Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad
Legislation, Justice and Constitution Committee16/01/2023
Aelodau'r Pwyllgor a oedd yn bresennol
Committee Members in Attendance
|Alun Davies AS|
|Huw Irranca-Davies AS||Cadeirydd y Pwyllgor|
|James Evans AS|
|Peredur Owen Griffiths AS|
Y rhai eraill a oedd yn bresennol
Others in Attendance
|Dr Robert Parry||Llywodraeth Cymru|
|James Gerard||Llywodraeth Cymru|
|Mick Antoniw AS||Cwnsler Cyffredinol a Gweinidog y Cyfansoddiad|
|Counsel General and Minister for the Constitution|
|Sophie Brighouse||Llywodraeth Cymru|
Swyddogion y Senedd a oedd yn bresennol
Senedd Officials in Attendance
|Gerallt Roberts||Ail Glerc|
|Kate Rabaiotti||Cynghorydd Cyfreithiol|
|P Gareth Williams||Clerc|
|Sarah Sargent||Ail Glerc|
Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.
The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.
Cyfarfu’r pwyllgor yn y Senedd.
Dechreuodd y cyfarfod am 12:15.
The committee met in the Senedd.
The meeting began at 12:15.
Prynhawn da, pawb. Croeso. Welcome to this afternoon's in-person meeting of the Legislation, Justice and Constitution Committee. We have no apologies—a full cohort of committee members. Thank you, all, for your attendance again. We're broadcasting this live on Senedd.tv as usual, and the Record of Proceedings will be published after our committee's session today as normal. We're not expecting a fire alarm, so if we do have one, just follow the normal exit routes and follow the instructions from ushers and staff. We have no fire alarm test forecast for today. So, if I could just ask everybody to make sure that their mobile phones and so on are switched to silent. We're operating as normal through the mediums of Welsh and English today and we have interpretation available, but just so you know, as normal, sound operators are operating the microphones, so you don't need to press any buttons.
So, as we don't have any apologies, we can move directly to item No. 2 on the agenda. It's our first substantive item here, and it is the Welsh Government's draft budget for 2023-24, particularly focusing on spending in relation to justice, and general scrutiny as well. So, we have with us—delighted to see you here again—Counsel General and Minister for the Constitution, thank you for joining us, and alongside you, we have James Gerard, the deputy director of justice policy, Welsh Government; Sophie Brighouse, deputy director, constitution and Welsh tribunals, Welsh Government; and Dr Robert Parry, deputy director, European transition, Welsh Government. So, welcome to you all.
We'll try and keep this as free-flowing as possible, and Counsel General, if you want to bring in your colleagues or if they want to contribute, feel free. We've got quite a lot to cover there, so we'll see how far we go. Now, I'm just going to do, as per normal with the Chair, a broad opener, and then I'm going to turn to my colleagues to come in with some forensic analysis of where we are on justice and the budget. So, one of the things we're aware of is that there are pressures on the resources available to Welsh Government, so we'd like to ask to which areas you've given prioritisation within the budget, and which ones have duly been deprioritised in the field of justice within the draft budget. Counsel General.
Thank you for the question, and of course, you'll appreciate it's an incredibly difficult environment financially. The Welsh Government's budget overall has been impacted not only by long periods of austerity up till now, but potentially also significant impacts because of inflation, and of course, the estimate is over the next couple of years that there is a loss in real terms of about £3 billion in terms of the Welsh Government's budget.
Can I also say that in terms of the budget with regard to justice, of course, I don't have, in that sense, a specific budget per se? Because my function as Counsel General and Minister for the Constitution, of course, overlaps into, really, all the other portfolio areas that are impacted by justice, and in particular, the Minister for Social Justice and many of the justice elements that are made up are actually within Jane Hutt's ministerial portfolio. So, whereas I have a sort of engagement and, of course, work very closely with the Minister for Social Justice, the budget I have is, or the areas that I work in predominantly relate to, I think, what are staffing costs and some research and policy development areas. So, there'll be areas where it's probably difficult for me to talk about, because they're questions that probably should be going to specific Ministers, but in general, we have tried to and we've kept, I think, the core budgets for justice, for social justice as well. The areas in terms of the Thomas commission, for example, the justice transformation programme, are, I think, slightly down on previous years, but have essentially been maintained. Some of the important areas—for example, single advice, and so on, and community support—have been retained.
There has been, as you know, a Government overview of reprioritisation because of the particular circumstances we're in, and there are three priorities that have been set. One is protecting public services, the other is protecting those who are feeling most acutely the impacts of the cost-of-living crisis, and the third is supporting business through, really, recessionary times. So, that is where the focus of Welsh Government is in terms of maximising the best use of it.
But in terms of the justice elements, I think those have essentially been retained. I don't see any major impact in terms of us being able to continue what we are doing. I would love it if there was more money to be able to look at additional things we could do or how we could do things better, and it may be that there are some things that we end up doing more slowly, for example, or we can't do as much of as we wanted to, but, essentially, we've retained the core elements of the justice budget.
Thank you, Counsel General. Peredur, before I bring you in, can I just—Alun, you wanted to come in on this.
Yes. I'm grateful to the Counsel General for that introduction. You say you've retained the core elements of the justice portfolio, and, of course, one of your roles, as you say, is to take an overview of different matters, rather than be a delivery Minister in the way that Jane Hutt would be, in the way that you've described. One of those core elements, of course, is the provision of legal support to Ministers, and one of the things we've heard throughout this Senedd, actually, has been that Ministers don't have sufficient resources to legislate and so they need to use the legislative consent motion process. So, I was wondering if you felt now, with this budget, that you have sufficient resources to ensure that Ministers will have those resources in place where they need to legislate.
What we do have—. I think perhaps I'd turn the question round a bit in answering it—
It's all right. I'm quite happy with the question I asked.
Well, no, I have to answer it by saying what we have is we have the budget that is set in terms of the functions that we have. Where the challenges come might be, for example, in the area of retained EU law. We're not quite sure precisely what that is going to mean and what the implications of that are going to be. The other thing, of course, is that much of it is actually staff and lawyer time, et cetera, looking at UK Government Bills as one element, and if those change or those increase, or new Bills are introduced—we now have, for example, the Strikes (Minimum Service Levels) Bill coming through, which raises all sorts of issues in respect of Welsh Government responsibilities. So, those are all things that are new that come in that then have to be accommodated, and they will be accommodated, as we will do with the retained EU law, it's just it's difficult to be precise about it, because you're budgeting for what you expect to be there, and you don't have an enormous amount of leeway within that.
Counsel General, I understand completely that when you've got a chaotic situation in London all sorts of different things can happen, and retained EU law is an example of a chaotic process. I accept that, and I accept that you can't budget against that process. I understand that. But do you accept or do you believe that the resources that have been placed within the different departments to support and to sustain that department's legislative programme are sufficient to meet their needs?
Yes, I do, and I believe we will deliver on that legislative programme.
Okay. That's fine.
That's good to hear. Thanks, Alun. Peredur, over to you. We're going to delve deeper now into justice and the draft budget.
Diolch, Gadeirydd. Counsel General, you talked there about protecting the core functions, which suggests there are non-core elements, so they will be negatively impacted by reducing budgets. Could you give us an outline of what's been deprioritised?
There is nothing that we have deprioritised. There are things that we have worked to retain, and we've retained by keeping budgets at the same as what we planned to do, but what we haven't been able to do is, of course, to take into account what the impact of, for example, inflation might be, the fact of the reduction in the value of the budgets that we actually have. So, that doesn't mean that we're not going to deliver, but, undoubtedly, it may well impact in terms of how quickly we deliver or the extent to which we deliver, and that is a little bit that's unknown until you are into it.
For example, the single advice fund, we've protected. That's £11 million, and that was introduced and was increased in past years to make up for the impact of UK Government cuts in legal aid. There is never enough money. I've got a feeling in the cost-of-living crisis, et cetera, there are so many things we might want to do, so many things we might want to expand, but we have to work within that budget and within the value of that. So, it's more a question of we're continuing to do what we've planned to do, but how far that money goes in being able to complete that remains uncertain at this stage.
In your discussions—you've talked about the social justice Minister—what sort of evidence and data have you been using to come to budget-making decisions and some of those things that you were talking about there?
Really, the data is, for example, the past performance. For example, if I take the single advice fund again as an example, we know how many cases there are that we've had in, we know how much money's been recovered, we know what the scale of the debt problem has been. What we don't know and what we have to continue to monitor is the extent to which that is going to escalate. That is unpredictable. I think certainly it will increase. I think the strains in terms of being able to deliver as much as we want to are going to be very, very difficult in the forthcoming year. That is one example.
Another example might be, for example, in terms of tribunals. The tribunals operate independently. They're part of the judicial system. There is a very slight reduction in the budget there. The tribunals came under budget during the last financial year, partly because of more online hearings rather than face-to-face hearings. That may change. There may, of course, be more cases. That part of the justice system has to be able to deliver. It's one of those things where you have to monitor as you go along to ensure, but the fact of the matter is that it has to be delivered. We do have to have those cases. They have to operate and they have to operate within the correct judicial environment, and independently of Government, et cetera. We think the budget will manage that, but it's one of those things where we have to be ongoing in monitoring it. That is clearly a priority area as well.
It's the same with the funding that's been available—again, it's not my budget—in terms of the police community support officers, and so on. They are there. That is set. That funding is absolutely committed. But, of course, there are imponderables that may impact on these things, like wage issues and so on. At the moment, those budgets are there, those things have been prioritised. We're retaining nearly all the key justice elements. When I say 'core', I think core in terms of what we're doing at the moment. The challenge will be all those additional things that might impact upon us over the coming year that are unpredictable at this stage. That's why we have to keep a very close eye and monitor the development of those particular justice services.
Those services and the impact on your three elements—the most vulnerable and the cost-of-living crisis—what do you foresee is the impact on the tribunals, on PCSOs? In real terms, it's a cut because of the inflationary pressure. So, in terms of numbers of hours or people on the ground, that sort of thing, what is the actual impact to people in our communities?
At the moment, there is no impact, in the sense that we will continue to support the numbers that we have. The impact on communities may well be coming in the extent to which we can manage and cope with the scale of demand, for example, for single advice that's required. The pressures that may come will be where there are additional cost elements to be added on that are unpredictable at this stage, and so on. So, the answer is that we're moving into an area of a degree of uncertainty about what the full impact is going to be. It's one of those things you have to monitor.
But, I do have to stress again that these are budgets in other people's portfolios. These are not my portfolios. I engage in the broader sense on these. I know because I chair the justice Cabinet sub-committee that we do take a look at the overall picture in terms of the developments, what is happening in social justice, what are all the projects that are there. In that committee, we don't go into the budgets; those are left to the individual portfolios. And of course, you'll notice that some of those budgets go into health, they go into social services and local government issues, they go into education as well. So, in many ways, the specific budgets there are ones where I can talk generally about them, but I think any detail on them you probably need to put to the specific Ministers in terms of their portfolios.
And finally from me for the moment, you've talked about the conversations you've had, you've talked about the budget and protecting some of that core funding and core elements, but what's been the hardest decision you've had to make?
I don't think the hardest decision we've had to make has yet potentially materialised. I think the decisions may well come depending upon what the future pressures might be. I think, because of the approach the Welsh Government has adopted in terms of the importance of the impact it's having on people going through these particularly difficult times, the social justice elements in particular are the ones that have been very much supported and haven't been impacted, other than that they may be impacted if costs and things like that rise, and if inflation impacts on the scale of it. At the moment, I don't think there are major hard decisions that I've had to take, or that other Ministers have had to take, but that will be for them to consider in due course.
So you haven't had to make any hard decisions yet.
Not yet, but I've got a feeling that the next year is going to involve lots of hard decisions.
Thanks, Peredur. Before I bring Alun in, Minister, one of the areas that is covered by your portfolio is the work that's ongoing with the Welsh Government justice transformation programme, formerly the justice commission in Wales, and so on, which includes, of course, the aspects of taking forward the Welsh Government's proposals on devolution of justice. It's small, but it is one of the areas where there is a decrease within budget allocations within the draft budget for the year ahead. Should we take this as a signal of something? Do we take from this that this is lower down the priority ranking, at least for the foreseeable future, and what does it mean for post 2024?
I don't think it does, because, as you know, most of the justice elements that certainly I'm involved in are predominantly staffing costs and some research and so on, as was said earlier. But, of course, the devolution of justice is very much an ongoing project in terms of getting change, getting devolution, particularly of youth justice, and probation and so on. If those things were to happen, there would, of course, be costs, but then you would expect those costs to be actually devolved over. That is very much an ongoing and fairly long-term project.
Tribunal reform coming up is something that's going to be very, very important. Of course, there hasn't been an announcement formally of a tribunals Bill, but everyone is aware of the Law Commission report on tribunals—that will need to happen. There will need to be a single-tier tribunal and an apellate structure on that. That may actually result in a more efficient way of dealing with tribunals, instead of having several operating tribunals working separately. The fact that you will actually have a single tier operating in a comprehensive way may well be far more efficient. That having been said, there may well be increased demand as a result of that—the need to ensure that we have greater provision in the Welsh language and so on. So, those are things that, I think, we do have to look ahead to in the future.
Some new things that we want to see happen in terms of the devolution of justice aren't yet part of us, but, clearly, the financial aspects of them would need to be accommodated, but would be accommodated presumably as something that's devolved—that there would be a consequential to enable that to happen. So, we're in this stage where the issue of devolution of justice is an ongoing thing. Week in, week out it is consistently on my desk, but until a decision is taken that certain things are going to transfer, it is still very much the case of engaging, developing contacts with the Ministry of Justice, developing the projects that we're involved in with the MOJ, which you're aware of, some of which are accommodated within the budget already, I think. If you look at the joint programmes with the Ministry of Justice, the women's justice and youth justice blueprints, there's £1.075 million there, and in respect of the work going on with the health boards to improve access for prisoners there's £1.2 million. So, all those are things are ongoing—the drug and alcohol court, which we part fund, and the possibility there may be a problem-solving court developing in areas like Merthyr and so on. All those things are happening, but it's very difficult to be precise about them all, even to talk about budgeting on them.
I'm going to pass towards Alun, but you've been at pains in your opening section here, in answer to Peredur, to say that—. And we'll take up some individual issues with portfolio holders, other Ministers, dealing with aspects of justice and the way the devolved Government deals with aspects of justice. But you have not flagged any areas, including within your chairmanship of the oversight committee as well, that are causing you concern at the moment, in terms of the draft budget. I'm going to pass to Alun for a moment to drill a little bit deeper, but you're not signalling any alarm bells here.
No. I suppose all I am signalling is that those pressures are intense—that we have protected and we are maintaining, but the pressures aren't there for the beginning of the year and then they disappear. We're going through an environment that's very difficult, and there are certain factors that we don't know precisely how they will develop in terms of future UK Government financing, but also in terms of the impact of things like inflation and so on.
Okay. That's great. Thank you. Peredur, okay? Yes. Alun.
Thank you. It's fascinating evidence, Counsel General. I very much agree with your analysis that devolution of justice isn't simply an academic exercise, but an ongoing emergency facing people across Wales, and it's pretty shocking that some of our colleagues don't see that. In terms of the internal structure that you've just described in answer to Peredur, I was interested by that, because you chair an overall sub-committee, which I think is right and proper, but you don't have any control over the individual spending decisions of individual Ministers. So that means that you have the responsibility, but you don't have the ability to deliver. That doesn't feel very satisfactory to me.
Well, it is. In many ways, chairing it is a co-ordinating role, and the importance of chairing it and having that sub-committee is you bring all those elements together. So you have all the Ministers with their individual portfolios together to discuss the various aspects that are arising. Quite frequently, the main inputs are actually from the Minister for Social Justice, myself, and the First Minister always sits in on those meetings, and we're always co-ordinating those, but others come in, of course, where there are particular aspects there. What I have ensured that we do regularly is we do have a broad oversight of—. You saw the 'Delivering Justice for Wales' paper, and, of course, all the different heads that were in there. We do have a regular update as to what the progress is, and, of course, one of the things I've committed to in that delivering justice paper is to bring an annual report, which is really showing what is happening each year, what progress we've made, or what progress we haven't made, but basically giving an opportunity for scrutiny as to where we are on that.
Exactly, and we scrutinise you, and we need to do our best to hold you to account, to drag you—
—over various coals over this matter on an annual basis. But you are not the Minister who's accountable, and you've just said that in answer to Peredur, and in answer to the Chair. You said, for example, that Jane Hutt is responsible for a great deal of this expenditure. So you have the responsibility and the accountability, but somebody else has the day job. I'm just wondering how—. That just doesn't feel satisfactory. If I was in your situation, I'd want the cash.
No. I'd rather not, if you don't mind. [Laughter.] No, I think the answer is that it is a co-ordinating role—
I understand that; it's the structure I'm talking about.
—but where those individual portfolios come in, of course, as a committee, you have the opportunity to scrutinise those Ministers specifically on those, so the Minister for Social Justice in terms of those particular areas. So, beyond, I suppose, the broad-brush approach, which I'm doing, which is showing the overall situation with regard to justice, this scrutiny opportunity really lies with yourselves, doesn't it, in terms of getting those Ministers to deep dive into the individual budgets as you feel appropriate.
Scrutiny is about ourselves, and I'm not convinced that the structure you are content with provides adequate transparency in terms of scrutiny. Do you believe that the current range of information and transparency through the different spending streams in different departments responsible to different Ministers, who are then accountable, largely, to different committees, provides the coherence of transparency that you, I know, are committed to in Government, and that you would expect to see in terms of your ability to deliver on the responsibilities that have been given to you by the Senedd?
I think we do have that level of transparency, and the transparency is also growing as the work we do continues to grow. So, I'm satisfied with that. I'm also satisfied, I think, that we probably have more transparency than we've ever had within the Senedd on these areas.
I think what it reflects also, though, is where we are with the devolution of justice more broadly. I think, in future years—and it's probably for a future Senedd—we are moving towards the stage where you actually have a department of justice, a Minister and so on. And I think, with the tribunal reform, devolution of youth justice, probation and so on, that gets to a certain momentum where that actually becomes a necessary part of the structure.
I also think, probably, it was not feasible within a Senedd of 60 persons. So, I think, to do it, you actually need a larger Senedd—
Yes, I agree with that.
—because you need that broader number of persons in terms of the capacity to scrutinise.
I agree with you on that, and I agree with you on this sense of the need for a creation of a justice department. I think that momentum is there in the system, and the work that you've described, I think, is very important. But we are discussing the budget today, and I think one of the conversations, Chair, that we need to have is about that level of transparency that the Counsel General has said exists in the system. I'd like to test that, quite honestly; I'm not immediately convinced by the argument.
But in terms of the impact, then, of that expenditure, how can we then ensure that, where spending streams have differential accountabilities, those spending streams are meeting your objectives for them? Because if you take inequalities—and inequality is hard-rooted into the current justice system, I think—then, how would we know that that expenditure is delivering an amelioration, shall we say, of inequality? I don't think it can root it out under the current structure, but an amelioration, if you like, of inequality in the justice system.
I think it is about, as much as anything, what our contribution is to the broader equality agenda, which goes into many other areas—economic, in terms of training, apprenticeships, the whole scale of so many of the Welsh Government's aspects that are actually about moving towards that. And ours is about how the justice system can actually contribute to that.
When the Thomas commission met, one of the recommendations was that there should be a specific justice function within the Welsh Government. We're not quite there yet; we have a sort of hybrid arrangement. But it's the reason why I myself, and the Minister for Social Justice, have chosen to work very, very closely together, to ensure that—. I don't actually believe that justice can be properly delivered without embracing, also, the concept of social justice. Lawyers may argue, and judges and so on may argue about what the role of justice actually is, but I see the two as being extremely integrated.
The evaluation of it really is by, I suppose, reporting on the things that we are doing, and the evaluations that take place as a result of those. The drug and alcohol court in Cardiff, which we part fund with the Ministry of Justice, has had its first annual assessment. It's too early to properly evaluate it, but the early indications from that independent assessment are actually very, very positive, and lead one to believe that that's something that we'll need to progress. The same will be in terms of the initiatives—the women's pathfinder system and the youth justice blueprint as well, the analysis of what impact it has, what data comes in in terms of what the difference and the evaluation of it is. So, those are things that we are doing.
But I suppose part of the difficulty with it, if I'm totally frank, is that we only engage in certain parts of it, and the biggest issue that we do raise—and this is, I think, in many ways, one of the most important things that has to be addressed—is the disaggregation of data. Unless you know, unless you have the data within Wales, and even broken down in terms of parts of Wales, as to what is happening within the justice system, what is happening to people, how many people are in courts and so on, what the make-up of them is, what their backgrounds are, unless you've got that, it's very difficult to actually develop justice policy. This is a point that we've made—myself and the Minister for Social Justice—in all the meetings that we've had with UK Government Ministry of Justice officials, Lord Chief Justice, and so on.
It was a point that was made very much by Cardiff University in their recent publication on criminal justice. I was absolutely shocked when I saw the data in terms of Wales having the highest number of citizens in Europe that are actually in prison, pro rata, and also that the make-up of those and those on probation is almost, I think, two thirds or 70 per cent from non-white backgrounds. That is data that we should have, that we should know about, that we should be able to take into account in evaluating. It shouldn't be dependent upon freedom of information requests and so on. Until we have that data, it will make the development of justice policy extremely difficult and uncertain. That's why we keep pressing that point. I think we have agreement, and I know there are complications as to how you actually get it when you're starting from scratch, but it is something that we do have to have, and it's fundamentally important to the future of justice within Wales.
Thanks, Alun. Minister, I'm going to bring James in now to probe a little bit further here, but can I just ask—? There are two aspects to the data. One is, as you rightly flag, and as external commentators have flagged, the sharing of data in terms of what operates currently within the justice system within Wales—data that is needed in order to deal with the way that the devolved Government then engages with that and tries to, as Alun said, ameliorate some of the issues there.
But the other one is internal data in terms of the budget. Part of the work that you said you were going to take forward was to look at how you can actually get more granular, down to the details, so that we and the thematic committee can actually follow where the money is being spent, and then follow what the outcomes of that spending are. Can you give us an update on where you are with that? Is that work you're currently taking forward?
I think we are, Chairman. In the 'Delivering Justice for Wales' document, obviously we have, at the end of it, at the annex, that work programme of justice-related activity, some of which, within the document, we've been able to say the level of funding that was put forward at the time, and others, it was still being worked through at the time we published. It was obviously a snapshot. And then, the annual report will then be able to update on—. Well, hopefully, it will be able to update on both those things, so, first of all, the degree of the expenditure there's been, against what was forecast, but also what evaluations there are of outcomes. I suppose it's important to say that all of this, although we've presented it as sort of a—. It's a snapshot of justice-related activity rather than really formally a programme of things. It wasn't put together from scratch; a lot of it is activity that was ongoing. So, it all has its own—. They're all on their own individual cycles. They're evaluated at the time when you'll be able to get the most useful evaluation. So, it means that, at any point in time, when you put out a report, some things will be finished, some things will be ongoing, some things will be gestational. I think we understand where the committee is coming from we and have our own need to, as much as possible, have an understanding of the same questions that you're looking at.
Okay, good. Well, anything you can continue to share with us on that, we'd be very grateful for. James.
Diolch, Gadeirydd. Minister, we're about three years, three months-ish, now, from when the Thomas commission gave its recommendations to Welsh Government. I know that you've mentioned a few of them as we've gone through the opening of this meeting, but I was just wondering if you could go a bit further on where Welsh Government are with implementing some of the recommendations in the report, and any financial constraints that you've come up against when trying to deliver against those.
Thank you for the question. I suppose one of the reasons we produced the 'Delivering Justice' paper was partly to give as comprehensive as possible a picture of what was happening in the justice scene. What I felt after the Thomas commission's report was that it covered so many areas, yet, what we didn't have was a very comprehensive picture of all the things that were going on, and it was in a number of factors. I mean, one is the fact that we are co-operating and we are working in partnership with the Ministry of Justice in a variety of areas—perhaps not as many areas as we would want to, and, of course, often, we are funding from devolved budgets into areas that are reserved. But, the delivery of justice overlaps into all sorts of portfolios. That's why we've been arguing so strongly about the need for the devolution of justice.
In terms of putting the case for the devolution of justice and the progress on that, that is something—if we have to be totally honest about it, the current Government is not going to devolve anything further in terms of justice, irrespective of what the merits of the case are. I think that has been made very, very clear. It has been made very clear in statements by the leader of the opposition in the Senedd as well. And I find that really quite disappointing because it means that, irrespective of the merit, irrespective of the data, irrespective of what the benefits are, nothing is going to happen. And what I thought was important about the 'Delivering Justice' paper is that what we were trying to do was shift that debate away from, 'Look, we've been stuck in this debate about who controls this, justice, whose responsibility is it, et cetera, as opposed to how it is delivered. Let's get away from that; let's talk about how justice is delivered'. And some of these arguments are as relevant to regions of England as they are to Wales and so on, because of the way in which the delivery of justice is so integrated with so many others—education, housing, social services, health, and so on. So, I think we've started to try to change that debate. But, at the end of the day, we have to recognise that the actual devolution of justice is going to be dependent on a decision being taken elsewhere.
That's why I was really quite—. I think the recommendation that was made in the Gordon Brown report is an important one to latch onto, because it talks very specifically about youth and probation. We have argued those, and we argued, in fact, in the 'Delivering Justice' paper that those are the most obvious examples of things that need to be devolved. There is almost no answerable case as to why they should not be, and that is why I've been pressing very much in all the discussions I've had around that. So, in terms of the meetings I have, in terms of the meetings with Ministers, in terms of engagement, those are the issues that we're raising.
One of the things that is happening that I think is very important, of course, as part of the inter-governmental arrangements is that Lord Bellamy has confirmed, now that we've asked, that the inter-ministerial group on justice is going to be set up. That is an important step forward. I can say also, I think, that, in respect of youth and probation, I want to start work now on what it would actually look like, what are the mechanics of actually operating it from Welsh Government, because I think it will happen. At some stage, it is inevitably going to have to happen, and I want to make sure that it's not going to be a case, then, of how would we manage youth justice, how will it fit in within our justice system, how would probation operate. So, I think that we need to start looking now on the basis that it is going to happen and that we're prepared for that, and that we have established the structures and mechanisms, firstly for youth justice being tied in within the independent justice system, but secondly, also, with probation—that we have probation operating within the right structure. So, I don't think it's an easy piece of work, but I think there's a piece of work there that, if Government were to turn around tomorrow and say, 'Okay, you can have it. How is it going to happen?' we need to be in a position to have that plan there. So, that is work that I would like to see starting fairly quickly now.
Okay, thank you, Counsel General. As you said, it's a political decision that's going to be taken elsewhere on the devolution of justice, and the people of the country will have their decision on whether they want that to happen in the not too far distant future, because it'll be in political manifestos, but we are where we are and we've got to make work what we've got currently. Lord Bellamy came here in December, and he was very clear that a priority for him was to strengthen the inter-governmental framework of the administration of justice between the two Governments. You outlined then just what you have been doing, but could you go a bit further to say what other work you're doing around this, working with both Governments together, to actually make sure that people in Wales have the best justice system that they currently can have and to make it better under the framework that we currently have got?
Well, look, the first thing is that the inter-ministerial group will be a significant step forward in actually doing that, with Governments working together, because you'll be able to raise things now in a forum that we don't have at the moment, other than meeting with members of the judiciary, meeting with the Lord Chief Justice, meeting with Lord Bellamy—as you met with him, I also met with him in a similar fashion.
One thing we have done, one of the Thomas commission recommendations that's very important is, again, the Law Council of Wales, which has been set up, chaired by Supreme Court judge David Lloyd-Jones. I think that is a very significant step forward. It has a number of areas of work; it engages with the law departments of the Welsh universities. It is early days, it is a relatively new body; I think it's just completing its first year. I've been attending meetings and giving oral reports to engage with them on it, and will be doing so again in the fairly near future. And I think that is a significant step in creating a comprehensive Welsh forum.
The other area we're working on is the area of legal apprenticeships and, of course, we are funding a number of those—I think up to level 5 in terms of practitioners in terms of legal executives. And, of course, we've just, I think, put out to tender work to be done in respect of looking at the issue of solicitor apprenticeships as well. So, that is work that's ongoing. I don't know, James, if there is anything else on that that—
On the apprenticeships? No, it's out to tender, currently.
So, that is there at the moment. In terms of the other engagements, they're the ones we've mentioned: the work that goes on on the blueprints, the family drug and alcohol court pilot and the fact that there will almost certainly be engagement in respect of the possibility of the development of a problem-solving court in Merthyr. We're engaged with various projects that the Ministry of Justice is funding in terms of the development of law centres and so on. So, there are a number of those that are under way and those are things, hopefully, that we'll be able to report on in the annual report. So, there is a lot of movement in a lot directions, but it is slow and incremental, which reflects, really, the nature of the justice system at the moment.
Okay, that's fine. One thing that you'll be aware of, Counsel General—something that we've talked about here—is access to legal aid within Wales, and the UK Government has now provided its full review into criminal legal aid. Have you had time to make an assessment of that yet? And have you had a chance to respond to the report? And, how do you think that that's going to impact on people in Wales?
I have. I have discussed it with legal practitioners as well, and I discussed it, in fact, when the report was being prepared with Lord Bellamy, and again, more recently. I suppose, what is disappointing about it is that there hasn't been a grass-roots evaluation, really, of the whole nature of legal aid and the extent to which it is working. And I come as a lawyer from a background, where, when I started, you had something called the 'green form scheme', which meant that someone, depending upon their means, could go to a lawyer and get advice on any issue up to a certain value, and it was about the empowerment and the understanding that access to law is about the empowerment of people and people who are the most vulnerable and poorest within our society. And of course, that was the ethos when the legal aid Act was implemented and established in 1947 or 1948—1948, I think it was—when it was looked at as almost like an NHS of empowerment, giving people access to the law. Over the decades, the whole access to legal aid has been increasingly diminished through one means or another.
Putting in £138 million, in response, is obviously welcome, but the problem is that it is by no means sufficient to actually deal with all the problems that exist within the legal aid system. Increases in some lawyers' fees of 11 per cent, as opposed to the 15 per cent that was recommended, has not gone down well and is probably not sufficient, and bearing in mind that we also now have the massive inflationary pressures that will further bite there as well, more and more lawyers are opting out of actually doing legal aid work, because it is not financially viable and the fact that, in parts of Wales, we have very limited access to lawyers.
I think the fact that the restructuring of fees isn't taking place until 2024—that is something that is really necessary—is a big mistake. And again, I had representations made very recently when I addressed a public law conference—the fact that the fees haven't gone up for prosecutors, so, you have people now who are dropping out, saying, 'Well, I won't bother doing legal aid prosecutions anymore'. Well, what state is our justice system going to be in if you haven't got people to actually do the prosecutions? That is a really significant factor for the justice system. The issue with the standardising of police station fees has been agreed, and that is to be welcomed. But it's been delayed, so all these things are being pushed back several years, and that is significant.
And I'd say one thing that is a real weakness in the whole approach, and that was that when someone is in a police station, they should have legal representation. What tends to happen is now that people are asked if they want representation, but what we know from Lord Bellamy's report is that something like 50 per cent of those who are taken into custody in police stations in parts of Wales don't have any legal representation at all, because they've chosen not to have it. But there should be a presumption of representation; that is, people should opt out of being represented. There should be a specific decision by someone to say, 'I do not want representation.' And that shift would be quite significant, I think, in addressing the fact that so many people are not having access to a lawyer when they're taken into custody, when quite clearly, the law intends that they should have that. So, I think that is the big weakness of that as well. So, whether that was done because it saves money or whatever, I don't know, but I think in terms of the delivery of justice, it's a big mistake.
I want to jump back quickly. I know when Lord Bellamy came, we'd had a discussion around the Supreme Court, Chair, and making sure there was actually a seat for a Welsh person on the Supreme Court. I know Lord Bellamy said that he didn’t think there’d be an issue because Wales has always had representation on the Supreme Court, but things do change, and personnel change. What discussions have you had with Lord Bellamy about ensuring that there is Welsh representation on the Supreme Court there, to make sure that we will always have representation? Because as I said, things do change.
Well, can I just say first of all that we haven’t always had representation, if we take the Supreme Court and then its predecessor, the House of Lords? David Lloyd Jones was a very specific exception, and I think represented the fact that representations have been made—the Thomas commission, and so on—that there should be, on the grounds that the Supreme Court, as part of its founding principles, should be representative of all parts of the UK. There is a misunderstanding and a belief that, actually, we do have representation on there, but we don't. The representation in the Supreme Court is on the basis of jurisdiction, so Scotland has representation, Northern Ireland has, and England has, by virtue of it being the England-and-Wales jurisdiction. Whether there is a Welsh member of the Supreme Court is down to, basically, the Supreme Court deciding that they want someone with knowledge of Wales, as part of the England and Wales jurisdiction. I think that is an absolute nonsense. I think where you now have the Supreme Court playing clear constitutional functions, and you have four Parliaments, clearly there should be a specific designated statutory Welsh representation, a Welsh judge on the Supreme Court. We don’t have that at the moment, and it’s a change that needs to take place.
Have you had those discussions with Lord Bellamy?
I beg your pardon. Yes, I’ve raised them with Lord Bellamy; it’s raised at every opportunity, and the message is there. Part of the reason why there hasn’t been movement is because of this sort of—I think it’s more political than legal. That is, we have an England and Wales jurisdiction, and any suggestion that we then have a separate Welsh judge would imply that we actually have a Welsh jurisdiction. Well, we do have a de facto Welsh jurisdiction; it’s just not part of our constitutional structure, so the constitutional structure is way behind, really, what should be happening in practice, and hopefully, there will be catch-up at some stage.
That’s brilliant. Thank you, James, very much. Before we head off from the budget and go on to other areas of wider scrutiny, just to return to one aspect: you touched on the impact of the Retained EU Law (Revocation and Reform) Bill in broad terms, but have you done any analysis?
One of the frustrations we have as a committee, and I know it’s shared by other committees, is we keep being told, 'We’re not quite sure what the shape of this EU retained stuff is going to be, so we can’t really tell you yet.' But you must be doing some internal workings out here to say what impact this could have.
I’ll bring Robert in in a minute. But I think the problem is that it’s very difficult to analyse what you don’t know. [Laughter.] But, Robert, over to you.
Chair, I think I have to agree with that. I think one thing I can say is that, as you know, the Bill gives options to preserve or assimilate retained EU law, or reform or repeal it, or whatever. I think the extent to which UK Government departments seek to assimilate or reform, and we still don't know what that will be yet, that will have an influence on the way we approach things. So, we are—
So, at the moment, it would be fair to say it could have an impact on the budget, but we do not know yet whether it will have an impact on your budget and priorities.
It will certainly have a massive impact on giving it the attention that it needs. The question is what the scale of that attention is, what impact it has on other areas that need attention, the way resources are spread around. As I say, it's one of those things that we are continuing to work on, continuing work to identify those particular areas. You know about the work going on with the National Archive that's taking place and, of course, you've talked about some pre-devolution statutes as well. The work is ongoing as well with the UK Government, who are in the same position, to be honest, as is Scotland, and, of course, you may even be aware that there are immense pressures in the Westminster Parliament over this now, where they're beginning to realise themselves the impact of this. I think there is now a cross-party group of Members of Parliament who are going to say, 'Look, in actual fact, anything that is retained or not retained, et cetera, we need to know what it is and approve it.' Of course, that comes back to the points that we've made in debates either in the Senedd here, or I've made in this committee—
So, what's your judgment at the moment in terms of, whichever way you want to phrase this, the likelihood that this is going to have an effect on the priorities that you've outlined in your budget for 2023-24?
All I can say is it will have an effect, I just don't know what the scale of that effect is—
Right, that's fair enough.
—and it's ongoing work. Obviously, we'll continue engaging on this.
We'll watch with interest. Let's turn to a different area now. If we go on to the United Kingdom Internal Market Act 2020, could you just outline—a broad question to begin with—the Welsh Government's position on the impact that the UK internal market Act has on the practical effect of Senedd legislation? I'll go on to some more detail, but in broad terms.
In broad terms, our legal analysis and position is that, effectively, the internal market Act does not trump our own legislative capacity in devolved areas. I suppose the difficulty is what that might mean, depending on a case-by-case basis, on pieces of legislation. When the internal market Act came in and, of course, we started the legal challenge, it was because that was our view. Was that a view that was shared by UK Government? What did it actually mean in practice? You'll be aware that, I think, every statement I've ever issued has been along the way that as far as I'm concerned, we can legislate in our devolved areas, we will carry on legislating in those devolved areas, but, at some stage, there may well be a challenge, or a conflict is going to arise.
I think it was two years ago, wasn't it, that, of course, we started the process, in fact, just before the end of the last Senedd term, when we were certainly in a state of flux in terms of understanding what was happening. Of course, the internal market Act had not only issues in terms of the issues of mutual recognition; it confused the issue of the common frameworks, which were being discussed at the time, and which there had been quite considerable progress on, as well. It also gave certain financial powers to the UK Government, as well. So, overall, the internal market Act was very, very unsatisfactory.
My approach to this all along has been that our primary function is to ensure that we preserve and protect the devolution responsibilities that we have, and that our interpretation of that is correct. It was a question of, basically, trying to be aware of where challenges to that might come. Sorry, you did ask in simple terms, I hope I haven't gone to—. But that is my position at the moment, and that remains my position.
I should forewarn you that this was literally raised with me by a constituent in a surgery on the weekend. You didn't expect that.
To do with energy-efficient appliances and whether more energy-efficient appliances could be promoted for use, or restricted for sale and distribution here—put manufacturing to one side for a moment.
But let me turn to it, you've just introduced a new phrase to our lexicon now as a committee: 'does not trump devolved competencies'; 'does not trump'. We've had Ministers in front of us explain to us why certain legislation in front of us at the moment 'does not bite' on devolved competencies.
So, what we're trying to see, as we have this emerging picture, which we fully understand Welsh Government is also trying to get to grips with as well, but we're having different approaches, it seems, to us taking—. The Genetic Technology (Precision Breeding) Bill and the Environmental Protection (Single-use Plastic Products) (Wales) Bill, both of them create different regulatory systems in Wales and England for the provision of certain goods. Why does the Welsh Government believe that the UK internal market Act does have implications for Wales on the Genetic Technology (Precision Breeding) Bill, but, as the Minister said to us, it does not bite on the single-use plastics legislation? Do we have an inconsistency? Or is this Welsh Government learning as it goes? Or is it case by case? What's going on?
Well, I don't think there is an inconsistency, and I'll perhaps try and set it out in this particular way: single-use plastics is within our devolved competence; we've passed an Act on that. When we started the initial challenge on the internal market Act, we felt that there was a strong case to argue this on the basis of the principles. We wanted to go to court, and say one of the functions of the court is to give clarity on what this means, in terms of what the relationship is between the two pieces of legislation. This is our understanding; we want that clarity. The Court of Appeal didn't go down that particular road, and we then sought to try and take it to the Supreme Court. The Supreme Court said 'no'. The decision by the Supreme Court saying, 'No, what you need is a piece of legislation to put before us.' If you don't mind me going on a little bit, our Act was passed, and, of course, as Counsel General, it falls to me to decide whether or not the matter should be referred to the Supreme Court, et cetera. The view I take, very clearly, is that it is completely within our competence, for the reasons I've already outlined. It is also open to the Attorney-General to refer to the Supreme Court. The Attorney-General has chosen not to refer it to the Supreme Court. I'm happy to endorse the decision by the Attorney-General that the single-use plastics Bill, which is probably the most advanced of all the legislation in this area in the various Governments of the UK, is completely within our competence.
Can you just clarify for me, Counsel General, has the time now lapsed for that challenge by the Attorney-General? It has.
The Attorney-General would have had to refer it to the Supreme Court by 3 January, and has not done so.
So, is your reading, as Welsh Government, that with that piece of legislation, where, as you say, your reading, which did at one time suggest that this might be used as a challenge to test it, but you chose not to, the Attorney-General's chosen not to, do you see this now as marking a precedent in the way that—
I think it is a precedent. I think the fact that the single-use plastics Bill has now been passed, will be going for Royal Assent now—. I think there is a period of time before implementation, because of the World Trade Organization requirements, et cetera, but the Attorney-General has clearly taken the decision that it's not a matter to be referred to the Supreme Court, and I'm content to accept that. It doesn't mean that there aren't issues with the internal market Act, but they may arise at a later stage. Perhaps that's useful for me to take you on to the Genetic Technology (Precision Breeding) Bill.
And in so doing, I wonder if we can go beyond the competence and devolution aspects as well, onto the practical effect, because this becomes quite interesting. Beyond whether there will be challenges, whether this will be tested in different forums and so on, to the practical effect, because you have made the decision on the Genetic Technology (Precision Breeding) Bill that that does have implications for Wales.
Well, I'll come to that one in a minute. What I'm content with is that the Attorney-General, and the Presiding Officer, and myself have all agreed that this Bill is within our competence, and I think that is significant. The genetic technology Bill—the reason that has a difference is that for England, the regulations, of course—. The Bill would apply to England, and change the regulatory regime there for those modified products. The problem is then that the internal market Act means, in terms of mutual recognition, they would have access to the Welsh market. Now, we can legislate to restrict that. I believe that that was our competence; our position is exactly the same as with the single-use plastics Bill.
The only difference is, of course, that labelling is a reserved matter. So, unless you can actually have these things labelled in a way that you know what it contains, how do you actually enforce? For me, the real issue is the fact that it doesn't impact on our ability to legislate using our devolved responsibility, should we choose to do so. The problem is, because we don't have labelling as a devolved responsibility, we have no way of knowing what might be included within the products that are being produced in England.
I may need to write to you on this, because I'm still struggling to see what the difference is between that and the application of UKIMA in terms of the genetics Bill and the single-use plastics Bill. Because, equally, that read-across on the UK internal market applies to the single-use plastics, in practical effect.
No, because we've legislated. We've legislated to prohibit. And we will be able to identify what those items are, and we'll be able to prevent them. In fact, it will become a criminal offence to supply them.
That's the difference—we've legislated. We can legislate, equally, on the genetic technology Bill to say, 'No, we do not want to accept these products et cetera. They are not acceptable within Wales et cetera.' But the problem is: how do we actually know? If we don't have any responsibility for labelling, what is contained within the labelling of products—. Single-use plastics are identifiable. We know exactly what they are. You can see what they are. A product comes in, and what it contains and what the make-up of that product is, you just don't know. So, what it does is that it actually creates a real issue in terms of enforceability and knowledge, and it's one of the weaknesses in the devolution settlement. Does that—?
Rather than prolong this very interesting discourse, we might write to you further, because we suspect that there is interplay between the application of the law in England—the UK internal market Act—and SUP. Even though it's now on the statute book here, that doesn't necessarily mean that's the end of it. But we'll write to you and see if we can understand a bit better why it doesn't apply at all in Wales.
Okay. Just one short comment that I wouldn't mind hearing from you. All of the three committees that looked at the the Environmental Protection (Single-use Plastic Products) (Wales) Bill were critical of the expedited process. I don't want to go through the whole history of this and the reasoning that was given and the rationale given to the Business Committee and to us and other committees as to why an expedited process was necessary, but what have you learnt from that? Because, clearly, we as a committee, and thematic committees, are not naturally disposed towards expedited scrutiny because it does mean that we short-circuit scrutiny. So, what have you learnt from that in terms of any other requests that might come forward in future, perhaps?
Well, I think it's really a question of an understanding as to why it was necessary to seek the expedition of that Bill. There were two reasons. The Minister for Climate Change's position has always been that they wanted the legislation as quickly as possible, and there'd been considerable discussion, et cetera et cetera. That's a matter for the Minister there.
For my concern, it was necessary to have the expedition because we needed to have a Bill that we could use to test, in view of what was happening at that time, within the process of challenge that we were making, which was a judicial review; it was effectively seeking clarification from the court at that stage. So, we had to go down that road, and we had to have that within the armoury.
What began to change, of course, was that the judicial review process didn't then go to the Supreme Court, because the Supreme Court refused. So, we were then left with the issue of having the Bill, and then having to take a decision as to whether we wanted to use that to refer to the Supreme Court. The view that I took then, at that stage, is that we've now got the Bill, we can do this, but how confident am I? I'm very confident that this is a matter within our competence, and therefore took the decision as Counsel General, as law officer, that I would not refer it, and the Attorney-General took the same decision. If the Attorney-General had taken that decision and referred it, we would have been in the Supreme Court, but we would have the Bill there, and that would be the basis on which we would be able to argue all those issues around our powers and responsibilities and the internal market Act. The fact that the Attorney-General didn't, I think was a very significant change in the ball game, and I think has confirmed, I think strengthened, our position and the arguments that we've always put in terms of what our devolved competences are in this field.
Okay, thank you. Alun, you wanted to come in on this.
Yes. Sorry, I was looking a bit quizzical, I think. I always enjoy listening to your explanation of these matters and I'm always struck—or nearly always struck—that they're somewhat different to the individual Ministers' explanations for these same decisions. But put that to one side. Do you think it's playing fast and loose with this Parliament's powers to use the legislative process in such a way?
I don't think it is, because I think it was justified, and I think where we would have been if we were—. Having taken a decision that there was an issue that we needed to get resolved one way or another, or we needed to get greater clarity on, how do we do it? And one option is a legal challenge. Legal challenges are always complicated, because you may lose, and that changes dramatically and so on. So, really, I think, once the Supreme Court had said it wasn't going to hear the matter, the issue became, basically, how can this matter come forward. It can only come forward by a Bill being referred to it at this stage. When the Bill was passed—and it's only then that my power to refer it is triggered—I have to do an evaluation then as to what is the right thing. I have the Bill, I can refer it, we can use it as a mechanism for raising these particular issues. I was actually really moving very strongly towards the view that we shouldn't do so, because we don't need to do so, because of it being so clear that this is a matter within our competence and the analysis we have of our devolved responsibilities. I therefore took the decision that I'm not going to do it; if the Attorney-General does then we will challenge those issues. The Attorney-General, I think, has adopted the same position that we have. I think, in many ways, what we have done is we have actually achieved the outcome we want. It hasn't quite worked in the same way, but I think the decisions all along the way, that we needed to get that Bill, to have it there, to be able to use it or to be able to test it, were important. The fact that we didn't in the end, you know—
I get that, but that's not why you pass legislation, is it? You pass legislation or change the law in order to achieve the objective of the legislation. And it worries me. Now, you know, I haven't got clean hands on this, I accept that. I've expedited two Bills, or Acts as they are now—the control of horses and the agricultural wages board Acts—and we understand that. So, I do understand that the Government does have very clear reasons why it would wish to do that. However, the other lesson we've learnt in the last decade or so is the dangers of doing so. I wouldn't say almost all the problems we're facing over Brexit at the moment are a consequence of the legal issues, because it is in itself a problem, but expedited legislation is more likely to be bad legislation than good legislation, and the power of the parliamentary process, the barriers that are placed in front of a Minister to legislate, enable public testing of the Minister's arguments, and, where that is reduced, particularly Stage 1 scrutiny, you have a greater potential for bad law to be created.
Well, listen, I think, in principle, that is right. If the only reason for bringing forward the legislation was to try and pick a constitutional, legislative fight et cetera, then that would be wrong. I think the fact of the matter is I think there were two angles to this, one of which, of course, is not my concern—my concern is in terms of the legal aspects that I want to pursue, which were started by my predecessor. But the other one is that we did need to get moving very, very quickly in terms of the issue of single-use plastics. It was for that reason, I think, a draft—. The point you make about Stage 1 is right, but it was for that very reason that it was presented as a draft Bill, to try and maximise the deficit within that. But, in principle, you're right—Stage 1 is a very, very important part of the legislative process. But I think there were two—. There always were two barrels to this, or two angles to this. One is that we desperately did need to catch up and to get this legislation on the books as quickly as possible. There'd been considerable discussion, as you know, about it. That was one of the things I think that mitigated. I think the other mitigating factor was the fact that the draft Bill was published, so people could see it before the expedited process started. But the second one was, of course, there were opportunities there as well that I wanted to raise, in terms of this was an ideal way—. This Bill was going to be coming forward; we needed to have the timing of it right, so if we did need, as the courts were saying, a piece of legislation, that we had that that we could do.
Now, we're going to try and get through at least three areas with you before you have to leave us, so I'm going to skip over one part, which we might write to you about, to do with inter-governmental working and how things have progressed there, but, James, I'm going to come to you and to the area of retained EU law, please.
Yes. As you say, Counsel General, there is a cross-party group now who actually have concerns and issues with the Retained EU Law (Revocation and Reform) Bill, and I'm sliding into that camp as an avid Brexiteer as well—I want things to be done properly, not rushed. So, what discussions have you had with other devolved Governments across the United Kingdom about the impacts of this?
I've had discussions with my counterpart in the Scottish Government, Angus Robertson. I've had at least two meetings with Minister Rees-Mogg, who initiated the process. There is an inter-ministerial council meeting, which is part of the inter-governmental framework, where it is on the agenda, I think in the first week of February, and I will be specifically raising this issue there, and there are other discussions taking place either inter-ministerially, or between officials, around this at the moment. Does that help?
Yes. I'd be very interested to find out the work of that meeting in the first week of February, so if we could have a note of what was discussed, it would be very good.
The Welsh Government's supplementary legislative consent memorandum acknowledges that amendments put forward were not successful. Does that change your approach to the Bill?
No, it doesn't, because the flaws in the Bill are particularly clear. We've raised a series of issues in the early discussions with Minister Rees-Mogg. We were given guarantees all along the way that there would be early engagement. There was some engagement, but it was not as comprehensive as should have been the case, but doors weren't closed in that sense. We were given assurances that, yes, devolution would be respected within that. Well, of course, what you then have is a piece of legislation that has a number of things that are of concern. If I just highlight the main ones, obviously the sunset clause, which I think was motivated by non-legal motivations et cetera, that everything would be completed, everything would be wiped out, all retained EU law would be wiped out, by the end of December of this year, but there would be a power of extension.
I think the power of extension was put in because I suspect there was a considerable view that December 2023 was just unachievable, and there was a need to add the capacity. The only problem is that's a capacity that exists for UK Ministers; it doesn't exist for us in terms of devolved legislation. So, there was a major issue there. And we'll continue making the point on this. I've had an unsatisfactory response, I believe, from Minister Grant Shapps that basically says, 'No, everything is okay, devolution is going to be respected' and so on. Well, the Bill as it stands I don't think does actually do that.
The other one is, of course, concurrent powers, and it seems to me that it's completely wrong that UK Ministers should have powers to be able to change the law in devolved areas. So, that's an area, and, of course, you'll see within the LCM that, as time has gone on, those are the areas why we cannot possibly concede or recommend to the Senedd that that legislation takes place. There are other issues in terms of the regulatory burden. There are other issues in terms of the intervention powers of law officers; the powers of law officers for devolved Governments are fewer than those of UK Government law officers. And, of course, there are concerns about the indirect consequences that may impact in devolved areas—employment-rights changes and so on. So, those are the concerns with it constitutionally, and those are the areas where there are ongoing discussions. And some of the concerns in terms of its deliverability are probably quite mutual amongst a lot of MPs and, as you say, there is this cross-party grouping there now, and I think that is because there's increasing recognition. I don't know whether, Robert, there's anything you want to add on that aspect of the retained EU law and the issues there.
I don't think I really have much to add to what you've said, Counsel General. Thank you.
You answered my other question within your answer there, but I do have one: what discussions have you had with the Trefnydd and business manager to raise this at a Senedd level with the Llywydd, because this could have major resource implications, as you said, for the Welsh Government, but not just for you, but for us in this committee as well? We'd almost have to meet three times a week to get through these pieces of legislation. So, have you had those discussions with your Cabinet colleagues, to make sure that the Senedd and the Senedd Commission are aware just how much this could impact us here as a committee?
Well, certainly I've raised it within Cabinet, and I think everyone is aware of this issue. It's becoming a much more conscious political issue across the board, in terms of what the legislation means. As far as I'm aware, I think this committee has raised it as well with the Llywydd, so I think the Llywydd is aware of that. Are there any other aspects in terms of that, Robert? I think everyone is aware that there is this. The problem is, we are not completely sure, at this stage, what it actually means, what may happen on the legislation, what may be the outcome of some of the changes and discussions we want, what may happen in terms of the work that's going on at UK Government in terms of the listing and the identification of them, and the evaluation, and the work that we're doing, so it is still very much work in progress. But we still do not have a complete understanding of exactly what's going to be involved, what may change, what may be the things that we could actually do to limit the impact. If, for example, there was an agreement that there would be an extension, well, that would be very, very significant for us, because I think we would certainly want to make use of that, to enable us to do our job properly. I suspect that the extension is something that is going to have to happen, because I'm not sure any part of Government in the UK is going to be capable of actually delivering this. And I think there's a recognition that suddenly having some 4,000 pieces of legislation wiped off the statute book, without any real proper evaluation as to what it means, et cetera, or any proper scrutiny of those decisions that are taken not to retain items of legislation, I think is very significant. But it is very much ongoing at the moment.
Okay, thank you, James. Counsel General, as we sit here today, there's been an amendment tabled, I understand, in the Westminster Parliament, which—indeed, to pick up James's theme. It's tabled by a Labour Member, but it's got cross-party support, and it actually requests, as an amendment, that the Secretary of State should actually publish a list of all the REUL that is to be revoked and gives powers to the Commons and Lords to amend that list. Have you had time to look at that? Have you got any initial thoughts on that, and will you be engaging with the Commons and Lords, to see if you can constructively further that as a suggestion?
Well, I was engaging. I was in the House of Lords last—
—Monday. Sorry, the days move very, very quickly. Last Monday, where we were raising this and a number of other issues similar to that, and having similar discussions. So, that is ongoing. I saw the reports of the amendment and so on; it's an amendment that I think is an absolutely essential parliamentary amendment. If legislation is going to be changed, if it's going to be wiped out, if it's going to be retained or whatever, then it has to be accountable to Parliament. In order for that to happen, Parliament has to know. And I think the same equally applies in terms of the Senedd, in terms of Welsh legislation. So, that's very much in my mind as well.
Thank you very much. We'll watch this space, then, on that one. But, Peredur, over to you to take us into another—.
Just following on from that, with capacity issues, what contingency plans have you got if you have to divert drafting secondary legislation that would be for Government policy into drafting secondary legislation needed to save or reform the REUL?
Well, I think, at the moment, in terms of contingency planning, we're not at the stage where I think we're able to do that, until we actually have a better understanding of what may happen, how it might happen, or what might be needed to happen. But, certainly, the focus on the resources that are needed and what's required to manage it, I think it's an issue for all the Governments within the UK, and it's something that I'm paying very, very close attention to, and certainly hopefully I can—.
So, you've got nobody looking at that at all at the moment?
What we have is people looking at the continuing engagements going on at UK Government level on the work that they have going on, our own internal work to identify that, but also the political discussions that are taking place as to what exactly is going to happen with this Bill, what changes may be made to it, and what we will need to do to accommodate that. Now, that's, I think, where we are at the moment. I don't know, Robert, is there anything to add to that in terms of planning for this?
We have been doing some work to identify retained EU law made in Wales, but in terms of the wider project across the UK in terms of devolved retained EU law, yes, we're still waiting to see what the UK Government's precise intentions are to do with retained EU law as it applies across the UK, GB wide, England and Wales, or even England specific.
But just from a practical point of view, we know that this is happening. Surely, you should have some sort of idea of where you would move your resources from and to, so that at least you could react within the time frame that's needed.
Well, the answer is 'yes', but it's difficult to say what those would be until we have a clearer picture as to, firstly, the outcome of the work going on in the UK Government and our own National Archives work as well. But, we know what our key objectives are, and the objectives are to maintain standards, to maintain Welsh law as far as possible as it is, so that it can be changed as and when at timings that are suitable to us. And that is going to depend, firstly, on whether there is any success in actually changing the power of extension, but also in terms of the changing of concurrent powers, because we need to know the extent to which devolution is going to be respected. If they retain concurrent laws and concurrent powers within the Bill as they are at the moment, well then it's pretty much open in terms of things that might happen, in terms of things that might be interfered with. So, getting those legislative changes, I think, is really quite important, and I think there's going to be certainly a major battle at Westminster on that.
In the meantime, we are doing what we can to evaluate Welsh legislation, to evaluate the UK Government legislation, but, in order to do that, the starting point is knowing exactly what it is and knowing what the main item is there and what the priority areas are there. The scale of it is absolutely enormous, and that's why it's quite important that we have this ongoing process. I probably can't tell you any more than that, because the answer is beyond that. Beyond what I've said now, I don't know, other than that we are continually monitoring the situation.
So, we know that that's coming over the hill, if you like, but then the volume of LCMs just keeps piling on, and it's significantly higher in this Senedd than it was in the last. What are your reflections on the way that this impacts this Senedd's ability to scrutinise legislation?
Well, the first thing I'd say is that the issue of the number of legislative consent memoranda, by and large, is not within our gift. That is, we have functions in terms of our Standing Orders that where legislation either changes or impacts on devolved responsibilities, we have to bring forward a legislative consent memorandum. There are some where they're more on the periphery—that is, it doesn't impact in terms of our devolved powers, but impacts on our devolved functions. That is, for example, retained EU law, one way it impacts on our functions is, although employment law is reserved, if there were major changes to employment law by virtue of the retained aspects of employment law not being reinstated, that impacts on all our employer functions, and on the functions of all those who are employed in our health services, in local government and so on.
So, there are areas there where we specifically choose to put things forward in legislative consent memoranda, but the overwhelming majority are those that are a result, and almost totally dependent on the two aspects of the UK Government's legislation—firstly, the volume, the number of UK Government pieces of legislation, but, secondly, the way in which those pieces of legislation change as time progresses, as time goes on, to the extent that you then end up with supplementary legislative consent memoranda, because the legislation transmorphs as time moves on. It's one of those things that we have to do. If the UK Government doubles the number of pieces of legislation, then it will probably double, potentially, the number of LCMs. Certainly, there are bits of UK Government legislation that don't impact, that we don't require LCMs for, but we equally have to do the evaluation of that legislation. We equally have to engage with the UK Government on that legislation to ensure that is the case, or to ensure that we are excluded from it.
I'll just add one other thing, which is that I'm not aware of any circumstance where we have requested UK Government to legislate on our behalf, because I know that appears often in some of the narratives. But there is certainly no legislation before us at the moment that is something that we have asked UK Government to initiate on our behalf.
Okay, thank you. We don't have enough time to explore that further. [Laughter.] Alun, over to you.
Don't tempt me. [Laughter.] A year ago, you were putting the bunting out, Counsel General, and celebrating the review of the inter-governmental relationships. Was that premature?
No, it wasn't. I wasn't so much putting the bunting out, but I was saying that it is, potentially, a significant step forward if it works. I suppose it's a case of saying—
Has it worked is the question?
—we might be putting some bunting up at some stage in the future. But, has it worked? Sadly, I think it is still too early to say. I think all the chaos—governmental chaos—at UK Government level, up until, really, the summer, has really prevented any of that happening. The refusal of the previous Prime Minister to meet with the First Ministers of Wales and Scotland, I think, put a hold on anything happening. I'm very pleased that the current Prime Minister, one of the first things he did was to actually meet with the First Ministers of Wales and Scotland. I think that was an important step forward.
The key now, really, is that there need to be regular meetings. There need to be programmed meetings and properly planned meetings. As I say, the first inter-ministerial meeting since the summer is going to be taking place at the beginning of February. I will be chairing it. So, that is an important step forward. The inter-ministerial meetings, which are the lower rung of the new process, are taking place, and, I think, there is only one or two that have not yet started, one of which is due to be set up, and that is the inter-ministerial group on justice, which is one I referred to earlier.
So, the potential structure is better. What impact this has, and will it work, are yet to be determined. It depends very much on what happens. It is fair to say that the progress has been incredibly slow, and that there were issues that still needed to be resolved in terms of how, for example, the dispute process may operate, what may go to the dispute process and so on. Those are things that have not yet been tried or tested, but, no doubt, at some stage, they will be.
Is there anything else on the inter-ministerial side that I can add? No.
I'll leave it at that for now.
Thank you very much. We have indeed come to the end of time. Alun has brought us to the cliff edge now where you have to leave. We might write to you on a couple of other matters that we didn't have quite enough time to get to, including issues around accessibility of the law, but thank you very much for your evidence, and to your colleagues as well, for your attendance. We'll send you the transcript just to check for accuracy. But otherwise, we wish you well on whatever your next meetings you're heading to now are, and we will continue with our work. Tthank you very much indeed.
Thank you very much.
Colleagues, as our witnesses leave, if we can progress through some items of business here, if you're happy to. Actually, what we will do, if you're happy, is we'll take a very short intermission and return—just five minutes. We'll come back at 13:50. So, we'll suspend proceedings.
Gohiriwyd y cyfarfod rhwng 13:46 a 13:53.
The meeting adjourned between 13:46 and 13:53.
Croeso nôl. Welcome back to this session of the committee this afternoon. We’ve just taken evidence from the Counsel General and his team, but we’re moving on now to item 3, our regular business. We’ve got, first of all, under item 3, instruments that raise no reporting issues under Standing Order 21.2 or 21.3, and we have two items here to consider.
The first one is SL(6)302, under item 3.1, which is the National Health Service (Pharmaceutical Services) (Wales) (Amendment) Regulations 2022. These regulations amend the 2020 regulations by inserting new regulation 55A that provides that, where the Welsh Ministers or the Secretary of State have centrally purchased coronavirus vaccines, coronavirus antivirals or influenza vaccines and those products are made available to community pharmacies at no cost, then the determining authorities for pharmaceutical remuneration are to set a zero or nominal NHS reimbursement price for those products if certain conditions are met. Our lawyers have not identified any reporting points, so can I just ask colleagues whether you have any comments on that? No. I think we’re happy, then, to agree the report.
And then item 3.2, the second in this section, SL(6)311, the Non-Domestic Rating (Demand Notices) (Wales) (Amendment) Regulations 2023. These regulations ensure that the information accompanying non-domestic rating demand notices is relevant to the new non-domestic rating appeals process arrangements that will be in place from 1 April 2023. And, again, our lawyers have identified no reporting points. So, colleagues, any comments on this or are you happy? Okay, we're happy with the reporting points there.
On to item 4, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. The first of these under item 4.1 is an affirmative resolution instrument, SL(6)301, the Allocation of Housing and Homelessness (Eligibility) (Wales) (Amendment) Regulations 2023. These regulations, and I draw your attention to the draft report in our papers, amend the 2014 regulations, which make provision for which persons subject to immigration control are eligible for an allocation of housing accommodation and for housing assistance. A new class M applies to persons who are victims of human trafficking or slavery and who have been granted temporary leave to remain in the UK in accordance with the immigration rules made under the Immigration Act 1971. Our lawyers have identified two merits points for reporting, but we haven't had a Welsh Government response, unless we've got an update. Kate.
No, we haven't had the response yet.
Okay. And the two merits points.
The first merits point asks the Welsh Government why the explanatory memorandum has not been provided in Welsh, and then the second merits point just notes that no consultation was carried out in relation to these regulations because the purpose of these regulations is to ensure consistency between immigration law and Welsh housing law, as set out in the explanatory memorandum.
Thank you very much for that. On the issue of the use of Welsh, which we turn to a lot in this committee, we have under a later item, 9.3, a response from the Permanent Secretary that is relevant to this and in some ways is helpful as well. This applies also to the next statutory instrument that we're looking at as well, so we might want to return to that later. Are there any other comments from colleagues on that? In which case, we're happy to agree the report.
We turn to item 4.2, SL(6)307, the Landfill Disposals Tax (Tax Rates) (Wales) (Amendment) Regulations 2022. We have a set of papers there including a draft report, a letter from the Minister for Finance and Local Government to the Llywydd, and the Welsh Government response. These regulations prescribe the standard rate, the lower rate and the unauthorised disposals rate for landfill disposals tax, which will apply to taxable disposals made on or after 1 April 2023. We've identified three merits reporting points, one of which is the same issue around the Welsh language, but Kate, over to you for those points.
Thank you. The first merits point notes that any amounts collected by the Welsh Revenue Authority are paid into the Welsh consolidated fund. The second point draws Members' attention to an independent review of landfill disposals tax that's currently under way, and there's further information about that in the explanatory memorandum. And then the final merits point is the point about the explanatory memorandum being in English only. The Welsh Government's response justifies this by reference to the technical nature of the regulations and the small proportion of the population who will be affected. But since we received that response, we've also had the letter that you'll be considering later that takes things a bit further.
There we are. So, a good heads up for that letter at item 9.3 from the Permanent Secretary. Thank you very much. Any comments on that? No. We're happy to agree that report, then. Thank you very much.
We go on to item 5, then, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 that we have previously considered. We have one item here, it's item 5.1, SL(6)299, the Seed (Equivalence) (Amendment) (Wales) Regulations 2022. In the papers in our pack, we have a report and the Welsh Government response. We considered this instrument at our meeting of 9 January 2023 and we laid our report the same day. Members are invited to note the Welsh Government response to the report, which has since been received. Is there anything particular to raise on this?
Just that the Welsh Government are going to make relevant corrections through an amending SI at the earliest opportunity.
That's good; okay. Any comments on this, colleagues? No, we're happy with that. Thank you very much.
We turn to item 6, written statements under Standing Order 30C. There's only one to note here today, under 6.1, written statement 30C(6)022, the Plant Health and Trade in Animals and Related Products (Amendment) Regulations 2022. We have several papers there in the pack related to this. If I can just invite Members to note the written statement and the correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd in relation to the Plant Health and Trade in Animals and Related Products (Amendment) Regulations 2022 and the commentary. Is there anything particular for us to note on this?
Nothing in particular.
Nothing, okay. Any comments or questions, colleagues? No, we're okay on that. Okay, so we note that.
That takes us on, then, to item 7 on common frameworks. Under 7.1, we have correspondence from the Minister for Climate Change to the Climate Change, Environment and Infrastructure Committee in relation to the published framework outline agreement and concordat for the waste and resources common framework. It's within your pack there. Happy to note that? We are.
Item 8. We have one item here under item 8, which is notifications of correspondence under the inter-institutional relations agreement. If I could ask if you're happy to note the letter from the Minister for Rural Affairs and North Wales, and Trefnydd, which responds to our letter seeking further clarity about the making of the Organic Production (Amendment) (No. 2) Regulations 2022. All okay with that? We might come back to that in private session, but we're happy to note that.
And finally, then, we have papers to note, and we have several here. First of all—and shout at me as per normal if there's anything you want to raise on these—is item 9.1, correspondence from the Business Committee to the Local Government and Housing Committee in respect of legislative consent memoranda. At last week's meeting, we noted the letter from the Local Government and Housing Committee to the Business Committee regarding concerns about the increased use of UK Bills and legislative consent convention, so it's just to note that response.
Then, under item 9.2—and again, shout at me if there's anything on these you want to raise now—we have a letter from the Counsel General specifically addressing recommendation 10 in our report on the Historic Environment (Wales) Bill. As well as noting that, just to remind Members that the initial consideration debate on the Bill takes place in Plenary tomorrow. If anybody is watching in, I had this explained to me as well, what 'initial consideration stage' was. It's a different stage of Bills for consolidation Bills. It's in effect the first stage, but it's referred to as an 'initial consideration' debate.
Item 9.3—if you're happy with that—is a letter to note from the Permanent Secretary. We referred to it in respect of two statutory instruments earlier on. It's regarding bilingual explanatory memoranda, in which he confirms that the Welsh Government will produce explanatory memoranda to Welsh subordinate legislation bilingually going forward. There's a little bit more to the letter, but it's quite a helpful letter. If you're happy to note it for now, we can return to it in private discussion.
I think we should welcome it.
Absolutely, yes. Thank you. I know it's something that all colleagues here have been pushing hard on. So, thank you for that, and we do welcome that.
bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).
that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).
Cynigiwyd y cynnig.
Item 10. We now move to the motion to move into private under Standing Order 17.42, so we can continue with our deliberations in private. Are we happy to do so? We are. I'll just ask our clerks to move us into private session.
Derbyniwyd y cynnig.
Daeth rhan gyhoeddus y cyfarfod i ben am 14:03
The public part of the meeting ended at 14:03