Cynulliad Cenedlaethol Cymru

Good afternoon and welcome to everybody joining us for today's session of the Legislation, Justice and Constitution Committee. We have had apologies today from James Evans, who is not able to be with us, but we're extending a warm welcome to Peter Fox, who used to be a permanent member of this committee, knows it well and how we work, so, Peter, you're very welcome indeed. Thanks for joining us. Just as a reminder, this is being broadcast on Senedd.tv live, and the Record of Proceedings will be published after the event as usual. Apart from procedural adaptations for conducting these proceedings in virtual format, all the other Standing Order requirements remain in place. So, as per normal, if you can make sure that your mobile devices are switched to silent. We are operating through the mediums of Welsh and English today, and we have interpretation available, and there's no need for you to mute and unmute your microphones; that will be done for you.

So, with that, it brings us to the first item on the agenda, which is our regular item, item 2, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We have here one item to look at, under paper No. 1, item 2.1, SL(6)337, the National Health Service (Concerns, Complaints and Redress Arrangements) (Wales) (Amendment) Regulations 2023. These make a number of technical amendments to the 2011 regulations, including extending the application of the 2011 regulations to special health authorities in Wales. But we have no reporting points identified, so, unless Members have any comments, I'll take it that we're happy to agree that report there. Okay, thank you very much.

We'll go on to item No. 3, then, and we have several items under this. These are instruments that do raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. The first of these is one that's well known to us, and it's item 3.1, SL(6)332, the Agricultural Wages (Wales) Order 2023, and we have three papers there for you, including a draft report. This Order revokes and replaces, subject to some changes and a transitional provision, the Agricultural Wages (No. 2) (Wales) Order 2022. As you know, because this is one that's very familiar to us, this makes provision in relation to agricultural workers' employment, including grades and categories of agricultural worker, the minimum rates of remuneration, allowances, sick pay and leave entitlement as well. Now, our lawyers have identified two technical and three merits reporting points, but, I just want to check, do any Members have any comments on this before we go to our lawyer? No. So, Kate, I wonder if you could enlighten us on those points.

Thank you. The two technical points both relate to defective drafting, and Welsh Government has responded to confirm that it accepts those reporting points and it will make the corrections via correction slip. One of the merits points asks Welsh Government to explain why the wording in article 14 of the Order differs from the wording proposed by the agricultural advisory panel, which was set out in the explanatory memorandum. In response, Welsh Government explains how the precise wording was refined during the drafting process. The final two merits points note the explanations provided in the explanatory memorandum—first, for the measures taken to ensure that agency workers are included in the Order, and then, second, for the increase in the accommodation offset allowance.

That's wonderful. Thank you very much, Kate. Colleagues, are we content with those points? We are. Thank you, Kate, and we're happy to sign off on that.

It takes us then to item 3.2, SL(6)335, the Welfare of Animals (Transport) (Miscellaneous Amendments) (Wales) Regulations 2023. These bring the official controls relating to animal welfare in transport under the same regime as other official controls for animal health and welfare. The regulations state that specific provisions that were originally delayed are to be commenced by 6 April 2023. The regulations also amend retained European Union law to clarify the obligations of animal transporters and keepers, and they place great responsibility on the journey organisers in relation to the preparation and completion of journey logs, and they clarify the process for the approval of journey logs, as well. Consequential amendments are made to the Welfare of Animals (Transport) (Wales) Order 2007. Now, our lawyers have identified one merits reporting point, and we've had a Welsh Government response, Kate?

Yes, that's right. The merits point asked Welsh Government to clarify the timescale within which a journey organiser must ensure that the completed journey log is submitted to the competent authority, because there was an inconsistency between the timescale in the regulations and that explained in the explanatory memorandum. In response, Welsh Government has confirmed that the regulations are correct, and the explanatory memorandum will be corrected.

That's brilliant. Any comments from colleagues? We're happy to agree that, I think, Kate. So, we're happy to agree the reporting points there.

That takes us on to item 3.3, SL(6)336, the Duty of Candour Procedure (Wales) Regulations 2023, and we have the draft report in our pack linked to this. This is in respect of the Health and Social Care (Quality and Engagement) (Wales) Act 2020, which introduces an organisational duty of candour on NHS bodies in Wales. These regulations are made under that Act and they set out a procedure that must be followed by an NHS body when the duty of candour is triggered. Now, they also make consequential amendments to the National Health Service (Concerns, Complaints and Redress Arrangements) (Wales) Regulations 2011, to ensure that the candour procedure works in harmony with existing arrangements under those regulations. Pered, you've got something on this you wanted to bring up, I think.

Yes. BMA Wales have been in touch with me. They fully support the principle of the duty of candour; they've just got some concerns around timings. I think the guidance was only sent over to the BMA on the week commencing the twentieth, and they're concerned about the very little time to get fully up to speed, especially GPs, who are, obviously, contractors involved in this. So, they would like us to clarify some points with the Minister. I'm not sure if we're able to do that, Huw, but, basically, they are: why there was a short time frame for the NHS organisation to prepare for it; given the short time frame, whether or not the implementation period, once the regulations are in place, would help organisations to ensure that they've got the right processes in place; and whether the Welsh Government still remain open to amending the guidance—something that they can do, if needed—once the system has begun to operate and any teething problems have been identified. So, just some slight concerns around timing and the process, going forward, basically. I can share those—

That's really helpful.

—with clerks if it helps. If we could write to the Minister and ask those questions, then it would be useful.

Yes. I think that would be really good to do. And we thank the BMA for sharing their thoughts with us on that.

Kate, I wonder if you could raise the one merits reporting point you've got with that, and I'm sure, then, I think we can take up Pered's point, then, to write to the Minister with the BMA observations as well, to get responses to those. But, Kate, what have you spotted?

The merits point that we raised was to ask Welsh Government for an indication of when section 3 of the 2020 Act would be brought into force, and section 3 is the one that sets out when the duty of candour applies. In response, Welsh Government says that it expects section 3 to come into force on 1 April 2023, so to coincide with these regulations, although we haven't actually seen the commencement Order for that yet. 

Brilliant. Okay. Thanks, Kate. So, Pered, if you could ping those across, with the magic of modern technology, to Gareth or to Kate or to me, then we'll take up those issues raised by the BMA, then, as part of this report as well.

It's in your inbox, Chair, and I've just sent it to the committee inbox as well.

That's brilliant. Thanks you very much. This is better than handing round pieces of paper all the time.

So, we go, then, to item 3.4, SL(6)338, the Health and Social Care (Quality and Engagement) (Wales) Act 2020 (Consequential, Supplementary and Incidental Amendments and Revocations) (Secondary Legislation) Regulations 2023. These are made under the Health and Social Care (Quality and Engagement) (Wales) Act 2020. The 2020 Act established the Citizen Voice Body for health and social care in Wales. So, these regulations amend secondary legislation to reflect the establishment of the body and the commencement of its functions, and also the abolition of the community health councils provided for in the 2020 Act.

The majority of the regulations' provisions come into force on 1 April 2023, to coincide with the date upon which the body will become fully operational and when the community health councils will be abolished. The remainder of the provisions come into force on 1 July 2023, which is the date upon which relevant bodies must have regard to the code of practice on access to premises, published by the Welsh Ministers under section 19 of the 2020 Act.

So, our lawyers have identified two merits reporting points here, and unless Kate is going to tell me any different, we haven't had a Welsh Government response—. Oh no, we don't need a Government response on this. But, Kate, if you could tell us what those points are, please.

Yes. The merits points were both just matters to note: first, that there's been no formal consultation; and second, that there was no regulatory impact assessment. And the explanations for both of those are set out in the explanatory memorandum.

That's great. Thank you, Kate. We're all nodding. We're happy with that, with those reporting points. Thank you.

Item 3.5, SL(6)339, the Care and Support (Population Assessments) (Wales) (Amendment) Regulations 2023. And we have a draft report and a Welsh Government response in your packs. These regulations amend the 2015 regulations, which make provision for the carrying out of population assessments. Regulation 4 of the 2015 regulations provides that, in carrying out a population assessment, responsible bodies must engage with certain private sector or third sector organisations. This is amended by regulation 2 of the 2023 regulations, so that responsible bodies must also engage with any public body that they believe is concerned with or has an interest in the provision of care and support or preventative services to the local population. And regulation 2 of these regulations also inserts relevant definitions for these purposes. So, our lawyers have identified two merits reporting points, and we have received a Welsh Government response as well, Kate, I think. Over to you.

Yes. The first merits point asks Welsh Government to give an indication of when Part 4 of the Health and Social Care (Quality and Engagement) (Wales) Act 2020 will be brought into force, because it's Part 4 that establishes the Citizen Voice Body, which is referred to in these regulations. In response, Welsh Government says that it will be making a commencement Order to bring these provisions into force on 1 April. The second merits point is just to note that there has been no formal consultation. 

That's great. Thank you. Are we content with that? I think we are.

So, we'll move on, then, to item 3.6—thank you, Kate—SL(6)340. It's an affirmative resolution instrument, the Construction Contracts (Exclusion) (Wales) Order 2023. This Order disapplies Part 2 of the Housing Grants, Construction and Regeneration Act 1996, which makes provision as regards the terms of construction contracts in relation to certain infrastructure project contracts in Wales, where a party to the contract is a sewerage or a water undertaker, subject to certain requirements. And the Order also disapplies section 110(1A) of the Act, where a party to certain contracts enters into a subcontract. Paragraph 4.4 of the explanatory memorandum, you'll note that it states that there is currently only one project for which this Order could apply, that being the Dŵr Cymru Welsh Water Cwm Taf water treatment works. So, our lawyers have identified one merits reporting point in terms of this affirmative resolution, and we've had a Welsh Government response as well. So, Kate, over to you.

Thank you. The merits point identifies a potential inconsistency between the Order and the explanatory memorandum, relating to the point at which payment may be made under one of these contracts. Welsh Government was asked to clarify the extent to which payments must only be made after projects have been completed. We've received Welsh Government's response on this, but it doesn't entirely answer our question. It doesn't provide the clarity that we were looking for. So, the committee may wish to write to Welsh Government just to seek that clarity.

Yes, are we happy to do that, colleagues? Yes, we will. Okay, thank you very much, Kate; we'll do that. Thank you very much.

That takes us, then, to item 4, which are instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 that we have previously considered. There's only one item within this agenda item today, and that is item 4.1, SL(6)330, the Town and Country Planning (North Wales Border Control Post) (EU Exit) Special Development Order 2023. We considered this instrument at our meeting on 20 March, and we laid our report the same day, so I'd just invite Members to note, if you're happy, the Welsh Government response that we've now received. So, we'll do that and we'll move on.

Item 5, then, takes us on to notifications and correspondence under the inter-institutional relations agreement. This is one of our regular agenda items. We have one item here to note, and it is a written statement and correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd, in respect of the inter-ministerial group for environment, food and rural affairs, which took place on 6 March. Within that—and again we're always trying on this committee and striving for transparency—we learnt that a discussion took place on the Retained EU Law (Revocation and Reform) Bill, the deposit-return schemes, and food shortages and food security. Just for Members to note as well, as regards the retained EU law Bill, the Minister states there that each Government provides updates on their respective approaches to work to identify and categorise REUL, and just drawing out one quote there, where she states she's

'commending the positive engagement between the administrations in this area.'

That's of interest to us there. They also discussed the parliamentary legislative programmes necessary to retain, repeal or reform individual items of legislation. The next meeting will be on 17 April. So, I don't know if anybody has any comments. We can come back to that in private. Alun.

Well, it's entirely different to everything else we've been told by every other Minister. [Laughter.] It's entirely and completely different.

Indeed. It's not only different in tone, but different in—[Inaudible.]

It's entirely different from the work of the Counsel General, who has told us that there is nowhere close to being enough engagement with the UK Government over this, and in fact, the issue around the location of this legislation as well. But I don't know where that takes us.

I think it takes us to some interesting follow-up interrogation of the Ministers when they're in front of us, including with Mick as well, because I agree with you. As Peredur will notice as well, it's very different in that response. So, good, okay; we'll follow it up. But we're glad of the transparency on this. It really is important.

So, we go on to item 6, where we have papers to note. First of all, here we have under 6.1 a written statement by the Minister for Climate Change in respect of the Levelling Up and Regeneration Bill. This statement has been laid under Standing Order 30, and it relates to a UK Government amendment, which was tabled on 23 February, which will modify the Welsh Ministers' function, but does not require a legislative consent memorandum under Standing Order 29, as the Senedd does not have legislative competence in relation to the amendment provision. So, the amendment makes provision for the Secretary of State to require or permit a person who takes part in certain relevant proceedings relating to planning, development, or the compulsory purchase of land, to do so wholly or partly remotely. The Minister considers this to be a minor amendment to the existing function of Welsh Ministers in their role as confirming authorities. The Minister also states that the amendment clarifies an existing implied power in the legislation, which already allows confirming authorities to require hearings or proceedings to be held virtually, and it will assist the Welsh Ministers in exercising their functions as a confirming authority effectively and efficiently. I'll carry on through the correspondence we have to note, but shout at me as normal if there's anything you want to stop me on.

We'll turn, then, to item 6.2. We have correspondence from the First Minister to the Llywydd in respect of Royal Assent, and the coming into force of the Environmental Protection (Single-use Plastic Products) (Wales) Bill. This is quite interesting for us, because the First Minister notes that the Bill engages the World Trade Organization's technical barriers to trade agreement, which includes a legal requirement to provide a reasonable interval—usually six months—between the passing and the publication of legislation that impacts on trade, and its coming into force. So, the First Minister states that the Bill includes a number of substantive provisions that will commence the day after Royal Assent. Consequently, he does not intend to apply the Welsh seal—the final sign-off—to the letters patent until the six-month WTO notification period has concluded in early June. And the First Minister notes also that this is the very first time, since the UK left the European Union, that the Senedd has passed a Bill that engages the World Trade Organization process. That's of more than a passing interest to us and the workings of this committee. We might want to return to that in private session, and perhaps get some further analysis and discussion on the implications of that, not just with this Bill, but future ones that may come forward.

If you're happy to the note for the moment, though, we'll carry on to item 6.3. We have correspondence from the Business Committee in respect of the Retained EU Law (Revocation and Reform) Bill, to note, there, that the Llywydd has responded to recommendation 14 of our report on the legislative consent memoranda on the Bill, which relates to recess dates for the autumn term. The Business Committee has decided not to make changes to the arrangements for the Christmas 2023 recess at this time—so, don't cancel all your holidays yet, colleagues—but will consider revisiting the matter, and other potential measures, later in the year if required. This is very much a live matter.

Item 6.4, we have correspondence from the Minister for Climate Change in respect of the Packaging Waste (Data Collection and Reporting) (Wales) Regulations 2023. You have a couple of letters in your pack there—just to note that correspondence from the Minister in respect of those regulations. And the Minister responds, by the way, to points raised in the draft report of this committee, prior to the regulations being withdrawn. People who have been following our deliberations will know that this was withdrawn so that Government could go back and have a look again at its drafting. The Minister's letter states that the corresponding regulations are already in force in England, Northern Ireland and Scotland, and that the UK Government are planning to introduce, interestingly, an amending instrument to address outstanding policy issues. So, the Minister says that her officials are liaising with their counterparts in the other administrations to discuss the matters raised in the draft report. So, again, we can return to that later if we need to.

Item 6.5, correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd in respect of the Retained EU Law (Revocation and Reform) Bill. It's in respect, particularly, of memorandum no.4, responding to the Minister's letter of 17 March.

Item 6.6, we have correspondence from the Minister for Social Justice to the Llywydd in respect of the Illegal Migration Bill. And the Minister, in that, states that, from the Welsh Government's initial analysis, the Bill, and I quote,

'touches upon areas of devolved competence.'

The UK Government, just for colleagues to be aware, does not agree with that. The Minister states that there has been no meaningful engagement by the UK Government, and it has not yet been possible for the Welsh Government to consider properly the devolution consequences of what is being proposed. And the Minister also notes that she's concerned that the Bill has the potential to breach international obligations. The Minister tells us that she expects to lay a legislative consent memorandum before the Senedd as soon as they have a clear picture of the devolution consequences of the legislation, anticipated to be shortly before the Senedd's Easter recess. So, that's imminent. Alun.

The letter doesn't seem to state which competencies the Bill touches upon. Now, my assumption, given the letter, is that it would be the issues around international obligations and international law, and the impact on Welsh Ministers I would expect. But do we have any understanding of what these devolved competences may be?

Let me throw it open to either our lawyers or to Gareth there. I suspect the answer will be, at the moment, until the Minister comes back with greater detail or further analysis, we don't have a clear idea. But, Gareth, Kate, would I be right on that?

My understanding is that, yes, that's correct, Chair.

But what we might want to do, Alun—and we can return to this in private session—we might want to follow this up with the Minister to request that clarity at the earliest possible opportunity. I'm sure that the Minister will be seeking that. And there is a clear disagreement with the UK Government, but the sooner they have either full agreement or agreement to disagree on this, at least knowing which areas of competence it is, that will help the committee. So, thanks, Alun. We'll return to this and agree a way forward, but we do need to push it with the Minister.

And on that basis, then, if we turn to item No. 7, which is our regular motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting. Are you happy to go into private session? We are. We will go into private session, then.