the best that we can in terms of dealing with the consequences of this particular legislation. 

I think one thing is clear: it makes the sort of detailed scrutiny and the timescale for that scrutiny incredibly difficult. We know that we saw during the COVID period, and, indeed, during the Brexit period, all sorts of legislation having to go through very, very quickly because of the demands that there were. When you have a timescale that is December 2023, and the volume being squeezed into that is like a funnel and so on, we have to look at how that will work. There is going to be a need, I think, for very close co-operation between the Government and the Senedd in terms of an understanding as to precisely what is required, what is happening and how we best manage that. It's not just an issue for the Welsh Government; obviously, it's an issue for the Senedd itself, in terms of how it scrutinises and assesses those steps as well.

And, obviously, the concerns of stakeholders that have a vested interest in your legislative programme—

And the engagement with all of those stakeholders—those people who have a direct interest in it and a direct specialist knowledge of some of those areas as well. The starting point is that we will try and set a common platform of no reductions in standards, but that's still—. Either way, it doesn't get away from the problem that you still have to do the evaluation, you have to have the understanding of what is happening, what is being done, and what you’re dealing with. At the moment, we’re looking at it in terms of, you know, one piece of legislation is important in its own right; when you talk about 3,800 it becomes a statistic, doesn’t it?

Minister, can I just follow up on Peredur’s question? Because I’ve tried to listen with interest, and I recognise everything you’ve said about the uncertainty at the moment, but are you saying that the full legislative programme that we currently understand the Welsh Government has will be delivered? That programme of government, the legislative commitments, by hook or by crook, one way or the other, will be delivered regardless of this.

We will work, and certainly my commitment as well is to do everything that is humanly and reasonably possible, to deliver that programme, our legislative programme, to make sure that that is delivered. I think the question is: how difficult is it going to become, what are the implications for it, what are the implications in terms of all the bits of legislation that are going to be affected by this Act?

Okay. So, my second question would be—because if people are listening in on this, what they will not have, they’ll have heard your commitment to do everything, to move heaven and earth to do it, but it’s not an absolute guarantee, which may be well understandable. So, in which case, when do we have some resolution of the uncertainty that has been characteristic of everything you’ve said for the last half an hour, 40 minutes, that we don’t know? When will we know? Because that then will give some certainty to you, and the wider legislative programme, and to stakeholders out there.

Well, I think the answer to that is, 'I don’t know.' 

Oh my god. [Laughter.]

And the reason I don’t know is because, until further progress is made in the evaluation, until we know what approach UK Government departments are going to take, how much of the legislation they’re going to, perhaps, across the board decide that they will retain, et cetera—

Do you have some idea in your discussions or your officials' discussions as to how this timetable is panning out? Are we talking about February? Because December 2023 in legislative terms is a blink of the eye. Any idea?

Nothing that has any real evidential base at this stage.

Right, okay. Sorry, Alun, did you want to—? James.

It was on delivering your programme, and with all the extra work that there’s going to be in this, there’s an awful lot more time for the Senedd. I’d like to know what discussions you’re having with the Trefnydd, really, to try and get more time within the Senedd to discuss these things and to make sure you can deliver your legislative programme as well, because we’ve had correspondence in the past that has said that there are resource implications on the Senedd side of it, and on the Government side, to deliver some legislation. So, I’d like to know what conversations you’re having now with the Senedd authorities here to make sure that we do have time to deliver your Government’s programme and everything else on top.

I think there has been engagement in general about the nature of the Bill, and there are issues that are arising and emerging. The difficulty you have is how can we be more specific about what the scale of that is, and there will have to be those—. Once we have that clearer picture, there will have to be those detailed discussions as to how they are actually going to be managed, and I think in the same way as those discussions took place, as we know, during COVID and during Brexit, on how we are going to manage them. How are the committees going to manage them? Which committees are going to do it? What is the scale of what is going to be required of them? And as I say, the difficulty at the moment is that it is not possible yet to evaluate what the full implications of that are, only that there’s clearly going to have to be close co-operation over this.

You’re being very frank with us. Peredur.

Just to follow on slightly—and I’ll finish on this—obviously we’ve got the budget coming up next Tuesday. What discussions are you having with the Minister for Finance and Local Government to say, 'Well, how is all this going to be paid for?' You’ve got a very big remit of 3,800 potential things to work through, and the resource for that, based on James’s question around resource for the Commission staff and those sorts of things, is that forming any part of discussions with—?

The way in which Welsh Government resources are used and assessed has obviously got to take account of where work needs to be done, and where resources are actually needed. There are processes where these things are on the radar, on the agenda and are being discussed, and will be discussed as time goes on and we know more about it. Other than awareness that we have this challenge ahead, and that it may require or is likely to require resources, we don't know what the scale of it is, or the nature of those resources. There will be two aspects to it. It's going to be in the area of policy and it's going to be in the area of legislative skills—so, those two together. A lot of it is going to be involved at the moment with the evaluation, the analysis of retained law. If you look at agriculture and environment, that is where there's going to be a big focus, but it will obviously be in many other areas as well—across all areas of Government, I suspect. But agriculture and environment are going to be very intense ones for all the reasons that we understand. So, the focus of the resources may well depend upon what happens in terms of how much of that legislation is going to be retained, and how much is then going to be revoked, and then what we have to do as a consequence of that. 

Thanks, Peredur. Alun, did you want to return to issues around the regulatory landscape? 

I think we've covered parts of it. I'm just interested in whether the Counsel General believes there are any longer term lessons for the Welsh Government in some of these areas, following on from some of the points that James Evans has just made. Because the Welsh Government has come to this committee—and it did when you chaired the committee—saying that it wanted to develop law alongside the Secretary of State for England to ensure that there's no regulatory divergence in different areas. There's always been something of a hesitation here, hasn't there? You know, do we really want to go down this process of having a single statutory instrument covering the UK, or covering Wales and England, and the rest of it? I'm thinking perhaps the lesson of this Bill is that we need to retain far greater control of the statute book here in Wales.

A lot of the reasons that Ministers have used to use the consent procedure and Sewel to legislate through the UK Parliament mean that we don't have control of that, and we don't have control of the legislation that comes out of it. Having statutory instruments that are made in Westminster for Wales means that we don't have control of that either. And then, all of a sudden, you've got this Bill, which creates enormous dangers for us in terms of where we want the statute book to sit in Wales. So, could perhaps one of the lessons that come out of this whole unhappy experience be that we need to control our statute book? 

There certainly are issues in terms of the parliamentary process and the way in which devolution works and the legislative process works, and the way in which we often are having to be reactive to UK Government legislation because of the way devolution works. The way of resolving that is, in fact, the legislative consent process, which is governed by Standing Orders. There are certainly issues there. Interestingly enough, it was exactly what I was reading about in Gordon Brown's report today on constitutional reform, which has some very interesting sections about the need to address this issue of how legislation emerges, and how devolved Parliaments are actually engaged within that. But that's nothing more than I think I've said at this committee on numerous occasions. It is the consequence of having a dysfunctional constitutional arrangement for legislation. 

But in terms of where we are with regard to all the legislation that would be affected by the retained EU law Bill, that is a consequence of the withdrawal Act; it's a consequence of Brexit, where suddenly you had an enormous volume of legislation that something had to be done with. The process that was taken under the withdrawal Act was to say, 'The way we're going to deal with this is we're going to retain it all, and then in due course, over time, as things need to change, then we will change it'. The challenge and the problem that's emerged is because a decision has been taken to say, 'Well, we're not really even happy with that; we want to see a complete break, therefore we're going to revoke everything over the course of the next 12 months'.

You won't be surprised that I've got no time for any of that nonsense, but the important thing for you as Counsel General, and the important thing for us as a Senedd committee, is what does the Welsh statute book look like. You and I could make the same speech on a lot of these issues, I'm sure—I'm sure we probably have, actually. But in terms of the future, is not the consequence of this legislation—? One of the consequences needs to be that we in Wales need to have far greater control over the statute book, and not use either LCMs for Welsh legislation or not simply allow through a whole series of statutory instruments to be made in London, where we don't have the same level of control as we have down here.

I think what I would promote is, actually, there has to be a change in the legislative and constitutional arrangement between the nations. That is the way to resolve it. As long as the current arrangement occurs, where UK Government can legislate, where we have no protection really under Sewel, where Sewel remains non-justiciable, we are significantly reactive. We rarely go to a situation where we seek to get the UK Government to legislate on our behalf; where it does happen is nearly always a consequence of legislation that's been promoted by the UK Government that may or may not intrude into devolved areas. There may be an occasion where we say, 'Well, we will agree to that as long as we don't lose the power to change it later on, therefore it's beneficial to have that now'. But I don't think that's a case of us choosing to have that as the legislative vehicle—it's the consequence of the constitutional arrangement between the legislatures at the moment, and one that I think actually could work much better if there were clearer delineations as to how the various Parliaments would operate and co-operate on the development and process of legislation.

Under the current situation, as opposed to any constitutional changes, give us a practical illustration of how you can protect something such as retained EU law areas such as Schedule 1 to the Agriculture (Wales) Bill, which falls squarely here at the moment within Wales. If the relevant retained EU law is removed from the statute book, how do you protect that?

The way you protect it is by initiating our own legislation. We either assimilate it, we either retain it, or we amend it through additional legislation. Those are the processes by which we retain it within those devolved areas. The point I think you're beginning to creep on is, of course, what happens if the UK Government decides it's going to do something that intrudes on that, and the normal process there is that we refuse legislative consent for them to do it if we don't agree with it. The problem comes if either of two things happen. There are different ways in which we can be intruded upon. One is that the operation of the internal market Act can actually impact. There are issues there—there's a whole debate on that in itself, where we would disagree that it can, but we could face a situation where we don't approve changes in standards, but the internal market Act allows changes in standards in England, and because we don't control labelling, we don't have any real mechanism to actually enforce it or to prevent those things happening. That's why the internal market Act actually, in many ways, undermines the common frameworks that have been agreed. So, those are the mechanisms. There's strengthening of Sewel—every evidence session I've done to this committee, I don't think we've ever not mentioned Sewel and the importance of that. And interestingly, again, some of the proposals put within the recommendations of the Gordon Brown report are aimed at addressing, recognising that problem with Sewel. And I've no doubt that, when we receive the interim report from our own independent commission, I suspect they will have aspects that deal with Sewel as well. So, Sewel is very much on the radar as being one of the linchpins to constitutional reform and functionality.

I guess what we're getting at here is that you may need to actually take steps to bring forward more legislation to deal with some of these aspects. But of course, just an observation: we have the agriculture Bill currently going through, in which there is reference to EU retained law. So I guess the question arises—and maybe you're going to say, 'Because we don't know yet quite what the impact is'—why don't you use that agri Bill to actually protect these areas?

It's because the Bill actually contains within it elements of retained EU law, and there may be issues that will arise during this process that need to be addressed; it's just not clear what they might be at this stage.

Okay. Just one other question from me, and then, if you've got time, we've just got a couple of other short ones then.

Sure.

We've had a range of stakeholders raise—from different angles, by the way—concerns about the legislation, regulatory ceilings, this, that and the other. But let me just focus on one of them, because it's interesting for this committee, bearing in mind the uncertainty you've kept returning to, how you can give any reassurance. The Welsh NHS Confederation are very concerned that a different approach could be pursued in terms of deregulation in England that didn't fit in with the approach within Wales of integrating services, of the regulatory structure that's currently in place now, including 'A Healthier Wales', the Well-being of Future Generations (Wales) Act 2015. They describe that this could mean that those are impeded in policy terms. At this moment in time, can you give any reassurance to stakeholders that you have something in place that can protect that policy framework and the direction of travel of the NHS at the moment in Wales?

I think the point you're making is that there are very significant interdependencies. One of the concerns about the point-blank revocation of legislation is that it may be a revocation in respect of England, but there may be implications for Wales. It may not specifically intrude into Welsh devolved areas, et cetera, but what happens, the abolition of particular standards or whatever within England, may have impacts for us as well. And that's one of the difficulties—that it's not just a question of getting a list of legislation, it's a question of having an understanding. And it's not just an understanding about is it devolved or not devolved; it's what consequence does it have if it were to be revoked, and what possible unforeseen consequences might there be in terms of any interdependencies. That means that each piece of legislation has to be looked at very carefully, to have an understanding of that. The danger when you are dealing with legislation almost en masse in that sort of conveyor belt format is that those things, quite often, are not as upfront as they should be, having to deal with this within those sorts of timescales.

We could go through similar questions in terms of environmental concerns on this as well.

Well, take, for example, water, and take energy areas as well.

Peredur, did you have any other questions?

No, I think it's been covered already. Thanks.

Okay. If I could simply ask you: in all of this, how does this at all now tie in to discussions around things like common frameworks? What are the implications of the United Kingdom Internal Market Act 2020 on the Bill's operation? All of this is happening, all of these things are going on in the background at one and the same time as the EU retained law revocation Bill comes forward.

There are issues, and I don't think it's completely understood the scale of what they might be. We know that within the frameworks, we would expect any changes, any exclusions that were to take place—. Some would be discussed within the correct forums and so on. Sudden cancellations of legislation in one part of the country can clearly have an impact. I mean, basically, we're talking about a lowering of standards in one area, and that relates to goods or services being provided. That has an implication on the standards that we maintain. The problem with the internal market Act is it overrides those. So, there would have to be discussions within the various groups and so on, to try and work out how that will actually be managed. We would expect that, with anything like that that was to emerge, there would actually be those discussions with the correct groupings of common frameworks. But whether that happens or not is going to depend on quite a number of factors.

It's going to be very busy for Ministers, isn't it, with—what is it—a regular, reliable rhythm of meetings and discussions.

I think it's going to be very busy for constitutional committees as well.

It certainly is. We've focused a lot on inter-governmental stuff and how this is going to work and, to some extent, interparliamentary. But can we finish just with a question from James on the wider groups of people out there who do want to be involved in this as well?

Stakeholders have called for a lot more engagement, and engagement from the Senedd as well. So, how can you make sure that the Senedd is involved in this process?  

There's going to have to be engagement with stakeholders because we're going to have to have that understanding of some of the steps that have been taken. I think the problem is, at this stage, it's not completely clear who we will be engaging with, to what extent, and within what framework. I suppose all I can really say is I think there's a recognition that there has to be that engagement, not only with the stakeholders over those aspects, but also with the Senedd as well, that we're all actually in the same boat, just different parts of the boat.

The million-dollar question and my final one: you've raised a lot of constitutional issues here today; what could the Welsh Government do to address the constitutional impacts that you've outlined today?

We need to persuade the UK Government of the need for significant constitutional reform and for the need to change the way it goes around legislation. There is a need for deeper structural constitutional reform, but there are things the UK—. If we can persuade the UK Government at the moment, and I'm sure there is much interest in England as well in this, to actually shelve this Bill, this would take a whole area of concern and resource that we're addressing now out of that picture. It comes down to the fact that this legislation is not necessary. I have to say, I think it is ideologically driven, for right or for wrong, depending on what people's perspectives of it are. But I don't believe it actually delivers anything of any real benefit.

We've got to let you go, but let me just end where we began. You wrote, together with Angus Robertson MSP, Cabinet Secretary for the constitution, in an open letter in the Times, urging the UK Government to withdraw the Bill. Have you had a response?

Not yet.

Are you hopeful?

I'm hopeful of a response. I'm not hopeful of what that response might contain.

Thank you. Counsel General, thank you very much for your time. We'll send you the transcript as normal. We might follow up in writing with a few points of detail as well, but thank you very much for your frank exchange of views as always. Diolch yn fawr iawn.

Thank you very much.

Colleagues, if you're happy, we will now move to the next item, which means that we will need to move into private session. Are you happy to do so? We will, please.