Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee


Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Adam Price
Alun Davies
Huw Irranca-Davies Cadeirydd y Pwyllgor
Committee Chair
James Evans

Y rhai eraill a oedd yn bresennol

Others in Attendance

Julie James Y Gweinidog Newid Hinsawdd
Minister for Climate Change
Neil Hemington Prif Gynllunydd, Llywodraeth Cymru
Chief Planner, Welsh Government
Nicholas Webb Cyfreithiwr, Llywodraeth Cymru
Lawyer, Welsh Government
Owen Struthers Pennaeth Cydsynio Cenedlaethol, Llywodraeth Cymru
Head of National Consenting, Welsh Government

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gerallt Roberts Ail Glerc
Second Clerk
Kate Rabaiotti Cynghorydd Cyfreithiol
Legal Adviser
Katie Wyatt Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Sarah Sargent Ail Glerc
Second Clerk

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 a thrwy gynhadledd fideo.

Dechreuodd y cyfarfod am 13:15.

The committee met in the Senedd and by video-conference.

The meeting began at 13:15.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introductions, apologies, substitutions and declarations of interest

Prynhawn da, a chroeso i chi i gyd.

Good afternoon, and welcome to you all.

Welcome to this afternoon's session of the Legislation, Justice and Constitution Committee. Just as a reminder to everybody, this session is being broadcast live on Senedd.tv. The Record of Proceedings will be published as usual. Now, we're not expecting a fire alarm, but if there is a fire alarm follow the staff members and we'll be ushered out to a safe place of congress. If we can make sure—and I'll just check with mine as well—that all our mobile devices are turned to silent or vibrate so they don't interrupt proceedings. I'm glad I just checked with mine. We're operating today in the mediums of Welsh and English, and we have interpretation available, which anybody online can use by just using that globe translation facility. No need to operate your sound control buttons, your mute and unmute, because that will be done for you.

So, we're fully quorate today. All members of the committee are here.

2. Bil Seilwaith (Cymru): Sesiwn dystiolaeth
2. Infrastructure (Wales) Bill: Evidence session

In which case we'll move now to item No. 2, the first substantive item on today's agenda, and it is the evidence session on the Infrastructure (Wales) Bill, and we're delighted to have with us Julie James, the Minister for Climate Change, but also with Julie James MS we have Neil Hemington, chief planner for Welsh Government; Owen Struthers, head of national consenting, Welsh Government; and Nicholas Webb, lawyer, Welsh Government, as well. It's good that you're here, Minister, and also with your colleagues as well, because I think this will be quite a technical and legal session looking at the drafting of the Bill and the principles underlying it. 

Can I just open, Minister, with our standard question—whether you are satisfied that the Bill is within the Senedd's legislative competence?

Yes, indeed, I'm very satisfied that the Bill's within the legislative competence of the Senedd, subject to Minister of the Crown consents being received. The Llywydd has also indicated that she is happy that it's within competence. We've considered what will happen if the Minister of Crown consents are not received, and we do consider that, although they'd be beneficial to the Bill, the Bill is perfectly all right without them.

That's interesting. Okay, if I could turn to that, then, because you have shared with us your correspondence with the UK Government, including the seeking of necessary UK ministerial consents, which you've just said would be helpful, but don't derail the Bill entirely, including the transfer of legislative competence to Senedd Cymru for the consenting of energy generating stations offshore between the edge of the territorial sea and the edge of the Welsh zone. Now, when you appeared before the Climate Change, Environment, and Infrastructure Committee in July, these matters hadn't been resolved, so could you just update us? Have you heard any more? What discussions, as well, have you had with the Counsel General and First Minister about resolving these matters, possibly even using the dispute resolution process—not necessarily, by the way, going up to the top level of the dispute resolution, but through the structures that are there?

So, we haven't resolved either of them, but they're in two different categories. So, if I take the legislative competence one first, I understand there's some confusion going on here—it's getting quite frequent, unfortunately. So, I understand the UK Government has written to the committee saying that this matter has been resolved, but that's news to me. So, the meeting that they refer to did occur, but it didn't discuss this, other than for me to say that I hadn't received any answer of any sort whatsoever, and the Minister agreeing that he would look into that. So, that's not my understanding of a resolution. So, we don't think that's resolved. I'm actually shortly going to write again and say, 'What on earth is going on? Please get on with it.' If the committee could furnish us with a copy of the response again, that would be great, please. But, as far as we're concerned, that's not resolved. But I will say nor is it in dispute as yet, although we might now—. I might accelerate it up the chain. So, at the moment, we've discussed it in one-on-one meetings with the Minister, but I might accelerate it to what's called an inter-ministerial group, which is the next tier up, if I don't get a satisfactory response shortly.

Then, if you turn to the Minister of the Crown consents, I have had absolutely nothing to do with that at all. That's been done at official level, and I'm informed by the officials—and please feel free to add to this—that it's all going fine and they're not expecting it to be a problem, although it's not yet resolved.

That's great. And I assume that the correspondence you're referring to is the correspondence with the CCEI committee rather than ours.


I know. [Laughter.] Sometimes, it is difficult, I know. But we'll make sure that it's brought to their attention as well. Okay, that's helpful. Thank you. But clear that those consents will not necessarily derail this—well, clearly, from what you are saying, they will not derail it—but also that you are exploring the possibilities of using the tiers of dispute resolution procedures. So, that's good for the committee to hear. 

Just to explain that a little, obviously, we need the Minister of the Crown consents because there are circumstances in which we might want, for example, Natural England to respond to something, if it's a cross-border matter or something. We could still request that, and no doubt they would comply. But it would be nice if they were under an obligation to do so, so it was a one-stop shop. That's basically the issue. 

Thank you very much and good afternoon, Minister. The explanatory memorandum in the Bill states that the Bill will establish the aspirations of Welsh Government to take on further devolved policies. That's something I very much welcome; I felt that the last tranche of devolution in the energy field was quite limited and quite jagged again. So, it would be useful for us to understand which policy fields you're looking at in terms of that, and whether you have had conversations with the current United Kingdom Government on the devolution of those matters—or perhaps even the UK Labour Party, as an incoming UK Government, whether you've had conversations with them on these matters. 

So, I'll use some examples and then the officials, I'm sure, will be able to fill in on some of the conversations we've been having. So, there are issues that are the jagged edge of devolution, as we're all used to talking about. So, the issue about whether the Senedd has competence in the 12 nautical miles to 200 nm—. So, the Welsh Government has Executive competence, but the Senedd doesn't have legislative competence, so there are obviously anomalies of that sort.

There's an issue about what happens in energy storage. So, energy storage, several people here will give you a long lecture on why it's so complex. It basically isn't at all clear— 

So, the layperson's version is that it's not clear who has competence over energy storage in the territorial water. It's currently governed by an Act that the UK Government doesn't use anymore for its own consenting process but has left us in limbo with, unless they—. This is what we are asking the legislative competence for. So, we're trying to get the Bill to be flexible enough to deal with whatever the outcome of that is. But the most simple one is: what if they put the limit up? So, if it's no longer 350 MW, if it goes to a gigawatt or something, we want the Bill to be able to cope with that. We don't want it to be set in aspic for what we've got now, and that could change very substantially.

We also want it to change for different kinds of technologies. So, storage might not be the issue that it is now; we might all move to hydrogen storage or something. So, we want it to be sufficiently flexible enough to cope with changes in both the technology and the devolution of that technology and, frankly, some of the arguments about whether the new technology is or is not covered by various pieces of legislation, which is what the issue is. But Nick will tell you all the ins and outs of the Electricity Act 1989 et cetera, should you so require.

I don't think that we require that quite this afternoon, Nick will be pleased to hear. Okay, that's quite useful to know. It might be useful, Chair, if the Minister could write to the committee with an outline of the fields, rather than all of the different clauses and Acts and stuff, that she would be looking towards clarifying the settlement on. And have you had those conversations with the Government or an incoming Government?

I have had a conversation with the Minister, but it hasn't reached any kind of resolution. And as you see, we haven't had a response to our letter, so we'll have to do something about that.

Okay. The consultation, I understand, took place on this Bill quite some time ago now, in 2018. It'd be useful for us to understand the timings. Because we're in the second half of 2023 in discussing this Bill. To what extent has the Bill developed, shall we say, changed, since the consultation has taken place? Have you consulted on the changes? To what extent is the consultation that took place five years ago still relevant today?

So, it's an immensely technical Bill. So, obviously, we don't get much response from Mrs Jones up in the Valleys, like, but we had one or two, but not very many. Mostly we're consulting with local planning authorities, planning officials, people who are technically enabled to understand what the process is and what we're trying to do. The majority of respondents fully agreed with and supported all of the proposals. So, it's not controversial in any way; it's very processy, as you know. We did review and amend the compulsory purchase powers as a direct result of the consultation responses, and then some of the other details that came back in consultation responses will be in the subordinate legislation, so cost recovery details, for example, came up in the consultation. We've had—the officials will tell you about it—but we've basically had a whole series of ongoing meetings with the various stakeholders, so with planning society Wales, with the local planning authorities, and I've had meetings with cabinet members and various other things. There's just been a whole series of consensual meetings with all of the people who would be required to actually implement the Bill, once it's gone ahead, and we've developed it very much in that vein. So, I don't think there's any kind of issue with it. We've spoken with Natural Resources Wales, we've spoken with Planning and Environment Decisions Wales, we've spoken with planning officers—everybody who might be interested, really. 


Okay. That's clear in my mind. I'm grateful to you. Is there a reason why it's taken so long, because five years is a long time to be developing legislation, particularly of this sort, which is, as you say, quite technical? Usually, time is taken in legislation resolving political issues, where you're trying to get the politics to work, but technical stuff tends to be a lot more straightforward in some ways. 

Well, it's partly resource, to be fair. So, it's the same people who are also doing all of the other stuff that we're doing in this area. You'll know we're doing a consolidation Bill as well, for example, and so on— 

—but it's also just the legislative timetable. So, this happens to be the slot that it's fallen into for various complicated reasons to do with other Bills, not necessarily this Bill. 

It would have been ready a little bit before this; last year, probably. I wouldn't say we would have been ready four days after the election, if that's what you—

I understand that and we're not trying to catch you out. But we're trying to understand the work of the department and how that interacts with both the legislation and then the public responses to that legislation.

So, for example, we've been trying to get the planning inspectorate to bed in in Wales. So, that was a new thing to do. We need to make sure that that's all sorted out. There are other things going on at the same time. We've got other issues happening that we need to have a look at and we've had to feed into things like the UK Energy Bill and so there's other work going on, but, primarily, it's because this is the slot that was allocated to us. 

I'm grateful to you for that. Of course, one of the advantages, ironically, of taking this amount of time is that you can take advantage of changes that take place in the legislative framework and landscape, of course, as you move forward, and one of those is what you've just referred to: the UK Energy Bill. I'm interested as to how the Bill and the Welsh Government's policy interact, interrelate, to each other and whether it creates any difficulties for you in terms of what your policy objectives are for this Bill.

Not really. Broadly, the UK Energy Bill and our policies are aligned. There are a couple of areas where we're not quite aligned, but the broad thrust of it is the same. The reason we weren't keen on the Bill itself is because of the issues around consent or consult. So, they've put, as a result of a conversation we've had subsequent to the legislative consent motion being refused by the Senedd, having another conversation with the Minister—. And they were at great pains to put a kind of consultation plus thing in, where they have to formally show what notice they've taken of our consultation, because I was very concerned that they wouldn't say, 'We've consulted them and now we're going to do the thing we were going to do anyway.' So, they've now got a formal report-back mechanism, where they have to say what our response to the consultation was and how and whether they took it into account and so on. So, we've had some robust discussions since then. But, broadly, the policy thrust is the same. We don't have any fundamental—

Yes. If we could get the legislative competence thing sorted out, they would fit together even better. So, it's possible that we'll have better conversations with that Minister now, once that's gone through.

Okay. I'm grateful to you. Chair, I don't have any further questions at the moment, but it might be useful if the committee asked or followed these matters up with the Minister. Because the issue around Sewel and consent is one of the themes that we've been following as a committee over the last couple of years—


Well, that would be more—. Bear in mind that it's the Counsel General's area, not mine—what happens if they ignore Sewel.

Yes. But it would be useful for us to understand the relationship that you're having—

That's a good idea. We'll make sure that we don't overstep the mark here and stray into the Counsel General's territory. But there might be a way that we can frame it to you. If we do do any follow-up, it'll be rapidly after this meeting because of the need to report so rapidly on this as well.

Before I come to Adam, could I just ask—we're not going to hold you to this—in terms of the consenting, as you said, this Bill doesn't hinge on having those consents from the UK Ministers, but have you got a degree of confidence? How far are you involved and engaged in those discussions, to give us some understanding of whether you're likely to have a positive response from UK Government, as this Bill goes forward?

I haven't had any conversations about the Minister of the Crown consents, because the officials are dealing with it and as far as they're concerned, it's going well. Neil, I don't know if you want to—

Yes. I think, on Minister of the Crown consents, certainly, when we're talking to policy officials within the Department for Levelling Up, Housing and Communities, it's positive. They recognise the need to have a consistent consenting process, both on a UK basis but also in Wales. So, those sorts of conversations are positive, but there are devolution officials as well—[Interruption.] Yes. So, I've talked to the policy/planning officials and they are positive conversations.

There's something called the—is it a unit now? I think it's the devolution unit, which seems to have a role within DLUHC.

Fascinating. Let's not go there for a moment, but it is fascinating. So, Adam.

Prynhawn da, Gweinidog. Gawn ni droi at bwnc newydd, sef hawliau dynol? Dyw'r—

Good afternoon, Minister. Could we just turn to a new topic, namely human rights? The—

So, dwi'n mynd i droi at bwnc newydd nawr, sef hawliau dynol. Dyw'r memorandwm esboniadol sy'n cyd-fynd â'r Bil ddim yn sôn am y cysylltiad, neu effaith y Bil, o bosib, ar hawliau dynol. Ydych chi wedi gwneud asesiad o'r effaith posib ar hawliau dynol? Hawliau eiddo, byddwn i'n meddwl, fyddai'r hawliau mwyaf perthnasol.

I'm going to turn to a new topic now, namely human rights. The explanatory memorandum accompanying the Bill does not discuss the link or the impact of the Bill, potentially, on human rights. What account have you taken of the impact of this Bill on human rights? Property rights, I would imagine, would be the most relevant rights.

Diolch. So, we've done an assessment of the Bill, as always, to ensure that it's compatible with human rights and the usual tests of proportionality, justification and reasonableness in balancing the rights of individuals—the normal assessment that we would do. We've taken into account whether a fair balance has been struck, and they include compensation to property owners for interference with property rights where appropriate, and procedural safeguards to provide individuals an opportunity to challenge anything that happens that affects their property rights—you're quite right, that's the primary issue for it. So, we're happy that that's been done and that the Bill process doesn't interfere with people's property rights in any way that is not both justified and reasonable.

Un o'r pryderon sydd yn codi yn y math yma o gyd-destun, lle mai'r bwriad polisi ydy creu system rwyddach ar gyfer y Llywodraeth i gyflawni ei nodau o ran isadeiledd—yn meddwl am y datblygiadau o arwyddocâd cenedlaethol, er enghraifft, a defnyddio dull gwahanol, efallai—yw bod e yn effeithio, yn lleihau, yn lliniaru ar hawliau pobl i wrthwynebu drwy'r system gynllunio gonfensiynol—ie? Wrth gyflymu'r broses, hynny yw, mae e'n creu llai o ofod i bobl fedru gwneud hynny. Ydych chi'n deall, o leiaf, y pryder hwnnw? Sut ŷch chi'n gallu darbwyllo pobl, hynny yw, nad yw e, mewn gwirionedd, yn ôl beth rŷch chi newydd ei ddweud, yn newid hawliau'r unigolyn i wrthwynebu o gwbl?

One of the concerns that arises in this kind of context, where the policy intention is to create a system that's easier for the Government to achieve its aims in terms of infrastructure—thinking about developments of national significance, for example, and using a different approach, perhaps—is that it impacts, reduces or mitigates the rights of people to oppose through conventional means—yes? In expediting the process, that is, it creates less space for people to be able do so. Do you understand, at least, that concern? How can you persuade people that it doesn't, in fact, according to what you just said, change the rights of the individual to oppose in any way?


So, we're really happy that the policy here actually helps individuals engage with the process. The DNS process has a lot to be desired and it's obviously going to be substituted by this process here, and what this does is streamline the processes so that it's very obvious when you can object and about what. So, you'll be very familiar, I know, because we all are, with people who want to object to, say, a development and they're told they can't say the things they want to object to now, because it's currently going through licensing and those things aren't relevant or vice versa. People get very frustrated about the fact they want to say this, and it's not the right process for that and so on. I've had all kinds of issues with that, and I know others have across Wales.

For a layperson, it's a really complicated set of different things that have to happen. Sometimes they're happening simultaneously, it's difficult to follow and so on. So, the purpose of this is to put a streamlined process in place where you have one process for the whole thing, where it's really obvious where you can put your opinions in and how, and you can do it across a range of things, because it's a single process. We obviously fund Planning Aid Wales, for example, to help people do things like that as well, and also the process has a very significant pre-application consultation stage, where people will be able to have a real say before even the application gets put in, and the applicant would be wise to be able to document how they've taken into account the consultation that they'd carried out.

I do need to say, though, that there is a difference between consultation and agreement. So, we also have situations where, for example, you might have a proposal going forward where a very substantial number of people don't like it, but the process carries on anyway, even though it's heard what they've got to say, because there's an overriding national interest in the proposal going ahead. So, this isn't about the majority view or anything. It is about, though, making sure that people can have those voices heard and have them heard loudly, and making sure that they impact the system, and the developer ought to be able to take account of that in a way that at least mitigates the impact of the consultation response. But I do want to make it really clear that it doesn't mean that you have to agree with the responses of the consultation. There is an overriding public interest test included in the process.

Un o'r sefyllfaoedd sydd yn codi sydd yn dadrithio pobl, ac efallai dyna'r math o sefyllfa roeddech chi'n lled-gyfeirio ati hi, ac mae'n effeithio ar fy etholaeth i ac ar etholaeth James Evans ar hyn o bryd gyda'r awgrym i gael peilonau ar draws ein hetholaethau ni—. Ydy'r sefyllfa lle mae datblygwr yn ceisio cael mynediad i dir, i eiddo rhywun, yn erbyn gwrthwynebiad y perchennog, oherwydd eu bod nhw, hwyrach, yn gwrthwynebu'r datblygiad—? Mae adran 43 y Bil yn sôn am y sefyllfa yna lle mae datblygydd eisiau mynediad i dir. Pa egwyddorion fydd yn berthnasol i'r pwerau yma i fynd ar dir rhywun arall a pham nad ydy'r egwyddorion yma ar wyneb y Bil?

One of the situations that arise that cause concern for people, and that's maybe what you were partly referring to, and it does impact my constituency and James Evans's constituency currently in terms of the suggestion of having pylons across our constituencies—. Is that situation where a developer is trying to have access to land, to someone's property, against the opposition of the owner due to, perhaps, opposition to the development—? Section 43 mentions that situation where a developer wants to have access to land. What principles will be relevant to these powers to have access to land, to go on land, and why are those principles not on the face of the Bill?

So, these replicate powers that already exist in the planning system, and this is to ensure that it's a discretionary thing, where you can't get consensus, you can still go and inspect for various purposes and so on, but it is intended to make sure that you're not, I don't know, disrupting a wedding that's taking place in a particular—just to pluck a random private event. You're not overly disrupting the peaceful occupation of the land in question, but that the landowner cannot refuse absolutely to allow you access. Those are existing rights in planning law now, so this just replicates them. We wouldn't expect to put those on the face of the Bill, because we're not replicating the whole of planning law on the face of the Bill, we're looking at the changes, and there'll be powers to look at that through secondary legislation. I don't know, Neil, if you want to add to any of that.

I think, particularly at examination stage, it's essential that the examining authority actually has access to the land, so to go out and do site visits. We're looking very much at how we can limit that power, accepting that it's already there at the moment. So, if the committee's got a view on whether there are other ways things could be done, I think it's a case of letting us know as well. But this is long established, certainly when it comes to the examination, ensuring that that inspector actually understands how that development sits within that particular landscape and taking different perspectives within a landscape is essential. So, yes, it’s something historically that we’ve dealt with by regulation, and I think that does allow us an element of flexibility. Particularly again—it’s back to this issue of how we futureproof this—if there are new ways where you don’t actually need to enter the land but you can inspect it, that’s something that could be covered as well in that way.


Ac mae’r Bil, o bosib felly, hefyd yn fodd i egluro'r hawliau sydd gan berchennog eiddo, a hefyd i osgoi sefyllfa lle mae datblygwyr weithiau ddim—sut allaf i ddweud?—ddim yn adlewyrchu’r gwir falans rhwng hawl rhesymol i ddatblygwr neu arolygwr gael mynediad i dir, a hawl rhesymol y perchennog i ddweud, 'Wel, na, dŷch chi ddim wedi dilyn y broses', a bod hynny'n bwysig ar y ddwy ochr, bod yna eglurder ynglŷn â hynny achos, weithiau, dyw pobl ddim yn deall yr hawl sydd gyda nhw i ddweud 'na' ar wahanol adegau o dan y gyfraith fel sydd yna ar hyn o bryd.

And the Bill, possibly then, is a way of explaining those rights that an owner has, and also to avoid a situation where a developer sometimes—how can I say this?—does not reflect the true balance between a reasonable right for a developer or inspector to have entry to land, and also the reasonable right of the owner to say, 'Well, no, you haven’t followed the process', and that that is important on both sides, that there is clarity in that regard because, sometimes, people don’t understand the right that they do have to say 'no' at different times under the law as it stands.

Yes. So, what we’re trying to do, isn’t it, is strike a balance between peaceful enjoyment of your property and the ability of a planning inspector or process to look in the greater public interest at impact. You could put that the other way round: you might have a community that hates something, but the landowner is very pleased with it, so the inspector would need to be able to get onto the land to see whether the legitimate concerns being expressed by surrounding people were or were not reflected because the landowner may have a vested interest in going ahead with it. So, you’ve got to get both ends of that correct, it seems to me. And so this is a discretionary power; you'd seek not to use it, you'd seek to do it by consent, but if necessary, then the inspector can say, 'Well, I have the right to a reasonable amount of making appointments, and all the rest of it, to come in and inspect the land for the purposes of understanding the impact of the proposed development.'

Mae'r cwestiwn yma yn codi'n barod, wrth gwrs, ond i ba raddau ydych chi wedi meddwl trwy, wrth sefydlu datblygwr ynni eich hunan, Trydan Gwyrdd Cymru—dyna'r un mwyaf perthnasol yn y cyd-destun yma—lle mai Llywodraeth Cymru fyddai’r datblygwr, oes yna unrhyw oblygiadau o ran y sefyllfa ddeuol sydd gyda chi? Byddwch chi'n ddatblygwr ar yr un llaw, ond hefyd wedi hynny yn gyfrifol am arolygu'r broses o ganiatâd ac yn y blaen. Mae hwnna'n rhywbeth rŷch chi wedi meddwl trwodd yng nghyd-destun y Bil yma. Ydy'r Bill yn newid hynny mewn unrhyw ffordd?

This question has already come up, of course, but to what extent have you thought through, in establishing your own energy developer, Trydan Gwyrdd Cymru, which is perhaps the most relevant in this case, and where the Welsh Government would be the developer, whether there are any implications in terms of that duality? You'd be a developer on the one hand, but also then be responsible for inspecting the process of allowing entry et cetera. Is that something that you’ve thought through in the context of this Bill? Does the Bill change that in any way?

So, that’s really commonplace, isn’t it? Lots of local authorities are also a developer and so on, so it’s a quasi-judicial process. You’re obligated to follow the rules of that, so you’d have a split of responsibility inside the Government. We have an independent inspectorate that is very much able to make its own mind up about things, and then if there was a Minister that was looking at that afterwards, then it would very much have to be not the Minister who was the sponsoring Minister for the development. So, for example, if that was an energy development and I was still in my current portfolio, I would not be the planning Minister for that purpose; it would have to go to a colleague who was outside of that. So, that’s very clear, and we would be subject to judicial review if we breached those rules, and we would lose, quite rightly. So, we can’t be judge and jury in our own cause.

Yn olaf, ydych chi wedi gwneud asesiad effaith ar gyfiawnder—justice impact assessment—o ran y Bil dan sylw?

Lastly, have you undertaken a justice impact assessment in relation to this Bill?

Yes, indeed. A justice impact assessment was submitted to the Ministry of Justice back in January, and we got a response back in April that said that the Bill would have a nil-to-minimum impact on the justice system, so no amendment to our approach was needed, and I can share a copy of that with the committee if you want me to.

Diolch, Adam. Minister, before we pass to James for another line of questioning, I wonder if I could return to you, or perhaps to Mr Hemington, on this issue over the powers of entry to inspect land. You were at pains to explain that this is well established, it's well understood, the principles are well understood, and previously, historically, they've been set out in regulations under the relevant planning legislation. Let me flip it on its head: if they are well understood and have been articulated well in previous secondary regulations and so on, couldn't we do it better, then, and simply put them on the face of the Bill? I'm genuinely exploring this as opposed to saying we should, but why not, if they are so well understood, so well accepted, they get that balance of rights correct and there's nobody who really challenges this, why not set out the principles on the face of the Bill?


Well, because we're not looking to replicate the whole of planning law in the Bill. Why would you choose that particular one and not all of the other things that we're also doing the same? So, that's the first one. If the committee feels strongly about that particular provision, we can certainly look at it, but there are a large number of provisions that are based on standard planning law. So, on the question about access to law, I think the Counsel General would probably have a view about replicating some bits of it and not others. So, that's the first one. The second one is that life is changing. I'm no expert at all, but I can quite see that you might take the view that you don't need to enter the land because you can use a drone, for example, or whatever. So, we'd want to have powers to be able to overfly land, perhaps, which aren't there. If we put it on the face of the Bill, it makes it much harder to develop it or change it. So, I think, for those two reasons, I'd be reluctant, but if the committee feels strongly about it, then we'll certainly look at it. This is by no means the only part of the Bill where normal planning rules apply.

Yes. And, who knows, we might face a consolidation Bill on planning at some point as well.

So, that's the other thing to say, that this Bill is going first deliberately, and then there will be a consolidation Bill, which obviously consolidates it. So, we don't want to make that overly complicated either. So, I think the Counsel General will have a more determined view than me about what is or isn't necessary to replicate.

Do you see, going back to my earlier point, where there is some tension, I think, in some communities because of a version of the rights of a landowner or the process to be followed that is being presented sometimes by developers that isn't actually, I think, really a reflection of the legal position? And that helps no-one, quite frankly. So, is there an opportunity here to just have a very clear, concise statement of, 'Well, this is the process, this is the balance of rights', and actually that helps the property owners, that helps the community, that helps public policy, because everyone is clear, then, 'This is the process that we follow in Wales'?

I can see the argument really clearly, however, if you're in a pre-application stage, none of that would apply. So, current consultations right across Wales on a large number of projects are at pre-application stage. So, none of that would bite—unless we start to really be prescriptive about pre-application, which I really don't want to do, because we want to make sure that that's as flexible as is humanly possible. So, I'm happy to look at it, if the committee wants to write and say that, but you have to bear in mind that, quite a lot, the first time that communities get to know about projects and so on are at the pre-application stage, so there's not actually an application in front of anyone, and so the process hasn't even begun. So, I query whether it would help that or not.

There's part of me that sympathises with you when you say you don't wish to be too prescriptive, but, as a constituency Member, I'm aware there are a number of pre-applications in my constituency and it's extremely disruptive to the community because they don't have the same rights as they would have with an application to understand what these proposals may be, what these applications may look like, and the right to information and an understanding of process. So, when we talk about flexibility, usually I would agree with you on that, because I think putting too much on the face of legislation can create unforeseen difficulties, but the flipside of that is that it doesn't provide much empowerment to communities and it doesn't enable communities to understand. It gives great flexibility and power to Government, local authorities, perhaps, and developers. But I'm just concerned, are we missing out the communities and the people who are affected by these things?

So, I absolutely hear that, Alun, but you have to bear in mind that it would be very hard indeed to stop somebody, pre pre-application stage, from just going and consulting in the community without any rights at all for various things. The role, isn't it, is to persuade the community that once the application has gone in, then there are a whole series of things that the community is entitled to do and has options to do it. I think if we tried to prescribe something right down to, 'The minute you think of an application in planning terms, you can't do things'—


You're taking my words further than I actually intended. My purpose is to question whether that approach—. In whose interest does that approach work?

So, the process set out in the Bill very much envisages a proper pre-application stage, where the applicant—the potential applicant, of course; you're not obliged to apply—might decide to cut and run as a result of it, but that the pre-application stage is documented and the application itself reflects what has occurred, and we are very keen to do that. There will be regulations that set out what the application needs to look like and what form it's in and how it reflects much of that work. You can see where we are. It's difficult isn't it? At what point in the—

I can see where you're coming from and I hope you can see where I'm coming from.

One of the reasons we fund Planning Aid Wales is that these things are very complicated—and the process you're talking about at the moment, by the way, is the DNS process, which is obviously what we're trying to substitute this for, because we're trying to streamline it, just to be clear—trying to explain to people at what point they really do have a voice in the system and how they can influence that. So, for example, at the local development plan stage or at the strategic development plan stage, because that is the stage at which the actual infrastructure requirements would be put in and so on, and trying to give that some publicity so that people are not taken aback by individual applications that might be well inside the LDP. You know all of this. I have it all the time in my own constituency office.

I'm going to take us back into the deep detail of the legal and technical aspects, because we're straying into the morass of the Climate Change, Environment and Infrastructure Committee territory here, and they're enjoying that very much, but we're going to pull you back.

Just one observation, though, before we pass on to James. The issue of the consolidation legislation, which may well come forward, is pertinent to this, because of course within the consolidation legislation, which this committee has looked at and we've done one example as well, it went very well and we've learned some things from it, but, of course, one thing consolidation legislation should not attempt to do is actually modify the fundamental principles of the legislation. So, if there was a time to do it, it would be now. So, we may come back and explore that a little bit more in the time we have available to you in writing, unless, Mr Hemington, you want to add—

I will add, though. I do mean this very sincerely, Chair; I wasn't being flippant. We really are building on existing planning law at various points in this Bill. So, if the committee has a view about where it would be helpful to set that out or not—

—and why that one and not the others, or whatever, then that would be very helpful to us. Or, indeed, if you can think of other ways, as Adam Price was suggesting there, that there might be other ways of writing a process in, I'm very happy to look at it. I just want to be really clear about that. I will say, though, that I would be quite reluctant to write in the whole of planning law every single time, because you would end up with a behemoth.

Yes. No, no, I fully understand—fully understand. Okay. We will turn now, then, to James. James.

Thank you, Chair. Good afternoon, Minister. When you gave evidence to the climate change committee, you described this Bill as a headline Bill. Can you explain what you mean by that terminology and what the difference is between a headline Bill and a framework Bill?

A framework Bill is traditionally one where there is very little policy in detail on the face of the Bill, with wide executive powers—Henry VIII powers, typically—which can be used in a wide variety of ways, typically with no further scrutiny. This is a headline Bill, because it sets out a detailed structure of the process and what will be caught by the Bill, and also contains a number of quite narrowly drawn regulation-making powers, which allow appropriate detail to be put in. But all the detail isn't on the face of the Bill. So, I was trying to distinguish between one that broadly just says, 'The Minister can do what they like—please sign here,' and one that sets out quite a detailed set of processes and constrains the executive power therein, but doesn't contain the whole thing on the face of the Bill, for all kinds of reasons that we are going into. So, I think there is quite a difference between those, and we've put out as much detail on the face of the Bill as we thought was necessary to make it—. I would like this Bill to be, so that if you don't know anything at all about the process, if you read the Bill through, you would understand the process. That's where we'd like to get to. And, yes, you'd have to go to regulations to get the detail of the application phase, or the detail of—. But the process itself would be understandable from the face of the Bill. A framework Bill wouldn't do that. It would just—. It would set out a series of points where the Minister could make decisions. So, I don't think it's the same thing. Sorry. 


Yes, but how would you respond to a point of view, though, that the Senedd scrutiny of the Bill is impaired by not having detail on the face of the Bill, so we're not able to see the full policy picture of what you're trying to do?

Thank you, James. As you know, we've put out statements of policy intent about how the regulation-making powers contained within the Bill are intended to be used. I'm very happy to continue to do that. They're very specific, and there are very good reasons why, for example, the detail of an application wouldn't be on the face of the Bill, because that might be very detailed indeed, and it might be subject to change as technologies change and time goes on. So, I don't want to be saying that you have to submit three applications in Outlook, only to discover that everybody's using something nobody's thought of in three weeks' time.

So, there are really good reasons for not setting out very detailed, administration-type things on the face of the Bill. But I absolutely do want somebody who read the Bill end to end to be able to understand the process by which they would get their application looked at.

Do you have concerns, though, Minister, that the number of delegated powers contained within the Bill will mean that the law in this area may become more inaccessible to people than if more information was contained on the face of the Bill?

Well, not really, no, because what I've tried to do, as I say, is strike the balance between having a Bill that's manageable, understandable and accessible, so that you can understand the process, and one that's flexible enough not to need primary legislation to amend it in two or three years' time, because, I don't know, some widget that nobody's yet thought of has come into being and we need to do that.

We have, in this place in the past, made legislation in a well-meaning way, with things on the face of the Bill, that have meant that, really, they've become very out of date pretty quickly. I can think of a couple of examples of that. So, we're trying to get the balance between a Bill that has all of the appropriate scrutiny from its committees in it, that has regulation-making powers that have the right balance of affirmative processes in it, where we think that the Senedd will have a view as to what should be contained within the regulation-making powers, and that can adapt in line with all of the various—we're living in one of the fastest changing periods of history, aren't we—so that it stays relevant inside that.

Thank you very much. Well, let's go a little bit further on this, because we understand that you and other Ministers often use the term 'futureproofing' to make sure that we've got that flexibility for that rapidly changing environment and so on, but we do have 14 Henry VIII powers within this Bill. Some of them are justified on the basis that they'll require frequent adjustment, perhaps. So, why is it appropriate that the Welsh Government—? What balance of considerations have you done that says that these are the particular ones that Welsh Government should have the power to decide, if and when you actually come back and adjust this?

So, it's a really difficult one, isn't it, genuinely? So, if you think about one of the powers that we have: we want to be able to disapply some parts of the process to a particular application. Well, that's because the process can be quite onerous, and we might want to help somebody that every one of us in this room would think requires assistance through the process. So, I might want to assist a community energy development, for example, by taking out some parts of the process that are particularly onerous or expensive. It's impossible to say, though, unless we do that by regulation, how that might work. I would genuinely not be able to do that on the face of the Bill.

Okay. So, if we take it a stage further again there, because what we're always trying to guard against is, not necessarily you, Minister, but a future Minister, who decides in their wisdom, then, that this is appropriate—and it might not be for wholly beneficient reasons; it could be just to blindside the Senedd and stakeholders—and, suddenly, a switch is flicked and away we go. So, we've got in here section 56(6), section 129(2) of Henry VIII powers following the negative procedure, other sections, 24(1), 56(2), 128(1), 60(6) and 87 have Henry VIII powers that require no procedure to be followed at all. How do you reassure this committee and the Senedd that the choice of procedure in each of these cases has given sufficient safeguards to the Senedd for oversight, and guards against, not you, Minister, but a future Minister misusing these Henry VIII powers?


I absolutely get that this has to be Minister-proof. This is not about the bona fides of a particular Minister; it's about the ability of a Minister determined to push the power to the limit not to be able to do so. Absolutely right. So, we can go through them, if you like. So, I think things like timescales—that's pretty straightforward, isn't it? You might want to make it longer or shorter or whatever. The regulations will set out some parameters for that, and so on. I don't think that's particularly contentious or difficult. It's obvious why you don't want to put it on the face of the Bill, to my mind. We could know in a year's time that, actually, we've left far too long for various parts of it and not long enough for others, and we might want to adjust that. I think that's really, really obvious. Somebody else is going to have to pick up Crown development, about which I know very little. Neil.

So, Crown development is a case where it's actually the Crown undertaking the development. Quite often, we find there's sensitive information linked to national security. So, there are issues there about how we make the rules linked to that. There may be some special procedures as well that we need to follow. So, Crown developments is one of those areas where we think it's important to have this sort of power.

Owen, do you want to say a bit more about Crown development, because you've looked into this in some detail?

I think you're right, Neil. You identified there that the power for Crown development is, generally, about information that is available, what's made available in the public sphere, so to speak, and any other procedural changes that may need to be amended. You mentioned site visits there, for example. Obviously, with regard to Ministry of Defence land, for example, there's going to need to be a balance of power there. So, it is, in certain circumstances, having the ability to reflect the specific nature of that circumstance. I think that's where Crown development is. It's an unknown, obviously, because you have not got the application in front of you to say, 'This is the impact of that specific development, and that is the effect upon Crown interests.' But it's to provide that ability to adapt to it, should it come forward.

I will say, Chair, that if the committee feels strongly that we should have an affirmative process where we've got a negative indicated, please say. I'm not averse at all to looking at that.

And we wouldn't do it for the sake of it, I'm sure. But we'll have a look at these, and we might, in follow-up in writing, look at some of the individual examples and the justification as well. 

I'm very happy to look at it. I will say to the Chair though, as the Chair's very familiar with this—

I might anticipate what you're going to say: that very rarely do Members actually do it.

But there is an issue also, in the same way that there is with Government, of Members having the capacity and the time. But what we should be affording them is the opportunity to be able to raise this should they want to or should they have stakeholders who are saying, 'I hear what the Minister is saying, but, actually, it has bigger ramifications than merely flicking the switch.' But I do get—

I do understand that, entirely. I was going to make the point though that some of these are very technical, and the chances of anyone genuinely wanting to comment in any way on some of the technical changes are pretty low. So, we've kind of gone for, if it's very technical indeed, it's probably negative.

Nawr rŷn ni'n mynd i fynd hyd yn oed yn fwy technegol. So, adran 29 o'r Bil, sydd yn ymwneud â gweithdrefnau cyn gwneud cais. Cymal 5 o dan yr adran yma, mae yna gyfeiriad ato fe yn y memorandwm esboniadol sy'n dweud y gall fod y materion sydd yn ymwneud â hysbysiad sydd yn cael eu crynhoi yn y Bil, y pethau sydd yn ddisgwyliedig ar wyneb y Bil, fod yn destun newid. Dwi'n dyfynnu nawr, achos dyw hwn ddim ar gof a chadw gyda fi. Gall hwn

'fod yn destun newid yn y dyfodol er mwyn bod o fudd i'r broses gydsynio'.

So, yn fras, hynny yw, rŷch chi yn agor y cyfle, mewn rheoliadau, ichi newid yr hyn sydd yn y Bil ynglŷn â'r hysbysiad gweithdrefnau cyn gwneud cais. Pa fath o newidiadau, yn y dyfodol—?

We're going to go even further into the detail now. So, section 29 of the Bill, which relates to the pre-application procedures. Section 29(5), there is a reference to it in the explanatory memorandum that states that matters relating to a notice in the Bill—so those things that are expected to be on the face of the Bill—those things may be subject to change. I'm quoting now, because I don't know this off by heart. But it may

'be subject to change in the future to benefit the consenting process'.

So, simply put, you are opening out the opportunity, in regulations, for you to change or amend what is in the Bill with regard to the notice of pre-application procedures. So, what kinds of future changes do you foresee?


Yes. It's okay. So, section 29 of the Bill is about the pre-application procedure, and sub-section, or clause 5 of that section, sets out on the face of the Bill what you would expect in terms of the notices, the pre-application procedure, to contain, but the explanatory memorandum says, in effect, 'Well, yes, but that effectively could be subject to change if it benefits the process.' What kinds of future changes? That's a bit elastic, isn't it? What could those changes be, and how could they be beneficial to the consenting process?

So, the one that comes to mind is the local newspaper. So, at the moment, you'd have to advertise in a local newspaper. Well, very tragically, many places don't have a local newspaper, and it's very likely that in the future it may be actually impossible to do that, so it would allow you to do so electronically, or you might even be specifying that you need to do it on an app that most people have access to. There's one called Nextdoor that I'm familiar with, for example. I'm sure all of you have got them as well. It might actually be better to specify that you advertise in an electronic format of that sort; you'd likely reach more people than, sadly, a local newspaper. So, it's that kind of thing that we're thinking of. Or, again, some widget that nobody has ever heard of yet appears, and everybody uses it, and our regulations say that you've got to use the local newspaper. So, it's trying to adapt to future changes of that sort. So, what it does is it specifies that you have to have a notification, that it has to have some content, that it has to be accompanied by various things, but what it doesn't tell you is how to do the notification, because that's the thing we think will very likely need futureproofing. So, it's trying to hit that balance, really. 

Okay. So, it's an ability to modify, within limits, effectively, which still meet the purpose. So, maybe there's a question there about whether the ambit or the degree to which modifications can be made could be more specified.

Yes. So, the Bill—and the committee may have a view on this—sets out what we think a notification absolutely should have, and then it leaves the regulations to tell you exactly how that might be.

Okay. Section 33(5), provides a deadline by which Ministers must receive representations on the application, and it refers to—the phrase is,

'after the end of the minimum representation period specified in regulations'.

What do you expect the minimum representation period to be?

So, at the moment, we're thinking to replicate the development of national significance process, so that's 30 days if there's an environmental impact assessment and 21 days if there isn't. But, I'm absolutely open to the committee telling us that you'd like something different; we are literally just replicating the current process at the moment.

Okay. That's good to know. Section 34 expands on the regulations around notices and publicity, and it refers to the requirements that will be imposed on specific persons. In your letter to—well, in our letter to you—you noted that the persons specified are anticipated to be statutory consultees. Could you actually explain where those consultees are set out in statute?

So, they're going to be set out in the regulations, as I understand it, but there'll be all the list that you're familiar with. So, Natural Resources Wales will be a consultee for absolutely everything; the Ministry of Defence will be a consultee if there's Ministry of Defence land or some security, just to pick two at random. There'll be other consultees—you know, local authority planning authorities, various other people, depending on where and how the thing is. It's one of the reasons we want Minister of the Crown consents, because we want Natural England, for example, to be one of the listed ones there if there's a cross-border issue on a river, for example. You can think of several cross-border issues where transmission lines might be crossing the border and so on. So, that's one of the reasons we want it. But the idea is to put a list of all of the public bodies—and quasi-public bodies—that might be statutory consultees into the regulations, so that they can be updated. So, if Natural England suddenly changes its name to something else, we can update it.


Finally from me, section 37(2) of the Bill refers to

'other information as may be specified in regulations'

that it requires from a person that the applicant believes, or knows, to be interested in the land to which an application applies. What 'other information' are you referring to? 

I don't know if you want to come in on this one, Neil. The name and address of the person whose land it is, for example, is the obvious one. If you're going for a compulsory purchase order, you'd want to know all of the people with a title in the land. If you were doing some sort of land assembly, for example, you might have several landowners who needed to have their land interests compulsorily acquired, and that might actually include a highway authority as well, or various other people—I mean, who knows with some of the land that we have to deal with. So, it's a list of all of the people affected, I think. Is there anything else?

That's basically it—anyone who's got an interest in the land. But what we will try and do with all these regulations is group them into a series of grouped regulations. So, if you're dealing with compulsory purchases, you'll be dealing with other procedural matters as well—it won't be just a case of, 'Here's one on compulsory purchase, here's one on pre-application'. It'll be grouped in a logical way. What we're trying to achieve is that grouping. The regulations will set out in detail anyone who may have an interest in the land. It gets a bit technical when you get into things like agricultural tenancies and things like that. So, there are all sorts of other interests you may have in land—common land and all those sorts of things that are very, very difficult to put on the face of a piece of legislation.

And it's very specific, this. It's specifically for when there's a compulsory purchase element to the application, which, obviously, not all applications would have.

So, it's primarily focused on ownership, not just on use or the forms of access, rights or whatever.

Yes. It's where the applicant wishes to control the land in question rather than just cross over it, for example.

Thanks, Adam. I'm going to turn to section 38, and it's got a relevance to section 42 as well. Because your letter was helpful, but it's caused us now to seek some clarity. In your letter, you confirmed that there are two distinct regulation-making powers, in your understanding, in section 38. Section 38(1) says 'regulations may require', section 38(2) says 'the regulations may' and goes on to whatever. Can you just confirm your understanding, your view, that there are two regulation-making powers in—. Yes. But there are two distinct regulation-making powers—

If I could cut across you. We think you're right and we'll change it. We think the committee's right; the drafting is less than splendid. I will put an amendment in to address it.

Okay. Thank you very much. Gosh. You've made our day, Minister. That's fantastic. Thank you very much.

In which case, let's go on to section 39(3) to do with examining applications, where there's a requirement on Welsh Ministers to publish a document setting out the criteria to be applied in deciding on whether to appoint a person or a panel of persons under section 39(2). Could you tell us what these criteria will be, and again, why these criteria wouldn't be on the face of the Bill?

Because, again, it's the detail, isn't it, of how many, how they'd be appointed, how they're notified of their appointment, how you revoke the appointment, how you get rid of somebody, or what happens if they die or all that sort of stuff. And so you need a set of regulations that set out how the panel is formed, how many it is, what the quorate number is, all of that kind of stuff. You wouldn't expect to see all of that on the face of a piece of primary legislation. And there might be other efficiency improvements for all of that as well. So, we might say that you have to have, I don't know, some e-mail address, or you might have to be contactable by blah—there's all that kind of stuff. So, as we do for all public appointments, there's a huge raft of things that goes alongside it about how you apply, and whether you're paid, and at what rate of remuneration, and how that's reviewed. This is hugely detailed, and I think it would not sit happily on the face of the Bill.


Thank you. If I can turn, then, just finally from my part here, to the power to enter land as part of examination, section 43. There's the phrase within that,

'a person, alone or with others',

for the purpose of section 43. This issue that we've touched on before, the power to enter land, is an area where you need to deal with some very careful consideration. This regulation-making power is not subject to the affirmative procedure. So, why did you consider the negative procedure to be appropriate in this particular case? What's the justification there?

This is just whether the inspector wants to go on their own or whether they want to take a cast of thousands as a result of a particularly intensive application that requires expertise, and so on. It's the regulations around making sure that you give the right notification for that. If the committee feels strongly that that should be affirmative, then I'm not going to die in a ditch over it—it just seems quite technical to us, that it is literally just saying, 'I would like to come alone as the inspector', or, 'On this occasion, I would like to bring a cast of thousands.' 

For a cast of thousands, we might suggest it would be the affirmative procedure. Sorry, I'm being flippant now.

Basically, the inspector would have to set out whether they wished to come alone, and, if not, who they wish to have accompany them, in order to take entry to the land, where, presumably, it is not consensual, because otherwise you wouldn't be doing it like that.

I was just giving that some thought, actually. In Part 5 of the Bill, Minister, in section 52, the examining authority has the function of deciding an application for infrastructure consent for a, and I quote,

'development of a kind specified in regulations'.

I'm going to ask the same question as the Chair has just asked, really. Why can't this be on the face of the Bill? Because this does seem more targeted, if you like, more precise, more discrete.

At the moment, we haven't got anything in our heads that might require this—

—so I have to think of hypothetical examples to give you, I'm afraid. For example, if you wanted to include the alteration of a railway line as a result of a particular application, then we might need to have something specific for that. We don't have anything in our mind at the moment, we just think there may be things that we haven't thought of that might require, I don't know, to change the entire drainage system for somewhere, or something.

We're used to particular types of infrastructure, but sometimes a wholly new thing comes along, and then we're not used to it. We've all got very used to wind, for example, but when they first appeared, nobody was used to it and had the least idea of how to go about it.

It has, but, once upon a time, it was brand new. At the moment, we're in a hugely changing technological environment. So, it may well be that something happens, I don't know, to do with hydrogen electrolysers, or, who knows, that might require some alteration to the electrical infrastructure, or the plumbing, or the local railway, or anything. So, we're trying to futureproof it, aren't we?

What we've tended to see over time is that public interest/acceptance for some types of applications has changed. Some applications in the future might be ones where it doesn't need a Minister to make that decision—it could be delegated to an official to make that decision. That's really what we're looking at here—whether that would be appropriate or not. As it stands at this point in time, that's not the intention, but—

So, for example, a 5G mast, which might be contentious today, won't be contentious in a decade. 

Yes, or a 50 MW solar farm might not be contentious in the future, if there are no objections to it. Things do change over time, so this is an attempt to allow that flexibility and do we need to go through that whole process if there is growing acceptance of these schemes. 


It is interesting what changes. I've recently been asked to agree that changes in the Welsh woodland estate to put up masts, for example, shouldn't be a ministerial decision because they're no longer controversial; nobody has any problem with them. 

So, it's stuff like that, really. But there are others. It's just futureproofing it, isn't it? 

Absolutely, and futureproofing does provide Government with certain rights and responsibilities—

Yes. It should be set out in the regulations properly and the regulations should be—

Though I think it's right and fair that the Senedd understands what powers it's providing to Government to take those decisions.

But moving on, section 55 provides another regulation-making power to enable regulations to specify matters that may be disregarded when decisions are made about infrastructure consent applications. You described in your correspondence that that could include vexatious or frivolous representations. Your frivolous representation might be my die-in-the-ditch issue—it's a subjective analysis, isn't it? 

The person would always have a legal right to challenge that, of course. We can all probably think of examples. I'm not going to say one here, but one immediately springs into my mind where you have somebody who is very, very, personally concerned about something in a way that has, perhaps, overtaken their lives a little bit, and is no longer providing help to the inspector but is actually causing a huge amount of work, and the issue isn't one that's new, it's just constantly reiterated, and—

Yes, I understand that, and the Government has very well-thought-out and, I think, broadly clear rules on how it would regard a vexatious correspondent, for example, and I don't think that's ever been challenged, really; I think that's perfectly fair and reasonable. I think there's a concern, though, that simply disregarding somebody because their point may be frivolous extends that, doesn't it, because it's no longer the issue that is—. If an individual is making a frivolous issue, then it should be very easy for the Government to make its case, argue it and to move on. Disregarding it seems a bit—

This is giving the inspector who's looking at the planning application the right to do this. 

The regulations will set this out, but I would very much argue that somebody who's simply made a frivolous interjection, and the inspector doesn't think it's a material consideration, is not likely to fall foul of this. It's going to be somebody who's persistently making non-material interjections that's going to fall into this.  

I understand that, and I think it's right and proper that public servants have the ability to work in a way that isn't becoming bogged down, if you like, in some of these issues, but at the same point, the public have to be protected and the rights of the public have to be protected in order to make their case in the way that they believe is appropriate and reasonable. And where we find the balance, I think, is where I'm—

So, Alun, I would say that the regulations should be very specific about what the inspector needs to do in order to go through that process to protect from exactly that. I might be legitimately very exercised about something that the inspector doesn't think is particularly material, so I've got the right to put that in front of them. I would argue I don't have the right to put it in front of them every five minutes for three weeks. So, that's where we're trying to go. 

I think your point is well made.

Section 56(2) allows for the time periods for deciding an application to be extended by direction. A direction may be given more than once, and can be given after the 52-week period has ended. This requires no Senedd procedure. It is essentially a Henry VIII power, without any oversight by the Senedd. Are you comfortable with that? 

This is the process by which, for whatever reason, there's a legitimate reason why the application hasn't been able to proceed at the normal pace. It's a feature of the current process as well. There are a number that we have that have gone over the time period for what are actually perfectly legitimate reasons. COVID caused some of that, for example. So, it's a way of extending the time period in circumstances where, you know, everyone reasonable would think that that was a reasonable thing to do. If you have an absolute deadline, and it's just, you know, it happens regardless of pestilence and plague, and hurricanes and stuff, then you've obviously got a problem.


Let me finish on this, section 59. It requires reasons to be provided alongside a decision to grant or refuse consent. In your letter to us you state that you anticipate an applicant will always be provided with a statement of reasons. But that provision, of course, is not included on the face of the Bill.

If you really want to do that, we can, but the regulations would absolutely say that—

So why—? But this comes back to the balance, doesn't it? It is again quite a discrete matter, it's not a matter where you need to make lists, or where things are going to change in the future and the rest of it. You know, I would anticipate that if an applicant has put in the resources to make an application, and that application has gone through the process, absolutely, they should be provided with the reason if the application is refused, and if, for example, there are people opposing it, they would want to know why the application has been allowed.

Okay, I think we've slightly come off there. If an application is refused, there absolutely will be—

So, why don't—? I'm just interested as to why section 59 is so unclear.

I think what we're talking about at the moment is what happens in practice. So, anyone who puts in an application at the moment, you know, when you get your decision, you get the reasons for that decision as well. So, what we're doing is replicating that process here. It states that it will always go to the applicant. In practice, it will go to the local planning authority and other statutory consultees as well. What it doesn't say, it doesn't say that in the legislation at the moment. So, essentially we're operating in the same way as the planning system operates at present.

I guess—. Sorry, Alun, just to get underneath what you're asking. So, we would be specifying that the applicant had a correct, and indeed comprehensive, 'decision report'. I'm sure you've seen them—an inspector goes through every single thing that's been put out. Are you suggesting that we should provide something on the face of the Bill that says that we also need to tell other people, and if so—?

I'm simply suggesting that if it is, as Neil suggests, current practice, then there seems to be very little reason why—

We wouldn't necessarily provide it to every single objector, for example—

—with access to it. I mean, if the committee wants us to put that on the Bill, I'm quite happy to look at that. But I would argue that we should say that we should publish it somewhere, rather than post it out to—

Okay, thanks. We're going to be defeated by time here, so we will have to write to you on some of the sections that we haven't got to. But this has been a very good and useful section. We're pretty much up against the buffers here.

Can I just return briefly to the point that Alun raised about using a Henry VIII power on the 52-week period if there's an extension? On the basis that this Bill is about giving certainty and clarity, and there might be, understandably, people aggrieved either from a developer's perspective or from a community perspective that, for some reason, it's been extended. There might be justifiable reasons, like you say, plague, pestilence and so on. And if there was a procedure on the floor of the Senedd, it would just be nodded through, if everybody understood that there was a good reason. But if there wasn't, the ability of the Senedd to say, 'Well, hold on, what's going on with this Minister here, why have they decided to extend this? We don't agree with this—'

—the legislative and the executive functions of the Bill. So, I think the legislative, scrutiny function there is to take it up with the Minister, that they think the Minister's abused their power in some way, or whatever. I think, if the Minister had to be subject to a Senedd piece of scrutiny prior to making the decision, you're effectively inserting a legislative process into the decision-making process, which we've never done before, and which I am not very keen on doing—well, I won't—and I'm not going to do that now. So, I think that's—. You've got to look at what the decision-making process is, and then what the scrutiny of the decision is. If you put one in the front, then you've effectively given the Senedd some part of the decision-making process, which, I would argue, is not the idea, and I would not be very keen on.


Okay. Listen, we've run out of time. Thank you very much, Minister, and your officials, as well, for their contribution here today. We have got some areas that we will write to you on quite promptly, to follow up on as well. Maybe some of the areas we've covered, but certainly the areas we haven't covered. Clearly, the transcript will be available, as well, for you to check for accuracy, but thank you for your evidence today.

Chair, might I ask that if the committee does feel very strongly that a procedure should be affirmative and not negative, or vice versa, although it's less likely the other way around, please be very clear about that, because we are very happy to look at that?

We will, we will. Thank you very much.

Good. In which case, we will say goodbye to you, Minister, and your officials. We'll take a short 10-minute break, if that's okay, colleagues, while we reorder seats and so on within the committee room here. Diolch yn fawr iawn. We'll go into private session just for 10 minutes.

Gohiriwyd y cyfarfod rhwng 14:31 a 14:48.

The meeting adjourned between 14:31 and 14:48.

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

Croeso nôl, pawb. Welcome back to this afternoon's session of the Legislation, Justice and Constitution Committee. In the earlier section of this meeting, we took evidence from the Minister for Climate Change on a Bill that's proceeding through the Senedd, and we are now moving on to our regular business in public session.

The first item that we have now as we go back into public is our statutory instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. We have three items to look at here, the first of which is a made negative resolution instrument, SL(6)379, the Local Government Officers (Political Restrictions) (Amendment) (Wales) Regulations 2023. These regulations amend 1990 regulations that imposed restrictions on public political activities of local government officers in posts that are politically restricted, for purposes of Part I of the Local Government and Housing Act 1989.

These regulations extend the restrictions to officers of a corporate joint committee, where those officers are appointed to, or employed in, restricted posts. Our lawyers have identified one technical and one merits reporting point. So, I am going to turn to our lawyer, Kate.

Thank you. The technical reporting point seeks further explanation from the Welsh Government about the effect of the new definition of 'local authority' that is being inserted into the 1990 regulations. We are waiting for the Welsh Government's response on that point. Then, the merits point is simply to note that the regulations are part of a package of instruments underpinning the establishment of corporate joint committees.

Thank you very much for that. Colleagues, anything that you want to raise, or are we happy to note those reporting points? We are. Okay, so we will turn from that, where we have one technical and one merits, to a slight contrast here.

Item 3.2, SL(6)380, the National Health Service (General Medical Services Contracts) (Wales) Regulations 2023. These regulations—and you have a draft report in your packs—revoke and replace the 2004 regulations. The regulations set out the framework for general medical services, GMS, contracts under Part 4 of the National Health Service (Wales) Act 2006. The GMS contractor will hold a common, unified GMS contract with a local health board for the provision of NHS primary medical services to patients, against which it is intended that they can easily demonstrate high levels of quality standards and care. And the explanatory memorandum to the regulations provides detail of the aims of the unified contract. So, in contrast to the last one, our lawyers have identified 53 technical and two merits reporting points. So, Kate, back to you. 


Thank you. Of the 53 technical reporting points, 14 relate to potentially defective drafting, 22 are matters that require further information from Welsh Government, and then 17 of the points identify inconsistencies between the Welsh and English language texts. The first merits point identifies an error in the explanatory note to the regulations that could cause considerable confusion to the reader, and then the final merits point notes that, in addition to the formal reporting points, we also identified over 100 typographical, grammatical and footnote errors in the regulations, which we've notified to Welsh Government officials separately. And we're waiting for Welsh Government's response. 

Cadeirydd, dwi'n dal yn eithaf newydd i'r pwyllgor yma, ond ydw i'n iawn i feddwl bod hwn yn eithaf syfrdanol o anarferol, bod yna gymaint o wallau, nid yn unig, fel rŷn ni newydd glywed, y rhai dŷn ni'n pwyntio mas yn benodol, ond dros ben y rheini mae yna wallau di-ri gramadegol a theipio ac yn y blaen? Oni ddylem ni, ar wahân i ofyn am ymateb ffurfiol, oni ddylem ni ofyn beth yn union sydd wedi mynd o'i le yn yr achos yma? Oes yna reswm, ŷch chi'n gwybod, i ni ymboeni—

Chair, I'm still relatively new to this committee, but am I right in thinking that this is quite surprisingly unusual, that there are so many errors, not just, as we've just heard, in terms of the ones that we point out specifically, but beyond those there are a whole host of grammatical errors and typos and so on? So, other than asking for a formal response, shouldn't we also be asking what's gone wrong in this particular case? Is there a particular reason, do you know, for us to worry—

Wel, ie, pwynt pwysig iawn, ond dydy hi ddim heb precedent, dwi'n gwybod. 

A very important point, and it's not without precedent, I know.

This isn't the first time we've seen something like this, I believe, Kate, where we've had a lot of grammatical and so on, and it could be to do with pressures, constraints behind the scenes; it could be to do with something of a rush because of that. We don't know. But what our committee does is that we do pick them up. Kate, we've seen things like this before. 

Yes. So, when we—when the lawyers—review the regulations we do sometimes identify points that aren't serious enough to be reported, but we let Welsh Government know, because obviously it's not ideal to have typographical errors in the regulations. It's not usually this bad, but these are very long regulations, so that may be part of the issue. But, also, the nature of the points suggest that maybe there has been an issue with the checking process undertaken by Welsh Government, maybe. It's not usual for this many to slip through in our experience. 

But it would be fair to say that what we would expect, on the back of the points that we've identified, is that these would be then corrected.

Yes. This is a negative resolution instrument. So, the options for Welsh Government to correct it: if there are minor errors, they may be corrected by correction slip, but more significant errors can only be made by further amending instruments. So, Welsh Government would need to make another statutory instrument to correct significant errors. 

But I think it's fair to say that this is a significant report, that—as Adam has pointed out—goes far beyond what our normal reporting would be. 

But, as you say, it's not without precedent either. So, perhaps we do need to consider how we approach it. 

Ie. Wel, os yw hi'n rhan o batrwm, mae hi'n peri mwy o bryder byth, ontefe? Mae'n rhaid i ni gofio mai senedd, deddfwrfa un siambr—unicameral—ydyn ni fan hyn, ontefe, felly os oes yna broblem systemig yn y drafftio, wel, rŷn ni gyd yn mynd i foddi wrth y lan, nac ydyn ni, gyda rheoliadau sydd hyd yn oed yn fwy pwysig na'r un yma.

Yes. Well, if it's part of a pattern, it causes even more concern. Because we have to remember that we're a unicameral legislature here, so, if there is a systemic issue in the drafting, then we're all going to suffer as a result of that in terms of regulations that are even more important than the one in front of us now.


Diolch. I think it certainly seems to be the will of the committee that we keep a very close, watchful eye, not just on this one, but on the general pattern. One of the things that we have done before is that we have asked Welsh Government for information on its quality control processes with legislation, and we can certainly keep an eye on this and others coming forward. We've also factored it into our annual report. So, it may be that this is something we could return to. We're only in the second week of this session. Maybe, in a few weeks' time, we'll keep an eye on this and see if this is a real worry—whether this is something that is quite unusual in the scale of it, or we see a pattern of this emerging that signifies something else is going on behind the scenes. But I think, if you're happy, we'll keep a good, watchful eye on this.

Ie. Byddai fe'n dda i gael, dros gyfnod o amser, rwy'n credu, rhyw fath o grynodeb meintiol: os gallwn ni adnabod patrymau trwy weld os yna gynnydd, ydyn ni'n gweld mwy o enghreifftiau fel hyn, gyda llawer iawn mwy o issues iddyn nhw, ac yn y blaen.

Yes. It would be good to have, over a period of time, some kind of quantitative summary: if we can identify patterns, trends, by seeing whether there is an increase, are we seeing more examples such as this, with a great many more issues in them, and so on.

We can certainly do that. We can certainly do that.

Diolch yn fawr, colleagues. So, if you're happy with those points that have been identified, we will bring them to the Government's attention and hope that those are rectified. Which takes—

Yes. There we are, we'll do that.

Item 3.3, then, SL(6)381, the Firefighters' Pensions (Remediable Service) (Wales) Regulations 2023. Again, we have a draft report. The Public Service Pensions and Judicial Offices Act 2022 makes provision to address age-based discrimination in public service pension schemes. These regulations make provision to implement the second phase of the remedy, set out in the 2022 Act, to address age-based discrimination in these public service pension schemes. Now, in this particular regulation, our lawyers have identified four technical and two merits reporting points. Kate.

Thank you. The first technical point identifies a number of inconsistencies between the Welsh and English language texts. The second and fourth technical points seek further information from Welsh Government about a term used in the regulations, and about the test that must be met in relation to voluntary contributions. And then the third technical report identifies potentially defective drafting. The first merits point notes the explanation provided in the explanatory memorandum for the retrospective provision that's made by the regulations, and then the final merits point is just to note that the regulations are complex and highly technical, and more could have been done to make them accessible to the reader. We're waiting for Welsh Government's response on these ones too.

That's great. Thank you. Colleagues, any comments, or are we happy to flag those issues? We are. Okay, thank you.

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

Thank you for that. We will move, then, on to item No.4, which is a regular item, again—the notifications and correspondence under the inter-institutional relations agreement. We have one item here to note, which is correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd, and the Minister for Climate Change in respect of the inter-ministerial group for environment, food and rural affairs. We have those letters in your packs.

Now, just to note, within that correspondence, the meeting was chaired by the Minister for Rural Affairs and North Wales, and Trefnydd, and the topics of discussion at the meeting included the implementation of the Windsor framework, COP28, the comprehensive and progressive agreement for trans-pacific partnership, and the Scottish Government's proposal to ban the possession and sale of rodent glue traps and its interaction with the United Kingdom Internal Market Act 2020. Quite interesting. The next meeting, we're told, will be held in November. That interaction of pieces of proposals for legislation in the devolved Governments and administrations with the internal market Act is something that we've been looking at as a committee as well. So, if you're happy to note that, we will go on, then, to other papers to note, under item 5.

5. Papurau i’w nodi
5. Papers to note

We have item 5.1, a letter from the Counsel General in relation to the Strikes (Minimum Service Levels) Act 2023. The letter notifies us, as a committee, that the Welsh Government remains, in his words,

'concerned the Act will have a wholly detrimental impact upon devolved public services and social partnership relations in Wales.'

The Counsel General has enclosed a letter of 19 September, which he sent to Kevin Hollinrake MP, the Parliamentary Under-Secretary of State in the Department for Business and Trade, in which he states that the stance of the Welsh Government is that the Act is, in quotes, 'unnecessary and probably unworkable'. So, that's interesting from a Senedd point of view, and from this committee's point of view.

Item 5.2, we have correspondence from the First Minister to the Llywydd in respect of the Environmental Protection (Single-use Plastic Products) (Wales) Act 2023, and Members will recall that we had in our papers on 11 September the First Minister's letter of 27 July, and this follows on from that correspondence. 

If you're happy to note those, we can return to these items, of course, in private as well. 

6. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
6. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting


bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(ix).


that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(ix).

Cynigiwyd y cynnig.

Motion moved.

So, we can go on then to item 6, that motion under Standing Order 17.42 to resolve to exclude the public for the remainder of the meeting, so that we can meet in private. Colleagues, are you happy to move into private session? We are. If we could move into private then, please.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:01.

Motion agreed.

The public part of the meeting ended at 15:01.