Cynulliad Cenedlaethol Cymru

Good morning. Welcome to the Constitutional and Legislative Affairs Committee. The usual housekeeping rules apply. There are no apologies for today. Are there any declarations of interest? 

If there are none, then I'll move straight on to item 2 on the agenda, which is instruments that raise no reporting issues under Standing Orders 21.2 or 21.3. Negative resolution instruments: we have the Building (Amendment) (Wales) Regulations 2018; the Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2018; and the Building Regulations &c. (Amendment) (Excepted Energy Buildings) (Wales) Regulations 2018. Are there any comments? None from the lawyers; no comments from the Members. Okay, we note those.

We'll move on to item 3, papers to note: the Agricultural Wages (Wales) Order 2018, and we have a letter from the Climate Change, Environment and Rural Affairs Committee to the Cabinet Secretary for Energy, Planning and Rural Affairs. I invite you to note that correspondence, unless there are any comments.

There are two members of the climate change committee here anyway, so—.

Good. That's comforting to know. Scrutiny of regulations made under the EU withdrawal Bill: there's a letter from the Llywydd to the First Minister. This obviously is a matter that we've previously raised. Shall I defer this to the private session?

Then there's correspondence with the UK Government civil service. You'll see there the letter from me to Chloe Smith, raising a whole variety of issues that arose out of the evidence sessions that we had, and then we've had the letter back from the Minister. Again, another letter to defer to the private session?

Yes.

Okay. In which case, we now move to the motion under Standing Order 17.42 to resolve to meet in private. Is that agreed?

Agreed.

Agreed. Okay, we now move into private session.

Okay. This is the resumed Constitutional and Legislative Affairs Committee meeting on Monday 14 May. The same housekeeping rules apply. Welcome to the Counsel General in attending this meeting in order to explore the legislation. I don't know if you want to introduce your colleagues.

Good afternoon, Chair. Yes, on my right is Dylan Hughes, the first legislative counsel, and on my left is Neil Martin, senior legislative counsel.

Okay. Well, thank you. I will go straight in, then. The legislation is not something that immediately comes to people's minds as a sort of thing the Assembly will be legislating about. Do you want to explain a little bit about what the legislation is about and what its purpose is?

Thank you, Chair, yes, and can I first acknowledge your contribution to getting us to where we are today in your former role? As the committee itself has indicated, in a number of its own reports, accessibility of the law in Wales is an important objective for Government and legislature, and we face a particular challenge in Wales, perhaps not least due to the complexity of our devolution settlement, that the law requires a lot of re-organising so that it is more accessible to the public at large, and those people who use the law routinely, partly as a consequence of the volume of the law that we have both inherited and subsequently legislated for here in the Assembly. And in addition to that, the secondary legislation, which is a vast part of the statute book—there is a high degree of complexity, and that poses barriers to understanding your rights and responsibilities as a member of the public, and it poses challenges as well to businesses, public sector organisations and so forth in their understanding of the frameworks that they need to work within. So, the purpose of the draft Bill, which we're consulting upon, is to bring clarity and accessibility to that regime over time.

I wonder if you'd like to outline a little bit about the consultation process, the sort of response you've had, and how far you've gone. It does seem to be a very niche area.

It is, I think it's fair to say, a niche area, and one of the objectives is to seek as many contributions as possible to the consultation from those who are users of the legislation, as well as those who have a more expert, informed view perhaps. The key is to ensure the widest range possible of voices to the discussion. We've had events in Cardiff and in Bangor, and there's an event coming up in Swansea and, indeed, in London because there'll be people outside Wales who will be using the legislation routinely, and therefore we want to make sure that there is a wide geographic spread as well. I've been raising awareness of the consultation in meetings that I've had with law schools and law firms, and indeed at advice centres and encouraging as much engagement and contribution, both informally and formally, to the process during those discussions.

So, you're obviously pleased with the number of responses that you've had. Have you managed to form any views so far on the outcome of the consultation, or is it too early to—?

Well, the consultation remains open at this point. So, obviously, we're hoping to ensure that there's a good level of response. In terms of the discussions at the consultation meetings that I've held, in general terms, if you look at Part 1 of the draft Bill, people have been positive about the proposed duty and the extent of it, and have understood that that is necessary to meet the scale of the challenge. In relation to the second part, as you would expect, the sorts of discussions around those have been more technical, and have been practical, and there's been a range of discussions around some of the individual proposals, which have engaged practitioners perhaps particularly, because they operate some of those provisions—or provisions like that—on a regular basis, and those have been useful contributions as well.

Okay. David Melding.

Thanks, Chair. Can I start by just looking at the duty that will be on you under section 1 of the draft Bill, which is to keep the accessibility of Welsh law under review? I hope I'm not being too caustic, but that doesn't seem much of an imperative to me. So, why such caution in what you're expected to do?

The point there is to impose a new duty on the Counsel General, which is not just to look at the accessibility of any individual piece of legislation, but to look at the accessibility of the system of law in general. And so, that provides a duty in the system that will attract obligations, obviously, and a commitment of resources over time. The idea of including the duty is to have that kind of dynamic effect and create a momentum towards progressively consolidating and ultimately codifying the law. As you will know, there has been piecemeal consolidation, both here and in other parts of the UK, and the objective here is to create a sense of dynamic, purpose and direction for that in the legislation.

It's important to see that alongside the other duty, which is both on the Counsel General and Welsh Ministers more broadly, which is the one to bring forward the programme, and that has, if you like, a greater degree of granularity, if I can put it like that, about what's encompassed within that programme, and I felt it was important that that duty should sit not just with the Counsel General as the law officer, but that should be, if you like, mainstreamed into the work of the Government generally, because that creates the right culture to start with, but it also shares the responsibility and it ensures that each portfolio holder feels responsible for delivering the objective of accessibility.

And, are you going to look at—? Let's pick the first bit then, in terms of your more wide-ranging responsibilities, before we get to the programme. How will you be making these sorts of assessments of whether law is getting more or less accessible, as an overall body? For instance, will you be reviewing each Bill that your colleagues are promoting and making some sort of statement on its accessibility? Will there be something as formal and transparent as that? 

I'm not minded, at this point, to go along the route of a formal publication of an accessibility impact assessment or something along those lines. Really, I bear in mind the fact that, generally speaking, those sorts of assessments are policy focused rather than process focused, and each individual piece of legislation obviously will have had that impact assessment as part of the legislation itself—certainly, the more recent legislation. But the existence of the duty obviously will mean that the process of bringing a Bill forward, and a consolidation Bill forward as well, will involve changes to process along the way, so that there'll be an opportunity for the Counsel General to become involved as the Bill is going through, to ensure that accessibility principles are being adhered to and promoted, as the Bill is developed through policy and drafting. 

So, there's no real way—. I can see the logic of measuring any step-by-step progress through individual Bills, because unless they're forming part of codification and consolidation, in other words, if they're in the existing culture of having to tack on yet another amendment to existing law, you could just assume that it's not getting very much more accessible until you're able to deliver the more comprehensive programme. Would that be a fair summary?

Well, no. I think there will be—. If your question is, 'Will there be improvements of accessibility along the way, as legislation is brought forward for future Bills?' absolutely that will be the case.

So, how could we measure that? 'Verify' it, perhaps, would be a better word.

Well, there's a balance to be struck here, isn't there, between the process of bringing the Bill forward and the resources dedicated, then, to creating that sort of assessment after the event, if you like. My judgment at this point is, although I'm open to reflection on this, obviously, is that the task of ensuring accessibility over a period of time is one where we need to ensure that as many resources that can be freed up to support that as possible are available. And there are judgments, then, to be reached about whether those resources are deployed in delivering the accessibility programme or in creating the sort of assessment document that might go alongside it. My current view is that it's better to ensure that the resources are deployed to increasing accessibility in the legislation overall in terms of delivering the programme, if you like.

Okay. I'm still not quite clear that I see the vision here, because—. The first part of your answer I thought was quite clear that if this isn't part of consolidation and codification, then we're inevitably working within the same culture, and whilst there may be things around the margins—technical notes, explanatory materials and that—you're not really tackling the core problem. But if I'm not summarising what you meant correctly, then please tell me.

Well, I'll just supplement, if I may, to that. The programme itself involves consolidation, codification and measures taken to increase the accessibility of the law. So, as part of bringing forward that programme, there will be specific measures around that. There'll be issues around standards, practices around footnoting and that sort of thing, which I know the committee's had an interest in.

Could I just add to that that it's not inevitable that, if it's not part of the programme, we're adding to the complexity? So, we will often take decisions to restate the law as a whole. So, the Human Transplantation (Wales) Bill is the example that I often cite. We could have amended the Human Tissue Act 2004 just for Wales, just for transplantation purposes. It would have been in English only, it wouldn't have been accessible, but what we did is we took around about 30-odd sections of existing law and we remade them, so it was a form of consolidation, but with the amendments that we needed to make in order to change the organ donation law. So that was an improvement.

It was a fairly obvious improvement, going to the second part of the question, about the assessment. It was a fairly obvious choice between one or the other. One of them would improve accessibility, one of them wouldn't, and we took the decision that we would improve it. Now, that's not to say we always do, because sometimes it's just not practical. 

I take the point that you could take existing law or use that framework and make it more succinct and restate it, but I find it curious that you wouldn't make a virtue of that as you were going along, and just issue a law impact assessment saying, 'I'm pleased to say that this helps, even if it falls short of the overall progression towards our final place where we want to be in terms of codification.'

If I can move on to the analysis you're going to make of the law, obviously we've had lawyers come in and tell us that even in their position of being professionals, they're not always sure what the law is, let alone the citizen. But we've also heard this remarkable view from Lord Lloyd-Jones that much of our law is an impenetrable mess, and I don't think he was singling out Wales—it was very much the legal culture we've inherited, and is present elsewhere. So, what sort of analysis have you been making? Perhaps, for instance, looking at cases where they've found it difficult to establish what the law is. Will that be part of your ongoing work in trying to bring clarity, perhaps especially in response to what case law is pointing to?

Well, there are certain areas where the need, perhaps, is more pressing than others in terms of the level of complexity within particular policy areas. So, one set of judgments will be around prioritising those areas. There is also the question of how the work of consolidating and codifying sits alongside the Government's broader legislative agenda. So, my ambition is that the process of consolidation and ultimately codification can be flexible, if you like. So it can either take advantage of a significant piece of law reform, which might present an opportunity to consolidate and codify at that point; alternatively, it might be sensible to look at periods where there's relative policy calm, if you like, after a period of law reform, and do some consolidation at that point. So, my ambition is that it's sufficiently flexible to be able to respond to the Government's broader legislative agenda, whilst also obviously recognising that some areas are in more urgent need of reform than others. 

So, are you being pressed at all, for instance, by the business and commercial sector, where they feel Welsh law is likely, as it develops, to perhaps not add to accessibility, because it is not really reaching that standard where things are made clearer?

Well, there are two aspects to that. You'll be aware of the work of the Law Commission on planning law in particular. I envisage that that could be of particular benefit to the business community.

I suppose there are two parts to this. In terms of the first part, Part 1 of the Bill, the objective of that is to create accessible law. That is going to be an asset to businesses, as it is an asset to all other sectors of our economy and society in general. So, I'm hopeful that that will be welcomed across the board, if you like. 

With regard to Part 2, obviously, there's a new interpretation regime contemplated there, and there'll be transitional periods of understanding what that new framework and the new provisions involve. Businesses and all organisations will need to adjust to that. We've asked for comments, by the way, in the consultation on that, but ultimately the objective there as well is to improve accessibility. 

I'm still trying to be more general here. What I find slightly surprising in what you just said in that answer—and, in fact, in your previous answers—is that you could have come in here and said, 'Look, this is going to be really important. We could make the law clearer in Wales and there could be competitive advantages, and therefore the Government has really thought it's best to tackle an important and difficult area first—planning.' But you've not done that. In fact, you've talked about it that it might be best to wait in some areas until the whole policy framework calms down, or whatever. But the planning example, it seems to me, is a much more ambitious example of really tackling something that is not only inaccessible at the moment to many people, but has a damaging impact on economic activity. So, why the caution in this approach? 

There's no caution. The piece of work on—

But you've been very faint with your own example. I mean, I'm more enthusiastic about the planning example than you are by the sound of it. 

I'm glad to hear enthusiasm for it. The reason that I'm putting it the way I am is that the Law Commission is undertaking a piece of work at the moment on that, so that will report and we'll see where we are at that point. 

But you can commission the Law Commission to look at another area that, in your view, is complex but there would be a huge return to the public interest if it was clarified. 

Absolutely. If you look at areas like local government or education, for example, they're obvious candidates for consolidation and codification. The duty that is envisaged under the draft Bill would first come into effect at the start of the next Assembly term, so there is plenty of opportunity to start thinking about what those priorities are and for them to be advocated for at that point, and seen as part of the broader legislative programme of the Government in the next Assembly. 

Again, if I can explicitly come on to the duty to prepare a programme, then, under section 2. We've touched on some of these issues, but I just wonder how—. You said in your first answer, I think, that you wanted the whole Government to be bound by this, not just your department—this is a shared duty. How is that going to be when you receive drafts from your colleagues? How strict are you going to be in thinking, 'Well, we could have consolidated here; why haven't we?' How live is this going to be and how is it going to change practice that, to date, has probably been better in its expressed desires than what it has actually achieved? I mean, there have been a few examples, I think, where certainly we feel that there was a chance to consolidate, but that, for whatever reason—usually urgency is the excuse—it was not followed. So, how live is this principle going to be, and what evidence would we see if it's actually working? 

Well, the whole point of the existence of the two duties is to change that. That's the rationale for including them in the draft Bill. In terms of pulling that programme together, clearly, when I was discussing, for example, with Cabinet colleagues the proposal for the draft Bill, each of them readily understood the advantages to stakeholders and the people within their portfolios who operate the law on a daily basis. And so, the task is to scope, if you like, what the advantages are and a programme for individual parts of those portfolios, for each individual area, and then to agree a basis on which that could happen over a five-year period. That will, as I say, need to reflect the Government's other priorities. Is there a law reform Bill coming up in a particular area? Does that operate as an incentive to consolidate? 

The broader question here, by the way, is the process of Brexit, for example. We have, as a consequence of the translation of law into Welsh law, ultimately, a number of opportunities perhaps there to look at areas where we could consolidate. So, there are a number of triggers for that, and I would expect that to be part of those discussions in the first period of the Assembly term before the programme is announced at the six-month point. 

So, in terms of environmental and agricultural legislation, would that be an area that you presume would be consolidated, unless there were very good reasons not to consolidate? I'm just wondering if there's an imperative here, or whether it's desirable to do.

There's certainly an imperative. As I say, the point of the duty is to create that imperative, and it will operate in that way. A note of caution on the two areas that you've just identified: the prime objective obviously is to make sure that European Union law becomes Welsh law in those areas in a way that works. If there are opportunities as part of that to consolidate or to consolidate shortly thereafter, we will absolutely wish to look at that, but the principle of the objective is to make sure those work properly on exit.

Let's take health, then, if that's a better example. The next major piece of health legislation—would that be the portal into consolidating that area of law?

As I say, in the next Assembly term, whatever the Government's law reform objectives are will be looked at, and alongside that we'll look at any opportunity we can find to consolidate. The process then will be discussion with those portfolio holders and to understand the implications for them and to agree a programme on that basis.

So, the resources issue is still going to be driven by what the Law Commission can do for you. Is that the primary capacity that you require, or is your department going to do some of this?

Absolutely, the latter. We've made an assessment of what a potential consolidation, codification and accessibility programme could cost on an annual basis over a five-year Assembly term. You'll know that the Law Commission assessed that to be around £440,000 a year. Our feeling is that actually that's on the light side if you take into account the drafting and translation costs in addition to that. But my working assumption is that a four or five-year consolidation Bill programme over an Assembly term could probably be deliverable for around about £560,000 a year. The objective would be to ensure that it's funded from within budgets and that will enable resource to be set aside and earmarked to ensure that that programme can be delivered over the five-year term. It's absolutely at the heart of this idea of the duty that the existence of it will create an incentive and an imperative to make those resources available in that way.

So, are you satisfied with the level of resources that are available to enable those objectives to be carried out?

I think it's the visibility and the certainty of that resourcing over the five-year period that makes it possible to put the resources in place, if they're not already there. Clearly, the long-term visibility of that commitment of resources is obviously important in earmarking resources to do the work of the programme.

Because presumably, once the duty is there, and it becomes a statutory duty, there is an obligation on Government to deliver something. The question is precisely the scale of what it delivers and over what timetable.

Absolutely.

Sorry, David.

Just to finish, you will then, on the programme, report periodically to the Assembly. What does 'periodically' mean? Is that annual or—?

My working assumption at this point is that it would be an annual report, although ultimately that's actually not entirely in the Government's hands. That's for the Assembly to determine. If more regular reporting is what the Assembly wishes, then clearly that will happen. I decided not to be too prescriptive in the draft Bill because actually programmes may look very different from one Assembly to the next and there may be particular periods of activity or areas of consolidation where the Assembly is particularly interested, where it might merit more frequent reporting. But my working assumption is that's probably sensible on an annual basis. 

Thank you.

We move on to Dai Lloyd.

If I could ask a couple of questions, then, just about the code, particularly how you tend to approach the problem that will inevitably arise. I'll put this in separate parts. Firstly, where, for example, health may overlap into social care and the overlapping of areas—how do you actually create a distinction in terms of the categories of the code? And also then what might be included within a code in respect of—. For example, with planning there's an awful lot contained within guidance and advice notes, and of course they have different statuses, but those, obviously, formulate a significant part of the law. So, how do you envisage tackling those particular problems that will inevitably emerge? 

Well, I think, in terms of the architecture of any individual code, there will need to be a pragmatic approach about how that might look based on each individual subject area, if you like. So, for example, within an education code, you can imagine that there might be a principal Act for schools, a principal Act for higher education, and so on, so that there are core building blocks for each of those areas, which would draw in legislation encompassed within that subject area, whatever legislation they derive from. Then, you would also publish, within the same code, as I said, the statutory instruments related to each of those, and then, crucially, include as well planning—well, you used the example of planning guidance, but any other guidance, codes of practice and so forth, so that it would be possible to access them, ultimately, on a web page, say. You would click on the education code, and it would give you the code and it would include all the relevant law, however it was passed or promulgated within that subject area. But how in detail those building blocks are put together will vary, obviously, between individual subject areas.

One of the disciplines that will emerge is, of course, once you've codified one area of law, Government, of course, may well want to legislate, subsequently, the discipline of ensuring that the codes are amended as opposed to bringing on new legislation and effectively undoing the good work that is being done. How do you see that being approached?

There's a very good example of this, of course, with the UK Parliament passing the Education Act in the early 1990s, which was then amended significantly, not within the framework of that Act but in several separate pieces of legislation. That's to defeat the object of a code, clearly. At the heart of the idea of a code is that, once it has been established, it must be maintained, and so any new law passed in relation to the subject matter that has been codified should operate by way of change to legislation within a code. How that works in practice I would expect to be a matter that would be dealt with through the Standing Orders of the Assembly, so that—coming back to the point I made to Dai Lloyd—the definition of what is a codified piece of law becomes quite important in that context. I would expect that the Assembly would want to ensure that the Government would be bringing forward legislation to amend within the framework of the code, rather than a standalone piece of law. But that, ultimately, would be a process that I think would be informed by a Standing Order change in the Assembly.

Apart from the example you gave with regard to education at the UK level, are you aware of any other processes of codification taking place within the UK Parliaments?

I think there's been piecemeal activity over the years, under the aegis of the Law Commission in particular, but what should be—. I think it's quite an important asset for us, an indication of the virtues and benefits of devolution. The framework in the Bill of the duty to consolidate and make accessible and to codify—that doesn't exist in any other jurisdiction in the UK. Other jurisdictions have similar or comparable provisions in other parts of the world. I think it's good news that we are able to take that step, which is appropriate to our legislature, our body of law here, and to recognise, as I mentioned at the start, the particular complexities we face due to the complexity of our devolution settlement—that we can take steps to tackle that here.

Okay. Mandy Jones.

Yes. Will all the existing Assembly legislation be put into a code?

The process will be twofold, I suppose: deciding, firstly, what is to be consolidated, leading to a code in a particular area. So, ultimately, over time, the answer to that question would be 'yes'. We would move to a position where the law was codified—with one or two exceptions, and I'll come on to that. The pace at which that happens, and the priority at which individual areas move along that journey, obviously, will be a matter for future Governments and future Assemblies. There will, however, be some legislation that I don't think lends itself to being part of a code. For example, I'm thinking of things like the Well-being of Future Generations (Wales) Act 2015, which is, in some ways, an overarching or an underpinning, if you like, statute. I think it would be hard to imagine that being part of a code. In my mind, that sits alongside policy subject areas, and applies across the board. So, there might be some examples where that wouldn't be appropriate.

Okay. Okay. Would you commit to making fewer amendments to Welsh legislation, using codes that are already in place?

Well, the objective would be, as I just mentioned to Mick Antoniw, that, where a code has been implemented, published, then future amendments to that subject area—. You know, amendment is a feature of law reform, isn't it, and Governments will wish to reform the law over time and that isn't going to change. What we can do through what we envisage here is ensure that, when that happens, it happens in a way that doesn't happen at the expense of accessibility. So, the overriding objective is to make sure that, when Government comes forward and the Assembly passes law reform, that should operate within the framework of a code rather than a stand alone, separate—

Right, so nothing added on or anything. 

Not outside the code. That would be the objective. 

Okay. Okay. Would it be fair to describe that as something like a digital filing system maintained by the Welsh Government? 

Well, I think it's more than that. There are examples, by the way, where the UK Government—UK Parliament does this, in particular in the area of agriculture and the environment, where you can already access, through a thing called DefraLex, online, a catalogue, if you like, of all the relevant legislation in a particular area. But it is that: it is a co-location, if you like, of all the disparate pieces of legislation, but it hasn't been consolidated. So, it aids accessibility in the sense that you know where to go and find all the bits of law, but it doesn't aid accessibility in the sense that the law has been reorganised in the most rational and accessible way. 

It is helpful to think of a filing system, actually, now that you've mentioned it, because, if you think of the way the UK Parliament has always done things or the way things have always been done in the UK, they are filed by reference to when they were made. So, an Act is filed by reference to, 'This is the fifth Act of 1981'. Now, many years later, the fact that it was the fifth Act of 1981 isn't that helpful when you're looking at your filing system. If your filing system had said, 'This is an Act about education' or specifically about schools, then, 40 years later, that's far more helpful. So, this is what we're trying to do. 

Yes, and then you can have different tabs in there and everything just to flick through them. My last question: how will you explain to the public the relationship between the codes and the Acts in order for the public to understand it?

Yes, okay. Well, that's quite a fundamental question, isn't it, in some ways. Because what you're talking about is how will you communicate the accessibility. I don't, myself, think that the best way of doing that is to worry too much about the legal distinctions between what is an Act and what is a code. They're fine distinctions, if you like, which I'm not sure—

The public wouldn't understand it. 

—are particularly relevant to an end user, really. I think the key thing is to be communicating that the law is being published much more accessibly. So, if this works as we hope it will, a user of legislation at the end of this process will understand very clearly where to find the law and be confident that all the law is there in a way that is current and available in both Welsh and English. I'm afraid that is a very long-term ambition, but, to go back to the point that David Melding made at the start, that's why—. The scale of the challenge, in a sense, is why we need to get under way.

Yes. Thank you.

Dai.

We'll move on, Counsel General, to Part 2 of the Bill. Just a couple of questions, initially, about the 1978 Act. Why is the 1978 Act insufficient? Why do we need new legislation? 

Well, it's now 40 years old, and legislative practices have moved on considerably, and there's a devolution settlement that has transformed the landscape in that period. Some of the terms in that Act are redundant in Wales, some of them are out of date, if you like, and importantly, also, it doesn't deal with the question that we've just been discussing with Dai Lloyd, which is the availability of terms in an authoritative fashion in both English and Welsh. So, it's time, I think, to address that issue. That has happened in Scotland. It has happened in Northern Ireland, and I think it's the right time for us to tackle that here in Wales as well. 

Okay, thanks for that. I move on to David Melding.

Yes. Two Acts will have to be used for a long time, it seems to me, in interpretation. How's that going to be managed? Because, especially if we've not consolidated and codified very much, there'll be parts where you need to use one interpretation Act and another where, whenever the cut-off is, the law would have been framed in terms of the new interpretation Act. It sounds awfully complicated.

Well, it may sound like that. We did look at whether it would be possible to have an Act that applied across the board, but the complexity involved in achieving that would have compromised the question of accessibility quite significantly, really. So the judgment was: given that that is the case, what's the best alternative to that? The best alternative to that, I think, is to have a set of rules that are very clear. We understand anecdotally, from the experience in Scotland, where there are actually three interpretation Acts, that, in practice, that hasn't been an issue, but that's obviously partly to do with how you communicate, and how clear the rules are on what law is subject to which interpretation Act. Although it may look complex, the two questions, really, which a user of this legislation, if it's passed, will need to ask themselves are, firstly, 'Was the legislation made after Part 2 of the Bill came into force?' and secondly, 'Was the legislation made in Wales?' If the answer to both those questions is 'yes', then generally speaking—there are some exceptions—it'll be this Bill and, in due course, this legislation, and if the answer is 'no', then it'll be the 1978 Act.

One way of making that more readily understood and clearer is to have a date for the legislation entering into force that is memorable, if you like. So, 1 January of a given year, so that there's as much clarity as you can achieve in relation to when you fall into either category. And the second approach is to look at issues around signposting in legislation, the use of explanatory notes and footnotes and so on, which is an issue I know this committee is very interested in. We'd want to look at how those sorts of tools could be used to make it clear for the reader which Act governs the legislation in question.

One, it seems to us, potentially clear way forward would be actually on the face of the Bill to just lay out what the key terms and their interpretation are, so if it's 'person', 'land', 'financial year' or whatever, it's all there. You could do that in addition, obviously, to the interpretation Act, but you'd restate it as relevant to the terms used in each piece of legislation. Do you think that would aid accessibility and understanding for—?

We have considered that. I may ask Dylan to comment in more detail on that.

Just to clarify, what you're saying is that you're suggesting that we define every term every time in each Bill that we propose, or—

Well, on the face of the Bill, yes. You know, you're probably only talking a couple of dozen terms, aren't you, if that? It is there then as either a preamble or an appendix to each Bill.

Can I just clarify: are you saying that a piece of legislation should say which interpretation Act it is subject to?

No, it would go through the key terms that need interpretation.

Just a couple of things to point out: the purpose of an interpretation Act, as you know, is to not have to do that, if it's not significantly important to do so or if it's a fairly obvious definition. So, we try not to put in definitions that are not necessary most of the time, is perhaps one way to explain it, but if there is an issue as to the meaning of a particular term then it is covered in the statute book somewhere. So, it doesn't necessarily assist accessibility to have it set out each time.

The other point is that that's only one part of what the interpretation Act does. The interpretation Act is more than a set of terms; it is an Act that sets out how the statute book works and how legislation works. So, that's the rationale for it. There aren't that many terms that are actually left to the interpretation Act. Most of the time, we will define them in each Bill. So, if it is crucial to the understanding of the reader of each Bill that they need to know a particular meaning of a particular word, it will be in the Bill.

Okay. The final issue then is just how, if there's any ambiguity between something in English or something in Welsh, the interpretation Act will help that. How would it aid clarification in terms of which language is used, if they're in conflict or there is some ambiguity? 

Well, ultimately, at the moment, there isn't a set of Welsh terms at all, so it takes us a step forward in that sense in creating an authoritative definition, if you like, of the term used when it's used in Welsh. Ultimately, those questions of interpretation require—. There are different ways of approaching that to ensure that you've got the meaning, if you like, of both terms. There are interesting philosophical discussions about how judges approach some of those questions. I might ask Dylan whether there's a practical solution to it.

It is something we're looking at. It's an open question we've asked in the consultation paper, actually. We are very mindful of chapter 12 of the Law Commission's consultation paper in particular on the form and accessibility of the law applicable in Wales. That was a detailed analysis prepared, as we understand it, by Lord Lloyd-Jones himself of the complexities involved in interpreting two languages. As things stand, the Government of Wales Act, as you'll know, sets out that they have equal status. The conclusion that the Law Commission came to was that that meant that, in the case of any ambiguity, you have to look at both languages. It's not a case of being able to look at one language and thinking that that language may be perhaps a little ambiguous and we'll look to the other language for clarity. The ambiguity may actually be in the language that you're not reading. So, you do have to look at both languages together. Now, we think that that is where the courts would go, in any event. That's how the normal rules of construction would take you, but we are thinking about whether we need to clarify that in the legislation—the Bill itself—and there are examples of that in other jurisdictions. So, in Hong Kong, for example, they do have a specific provision that says just that.

So, if I understand it correctly, I think, in Canada, this is the principle, where they'll look at both texts and then make a judgment as to which text is clearer on the point, and that's the one that would overcome ambiguities, if they can be overcome.

Yes.

Okay.

If I could just ask a couple of final questions: the Bill reverses the presumption that the legislation does not bind the Crown. I just wonder if you might explain the reasoning for that.

Yes. There are two concepts behind that, I guess. The current law requires you to know what categories of people or organisation are bound by the law and which are not, and most commonsense approaches to legislation are users that are not going to have, in their minds, the understanding that the Crown is exempt, unless otherwise expressly included within the provisions of the Act. So, there's an accessibility and a clarity rationale to having the rules set out in statute so that you don't have to have that prior piece of knowledge. The second argument is around parity, really; and it's a question of ensuring that everybody, and every organisation, is subject to the law in a democratic society. So, the blend of those two justifications, if you like, leads us to proposing a reversal of that presumption and setting it out clearly in legislation.

Do you envisage any potential competence issues arising from that?

Not at this stage. Clearly, the issue is—. The provision is a default provision, of course, and so it is possible, in a particular piece of legislation, to reverse the presumption, if you like, depending on the individual circumstances of the legislation.

So, if a competence issue was identified, that wouldn't cause a problem within the legislation because, as you say, it would be a default position, yes?

Yes, indeed.

Okay. I think that brings us to the end of the questions, Counsel General. Thank you very much for your evidence. And, of course, one of the purposes of today's session is to actually, I suppose, promote the Bill and an understanding of it and the sorts of questions that may well be asked. There will be, obviously, a transcript of the evidence, which will go forward to you. I thank you and your officials for your attendance today.

Thank you very much.

We will go straight on, in a moment, to the next session, which is on the Childcare Funding (Wales) Bill. I think the Minister has arrived, so we'll do a straight changeover, if that's okay.

Prynhawn da. Good afternoon.

Good afternoon. Prynhawn da. Thank you for your attendance, Minister. Obviously, we're here today to look at the Childcare Funding (Wales) Bill. It's a short piece of legislation, but, nevertheless, we do wish to look through the issues that arise from it. Would you like to introduce your colleagues?

Yes, indeed. Thank you, Chair. Between the three of us, hopefully we'll be able to answer most of your questions because not only do we have the Minister, but we have my policy lead Owain Lloyd here, and also on legal questions Tracy Hull here as well. So, hopefully, between the three of us, we'll do a reasonable job.

Thank you for attending. Do you want to make any opening comments, or shall we go straight into questions?

No, just delighted to be here and to answer the questions that you have. It's interesting being here in a transformed guise, sitting at the other end of the table, for a change, so I think I'll deserve everything I get now for the next hour.

We'll be gentle with you. Are you satisfied that the Bill is within competence?

Yes, indeed, Chair. I'm satisfied that the Bill is within the reserved-powers model of legislative competence for Wales under the Government of Wales Act 2017. If it's of help, section 2 of the explanatory memorandum goes into more details on the issue of competence. But, of course, sections 4 and 5 of the Bill do require the consent of appropriate Ministers to be given through the Secretary of State for Wales, and we've had ongoing discussions—very productive discussions—regarding those consents, and they continue as we speak. We anticipate, if it's of help to the committee, consent being received during the Stage 1 process.

Okay. So, on the presumption that those consents will be received, it's within competence, but, of course, you're still awaiting those consents to come through.

Yes, indeed. I'm very pleased, Chair, that we've had the consent of the Chief Secretary to the Treasury on behalf of Her Majesty's Revenue and Customs, which is a key part of this Bill. That's been secured, but we are working with the UK Government to have the other consents in place shortly and, hopefully, as I say, by the end of Stage 1.

Okay. And have you had any discussions with the UK Government in relation to the Bill—have any issues arisen there, because, of course, it does involve HMRC under the jurisdiction of the UK Government? Are there any issues there that are of concern?

No, there are no issues that are causing us any concern, but you are right about the complexity of this quite technical Bill, which goes into a lot of the machinery of how we make this work, and it requires consent, with the support of the Wales Office I have to say, but also from the Home Office, the Department for Work and Pensions and HMRC, and, in turn, discussions with HM Treasury as well. So, we have discussed, for example, provisions in relation to appeals and the use of the first-tier tribunals with the Ministry of Justice as part of the preparation of a justice impact assessment, and that's been very constructive, very productive. We don't anticipate any problems there. We've had regular ongoing discussions with HMRC regarding the Bill because of their critical role in it and the use of the childcare service and the parameters of our offer and the way in which we'll have to—if the Bill proceeds and does get assent—continue working together as well in future. So, we don't anticipate any problems. It's been complex and quite challenging at times because of the way this is put together, but it's been very constructive and we're getting there.

Obviously, you're required to look at any human rights issues. Has anything been identified in respect of that area?

We have looked at human rights. We've considered them as part of the equality and human rights impact assessment, which, as committee members know, we've published as well. We believe the Bill is compatible with articles 6 and 14 of the Human Rights Act 1998. We do have safeguards within the Bill as well, of course, to protect the system from abuse, but also to ensure that we do have a clear, impartial, true system for applicants to follow if they don't agree with decisions about, for example, eligibility, which is a key part of this Bill, or if they want to appeal against, for example, a penalty, which is within this Bill, or the amount of penalty imposed on them, and this is consistent, we believe, with article 6 of the Human Rights Act.

There's one other aspect, of course, which the committee would want to be aware of, and that's in regard to article 14. We have considered that insofar as the Bill is intended to facilitate a system that is not discriminatory in any way, such as on sex, race, colour, language, religion, politics and so on, and we're content that it satisfies that. So, in terms of human rights, we think we've done a thorough analysis and we are content that it is compatible under the equality and human rights impact assessment.

Okay, thank you for that. Dai Lloyd.

It's a very good question, but it's quite a straightforward answer. In order to pursue the mechanism that we want to deliver the childcare offer in its entirety, we have opted for a system that, as I explained in my previous answers, uses the HMRC model, which is currently undergoing—. That's to avoid a couple of things, which I mentioned on the floor of the Senedd the other day. One is the complexity for local authorities. Local authorities are currently administering this under the seven pilot areas. What we've learnt is that they can do it, but it is extremely bureaucratic, extremely administratively time-consuming and costly. But also, there are families out there with quite complex issues that don't easily provide all the paperwork, and that is providing complexity as well, whereas we know that this procedure will actually give us a very clear way that cuts out those problems. So, a single system in Wales is preferred, both by parents from our pilots but also from local authorities. So, using the childcare service will allow us to make quick decisions, using data sharing, using sharing of information with the right protections, rather than complexity on the ground and submission of hard copies of data and so on. Does that helpfully answer the question why we need this legislation?

It's a really good question, and it takes us to the heart of why the Bill is framed as it is. We have shortly coming forward an evaluation of the first year of the pilots. The pilots have been done quite painstakingly. There's been some frustration with some areas saying, 'Please can we have a part of the pilots', and we've said, 'No'. What we're doing is: we're piloting in areas where we are learning specific lessons and then tweaking and adjusting. We'll have the evaluation in the autumn of the first year of those pilots, so we might want to shape and reshape a little bit of the offer around it. But in order to get to this full-blown system, we actually need to legislate now to enable the opening of the data gateways with HMRC, to have those negotiations with the UK Government. We need to do that now to move away from the system we currently have, to be ready for the 2019-2020 roll-out. If we don't do it now we won't be in the—. If you do it in reverse planning—I've forgotten what they call it, with business planning, but we won't be ready to do the full roll-out. We have to do this stage now. But we've still got lessons to learn from the pilots.

David Melding.

Minister, this Bill is almost entirely enabling—there's hardly anything on the face of the Bill—and it contains seven powers for Welsh Ministers to make subordinate legislation, in a 13-section Bill, which is—. Well, it doesn't seem to address the usual desire to have a good balance on what's on the face of the Bill, and then what's left to regulation. So, why have we chosen to legislate in this way?

I think there are a couple of reasons, David, which make this slightly different from normal framework Bills. One is—as I mentioned to your colleague Dai then—we have the seven early implementing authorities currently under way, and we're learning lessons from term, and it's highly likely that the lessons we learn from them will then feature in the regulations that come forward. We don't think it would be appropriate to come back to primary legislation to make adjustments of a technical nature—things like eligibility criteria et cetera, et cetera. We think it's far more appropriate to deal with those through regulations. It also, I would say, gives flexibility for the future. This Bill is this Bill. This Bill is very much on the 30 hours, including the foundation phase of 10 hours—30 hours, 48 weeks of the year, with those parameters. It's a manifesto commitment. It's very much constrained within those criteria, but it might well be, in future, that a future Minister of any political party says, 'Well, do you know, we actually want to revisit this. We want to look at what the eligibility criteria would be, what the different shape of this might be.' This Bill allows some flexibility to do that in terms of who can access the Bill—children and parents and so on. So, we think we've got it right, and we're not doing it in absence of any information because we have, David, out there, the seven pilots at the moment; because we've put forward already the clear statement that underpins this in the explanatory memorandum. It's very clear what the Bill intends to do. But it allows some flexibility for the future, both to learn from the year-1 evaluation, which is coming forward in the autumn, and also to give future administration some flexibility.

I suppose the obvious question to ask is: if you're not yet ready to clearly express what the policy is, then why on earth are you legislating?

I absolutely get that question, and if we were doing this on a blank sheet, I'd be there with you arguing exactly that case. But the difference here is that we have the statement of policy intent, which makes quite clear the information that will come forward within subordinate legislation. And, of course, we have the pilots already under way, so we know what this offer is intending to do and the sort of shape it will be, although there might be tweaks as we go along these pilots.

But what we have made clear is: the question of balance is always important to what you put on the face on the Bill. We think, in this case, we've got the balance right because there's sufficient detail on the face of the Bill, supplemented by the statement, the explanatory memorandum, the pilots that are currently going on—there's nothing hidden on what this Bill is trying to do—but we're also building in with this—and we've had a discussion over this—a process, then, of draft affirmative procedures for anything that flows forward then in subsequent regulations—with one exception, which is the commencement date, because we've always been clear: this is a manifesto commitment—it will commence, it will be rolled out by 2020. With that one exception, everything else is subject to draft affirmative procedure, which will give the opportunity, then, to express a view on tweaks to technical areas and so on. So, we think we've got it right, but we know it's always a balance of judgment.

It does raise a significant issue, doesn't it, that the extent of flexibility makes it very difficult to judge what the general principles are? And, of course, one of the purposes of scrutiny is to examine the general principles that exist.

Indeed, Chair, although I would say there are wider policy discussions outwith this committee and our debate today, and those will continue. And there is an element of flexibility within the Bill, but, actually, this Bill, in terms of setting up the HMRC procedure—the engagement between Welsh Government and UK Government—all of those technical issues, this is actually a very technical Bill, to deliver the machinery to actually take this forward on an all-Wales basis, as opposed to a wider discussion around the policy. But it does leave some flexibility there, should a future Minister want to come back—a Plaid Cymru Minister, a Conservative Minister, whoever—and say, 'Well, actually, we think we'd like to tweak the eligibility a little bit.' Rather than come back for primary legislation, it enables us to do it within here.

I suppose the danger is—if you're not as clear, as we often see in legislation, anyway, about the policy purpose—is that it does two things: one is that the ability of the Assembly to amend the legislation as it's going through its parliamentary procedures is gravely weakened. So, if someone wanted to make a much clearer statement about when someone qualifies, if they're seeking work, or on the edge of getting work, or whether the ability to work shouldn't be a qualifying criterion—that discussion just can't be had in the legislature because you devolve it completely to regulations.

And then, it means you—you call it 'tweaks' and 'revisions', but it seems to me quite radical that a future Government, of another persuasion perhaps, could decide, 'Actually, what we need are after-school clubs for eight to 13-year-olds', who are making that, as we know, very important transition into their senior school career, when most of the fallout in terms of anti-social behaviour and poor attendance occurs. It seems to me that that would possible because of your use of such a framework, stick insect of a piece of legislation—[Laughter.]—if I can put it that way.

It's an interesting example. You were saying there—. You're suggested example was post school—

There might be a fundamental change in the type of care you want to provide, which, effectively, can't be—.

Curiously, something like that you could already enact through the Wales Act 2017; the powers are there to do that. You could do that separately from this entirely.

And that's what we'd recommend so that you get the full scrutiny process here. But it can be completely done by a back door that you are leaving wide open.

The difference, I suspect, David, with this legislation is that the policy intent on this is very, very clear: it is a childcare offer that was a manifesto commitment. It does allow flexibility, so you could actually come back as a future Minister and say, 'We'd like to, perhaps, tweak the eligibility so that we could extend it to other parents', or some other criteria. But it is a childcare offer for three and four-year-olds, as put there within the statement, which clearly explains that, and the explanatory memorandum. But there is flexibility here for future Ministers, and I think it's a deliberate flexibility as well, because there is quite a range of discussion—.

This is here to set up the mechanism about how we deliver it, this particular Bill—that's what this does. But there is the flexibility for future Ministers to come back and say, 'Well, we've been out, we've consulted, we've learnt from the pilots, we've learnt from the first two or three years of the roll-out', because during those first two or three years of the full roll-out, we will be evaluating substantially—. In fact, we kick it off in the first year, evaluating what lessons we're learning from the full roll-out. It might well be, then, that we want to come back and say, 'Do you know, the evidence says we should tweak the eligibility criteria', and this would allow us to do it. But I do appreciate that it is a matter of a balance of judgment on this. But we feel that we've got it right, because we're very clear on what this is trying to do, and we've got seven pilots out there trying to do it at the moment.

Well, anyway, let's move on to how you've chosen to legislate and the importance of regulations. I just wonder when these regulations are going to be laid in draft so that you can have a proper Stage 1 process, at least, that allows for those regulations to be examined.

We're anticipating having the regulations laid during the first half o 2019. We don't anticipate that we'll have them in draft, because, partly, as I alluded to earlier on, we have, in the autumn, not least, the early evaluation of the first year of the pilots and I think that will allow us, then, to bring forward a good set of regulations in the spring of 2019, rather than rush them.

So, the regulations are not going to be available for Stage 1.

I don't think we will have them done, because of that—because the milestones in this are: learn from year 1 of what we've piloted and then refresh and bring those through in the regulations so that they're fit for purpose.

And then you have a commitment to consult on subordinate legislation and that's going to be a process beyond the legislative scrutiny that the Assembly will be doing. You'll consult on subordinate legislation where it is considered appropriate, so I suppose the obvious question here is: how will you evaluate when it's appropriate?

Yes—I might turn to colleagues here, because my suspicion would be that rather than purely minor technical issues, it would need to be something that was more substantive, as we were discussing. Owain, I don't know if you have any thoughts on the sort of things that we would consult on.

Yes, Minister. I think there is a judgment to be made in terms of—. So, obviously, there are two sets of regulations, in a sense. There are the regulations that will be dealing with the data sharing and the gateways, which will be very technical and very detailed in nature, and there's a question as to whether we would consult on that. I think it's a different question for the Minister, then, in terms of the wider eligibility regulations, and if there were an opportunity to have maybe a light-touch consultation on that during 2019. But it's not something that we've come to a firm view on at this point in time.

But I think, yes, you're—. If it was something that substantively changed the direction of this—not the direction of this, but substantially changed the eligibility, something that materially affected the overall policy thrust, I think that's something we would want to consult on, but if it was technical issues around the gateway, it seems not appropriate then.

Well, I was quoting from your explanatory memorandum. But given all this, and the need for checks and balances, and that we won't have the draft regulations for the legislative process here, and you seem sketchy on when it's appropriate to consult, when we eventually get the regulations, would you consider using, especially on the criteria issues, the superaffirmative so that at least then, when the subordinate legislation is available in draft, it gets a thorough consultation, even if that's not done in advance?

I suddenly feel one of those poacher-turned-gamekeeper moments here. I'd be interested in the committee's thoughts on the use of the superaffirmative. We genuinely think that the affirmative approach is the right one for anything in this that is of a technical nature, but if the committee feels strongly that, for substantive issues, it would be more appropriate to look at the superaffirmative, then we'd be interested in hearing your views, quite genuinely, on this.

It is something that we've knocked about and we've considered. We think we've got the balance right. We did actually consider, with some of these technical issues, whether, actually, the negative procedure would be right, but we moved to put everything on an affirmative footing, except for that one commencement Order issue. But it's for the committee to mull over this, I guess, and if there was something that was a clearly substantive change—it's how you would define that, though, that's the question. But we'd genuinely be interested in your views on this.

I think that's the point that's been concerning us a little bit and we find challenging—the actual flexibility, the definitions, the looseness, generally, of it. Sorry, David, I think—

No, I'm done.

Dai Lloyd.

Diolch, Dai. We've had discussions with the Treasury already. We've asked them to consent to the general principle of sharing information, as you said, set out in section 4 of the Bill, and the proposed arrangements and the sanctions around unlawful disclosure of information in section 5. There's also going to be continual engagement, further engagement, with the Secretaries of State on the detail of the regulations that have implications for functions of their departments. So, as appropriate, Ministers and the Treasury will have power of consent over regulations made under sections 4(5), 5(2) and 5(3) of the Bill. So, we're continuing in our engagement with them on that.

We also have, similarly, continuing engagement on the amendment to section 18 of the Commissioners for Revenue and Customs Act 2005, as it constitutes a modification to the functions of HMRC, so we need consent from the Treasury in accordance with section 10 of Schedule 7B to the Government of Wales Act 2006.

Just finally on this point, Dai, I'd like to confirm that consent to sections 4 and 5 and the amendment modification within section 8 of the Bill has been expressly provided within the letter that I think you've seen from the Chief Secretary to the Treasury.

Dai, it's an important point, and, despite the fact that, as we say, our engagement is very constructive and that we have no doubt that consent will be given, do they have a veto over this childcare scheme? No, because we looked at different options of providing them, and one of those options is the fallback option, which is to continue providing it through the local authorities. If push came to shove, we could do that. It would be more bureaucratic, it would be more costly. It's not the ideal thing either for local authorities or for parents and families, frankly, but we could do that. So, they don't have a veto over this scheme, but, certainly, we need to work with the UK Government and to have their consents in order to operate it through the HMRC model, acting as an agent for Welsh Government, in effect.

As I mentioned on the floor, however, part of this Bill also allows us, in future—should we want to—to come back and devise a Wales solution for doing this, either a stand-alone Wales body, or perhaps the Welsh Revenue Authority when it's matured and can stand and say, 'We want to do more things.' But they don't have a veto, Dai, over this scheme. We can make this scheme happen, come what may.

The administrative scheme, of itself, is administrative in nature, but it is made use of in the powers in section 1 of the Bill. So, that's the statutory underpinning. We will publish the scheme on the Welsh Government's website. The legislative programme and the Government's unit have this database now of instruments such as administrative schemes and directions, but the scheme is administrative in character. The statutory underpinning is the powers in section 1.

Okay.

Okay. And Mandy Jones.

I think you've answered one of my questions about providing the 30 hours of free childcare on the face of the Bill.

Yes, I think I have, but if it's worth elaborating a little bit, that balance of judgment about what you put on the face of the Bill and what you leave off it, it does allow the ability to come back under an affirmative procedure, and for a future Minister or Cabinet Secretary to say, 'Do you know, one of the things we've learned is we'd like to do more?', or, 'Actually, we'd like to tweak it and do slightly less, and do it in a slightly different way.' So, that's why we've not put it on the face.

Okay. Would you consider placing the eligibility criteria concerning who is a qualifying child or a working parent on the face of the Bill, with the power to amend that by way of regulations?

I think, Mandy, that probably comes back to that same argument and balance of judgment, and we're keen to allow the flexibility within this so that a future Minister can come back without going through primary legislation and amend the regulations through an affirmative resolution, rather than coming back to primary law. So, again, we think we've got it right. The eligibility, I think, might well be something that people want to come back to in future, and we don't want a new piece of law to do that—a new piece of primary law to do that, sorry.

Right. Section 4(4) states that

'information or a description of information may be so specified only if the Welsh Ministers consider it appropriate to do so for the purposes of determinations as to eligibility for funding under section 1.'

Can you clarify why the word 'appropriate' has been used, rather than the less subjective word of 'necessary'?

This is definitely taking me back now to years on committees—'could', 'should', 'may', 'must', and so on. Our drafting experts have come down firmly on the view that 'appropriate' is the appropriate wording rather than 'necessary'. They did look at both, but this is a legal counsel opinion that 'appropriate' works; it is the right word to put in here.

You understand, of course, that this committee has regular concerns about the use of fairly general, fairly flexible terms like that. I understand that my predecessor on this committee was a stickler for it as well. [Laughter.]

If it's of help I can elucidate a little further. The regulations that we're looking at will need to specify the type of information concerned—the type of information—and Welsh Ministers are going to have to identify a range of information that's relevant in this context. But it's the type of information, so it will involve consideration of what type of information is likely to be required for testing eligibility. Now we have tested this with our legal counsel. They've considered should it be what is necessary, but they've come down firmly of the view that actually, because it's judging what the type of information should be, then it's 'appropriate' that's the correct terminology to use rather than 'necessary'.

Didn't they say that it's too restrictive in terms of the information you might need to see?

Indeed. Thank you, Chair. You've put it better than I could.

Last question: why has the power in section 7 been taken, given that the pilots are operating without legislation, and how do you anticipate it might be used?

Right, well, the section 7 powers confer functions on local authorities. They currently have functions under the pilot, so for example, under the current pilots they are assessing applications—quite complex, as they do it, one by one, each local authority. They have functions of supporting parents and making payments to providers—complex as that is. It will probably change in the future, but there will still be a need to confer functions on those local authorities, but they might be different, and we can already see what those might be.

So, for example, it could well be—it probably will be—continuing to advise parents, because one of the things that we've learned—. So, we could confer a function on an LA to—. And by the way, they're not opposing these. We're engaged with the local authorities all the time, and we consult with them and engage with them. Advising parents, we see as critical, because part of the roll-out is not simply providing the childcare offer, it's telling people how they easily access it, and so on—so, advising. Supporting childcare providers will be a key role for local authorities, both in terms of identifying where there are gaps, where there is duplication, where we need Welsh language provision, et cetera, et cetera. So, there'll be a role for local authorities in that.

And also critical to this, because we've already found this through the early implement authorities, is the need to expand the childcare provision on a sustainable basis, and this means physical premises but also the workforce around it, and into areas of Wales where there is currently not sufficient provision. By the way, there are other areas in the south Wales Valleys as there are in rural Ceredigion where there isn't sufficient childcare. So, local authorities will need and, I would say, would welcome the power that is within this to actually confer a function on a local authority, or functions on local authorities, to help deliver this childcare offer. 

Can I just ask you a supplementary on what you've just said? I live in a very, very rural area. My nearest town is 35 miles away in Wrexham, from where I live, so if I was trying to access some kind of information on this, would I be able to access all of this information on the internet, or would I have to go to the main place in Wrexham, or would somebody be coming down to, say, a library for a surgery or something, where I could access that information? 

I'm going to bring in my expert in a moment, but it's absolutely the right question because we're already discovering that sometimes it's access to the information, and sometimes it's cultural issues. We're going to extend our—. We already have a strong communication offer in this, bearing in mind it's not in all parts of Wales yet, and that's some of the frustration—that people want it. But we're going to be doing a lot more advanced communication, including video stuff, so people can log on to the internet and go, 'What's all this about?', and it's explained by parents who've gone through it and how they get access to it. But advice currently at the moment, Owain, how do we do it? 

I was just going to add that, obviously, each of the local authorities in Wales currently have a family information service, and when it comes to the early years and childcare provision, and so on, that should be the first port of call, really, in terms of advice, and that's really important. We're linking very closely in terms of the role of explaining the offer where we have been piloting, but the other family information services across Wales will have a really important role as we look to roll out the offer to other local authorities, so—.

And how would people initially find out about that kind of stuff? Are you going to put some adverts on the tv like they do for the UK schemes? 

Yes. As the Minister says, as we look to more of a full roll-out, we're going to have to look at what a national communications campaign looks like, as well as the work that's happening locally on the ground in terms of local authorities, through local media, and so on. So, that's definitely part of our thinking as we move forward, because there will be parents who'll know about the family information service and there'll be lots of parents that don't. I think from the early evaluation of the pilot, one of the things it's telling us is that often parents are finding out about the offer either through word of mouth from other parents or, actually, through their provider. So, I think there is a big piece of work to be done in terms of how we communicate, probably through a range of various channels, in order to reach those eligible parents.     

Would that include in the schools as well, because a lot of parents—? I'm thinking back to the rural thing and what I went through and other people go through—closing the schools, and that—and the only person you see sometimes, during the day, is the lady who's taking her child to school and you say hello and that. You know, if you've got some posters in the schools about this. 

I think that's part of the engagement with local authorities. If we confer a function of actually promoting this on local authorities, as well as the national work we're doing, as well as the word-of-mouth effect, they can most effectively then consider, 'Well, what are the other trusted sources in a locality that you can use to get the word out on this?' Some of it will be national campaigns, and others will be, as we're finding already in the areas where we're piloting, word of mouth. When people hear about this, they want it. My biggest frustration at the moment is people in areas where it isn't available, who are writing to me, saying, 'Why haven't I got it?' I'm saying, 'Hold on, we're coming to you, we're coming to you.'    

Thank you for that. 

Minister, to take you to section 11 of the draft Bill, supplementary provision about regulations under this Act, which says that, 

'Any power to make regulations under this Act is exercisable by statutory instrument, and includes power to...confer a discretion on any person'.

What does that mean? 

It might be helpful to give a really practical example, Chair, because it does seem a slightly nebulous one, but there's a reason behind this. One of the things we're already discovering with the pilots is that there are some families who are much more complex than others, and they don't fit within a clear mould—they don't have access to paperwork, they don't have the normal trail of things that you might demand of somebody. So, there will need to be some discretionary ability, for example, for an informed operator of this scheme to say, 'Well, you haven't quite ticked all of these boxes, but you're clearly entitled and you need it and you're working and you fall within the eligibility but you just can't prove it.' So, what that is allowed to do, and it's based on the experience from our pilots already, is to give, for example, a person administering the scheme the flexibility in a particular case, where certain documents cannot be provided, for example, for reasons outside a parent's control, to make decisions. 

Would it not be helpful for that to be a bit clearer on the face of the Bill?

I think it's the standard form that one would expect in circumstances like that, Chair. 

Okay. So, these sorts of generalised discretions do exist in other areas. 

Yes.

Yes, they do. 

Such as, for example?

I know I've asked this before. We are aware that they do exist in other areas. We're not the first to bring this forward. 

No. Without the ability to confer a discretion, if someone doesn't fall within a black and white parameter, then—.

Okay. I'll leave it there. 

We can't anticipate, Chair—[Inaudible.]—examples, but that is a sort of example. 

Okay. And then the commencement provisions in section 12: there's no scrutiny procedure for that. And I'm bearing in mind that where the commencement Orders include transitory, transitional and saving provisions et cetera, they're normally subject to a negative procedure. There's no process for scrutiny here. Do you not think that might be a weakness in this legislation?

We don't think so, Chair, and we're aware that this particular area has been discussed on a number of occasions previously with other Ministers in other policy areas. And I know that the committee, I'm sure, will be familiar with the Welsh Government position on this generally. Our belief is that commencement Orders give effect to the provisions that are already considered and debated and agreed by the Assembly. And in this situation, for example, this is a very clear commitment, and the roll-out dates are very clear, and restated and restated endlessly. So, Welsh Government position is that a commencement Order shouldn't be subject to any procedure unless there's a specific case where there's a good reason for this, and we don't see it here within this particular example. But an example could be, for example, where a commencement Order in question includes consequential or supplementary or incidental provision, which makes those circumstances, that procedure, appropriate. But these are very rare, and it doesn't seem to strike here within this particular provision. 

My understanding is that a technical discussion of this was set out in a letter, dated 16 October 2014, from the then Minister for Communities and Tackling Poverty, and it was in relation to the Financial Education and Inclusion (Wales) Bill, and I think the Government's position was set out very clearly at that point, and it remains the Government's position. 

Thank you for that. Were there any other questions that Members wanted to raise? Well, thank you. It is a short piece of legislation and it has a very specific purpose and quite a technical objective. There are a number of areas that we will consider; it is nevertheless important. Thank you for your evidence; there will be a transcript in due course. Thank you for attending. 

Thank you very much. Diolch yn fawr iawn. 

We now move into private session. Is that agreed? 

Agreed.