Cynulliad Cenedlaethol Cymru

Good morning. Bore da, pawb. Welcome to this meeting of the Legislation, Justice and Constitution Committee. Just as a reminder, the meeting is being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual. We have no apologies. We've got a full complement here in the committee room, and we've got the Minister with us, and we'll come to you in a moment, Minister. We're meeting outside of our usual afternoon slot today to accommodate this evidence session with the Minister for Climate Change.

Just by way of housekeeping, we're not expecting a fire alarm, so if there is an alarm, just follow the ushers and staff to the safe spot. Just to remind everybody to make sure your mobile devices are switched to silent, please. We're operating as normal through the mediums of Welsh and English today, and we have interpretation available. There shouldn't be any need to operate your mute and unmute buttons; it will be done for you as we go. 

So, with that, we're going to go straight to the first substantive item on today's agenda, which is, as mentioned, the legislative consent memorandum on the Renters (Reform) Bill, our evidence session. And we have with us, Julie James, Member of the Senedd, Minister for Climate Change. We also have—

Bore da. 

—Caroline Matthews—good morning, Minister—Caroline Matthews, senior lawyer for Welsh Government. We have Gareth Baglow—I can see you on the screen—senior private sector housing policy manager for Welsh Government. I don't think we have Helen Kellaway at the moment, but we may have, Minister, one other of your officials joining us. So, thank you for being with us here today, Minister. Can I go straight into questions here? And could I ask—not an unexpected question, I know, you'll realise—why have you used a Bill introduced to the UK Parliament by the UK Government to amend two Senedd Acts?

Thank you very much, Huw. It's a pleasure to be with you here this morning. So, the committee will, of course, be very familiar with our principles for using UK Bills and we think the circumstances here are entirely consistent with those. The existing UK Bill provision offers the opportunity to make a sensible and advantageous provision for Wales in circumstances where we would not be able to make such provision in anything like the timescale that this Bill affords us the opportunity to do. We've obviously considered whether we could bring the changes through a Senedd Bill, and that also includes working with the constraints we have, the number of officials we have, the lawyers we have and so on. The committee will be very well aware that we're working on a major homelessness Bill, a big reform Bill. I was very reluctant to take people off that. That is a Bill that's scheduled to come before the Senedd towards the end of this Senedd term, and time is of the essence with that Bill. This Bill appears to afford an opportunity to make a provision that is advantageous to Wales. It doesn't seem to disadvantage us in any way for doing this, and so we've taken the opportunity to do so.

Thank you. Can I ask, just how do you reconcile that with the growing body of Welsh legislation within housing law that has grown up since 2014—primary legislation, secondary legislation? Using a UK Government Bill, as you say, you've just explained it's advantageous in policy terms to Wales, but, of course, it steps outside of that body of law that's been made in Wales. How do you reconcile that, particularly when your colleague Mick Antoniw is very set on the consolidation of law within Wales, as well, and making sure that there is a Welsh statute book?

I think housing is actually one of the areas of law that the next Senedd will probably want to look at for consolidation, because there is a growing body of law—you're quite right, Chair—here in Wales, but it still relies on other provisions inside the UK as well, so you'd still have to do a fairly good detective trail if you were going to have a look at it. This Bill will effectively amend the Renting Homes (Wales) Act 2016, for example. We'll have a homelessness Bill coming forward later on in the Senedd term that fundamentally changes the basis on which we address the law in Wales, and then I suspect, after that, for Members who will be in the next Senedd, those of us lucky enough to be in the next Senedd, I think a consolidation Bill is probably something that will be in contemplation for this area of law. Because you're quite right: we have made a body of law in Wales that is a growing body of law.

I thought, given the anti-discrimination provisions of this Bill, they're completely in line with our policy objectives. You'll know that we have—. I mean, our position would always have been that this was not allowed under the Equality Act 2010, but it makes it very plain and beyond argument, I guess. We would not have been able to do that in the timescale involved and I really did not want anyone in Wales to feel that they were disadvantaged by that, so I think, given the circumstances, we thought this was the best approach.

Thank you for that. You've argued cogently the policy reasons behind this and you've mentioned expediency and you've mentioned as well that, within the given resources that you have, you have to make choices as to how to bring this forward. So, we note that. Now, just an issue on timing, you state in the legislative consent memorandum that the Bill is expected to receive Royal Assent in the spring, but the Bill has yet to complete its passage in the Commons and, therefore, has not even started its passage through the House of Lords. So, is this timing still your expectation—Royal Assent in the spring?

Well, I mean, obviously, that's not a matter for me, unfortunately. I don't have any control of that, and Members of the Senedd will also be aware of various political things going on that mean that it may or may not make it through. But, even if it were delayed, for example, to the summer, providing that there's not a UK general election, of course, we still couldn't possibly get this provision in place in that kind of timescale. I mean, just to be clear for the Senedd, if we were to try to do this, even if we could get the Senedd to agree that this was suitable for a fast-tracked or expedited Bill of some sort—which I'm sure you'll come on to, and we think we would struggle to persuade the Senedd of that—we're talking a long time off.

Thank you for that. Right, we're playing tag on this now to try and explore your reasons for bringing forward the legislation in the way that you have. Alun, over to you, come in over the ropes.

Why do you think that the Senedd would be hesitant to accept this as an expedited piece of legislation?

I'm sure my officials can elaborate on this, but we don't think—. According to the Welsh Government legislation handbook outline of what factors are considered for an expedited or fast-tracked Bill, we don't think this would meet the criteria. But, I mean, I'm quite happy to explore that. I'm sure that one of my officials could go into more detail on that, Alun, if you want them to.

But it's not a matter for the Welsh Government to take that decision, it's a matter for the Senedd, isn't it? And if the Welsh Government were to bring this forward, I'm sure that your own party, 30 Members, would vote to support you. It's a piece of legislation that's being pursued by the UK Government, so there's no technical reason why the Conservatives would oppose you, or Plaid Cymru. So, it just appears to me that the politics are actually quite benign around taking this forward as an expedited part of legislation.

Well, that may well be the case, but we do have to have regard to our own legislative handbook in bringing it forward. And as I already said in answer to the Chair, that's not the only consideration; the other consideration is that we need to have the policy, legal and legislative counsel officials available in order to do this, and, frankly, we'd have to take those off doing the homelessness Bill and I'm very reluctant to do that, because I think the homelessness Bill is very important and the likelihood of us—. Well, any slippage in the homelessness Bill will mean that it's lost, frankly, because it's right up against the edge of the Senedd, so I'm very, very reluctant to move resources from it.

Do you have an issue with resources in your department?

Well, not as the legislative programme pertains, but obviously we're at the mercy of what the UK Government brings forward, so it's opportunistic, if you like.

I've got no issue with opportunism in these matters, Minister. You've described that before in other pieces of legislation, and I think the Welsh Government should be commended on being opportunistic in these matters. I've got no issue with that. My issue is the avoidance of scrutiny and the fact that we are amending legislation passed by this place in another place, without reference to the Senedd. That, to me, feels like a very uncomfortable place to be.

That's why I'm here this morning, Alun. So, I absolutely agree, I think we need to make sure that we have opportunities for as much scrutiny as is humanly possibly in the circumstances. But I do feel very strongly that the people of Wales should have this put beyond all doubt. I do think there's an argument that this pertains in Wales already, or indeed throughout the United Kingdom, because of the Equality Act, but these changes would put that beyond all doubt, and I think the people of Wales deserve that. It's why I'm here this morning, it's why we will afford as many opportunities as possible to have a look at this legislation. But I think, in the end, what it's attempting to do is so in line with our policy and everything we've discussed, it would be a shame to not take it forward.

This isn't a policy committee, as you know, and if it were, I would be in support of the Government's ambitions; I've got no issue with the policy and with the legislation itself. My concern is the means, the mechanisms and the processes being adopted by the Government to get this to the statute book. It appears to me that, at a time when we are looking towards empowering Welsh democracy, this sits uneasily with those ambitions.

I'm not really arguing with you about that, Alun—

I get that, Minister. I get that.

—I'm acutely aware of the difficulties of scrutiny of UK legislation. We're very keen to make sure that we can give as much scrutiny as we're able to, given the circumstances, and I absolutely am not really arguing with you about that, but I think, given the policy aims of this, where we are in the legislative cycle and so on, we thought it was an opportunity we ought to take.

Fair enough.

Thank you, Minister. Thanks, Alun. Alun goes back over the ropes. Sam, come in.

Diolch, Gadeirydd. Good morning, Minister.

Morning.

Morning. How does using UK Government-proposed legislation to introduce these changes contribute to the overall accessibility of law here in Wales?

Well, it doesn't, does it? But it's an opportunity to put a discrete policy platform, which we have long wanted to do, in place rapidly. I didn't want to disadvantage the people of Wales in that. As I already said in answer to the Chair at the beginning of this session, housing law is getting more and more complex in Wales as it goes. When we introduce the homelessness legislation, you'll see that there is an enormous number of consequential amendments to various laws as a result of that legislation, and I fully expect the next Senedd to want to do a consolidation Act on housing, in the same way as this Senedd is looking at a consolidation Act on planning, for similar reasons.

Okay. Thank you. And then, in terms of the Bill itself, it was introduced in the House of Commons on 17 May 2023, an England-only Bill until amendments were introduced at the Commons Committee Stage on 14 November. So, you state in the LCM that you were approached by the UK Government, which asked whether you would like provisions to be included for Wales around discrimination of tenants claiming benefits and/or with children. Can you tell us how this type of inter-governmental approach works in practice, how your officials engage and what's the mechanism involved in this?

Yes. I'm sure the officials can elaborate a bit more on that, but, obviously, our officials work closely with UK Government officials on all matters relating to housing, leasehold and so on. This is one of the ragged edges of democracy—I can't speak this morning—ragged edges of devolution, and so we work very carefully with the UK Government to make sure that we understand what's going on there. Here it was possible, we felt, to put a discrete, cherished policy aim in place rapidly, in circumstances where we wouldn't be able to do that in Wales.

Actually, the Renters (Reform) Bill has then gone through a whole series of amendments. For those of you who follow the politics of this, you will know that, I think, there are 186 amendments in total so far. We had to go through 172 of those to decide whether a legislative consent motion was required for those amendments, as well as the ones relating to blanket bans, which are the ones that we're looking at here. So, it's a complicated process.

You have to bear in mind as well that we don't necessarily staff up to look at UK Bills if we don't know they're coming forward or the timescale for them, so we have to move resources around rapidly in order to be able to accommodate an enormous Bill of that sort, to give officials the chance to properly scrutinise it. I'm very aware that the committees also need to have a chance to scrutinise it where at all possible. So, we do our best to hit the kind of perfect spot between us knowing what we're talking about and giving the committees the chance to question us about it.

Fab. And just looking back at those two dates—17 May 2023 and 14 November—what date where you formally invited to make provision for Wales in this Bill?

I think it was in November, but we weren't sure that we needed to do a legislative consent order for just this or other things until, I believe it was, sometime in January, but one of the officials can probably confirm that better than I.

Any of your colleagues want to come in? Good morning as well to Helen Kellaway. Gareth.

Yes. Just to back-up what the Minister said. So, the original approach was in May—we were working with officials—but the official approach to agree that the legislative consent process should begin was in November, and, obviously, the legislative consent memorandum was then published in January.

Okay, thank you. And just quickly, then, finally: the amendments making provision in the devolved areas in UK Parliament, Minister, did you sign off on those amendments?

Well, as part of the process, what happens is that the officials do an analysis of the amendments, they look to see how that impacts Welsh law, and then I'm asked whether I'm happy that we can recommend an LCM through the process. So, suppose that is a sign-off of sorts, but there is an iterative process before that happens, and I'm sure the committee will come on to this. But, for example, the blanket ban provisions will be enforced via the criminal law in Wales, because that matches our renting homes Act, but they'll be via the civil law in England. So, it's that kind of nuance that then gets looked at as we go through the process.

Okay, thank you.

That's brilliant. Thanks, Sam. Just one point of clarification there: Sam's point on signing off on the provisions relating to devolved areas; one of the things of interest for this committee is whether you signed them off before those were tabled, because it indicates then a sort of full involvement of the devolved Governments.

Yes. So, just to be really clear, what happens is the UK Government asks us whether we want the provisions to—. So, provisions are tabled for England, we're approached to see whether we would like to work with them to make sure that there is a provision for Wales; Scotland will be in a similar position. This happens all the time on a huge number of Bills, and, for most of them, we'll say 'no', but for some of them we'll say 'yes'. And so an official will do an advice for me, saying, 'What do you think Minister? Do think we should or shouldn't do this?' And I will have said, 'Yes, I think it's worth exploring.' And then the amendments will explore the possibility. Sometimes that comes to something, sometimes it doesn't. And in this case, it has come to something, and therefore we've gone through the process.

That's great. Thank you. Adam.

Thank you, Adam, for the question. That's because our new Renting Homes (Wales) Act 2016, which is now in force, already has provisions in it to make sure that landlords are able to make tenants aware of any changes, so that's a normal and routine part of the operation of landlord-tenant provision in Wales, whereas it wouldn't have been in England. So, there's no additional or very minimal additional work involved in that, so we don't think there's—. It's negligible, if any.

There's no Wales-specific regulatory impact assessment.

Yes, we think it's sufficient for the purpose. And, as I say, because of the way that the renting homes Act works already in Wales, we think the impact of that is minimal—it's the policy aims achieved with minimal other impact. That's why we've decided to work with the UK Government on this aspect, in fact.

No, we haven't specifically consulted on this context, although we have consulted widely on anti-discrimination measures for quite a considerable period of time, both before the renting homes Act, during the implementation period and post-implementation period. So, for example, we have the anti-racist Wales provisions, which we've consulted on, just as one example. 

Some of the stakeholder work across England and Wales would have fed into the original consultation process for this, and there would have been nothing stopping any Welsh individual or organisation responding to that. But I think we're basically putting this on the basis that we have a much better relationship with all of the sector stakeholders here in Wales, and we have representatives of landlords, agents, tenants and local authorities, for example, in our stakeholder groups, and we know that all of them are supportive of these amendments. So, although we've had no official consultation process, it's been discussed in our stakeholder groups and we've had no-one at all who has got any issue with it. 

Only because very large numbers of bodies operate in both, Adam. So, they wouldn't have specifically looked at Welsh-only individuals, just to be really clear, but quite a lot of them operate across England and Wales. So, as entities operating across England and Wales, they would have been included in an England-only consultation. 

I just want to be clear with the committee: I'm not pretending that we've done a consultation that's adequate in Wales; we have not consulted, and that's because of the speed with which the amendments were introduced and the way that the process was done. But we have discussed it in our stakeholder groups. That isn't a consultation, I don't want to give that impression, but we have had informal discussions in the stakeholder groups, and we've encountered no-one who thinks that this isn't a good idea. But I'm not pretending to the committee in any way that that's a full consultation.

Yes, so we haven't done a specific assessment of the retrospectivity—if that's a word—of these provisions, but there's an obvious and pressing need for them to be retrospective, because otherwise they wouldn't apply to existing occupation contracts or any term in a superior lease or any mortgage term until those were renewed. So, it might not happen for many, many years into the future, and clearly that would make it almost—. Well, it would make it very ineffective. So, we think there's an obvious and pressing need for the provisions to apply right now. So, it's retrospectivity in a slightly odd sense; it simply means it's incorporated into all of the existing landlord and tenant arrangements immediately, rather than waiting for the renewal of the lease or the change of the mortgage and so on, and for many people—. It would completely undermine the policy objective if the vast majority of people were excluded. So, we haven't done a specific impact assessment of that. I'm very reluctant to say it's glaringly obvious, but it does seem to me to be glaringly obvious that if you don't do that it isn't effective.

Yes, so we'll be—.

Forgive me, sorry—I didn't mean to interrupt you there. Yes, landlords and agents will be made aware through Rent Smart Wales in our usual update process, and the relevant guidance for all parties will be updated to reflect the changes, assuming the LCM passes through the Senedd, and then we will consider an approach for tenants. We don't have as direct a route for tenants as we do for landlords, although we do have a number of stakeholder groups that have large tenant organisations on them, so we will obviously go out through those tenant organisations. We're very happy to do that. And we'll make sure that landlords are asked to pass on the provisions to tenants in the way that we normally do through Rent Smart Wales, and then we're preparing the specific guidance, which will include a notice of variation that landlords will need to give their contract holders. So, the contract holders will become aware because they'll get a notice of variation in that way, Adam, so I think we've got a pretty good way of reaching virtually everyone. We'll have our own commencement powers, and we need to make this as manageable as possible for landlords and agents, so we'll allow a period between the Act coming into force and commencement of the provisions in order to get the guidance in place, and we'll have a look at synchronising the commitment with England. We don't have to do that, but we'll make sure that we take advantage of anything that will give us extra publicity. That's a decision that could be made nearer the time, though.

Yes, because what we're doing is basically lining up with the renting homes Act, and we haven't had that challenge for that. Here in Wales we take a slightly different view, so the potential penalties that authorities in England can levy will be larger, but here we're not looking at penalty provision particularly. We hope that our approach to breaches means it acts as a deterrent and prevents it, so it's not about fining people; it's about making sure they don't do it in the first place. Here in Wales, effectively, because of the way the renting homes Act works, landlords and agents risk losing their licence to operate in Wales if they do not comply, because Rent Smart Wales can take breaches into account when assessing whether someone is a fit and proper person to hold a licence here in Wales. So, we think that's a more effective route to doing it.

Diolch, Adam. Alun.

Thank you. In terms of the process you've followed here, Minister, you indicated in a previous answer that the first contact, if you like, at official level, I think you said, on this matter with the UK Government was in May of last year, and you took a decision formally to go ahead with this piece of legislation in November. In terms of that contact, would it be possible for your officials to characterise that? It was correspondence, one assumes.

I'm very happy for them to. Gareth, do you want to come in on there?

Yes, no problem. Yes. It wasn't correspondence. We have regular meetings with them, and certainly around that time, when we were discussing what was going on in each area, so it was more of a verbal talking about the provisions, and it was during that meeting that the first very informal approach was made from UK Government officials to Welsh Government officials.

Alun, if I could just add to that, please, if you don't mind, one of the reasons that we were interested in this Bill was not because of these blanket bans that we're discussing now, actually. It was because of the no-fault eviction point that was being made. So, if you remember, the Bill was originally going to ban no-fault evictions, and we were very interested to see whether the UK Government was going to do something that made that possible. It isn't actually possible to do that under current law; it interferes with A1P1 human rights. And so, actually, what they've done in the Bill is they've said they'd ban no-fault evictions, but in fact what they've done is put a whole series of no-fault eviction specific grounds into the Bill—so, a tenant can be removed from the property if the landlord wants the property back, for example, at no fault of the tenant, or if a member of their family wants it back at no fault of the tenant, and so on. So, we were very interested to see whether something would happen that would allow us to do something different in Wales than has hitherto been possible, and, in fact, actually, it's turned out not to be the case. So, that's why we were originally involved, and then this has come on later on.

That's absolutely fine. It's a welcome surprise to hear of a relationship between the Welsh and UK Governments that seems to be working reasonably well; usually, we have exactly the opposite. It's the process I want to stick to, rather than policy. You had this conversation between officials back in May of last year, I presume; then, a more formal approach was made by the UK Government or by the Welsh Government. 

Eventually, the UK Government asked us whether we'd be interested in being part of the amendments on blanket bans and so on. But that undoubtedly came out of an iterative conversation between the various officials.

That's absolutely fine. I'm just trying to understand the process. Was that in June, July or September?

The beginning of November.

So, there wasn't any conversation about these matters that you've just been describing between May and November. 

Not from my point of view; there may have been from an official point of view.

Was there, from officials?

Yes. We were in contact from May through to November, when, obviously, we were involved in ensuring that the amendments worked for Wales before they were introduced in November.

When were policy instructions given to lawyers to write the amendments?

We didn't specifically give policy instructions to lawyers; our counterparts in the UK Government did.

But that instruction would've been given on behalf of the Welsh Government.

Yes, but that would've been during the lead-up to the amendments being published.

Sure. So, when was that taking place?

Between May and November. I can get the exact dates to you.

I think it would be useful, because it's important for the committee to understand the processes that have been followed here. I'm trying to avoid a conversation about policy. So, we had this conversation, a verbal conversation, in May. There must've been, then, an informal, at least, indication of interest from the Welsh Government, which was given in May, I presume, and then, over that period, there would've been an iterative process, as policy instructions would've been given to lawyers. My experience tells me that lawyers take some time to write legislation, so it wouldn't have been done in the first week of November; it would've been done, I would've expected, in September or October.

What I would say is that rather than us do this from memory, because our memories may well be faulty in this regard, we'll go back and have a look through officials' notes and make sure that we get the timeline to you. It's perfectly possible I was asked informally during that process, for example—I don't now remember it. So, we will do a chronology, to the best of our availability, and come back to the committee with that.

I think that'd be very useful, Minister—I'm grateful to you for that. So, if the Minister would write to the committee with that chronology, I think that'd be very useful. Thank you very much.

Thanks, Alun. Sam.

Diolch, Cadeirydd. Minister, sticking with enforcement, if I may, in Wales, the new offences will be enforced through criminal law, to be consistent with the existing legislative framework. However, in England, any breaches are enforced by civil penalty. As the provisions change occupational contracts retrospectively, can you give assurances that these changes do not allow retrospective enforcement, and that landlords will only be prosecuted for new offences committed after this Bill receives Royal Assent?

Yes. To be really clear, we obviously won't be retrospectively trying to prosecute anyone for something that wasn't in place by then. The retrospectivity is simply to apply these provisions, from the point in time that they become law, to existing contracts. I'm doing this completely out of the air, for illustrative purposes only, but assuming that this becomes law on 1 May, then you'll be able to be prosecuted for not having complied with it from 1 May. You won't be able to be prosecuted for not having not complied with it on 29 April, just to be clear. The retrospectivity is that it will, however, apply to existing contracts.  

That's a helpful clarification. Thank you. Moving on to the public Bill committee in the House of Commons, it appears that there was very limited evidence taken from Welsh stakeholders or that any Welsh MPs were involved. Can I ask for your observations on that?

Obviously, I'm not in control of that process. As we've already discussed, I completely concur with the committee's view that better scrutiny would be better. If I'd been invited to appear in front of the committee there, I would have happily done so, for example, and we've done as much as we can on the inter-governmental side of that. It's a matter of some regret that we weren't able to get that specific Welsh scrutiny in place. But as I've said in earlier answers to the committee, because this lines up very much with our Renting Homes (Wales) Act 2016 and because this has been the direction of travel in Wales for some time, and because, actually, we think we could have enforced this albeit in a slightly more roundabout way through the Equality Act 2010, it doesn't bring that much of a change to Wales, really. 

Picking up on the inter-governmental point that you mentioned there, on an official level, did your officials provide content for speaking notes for the relevant UK Ministers on amendments making provision within devolved Welsh areas? 

I've absolutely no idea. Gareth, are you able to answer that?  

Obviously, we assisted them in preparing various documents, but we did not specifically provide speaking notes to UK Government Ministers, no. 

So, information was provided to UK officials on how this would impact in a devolved area, and then it was left with UK officials to draft a speaking note for the UK Government Minister. 

That's correct, yes. 

Thank you. Thank you, Chair. 

Thank you, Sam. We're almost at a conclusion here, but if I can just ask a couple of detailed technical and process questions here. One is in respect of the written statements for occupation contracts. If our understanding is correct, these are going to have to be changed as they'll be incomplete; they will not contain all the fundamental terms. So, how will landlords have the time to amend these if all occupation contracts are being changed retrospectively, and are you planning to give any leeway to landlords on this? 

That's what I said to you about the difference between the Act coming into force and the commencement provisions. Landlords have to write a variation notice for their contract holders, and so we will consider the time period between the Act passing and the period of commencement, if you like, in order to give landlords sufficient time to be able to—. Well, we need to get our guidance in place, and then they'll need to send out variation notices. One of the considerations for the commencement, if you like, is the period of time between those two things. 

Sam. 

Thank you. Just to come back on the LCM and timings, if I may, Minister, there's a 10-week delay between 14 November and the LCM being laid. Can I ask why? 

As I think I already said, there were 176 amendments to be gone through, not just these. And so we wanted to be very sure that we didn't need an LCM for any of the other amendments, and obviously it takes a little bit of time to go through those amendments. So, the officials had to work through all of the amendments to make sure that there wasn't anything else that needed to be brought forward. 

So it was just the sheer size of the amendments. Okay. Thank you. 

And I will say it's the rapidity with which the amendments have been put in. We've had very little notice of these amendments, really. So, they've had to be worked through in extremely rapid time in order to be able to get where we are. 

Thank you very much. That's quite interesting for us, because I guess the alternative approach would have been, Minister, to lay an early LCM and then subsequent ones, and I know we've had these discussions before: what do you do with the timing if you know there's a lot of analysis to be done? Do you lay an early one knowing that it's not going to be the complete picture, but just to give a heads up, or do you wait and wait and do your detailed analysis? Did you give thought to laying an early LCM so it would give that heads up? 

It's a consideration we always have to take into account, and it's a resource issue as well; the laying of an LCM isn't resource free. You're diverting somebody from the analysis in order to write the LCM provisions. So, there's always a weigh-up, isn't there, between those two things. I don't want to put them on the spot here, but officials will take an overview of the likelihood of them needing to do an LCM, and then try and weigh up the resource necessary for the analysis as against writing a series of sequential LCMs. I won’t go through the argument we always have, but trying to hit the sweet spot of timing and not sequential LCMs is really difficult. 

Just a couple of final questions from me. We talked previously about the issue of the retrospective nature of some of these provisions. Do you have any evidence or data to back up your justification for these? For example, how many tenants are currently party to occupation contracts containing clauses discriminating against them on grounds of claiming benefits or having children staying at the properties? Is there anything that you can throw at us that would justify your retrospectivity?

No, I don't think we have that. As I’ve repeatedly said, I think we could probably argue that you can’t do it already in Wales. It’s just this states it beyond doubt, and out of the arguable zone, if you like. So, I’d be relatively disappointed if I did have such clauses in standard occupation contracts. This just takes it beyond all doubt.

And just finally, for all the discussion that we've had today—and we're not a policy committee—around process, scrutiny in terms of competences, and the legal processes within this as well, how would you respond to those who would say, 'Well, this is being done at a distance from the Senedd. This is not ideal. It's not good for transparency and real accountability to this Senedd'? It's good that you're in front of us today on this committee, but our remit as this committee is constrained, and of course we're up against time as well. So, how do you respond to that as a Minister—I know this isn't the first time we've raised this—in terms of this Bill?

For me, I think it’s a matter of regret that we cannot get enough scrutiny into Bills passed at the UK level that affect Wales. It’s genuinely a matter of regret. We try very hard to do that, so if at all possible—and not for the officials on this call—we try to brief Members of Parliament, for example, so that they can raise issues and all the rest of it. But it’s not something we’d choose to do; I’d rather do it here at the Senedd. But it’s a balance, isn’t it? If this anti-discriminatory stuff goes through for England, then my assessment is it’s probably four to five years off in Wales. That’s a very substantial period of time for people to be at a disadvantage because we weren’t able to get enough scrutiny through on a policy that I think is highly consensual and unlikely to be controversial across party lines. So, it’s a balancing act, as always. 

Alun, you looked quizzical then.

I just don't understand something. My analysis is the same as yours: that it's largely consensual and there's no strong political division in the Chamber over this piece of legislation. But would it take four to five years to take it through the Senedd? We've already seen that it's entirely possible to pass legislation in a timely fashion if there is a will to do so.

For sure, Alun, but I or whoever the Minister is at the time has to bid for the time in the Government programme, you have to bid for the resources in the Government programme, you have to compete with everybody else who's also trying to get their cherished policy processes through. There are always cherished policy things that we'd love to do. I could give you a list of 15 cherished policy positions I'd dearly love to get through the Senedd. You're part of that machine. My personal analysis, based on my own personal experience, is that you're probably that far off. A more forceful Minister with this further up their policy agenda might be able to do it quicker, but there's no way we'd do it at the speed we'd do it if we do it in this UK Bill. 

But that's a terrible reflection on how we legislate—not just as a Welsh Government, but the Senedd as well. 

Well, I emphasise it's a personal view. 

Minister, thank you very much. Colleagues, have you got any other questions? In which case, Minister, it just falls to me to thank you and your officials for joining us this morning. I wish you well with the rest of the day ahead. We'll send you, of course, a transcript, so you can check for accuracy.

We will take a short break there, colleagues, just so we can rearrange the virtual furniture here, and the actual furniture here within our setting. Diolch yn fawr iawn, Gweinidog. 

We're coming back into public session here, to continue our session today of the Legislation, Justice and Constitution Committee. We've just finished an evidence session with the Minister for Climate Change, and we're now going on to item 3, which is instruments that raise issues to be reported to the Senedd under our Standing Orders 21.2 or 21.3.

Now, we have several here today. The first of these is item 3.1. It's a made negative resolution instrument, SL(6)459, the Greenhouse Gas Emissions Trading Scheme (Amendment) Order 2024, and we have a draft report in our packs. The UK emissions trading scheme was established by the Greenhouse Gas Emissions Trading Scheme Order 2020 as a UK-wide greenhouse gas emissions trading scheme, to encourage cost-effective emissions reductions from the power industry and aviation sectors. It was designed jointly by the four Governments in the United Kingdom, and our predecessor committee scrutinised that Order in 2020. This Order extends the dates of the next free allocation application window from the period from 1 April 2024 to 30 June 2024 to the period from 1 April 2025 to 30 June 2025. And the Order also moves other associated deadlines to accommodate the new time frame. Our lawyers have identified one technical reporting point. Kate, what have you found?

The technical reporting point is to note that this is a composite Order, and it has been made and laid in English only.

Thank you very much. And we don't need a Welsh Government response for this one, so, are we happy to note that? We are. We're happy to agree that.

We turn, then, to an affirmative resolution instrument, under item 3.2. This is SL(6)462, the Regulated Services (Service Providers and Responsible Individuals) (Wales) (Amendment) Regulations 2024. We have a draft report and a written statement within our packs. These regulations amend the 2017 regulations to provide that a local authority intermediate care service is not treated as a care home service for the purposes of the Regulation and Inspection of Social Care (Wales) Act 2016. The regulations also clarify that when a provider of an accommodation-based service reconfigures premises, resulting in an increased capacity to accommodate five or more people, the additional bedrooms and the communal areas of the service must meet specified requirements.

Our lawyers have identified one technical and three merits reporting points here. We haven't had a Welsh Government response yet. Just to note as well, on Friday, the Deputy Minister issued a written statement, which is relevant to these regulations, and it's available in the supplementary pack that we have today for our meeting. Kate.

The technical point relates to potentially defective drafting, where the regulations insert a new subparagraph (l) after existing subparagraph (j), rather than following the usual alphabetical order. The first merits point is noting unnecessary text at the beginning of the regulations. The second merits point asks Welsh Government to clarify whether the consultation statement referred to in the preamble has, in fact, been laid before the Senedd. And then, the final merits point is noting an inconsistency between the definitions that are used in the regulations and those used in the explanatory memorandum, and we're waiting for that Welsh Government response. 

Thank you, Kate. Are we happy to agree those reporting points? We are. Thank you very much.

We go on to item 3.3 then, SL(6)463, the Plant Health etc. (Miscellaneous Fees) (Amendment) (Wales) Regulations 2024. We have a draft report in our pack. These regulations amend legislation in the field of plant health and tree health fees, using powers conferred by the European Union (Withdrawal) Act 2018.

It aligns fees for plants and plant products with the frequency of checks changes occurring Great Britain-wide following implementation of the border target operating model, and it amends the fees associated with documentary checks as a result of the amendment of identity and physical checks. The regulations also correct an error in the Plant Health etc. (Fees) (Wales) Regulations 2018 made in Schedule 1 to the Plant Health etc. (Fees) (Amendment) (Wales) (EU Exit) (No. 2) Regulations 2022, where multiple fees were being charged for mixed consignments.

Our lawyers have identified three technical reporting points. Kate.

The first two technical points are both identifying inconsistencies between the Welsh and English language texts, and, in both cases, there are words missing from one language that do appear in the other language. And the final technical point relates to potentially defective drafting in the new Schedule 2B, and we're waiting for Welsh Government's response.

Thank you for that. Any comments or observations, or are we happy to agree those points? We are. Thank you.

We turn to item 4, then, which are instruments that raise issues to be reported to the Senedd under Standing Order 21.7. The first of these—we have two items in this section—is item 4.1, SL(6)460, the Building Safety Act 2022 (Commencement No. 4, Transitional and Saving Provisions) (Wales) Regulations 2024. We have a draft report in our pack. These regulations bring into force various provisions of the Building Safety Act 2022 relating to the regulatory regime for the building control profession on 6 April 2024. The regulations also make transitional and saving provision. Our lawyers have identified one reporting point under Standing Order 21.7. Kate. 

The reporting point is asking Welsh Government to confirm whether one of the enabling powers has been missed from the preamble to the regulations, and we're waiting for their response. 

Thank you very much. Happy to agree that? We are. Thank you very much.

This takes us to the second item in this section: item 4.2, SL(6)461, the Tertiary Education and Research (Wales) Act 2022 (Commencement No. 2 and Transitory Provision) (Amendment) Order 2024. And again, we have a draft report. This Order amends the 2023 Order, which commences certain provisions of the Tertiary Education and Research (Wales) Act 2022. This Order amends the 2023 Order to omit articles that would have brought into force on 1 April 2024 provisions of the 2022 Act relating to the associate staff member of the Commission for Tertiary Education and Research, and amendments to various Welsh language legislation consequential on the dissolution of the Higher Education Funding Council for Wales. These provisions are not needed on 1 April 2024 because the commission will not be substantially staffed on that date, and because the Higher Education Funding Council for Wales will not have been dissolved on that date. Our lawyers have identified one reporting point under Standing Order 21.7. Kate.

The reporting point is seeking further information from Welsh Government about the reasons why this Order is delaying commencement of certain provisions of the Act, as this does not appear to be fully explained to Members in recent written statements on the Commission for Tertiary Education and Research, and we're waiting for Welsh Government's response. 

Thank you very much. Happy to agree that? We are. Thank you very much.

We'll go on, then, to item 5, which is instruments that raise issues to be reported to the Senedd under Standing Orders 21.2 or 21.3 that have been previously considered by our committee. In fact, all the items here were previously considered at our meeting on 4 March. So, I will go through these in fairly sharp order here.

Item 5.1, SL(6)454, the National Health Service Joint Commissioning Committee (Wales) Regulations 2024, and we have a report and a Welsh Government response, which—unless you have any comments, Kate?

No comments on this one.

No. Then, it's for us to note. I'll rattle through these, but jump in, colleagues, if you want to.

Item 5.2, we note SL(6)455, the Education (Student Finance) (Fee Limit and Loan Amounts) (Miscellaneous Amendments) (Wales) Regulations 2024 and the report and Welsh Government response in our packs.

Item 5.3, SL(6)457, the Special School Residential Services (Service Providers and Responsible Individuals) (Wales) Regulations 2024, and again, the report and the Welsh Government response are in our packs, which I invite you to note.

Could I come in on that one, sorry?

Oh yes, indeed. Yes, sorry, Kate. Go ahead.

There are just a couple of points to draw to your attention in relation to the response. There were nine technical points on these regulations and in response to the first reporting point, which noted missing definitions, Welsh Government has confirmed that it will insert these definitions before the regulations are signed by the Minister. So, Members may just wish to note that this is potentially quite a substantive correction to be made in this way. We understand that this process is normally only used for minor and obvious corrections. However, the Welsh Government response is clearly bringing the correction to Members' attention and it will result in the law being correct on making, so that's to be welcomed.

In response to the second reporting point, which noted that the phrase 'contract for services' is not defined in the regulations, Welsh Government says that it considers the fundamental difference between a contract of employment and a contract for services to be widely understood within the field of employment law, and so they don't intend to make any amendments. Members may just wish to note on that point that there is a large amount of case law about the difference between these types of contract, which could suggest that it's not necessarily that widely understood.

And then, the final point, if I could draw your attention to it, is the response to reporting point 5, which asked Welsh Government what would happen if there was a difference between the wishes of the child and the wishes of a person with parental responsibility. In response, Welsh Government says it will not make any amendments on the basis of this reporting point because there is well-established common law for dealing with this scenario, where a child's views take precedence over a parent's. And so, here, Members may just wish to note that relying on the common law could raise accessibility issues, because the common law is obviously subject to change by the courts and it may mean that a reader of the regulations has to seek legal advice in order to understand the meaning of the law. And so, those are just three points that you might want to note.

Kate, yes. Thank you very much. Very important. Thank you for stopping us there at that point. That was very important. We're happy to agree those reporting points and note that response, as well. Thank you very much for that analysis.

We'll go on, then, to item 6, where we have notifications and correspondence under the inter-institutional relations agreement. You can see quite a range of correspondence here under item 6.1 and I invite you to note the correspondence from the Welsh Government in relation to meetings of those inter-ministerial groups, including from the Minister for Economy, informing us of a meeting of the UK-EU relations inter-ministerial group, which was taking place on 6 March, and from the Counsel General and Minister for the Constitution, regarding the Interministerial Standing Committee. You'll recall that, last week, we noted the Counsel General's letter regarding the postponement of that meeting. We're now informed the meeting has been rescheduled to take place on 12 March. The Counsel General's original letter of 16 February carries the details of the topics of discussions that will take place.

We also have a letter from the Minister for Climate Change in relation to a meeting of the net-zero, energy and climate change inter-ministerial group, which took place on 21 February, and we have a written statement and correspondence from the Deputy Minister for Arts, Sport and Tourism regarding the inter-ministerial group for sport, which took place on 1 March in Glasgow. If you are happy to note that, but, again, I'll just say jump in if there's anything that leaps out at you at this moment, and we can return to these in private session as well, of course.

Item 6.2 is to note the written statement by the Minister for Rural Affairs and North Wales, and Trefnydd informing the Senedd that she has given consent for the Minister for Biosecurity, Animal Health and Welfare to make the Sea Fisheries (Amendment) Regulations 2024. These regulations will come into force on 6 April 2024. The Minister states she has given her consent

'for reasons of efficiency and expediency in cross-UK coordination, and consistency.'

In her words,

'The Regulations do not diminish or undermine the powers of Welsh Ministers in any way, and they do not create, amend or remove any functions conferred on the Welsh Ministers.'

Item 6.3, then. I invite you to note the written statement and correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd informing us that she has given consent to the UK Government to make the Plant Health (Fees) (England) and Official Controls (Frequency of Checks) (Amendment) Regulations 2024. The Minister states that she has 

'consented to specific provisions within Part 3 of the Regulations only. The Welsh Government has laid the other provisions of the Regulations as Wales-only through the Plant Health etc. (Miscellaneous Fees) (Amendment) (Wales) Regulations 2024',

which we considered earlier today in our meeting at item 3.3. The Minister states, just for the record, that consent has been given because

'Introducing separate regulations in Wales and England may cause additional burden on the Animal and Plant Health Agency (APHA), business, traders and growers.'

She also states that

'Regulating on a GB-wide basis ensures a coherent and consistent statute book with the regulations being accessible in a single instrument with no risk of legislative divergence in GB.'

So, colleagues, we go on then to item 7, which is papers to note. We begin with item 7.1, with correspondence from the Minister for Economy, providing the Welsh Government's response to the committee's report on the Welsh Government's legislative consent memoranda on the Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill. The Minister's letter responds to the recommendations we made in our report, including an update on engagement with the UK Government. The Minister states that the Welsh Government continue to disagree with the UK Government's position in relation to clause 2 of this Bill and have offered to work with the UK Government on a suitable amendment. Just to note as well, colleagues, there are two legislative consent motions on the Bill that will be debated in Plenary tomorrow.

Under item 7.2, we're invited to note the correspondence from the Chair of the House of Lords Constitution Committee to the Secretary of State for Levelling Up, Housing and Communities, and Minister for Intergovernmental Relations, following the fifth meeting of the Interparliamentary Forum, held at the House of Lords on 29 February. The forum has requested details of the outcome of the evaluation of the entire common frameworks process due for publication this spring, and has asked for clarity in relation to two proposed frameworks. It'll be of interest to Members, as well, to note that the forum notes that, due to the formation of a new Northern Ireland Executive, further progress may now be made towards finalising the 28 common frameworks that currently operate on a provisional basis, and that this will support scrutiny of the frameworks by enabling the agreed annual reporting to take place as well.

Under item 7.3, we're invited to note the correspondence from the Minister for Finance and Local Government in relation to the Welsh Tax Acts etc. (Power to Modify) Act 2022. This is quite interesting, because the Minister has offered the committee a presentation from officials in relation to one of the amendments to the then Bill, which included an obligation on Welsh Ministers to publish a review of the Act by 8 September 2026. The Minister's letter states that

'Section 6 further provided that the review must include an assessment by the Welsh Ministers of alternative legislative mechanisms for making changes to the Welsh Tax Acts and regulations made under any of those Acts. Furthermore, the Welsh Ministers in undertaking the review must consult Senedd Cymru and such other persons as they consider appropriate.'

The Minister states that the aim will be to consider the approach to making—how do you pronounce this? Timeous? Is that a word? I'm sure it is—timeous changes to the Welsh tax Acts et cetera and hear suggestions the committee may have as to appropriate alternative legislative mechanisms. The offer is also being extended to the Finance Committee. I think this might be something that we definitely want to return to in private session, colleagues.

Item 7.4, then. We're invited to note the correspondence from the Deputy Minister for Climate Change providing the Welsh Government's response to our report on the legislative consent memorandum on the Automated Vehicles Bill, which we laid on 22 February. The Deputy Minister accepts and responds to recommendations we made in our report. And just to note, in private session today we will be further considering the supplementary LCM for the Automated Vehicles Bill.

Item 7.5, then. We're invited to note correspondence from the Counsel General and Minister for the Constitution in relation to correcting Welsh statutory instruments. This is something we've been very interested in as a committee. The Counsel General is following up on discussions held in our evidence session with him on 26 February. He notes—which is of great interest to us—that a series of new arrangements have been put in place to ensure the Senedd is aware of corrections being made to instruments. He states that—and I quote—

'Government responses to committee scrutiny reports will include a table setting out corrections to be made prior to making draft affirmative instruments. Where timings do not permit that table to be included in the Government response, Ministers will write separately with that information to the Committee. Ministers will also inform Members of the changes to be made, in the Senedd debate on the instrument.'

The Counsel General also—just to note—provides information regarding the use of correction slips and notes that they are published online on legislation.gov.uk. And finally, he's also provided in an attachment to the letter a table of all correction slips issued in respect of Welsh statutory instruments made from January 2020 to the present. Again, this, I think, will be something that we'll want to return to in private session, but it's good to note that we seem to have progress being made on that front, which we welcome.

Item 7.6, then, the last item in this section. We have correspondence to note from the First Minister, providing the Welsh Government's response to our report on the supplementary LCM memorandum No. 3 on the Data Protection and Digital Information Bill, which we laid on 26 January. There are some interesting remarks within that response that I think we'll want to return to as well.

But if you're happy to note all that correspondence, colleagues, then I have one final item of business to do before we head into private session.

Under item 8, we need to consider a motion to elect a temporary Chair under Standing Order 17.22 for the committee meeting on 18 March 2024; that's next week. This is because in my role as chairman of the LJC, I'm attending a meeting along with another colleague here of the UK-EU Parliamentary Partnership Assembly in Brussels. So I wonder if we could have nominations, please, for a temporary Chair.

I nominate Alun Davies.

Thank you, Sam. Content? Thank you. Alun, you've been duly nominated again. Thank you for stepping in again on that. So, I can confirm that Alun Davies has been elected temporary Chair for that meeting.

Colleagues, under item 9, Standing Order 17.42, are you happy to exclude the public for the remainder of the meeting? Thank you. We'll go into private, please.